Background
Summary of Council decision:
Six issues were investigated, three were Upheld and three were Not upheld.
Ad description
A magazine ad for HS2 Action Alliance, a group opposed to the High Speed 2 (HS2) railway development.
The header on page one stated "We've charted the likely impact of HS2*. It's bad ...". Further text stated "The impact of High Speed 2† ... £33 billion capital cost ... More losers than winners ... No benefits until 2026/2033 ... Benefit cost ratio 1.6-1.9" and "Greater Anglia, Southern Western and Brighton Main Lines have much worse overcrowding than West Coast Main Line today but massive expenditure on High Speed 2 will inevitably limit improvements elsewhere. All Great Western Main Line services will be decelerated by 5 minutes because of an additional stop at new station at Old Oak Common". The page featured a map of the UK rail network with station names in various colours. A key stated the various colours represented "Clear Benefits", "Some Benefits", "Neutral", "Some Disbenefits" and "Clear Disbenefits". Some stations were also numbered between one and four. Small print stated "*Basis of the maps is available on HS2AA website" and "†Benefit cost ratio and 2033 high speed service pattern sourced from ‘Economic Case for HS2: Updated Appraisal’ published by the Government in January 2012".
The header on page two stated "... the '51m* Alternative' is good news for everyone". Further text stated "The impact of the '51m Alternative' ... £2 billion capital cost ... No losers ... Benefits from 2017 ... Benefit cost ratio 5.17† ... No service cuts to existing network", "West Coast Main Line (WCML) ... Increased long distance and commuter capacity ... Some faster journey times" and "Midland Main Line ... Electrification ... Increased capacity ... Improved journey times ... Capital investment available for other, more overcrowded routes". The page featured a map of the UK rail network with station names in various colours. A key stated the various colours represented "Clear Benefits" and "Potential Benefits: Investment available for other routes". Small print stated "*51m are the group of 18 local authorities opposed to High Speed 2" and "†Atkins report for Department of Transport".
Issue
Yes to HS2 challenged whether the following claims were misleading and could be substantiated:
1. the "Disbenefits" for the stations and lines shown on page one;
2. "Greater Anglia, South Western and Brighton Main Lines have much worse overcrowding than West Coast Main Line today but massive expenditure on High Speed 2 will inevitably limit improvements elsewhere";
3. "All Great Western Main Line services will be decelerated by 5 minutes because of an additional stop at new station at Old Oak Common";
4. the "Potential Benefits" for the Great Western Main Line, Brighton Main Line and South Western Main Line on page two;
5. "£2 billion capital cost" for the '51m Alternative'; and
6. "Capital investment available for other, more overcrowded routes."
Response
HS2 Action Alliance Ltd (HS2AA) said they went to great lengths to prevent misleading readers who saw the ad, as well as providing easy access to their assumptions and further information. They said the reference to where further information could be found on their website was prominently displayed, via an asterisk in the header to a footnote on page one of the ad. They said they focused as far as possible on undisputed facts, and were fair to the facts by referring to the "likely" impact. They also took into account the audience for the ad. The magazine was targeted at decision makers and opinion formers, and the ad was placed within an interview with the Secretary of State for Transport. They therefore believed that readers who saw the ad would be likely to have heard of HS2, be aware of the consequences of spending choices and the concept that spending public money on one programme usually meant less money available for another, and would be familiar with using the internet to find out more information.
1. HS2AA said it was inevitable that train services on existing main lines affected by HS2 would suffer a reduction in service frequency, as current services would clearly not be sustainable when the trains would no longer carry end to end traffic. The HS2 business case assumed all long distance travel between the cities served by HS2 would transfer to the new line. They provided HS2 consultation documents which referred to the withdrawal and reduction of some long distance services. They also provided evidence that savings as a result of these service reductions were part of the business case for HS2. They said plans published by HS2 in 2010 gave details of the reduction in frequency of existing West Coast Main Line (WCML) services from Birmingham to London. They showed a reduction from three trains an hour to one an hour, with journey times extended by ten minutes. They said the full details of how each station either benefited or disbenefited from HS2 was available on their website, as stated in the ad. Some stations labelled as "clear disbenefit" would see a reduction in overcrowding, but this would have to be balanced against a severe reduction in services. A number of the stations labelled "clear disbenefit" were located in councils which were members of 51m, a group of local authorities opposed to HS2. They said some councils involved were not directly affected by the construction of the route, but were concerned about the potential long-term deterioration of their existing train services.
In relation to the Great Western Main Line (GWML), HS2AA believed there was a clear disbenefit to an additional stop at Old Oak Common. They said that a number of different organisations, including train companies and pro-HS2 groups, agreed it was not the best solution and that there may be disbenefits They also pointed out the value which the Department of Transport placed on every minute of journey time. They believed that few passengers would benefit from the additional stop, as most would either already have existing direct routes which were quicker or would be travelling through to central London.
