The High Speed Rail (London – West Midlands) Act 2017

A Eurostar train on the Channel Tunnel Rail link in Kent (or HS1) – soon to be joined by HS2.
Photo by Kenneth Yarham.

On the 23 February the HS2 Bill received the Royal Assent and was enacted as the High Speed Rail (London – West Midlands Act (2017) (hereinafter referred to as the HS2 (Phase 1) Act). Thus, HS2 Ltd now has the requisite powers to commence construction of the first phase of the project from London to Birmingham. In the House of Commons the Secretary of State for Transport, Chris Grayling, announced that site clearance, establishment of depots, archaeological work and demolition work would start within weeks with major earthworks and so forth commencing by the end of the year: see Hansard vol 621 cols 1127-28 23 February 2017.

Schematic diagram showing what the UK’s high speed rail network will look like following completion of phases 1 and 2.
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The Bill endured a gruelling passage through both Houses of Parliament thanks to the length and complexities of the hybrid Bill procedure. The multitude of railway projects in the nineteenth century were authorised by private Bills as they were promoted by private enterprise. As HS2 is essentially a Government sponsored project a private Bill would clearly have been an inappropriate mechanism, However, a public Bill would also have been inappropriate as, although the project is a nationally significant infrastructure project, it has particular implications for specific sections of society, principally for those who live in the path or in close proximity to the route. Thus, in common with all other major rail infrastructure projects of recent years such as Crossrail and the Channel Tunnel Rail Link (HS1), HS2 has been authorised by way of the hybrid Bill procedure. The process is lengthy and cumbersome due to the amalgamation of private and public Bill elements. The initial stages of the Bill follow private Bill procedure in that, after second reading in each House, a select committee is instigated. The purpose of the select committee is to hear petitions from those adversely affected by the scheme and to propose additional mitigation measures. Crucially, it may not question the need for the scheme as this decision has already been taken by Parliament at second reading. Historically, petitioning against a Bill has been a somewhat arcane art usually necessitating employment of expensive Parliamentary agents. As regards HS2 efforts were made to demystify the process and a ‘petitioning kit’ was made available online for the benefit of would-be petitioners. Arguably, these efforts met with some success in that large number of petitions were submitted and a substantial number of petitioners appeared in person before the select committees in both the Commons and the Lords, although, as will be seen below, some argue that there is still much work to be done in terms of opening up and simplifying the process.

Once the select committee has completed its work and published its findings the process becomes more akin to public Bill procedure in that the Bill must be considered by the Public Bills Committee in the Commons (Grand Committee in the Lords) before progressing to report stage and then third reading in each House.

Aside from the complexities of the legislative procedure, the HS2 Bill had to accommodate the exigencies of EU law and the need to conduct an environmental assessment. This necessitated the completion of an environmental statement running to some 50,000 pages. However, this failed to satisfy a number of objectors to the scheme who launched a judicial review in 2013 claiming that the original policy commitment to build HS2 should have triggered a strategic environmental assessment (SEA) and that Parliamentary procedures for authorising such projects were not commensurate with environmental assessment in any case. The Supreme Court rejected the claim for reasons which are set out in more detail in my blog post of 22 January 2014. Later that year the Court of Appeal rejected similar arguments pertaining to safeguarding directions designed to protect the route from conflicting development – see my post of 4 September 2014.

A ‘Stop HS2’ banner outside West Ruislip station which will be near the northern portal of the West London Tunnel.
Photo by mattbuck

Now that phase 1 of the scheme has been authorized and the project enters the ‘active phase’ Parliament must gear itself up to undergoing the entire process again at least twice more (in the long term possibly a third time if high speed rail is continued all the way to Scotland) in order to authorize phases 2a and 2b of the scheme to Manchester and Leeds. Added to which is the fact that the Crossrail 2 Bill is in the offing. Those who sat on the Parliamentary Committees clearly bear the scars of the process and the select committees in both Houses called for a review of hybrid Bill procedure. The House of Lords Select Committee in its Special Report of Session commented that:-

‘Time and again during our proceedings, we encountered difficulties with the current procedure. It became abundantly clear to us that petitioners found it cryptic and complex to understand, and labyrinthine to navigate.’

