Members of the Stonehenge Alliance, protesting outside a Highways England Stonehenge Tunnel consultation at the Society of Antiquaries in 2018.
Andy Brockman looks at the implications of the decision in the High Court to quash consent for the controversial Stonehenge Tunnel.
At its best the Law has a way of cutting through the weeds of obfuscation to deliver verdicts which are both clear and even, on occasions, brutal. Todays judgement in the Judicial Review of the decision by Transport Secretary Grant Shapps to override the advice of independent inspectors and give the go ahead for the controversial short tunnel option in upgrading the A303 in the Stonehenge and Avebury World Heritage Site is just such a verdict. Indeed, on the face of it the disparate groups, including the Stonehenge Alliance, who are operating under the banner of Save Stonehenge World Heritage Site Ltd and their legal team from Leigh Day, have won a remarkable victory and potentially a far reaching one, with the Judge finding that the Transport Secretary had acted unlawfully in granting the Development Consent Order for the project. The decision also leaves an archaeological community, which has already been divided by arguments about the ethics and practicalities of the project, and concerned about the attempts to co-opt the anti-tunnel cause by members of the Far Right, wondering what will happen next to the pipeline of jobs and research which the archaeological mitigation commissioned by Highways England had promised to deliver over a period of years.
In essence the Judge found that the Secretary of State for Transport [SST] Mr Shapps had not properly considered the impact of the A303 project on all heritage assets in the affected part of the Stonehenge and Avebury World Heritage Site individually in that he,
“…was not given legally sufficient material to lawfully carry out the ‘heritage’ balancing exercise required by paragraph 5.134 of the NPSNN [National Policy Statement for National Networks] and the overall balancing exercise required by s.104 of the PA 2008 [the Planning Act 2008]. Those balancing exercises required the impacts on significance of all affected assets to be weighed by the SST”
The Judge went on to add that the significance of this was that,
“…the additional effect of that legal error is that the planning balance was not struck lawfully”.
A second fatal legal error lay in the failure of the Secretary of State to properly consider alternatives to the short tunnel and dual carriageway option adopted by Highways England, including the so called long tunnel option advocated by the World Heritage Committee. watchdog.
Justice Holgate was scathing in his treatment of this omission by Mr Shapps, stating,
“In this case the relative merits of the alternative tunnel options compared to the western cutting and portals were an obviously material consideration which the SST was required to assess. It was irrational not to do so”
To avoid any sense that these were trivial matters Judge Holgate also emphasised in his conclusions that either of the two grounds he upheld would have been legally fatal to the Secretary of State’s consent.
Summing up the effect of Judge Holgate’s decision, solicitor Rowan Smith of the instructing law firm Leigh Day said,
“This is a huge victory, which means, for now, Stonehenge is safe.
The judgment is a clear vindication of our client’s tremendous efforts in campaigning to protect the World Heritage Site. The development consent for this damaging tunnel has been declared unlawful and is now quashed, and the Government will have to go back to the drawing board before a new decision can be made.
Meanwhile, one of the country’s most cherished heritage assets cannot be harmed.”
Thanks to the work of the campaigners, and to Judge Holgate’s decision, the A303 Stonehenge Upgrade now has to not only survive this legal setback, which seems to require Mr Shapps to consider properly developed alternatives to the current plan, including the so called long tunnel and an alternative southern bypass route avoiding the World Heritage Site, it also has to survive likely fresh commitments to carbon reduction arising from the COP26 conference in Glasgow and a post Covid Government spending review where the Treasury will be looking for big ticket items to cancel in order save cash.
With the even a project as high profile as HS2 appearing to suffer this fate, the Government’s already fiendishly expensive and environmentally controversial Road Investment Strategy 2 [RIS2] programme, of which the A303 upgrade is a part, is an obvious next candidate for Chancellor Rishi Sunak’s blue pencil.
However, at least in public Highways England remain convinced that their project is viable and proper, releasing a statement to the media which included the following observation,
“This is a setback, but we remain confident our project is the best solution to the ongoing issues along the A303 past Stonehenge and was developed after a long and extensive collaboration with our key stakeholders.“
Of course, this ignores the uncomfortable fact that Mr Justice Holgate found that Mr Shapp’s decision process was fatally flawed on two grounds. While another key stakeholder, UNESCO, which awards [and removes] World Heritage Site status on the basis of Outstanding Universal Value [OUV] might disagree that the A303 project was developed by collaboration. The United NAtions body has warned consistently that the Outstanding Universal Value of the Stonehenge landscape would be irrevocably damaged by the short tunnel and dual carriage way, to the extent that the UK Government was warned explicitly that World Heritage Status would have been put at risk if the project went ahead, but was roundly ignored.
On the day the judgement was issued Dr Mechtild Rössler, the director of the UNESCO World Heritage Centre, was quoted in the Guardian as saying,
“What I would like to see for the future of world heritage [is] that everybody is in the same boat.
That includes developers to be better aware of what the values of the sites are so that projects don’t threaten the OUV [outstanding universal value] of these places. That is a challenge we have everywhere and we have it also in the UK.”
