All the Queen's horses: statutory authority and HS2

Abstract

This paper focuses on the potential impact of the statutory authority defence on HS2 once the line is put into operation. The defence was forged in the heat of the railway revolution. It protects operators from liability in nuisance in respect of certain harms resulting from exercising the statutory powers under which the scheme is authorised. However, the nineteenth century case-law established that the defence would only operate in respect of harms that are the inevitable consequence of using those powers. In common with its Victorian forebears, the HS2 project has been authorised by way of an Act of Parliament. Arguably, the HS2 Act is one of the longest, most detailed and highly scrutinised pieces of legislation in history. Nevertheless, it is argued that the scheme may cause uncompensated losses that are not inevitable. In this respect, common law actions may yet have an important role to play.