Fresh HS2 Legal Challenge

Dave Bushell

I had hoped to leave HS2 alone for a while and catch up on other issues such as the world of franchising. However, further to my last entry on HS2 Mr Packham through his solicitors Leigh, Day & Co has launched the first stage of his judicial review of the decision of the Government to press ahead with the project in the light of the Oakervee Review. As a result I feel that I have little alternative other than to offer my initial observations.

The arguments

We now have a much clearer view of the arguments and it seems that the Oakervee Review is indeed at the heart of the challenge. It is contended that the Oakervee Review was flawed in that it failed to pay sufficient attention to the climate change implications of the project. For example, it is argued that issues such as emissions from construction machinery were largely overlooked as was the possibility of increased air travel arising from better regional airport connectivity (although, as regards the latter point one cannot help but point out that the Heathrow link was ditched!) Moreover, the challenge has been given added emphasis by the successful challenge in the Court of Appeal against the third runway at Heathrow again on climate change grounds.

It’s all about procedure

The main point to note is that this is all about the planning process and compliance with procedural requirements pertaining to the fulfilment of environmental requirements. As such it is slightly odd that the main focus appears to be on a policy document such as the Oakervee review. Leaving aside the argument set out in my previous post to the effect that it is doubtful whether such a document could be construed as resetting the entire decision making process, it is worth noting the Supreme Court decision in R (on the application of Buckinghamshire County Council and others) v Secretary of State for Transport [2014] UKSC 3, [2014] 1 WLR 324 (more on which later). Here it was held that a policy document which proclaimed the Government’s desire to build HS2 (Department for Transport, High Speed Rail: Investing in Britain’s Future – Decisions and Next Steps Cm 8247 (2012)) was not the planning decision which triggered the need for compliance with procedures pertaining to environmental protection (the need for a strategic environmental assessment in this case). Under the hybrid Bill procedure Parliament is the decision maker and it is the preparation of the Bill which triggers environmental assessment: see, for example, Lord Carnwath at [38]. Policy documents, advisory opinions, review panels, statements of intent and so forth in no way bind the hands of the decision maker.  Thus, the main focus needs to be on the adequacy of those planning procedures which do in fact govern the decision making process.

Heathrow 3rd Runway Case

Before turning to the HS2 case itself it is necessary to say something about the Court of Appeal decision on the third runway at Heathrow which has been credited as giving added impetus to the HS2 challenge: R (on the application of Friends of the Earth) v Secretary of State for Transport and others [2020] EWCA Civ 213. The decision is not quite as ground-breaking as has been made out and focuses on narrow procedural requirements. Heathrow expansion is being dealt with under the Planning Act 2008 rather than hybrid Bill procedure. The Act relates to large scale infrastructure projects and a crucial stage is the designation of a ‘national policy statement’ (NPS) by the Secretary of State which sets government policy and provides a firm framework for the next stages of the process: see Airports National Policy StatementSection 5(8) of the Act specifically requires the NPS to ‘take account of’ government policy on climate change. The NPS appeared to have taken account of the Climate Change Act 2008 (CCA 08) but, at the material time, the CCA 08 had not been amended to reflect the commitment which the Government had agreed to under the Paris agreement to hold ‘the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels.’ In fact, there had been an express decision not to incorporate the exigencies of the Paris agreement in the NPS because it had yet to be incorporated into domestic law. This is where NPS fell short in that the Court of Appeal held that the  expression ‘government policy’ clearly goes beyond legislative measures and includes other commitments and decisions. The Court (perhaps sensing that people were likely to get carried away by the significance of the decision) bent over backwards to emphasise the point that it was doing nothing novel in requiring the decision maker to adhere to clearly set out procedural requirements in the planning legislation. As the Court said at [230] “…requiring the Crown to comply with what has been enacted by Parliament (in this case the obligations in section 5(8) of the Planning Act) is an entirely conventional exercise in public law.” Moreover, the Court was at pains to point out that, if the decision maker had in fact taken the Paris Agreement into account, the scope for judicial scrutiny of the manner in which he had done so would have been limited: “We repeat that the duty in section 5(8) does not even require the executive to conform to its own policy commitments, simply to take them into account and explain how it has done so.” (at [231]). Overall, it seems that there was a very specific procedural defect which is unlikely to reoccur thanks to this judgment and the fact that the CCA 08 has now been amended in any case so as to reflect the Paris Agreement. To this end the Climate Change Act 2008 (2050 Target Amendment) Order 2019 SI 2019/1056 substituted the existing target (to reduce the carbon account to 80% below the 1990 baseline) with a commitment to achieve a 100% reduction: see Explanatory Memorandum.

HS2 and Environmental Assessment

All in all the Heathrow case was a highly traditional judicial review decision with the Court seeing its role as one of ensuring that the decision maker adheres to the letter of the rules that have been set in terms of reaching the decision but largely steering clear of the substance of the decision. Thus, in turning to the HS2 project our focus must also be on compliance with the relevant procedures rather than the substance of the decision. As noted above, the HS2 project is subject to the hybrid Bill procedure. It is divided into 3 phases (notwithstanding the attempt to merge phase 1 with phase 2a) and the current state of legislation reflects these 3 phases. Thus, it is logical to look at each one in turn.

