Infrastructure – High-speed rail link – Environment – Government issuing command paper in respect of proposals for high-speed rail network – Whether decision in command paper unlawful in absence of strategic environmental assessment under Directive 2001/42/EC – Whether proposed procedure for consideration of proposals through hybrid parliamentary bill compliant with Directive 2011/92/EU on environmental impact assessment – Appeal dismissed
In 2009, the government incorporated a company, High Speed Two Ltd, for the purpose of developing and advising on proposals for a new HS2 high-speed rail link along a “Y network” from London Euston station, connecting London to Birmingham, with a second phase extending to Leeds and Manchester, and with the potential for further phases reaching to Glasgow and Edinburgh. Further spurs were envisaged to connect to Heathrow airport.
The government issued a command paper in respect of the proposals in March 2010 and confirmed its preferred route in December 2010. The matter was then put out for public consultation with a view to subsequent legislation by a hybrid bill that would contain the necessary planning consent for phase 1 of the scheme. After the close of consultation, the government announced its decision by a further command paper issued in January 2012 on “Decisions and Next Steps” (DNS) in relation to high-speed rail. The DNS expressed the government’s view that the high-speed Y network was the best means of achieving a step change in the capacity and performance of Britain’s inter-city rail network.
Various parties brought judicial review claims challenging the lawfulness of the government’s decisions and those claims were heard together. At first instance, the consultation process in relation to blight compensation measures for the project was held to be unlawful but that decision was reversed on appeal: see R (on the application of Buckinghamshire County Council) v Secretary of State for Transport [2013] EWHC 481 (Admin); [2013] PLSCS 78 and R (on the application of HS2 Action Alliance Ltd) v Secretary of State for Transport [2013] EWCA Civ 920; [2013] PLSCS 181.
The Court of Appeal also rejected the appellants’ arguments that the decision in the DNS breached European directives on the protection of the environment. On a further appeal to the Supreme Court, the appellants reiterated their contentions in that regard, arguing that there was a breach of: (i) Directive 2001/42/EC (the SEA Directive), by reason of the failure to obtain a strategic environmental assessment; and (ii) Directive 2011/92/EU on environmental impact assessment (the EIA Directive), by reason of the decision to promote HS2 by means of a hybrid bill in parliament.
Held: The appeal was dismissed; the court declined to make a reference to the Court of justice of the European Union on the meaning of the relevant European law.
(1) No strategic environmental assessment (SEA) was required for the DNS under the SEA Directive. The DNS was not a “plan or programme” that “set the framework for development consent” within the meaning of articles 2 and 3 of the directive. That issue turned on a short point of construction of the directive and its application to the special facts of the case. The fact that a project was strategic in nature, as was the case with the HS2 project, did not give rise to any presumption of assessment under the SEA Directive; the expression “strategic”, although commonly used in shorthand descriptions of the directive, did not appear in the text of the directive itself. The purpose of the SEA Directive was more specific, namely to prevent major effects on the environment from being predetermined by earlier planning measures before the environmental impact assessment (EIA) stage was reached. Against that background, the concept embodied in article 3(2) was reasonably clear; it looked for something that did not simply define the project, or describe its merits, but set the criteria by which it was to be determined by the authority responsible for approving it. In relation to an ordinary planning proposal, the development plan was an obvious example of such a plan or programme since, even if it was not prescriptive, it none the less defined the criteria by which the application was to be determined and thus set the framework for the grant of consent. By contrast, the planning application itself, although likely to be accompanied by plans and other supporting material designed to persuade the authority of its merits, was not a plan or programme falling within the definition even though, in one sense, it “set the framework” for the authority’s consideration to the extent that the nature of the application limited the scope of the debate. The same reasoning applied to the DNS, albeit on a much larger scale. To the extent that it contained a very elaborate description of the HS2 project, including the thinking behind it and the government’s reasons for rejecting alternatives, it might in that sense be seen as helping set the framework for the subsequent debate and it was intended to influence the result. However, it did not in any way constrain the decision-making process of the authority responsible, which was parliament. Both formally and in reality, parliament was not constrained by any “criteria” contained in previous government statements.
The mere likelihood that the plan or programme would in fact “influence” the decision, in the ordinary sense, was not sufficient. Setting a framework implied more than mere influence; the influence had to be such as to constrain subsequent consideration and prevent appropriate account from being taken of all the environmental effects that might otherwise be relevant. That distinction between merely influencing subsequent consideration, on the one hand, and setting limits on the scope of what could be considered, on the other, had practical importance. Until parliament had reached its decision on HS2, the merits of all aspects of the project, on economic, environmental and other grounds, remained open to debate: Inter-Environnement Wallonie ASBL v Region Wallonne (Joined Cases C-105/09 and C-110/09) [2010] ECR I-5611, Inter-Environnement Bruxelles ASBL v Region de Bruxelles-Capitale (Case C-567/10) [2012] CMLR 909, Nomarchiaki Aftodioikisi Aitoloakarnanias v Ipourgos Perivallontos, Khorotaxias kai Dimosion Ergon (Case C-43/10) [2013] Env LR 453 and Walton v Scottish Ministers [2012] UKSC 44; [2013] PTSR 51 applied.
