On 30 January the Secretary of State for Transport, the Rt Hon Patrick McLoughlin MP, blocked a freedom of information request relating to a Project Assessment Review (PAR) prepared by the Major Projects Authority (MPA) in 2011. The report is of interest to opponents of HS2 in that it is said to be highly critical of certain aspects of the HS2 project. The request was made under the Freedom of Information Act 2000 and the Environmental Information Regulations 2004 (SI 2004/3391) on the grounds that the report also contains environmental information. A copy of the Secretary of State’s decision and all relating documents can be found at:-
GROUNDS OF REFUSAL
Following the original refusal of the Department to release the report in response to a freedom of information (FOI) request, the matter was referred to the Information Commissioner. The Commissioner issued a Decision Notice on 6 June 2013 ruling in favour of releasing the report. Having taken advice from the Cabinet Office, the Secretary of State used his powers under section 53 of the Freedom of Information Act 2000 (FOIA) to nullify the decision (which is also given effect to in the Environmental Information Regs by virtue of reg 18(6)). This is achieved by issuing a certificate, pursuant to section 53, stating that the information is exempt from disclosure. The Secretary of State certified that the information was exempt on the following main grounds as set out in the ‘Statement of Reasons’:-
- the report relates to the formulation of government policy (see section 35(1) FOIA);
- the information is part of an audit process conducted by a public authority and the disclosure of that information would prejudice the ability of the authority to carry out its functions (see section 33 FOIA);
- the Environmental Information Regulations (EI Regs) were not engaged because the PAR report was “insufficiently proximate to the environmental impact of the HS2 project itself” and could thus not be construed as “environmental information.”
- The PAR report is an “internal communication” and thus falls within the exception set out under s 12(4)(e) of the EI Regs.
Section 35(4) FOIA on the formulation of government policy exemption and reg 12(1)(b) EI Regs on exceptions to the duty to disclose environmental information place the Secretary of State under a duty to consider the public interest when deciding whether to withhold information on these grounds. The public interest considerations are discussed at length in the Statement of Reasons. Much of this focuses on the nature of the MPA itself and the functions of its reports. The Secretary of State argues that MPA reports are designed to highlight problems with projects at an early stage so that they can be addressed and solved. They are produced quickly and demand complete openness and frankness on the part of those asked for their opinions. Interviewees are encouraged to be as blunt as possible, even if this means lapsing into exaggeration and hyperbole, on the grounds that this forms part of the process of getting to the root of a problem. Thus, by their very nature the reports are blunt and brutal and are designed to be highly critical. In this respect they provide vital auditing tools; however, their efficacy would be undermined if interviewees knew that their comments could not be treated in confidence and would end up in the public domain. This would have the effect of blunting a vital auditing tool for overseeing major infrastructure projects and would not, therefore, be in the public interest.
The PAR report doubtless provides a rich seam of ‘juicy’ quotes which the opponents of HS2 and the media would love to mine. The Government is understandably concerned that such quotes would be bandied about without reference to the nature of the auditing process which produced them and the fact they only form part of a snap shot of the project taken nearly three years ago. Moreover, as noted above, it would set a precedent which could entirely undermine the efficacy of MPA reports. On the other hand one could argue that a project of this magnitude demands complete openness and the Government should have sufficient confidence in its abilities to demonstrate how and where the criticisms in the report have been addressed.
The opponents of HS2 are now considering instigating judicial review proceedings in respect of the Secretary of State’s decision. This is likely to focus on the assertion that the report did not engage the EI regs and the argument that a communication between the Department for Transport and HS2 Ltd is an internal communication. See for example, Nick Collins, ‘Critical HS2 report blocked by ministers’ Telegraph (London, 30 January 2014):-
HS2 LTD – AN ARM OF GOVERNMENT?
This latter argument is especially interesting in that it raises and issue which is at the heart of modern government. Central Government now commonly acts through corporate bodies established under the Companies Acts and limited by guarantee. Such bodies are engaged in a range of activities including regulation, management of facilities and infrastructure and project management. HS2 Ltd clearly falls into the latter category and the Secretary of State emphasised the fact that it is wholly owned and controlled by the Department for Transport. In some cases this technique may serve to place the body at ‘arm’s length’ from central government; if HS2 Ltd was regarded as being placed at ‘arm’s length’ from central government it may support the view that any communication between the two bodies could not be regarded as an internal communication. However, recently there have been interesting developments relating to another rail related government controlled corporate body, namely, Network Rail Ltd. In December 2013 the Office for National Statistics (ONS) announced that henceforth Network Rail Ltd would be regarded as a government body. This means that it’s debts will now form part of the national debt. See ONS report at:-
This reasoning would support the view that HS2 should be regarded as part of the Department for Transport. Although, it remains to be seen whether this is part of a more widespread move to shorten the arm’s length between government and the corporate bodies through which it acts.
Any further developments which ‘Railways and Law’ becomes aware of will be reported here.
Information Commissioner Decision Notice FER0467548:-
Major Projects Authority:-
Freedom of Information Act 2000:-
Environmental Information Regs 2004:-