That said, in their statement Highways England added also that,
“We are hugely disappointed by the decision, and we know this will also dismay many people in the local community who have waited decades for a solution and all those who use the road to travel to work or on holiday in the south west.“
And there most people who have followed the saga of the Stonehenge tunnel would concede they do have a point.
The A303 has been long acknowledged to be a problem, with periods of severe polluting congestion made up of a mix of local traffic and traffic using the road as a trunk route to and from the West of England.
And many agree Stonehenge itself deserves better. It is just what that “better” is which is the problem.
However, the principle debate in July 2021 is whether a tunnel and dual carriageway is a 20th century solution shoehorned into a twenty first century transport environment which is undergoing major and rapid changes in demand and technology, all against the background of the climate emergency.
And it is here we need to examine the seventy seven page judgement handed down by the Honourable Mr Justice Holgate with care.
Save Stonehenge World Heritage Site Ltd sought a Judicial Review on a number of grounds, but in the event, as we have seen, Judge Holgate found in their favour on just two.
It is also important to point out the limits of Judicial Review.
As is stated in the decision,
“The present judgment can only decide whether the decision to grant the DCO [Development Consent Order] was lawful or unlawful. It would therefore be wrong for the outcome of this judgment to be treated as either approving or disapproving the project. That is not the court’s function.”
From this it is clear that the decision of Judge is not a verdict on the project as a whole and therefore certainly not on the archaeological project design so painstakingly developed by Historic England, Wessex Archaeology and other interested parties and expert panels.
Neither is it a judgement on the work which is being done currently to further the archaeological mitigation for the project, nor the work which would have been done and indeed might yet be done, by individual archaeologists who, it cannot be questioned, would have been working in a completely professional manner at the cutting edge of what is possible in archaeological project of international importance.
The Secretary of State for Transport’s consent was quashed purely because the Government and Highways England got the Law catastrophically wrong, twice.
Indeed, this highlights that one of the tragedies of the Stonehenge Judicial Review is how divisive it has been in the archaeological community, often seeming to pit academic archaeologists opposing the scheme on conservation and legal grounds against colleagues working in arms length bodies, like Historic England and the English Heritage Trust; for the a key landowner on the World Heritage Site, the National Trust, and particularly against the commercial contracting units who stood to benefit from the claimed £35 million of archaeological mitigation work on offer from Highways England.
The argument should never have been framed in that way.
The real case was always about whether the Government, latterly in the form of Secretary of State for Transport Grant Shapps, had acted lawfully first in framing the project in the way it did, and then giving its chosen outcome the, the short tunnel and dual carriageway, a green light.
Today the Honourable Mr Justice Holgate found that Mr Shapps had not acted lawfully, but instead had acted irrationally and in a way which twice fatally undermined the legality of his decision and everyone involved now lives with the consequences of that judgement.
Even as they celebrate what to many was an unexpected victory, those who fear for inappropriate development damaging the Outstanding Universal Value of the Stonehenge and Avebury World Heritage Site will probably have the nagging feeling that, like the monster coming back to life in the post credit sequence of a horror film, the bloodied arm of Highways England will reach out from the grave waiving a map of an upgraded A303, and they will have to fight again another day, possibly sooner rather than later.
Meanwhile the supporters of the Highways England plan in the archaeological world will lick their wounds, and perhaps, at least for now, rue, not just the loss of contracts which represent employment and cashflow at a time when they are sorely needed by what often seems a beleaguered profession, but also the chance to showcase their professional skills, and celebrate the cascade of new knowledge which will have resulted.
However, they cannot say they were not warned about the risks of aligning fully with the Government and Highways England before the legal processes were fully worked through. They were so warned repeatedly by UNESCO, by the campaigners and by others who took in the wider context of the controversy, so that their judgement in sticking with the project must be questioned.
However, for whatever reasons those warnings were ignored with the consequence that the proven to be unlawful nature of Mr Shapps’ decision leaves them dangling in the wind, looking, at best, like once useful greenwash in a cluster( ) of governmental incompetence, and at worst as being complicit, knowingly or not, in what many opponents of the scheme see as a conscious attempt by Ministers and Highways England to short cut and manipulate the planning rules to achieve their desired outcome, not the best outcome.
It is a harsh lesson.
Whatever follows now in the saga of the Stonehenge Tunnel, the archaeological community would do well to remember that lesson for the next time which will inevitably arise.
However good their legal representation [and Leigh Day and the other lawyers involved have played a blinder], a critical issue of archaeological ethics such as the proper treatment of the World’s most precious heritage sites should never again be left to be defended by a crowd funded alliances of environmentalists, concerned members of the public, modern Druids, and archaeologists often acting on their own in opposition to some of the organisational big guns of their profession.
This Judicial Review into the legality of a critically important heritage issue should have been brought in the public [and their own] interest by the bodies representing archaeologists and claiming to supply the scaffolding supporting the profession’s conscience through advocacy and through the publication and enforcement of codes of professional practice.
If Archaeological ethics and claims to undertake archaeology as a public good are to have any real meaning the next such case must be so fought.
And tunnel or not, the rich archaeology of the Stonehenge and Avebury World Heritage Site is still there to be researched, dug where appropriate, published and shared. What was quashed by Judge Holgate was an unlawful short cut to funding that research. Research which, many archaeologists always argued, came at too high a price anyway.