Chris Packham loses appeal

The newly completed ‘head wall’ of the Chiltern’s tunnel Southern portal awaits arrival of the TBMs. Photo (c) HS2

As noted in previous posts the naturalist and broadcaster Chris Packham has sought to challenge, by way of judicial review, the Government’s decision to proceed with the HS2 project in the light of the Oakervee Review (OR). In Packham v Secretary of State for Transport [2020] EWHC 829 (Admin), the High Court refused him leave to apply for judicial review on the grounds that there was no arguable case. Mr Packham then appealed against that decision to the Court of Appeal which has now also rejected the claim: R (on the Application of Packham) v Secretary of State for Transport [2020] EWCA Civ 1004; [2020] 7 WLUK 494.

Despite the fact that, technically speaking, there has been no judicial review in that the application to bring judicial review was rejected, there has in fact been a form of de facto judicial review in that the Courts ended up considering the points in great detail in order to ascertain whether they were in fact arguable; such is the nature of ‘time-saving’ interloctuary procedures!

The High Court proceedings are dealt with extensively in my post entitled: Packham v Secretary of State for Transport. As is usually the case with any appeal, some of the issues fell away before the hearing. The Court was left to determine the procedural issues of whether the claim was in time and the intensity of the review which should be undertaken before turning to the substantive arguments. These were claims 2 and 3b on whether the OR and decision paid sufficient attention to the environment and climate change respectively.

Promptness

A preliminary consideration was whether the claim had been brought ‘promptly’ for the purposes of rule 54.5(1) of the Civil Procedure Rules. The Divisional Court ruled that, as the matter pertained to an infrastructure project, the six week time limit imposed by section 118 of the Planning Act 2008 ought to be used as the benchmark for determining promptness. The Court of Appeal rejected the argument that the decision in question ought to be treated as analogous to planning decisions governed by the 2008 Act: ‘Neither the Oakervee Review nor the Government’s decision of 11 February 2020 were made within any statutory framework, whether for the planning of major infrastructure or otherwise.’ (at para [45]). This is a logical conclusion in that a central component of the defendant’s argument was that this was not a planning decision; the planning part of the process had already been concluded culminating in an Act of Parliament.

However, this small victory would have been of limited consolation to the claimant in that the Court rejected all the other arguments in fairly emphatic terms.

Intensity of Review

The Court of Appeal endorsed the finding of the Divisional Court to the effect that this was essentially a political decision falling outside the formal planning process. As such it would only be subject to a ‘light touch’ Wednesbury approach whereby the report and the decision could only be impugned on the grounds of irrationality. Moreover, it was the type of matter where the decision maker would be afforded a ‘broad margin of discretion.’ The Court then briefly itemized the key reasons for this finding (at para [52]):-

  1. The decision was taken at the very highest level of Government;
  2. The Cabinet was fully aware that phase 1 of the scheme had already been authorized by the 2017 Act;
  3. There had been no physical changes between the Royal Assent and the Cabinet’s decision capable of undermining the environmental assessment undertaken pursuant to that Act;
  4. It was a case where the Cabinet had to balance a multitude of competing political, economic, social and environmental considerations.
  5. As a result of point 4 there could be no ‘right’ decision.
  6. The Oakervee Review report had obvious limitations.

All of which underscored ‘the essentially political quality of the decision.’ (para [53]).

The fact that the Court of Appeal emphasized the political nature of the decision and the ‘broad margin of discretion’ meant that the claimant faced an uphill task in establishing that the decision was fundamentally flawed in terms of how the environmental arguments had been addressed. Where a decision is political and the decision maker has a broad margin of discretion it is very difficult to show that the decision was so flawed that it was irrational.

Failure to consider environmental effects

The first substantive argument (ground 2 of the original claim) was that the decision to proceed was flawed in that it failed to properly consider the environmental effects of the scheme. There were two aspects to the claim. The first aspect was that the OR purported to set out a full and comprehensive analysis of the environmental effects when it clearly did not do so. The second aspect was that the cabinet (as decision maker) must be taken to have based its decision solely on the review believing it to contain a full and comprehensive review of the environmental effects. There could be no assumption that it was fully aware of the wider context of the project and the detailed environmental assessments which had been undertaken pursuant to the 2017 Act under which the first phase of the project had been authorized. Given that the OR did not in fact contain a full and comprehensive review of the environmental effects of the project and given that there could be no assumption that ministers must have been aware of the assessments which had already been done,  any decision to proceed based upon the findings of the OR must have been flawed.

