Law and Rights
By using the method of a Hybrid Bill in Parliament, has a coach and horses been driven through the European Union's directives aimed at ensuring that important projects are subjected to environmental assessment? A judicial review of the government's DNS document - High Speed Rail: Investing in Britain's Future - Decisions and Next Steps (Cm 8257, 10th January 2012)- failed in the High Court, the Court of Appeal and now in the Supreme Court. Judicial review is concerned with legality and not merits. HS2 may or not be a good idea but the court is not concerned with that.
The previous posts (25th January) and 24th January looked at some of the legal materials at play in the Supreme Court's decision regarding the High Speed Train - High Speed 2 Alliance v Secretary of State for Transport [2014] UKSC 3 - Press Summary
Aarhus Convention and to EU Directives - (a) The Strategic Environmental Assessment (SEA) Directive - 2001/42/EC and (b) the Environmental Impact Assessment (EIA) Directive - 2011/92/EU.
The SEA Directive:
Lady Hale said [para 130]- "HS2 will be the largest infrastructure project carried out in this country since the development of the railways in the 19th century. Whatever the economic and social benefits it may bring, it will undoubtedly have a major impact upon the environment. There has never been a full environmental assessment of HS2 as against the alternative ways of developing the railway system, including ways which do not involve constructing new railway lines capable of carrying trains travelling at 250 miles per hour, such as the so-called "optimised alternative" favoured by the 51M, the body to which the local authorities involved in this case (and others) belong.
and, at [131] - One might have thought that it was the object of Directive 2001/42/EC, commonly called the Strategic Environmental Assessment Directive (the "SEA Directive"), ..... to ensure that such an assessment took place.
So, just how did the Supreme Court find that HS2 was not within the scope of the SEA Directive? The key to this lay in the interpretation of Article 3 of that Directive:
"An environmental assessment, in accordance with Article 4 to 9, shall be carried out for plans and programmes referred to in paragraphs 2 to 4 which are likely to have significant environmental effects"
Paragraph 2 states that "...... an environmental assessment shall be carried out for all plans and programmes, (a) which are prepared for ..... transport ....... and which set the framework for future development consent of projects listed in Annexes I and II to the [EIA Directive]"
An assessment under the SEA Directive is therefore only required if the plan sets the framework for future development consent. The government's DNS document - High Speed Rail: Investing in Britain's Future - Decisions and Next Steps (Cm 8257, 10th January 2012) - was not, according to the court, such a plan. It was an elaborate description of the HS2 project and included reasons for rejecting the alternatives. As Lord Carnwath said [38], in one sense, the DNS "might be seen as helping to set the framework for the subsequent debate, and it is intended to influence its result." However, the Hybrid Bill procedure placed the responsibility for the decision with Parliament and the DNS document did not constrain that decision-making process. Hence, DNS was not a plan of programme with the meaning of Article 2. This conclusion was based on the court's reading of decisions of the Court of Justice of the European Union. The decisions are cited by Lord Carnwath at [para 19 ] and discussed extensively in his judgment.
The EIA Directive:
Was the Hybrid Bill procedure compatible with the requirements of 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. As a result, the process would not comply with Article 6(4) of the EIA Directive.
Those points look at the realities of the Parliamentary process which will take place under the Hybrid Bill procedure. It is true that objectors whose interests are directly and specifically affected by the bill (including local authorities) may petition against the Bill and be heard. It is also true that Parliament's standing orders require an environmental statement which has to be available for inspection and sale at a reasonable price. Any person is permitted to comment on the statement and the Minister has to publish comments received and submit them to an independent assessor. The assessor's report must be submitted to the House at least 14 days before second reading. See the judgment of Lord Reed at paras 57-66.
Not mentioned in any of this is the cost and difficulty which will be faced, in practice, by an objector who petitions against the Bill. Details of petitioning are available here.
It was contended that this procedure will not permit an adequate examination of the environmental information. The court found this to be 'unpersuasive' and there was not reason to suppose that MPs will be unable properly to examine and debate the proposed project.
The court's decision not to refer this point to the Court of Justice of the EU is important. The so-called 'CILFIT criteria' were examined by Lord Sumption and also, at paras 166-174, by Lords Neuberger and Mance. It might well have proved to be desirable to make a reference so that the CJEU could consider the Hybrid Bill process against the requirements for public involvement in the EIA Directive. It is not entirely clear that the process would pass muster.
A Question for the future?