HS2AA said the potential disbenefits to other routes, such as the South Western, Brighton and Greater Anglia Main Lines related to the probable lack of investment funding available for major capacity enhancements on these routes due to spending on HS2, despite their significantly higher levels of overcrowding. They provided 51m's assessment of the national capacity and service disbenefits of HS2. They believed it was irrefutable that the overall amount of public funds available for expenditure was limited, as was the total amount of public funds to be spent on the rail network, and therefore HS2 was a competitor for funds against other transport investment. They also pointed to a decrease in the Department of Transport's capital budget in real terms announced in the 2010 Government Spending Review.
2. HS2AA provided evidence, which they said demonstrated the higher level of overcrowding on the Greater Anglia, Southern Western and Bright Main Lines compared to the WCML. They acknowledged it was difficult to find impartial sources on the topic of potential spending decisions, and said they took a common sense approach but also relied on statements by Government. They pointed out that tax resources were not infinite and that public expenditure was also under particularly close scrutiny due to the current economic situation. They said the 2010 spending cuts affected transport, alongside other departments, and that only certain transport projects were protected from funding cuts. It was clear that a number of routes, including the Great Eastern Main Line (part of Greater Anglia), South Western Main Line and fast Brighton Main Line services, were already running at or close to the maximum length and frequency achievable with the current infrastructure. They believed additional capacity on these services could only be provided with major additional funding, and that the scale of expenditure envisaged on HS2, and the statements of the Chancellor during the 2010 Spending Review regarding what he was prepared to fund, meant such improvements would be impossible. They also referred to statements made by the Government on affordability, which they said indicated expenditure on HS2 would affect other rail funding.
3. HS2AA said Department for Transport and HS2 Ltd documentation had consistently indicated that GWML services would call at the new Old Oak Common station, and provided evidence to support this. This meant that services to Paddington would inevitably be lengthened by approximately 5 minutes as a result. They also said technical analysis carried out by 51m, which they provided, indicated that intensive use of Paddington's two "fast" tracks meant all services on the route would be decelerated, even if some services were not scheduled to stop at Old Oak Common. They said that HS2 would not confirm what services would stop at Old Oak Common, but that they had also considered analysis by independent consultants and a pro-HS2 lobby group when making the claim. They also said HS2 had not specifically disputed the conclusions of 51m on this point. They said the basis of the maps available on their website, and pointed to in the ad, made clear the claim was based on analysis by 51m. They believed readers would understand "Great Western Main Line" to refer to inter-city services only, as opposed to commuter trains or the Heathrow Express service, and pointed out that all the stations on the map were served by fast inter-city services.
4. HS2AA did not believe the ad implied the 51m Alternative would directly benefit the Greater Anglia Main Line, Brighton Main Line and South Western Main Line. They said the ad clearly listed the three benefits provided by the alternative plan under the header "The '51m Alternative'", and that these referred to improvements on the WCML only. They said they chose the word "potential" with care, to refer to possible, as opposed to likely benefits. They pointed out that the ad referred to "potential benefits" for the lines in question, rather than "clear benefits", and that this was followed by "investment available for other routes". The page separately stated "capital investment available for other, more overcrowded routes". They believed the ad made clear that the potential benefits were that, should £33 billion not be spent on HS2, investment funding was potentially available for these other routes, particularly given the much lower cost of the 51m Alternative and the widespread acknowledgement of overcrowding on other routes. They believed such a concept would be familiar to prospective readers who saw the ad.
5. HS2AA said the figure of £2 billion was derived by the 51m group from figures given in a Department of Transport report on alternatives to high speed rail and subsequent updates, including additional cost estimates by Network Rail. They said 51m did not consider their alternative plan required all the work suggested in the report on possible alternative packages, and provided evidence of how 51m had costed their plan, of which the capital cost was slightly below the £2 billion quoted in the ad at £1.837 billion.
They did not believe the ad implied the cost of the 51m Alternative included the electrification of the Midland Main Line. The text describing the plan under the heading "The '51m Alternative'", did not refer to improvements on the Midland Main Line, and that the line's stations on the map were shown as "Potential benefits: Investment available for other routes" not "Clear benefits". They said the text referring to the Midland Main Line was simply an illustration of one of the listed impacts of the 51m plan, showing an alternative investment possibility. They said there was evidence of a positive financial case for electrification of the line, but that at the time the ad appeared they believed the HS2 project was likely to inhibit improvements to the line. They said that the electrification of the line was a long running issue and believed that readers that were potentially most affected would be well aware of it. They said the electrification was an entirely separate issue to that in the ad and they did not suggest it was ever part of the 51m Alternative. After the ad had appeared, the Government had announced funding for the electrification of the line and so they did not plan to refer to it in future ads.
