Supreme Court Day 2

The second day of proceedings in the Supreme Court commenced with Natalie Leiven QC, counsel for the local authorities challenging the decision to proceed with HS2 , completing her submissions to the Court.

Upon completion of these submissions, Tim Mould QC, counsel for the Secretary of State for Transport set out the Government’s case. He began by confirming that the Government estimated that undertaking a Strategic Environmental Assessment, as HS2AA claimed was necessary, would delay the HS2 project by 6-12 months. Mr Mould confirmed that any SEA exercise would include alternative routes for HS2 (the so-called “Reverse S and “E” routes) but could not confirm if the 51M proposals, known as the “Optimised Alternative”, of improving existing lines would be included.

He added that it had never  disputed by the Secretary of State for Transport that improving existing infrastructure would be “environmentally superior” to building a new line, and that there “had always been an acceptance [by the Secretary of State for Transport] that upgrading existing lines would be environmentally superior”

Following these statements counsel for the Secretary of State for Transport responded to HS2AA’s case that a Strategic Environmental Assessment was required. Mr Mould stated

  • Few people in the 2011 national consultation on high speed rail had referred to alternative routes.
  • The January 2012 decision to proceed with HS2 did not set the framework for any future Parliamentary decision on HS2-Members of Parliament were free to take whatever position they wanted on HS2.
  • The Environmental Impact Assessment Regulations covered all relevant requirements, meaning there was no need for a Strategic Environmental Assessment.
  • Despite the previous judgement that the Appraisal of Sustainability  did not comply with the SEA, that in relation to Phase 1 (which was the subject of Hybrid Bill) it would.
  • that under the revised Standing Orders for the Hybrid Bill public participation is provided for together with an independent assessment of the responses, before the Second Reading of the Bill.

In response, Natalie Leiven QC pointed out that the independent assessor was only required to summarise, and not assess the contents of the consultation responses.  She submitted that what is needed is effective public participation, requiring Parliament to have an open mind in decision making. She challenged whether with a whipped vote and  cabinet collective responsibility  – rather than a free vote – this is achievable.

Both Natalie Leiven QC and David Elvin QC later pointed out that Government ministers now confirmed that high speed was not now a priority and hence the 51m Alternative should now be considered as a reasonable alternative were an SEA done now.

David Elvin QC closed HS2AA’s case by stating that the 2012 decision to proceed with HS2 in fact narrowed the options under consideration and was not simply a statement of policy. It was therefore sufficiently influential to set the framework and invoke the SEA Directive. David Elvin QC added that an EIA did not cover the HS2 position because while the first phase of HS2 may be a project (requiring only an EIA) the 2012 decision required an SEA to ensure a proper assessment of the alternatives.

Tim Mould QC re-opened the question of whether the 2012 decision was administratively required  by the 2010 White Paper. David Elvin QC later explained why the White Paper was not just a proposal but set out the process for the Government decision.

In closing, David Elvin QC stressed that none of the decided European Court of Justice cases covered the SEA issues before the court, and this therefore  a reference to the European Court of Justice appeared prudent.

Charles Banner for Heathrow Hub said that by not conducting an SEA the relative environmental impacts of the Heathrow alternatives were not properly considered.

The President of the Supreme Court, Lord Neuberger indicated that after deliberation if their lordships felt there were material constitutional issues then they would have a separate hearing at which the Parliamentary authorities would be invited to contribute.

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