The weight attached to the Oakervee Review

Taking the second aspect first, the Court of Appeal regarded the argument that ministers had to be regarded as being entirely reliant on the OR and unaware of the background of the project as entirely artificial. By the time that the OR was set up in August 2019 the ‘factual context’ of the project ‘was a matter of record.’ Thus, ‘the idea that the Cabinet, when forming the decision, lacked that basic knowledge of the project is, in our view, wholly unrealistic.’ (at para [64]). In his submissions (which can be viewed on the Court of Appeal YouTube channel) Mr Wolfe, for the claimant, repeatedly and forcefully made the point that the Government had consistently failed to adduce any documentary evidence that, when making the decision, the Cabinet had before it papers other than the OR. Thus, there could be no assumption that it had followed guidance in the Cabinet Office Manual which states that ‘[papers] and presentations for Cabinet … should include any information that is needed for ministers to make an informed decision’ (paragraph 4.30).

In any event the Court of Appeal appeared to regard this argument as somewhat of an irrelevance. Whether or not the Cabinet, on the day of the decision, had a specific briefing document before it on the background of the scheme and a detailed account of all the environmental assessments which had already been undertaken, ‘it is simply not credible’, the Court contended,

‘that in the circumstances in which the review was commissioned and the decision made, the Secretary of State, or any other minister, was ignorant of the legislative and procedural history of HS2, including the fact that the statutory approval process involved a lawful and comprehensive assessment of environmental impacts.’ (at para [64]).

The claimant also adduced a number of public law cases which imposed strict limits on the ability to make assumptions that certain procedural steps had been taken or to impute knowledge possessed by one person involved in the decision to another. The Court of Appeal held that all such authorities  were clearly distinguishable in that they all concerned adherence to strict procedural requirements in legislation governing the decision. In the case at hand the procedural requirements and duties pertaining to the central planning decision had already been fulfilled and the requisite powers granted:-

The decision now being taken was not a decision on the planning merits, it was a decision on whether or not to proceed with a project whose planning merits had already been considered in a statutory process, and its first phase approved in an Act of Parliament (at para [65]).

The Court of Appeal also firmly rejected any suggestion that the Secretary of State and the Cabinet as a whole had laboured under any misapprehension about the purpose, scope and limitations of the OR. They knew full well that the OR fell outwith the formal planning procedures:-

the review was not part of the legislative process for the approval of the project. It did not engage either domestic or EU legislation on environmental impact assessment. The Government was under no obligation to set it up. To do so was not necessary to discharge any duty arising under any Act of Parliament or at common law, or to comply with any policy promulgated by this or any previous administration. There was no statutory or policy basis for the terms of reference. Though a number of organisations and individuals took the opportunity to make representations to the panel, there was no duty here to undertake public consultation. (at para [66]).

Moreover, it was clear that the Government never had any intention of basing its decision solely on the OR. In a statement to the House of Commons on 3 September 2019 the Secretary of State for Transport, Mr Grant Schapps, stated that ‘its recommendations would inform our decisions on the next steps’ (the Court of Appeal’s emphasis); thus it was clear that the OR would not ‘dictate’ the Government’s decision (see para [67].

The scope and purpose of the Oakervee Review

The Court was equally dismissive of the other limb of the argument on ground 2, namely, that the OR itself misrepresented its scope and purpose and claimed a degree of comprehensiveness and detail which it could not possibly have achieved given the limitations of time and resources.

The first point that the Court made was that the OR had to be viewed in the light of the time constraints placed upon it and what could realistically be achieved in the time frame. A phrase used a few times in the submissions in the Court of Appeal hearing (which did not make it into the judgment) was that it was a ‘quick and dirty’ review (see submissions on YouTube, above). Another point made by Mr Mould for the defendant (which was also not covered in the judgment itself) was that the report was largely motivated by a need to justify the mounting costs of the project rather than a desire to revisit all the environmental arguments.

The panel comprising the OR had not been asked ‘to undertake a comprehensive assessment’. Apart from the impossibility of achieving this within the time-frame it was entirely unnecessary in that an assessment had already been concluded pursuant to the 2017 Act and a similar process was already in train as regards phases 2a and 2b. The terms of reference of the review made it clear that, ‘the review was not, and was never suggested to be, a self-contained evaluation of HS2 as a project. It was much more circumscribed than that.’ (para [70]). The Court then listed the following points as being of crucial importance (at paras [72-74]):

  • The terms of reference of the OR could not be criticized as ‘being inadequate, inconsistent or unclear.’
  • There was no suggestion that the panel misconstrued the terms of reference and the report was faithful to them: ‘There is nothing to indicate that, in doing so, it failed to consider with care any relevant content in the representations submitted to it.’
  • Leaving aside the issue of developments in the field of carbon emissions (dealt with below) there were no significant changes in circumstances which could have called into question the soundness of the assessments already completed in respect of phase 1.