MPs with constituencies along the route complained that their constituents found the petitioning process arcane and intimidating. Moreover, locus standi rules meant that there was only a limited amount they could do in terms of guiding them through the process and making representations on their behalf – see debate which took place at ‘ping-pong’ (consideration of Lords amendments by the House of Commons): Hansard vol 621 cols 816-36 20 Feb 2017. In an interview with the Financial Times a campaign manager for Stop HS2 complained that large landowners, who could afford barristers, got more out of the petitioning process than ordinary members of the public and conservation groups etc. In the light of such concerns it seems that a review of hybrid Bill procedure is already underway.

There is certainly more that could be done in terms of rendering the process more user friendly from the perspective of the petitioner. However, given the need to ensure that enough people are given their say in the interests of democratic accountability, it is difficult to see how major reductions in the time and complexity of proceedings could be attained. There can be no doubt that many lessons will have been learned from the HS2 (Phase 1) Act and recent experience gained from the Crossrail Act 2008. In fact, it is noteworthy that, despite the fact that it is a much larger project and that there was a far greater number of petitions to consider, the HS2 (Phase 1) Bill managed to navigate its way through the legislative process in a very similar timeframe to the Crossrail Bill. Thus, there can be no doubt that, by the time they have endured three High Speed Rail Bills and a Crossrail 2  Bill, the Select Committees will have been honed into well oiled machines, not unlike the select committees charged with scrutinising the myriad private Bills under which the railways were authorised in the Victorian era. Nevertheless, there may be scope for reducing duplication by, for example, establishing some form of special joint select committee rather than allowing petitioning in both Houses. It remains to be seen what steps, if any will be taken.

At this point mention should also be made of the Planning Act 2008 which was designed to expedite planning procedures for major infrastructure projects in the wake of the notorious Heathrow Terminal 5 public inquiry which sat  for 524 days and contributed to a planning application process which took 8 years. Strictly speaking, any major rail project ought to be authorised under the 2008 Act but the HS2 (Phase 1) Act expressly exempts the project from the ambit of that Act. It seems that, where long linear projects are concerned, the hybrid Bill is still the most practical means of avoiding duplication and bringing all the requisite powers under one roof.

We await the introduction of Bills for phases 2a and 2b, and indeed Crossrail 2, with anticipation with a view to ascertaining to what extent, if at all, any of the aforementioned concerns have been addressed.

 

 

HS2, safeguarding directions and strategic environmental assessment

The Court of a Appeal has upheld a decision of the High Court to the effect that safeguarding directions, relating to the HS2 project, do not constitute a plan or programme triggering the need for a strategic environmental assessment: The Queen on the application of HS2 Action Alliance, London Borough of Hillingdon v The Secretary of State for Transport v High Speed two HS2 Ltd [2014] EWCA Civ 1578.

The High Court decision is dealt with in my blog HS2 and Strategic Environmental Assessment – Again! To recap, safeguarding directions, issued pursuant to powers under section 74(2) of the Town and Country Planning Act 1990 and section 25 of the Town and Country Planning (Development Management Procedure) (England) Order SI 2010/2184, enable the Secretary of State to restrict the granting of development consents which may conflict with a major infrastructure project such as HS2.

In R. (on the application of Buckinghamshire CC) v Secretary of State for Transport [2014] UKSC 3; [2014] 1 WLR 324, the Supreme Court held that the initial government policy commitment to build HS2, contained in a document entitled High Speed Rail: Investing in Britain’s Future: Decisions and Next Steps (Cm 8247, 10 January 2012), did not constitute a ‘plan or programme’ which ‘set the framework for future development consent of projects’. This would have necessitated a strategic environmental assessment to be conducted pursuant to Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment. Parliament would decide whether to grant consent, by way of the hybrid bill procedure, and the document could bind it in any way.