As interpreted by the Court of Justice of the EU, Article 1(4) of the EIA Directive requires the legislative process to achieve the objects of the Directive. A potentially difficult problem may arise if it is later contended that the Hybrid Bill process has not actually met the directive. To what extent, in the light of Article 9 of the Bill of Rights 1689, may the courts examine that issue? The Supreme Court did not answer that question but noted that it may arise - see paras. 200 to 211.
Bill of Rights 1688 [Article 9] that, "...the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament."
Other commentaries:
The HS2 Action Alliance has stated that it will bring a complaint to the Aarhus Convention Compliance Committee to establish that the Supreme Court's restrictive approach is contrary to the Convention. They also plan to complain to the European Commission in the hope that the Commission will bring proceedings in the Court of Justice of the EU.
The Alliance also argues that -"The consequence of [the court's] interpretation is that the SEA Directive can never apply to infrastructure plans where the body responsible for granting planning permission is a national parliament. The impact of this decision is to allow this and future Governments to avoid complying with laws designed to protect the environment by choosing to seek planning permission from Parliament rather than from an independent commission or inspector. Given any Parliamentary decision is inevitably whipped, the decision means Government can choose to opt out of environmental protection legislation by referring planning decisions to Parliament."
Local Government Lawyer
Reading University - Railways and Law - Win in the Supreme Court
Rail News - Seven judges dismiss opposition to HS2
BBC News - Q and A: High Speed 2
- Clientearth: A Landmark In The Cjeu?s Environmental Law Jurisprudence
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- Hs2 ~ Nothing To Hide: Nothing To Fear ?
In March 2011, a Major Projects Authority (MPA) was created by the government in order to enhance scrutiny of major projects. The MPA prepared a report - (the Project Assessment Review or PAR) - on the High Speed Rail 2 (HS2) which, reportedly, raises...
- The Hs2 Judgment - Some Background Information
I have wrestled with the UK Supreme Court's judgments in the High Speed case - (see previous post and - High Speed 2 Alliance v Secretary of State for Transport [2014] UKSC 3 - Press Summary ). The judgments are not easy reading and they...
- Hs2 ~ Hybrid Bill Published
There is already an Act of Parliament relating to the proposed High Speed 2 rail project -High Speed Rail (Preparation) Act 2013. It is an Act to make provision authorising expenditure in preparation for a high speed railway transport network....
Law and Rights
HS2 ~ Why the challenges failed in the Supreme Court
The previous posts (25th January) and 24th January looked at some of the legal materials at play in the Supreme Court's decision regarding the High Speed Train - High Speed 2 Alliance v Secretary of State for Transport [2014] UKSC 3 - Press Summary
Aarhus Convention and to EU Directives - (a) The Strategic Environmental Assessment (SEA) Directive - 2001/42/EC and (b) the Environmental Impact Assessment (EIA) Directive - 2011/92/EU.
The SEA Directive:
Lady Hale said [para 130]- "HS2 will be the largest infrastructure project carried out in this country since the development of the railways in the 19th century. Whatever the economic and social benefits it may bring, it will undoubtedly have a major impact upon the environment. There has never been a full environmental assessment of HS2 as against the alternative ways of developing the railway system, including ways which do not involve constructing new railway lines capable of carrying trains travelling at 250 miles per hour, such as the so-called "optimised alternative" favoured by the 51M, the body to which the local authorities involved in this case (and others) belong.
and, at [131] - One might have thought that it was the object of Directive 2001/42/EC, commonly called the Strategic Environmental Assessment Directive (the "SEA Directive"), ..... to ensure that such an assessment took place.
So, just how did the Supreme Court find that HS2 was not within the scope of the SEA Directive? The key to this lay in the interpretation of Article 3 of that Directive:
"An environmental assessment, in accordance with Article 4 to 9, shall be carried out for plans and programmes referred to in paragraphs 2 to 4 which are likely to have significant environmental effects"
Paragraph 2 states that "...... an environmental assessment shall be carried out for all plans and programmes, (a) which are prepared for ..... transport ....... and which set the framework for future development consent of projects listed in Annexes I and II to the [EIA Directive]"
An assessment under the SEA Directive is therefore only required if the plan sets the framework for future development consent. The government's DNS document - High Speed Rail: Investing in Britain's Future - Decisions and Next Steps (Cm 8257, 10th January 2012) - was not, according to the court, such a plan. It was an elaborate description of the HS2 project and included reasons for rejecting the alternatives. As Lord Carnwath said [38], in one sense, the DNS "might be seen as helping to set the framework for the subsequent debate, and it is intended to influence its result." However, the Hybrid Bill procedure placed the responsibility for the decision with Parliament and the DNS document did not constrain that decision-making process. Hence, DNS was not a plan of programme with the meaning of Article 2. This conclusion was based on the court's reading of decisions of the Court of Justice of the European Union. The decisions are cited by Lord Carnwath at [para 19 ] and discussed extensively in his judgment.