That interpretation of Article 3(2)(a) of the SEA Directive was not inconsistent with the requirement under article 7 of the Aarhus Convention, for public participation in the preparation of plans, programmes and policies relating to the environment. There was no reason to assume that article 7 and the SEA Directive were intended to cover exactly the same ground given the clear and deliberate difference in wording between the two. The reference in article 7 to plans and programmes relating to the environment was broader that the equivalent definition in the SEA Directive. The latter had to be interpreted and applied in its own terms and, if it fell short of full compliance with the Aarhus Convention, that would not invalidate the directive but would simply mean that a possible breach of the Convention might have to be considered as an additional issue. In the instant case, the point was academic since no such breach was alleged.
(2) It was not premature to consider whether the hybrid bill procedure as proposed met the requirements of the EIA Directive. The court could answer that question by performing its ordinary duty to interpret legislation, without encroaching on any of the powers of parliament. The interference of the court at the present stage, far from challenging the supremacy of parliament, might assist it: R v Electricity Commissioners, ex parte London Electricity Joint Committee Co [1924] 1 KB 171 applied.
The proper conclusion was that the envisaged legislative procedure was compatible with the EIA Directive. The requirements of the directive did not apply to projects the details of which were adopted by a specific act of national legislation so long as the objectives of the directive, including that of supplying information, were achieved through the legislative process: see article 1(4). The fundamental objective of the directive was the assessment of the environmental effects of projects before consent was given and, since that assessment had to be based on appropriate information, the legislature had to have such information at its disposal at the time when the project was adopted. It was for national courts to determine whether legislation passed by their national legislatures complied with article 1(4). There was no reason to doubt that the conditions of article 1(4) were capable of being met in the instant case. The proposed hybrid bill procedure would involve a specific legislative act as envisaged by article 1(4). There would be a substantive legislative process in which parliament’s role would not be merely formal; it would be asked to give its consent to a bill that might undergo amendment during its passage through parliament, and not merely to give formal ratification to a prior administrative decision. There was no reason to doubt that appropriate information would be available to the members of the legislature at the time when decisions were taken as to whether the project should be adopted. The procedures laid down in the standing orders of the House of Commons and House of Lords were apt to ensure that such information was made available: Nomarchiaki and Boxus v Region Wallonne (Case C-135/09) [2011] ECR I-9711; [2012] Env LR 14 applied.
The fact that the principal elements of the project would be subject to the whip and thus to party oversight, rather than there being a free vote, did not affect the compatibility of the process with the EIA Directive. There was nothing in the CJEU case law to suggest that the influence of parliamentary parties or government over voting in national legislatures was incompatible with article 1(4).
Parliamentary parties were recognised as playing a legitimate role in democratic decision-making in other member states besides the United Kingdom and the EIA Directive did not require the adoption of a radically different approach. The fundamental objective of ensuring that the environmental effects of projects were assessed before consent was given required that appropriate environmental information should be available for consideration before consent was given, but did not require that the decision whether to grant consent should be influenced solely or decisively by that information. The question of whether it was in the public interest to proceed with a project of national importance such as HS2 might be a matter of national political significance. The court’s task was confined to confirming that there had been a substantive legislative process and that the appropriate information was made available to the members of the legislature; it did not extend to reviewing the adequacy of the legislature’s consideration of that information. Any such judicial oversight of the internal proceedings of national legislatures would contravene the principle of separation of powers that was a fundamental aspect of the constitutions of most member states. In any event, there was no reason to suppose that members of parliament would be unable properly to examine and debate the proposed HS2 project.
So far as the appellants contended that the hybrid bill process would not comply with the requirements of article 6 of the EIA Directive concerning public participation, that overlooked the fact that legislation falling within article 4(1) was exempted from the requirements of the directive. Article 6 did not apply to projects that were exempted from its requirements by Article 4(1). Exemption from the requirements of the directive could not be conditional on compliance with them; otherwise, there would be no exemption.
David Elvin QC and Charles Banner (instructed by King & Wood Mallesons LLP) appeared for the first appellant; Charles Banner (instructed by Nabarro LLP) appeared for the second appellant; Nathalie Lieven QC and Kassie Smith QC (instructed by Harrison Grant Solicitors) appeared for the third appellants; Tim Mould QC, James Maurici QC, Jacqueline Lean and Richard Turney (instructed by the Treasury Solicitor) appeared for the respondent.
Sally Dobson, barrister
