HS2 ~ Nothing to hide: nothing to fear ?

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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 concerns about the project (Telegraph 30th January).  In June 2013, the Information Commissioner issued a Decision Notice relating to this report - Decision Notice  FER0467548

The Commissioner found that the request should have been considered under the Environmental Information Regulations 2004 and disclosure of the report was ordered.

The government has now used
its "executive override" to prevent disclosure of the report - Exercise of the Executive Override under section 53 of the Freedom of Information Act 2000

Section 53 -  makes the Information Commissioner's Decision Notice ineffective.

The statement of reasons put forward by the "accountable person" - (who is Patrick McLoughlin MP) - begins:





The need for environmental information about the HS2 project was key to the Supreme Court's recent decision in High Speed 2 Alliance v Secretary of State for Transport [2014] UKSC 3 - Press Summary

It cannot be clear to the public whether the report does contain environmental information.  It may be merely a report (as McLoughlin claims) on the arrangements needed to deliver the project.  In his statement of reasons, Mr McLoughlin says that there is, in his view, a powerful argument that the report is "non-environmental information".  However, even if it is environmental information, he argues that the decision to withhold the report is still justifiable.

The Supreme Court's decision was essentially based on the reasoning that Members of Parliament would have sufficient information available to them to make decisions as the Hybrid Bill passes through Parliament.  That may or may not eventually prove to be the case but it is very disconcerting to find the government exercising this executive override power in these circumstances.  

The HS2 project is bound to commit the taxpayer to enormous expenditure and the environmental impact is clearly going to be massive.  The claimed need for secrecy is, in essence, a claim to protect a "safe space" for policy discussion.  Can it seriously be true that advisers to government are less likely to give frank advice if they think it might be made public?  It would appear to be so.  Furthermore, if the report is just about the arrangements to deliver the project then, it might be asked whether the POLICY had actually already been determined anyway.

Media reports on this decision include Daily Mail 30th January and Telegraph 30th January.


Obiter J: 30th January 2014 - Blogpost No. 999

Lobbying - a controversial matter

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It is a natural thing in a democracy that individuals seek to influence politicians with a view to getting some new law enacted or an existing law repealed or amended.  The practice of Lobbying - especially of Ministers by business interests - has grown significantly.  It is said that it is a £2 billion industry!  Prior to becoming Prime Minister, David Cameron spoke said that - “It’s an issue that . . . has tainted our politics for too long, an issue that exposes the far-too-cosy relationship between politics, government, business and money.”   According to Cameron at that time, it was necessary to come "clean about who is buying power and influence.” 

In the near future, the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Bill  - ("Lobbying Bill") - will receive Royal Assent.  The Bill:

• introduces a statutory register of consultant lobbyists and establishes a Registrar to enforce the registration requirements
• regulates more closely election campaign spending by those not standing for election or registered as political parties 
• strengthens the legal requirements placed on trade unions in relation to their obligation to keep their list of members up to date.

The Bill has been highly controversial
with fears that it will silence legitimate campaigners whilst leaving politicians open to "back door" influences.  The Commission on Civil Society and Democratic Engagement sees it as an unacceptable threat to democracy and freedom of speech.  The Spectator - Lobbying Bill is bad for Liberty - offers a topical example of how the Bill might, in an election year, work against those campaigners:

"The burden would fall disproportionately on grass-roots campaigners and organisations with a legitimate story to tell about their communities or on the issues of the day. Consider the example of anti-HS2 campaigners. Were they to run campaigns against the high speed railway in the same constituency as a pro-HS2 parliamentary candidate during an election year, according to the bill, their spending would be ‘political’ in nature and therefore capped at £9,750 (with the risk of criminal sanctions if they were to spend more). The parliamentary candidate, on the other hand, might call to their aid the Government, its press and policy machine, which, if reports are to be believed, have so far spent £1.2 million on pro-HS2 PR alone." Spectator 15th January 2014

Another possible example might arise if a political party campaigns for an electoral mandate on withdrawal from the European Convention on Human Rights.  (This is not as unlikely as it may appear)!  Those who support the opposite position may well find themselves at an enormous disadvantage.

Explanatory Notes on the Bill are available and there was a White Paper (January 2012: Cm 8233) which pointed out that lobbying is a perfectly legitimate activity that has been carried out for many years in many different forums by a wide variety of individuals and groups but, where lobbying is not transparent, it can undermine public confidence in the decision-making process and its results.  The purpose of the UK register is to increase transparency by making available to the public, to decision-makers and to other interested parties authoritative and easily-accessible information about who is lobbying and for whom.  The Register would not be a complete regulator of the "lobbying industry".