Phase 1

Legislation has already been enacted in respect of phase 1  of the scheme from London to  Birmingham and the West Midlands: the High Speed Rail (London – West Midlands) Act 2017. Standing orders for private and hybrid bills had to be adjusted to take account of the need for environmental assessment. At the material time the relevant legislation was set out in Directive 2011/92/EU on Environmental Impact Assessment and House of Commons Standing Order (SO) 27A.  An environmental statement was prepared in pursuance of these requirements and was submitted to Parliament with the Bill and its associated documents in November 2013. It must be conceded that climate change did not feature heavily in the 2011 Environmental Impact Assessment Regulations SI 2011/1824 which were applicable at the time. In fact, there was just one fleeting reference to ‘climatic factors’ in the list of factors which an environmental statement should cover. Furthermore, under environmental assessment the duty is to ‘consider’ environmental factors which is arguably even weaker than ‘take account of.’ Nevertheless, the environmental statement which was attached to the phase 1 Bill fully engaged with the issue and contained a detailed assessment of climate change factors: see HS2 Phase 1 environmental statement volume 5: climate change. Moreover, the documents show that the study was conducted in the light of the Climate Change Act 2008 and the pre-Paris commitment to reduce carbon emissions to at least 80% below the 1990 baseline. Finally, in the aforementioned judicial review proceedings of 2014, the Supreme Court held that the hybrid Bill procedure was fully compatible with the requirements of environmental assessment: R (on the application of Friends of the Earth) v Secretary of State for Transport and others [2020] EWCA Civ 213.

Mr Packham’s solicitors have pointed out that matters have moved on since this environmental statement was prepared in that the UK government signed up to the Paris agreement and has indeed now amended the CCA08 accordingly. However, this suggests that the CCA08 amendment has some form of retroactive effect which is capable of reopening planning decisions which have already been made in accordance with the law that applied at the time. In the absence of very clear and express words to that effect this is very doubtful to say the least. It is also interesting to note that in the Heathrow third runway case the Court of Appeal said at one point that there was no incompatibility between the pre and post Paris targets in that the 80% reduction target was expressed as a minimum (see [225]); in which case the targets might not be so different. In any event, under the UK constitution it is simply not possible for a court to strike down an Act of Parliament.

Phase 2a

That brings us to phase 2a of the scheme which extends the line beyond the West Midlands to Crewe. As noted in my previous post on the issue the relevant legislation was introduced in the House of Commons in July 2017: the High Speed Rail (West Midlands – Crewe) Bill 2017-19 to 2019-21. The Bill progressed as far as the appointment of s select committee in the House of Lords to hear petitions before the dissolution of Parliament ahead of the December 2019 General Election. Both House of Parliament have now passed revival motions which means that the Bill does not have to be re-introduced and can be taken forward from where matters were left off. The environmental statement associated with this Bill was prepared in accordance with the more recent Environmental Impact Assessment Regulations 2017 SI 2017/571 which makes far more extensive references to climate change than its predecessor. As one would expect, the phase 2a environmental statement contains a detailed analysis of climate change issues and, notwithstanding the fact that the statement was prepared ahead of the amendment of the CCA 08, the Paris Agreement and the Government’s commitments there-under are expressly referred to: see, for example High Speed Rail (West Midlands – Crewe) Environmental Statement: Volume 3: Route Wide Effects where it is referred to throughout section 4 on climate change.

Phase 2b

As regards phase 2b concerning the completion of the line to Manchester and the other arm of the ‘Y’ shape to Leeds the project is under review and has been bundled up with the Northern Power House Rail Project so as to integrate HS2 with improving connectivity between Northern Cities. Hence planning is at a much earlier stage and the original proposals may be subject to extensive change. However, this means that there can be no doubt whatsoever that environmental assessment, which is currently at a ‘working draft’ stage (and clearly subject to major revisions if there are changes to route and project specifications etc) will be conducted according to the latest climate change policies. Indeed, as one would expect, the current working draft is already replete with references to the Paris Agreement: See High Speed Rail (Crewe to Manchester and West Midlands to Leeds) Working Draft Environmental Statement – section 4 on climate change.

Conclusion

Phrases such as ‘take account of’ and ‘consider’ environmental effects such as climate change arguably set the bar relatively low in terms of what the decision maker must do although they certainly go beyond paying mere ‘lip service’ to them. Provided that there has been some form of proper assessment which has been filtered into the decision making process the Court of Appeal has made it clear in the Heathrow case that the Court will be extremely chary about intervening in the actual substance of the decision:

As we have said, we are required – and only required – to determine whether the Divisional Court was wrong to conclude that the ANPS was produced lawfully. Our task therefore – and our decision – does not touch the substance of the policy embodied in the ANPS. In particular, it does not venture into the merits of expanding Heathrow by adding a third runway, or of any alternative project, or of doing nothing at all to increase the United Kingdom’s aviation capacity. Those matters are the Government’s responsibility and the Government’s alone. (at [282].

There can be no doubt that the environmental statements prepared in respect of HS2 go far beyond minimal requirements. With a subject as complex and controversial as climate change it will always be possible to find experts who may disagree with the technical data or conclusions drawn in an environmental study; but this is not sufficient to impugn the decision.

In conclusion, there is simply no mileage at all in the argument that the HS2 project has not taken sufficient account of climate change issues and has ignored the requirements of the Paris agreement. To take the Oakervee review document in isolation and ignore the extensive assessments which have been carried out (or are still underway) in respect of all three phases of the project is nonsensical in the extreme.