29-Mar-2013
Judicial Reviews - Roundup
Report by Mark Ladd, GMStopHS2
Judicial Reviews Decision
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As promised in the last newsletter, this special newsletter aims to provide my layman’s background to the decisions of the Judge who heard the Judicial Reviews at the end of last year. These are based very substantially on the presentations by Hilary Wharf of HS2 Action Alliance (HS2AA), one of the plaintiffs.
In short the plaintiffs won one key action on the Compensation consultation but were turned down on the other cases being brought, although in doing so the Judge granted leave to appeal on an environmental issue.
Compensation
HS2 Action Alliance brought this case on 4 specific grounds including insufficient information was available at the consultation for people to be able to answer a key question being asked, the DFT had changed the criteria used in making their decision on the hardship scheme and conscientious consideration of all aspects of the consultation, in particular HS2AA’s own response, had not been considered properly by the Secretary of State before issuing the proposals for compensation.
In his judgement, the judge concluded that the action of the DFT was “all in all so unfair as to be unlawful”.
As Judicial Reviews are about process and not legal decisions, it was very important that the judgement included a remedy for rectifying the process complained about. To achieve a remedy involved negotiations carried out in court with the DFT. HS2 did not just accept their initial offer to state that their announcement was wrong or to redo the consultation but to agree to redo the compensation consultation with the property bond option and that the hardship scheme is included.
Environmental Case
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On an environmental case being brought the Judge concluded that the DFT January 2012 announcement of the route, and the next steps it and HS2 were taking, did not comprise a plan or a programme. Only Parliament is the decision maker in law. So it was on these grounds that he dismissed the action.
However he went on to say that if Parliament had made a decision, the Appraisal of Sustainability that the DFT had carried out did not comprise a Strategic Environmental Assessment as the DFT had maintained. Furthermore it was partly for this reason that he granted HS2AA leave to appeal to the Court of Appeal.
Obviously this appeal will be costly and an appeal for £100,000 to undertake it has already been launched by HS2AA. Funds need to be available very soon so that the appeals can be lodged. These are heard in the Court of Appeal. The timings depend on the case load at the Court of Appeal and bearing in mind there is a summer recess, the appeal might not be heard before then.
The 51M and Other Cases in the JRs
The rest of the cases being brought by 51M and others were all turned down by the Judge mainly on the same grounds, namely that until Parliament had decided on HS2, the challenges being made were premature. This argument was described by Martin Tett, the leader of Bucks CC, as “completely bizarre. For all those who watched the cabinet announcing the routes to Manchester and Leeds only a few weeks ago the claim, accepted by the Judge that there had been no decision feels like some parallel universe.”
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It does seem odd that the Judge opined that it was premature to challenge HS2 and the DFT before the Hybrid bill had been passed, especially in making this ruling the Judge went on to say that HS2 had not yet met all the requirements they should have but that they might in time.
I understand 51M will also be seeking leave to appeal on certain of the issues in their case and 51M and HS2AA are continuing to work very closely on all relevant issues, particularly on the environmental action.
Interestingly after the JRs were announced, almost all of the media reports have focussed on the compensation verdict against the DFT, in spite of their substantial, and costly, media spin from the DFT about their victory. Andrew Gilligan in the Sunday Telegraph reported that the Government only survived the JR by some of the most contorted reasoning ever seen in a British courtroom.