Furthermore, at no point did the report attempt to, or purport to, conduct its own comprehensive review of the impact of the project on ancient woodlands etc. All it did was to mention some of the mitigation measures which had been adopted and to draw the conclusion that such measures must always be kept under review. Thus, the Court rejected the claimant’s submission that the report was presented as a full and comprehensive assessment of the environmental effects (para [75]).

All of the above led the Court of Appeal to draw two major conclusions (summarized at para [82]):-

  1. There could be no suggestion that the Government had misled itself as to the nature and purpose of the report and treated it as a full, thorough and comprehensive assessment of the environmental effects: ‘it would have been obvious to ministers that the environmental impacts of HS2, and the proposed mitigation, had been, and would be, formally assessed in accordance with the law. The review report did not have to spell that out.’
  2. There was no legal requirement for the OR to contain a ‘thoroughgoing, or any, assessment of environmental effects’ when deciding ‘whether and how’ HS2 should proceed given that those procedures had already been concluded in respect of phase 1 and were still in train as regards the other phases.

Climate change

The other substantive ground (ground 3b of the original claim) focused upon whether the OR and subsequent decision paid sufficient heed to the exigencies of the Paris Agreement as adopted by amendment of the Climate Change Act 2008. This requires the achievement of net zero emissions of greenhouse gases by 2050. Although the line would be carbon neutral in the long term, emissions caused by construction (e.g. from construction machinery and the manufacture of steel and concrete etc) could impede the attainment of the 2050 target. Thus, ‘it [the OR] did not explain, nor did the Government take into account, how the impacts of HS2 on climate change would sit with the requirements of the Paris Agreement, and the domestic legal framework designed to carry it into effect.’ (at para [91]) It was argued that it was not enough to acknowledge the issue, there had to be some thorough legal analysis of the implications.

The Court of Appeal commenced by firmly rejecting this argument before expanding upon its reasons for doing so:-

In our view it is impossible to infer from the report any failure by the panel to have regard to the Government’s relevant statutory and policy commitments on climate change. And the Government did not demonstrably commit any such error in making its decision. On this point too, we agree with the Divisional Court. There is nothing to show that the Government either ignored or misunderstood the legal implications of proceeding with HS2 for its obligations relating to climate change, including those arising from the Paris Agreement and under the provisions of the Climate Change Act . (para [92])

The Court then made two points in support of this assertion (at paras [93-94]). Firstly, it reiterated a point made many times in one form or another throughout the judgment. The OR fell entirely outside any of the legislation or planning mechanisms pertaining to HS2. There was no legislative requirement to undertake such a review in the first place or to consider climate change issues outside the formal planning process. One could summarize this argument by simply saying that the OR and associated decision were not planning decisions at all. It was part of a political process for deciding whether to use powers which had already been gained under formal planning procedures.

The second point was that, given that the review fell entirely outside these planning mechanisms, the Government had an entirely free hand in terms of setting the terms of reference of the review. It was up to the Government to set out what issues it wanted advice on when deciding whether to continue with the project. The Government was therefore entitled to set terms of reference relating to climate change which were limited in scope; that did not render the terms of reference defective:-

[I]t is worth recalling here that in the terms of reference the only mention of any consideration relating to climate change is in connection with “environmental benefits” – namely, “in particular for carbon reduction in line with net zero commitments”. This is not a shortcoming in the terms of reference, but merely a fact. The Government was under no obligation, statutory or otherwise, to extend them by requiring a wider or deeper consideration of the consequences for climate change of constructing and operating HS2, or by embracing, for example, the “legal implications” of increases in carbon emissions caused by the construction of the project. (para [94]).

As regards the content of the OR on this issue the Court held that the review engaged fully with the climate change issues and the implications of the Paris Agreement and the 2050 commitment. It drew attention to the fact that construction was likely to push up carbon emissions in the run-up to 2050 but noted that this had to be weighed against the long term potential of the scheme to reduce emissions. Moreover, it noted the need to constantly look for further improvements that could be made in the short to medium term. Thus, ‘…the panel did not neglect the period before 2050. On the contrary, it took care to consider what would be happening in the course of that period. It concentrated on emissions likely to be generated in the construction of HS2, which would be going on during those years.’ (para [96]). All in all, the OR more than fulfilled the objectives which had been set for it in the terms of reference.

