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.