MEL winner in BNRR case

Protesters against the Birmingham Northern Relief Road have failed in their attempt to force the publication of the entire concession agreement between Midland Expressway (MEL) and the Government.

MEL claimed that the contract was commercially confidential and consequently a High Court judge refused to make the documents public in a hearing last week, referring the decision back to the Secretary of State.

However, Judge Sullivan ruled that there was no reason in law why the entire concession agreement could not be made public, and he urged the Secretary of State for Environment, Transport and the Regions, John Prescott, to reconsider making the concession agreement public. He ruled that the definition of commercial confidentiality as argued by MEL was too wide.

Delivering his judgment last week, Justice Sullivan said: "Honours were fairly evenly distributed on both sides."

On 13 May campaigners battling against plans for the BNRR began proceedings at the High Court in an attempt to force the disclosure of the confidential agreement between the Government and MEL. They argue that the toll road will generate new traffic and high levels of pollution to the green belt area and are backed by various environmental bodies, such as the Friends of the Earth, Alarm UK and the World Wildlife Fund.

A spokesman for MEL said: "This is not a victory for the campaigners against the BNRR, as demonstrated by the fact that the Anti-BNRR Alliance is appealing and has not been successful in recovering its full legal costs. We were pleased that Mr Justice Sullivan has chosen not to order publication of the concession agreement between HM Government and MEL, which we believe was the sole purpose of the anti-BNRR campaigners in bringing this action. Without publication, it must be considered that the Alliance has failed in its main objective.

"It has always been made clear by both ourselves and the Government that the decision to uphold confidentiality in this agreement has been to protect commercially sensitive information. The Judge has not found environmental grounds - as claimed by the Anti-BNRR Alliance - to order immediate publication.

"If the private sector cannot rely upon confidentiality in commercially sensitive situations being upheld then this would undermine the whole basis of public-private partnerships."

Richard Stein, the lawyer acting for the Alliance, said one of the lines being pursued was that Government was making a mockery of the 1990 Freedom of Access to Information on the Environment Act. The group has already lodged an appeal against the decision.

Gerald Kells, transport campaigner for West Midlands Friends of the Earth, said: "We are delighted with the High Court's decision. The ball is now in the Government's court. If they really believe in open and straightforward Government they must make the entire agreement available for public scrutiny."

The Alliance will use any relevant information in the concession agreement in its second legal challenge to get the road scrapped altogether.

A spokesman for FoE said that the case has already forced the DETR to stop the practice of Government and private business using mutually self-declared secrecy as a smokescreen to hide PFI deals behind.