In the present case the claimants argued that the safeguarding directions constituted a ‘plan or programme setting the framework for development consent’ because they tied the hands of the individual planning authorities along the route. Thus, they would effectively control the nature of development within a corridor running the entirety of the route and ensure that it was commensurate with the building of a high speed line.

The appeal was rejected on the following grounds. The main reason was that the effect of the directions would be to channel problematic cases to the Secretary of State for Communities and Local Government by way of the appeals procedure under section 78 Town and Country Planning Act 1990. The Secretary of State would not be bound by the directions to the same extent as local authorities. Having said that, the strategic objectives set out as the justification for the directions would constitute powerful material considerations and the Secretary of State would have to adduce powerful reasons for departing from them. However, the directions are merely procedural requirements which facilitate the execution of the policy. They do not create the policy and have no effect on whether the scheme reaches fruition; this remains within the gift of Parliament:

“While the Directions constrain the manner in which the local planning authority may determine an application, they do not place any constraint upon the Secretary of State for Communities and Local Government when he determines an appeal under section 78 . While it is highly likely that on appeal the Secretary of State for Communities and Local Government would place considerable weight on the three objectives that are set out in the Guidance Notes and the Directions themselves (see paragraphs 6 and 7 above), he would not be doing so because they are the stated aims of the Directions. The three objectives would be weighty planning considerations because of the national importance which the Government attaches to the implementation of the HS2 project, as evidenced by the fact that it is promoting the hybrid Bill.” (Sullivan LJ at para [18]).

This leads to the other major reason for rejecting the appeal, namely, that the directions have no independent force and cannot be viewed as distinct entities from the policy commitment to build HS2. They are shaped by the project which is currently being authorised under the hybrid bill procedure. The directions are inextricably linked with that project and have had to be adapted on a number of occasions as the project evolves. Thus, given that the Supreme Court has already ruled that the project itself is not a plan or programme, it would be illogical to regard the directions as constituting plans or programmes in themselves. Rather, they are mere manifestations of that project and are shaped by it. Otherwise, One could say that it would be a case of the tail wagging the dog!

“The Government’s proposal for HS2 is being pursued by specific legislation, and not pursuant to any “plan or programme” for the purposes of the SEA Directive . That being the case, it is not realistic to describe the Directions which take their shape from a project which is being pursued (in the absence of any plan or programme) in a hybrid Bill, and whose sole purpose is to ensure that the implementation of that project is not prejudiced by other developments, as some form of “plan or programme” in their own right.” (Sullivan LJ at para [20]).”

 

HS2 and Strategic Environmental Assessment – Again!

You may have thought that the Supreme Court judgment in R (on the application of Buckinghamshire County Council and others) (Appellants) v The Secretary of State for Transport (Respondent) [2014] UKSC 3 (see blog of 22 January 2014) resolved the issue of whether the manner in which the HS2 project is being authorized is compliant with EU Directive 2001/42 on Strategic Environmental Assessment (SEA) once and for all. Not so, in a recent High Court case, which seems to have passed under the radar of most of the media, the main protagonists were back in court again regarding the interpretation and application of the SEA: see R. (on the application of HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] EWHC 2759 (Admin):-

To recap, the SEA Directive requires the assessment of environmental effects resulting from strategic planning decisions. For example, a development plan, which zones large areas for particular types of development, restricts the manner in which individual development consents can be granted. To give an obvious example, a development plan would militate against the granting of a planning consent for the construction of a  factory in an area zoned for residential housing. Certain individual projects are subject to environmental impact assessment pursuant to Directive 85/337. However, if a strategic decision has already been made to allow certain types of development in an area, it would be nonsensical to leave the consideration of environmental effects until an application for a specific project is received. The environmental effects could not be properly considered because there would already be a strong presumption in favour of the development.

The Supreme Court case of earlier this year centred on the issue of at what point the requirements of SEA are engaged. Article 3(2) of the SEA Directive and reg 5(2) & (3) of the SEA Regulations (SI 2004/1633) state that the need to undertake an SEA is triggered by the adoption of a ‘plan or programme.’ The Supreme Court held that a policy document entitled High Speed Rail: Investing in Britain’s Future: Decisions and Next Steps (Cm 8247, 10 January 2), in which the Government declared its intention to adopt HS2 as a policy objective and outlined what steps it proposed to take to realize this objective, did not constitute a plan or programme because it in no way tied the hands of the body ultimately charged with authorising the scheme – in this case Parliament under the hybrid bill procedure.

