HS2AA Make UN Presentation

HS2AA presented its communications to the Aarhus Convention Compliance Committee at the United Nations in Geneva on Thursday 10 March 2016. The communications follow the UK Supreme Court’s decision in January 2014 that the actions of the UK Government in bringing forward its plans for HS2 were not unlawful.

UK Government Communication

HS2AA presented its case on the basis that the UK Government had failed to discharge its duties under Article 7 of the Aarhus Convention (Public Participation Concerning Plan, Programmes and Places Relating to the Environment).

Article 7 includes express requirements that public participation in relation to plans and programmes must be:

(1) during their preparation;

(2) within a transparent and fair framework, having provided the necessary information to the public” and

(3) compliant with the standards set out in Article 6, paragraphs 3, 4 and 8, namely that:

• the provision of “reasonable time frames” which allow sufficient time “for the public to prepare and participate effectively during the environmental decision-making” (Article 6, paragraph 3);

• the provision of “early public participation, when all the options are open and effective public participation can take place” (Article 6, paragraph 4); and

• ensuring that the final decision takes due account of the outcome of the public participation (Article 6, paragraph 8).

HS2AA set outs its view that the consultation undertaken on the Decisions and Next Steps (DNS) document prior to its adoption in January 2012 did not comply with the standards of Article 7 of the Convention as outlined above. In particular:

(1) some of the options considered were ruled out without any prior public participation;

(2) no information was given about the environmental effects of some of the options considered; and

(3) the level of information provided about the SST’s preferred options for the plan/programme was not equivalent to the level of information provided about some of the other options considered.

The UK Government argued that it had discharged its duties under Article 7 by carrying out its consultation in 2011 under the common law principles governing consultation and that the consultation that it carried out satisfied these requirements. The UK Government reiterated its point that the Strategic Environmental Assessment Directive (SEA Directive) did not apply in these circumstances as the DNS did not set the framework for the subsequent decision making process.

European Union Communication

HS2AA also presented its case against the European Union (EU) on the basis that there was a loophole in the European Union’s implementation of Article 7 as a result of the UK Supreme Court’s decision that the DNS did not set the framework for the subsequent decision making process.

The principal EU legislation on public participation concerning plans and programmes relating to the environment is the SEA Directive. HS2AA argued that the loophole arises because the SEA Directive applies to plans and programmes prepared by EU member states only where they are “required by legislative, regulatory or administrative provisions” (Article 2(a)) and “set the framework for development consent” (Article 3(2)).

The Supreme Court judgment creates an EU-wide exemption from the SEA Directive for plans and programmes relating to a project for which the subsequent development consent is a national legislature. Accordingly, HS2AA is of the view that the EU has failed to put in place an appropriate framework to ensure implementation of Article 7 in light of the UK Supreme Court’s decision.

The EU was of the view that it had discharged its obligations under Article 7 and it was a matter for the UK Government to comply with Article 7 where the EU framework did not cover circumstances such as those of the present case. The EU refused to be drawn when asked by the Committee Members if it felt that the UK Supreme Court’s decision was correct. It also refused to be drawn on whether it was minded to take proceedings against the UK.

Next Steps

These communications demonstrate the weaknesses in the current frameworks for public participation in the UK and European Union.

The Committee is going to write to the UK and the EU with some questions they would like to have answered within the next two weeks. The Committee will then deliberate before coming to its findings and possible recommendations, which will be published at one of its subsequent meetings.

HS2AA wish to thank its legal team-Christopher Stanwell of Nabarro, Robert McCracken QC and Charlie Banner and the generous individuals across the country who have generously contributed to enable this appearance to take place.

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