Supreme Court rejects challenge by councils to HS2 project
The Supreme Court has unanimously dismissed a challenge brought by councils and campaign groups to the Government’s decision to promote the HS2 high-speed rail link from London to the North of England.
The key issues in HS2 Action Alliance Ltd, R (on the application of) v The Secretary of State for Transport & Anor [2014] UKSC 3 were:
- whether the command paper “High Speed Rail: Investing in Britain’s Future – Decisions and Next Steps” (known as the “DNS”) should have been preceded by a strategic environmental assessment (SEA) under Directive 2001/42/EC (“the SEA Directive”); and
- whether the hybrid bill procedure, as currently proposed by the Government as the way to obtain development consent for HS2, would comply with the procedural requirements of Directive 2011/92/EU (“the EIA Directive”).
The appellants, who included a number of local authorities affected by HS2, began judicial review proceedings in April 2012. They had won in the High Court on certain aspects of the consultation process but lost on the issues taken to the Supreme Court. The Court of Appeal had also dismissed their appeal last July.
The seven justices who heard the case at the Supreme Court rejected the appeal.
They concluded on the first issue that:
- The DNS was an elaborate description of the HS2 project, including the thinking behind it and the Government’s reasons for rejecting alternatives. However, it did not constrain the decision-making process of the authority responsible, which was Parliament. Formally, and in reality, Parliament was autonomous, and not bound by any “criteria” contained in previous Government statements.
- There was a distinction in the context of the SEA Directive – whose purpose is to prevent major effects on the environment being pre-determined by earlier planning measures before the EIA stage is reached – between merely influencing subsequent consideration and setting limits on the scope of what can be considered. “Until Parliament has reached its decision, the merits of all aspects of the HS2 project, on economic, environmental and other grounds, remain open to debate,” Lord Carnwath said.
- There was no reason to assume that Article 7 of the Aarhus Convention and the SEA Directive were intended to cover exactly the same ground. “The differences in wording are clear and must be assumed to be deliberate.” The SEA Directive must be interpreted and applied on its own terms. “If this falls short of full compliance with the Aarhus Convention, it does not invalidate the directive so far as it goes.”
- There was no need to make a reference to the Court of Justice of the European Union.
On the second issue regarding the hybrid bill procedure and the EIA Directive, it was argued that the effect of (1) the whipping of the vote at the second and third readings, (2) the limited opportunity provided by a debate in Parliament for the examination of the environmental information, and (3) the limited remit of the select committee following second reading, was to prevent effective public participation, contrary to article 6(4) of the EIA Directive.
The Supreme Court said it was appropriate – principally for practical reasons – to consider the appellants’ contention at the present stage rather than waiting until legislation may have been enacted.
Lord Reed said the question whether it was in the public interest to proceed with a project of national importance, such as HS2, may be a matter of national political significance.
“It is partly for that reason that such decisions may be considered appropriate for determination by the national legislature rather than by the ordinary process of development control,” he said.
“The national legislatures of member states are of course political institutions whose decisions are likely to be influenced, possibly decisively, by the policy of the dominant Parliamentary party or parties….. The influence of party and governmental policy does not prevent the members of national legislatures from giving careful and responsible consideration to information, including environmental information, which is relevant to the matters that they have to decide.”
Lord Reed added: “The contention that the procedure currently envisaged by the Government will not permit an adequate examination of the environmental information to take place is unpersuasive.”
The judge said there was no reason to suppose that MPs would be unable properly to examine and debate the proposed project. Again, there was no need for the court to make a preliminary reference to the CJEU before reaching a decision on this point.
Responding to the ruling, Transport Minister Baroness Kramer said: “We welcome that the Supreme Court has unanimously rejected the appeal, which addressed technical issues that had no bearing on the need for a new north-south railway.”
She claimed that the Government’s handling of the project had been “fully vindicated by the highest court in the land", and said it would now press ahead with the delivery of HS2.
A statement issued on behalf of the ten local authorities involved in the case – the London Borough of Hillingdon, Warwick District Council, Chiltern District Council, South Northamptonshire Council, London Borough of Camden, Cherwell District Council, North Warwickshire Borough Council, Warwickshire County Council, Lichfield District Council, and Three Rivers District Council – said they were disappointed at the ruling, adding that they did not believe it endorsed a fair and open process for decision making.
“It merely reflects the Court’s lack of desire to interfere with Parliament’s business on the understanding that a democratically elected body will respect the wishes and needs of the people,” the statement said.
“It is important to bear in mind that the Supreme Court was not concerned with the actual merits of the HS2 project but rather the manner in which the Government was seeking to implement it. It is clear from the judgement that the judges accept that they had extremely difficult issues to grapple with.”
The statement said the councils were now actively exploring how they could continue to challenge HS2 and were “not going to give up the fight”.
It added that the local authorities believed that the Government had not followed the correct procedures and was “still looking to take a number of short cuts in relation to the project, to the detriment of its residents”.
The Government would need to be very careful in how it took the hybrid bill through the Parliamentary process, the authorities claimed. “It has already been forced to extend the consultation period for the Environmental Statement through its failure to comply with Parliamentary Standing Orders. The councils will continue to closely monitor the process adopted by HS2 to ensure that all those affected are not deprived of their rights and protection under the legislation.”
Another appellant, the HS2AA, meanwhile said it considered that the Supreme Court’s restrictive interpretation of the SEA Directive was incorrect, and that its refusal to refer the matter to the CJEU was in breach of its obligations under the EU Treaty.
“The consequence of today’s decision is that the SEA Directive can never apply to infrastructure plans where a national Parliament grants the planning permission,” it said. “The impact of this decision is that governments can avoid laws designed to protect the environment by choosing to obtain planning permission from Parliament, rather than from an independent commission or inspector.”
HS2AA also said it would now bring complaints to the Aarhus Convention Compliance Committee and the European Commission.
Hilary Wharf, director, HS2 Action Alliance, said: “We always knew this would be a long fight. A number of the judges, led by Lady Hale, thought long and hard about whether the issues HS2AA raised should be referred to the European Court of Justice. This and the fact that we were given right to appeal to the highest court in the land shows how seriously the need for an SEA should be taken.”
This article is based in part on the press summary issued by the Supreme Court.