High Speed Rail (Preparation) Bill

Written evidence from Heathrow Hub Ltd (HSR 14)

1. Heathrow Hub Ltd. (HHL) is pleased to have the opportunity of providing evidence to the Committee.

2. HHL is the private company that has developed and promoted an alternative HS2 route directly via a Heathrow airport interchange and the M40 motorway corridor, (and which now also includes increased runway capacity). A summary of our proposals is at www.heathrowhub.com

3. HHL is also one of the claimants appealing judgment in the Judicial Review of Government’s decision to proceed with HS2. HHL’s claims were heard, with others, in the Court of Appeal in June 2013. Judgment is awaited at the time of writing.

4. We request that the Committee considers what appear to be fundamental contradictions between Government’s promotion of the Paving Bill and its oral submissions in the Court of Appeal.

5. Government is seeking Royal Assent for the Paving Bill in order to "deliver the HS2 project as fast as possible (where) the preparatory work … is so urgent that it cannot wait until Royal Assent" - (House of Commons Library Note SN6624)

6. The introduction of the Paving Bill to Parliament therefore gives the clear impression that the Government has already undertaken all the necessary consultation for determining at least the route of Phase 1 of HS2 and that it can now seek Parliament’s approval for expenditure to allow construction to proceed as soon as possible.

7. However, this fundamentally conflicts with the submissions and undertakings made by Government in the Court of Appeal.

8. In these proceedings, Counsel for Government told the court that "the Secretary of State cannot stand up at the second reading debate (of the Hybrid Bill) and say, "The scope for debate here is trammeled by the four corners of the DNS" (Decisions and Next Steps, January 2012). This effectively makes clear that Government’s current position is that no firm decisions have been taken on the route of HS2 and that all other options remain open to Parliament as the decision maker.

9. In fact, Government had no choice but to take this position in order to seek to mitigate the consequences of its failure to carry out a Strategic Environmental Assessment prior to a decision being taken to proceed with the scheme.

10. Recognising this fact, Counsel went further, suggesting that if the Secretary of State did seek to constrain Parliament’s consideration in due course - whether of alternative routes for HS2 or indeed an entirely different proposal - there was a "risk of creating grounds for a challenge to the Bill on a fact alone basis on the basis that there had been a failure to fulfill the objectives of the Environmental Statement."

11. On hearing these submissions, Lord Justice Dyson, (The Master of the Rolls) said: "I must admit, I am a bit astonished. This is so central to the big issue in the case, that it should come out in this way at this stage of the game is simply astonishing."

12. Government’s submissions further acknowledged the need for HHL’s specific proposal to be properly evaluated in view of the fact, (which is not in dispute between the parties), that the Secretary of State "did not read (HHL’s) consultation response (to the 2011 HS2 public consultation) and therefore did not have a proper understanding of the merits of the case that (HHL) were making for an alternative phase 1 route through Heathrow airport."

13. In recognizing this deficiency, Government made an undertaking to the Court that an "alternative report," (presumably including HHL’s proposals) "will be submitted as an appendix to the Environmental Statement that is submitted with the (Hybrid) Bill."

14. Government therefore appears to accept that the process of determining the HS2 scheme to date is fundamentally flawed and that an "alternative report" is essential to allow the HS2 Hybrid Bill Committee to properly consider those schemes (including HHL’s proposals) that -as a result of the acknowledged failure of the decision maker [1] - were not considered in the 2011 public consultation.

15. However, there is no detail available as to the anticipated content of any such "alternative report," nor the process by which such a report might be prepared.

16. We therefore respectfully request the Committee to reflect on the effect of these matters and undertakings in considering the Paving Bill.

17. At the very least, the Bill might benefit from amendment to include, for example, a specific requirement for alternative HS2 routes to be fully considered, consulted on and reported to the Hybrid Bill Committee in due course in order to reduce the risk of future legal challenge.

18. The wider issue of Parliament’s duty to spend public monies wisely might also be considered. Government has confirmed the intention to incur very significant expenditure (ca. £0.9bn) [2] on HS2 in this Parliament alone. Clearly, there is the potential for at least some of this to be wasted in the event of either a future legal challenge arising from a failure to comply with undertakings given to the Court, or the Hybrid Bill Committee determining, after consideration of the "alternative report," that the current HS2 proposals are not supportable.

