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Case for HS2 should be revisited despite disappointing court ruling, says Chris Packham

Environmental campaigner Chris Packham CBE says the case for HS2 should be revisited despite today's disappointing Court of Appeal ruling.

Posted on 31 July 2020

Mr Packham has spoken out following a Court of Appeal judgment which refused permission on two grounds for a judicial review into the Cabinet’s decision to give the multi-billion pound project the “green signal” on 11 February 2020.
Mr Packham maintains that the COVID-19 pandemic’s massive impact on public finances and the need for a green recovery (including a substantial change in attitudes towards home-working and remote business meetings) has undone the business and environmental case for HS2.
Chris Packham said:
“Obviously we are deeply disappointed by today’s ruling. But the fact is, we are a world away from the place we were when we issued the original claim for judicial review.

“COVID-19 has turned the state of the UK finances and the public’s attitudes towards climate change upside down.
“People now see that a scheme for a railway which will tear up the countryside so that we can shave a few minutes off a journey time, makes no sense in the contemporary workplace.

“The HS2 project is not about the future, it’s about preserving a past which has now changed so radically since the pandemic.”
In a 51-page judgment handed down today, three Lord Justices of Appeal refused Mr Packham’s appeal against his earlier (6 April 2020) refusal of a judicial review.
Mr Packham had appealed on two grounds. The first concerned the question of whether the Cabinet was correctly advised on the existence and extent of environmental information before it when considering the report of the Oakervee Panel. Second, that the Government failed to take account of the effect of the project on greenhouse gas emissions and global temperature rise between now and 2050, in the light of its obligations under the Paris Agreement and the Climate Change Act 2008.
On the first ground, the judges ruled that the environmental impacts of HS2 had been assessed in detail through the Parliamentary process and the Cabinet’s decision-making could not have been made without proper regard to those conclusions.
On the second, the Court held that because the decision arising out of the Oakervee Review was not subject to any form of statutory scheme, the Government was at liberty to select the issues on which it was advised by the Review and that it was not constrained by the Climate Change Act 2008 or by any policy of its own. But in any event, the Court of Appeal held that it can be taken that the Government was fully aware of its commitments under the Paris Agreement and responsibilities under the Climate Change Act 2008 and to have taken those commitments and responsibilities into account.
The Divisional Court had also held that Mr Packham had not brought the claim promptly as it had been brought within six weeks and three days of the Cabinet decision in February 2020. The Court of Appeal overturned the lower Court’s judgment, ruling that the claim had been brought well within the three-month limit that lawfully applies in such cases.
Mr Packham was represented by Tom Short and Carol Day, Solicitors at Leigh Day and by David Wolfe QC at Matrix Chambers and Merrow Golden at Francis Taylor Building.
Solicitor Carol Day said:
“This is a very disappointing judgment. Most people would assume that when the Government makes a commitment to tackle climate change under international and domestic law, that commitment will be both fully understood and fully considered in all of its decision-making. However, today’s judgment suggests a less demanding approach can be lawful. Our client believes this is wrong and is pursuing the possibility of an appeal.”

Statement by Chris Packham following Court of Appeal judgment

Chris Packham said:

“So the judges at the Court of Appeal have ruled that my application for a Judicial Review into the HS2 project should be declined. In their papers there are some points of ire and interest. 

“They have said that they gave their decision only ‘light scrutiny’ as it was a Government decision. Well that seems very wrong to me as a lay person. If I get planning permission from my council to build a garage with no environmental impact, the court would closely scrutinise the council’s decision. But when the Government decides to go ahead with one of the biggest ever construction projects, which it has admitted will have huge environmental impacts, the court stands back. That does not feel like equality before the law, or public access to environmental justice. 

“My legal team consistently asked the DFT to produce the documents which showed what the Cabinet was told about the environmental harms of HS2, and they consistently came up with nothing at all. I am amazed that the court is prepared to assume that, just because the Ministerial Code says Ministers should be properly briefed, that could be assumed to have happened here. I am also amazed that the court was prepared to assume that all the members of the Cabinet would have been aware – without being told – about the impacts of HS2 which had been assessed seven years earlier. That shows surprising confidence in the individual members of the Cabinet, a confidence I do not share.

“I am further amazed that the court was prepared to assume that all the members of the Cabinet could be fully aware of the UK’s climate change commitments under the Paris Agreement and the Climate Change Act 2008.  That seems very, very unlikely. The Government Legal Department could easily have provided the court with proper information about how Ministers were briefed - they chose not to do so. For the court then to assume each and every member of the Cabinet knows all of the relevant environmental law, seems wholly improbable to me .

“In my opinion the Government has been let off lightly and on that account we are considering the possibility of an appeal.

“My feelings . . . In the short term it’s disappointing, in the medium to long term - potentially immensely damaging. 

“This case was not about the exorbitant costs, the allocation of funds, the fewer and slower trains, the fact that Covid has taught us all how working from home is better for our personal and planet’s health or the barely veiled plans to facilitate airport expansion. No, this was a case about the future of our, our children’s, and our grandchildren’s lives.

“About the health of our planet and everything that lives on it. 

“It was about a government who signed up to an agreement to reduce carbon emissions – and then ignored their responsibility, about a government who sanctioned the destruction of one of our most precious habitats, ancient woodland, in the frightening face of a Climate and Environment Emergency.

“About a government-owned publicly-funded company that has destroyed nesting birds, roosting bats and the centuries old homes of badgers in spite of their legal protection. 

“A company that has ignored social distancing rules, abused peaceful protesters and continues to soak up the dwindling reserves of the public purse. This case was about our species’ dwindling hope of survival.

“History will not look fondly upon those who have facilitated this environmentally damaging folly. It will damn their short termism, their wilful blindness in the face of the greatest crisis our species and planet has ever seen and their children and grandchildren will curse their ignorance, stupidity and greed. And although we may have to look beyond this legal avenue for a solution, we will find it.

“I would like to thank all of those who gave so generously to my Crowdjustice Appeal – thank you, we spent your money honestly and wisely and with a clear determination to win this case for you; those from the NGOs who gave expert advice when required, thank you; to my superb legal team who took the case before the courts with enormous intelligence, diligence, passion and defiance, thank you ¬- you were brilliant; to Pete Myers who has been a steadfast and magnificent ally throughout, and to all those brave, stoic, beautiful people who have, through cold and wet, thick and thin, peacefully protested against this ghastly injustice of a railway - I am humbled by your resolute fortitude and I salute you. 

“And please remember winning is not standing outside a courtroom with a smile on our faces. Winning is not giving up.”