Apologies for being very slow off the mark on this but there have been many distractions over the past few months as you can imagine.
On 15 April 2020 Hs2 Ltd issued the notice to proceed which enables the contractors to commence construction in earnest. No time was wasted during the Covid 19 lock-down and the first recognizable piece of civil engineering has begun to emerge with the outlines of the southern portals of the Chilterns Tunnel. These mark the entry points for the huge tunnel boring machines (TBMs) which will dig the tunnels.
Just a few days beforehand the High Court ruled against Chris Packham in his judicial review which sought to challenge the decision to proceed with the project in the light of the Oakervee Review (OR): Packham v Secretary of State for Transport  EWHC 829 (Admin). In addition he had sought an interim injunction to prevent HS2 from continuing with clearance work affecting 6 ancient woodlands. My last entry on this issue which was posted just before the Covid 19 crisis really took hold on these shores contained much speculation about what the key arguments might be. I can now report on the precise nature of those arguments and how the court, comprising Coulson LJ and Holgate J, responded. However, the challenge very nearly failed to get any sort of airing at all in that there was an argument about whether it was out of time.
Was the challenge out of time?
Rule 54.5 of the Civil Procedure Rules provides that claims must be filed ‘promptly’ and no later that 3 months after the grounds for filing the claim arose. As regards nationally significant infrastructure projects s 118 Planning Act 2008 stipulates that actions must be commenced with 6 weeks of the relevant planning decision. Although the OR was not a planning decision as such, given that the matter pertains to a nationally significant infrastructure project, the Court was of the view that 6 weeks was a useful bench mark against to which to measure the issue of promptness in such circumstances. In this case the publication of the OR report and the decision to proceed with the project both occurred on 11 February 2020. The pre-action protocol letter was sent on 28 February and judicial review proceedings were not commenced until 27 March, some 6 weeks and 3 days since the OR publication and ministerial decision.
The Court rejected the argument that the delay was due to critical information which had only come to light some time after the 11 February. The substantive arguments all focused upon the OR report itself and no information which may or may not have come to light subsequently could be regarded as critical to the case (see para ).
An additional reason which suggested that the claimants had not been sufficiently prompt was that, due to the timing of the proceedings, the contractors were rapidly running towards the end of the window of opportunity during which the clearance work could be done whilst minimizing the impact on birds and bats (see para ).
Nevertheless, given that the issue had only come to light at the hearing and had not been fully argued the Court gave the benefit of the doubt to the claimant and allowed him to air his arguments (see para ). It is these arguments to which we shall now turn.
The scope of any possible challenge
In my previous post on this issue I emphasized the fact that the Oakervee Review (OR) had to be viewed in the context of the overall decision making process and could not be regarded as having ‘hit the reset button’ on that process thus requiring the promoters to begin from scratch. Indeed, this would effectively require one to overlook the existence of an Act of Parliament authorizing phase 1 of the scheme: the High Speed Rail (London – West Midlands) Act 2017. It is possible to see echoes of this view in parts of the judgment (not that I can ever know whether anyone involved read my blogs!).
The immense scale of the environmental assessment which had had to be undertaken and the arduous nature of the Parliamentary proceedings which the promoters were required to negotiate in order to obtain the necessary Act of Parliament could not simply be ignored. It was unrealistic to assume that the OR was intended to set all that to one side and start afresh with a blank sheet of paper:-
The OR involved 10 Panellists, not the innumerable people involved in the 5 years of the Bill stages leading to the 2017 Act. It had to produce a result in weeks, not years. Its stated purpose was to inform the decision as to whether HS2 should continue, not to consider the project from scratch. Essentially, the OR had to look and see what had changed since 2017 and to consider whether those changes meant that the project should be halted. (para )
The problem with the OR was that it fell entirely outside the formal planning process and the promoters had never been under any obligation to undertake such a review. It was part of a purely political decision as to whether the Government should persevere with the project (which had already been authorized by Act of Parliament) or completely reevaluate it:
There was no statutory basis for the decision to launch the OR in August 2019. The decision to commission the OR was not a prerequisite for lawful exercise of powers under 2017 Act for Phase 1 (or indeed for continuing to promote the Bill for Phase 2). There was no statutory or policy basis for the terms of reference. (para )
This raised two questions; to what extent is such a decision susceptible to judicial review and, in making such a decision, must the minister confine himself to information produced solely for the purpose of informing that decision closing his mind to all other matters pertaining to the planning and delivery of the project?
As regards the first point the Court held that, in undertaking the review, the Minister was exercising a ‘common law power’ to make a ‘macro political decision’ on a nationally significant infrastructure project for which he was accountable to Parliament (see para ). Given that there was no legislative requirement to undertake such a review and given the essentially political nature of the decision, ‘a judicial review of that decision would involve only a low intensity of review’ (para ). Thus, on this point the court concluded that:-
… when dealing with matters depending essentially upon political judgment, matters of national economic policy and the like, the court will only intervene on grounds of bad faith, improper motive and manifest absurdity (para ).