19. There is also the further risk that HS2, which has been developed - and is proceeding - in isolation from emerging airports policy, might need to be "adapted" (in the Secretary of State’s words) [3] following publication in Summer 2015 of the Airports Commission’s report, (after expenditure of ca. £0.9bn on HS2) on the UK’s future hub airport strategy. Parliament has understandably questioned the wisdom of pursuing entirely separate air and rail strategies, [4] despite Government’s recognition of the need for an integrated approach. [5]

20. If, for example, the Airports Commission concludes that Heathrow is to remain the UK’s hub airport, it would seem perverse for HS2, the biggest ever investment of public monies in a single project, [6] to bypass (by just a few miles) one of the world’s premier airports and a vital UK economic asset. Alternatively, if the Commission recommends developing an alternative hub airport to replace Heathrow, it seems unlikely that its site would coincidentally lie on HS2’s present proposed route. It would appear logical to determine airports policy before committing to a specific HS2 route.

21. Whilst we recognize the narrow remit granted to the Committee, we believe that there is justification for pausing any further consideration of, and expenditure on, HS2 until the Airports Commission’s report has been received and considered and/or the "alternative report" has been prepared and properly consulted upon in accordance with the Government’s Consultation Principles [7] and the United Nations Aarhus Convention. [8]

22. We also respectfully suggest that, in view of these very significant and far-reaching issues of public policy, the Committee record the risks that are inherent in Government’s promotion of the current Bill. This would in effect be consistent with Counsel for Government’s submission to the Court of Appeal – "I would have thought it was obvious that the Secretary of State, in promoting a scheme which is going to cost hundreds of millions of pounds alone to promote through Parliament, will want to make sure that he has got his ducks in a row in relation to those matters"

July 2013

[1] “There is no doubt but that this omission , (on the part of the Secretary of State in failing to consid er HHL’s consultation response), occurred and it was not HHL’s fault…. It is clear that the fault lay on the Secretary of State/HS2 Ltd’s side of the fence” - Para 596, Full Judgment of Mr Justice Ouseley, Royal Courts of Justice 15 th March 2013 http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/hs2-judgment.pdf

[2] “ The Minister of State, Department for Transport, the right hon. Member for Chelmsford (Mr Burns), has admitted to me in a parliamentary answer that the budget for the current spending period has been revised upwards from £773 million to around £900 million” - Maria Eagle MP, Second Reading High Speed Rail Preparation Bill, House of Commons, Column 354 Hansard 26 th June 2013 http://www.publications.parliament.uk/pa/cm201314/cmhansrd/cm130626/debtext/130626-0002.htm#13062665000001

[3] “The High Speed Rail Line (HS2) to Birmingham may have to be adapted depending on what is decided about the future hub airport. A Bill for the line will take until 2015, the year the Davies Commission reports. I hope if anything needs to be adapted we will have the time to do it” - The Rt Hon Patrick McLoughlin MP, Evening Standard 27 th September 2012 http://www.standard.co.uk/news/politics/i-wasnt-made-transport-secretary-to-push-through-third-runway-at-heathrowall-options-are-on-the-table-8181588.html

[4] “ The development of what could emerge as separate strategies for rail and aviation highlights the absence of an overall transport strategy: this is a lacuna which must be filled” – Para 21, High Speed Rail, Tenth Report of Session 2010-12 Commons Transport Committee, November 2011 http://www.publications.parliament.uk/pa/cm201012/cmselect/cmtran/1185/1185.pdf

[5] “There is will remain (sic) a strong strategic case for ensuring that Britain’s high speed rail and aviation hub strategies are effectively integrated” – Para. 4.39, High Speed Rail: Investing in Britain’s Future – Decision s and Next Steps, DfT January 2012 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/3648/hs2-decisions-and-next-steps.pdf

[6] Correspondence between Heathrow Hub Ltd and Institute of Economic Affairs, 2012

[7] “Engagement should begin early in policy development when the policy is still under consideration and views can genuinely be taken into account” – Consultation Principles, Cabinet Office July 2012 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/60937/Consultation-Principles.pdf

[8] Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters http://ec.europa.eu/environment/aarhus/

Prepared 16th July 2013