In the present case opponents to HS2 argued that ‘safeguarding directions’ issued by the Secretary of State, pursuant to powers under section 74(1) of the Town and Country Planning Act 1990, constituted a plan of programme for the purposes of SEA. A safeguarding direction protects the site of a development from conflicting planning decisions. The claimants argued that, given that the directions control the type of development which can be authorised along the route, they are of a strategic nature and fall within the definition of plan or programme. Thus, they sought judicial review of the decision on the grounds that it should have been preceded by an SEA.

Londblom J, in the High Court, rejected this argument on the grounds that, although they clearly restricted local planning authorities from authorising certain types of development, they had no effect on whether the scheme would actually be implemented. They were mere manifestations of a project which a unanimous Supreme Court has already ruled does not constitute a plan or programme; at para [48] he held:-

The HS2 project itself is not a plan or programme under article 3(2) of the SEA Directive . And neither, in my view, are the safeguarding directions which serve to protect it. The directions are a manifestation of the project as a zone of safeguarded land for Phase 1. The safeguarded area takes its shape from the project. Its boundaries have twice been altered to accommodate changes made to the proposals as they mature. No doubt the directions demonstrate the Government’s belief that the safeguarded land provides a viable route for the railway and sufficient land to enable its construction. But they do not represent the evolution of the HS2 project into a plan or programme setting the framework for future development consent. They adjust the procedures for making planning decisions, providing formal arrangements for HS2 Ltd. to be consulted and ultimately for the Secretary of State to intervene in the process by restricting the grant of planning permission. They are not, however, a framework of policy or criteria constraining the discretion of the decision-maker in the making of the decision. It will be the HS2 project itself, as it is at the relevant time, which informs the response of HS2 Ltd. to consultation and the intervention of the Secretary of State in the process, if he does intervene.

This decision has to be correct. Earlier this year a unanimous Supreme Court made it clear that the document entitled High Speed Rail: Investing in Britain’s Future: Decisions and Next Steps did not constitute a plan or programme. The realization of the policy ambition expressed within the document necessitates a myriad of preliminary decisions and actions. If individual decisions are isolated from this overall policy objective and regarded as establishing a plan or programme in themselves, the decision of the Supreme Court would be entirely undermined. Planning blight is an inevitability of any large scale infrastructure project. Its effects are felt as soon as the scheme is mooted with any degree of seriousness and it sets in long before specific measures, such as safeguarding clauses, are adopted.

HS2 and Freedom of Information

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:-

https://www.gov.uk/government/speeches/project-management

 

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.

 

PUBLIC INTEREST

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.

 

JUDICIAL REVIEW

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):-

http://www.telegraph.co.uk/news/uknews/road-and-rail-transport/10607255/Critical-HS2-report-blocked-by-ministers.html

 

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:-

http://www.ons.gov.uk/ons/rel/na-classification/national-accounts-sector-classification/classification-of-network-rail-under-european-system-of-accounts-2010/art–classification-of-network-rail-under-european-system-of-accounts-2010.html

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.

 

OTHER LINKS

Information Commissioner Decision Notice FER0467548:-

http://ico.org.uk/~/media/documents/decisionnotices/2013/fer_0467548.ashx

Major Projects Authority:-

https://www.gov.uk/government/policy-teams/major-projects-authority

Freedom of Information Act 2000:-

http://www.legislation.gov.uk/ukpga/2000/36/contents

Environmental Information Regs 2004:-

http://www.legislation.gov.uk/uksi/2004/3391/contents/made

 

 

HS2 win in Supreme Court

Dave Bushell

A Eurostar train on the Channel Tunnel Rail Link or HS1 – so far the UK’s only purpose built high speed railway. Photo Dave Bushell

 

On the 22nd of January the Supreme Court unanimously rejected appeals brought by opponents to the HS2 project and others who object to the scheme as currently envisaged:-

R (on the application of Buckinghamshire County Council and others) (Appellants) v The Secretary of State for Transport (Respondent) [2014] UKSC 3

R (on the application of Heathrow Hub Limited and another) (Appellants) v The Secretary of State for Transport and another (Respondents) [2014] UKSC 3

http://supremecourt.uk/decided-cases/index.shtml

The following is a brief synopsis of the issues considered by the Supreme Court.