In other words, the decision could only be impugned is on conventional, ‘light touch’ Wednesbury grounds.
The Court gave short shrift to the second issue, namely, the argument that the decision to proceed had to be judged solely by reference to the quality of the information and analysis in the OR taken in isolation from all other aspects of the decision making process:
In a situation where a Minister is considering a review of a complex project which did not involve a call for evidence, it seems to us to be a nonsense to suggest that the Minister could only be assumed to know about the review, and not the Parliamentary process by which environmental issues have been and will be addressed and Phase 1 has been approved. The Review cannot be divorced from that process in the way suggested by Mr Wolfe QC; on the contrary, as paragraph 2.3 of the Report itself made clear, the OR did not start from a blank sheet of paper, because of all the proceedings which had resulted in the 2017 Act. (para )
The Court then proceeded to consider the substantive points raised by the claimant with a view to determining whether any of them could provide grounds for impugning the decision according to a ‘light touch’ Wednesbury analysis.
Specific criticisms of the Oakervee Review
The process of the OR
One argument was that the OR had departed from its terms of reference with the result that the minister could not be confident that the final report fulfilled the objectives which had been set. This mainly centered on the testimony of Lord Berkeley, the former co-chair of the OR who left the role and published his own report having developed sharp disagreements with Oakervee and the other panelists. Most of the criticisms focused on the fact that the latter stages of preparing the report had been dominated by Oakervee and other panelists had been less involved and there were comparatively few meetings involving all panelists. The Court rejected the argument that such matters constituted significant departures from the terms of reference of the review. They were largely expedient measures dictated by the time constraints and limited resources of the review which was never intended to entirely reopen the decision making process from scratch:
In particular, in our view, he never made any allowance at all for the fact that the OR had very limited resources, was not able to call for evidence, and was required to work extremely quickly in order that any delays to the OR and thus the HS2 project were kept to a minimum. Indeed, most of Lord Berkeley’s criticisms of the process (from his comments on the terms of reference to the contents of his witness statement) arose from the inevitable speed and other limitations against which the OR had to be conducted. It appears that Lord Berkeley never came to terms with the severe constraints on the OR. (para )
Thus, it seems that the Court was of the view that Lord Berkeley had unrealistic expectations in terms of the scope of the review, its purpose, and what it could hope to accomplish in the limited time-frame.
Local environmental concerns
The claimant argued that the OR was entirely inadequate in terms of its consideration of local environmental concerns such as specific wildlife habitats and wild animal populations. The Court firmly rejected these arguments on the basis that they raised no new information and were, ‘simply a re-run of the points made 4, 5, 6 years ago during the debates about HS2.’ Thus, it was ‘entirely illegitimate to seek to reopen these matters in the guise of a challenge to the OR and the decision of 11 February.’ (see para . Once again, this aspect of the judgment makes it clear that the Court was not prepared to consider the OR in isolation or regard as having re-opened the entire decision making process from scratch. Such concerns has been extensively examined in the environmental assessment and the 2017 Act had been passed in the light of all this information.
The Court also rejected the argument that the OR failed to adequately consider the climate change implications of the project. One aspect of the challenge focused on emissions from construction and operation of the line. It was held that the OR ‘fairly summarised the overall assessment regarding the construction and operation of HS2.’ The relevant part of the report (para [5.27]) provided a range of figures which accommodated construction emissions at both the lower and higher ends of the spectrum. The report drew the reasonable conclusion that, whilst it might be difficult to secure significant further reductions in the construction of phase 1 (which is already getting underway) HS2 should focus on how it can reduce construction emissions in respect of the next phases. Thus:
Read fairly and properly, the OR Report did take into account the passage quoted by the Claimant from the paper by the Interested Party, in particular the expectation that construction carbon emissions would be greater than 8m tonnes. The contrary is not arguable. Nor is it arguable that the Report was misleading or that there was any need for the Report to go into further detail. The Defendants have not failed to take into account a relevant factor to which they were legally obliged to have regard. Ground 3a is unarguable. (para )
As anticipated in my earlier post, the claimant also made a great deal of the recent Heathrow third runway litigation. However, as I noted, the case generated rather more excitement than it deserved in that there had been a complete failure to consider the Paris Agreement. This constituted a clear breach of a very specific duty in section 5(8) of the Planning Act 2008 to ‘take account of’ government policy on climate change in the preparation of national policy statements (and ‘take account of’ sets the bar quite low in any case). Unlike the Heathrow third runway case, which was about the extent to which the decision maker ought to have factored in something which had yet to be formally adopted, the OR had been undertaken after the Paris Agreement had been enshrined in domestic law (see previous post). Hence, the report was drafted in a way which fully acknowledged the nature of the commitments made under the Paris Agreement.
Moreover, once again, one has to note that the OR has to be viewed in the wider context of the decision making process and the extensive studies carried out into climate change implication as part of the environmental assessment. As noted above, the Court held that it was a ‘nonsense’ to divorce the OR from the other aspects of the decision making process; again, this is explored more fully on my previous post on this issue.