A useful explanation of the Lobbying aspects of the Bill may be seen on the Electoral Commission website.


Open Democracy argues that the "gagging law" is still a dangerous shambles.  They say:

In February 2010, just months before the general election, David Cameron made a speech in which warned that lobbying “is the next big scandal waiting to happen”. He said, “It’s an issue that . . . has tainted our politics for too long, an issue that exposes the far-too-cosy relationship between politics, government, business and money.” He spoke about shining “the light of transparency” on lobbying so that politics “comes clean about who is buying power and influence.” The bill, as drafted, shines only dim light on less than 80 per cent of the UK’s £2 billion commercial lobbying industry. It seeks to introduce a register of a small minority of  lobbyists – those who lobby on behalf of clients -  so it would really only cover those who work for an agency or work freelance and not the “in-house” lobbyists who are employed directly by companies and organisations. The register, condemned by Labour peer Dianne Hayter as a “skeleton register”, therefore misses out the vast mass of in-house lobbying with which government departments routinely engage – by, for example, the formidable bankers and insurance associations, the ABI and BBA, the pharmaceutical, defence, tobacco, processed food and sugar manufacturers, the trade associations, the media, law and accountancy firms, HS2, Heathrow, etc. Worse still, the register would only cover those who lobby ministers and Permanent Secretaries, a tiny proportion of lobbying activity. Most contacts are with mid-ranking departmental officials, special advisers, MPs and peers. Moreover, the bill merely requires registered lobbyists to list their clients, but not to say who is being lobbied about what, yet only by revealing the lobbyists’ dealings with ministers, civil servants and parliamentarians can the process be made transparent and policy-makers be held to account. Stuart Weir 6th November 2013

The Bill was considered by the Political and Constitutional Reform Committee which reported in July 2012.  It took a year for the government to publish its response to the committee's report.   The Committee's report stated:

Report The Committee's Report Introducing a statutory register of lobbyists was published at 00.01am on Friday 13 July 2012. Volume I - Report, oral and written evidence | pdf version Volume II - Additional written evidence | pdf version Further written evidence received submitted by the Taxpayers' Alliance was received and published after the report was published. Government Response This was published on Friday 19 July 2013. Pdf version

“The Political and Constitutional Reform Committee published a report in July 2012 that looked in detail at the Government’s proposals for a statutory register of lobbyists.  Nearly a year later, the Committee still has not received a response.  The events of recent days have demonstrated why it is important that the Government acts on lobbying.  But that action must be effective.
 
“The Committee’s report found that the Government’s proposals would only scratch the surface when it came to tackling public concern about undue access and influence over policy making, and would be unlikely to prevent lobbying from becoming ‘the next big political scandal.’

“The report concluded that the Government’s proposal for a register that included only third-party lobbyists would do little to improve transparency about who is lobbying whom, because meetings involving such lobbyists constitute only a small part of the lobbying industry.
   
“The Committee called on the Government to rethink their proposals, and in particular their definition of what constitutes a lobbyist.  I again urge the Government to consider carefully the Committee’s recommendations.  I look forward to receiving a response from the Government.”

Other views:

In September 2013, Civil Society wrote of deficiencies in the Bill.  

Part 1 of the bill has the admirable aim of introducing greater transparency into the political lobbying activity, by introducing a new register of lobbyists.  But the bill's tight definition of the "consultant lobbyists" who will be required to register will fail to catch all but a fraction of professional lobbyists.  In-house lobbyists are not required to register and the new transparency requirements do not apply to lobbying activity which falls short of direct personal communication with a government minister or permanent secretary of the civil service.

At the same time, the uncertainty of rules around non-party campaigning under Part 2 of the bill poses a serious threat to the campaigning activities of charities and other civil society organisations and may even breach the right to freedom of expression under Article 10 of the Human Rights Act.  The new rules substantially increase the risk of charities and issue-based campaigning organisations being required to register with the Electoral Commission and impose complex and bureaucratic new requirements for apportioning and accounting for expenditure incurred by those that do have to register.

Civil Society have also linked to an opinion prepared by Helen Mountfield QC on Part 2 of the Bill - Legal adviser backs up NCVO Lobbying Bill warning

Mountfield wrote in an opinion letter: “Uncertainty about what the law requires is likely to have a chilling effect on freedom of expression, putting small organisations and their trustees and directors in fear of criminal penalty if they speak out on matters of public interest and concern.”

“The proposals are likely to impose extensive and expensive audit and recording requirements on charities and community groups in relation to a wide range of activities. Charities may even have to account to the Electoral Commission for volunteers’ time.”