The central issue was whether the Coalition Government was entitled to adopt HS2 as a key policy objective, and announce its intention to promote the scheme, without first conducting a full strategic environmental assessment pursuant to Directive 2001/42/EC on strategic environmental assessment (SEA Directive): http://ec.europa.eu/environment/eia/sea-legalcontext.htm. Such assessments are necessary in respect of large scale strategic land use plans which have far reaching effects on future land use policy in particular areas or regions. They accompany the requirements of Environmental Impact Assessment (also a requirement of EU Law) which focus on the localised impacts of individual projects: see Directive 2011/92/EU on environmental impact assessment (EIA Directive) http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:026:0001:0021:EN:PDF . The Government had announced its intention to go full steam ahead with the project in a command paper entitled , High Speed Rail: Investing in Britain’s Future: Decisions and Next Steps (Cm 8247, 10 January 2): http://www.official-documents.gov.uk/document/cm82/8247/8247.pdf . Did this document amount to a planning decision falling within the scope of the SEA Directive?

The SEA Directive  is only engaged when the relevant government body adopts a plan or programme which is capable of legally influencing the body charged with granting development consent or fettering its discretion. For example, a decision to zone a particular area for a new garden city would have clear legal implications for the local planning authorities responsible for granting the actual planning consents. However, HS2 will be authorized by means of a Hybrid Bill procedure which is currently before Parliament which will make the final decision by approving the Bill or otherwise: for current progress of the Bill see  http://services.parliament.uk/bills/2013-14/highspeedraillondonwestmidlands.html . The Supreme Court accepted the argument that, as Parliament is sovereign and cannot be made to bend to the will of the executive, the Command paper could not be construed as legally influencing the planning decision maker in the manner required by the SEA Directive.

This leads to the second major issue, namely, whether the environmental impact assessment, which will be conducted as part of the Hybrid Bill procedure, meets the public participation requirements under the EIA Directive. It was accepted that the Hybrid Bill procedure offers two channels of democratic oversight; namely, by virtue of the fact that the decision makers are democratically elected representatives and that the Committee procedure enables interested parties to voice their concerns or formally petition against the Bill.

The unanimous decision of 7 Justices of the Supreme Court is a ringing endorsement of the Hybrid Bill procedure as a means of authorizing major infrastructure projects of this scale. No doubt the Department of Transport will be mightily relieved by its decision to choose this procedure as opposed to the Planning Act 2008 or ministerial order under the Transport and Works Act (later it will be argued that these mechanisms may not have offered the same level of insulation from the SEA Directive). However, it raises some interesting issues regarding the relationship between the SEA Directive and the EIA Directive. In effect, a project of the magnitude of a long distance railway conflates strategic planning issues with the specific planning issues raised by the scheme itself. In one sense it is a single project, but it is a project which encapsulates a multitude of strategic considerations of national importance. As a result, it is difficult to divide the planning decision into the two step process upon which the separate SEA and EIA Directives appear to be predicated. The Hybrid Bill procedure further serves to conflate consideration of the strategic elements of the scheme and the specific and localized environmental impacts on the ground. This is because it will fall to Parliament to consider both the localized effects of the scheme and the wider strategic ramifications. Moreover, Parliament’s hand are not tied by a strong steer from a higher authority regarding how the individual scheme should fit into the wider planning picture.

A Bill of another type, namely the private Bill, was instrumental in the development of the existing railway system. HS1, Crossrail and now HS2 have established that an Act of Parliament will remain the most effective means of authorizing major rail building projects in the future.