The next argument put by the claimant was that, by its terms of reference, the OR had created a legitimate expectation that there would be a full and detail reappraisal of the environmental arguments including climate change. The Court noted that this appeared to repackage the arguments already put to the effect that the OR had failed to carry out a sufficiently detailed and thorough review of the environmental arguments. The Courts responded in similar vein, namely, that the OR had never been designed to rerun all the arguments from scratch and, given the time-frame and resources accorded to it, it would be entirely unrealistic to expect the OR to address such matters in the level of detail desired by the claimant. Once again, the point was made that the OR could not be viewed in isolation from the overall process and the very detail assessments which had been made in respect of phase 1 and were still ongoing in relation to phases 2a and 2b:
For the reasons we have given above, the Claimant’s argument proceeds on a misunderstanding of the nature of the OR and its terms of reference. Furthermore, the challenge completely overlooks the environmental assessment already carried out in the Parliamentary proceedings on Phase 1 and which remain to be carried out for Phases 2a and b. There was no undertaking to carry out a “full assessment”, or any detailed assessment, of the environmental impacts in the review which was to be carried out over a 2-month period in the Autumn of 2019. Much detailed work remains to be carried out. (para ).
The present proceedings stemmed from an application for an interim injunction to halt certain works pending a full judicial review of the issues and to seek permission to bring judicial review proceedings. The claimant had originally sought to obtain an injunction first thereby ‘pausing’ the works until the issues had been litigated. However, it became clear that the injunction could not be considered in isolation from the application to bring JR; both raised similar arguments relating to the prospects for success of the claim which inevitably leads to an analysis of the merits of the arguments.
The Court applied the usual tests set out in cases such as R (Medical Justice) v Secretary of State for the Home Department  EWHC 1425 (Admin). One of the key tests is whether the claimant has shown ‘a real prospect of success’ on a least one of the claims. Given that the Court had dismissed every one of the claims as unarguable the outcome of this determination was never in doubt and the application was rejected. However, the Court ruled that, even if the claimants had demonstrated that one or more of the grounds was arguable, on the usual ‘balance of convenience’ test, it is likely that it would have declined to grant the injunction. Aside from the huge financial costs of the resultant delays (exacerbated by the afore-mentioned missing of a vital window for doing clearance work before nesting season) there was the not insignificant matter that such an injunction would conflict with powers conferred by Parliament.
[I]t is necessary to bear in mind that that harm has already been assessed through the Parliamentary process and it has been judged that the project should nevertheless proceed in the national interest. These considerations underscore why it has been so important for the court to grapple with the fundamental question of whether the grounds of challenge are legally arguable at this stage. (para )
The fact that the High Court was prepared to subject the ministerial decision and the Oakervee Review to even the lightest form of judicial review (‘light touch Wednesbury’) is surprising. The elephant in the room in this case which the Court did not confront was that the challenge was clearly an attempt to derail (pun intended) the entire project via the back door. Mr Packham was seeking a remedy which would have prevented the promoters and their contractors from exercising powers conferred by an Act of Parliament. In effect, this constitutes a challenge to the legality of that Act of Parliament, something which no court has the power to do.
Of course, it has to be conceded that a finding against the minister in this case would not necessarily have brought the Court into direct conflict with the legislature in this way. The Court might then have simply made a declaration that that specific part of the process was flawed. This might have served the interests of the claimant by embarrassing the Government and bringing increased political pressure to bear on it; but it would not have called a halt to the project. However, Mr Packham clearly wanted more than that in that he sought an interim injunction preventing the clearance of certain woodlands.
As noted above, the Court did not immediately dismiss the possibility of gaining an injunction in such circumstances out of hand. The Court stated that, had it been necessary to consider whether to grant injunctive relief, on the ‘balance of convenience test’ it is likely that it would have declined the application and allowed the works to continue. The Court then acknowledged the fact that such a remedy might conflict with the Act authorizing the works:
In any event, the clearance works were long ago authorised by Parliament and there is a strong public interest in ensuring that, in a democracy, activities sanctioned by Parliament are not stopped by individuals merely because they do not personally agree with them. (para )
This is not as emphatic as one might have expected. The fact that the Court even contemplated the possibility that the balance of convenience test could be applied suggests it was of the opinion that it is theoretically possible to obstruct the operation of an Act of Parliament by way of injunctive relief – this cannot be right. There was no suggestion that anyone involved in the scheme had exceeded their statutory powers thereby bringing ultra vires into play, the claim was designed to frustrate the operation of the Act itself. Moreover, even if one looks beyond the justiciability issue and considers the substance of the report itself, it is clear that the OR has to be viewed in the overall context of the decision making process. Irrespective of whether one looks at it subjectively or objectively, the OR cannot be construed as superseding the entire decision making process. It is a nonsense to assert that the process did not, at the very least, satisfy the ‘take account of’ environmental factors test. Indeed, as I argued in my previous post, the process has gone way beyond that minimal approach.
The case is now scheduled to be heard by the Court of Appeal on 8 July and I shall try and be quicker off the mark in terms of reporting on those proceedings.
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