The QC from Matrix Chambers added that the legislation may even fall foul of freedom-of-expression rights. Her full opinion is available here.


Cheers ................!



  

"Skipping" ~ Dogs ~ GCHQ ~ Opposing legal aid cuts ~ Lobbying

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The Crown Prosecution Service (CPS) has decided that it is in the public interest to prosecute three men under the Vagrancy Act 1824 section 4.   The story is in The Guardian 28th January - "A man will stand trial next month after being caught taking some tomatoes, mushrooms and cheese from the dustbins behind a branch of Iceland."   This rather old legislation was enacted in the aftermath of the Napoleonic Wars (Wikipedia) of 1803-15.   Usually, in recent times, the Act has been used to prosecute homeless individuals found in deserted buildings etc.  Those who may be prosecuted under the Act include:

" .... every person being found in or upon any dwelling house, warehouse, coach-house, stable, or outhouse, or in any inclosed yard, garden, or area, for any unlawful purpose; ...."

There is massive food wastage in supermarkets.  For example, Tesco revealed that some 30,000 tonnes of food were wasted in the first half of 2013 - BBC 21st October 2013


Under the Vagrancy Act, the prosecution would have to establish that the defendants were in a place within the meaning of the Act (e.g. an inclosed yard etc) and that they had an "unlawful purpose" whilst there.  The purpose appears to relate to the likelihood that the men were there to steal from the skip.  Only the purpose would need to be proved as opposed to proving an actual offence of theft.

A good post on this matter is at Criminal Law blog 29th January  and also see Wiley Online Library - Do freegans commit theft?

More on the relevant law is at Andrew Keogh's blog - A case like Jean Valjeans

A statement from ICELAND was issued 29th January

*** Postscipt - The CPS decided not to continue with the prosecution -  statement of 29th January where it is stated that the CPS reviewed the case and decided, on public interest grounds alone, to discontinue the prosecution.

A serious case dropped:

Recently, a Conspiracy to Supply Class A drugs ended due to CPS failure, primarily on financial grounds, to disclose evidence which had been ordered by the court  - Law Society Gazette 14th January.

Perhaps some priorities need to be sorted out in the CPS?

Dogs:

Another story appears in the London Evening Standard.  It concerns a lady challenged by a Civilian Enforcement Officer for allegedly failing to clear up after her dog.  The lady maintained that she had cleared up the mess.  According to the report, the officer was asked by the lady to indicate where the alleged offence had occurred and he was unable to do so.  Having carried out a "dynamic risk assessment" the enforcement officer decided to call for Police back up.  Of course, the local authorities are right to enforce the law but commonsense does seem to have been lacking in this instance.

Surveillance:

The Guardian 28th January draws attention to legal advice given to MPs warning that GCHQ is 'using gaps in regulation to commit serious crime with impunity'  The legal advice was prepared by Jemima Stratford QC and Tim Johnston of Brick Court Chambers.  Tom Watson MP, Chair of the All Party Parliamentary Group on Drones, commissioned the advice which considers five possible scenarios concerning state surveillance in the UK.

Legal Aid:

Legal aid lawyers have formed a new group to oppose the government's plans to cut legal aid in criminal cases - Law Society Gazette 28th January.  The National Justice Committee comprises the Criminal Law Solicitors’ Association, London Criminal Courts Solicitors’ Association, Legal Aid Practitioners Group, Justice Alliance, Criminal Bar Association and circuit leaders.

CIVIL legal aid has been axed in many areas.  The Steve Cornforth Blog highlights the case of a child who, due to negligence in the NHS, is now severely brain damaged and will be dependent on others for the remainder of her life.  Here case was legally-aided but a similar case now would not be.  Please read this and bend the ears of your MP about the appalling state to which lack of legal aid is reducing British justice.

Lobbying:

The Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Bill  - ("Lobbying Bill") - has almost cleared its stages through Parliament.  When it receives Royal Assent, it will become law.  This controversial Bill merits a post in its own right.  However, the Bill:

• introduces a statutory register of consultant lobbyists and establishes a Registrar to enforce the registration requirements
• regulates more closely election campaign spending by those not standing for election or registered as political parties 
• strengthens the legal requirements placed on trade unions in relation to their obligation to keep their list of members up to date.

and, finally, .......... in the Supreme Court

16-year laptop credit agreement fight reaches supreme court http://t.co/buXfQqeN4m via @guardian
— 13 Kings Bench Walk (@13KBW) January 29, 2014

HS2 ~ Why the challenges failed in the Supreme Court

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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 19^th 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