Finally, the Court dispensed with the argument that the Plan B Earth case on the Heathrow third runway was authority for the proposition that the Government was duty bound to consider climate change issues in a far more intensive manner than the OR. As may be recalled from my previous posts, in the Heathrow third runway litigation the claimants successfully argued that the Airports National Policy Statement (ANPS) was defective in that it failed to address the implications of the Paris Agreement. The Court of Appeal held that there had been a clear breach of sections 5(8) and 10(3) of the Planning Act 2008 in that there had been a conscious decision not to consider the Paris Agreement. However, in the case at hand the Court of Appeal rejected the applicability of the Plan B Earth case for three reasons (at para [103]):-

  1. As the Court had already said ad nauseam throughout the rest of the judgment, the OR and associated decision fell entirely outside the planning process and any legislative requirements: ‘The Government was at liberty to select the issues on which it wished to be advised by the Oakervee review, against the background of HS2’s evolution as a project, including the statutory approval process. The Heathrow case fell squarely within the requirements of the Planning Act 2008 and the need to adhere to specific requirements on climate change.
  2.  The advice given in the report ‘dealt amply’ with the issues and was ‘legally impeccable.’
  3. When the Government gave its decision in 2020 it would have been ‘fully aware of the United Kingdom’s commitments under the Paris Agreement.’

Thus, as with the general environmental arguments,  the claimant’s specific arguments on climate change were firmly, if not emphatically, rejected.

Conclusion

The decision will  no doubt earn its place in the textbooks in that it has raised some novel and interesting issues.

The novelty of the case resides in the fact that, never before has a Government gone to all the trouble of obtaining an Act of Parliament to authorize a project only to risk re-opening the matter by publishing a subsequent report which it did not have to commission and making a decision thereon which it did not have to make! Nevertheless, despite the novelty of the issue, the Court of Appeal applied a fairly straightforward public law analysis regarding the distinction between essentially political and procedural decisions. Here, we had a political process belated added onto a formal planning process. Had there been no OR it would never have occurred to anyone to challenge a project which had been authorized by Act of Parliament. Mr Packham thought that the OR and associated decision presented him with an opportunity to mount an indirect challenge against the legitimacy of the entire project on environmental grounds.

In the event the Court of Appeal found that the OR asked a distinct question, namely, ‘whether and how’ to proceed with a project which had already been authorized. This was not the same thing as deciding whether to authorize or grant permission in respect of a project in the first place. The former is a political decision and the latter is a planning decision. As such there was a great deal of flexibility in terms of setting the terms of reference of the review and the weight attached to its findings. Indeed, at one point the Court of Appeal stated that the Government had had an entirely free hand in setting the terms of reference and need not have included environmental issues at all!

As I have repeatedly said in my previous posts on this litigation, the case also raises issue of Parliamentary sovereignty.  Mr Packham’s purpose in bringing the claim was clearly to put a spanner in the works of the entire project by using the OR as a vehicle for questioning the basis upon which the 2017 Act was passed. The Court of Appeal did not tackle this matter head on but there is the briefest of oblique references to the issue at para [52]:-

Secondly, at the date of the decision the Cabinet can be taken to have been aware, at least, of the existence of the 2017 Act and the fact that in the course of the passage of the Phase One Bill through Parliament a detailed assessment of environmental impacts had already been carried out. That assessment had not precluded the coming into force of the statute. It remained lawful and valid at the time of the Oakervee review, and at the time of the decision. So did the statutory approval process itself. And that will remain so regardless of the outcome of these proceedings. (emphasis added).

This represents a strong indication on the part of the Court of Appeal to the effect that it would have  had no power to stand in the way of an Act of Parliament, even if the OR and associated decision had been found lacking. It seems that the most Mr Packham could have hoped for was a declaration that the process had been defective; although this would most certainly have caused political embarrassment. However, one must also bear in mind the decision of the Court of Appeal in R (on the Application of Edwards) v the Environment Agency [2006] EWCA Civ 877, [2007] JPL 82, [2007] Env LR 126, [2007] Env LR 9, where the Court questioned the utility of making such a declaration where to do so would have no effect on the statutory power or authorization in question: see, in particular [para 130]. Interestingly, counsel for Mr Packham, Mr David Wolfe QC, also represented the claimant in Edwards; one can only speculate as to whether he was trying to get the Court to reappraise its stance in the case at hand!