Information Commissioner rules for release of HS2 reports. Supreme Court destroys Govt veto.

The Information Commissioner, Graham Smith, has again ruled that updated Major Project Authority reports about HS2 should be published. This follows his previous ruling that the Cabinet Office should release the MPA report on HS2 from November 2011, which rated the project as ‘amber-red’, saying it was in danger of failing. This new decision coincides with yesterdays related Supreme Court judgement.

On this occasion, the Commissioner has ruled that the copies of the MPA reports that were requested directly from HS2 Ltd must be released because they can no longer be regarded as “internal” Government documents. HS2 Ltd is not a government department but a Non Departmental Public Body (NDPB). Mr Smith said HS2 Ltd was set up “precisely to act independently of government and at arm’s length from ministers”.

In January 2014 the Transport Secretary, Patrick Mcloughlin, refused a previous demand that the Department for Transport’s copies of the report be published. Faced with losing that case in a legal tribunal, McLoughlin made use of a rare veto that has previously been used in respect of Iraq war secrets.

The use of this veto will now be challenged in the courts. A Judicial Review was brought by the Information Commissioner and Dr Paul Thornton, who made the initial request, against the Governments’ decision to over-rule Mr Smith and block publication. This can now go ahead, following the Supreme Court ruling over the release of letters written by Prince Charles. In June 2014, Mr Justice Singh granted permission to proceed with a Judicial Review, however, as some of the points of law were the same in both cases he ordered that the HS2 case should not begin until the Prince Charles case had been ruled upon.

The Supreme Court decision has set a legal precedent that should mean the HS2 reports have to released. The Supreme Court ruled by a majority of 5-2 that the veto had been unlawfully with regard to the Prince Charles letters. Three of Supreme Court judges who found against the Government held that the veto can only be used if ministers can show that the facts or circumstances have changed substantially since the Tribunal’s decision to publish, which was clearly not the case regarding the HS2 reports. The other two judges said that the veto could be used but only where there was the ‘clearest possible justification’ which did not exist in this case.

In the case of HS2, the official justification used by Government for the veto was to protect civil servants. A leaked letter to the Prime Minister from Mr McLoughlin and Cabinet Office Minister Francis Maude revealed the real reason was that publication would “Create political and presentational difficulties”, continuing: “Counsel has advised that it will be better to veto now rather than after an adverse tribunal decision.”

Whilst Robert Goodwill, the Parliamentary Under-Secretary at the DfT dismissed the need for the publication of the November 2011 report in a Westminster Hall debate on Wednesday, saying it is: “An historical report that is out of date. We are working on much more up-to-date information”, the reality is that the most recent MPA report on HS2 from last year raised 75 serious issues on HS2. On the 26th November 2014, Sir David Higgins, Executive Chairman of HS2 Ltd told the House of Commons Governance Select Committee:

“I had a meeting with them (the MPA) yesterday and the initial report said, “There are 75 different complex questions that we have been asked to address.” I said, “There are probably only 10 things today on this project that you need to understand and take judgment on, to see whether we are on track or not.”

Stop HS2 Campaign Manager Joe Rukin has submitted FOI requests regarding the release of the November 2014 report to both the Cabinet Office and HS2 Ltd, which they have refused on the same grounds the Information Commissioner over-ruled with regard to the requests from Dr Thornton.

Responding to the Commissioners decision, Dr Thornton said:

“A long list of independent organisations, along with cross party select committees, have grave concerns about HS2. The Major Projects Authority has been consistently warning about the grandiose HS2 train set proposals, over several years, such that they gave it a Red/Amber traffic light rating. And yet, until now, their warnings remain a multibillion pound secret.”

Joe Rukin added:

“The High Court put the HS2 case on hold awaiting the Prince Charles judgement, as many of the points of law are the same. Having lost the Prince Charles case, the entire legal basis for the Government refusing vetoing the MPA reports on HS2 has vanished, they simply haven’t got a leg to stand, and should publish all these reports without further delay, but as that would leave the project in tatters, they will certainly try and defend what is now indefensible in the courts to stretch things out as long as possible because the Government don’t want people to know the truth about how badly managed HS2 is. It is quite simple, you don’t bury good news!”

Stop HS2 Chair Penny Gaines said:

“During the last five years, the public case for HS2 has got shakier and shakier and with the government refusing to publish these documents it looks like they have known all along that the case for HS2 was poor.  The next Government will have to publish HS2 Ltd’s accounts, they should also publish the MPA reports as well.”

“HS2 is a £50 billion white elephant.  The economic case uses outdated assumptions about business travel, and building it will be hugely environmentally damaging.  The case for HS2 collapsed years ago, but the Department for Transport seem determined to push forward none the less.  We call on all Parliamentary candidates to look closely at the plans, and for the incoming Government to cancel it as soon as possible.”