Department for Transport
Zone 3/16
Great Minster House
33 Horseferry Road
London
SW1P 4DR
xxxxxx.xxxxxx@xxx.xxx.xxx.xx
Web Site: www.gov.uk/dft
Joe Rukin
[By email:
Our Ref: F0015048
xxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx;
xxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx;
25 August 2017
xxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx ]
Dear Mr. Rukin,
Thank you for the 3 information requests you made to the Department on 28 July 2017
concerning the HS2 Development Agreement. These have been considered under both the
Freedom of Information Act (“FoIA”) (2000) and the Environmental Information Regulations
(“EIR”) (2004). I can confirm that the Department holds all the information you have requested.
I have considered your request for the publication of all redacted parts of the HS2
Development Agreement signed in 2014 and the subsequent version (updated in 2017),
including the ‘Baseline Delivery Schedule for Phase One’. Following this request, I am
disclosing Annex 6 to the Development Agreement (2014 version), the “Non-Routine Advice
and Policy Support Functions Table”. This Annex was previously redacted from the
Development Agreement when it was published in December 2014, on the basis of section 35
(Formulation of Government Policy etc.) of the FoIA and 12(4)(d) (incomplete material) of the
EIR. However, this is no longer the case, therefore I have attached this as Annex A to this
letter.
The following sections of the Development Agreement that you have requested to be
published are being withheld in reliance on the exemption in section 43(2) (Commercial
Interests) of the FoIA because publishing such information would prejudice the commercial
interests of the Department for Transport and HS2 Ltd (and ultimately the taxpayer):
• Budget Envelope Definition (2017 version only)
• Protective Provisions Agreements
• Baseline Delivery Schedule for Phase One
• Baseline Cost Model for Phase One
• Budget Envelopes and Target Prices (2017 version only)
• Operational Delegations Letter
Alternatively, should this information be considered environmental information under the EIRs,
this information is being withheld in reliance on the exception at regulation 12(5)(e)
(commercial confidentiality) of the EIRs. These exemptions / exceptions require a public
interest test to be conducted. This is set out in the attached Annex B to this letter.
In keeping with the spirit and effect of the FoIA, all information is assumed to be releasable to
the public unless exempt. A copy of this response and the information provided may now be
published on the
www.gov.uk web-site.
If you are unhappy with the way the Department has handled your request or with the decisions
made in relation to your request you may complain within two calendar months of the date of
this letter by writing to the Department’s FOI Advice Team at:
Zone D/04
Ashdown House
Sedlescombe Road North
Hastings
East Sussex TN37 7GA
E-mail: xxxxxxxxxxxxxxxxxxx@xxx.xxx.xxx.xx
Please send or copy any follow-up correspondence relating to this request to the FOI Advice
Team to help ensure that it receives prompt attention. Please also remember to quote the
reference number above in any future communications.
Please see attached details of DfT’s complaints procedure and your right to complain to the
Information Commissioner.
Yours sincerely,
Philip Haslam
Your right to complain to DfT and the Information
Commissioner
You have the right to complain within two calendar months of the date of this letter about the
way in which your request for information was handled and/or about the decision not to
disclose all or part of the information requested. In addition a complaint can be made that DfT
has not complied with its FOI publication scheme.
Your complaint will be acknowledged and you will be advised of a target date by which to
expect a response. Initially your complaint will be re-considered by the official who dealt with
your request for information. If, after careful consideration, that official decides that his/her
decision was correct, your complaint will automatically be referred to a senior independent
official who will conduct a further review. You will be advised of the outcome of your complaint
and if a decision is taken to disclose information originally withheld this will be done as soon
as possible.
If you are not content with the outcome of the internal review, you have the right to apply
directly to the Information Commissioner for a decision. The Information Commissioner can
be contacted at:
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Annex A – Disclosed information from the Development Agreement (2014 version):
“Non-Routine Advice and Policy Support Functions Table”
ANNEX 6 : NON-ROUTINE ADVICE & POLICY SUPPORT FUNCTIONS TABLE
This Annex sets out the Non-Routine Advice & Policy Support Functions Table as at the date
of this Agreement.
Work package
Description of Task
Date added
1. Phase One
HS2 Ltd shall undertake a detailed review of the ‘Old
1.1 Old Oak
Oak Common Build Programme’, to establish the
Common
viability of the proposal to retain a residual First Great
December
Programme
Western facility for a period of time beyond December
2014
Review
2016.
HS2 Ltd shall support the Department for Transport
(“DfT”) negotiations with Heathrow Airport Ltd (“HAL”) to
1.2 Support
reach a commercial settlement for the relocation of the
December
for HAL
Heathrow Express (HEX) depot to Langley. HS2 Ltd
2014
negotiations
shall provide technical and commercial input to evaluate
project options to support the DfT negotiations.
HS2 Ltd are remitted to work with Transport for London
(“TfL”) and Network Rail to carry out additional feasibility
work for the WCML – Crossrail Link. WCML – Crossrail
Link project would create a link between the Great
Western Main Line (“GWML”) and the West Coast Main
Line (“WCML”) which would enable a number of
Crossrail services to be extended to destinations on the
WCML. The additional studies will include reviewing and
developing stabling locations, station works and
turnback options at Old Oak Common and at Watford
1.3 Advice on
Junction.
December
WCML Link
2014
In order to facilitate this, a revised set of Requirements,
as agreed by the Old Oak Common Joint Sponsor
Board, and initial high level demand modelling from TfL,
will be provided. As part of the overall work programme,
DfT, TfL and Network Rail will be developing: a business
case (led by DfT); more detailed demand modelling (led
by TfL); and a review of the train service specification
(led by Network Rail).