The EIA Directive:
Was the Hybrid Bill procedure compatible with the requirements of 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. As a result, the process would not comply with Article 6(4) of the EIA Directive.
Those points look at the realities of the Parliamentary process which will take place under the Hybrid Bill procedure. It is true that objectors whose interests are directly and specifically affected by the bill (including local authorities) may petition against the Bill and be heard. It is also true that Parliament's standing orders require an environmental statement which has to be available for inspection and sale at a reasonable price. Any person is permitted to comment on the statement and the Minister has to publish comments received and submit them to an independent assessor. The assessor's report must be submitted to the House at least 14 days before second reading. See the judgment of Lord Reed at paras 57-66.
Not mentioned in any of this is the cost and difficulty which will be faced, in practice, by an objector who petitions against the Bill. Details of petitioning are available here.
It was contended that this procedure will not permit an adequate examination of the environmental information. The court found this to be 'unpersuasive' and there was not reason to suppose that MPs will be unable properly to examine and debate the proposed project.
The court's decision not to refer this point to the Court of Justice of the EU is important. The so-called 'CILFIT criteria' were examined by Lord Sumption and also, at paras 166-174, by Lords Neuberger and Mance. It might well have proved to be desirable to make a reference so that the CJEU could consider the Hybrid Bill process against the requirements for public involvement in the EIA Directive. It is not entirely clear that the process would pass muster.
A Question for the future?
As interpreted by the Court of Justice of the EU, Article 1(4) of the EIA Directive requires the legislative process to achieve the objects of the Directive. A potentially difficult problem may arise if it is later contended that the Hybrid Bill process has not actually met the directive. To what extent, in the light of Article 9 of the Bill of Rights 1689, may the courts examine that issue? The Supreme Court did not answer that question but noted that it may arise - see paras. 200 to 211.
Bill of Rights 1688 [Article 9] that, "...the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament."
Other commentaries:
The HS2 Action Alliance has stated that it will bring a complaint to the Aarhus Convention Compliance Committee to establish that the Supreme Court's restrictive approach is contrary to the Convention. They also plan to complain to the European Commission in the hope that the Commission will bring proceedings in the Court of Justice of the EU.
The Alliance also argues that -"The consequence of [the court's] interpretation is that the SEA Directive can never apply to infrastructure plans where the body responsible for granting planning permission is a national parliament. The impact of this decision is to allow this and future Governments to avoid complying with laws designed to protect the environment by choosing to seek planning permission from Parliament rather than from an independent commission or inspector. Given any Parliamentary decision is inevitably whipped, the decision means Government can choose to opt out of environmental protection legislation by referring planning decisions to Parliament."
Local Government Lawyer
Reading University - Railways and Law - Win in the Supreme Court
Rail News - Seven judges dismiss opposition to HS2
BBC News - Q and A: High Speed 2
- Clientearth: A Landmark In The Cjeu?s Environmental Law Jurisprudence
Anna Dannreuther, Trainee, Research Department of the CJEU Background The CJEU gave its judgment yesterday on a preliminary reference from the UK Supreme Court concerning the UK?s failure to apply for an extension of time for compliance with...
- They Paved Paradise, They Put Up A Parking Lot; But They Couldn't Invoke The Eu Charter Of Rights
Steve Peers The immortal words of Bob Dylan (and revoiced by Tracy Chapman) lament the irreparability of environmental damage. At least in some cases, however, it is possible to attempt to restore the damage caused. Does national law that seeks to require...
- Hs2 ~ Nothing To Hide: Nothing To Fear ?
In March 2011, a Major Projects Authority (MPA) was created by the government in order to enhance scrutiny of major projects. The MPA prepared a report - (the Project Assessment Review or PAR) - on the High Speed Rail 2 (HS2) which, reportedly, raises...
- The Hs2 Judgment - Some Background Information
I have wrestled with the UK Supreme Court's judgments in the High Speed case - (see previous post and - High Speed 2 Alliance v Secretary of State for Transport [2014] UKSC 3 - Press Summary ). The judgments are not easy reading and they...
- Hs2 ~ Hybrid Bill Published
There is already an Act of Parliament relating to the proposed High Speed 2 rail project -High Speed Rail (Preparation) Act 2013. It is an Act to make provision authorising expenditure in preparation for a high speed railway transport network....