6. HS2AA believed it was reasonable to suggest that significant capital investment funds may be available for other routes in the network, should £33 billion not be spent on HS2. They said that clearly there could be no certainty on the level or application of future public expenditure, but did not believe the ad implied such a level of certainty or that the target audience would interpret it in that way.
Assessment
1. Upheld
The ad included a large amount of information, and also highlighted to readers that the basis for the maps was available on HS2AA's website. Some of the stations marked on the map as "clear disbenefits" were marked with a number which tallied with a key giving further information about the disbenefits. Although it was clear from the ad that it was from a pressure group opposed to HS2, the CAP Code required advertisers to ensure objective claims that were capable of substantiation did not mislead, and that ads must not imply that expressions of opinion were objective claims. The ad was headed "We've charted the likely impact of HS2. It's bad ..." and then presented a map where the majority of stations were coloured red to signal "clear disbenefits".
The ASA considered the evidence provided by HS2AA in relation to the stations shown as suffering "some disbenefits" and "clear disbenefits".
In relation to the Greater Anglia Main Line, Brighton Main Line and South Western Main Line the basis for the claim was that the lines were currently very overcrowded, and HS2AA believed that expenditure on HS2 would mean these lines would not be improved. We considered that readers would expect the claim "clear disbenefits" due to the "likely impact of HS2" to be based on a direct impact from the HS2 project, and that the claim was misleading because it was based only on non-improvements due to other rail spending, and HS2AA had not demonstrated there would be a direct impact from the HS2 project. Although the ad did contain text stating that spending on HS2 would limit expenditure on these lines, we did not consider the ad made clear this was the sole basis for the claim regarding "clear disbenefits".
In relation to Thames Valley, South Wales and West of England stations the basis for the claim was that all journeys to and from Paddington would be decelerated by approximately 5 minutes as a result of stopping at Old Oak Common. We noted Old Oak Common was likely to be a large interchange station where a number of different rail services stopped. We considered that for some rail passengers there would be a benefit from this additional stop and interchange, and did not consider that a possible additional 5-minute journey time would necessarily have a large impact on other customers, although we recognised that its impact would vary and might be of importance to customers such as business travellers. The ad did contain text relating to the additional stop, but we did not consider it made clear this was the sole basis for the claim regarding "clear disbenefits" in relation to these stations.
In relation to the stations on the East Coast Main Line (ECML), Midland Main Line (MML) and WCML that were shown suffering "some disbenefits" or "clear disbenefits" we understood the claims were based on a number of factors. Some of the factors, including service frequency reductions, an increase in journey times due to more stops and disruption due to the reconstruction of Euston station over a seven- to eight-year period (in relation to the WCML only), were as a direct result of HS2. Other factors for some stations included non-electrification of the Midland Main Line and the failure to provide additional capacity prior to the completion of Phase 1 of HS2 in 2026. We considered it was misleading to base the claims on factors that were not a direct result of HS2, although we did note the key summarised the basis of the claim for these stations.
A footnote stated that the basis for the map was available on HS2AA's website, and that the 2033 high speed service pattern had been sourced from an HS2 Ltd report to Government in 2012. The basis for the map that appeared on the website gave details of the two Government publications used, and detailed the basis for the claims in relation to each station. The two reports referred to service assumptions and modelled HS2 services and other services using the lines which would be directly impacted by HS2 and it was these service assumptions that were the basis for the claims in relation to WCML stations. We understood that the service assumptions were not definitive and were only possible models for service patterns when HS2 was complete, but that the information was the most up-to-date evidence available. The stations also linked to a key that gave the basis for the claims. We acknowledged that it was likely that there would be disruption to WCML services as a result of the rebuilding at Euston, although the specific impact had not yet been determined. However, the map did not refer to this as a basis for the claims, and we considered that short- to medium-term service changes due to rebuilding was something readers might view differently to long-term changes, and so it was misleading not to make this basis clear.
HS2AA had been unable to access information on specific service assumptions in relation to MML and ECML services after the completion of HS2. The business case for HS2 specifically assumed that some services on the MML and ECML would be reduced on the completion of HS2, but did not go into further detail. We acknowledged that HS2 would undoubtedly impact on existing services and that the stations linked to a key that provided the basis for the claims. However, we did not consider HS2AA had provided robust evidence to substantiate the definitive claims made in relation to service changes and their disbenefits on the MML and ECML.
We also considered the overall impression the map would have on readers. Depicting the majority of stations in red under the heading "We've charted the likely impact of HS2: It's bad ..." implied that all those stations would suffer a disbenefit as a direct result of HS2. We acknowledged the ad pointed readers to HS2AA's website to view the basis for the maps. However, because the ad implied a number of stations would suffer a direct negative impact from HS2 when that was not the case and the evidence in relation to other stations was not sufficiently robust, we concluded the ad was misleading.