The final agreed report should be issued by 12th
December 2014.
Work package
Description of Task
Date added
HS2 Ltd shall provide advice to the SoS by way of a
‘Rolling Stock and Depots Strategy’, to support the SoS
decisions on rolling stock and depots procurement, on:
• the potential for private finance of rolling stock
and depots, in whole or in part;
• the cost and operational efficiencies or procuring
1.4 Rolling
one versus two types of train;
Stock
• the optimal fleet compositions in light of the
December
procurement
Phase Two scope;
2014
decisions
• sensitivity to Royal Assent timings for Phases
One and Two;
• phasing scenarios for the fleet introduction for
Phases One and Two;
• the optimal trade-off between journey time,
maximum speed and demands for the Railway’s
services; and
• dwell time and platform height considerations.
2. Development of Phase Two
2.1 Phase Two HS2 Ltd should work with Network Rail to prepare
consultation
advice to the SoS, as part of his consideration of the
December
responses and consultation responses on Phase Two, on potential
2014
design
refinements to the proposals for Phase Two and options
refinement
to reduce the cost.
HS2 Ltd should work with Network Rail to prepare initial
advice, in 2014, on the section of the Railway route
between the West Midlands and Crewe and the
feasibility for accelerating its construction to allow
2.2 Crewe
December
completion by 2027. HS2 Ltd should work with Network
acceleration
2014
Rail in preparing this advice. HS2 Ltd should engage
with stakeholders to ensure the evidence used and the
options being developed are widely understood and
accepted.
HS2 Ltd should work with Network Rail to prepare
advice, in 2014, on the feasibility of building a hub
station at Crewe, including the benefits that could be
delivered to the region and the cost implications to the
December
2.3 Crewe Hub Project for the connection into such a hub station. HS2
2014
Ltd should engage with stakeholders to ensure the
evidence used and the options being developed are
widely understood and accepted.
3. Future Development
Work package
Description of Task
Date added
HS2 Ltd shall work with Network Rail, DFT and
Transport Scotland to find a targeted package of high
speed and upgrade improvements that could produce a
positive outcome for northern England and Scotland, as
well as be deliverable within DfT cost pressures and the
3.1 Routes
wider HS2 Programme. The work shall also examine
Between
how a series of localised interventions could together
December
Northern
incrementally build over time towards a longer term
2014
England and
vision, for say a 3hr journey from London to Edinburgh
Scotland
and Glasgow.
This work shall be delivered by the end of 2014 and is
estimated to cost approximately £350,000.
Annex B – Public interest test – release of HS2 Development Agreement
Exemption 43 of the FoIA in full
1. Information is exempt information if it constitutes a trade secret.
2. Information is exempt information if its disclosure under this Act would, or
would be likely to, prejudice the commercial interests of any person (including
the public authority holding it).
3. The duty to confirm or deny does not arise if, or to the extent that, compliance with
section 1(1)(a) would, or would be likely to, prejudice the interests mentioned in
subsection (2).
Exception 12(5)(e) of the EIR
A public authority may refuse to disclose information to the extent that its disclosure
would adversely affect the confidentiality of commercial or industrial information where
such confidentiality is provided by law to protect a legitimate economic interest
_________________________________________________________________
Public interest test factors for disclosure
The factors in favour of publishing the redacted parts of the Development Agreement are that
this would:
• Promote accountability and transparency in the spending of public money. Releasing
detailed cost and schedule would reassure the public that tight controls are being placed
on the programme and that it is on a trajectory to be completed within the overall budget
allocation and on time.
• Reassure the public that the DfT promotes accountability and transparency for decisions
that it takes and that the Development Agreement does not include any information that
contradicts recent announcements.
• Promote accountability and transparency of HS2 Ltd
________________________________________________________________
Public interest test factors against disclosure
The factors against publishing the redacted parts of the Development Agreement concern the
effect of disclosure of commercially sensitive confidential information:
• Detailed cost and schedule information is redacted as the construction of the railway and
delivery of the rolling stock will be undertaken by private suppliers, to be determined by
competitive procurements, some of which are underway for Phase One. The HS2
Development Agreement contains the Department for Transport and HS2 Ltd.’s view of
the cost of various assets and delivery schedule which has been developed for planning
purposes. Releasing this information to the market could affect the outcome of this
procurement by causing suppliers to adjust their bids. The best value for money for the tax
payer is achieved when cost and schedule are determined as the outcome of competitive
process.
• Publishing the risk provision and annualised budgets would allow the market to understand
how much contingency is held by the Department and HS2 Ltd. Some of the procurements,
such as the Main Works Civils Contracts, are two stage contracts such that the winning
bidder conducts design work before a Target Price is formally agreed. Releasing
information on how much contingency is held could affect the incentives on suppliers to
realise efficiencies and bear down on costs.
• During construction of the railway various third parties will be affected by the construction
works. Where appropriate, the Secretary of State has entered into Protective Provisions
Agreements (“PPAs”) with affected third parties. Informing the market of who we have, and
have not, entered into these agreements with may affect the commercial position of those
companies we have not yet entered into an agreement with.
• Publishing a detailed breakdown of HS2 Ltd’s operational delegations from DfT would
reveal information to the marketplace about the negotiating position of HS2 Ltd. Suppliers
could use this to inform their bids during the procurement process, which could result in a
worse outcome for the taxpayer during the procurement process.
Decision
To release the un-redacted Development Agreement (either the version published in
December 2014 or July 2017) would damage the commercial position of HS2 Ltd and the
Department for Transport, resulting in value for money for the UK taxpayer being jeopardised.
Document Outline