Use of ‘War Veto’ to block publication of HS2 reports is illegal, say Stop HS2.

Secretary of State for Transport Patrick McLoughlin has today exercised a veto on publication of a report pertaining to HS2. This veto has only been used a handful of times, including the blocking of publication of cabinet discussions on the Iraq War, the NHS risk register, and letters from Prince Charles to Cabinet members. This is the first time the veto has been used in relation to a ruling made by the Information Commissioner on environmental grounds, and comes the very day after Cabinet Office Minister, Francis Maude claimed in Parliament that the Government record on releasing information under freedom of information requests is “good”.

The document which has been blocked from public scrutiny is a November 2011 report from the Major Projects Authority, which rated HS2 as amber-red, meaning “Successful delivery of the project is in doubt, with major risks or issues apparent in a number of key areas. Urgent action is needed to ensure these are addressed, and whether resolution is feasible”.

There have since been a further four MPA reports on HS2, and it was expected that if the Government was forced to publish the November 2011 report, they would then have to publish the subsequent reports. When the MPA was first set up, it was said that reports would be made available two years after production.

Following a Freedom of Information request, and a lengthy appeal process, the Information Commissioner ruled in June 2013 that these documents should be released in both the public interests, and to comply with Environmental Information Regulations. The Government appealed this decision, but just hours before the tribunal was due to take place in December, they withdrew their appeal, as they were certain they would lose. At the time, McLoughlin and Maude wrote to David Cameron, saying:

“Continuing with the appeal would create political and presentational difficulties at a crucial point in the HS2 project’s development . . . [therefore we should] exercise the veto now . . . Counsel has advised that we are very likely to lose the appeal. We consider that the importance the Government attaches to the successful implementation of the HS2 project . . . justifies the use of the veto in this case as exceptional. Disclosure of such recent information would also have a chilling effect on assessments of other Government projects and, indeed, on advice prepared for Government ministers on many other subjects. Counsel has advised that it will be better to veto now rather than after an adverse tribunal decision.”

Today, Mr McLoughlin has exercised the veto, however this veto can only be used in the instance of internal Government communications, and during the appeal process the Information Commissioner accepted that because the information contained in the report had be shared with HS2 Ltd, which is an external organisation owned by the Department for Transport, it had ceased to be an internal communication. Using the veto means that MPs, who will be asked to commit to the £50bn expenditure when the HS2 Hybrid Bill comes to second reading in spring, will not know the details of this report.

In a statement, McLoughlin said;

“I have taken into account the views of Cabinet, Ministers and the Information Commissioner, in considering both the balance of the public interest in disclosure and nondisclosure and whether this is an exceptional case. My view is that the public interest favours nondisclosure. I have also concluded that this constitutes an exceptional case and that the exercise of this power of veto is warranted.”

“The public interest in ensuring that projects of this scale, importance and cost are properly controlled and overseen is very high indeed. The assurance of confidentiality is important in the conduct of the review. In my view, there is nothing in the nature or content of this particular report which outweighs that strong public interest against disclosure.”

Dr Paul Thornton, who brought the original freedom of information request, said it was likely that this would now go to Judicial Review. He said

“The Information Commissioner said in the course of the appeal that facts of the case had changed when it was discovered that the MPA report had been shared with HS2 Ltd. At that point, the exception claimed by the Cabinet Office could not be engaged. The veto can only be used when there is a dispute over public interest, and that cannot be used in this case because the report is not an internal communication.”

“This is a delaying tactic on the part of Government as they know decision is likely to go to Judicial Review. This should not be necessary as Parliament should be scrutinising this arbitrary decision and ensuring that it is overturned, as creates an alarming precedent.”

Stop HS2 Campaign Manager Joe Rukin said:

“It is absolutely disgraceful that the Government doesn’t want MPs, who should be fully informed before voting on the colossal expenditure HS2 entails, to actually have all the information about the project. This just proves that there has been, and continues to be an agenda from Government to deceive MPs and the public with spin and dismiss any independent information showing just how bad the HS2 project is. It also shows that this Governments’ supposed ‘transparency agenda’ is as transparent as a lump of coal. What is the point in having reports on projects if they cannot be used to inform the debate around them?” 

“The Government know full well that this report wasn’t an internal communication and that the way they have implemented this veto is therefore illegal, but they don’t care, all they want is to make sure this report stays buried for just a little longer so they can con MPs into voting for their white elephant vanity project. Ministers made this exceptionally clear when they said publication of these reports would cause ‘political and presentational difficulties’ and could seriously damage the project. That was an admission that knowing the truth about HS2 would finish it off, and we can only hope that Parliament does not accept this cynical hypocritical attempt to cover-up the truth for simple political expediency. This is no way to run a railway, or indeed a country.”

Penny Gaines, chair of Stop HS2 said

“Patrick MacLoughlin claims that it is not in the public interest to release the Major Projects Authority report into HS2, which gave them amber/red ratings four times in a row.  Since then the problems with the way the HS2 project is run is coming into sharp focus.  The budget for HS2 has been increased by £10 billion, which seems to be the only way to improve the MPA rating.  The rebuild of Euston station has cancelled, because HS2 got their sums wrong.  HS2 has admitted loosing over 1000 consultation responses, and the ongoing Phase 1 environmental statement consultation was extended by the House of Lords by over a month because of lost data.”

 “With increasing numbers of people opposed to HS2, it’s time that the government ditched this white elephant and cancelled HS2.”

Information Commissioner Christopher Graham said:

“This is a disappointing decision, and I’ll be studying the Secretary of State’s explanation to understand why this has been ruled an exceptional case. There’s important legal issues to be considered here, and I’ll be highlighting our view of them in an open letter to the Justice Committee in due course.”