On this point the ad breached Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. and 3.6 3.6 Subjective claims must not mislead the consumer; marketing communications must not imply that expressions of opinion are objective claims. (Misleading advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation).
2. Not upheld
The ad stated expenditure on HS2AA would "inevitably" limit spending on other rail services. Taking into account where the ad was placed, we considered those who saw it would be aware that Government spending was hard to predict and would always be subject to change and conflicting priorities. We considered that, in the context of an ad that clearly originated from a pressure group, readers would interpret the claim as the opinion of the advertiser and not as capable of objective substantiation. We therefore concluded the claim was not misleading.
On this point we investigated the ad under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. and 3.6 3.6 Subjective claims must not mislead the consumer; marketing communications must not imply that expressions of opinion are objective claims. (Misleading advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation) but did not find it in breach.
3. Upheld
The ad stated that all GWML services would be decelerated by 5 minutes because of an additional stop at Old Oak Common. A recent document published by HS2 indicated that GWML services would stop at the new station to facilitate interchanging with other rail services. However, it did not confirm that all GWML services would stop at the station or detail the potential time impact on journeys on to the Paddington terminus. The assessment by 51m stated the journey time extension, for services stopping at the station, would be 3 to 4 minutes for commuter trains, 4 minutes for Heathrow Express and 5 minutes for InterCity trains and they had carried out their own assessment to determine these timings. We agreed with HS2AA that readers were likely to infer that the claim related to inter-city services. We considered the claim in the ad implied that, should HS2 go ahead, all GWML inter-city services would have an increased journey time of 5 minutes and that there was a high degree of certainty to the claim. We acknowledged that the basis for the claim appeared on HS2AA's website, however, we considered that in the absence of official figures from HS2 on which services would stop at the station and the time impact that would have, the ad should have made clear that the time impact estimate was the result of an assessment by 51m only. We concluded that the claim was misleading.
On this point the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. and 3.6 3.6 Subjective claims must not mislead the consumer; marketing communications must not imply that expressions of opinion are objective claims. (Misleading advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation).
4. Not upheld
The claim that the Greater Anglia Main Line, Brighton Main Line and South Western Main Lines would potentially benefit from the 51m Alternative was based on investment being available for other routes if £33 billion was not spent on HS2. The key for the map made clear that the basis for the claim in relation to those lines was "Potential Benefits: Investment available for other routes", and the map was straightforward and clear, with stations marked either dark green ("clear benefits") or light green ("potential benefits"). We considered that the ad made clear that the basis for the claim was that under the 51m alternative, investment might be available for these other routes.
Taking into account where the ad was placed, we considered those who saw it would be aware that Government spending was hard to predict and would always be subject to change and conflicting priorities. We considered that, in the context of an ad that clearly originated from a pressure group, readers would not interpret the claim as capable of objective substantiation. We therefore concluded the claim was not misleading.
On this point we investigated the ad under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. and 3.6 3.6 Subjective claims must not mislead the consumer; marketing communications must not imply that expressions of opinion are objective claims. (Misleading advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation) but did not find it in breach.
5. Upheld
The complainant believed the claim that the cost of the 51m Alternative was £2 billion was contradicted by data from Network Rail that led to an estimated cost of £3 billion. However, we understood that 51m had reviewed their estimate following this report, and did not consider all the suggested work was necessary to implement their plan. The claim related to the estimated cost of the plan drawn up by the 51m group, and we considered it accurately represented that estimate.
However, the complainant also believed the ad implied that the cost of the electrification of the Midland Main Line was included in the £2 billion cost. The text relating to the Midland Main Line followed text headed "the impact of the '51m Alternative'" and further text relating to benefits to the WCML, which we understood would be covered by the £2 billion cost. We considered the ad implied the stated improvements, including electrification, to the Midland Main Line would be a direct result of the 51m Alternative, and therefore included in the £2 billion cost. We concluded the claim was misleading.
On this point the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. and 3.6 3.6 Subjective claims must not mislead the consumer; marketing communications must not imply that expressions of opinion are objective claims. (Misleading advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation).
6. Not upheld
The ad stated the 51m Alternative plan would mean capital investment would be available for other routes. Taking into account where the ad was placed, we considered those who saw it would be aware that Government spending was hard to predict and would always be subject to change and conflicting priorities. We considered that, in the context of an ad that clearly originated from a pressure group, readers would not interpret the claim as capable of objective substantiation. We therefore concluded the claim was not misleading.
On this point we investigated the ad under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. and 3.6 3.6 Subjective claims must not mislead the consumer; marketing communications must not imply that expressions of opinion are objective claims. (Misleading advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation) but did not find it in breach.
Action
The ad must not appear again in its current form. We told HS2AA to ensure they held robust evidence to support objective claims that were capable of substantiation.
