The London Parks and Gardens Trust, a rule 6 party in the forthcoming inquiry into the Holocaust Memorial and Learning Centre call-in inquiry, is seeking a declaration in a judicial review that regulation 64(2) of the Environmental Impact Assessment Regulations 2017 fails properly to transpose the requirements of article 9a of Directive 2011/92/EU (as amended by Directive 2014/52/EU) on environmental impact assessment.

The Secretary of State has made an application for planning permission for the proposed Holocaust Memorial with Learning Centre in Victoria Tower Gardens, London SW1, a Grade II registered park and garden immediately adjacent to the Palace of Westminster and Westminster Abbey UNESCO World Heritage Site and to the Palace of Westminster itself, a Grade I listed building.  The Secretary of State has subsequently called the application in for his own determination.

The London Parks and Gardens Trust is a small charity with a principal object of preserving and enhancing the quality and integrity of London’s green open spaces. It is a statutory consultee in respect of planning proposals affecting Registered Parks and Gardens.

The Trust contends that the proposals for the Holocaust Memorial with Learning Centre represent an exceptionally serious intrusion into a very important green public open space.  The Trust has made clear that that it regards a new Holocaust Memorial with Learning Centre is a good idea, but that Victoria Tower Gardens is the wrong place for what is now proposed. This is summed up in the phrase “Right idea, wrong place”.  This view is shared with many other objectors, including Westminster City Council, the Thorney Island Society, the “Save Victoria Tower Gardens” campaign and Baroness Deech.

There have been many statements about the Government’s, the Prime Minister’s and the Secretary of State’s commitment to the development proposed in Victoria Tower Gardens being carried out:

On 8 August 2019 the Secretary of State stated that “The National Holocaust Memorial and Education Centre has the complete and unshakeable support of the Prime Minister and I.  It is a project of exceptional national significance”;

The Government has a manifesto commitment to “support the construction of the planned UK Holocaust Memorial”;

The Prime Minister is personally committed to its construction, saying in his speech at the Holocaust Memorial Day service on 27 January 2020 that “I will make sure we build the National Holocaust Memorial and Education Centre”;

When it appeared that Westminster City Council might oppose the development, the Secretary of State said (as quoted in the Jewish Chronicle for 6 February 2020) that “the naysayers on that project will not succeed. We will build that memorial — let me promise you that.”

The Trust contends that these statements go far beyond a mere predisposition in favour of the development proposed and that they show unequivocally that the Secretary of State and the Prime Minister as well as the Government “remains implacably committed to” the Secretary of State’s project, regardless of any objections to the application which the Secretary of State has to determine that any “naysayers” may have.

The Trust contends that the statements highlight the stark conflict of interest that the Secretary of State has placed himself in by calling his own application for development in for his own determination and then not taking steps to entrust the decision on the application to an independent Inspector.

It is to be noted that if the application had been left to be determined by Westminster City Council, and they had refused it as they were minded to do, then their refusal could have been the subject of an appeal in the usual way, with an independent Inspector as decision maker.

Where the competent authority for the purpose of that directive is also the developer, article 9a of Directive 2011/92/EU (as amended by Directive 2014/52/EU) requires Member States “at least [to] implement, within their organisation of administrative competences, an appropriate separation between conflicting functions when performing the duties arising from [the] Directive”.

Reg. 64(2) of the EIA Regulations merely provides that “where an authority or the Secretary of State, is bringing forward a proposal for development and that authority or the Secretary of State, as appropriate, will also be responsible for determining its own proposal, the relevant authority or the Secretary of State must make appropriate administrative arrangements to ensure that there is a functional separation, when performing any duty under these Regulations, between the persons bringing forward a proposal for development and the persons responsible for determining that proposal.”

This does not itself establish any framework containing legal rules that will ensure the functional separation between part of the Secretary of State’s department discharging the duties of the competent authority under the Regulations and part of it involved with any proposal for development by him. It leaves it to the Secretary of State to make unspecified administrative arrangements subsequently.

The Trust contends that case law of the Court of Justice of the European Union establishes that such an approach is not sufficient as a method of transposing into national law a requirement to establish functional separation between decision makers and others within the same legal entity when that entity is interested in the decision to be made, see eg C-205/14 European Commission v. Portuguese Republic and C-530/16 European Commission v. Republic of Poland.

In the case of the Holocaust Memorial and Learning Centre application, the Secretary of State has made available a summary of certain “handling arrangements” proposed for the decision on the application, with the following main features:

• the Housing Minister, Christopher Pincher MP, is to be responsible for exercising the Secretary of State’s functions in respect of the determination of the planning application for the Memorial;
• advice and information on planning casework relating to the Memorial “will not be seen” by any other Minister;
• no other Minister or their special advisors will be able to “require” any official working on the application to disclose information relating to the case to them or any other person;
• no information or submission “concerning the Holocaust Memorial Foundation more generally” is to be “shared” with the Housing Minister or his private office officials supporting him on the application;
• “named officials” at Executive Team level and Director level as well as junior levels across the Department (who are not identified) have been “identified to deal with” the application and “specifically ‘insulated’ [in an unspecified manner] from any involvement with the Holocaust Memorial Foundation, or matters pertaining to the delivery of the project”;
• without authority at Executive Team Level, information relating to the planning case work case [sic] must not be disclosed or discussed with any person not previously identified;
• a list of officials and Ministers who must not see the material relating to the handling of the case is “also in place”; and
• unspecified “detailed practical arrangements have been put in place to ensure the separations set out above are maintained, including a creation of a log/record of all officials who have advised on/had responsibility for the application.”

The Trust contends that how these aims are proposed to be secured in practice is opaque given the absence of detail in the summary note. So, it says, is the question whether (or not) some differences in the wording of the measures summarised are significant. The Trust contends that they do not appear to create separation between entities in the Secretary of State’s department that meet the relevant requirements for an appropriate separation between conflicting functions within it. For example, the Trust points out:

The mere risk that the Minister may be subject to political pressure from, or that his promotion prospects may be influenced by, his hierarchical superior is incompatible with the relevant requirements, even if he is not subject to any direct instruction. The arrangements do not in fact expressly prohibit any such direct instruction. But in any event they do not exclude the risk of political pressure from the Secretary of State in practice nor could they realistically exclude the fact that the Minister might consider that his promotion prospects might be affected, depending on his decision, by the Secretary of State and the Prime Minister, his hierarchical superiors, who are both committed to the proposed development.

Those assisting the decision maker must also not be integrated with the office of that part of the competent authority interested in the project in a way that might also expose them to pressure: they should not be subject to its supervision and their promotion prospects should not be capable of being influenced by it. It may well be that senior officials involved with the project are the hierarchical superiors of the named officials or some of them and that they and the Secretary of State may have an influence over their promotion prospects.

The Trust says that it thus retains a legitimate concern about the absence of transparent and objectively verifiable arrangements meeting the requirements of article 9a of the Directive.

The Trust awaits the decision of the High Court on its application for permission to apply for judicial review.

Meyric Lewis is acting for the Trust, together with John Howell KC, instructed by Richard Buxton.

See further the related coverage in the Sunday Times for 21 June 2020.