High Speed Rail (London - West Midlands) Bill Contents

8Recommendations for future hybrid bill procedure

Hybrid bill procedure

382.Infrastructure projects require proper scrutiny, and a new national railway network demands particular public attention and involvement. The Government has accepted that there are legal obligations in relation to such involvement.75

383.Although other evaluation mechanisms are possible, there are some advantages to the hybrid bill route. First, each Chamber of the national legislature has more than one opportunity to consider the principle of the project set out in the Bill, and can amend its provisions. Second, there is parliamentary scrutiny of the Bill’s provisions in a public bill committee of each House. Third, select committees of each House consider detailed complaints against the Bill in the form of petitions from specially adversely affected parties. Those select committees have wide powers to direct changes to the hybrid bills: by refusing to proceed if they believe the promoting public body is being obstructive, committees can exert political pressure for change, even if that change is outside their strict remit. Fourth, decisions are made by politicians with an understanding of the needs of, constraints on and realistic options open to the Administration, and—given their experience dealing with their constituents—an understanding of the needs of petitioners. Last, putting overall direction of the project in the hands of primary legislators gives potentially greater procedural flexibility: through the legislature, the Administration can do what needs to be done to accommodate particular circumstances. Decisions in Parliament are less susceptible to legal challenge.

384.We acknowledge several criticisms of hybrid bill process. Notable among these are that many of the current petitioning procedures and hearing arrangements have been inherited from previous eras and are no longer fit for purpose. Some have taken also the view that the Administration has rather too much sway over the process and its timing. (Notwithstanding what we say about select committees having power to dig their heels in, the exercise of that power has in practice been limited.) The process requires a huge time commitment from the politicians appointed to the select committees, which has a severe impact on their other duties. Recruitment to those committees may become very difficult.

385.We note three more specific problems with the current hybrid bill process. One is that the select committee charged with hearing petitions does not come into being until petitioning is effectively already happening. This means that the committee has no opportunity to determine the early procedures that will apply to the very subject matter it will be dealing with, including in the build-up period during which petitioners are already organising and drafting. A second, related, problem is that petitioning happens without sufficient guidance on who should petition, and what about. This certainly results in an inclusive process. It can be seen as too inclusive. There should be less petitioning, with more focus on serious detriment. Clearer, and authoritative, guidance is needed on what constitutes locus standi—that is, what will result in a right to be heard on a petition. The third problem is that there is simply far too much repetition of the same issues before the Committee. There is a conception, based on our experience, that weighing in with another angle on the same point will help strengthen a case. It does not. If some believe that there is a democratic right for everyone who wants to show up to have their say to repeat issues for as long as it takes, they are wrong. Such a conception does not serve the democratic process.

386.Although the number of petitions deposited against the HS2 Phase One Bill did not break records (that honour goes to the Channel Tunnel Bill),76 we have broken records with the number of petitions we have heard and with the Committee’s number of sitting days. We do not believe that spending nearly two years on this process is sensible or sustainable in terms of recruitment of future hybrid bill committee members. Nor is it necessary or indeed helpful to petitioners.

387.Some suggested that we should be open to hearing as many variations on the same themes as there were exponents of those themes. We learned that there are diminishing returns from such an approach. For instance, though we have said that there are serious issues to be addressed around the HS2 project’s use of roads in Buckinghamshire, we had more than got the message about each potential problem after the tenth repetition.

388.There are ways to address these problems through some quite easily achievable procedural changes.

The petition deposit process

389.At present, a fee of £20 is charged to each petitioner. Petitions must be deposited in person in Parliament, or through an agent, who must also attend in person, or through a Member. The burden on Members of collecting and depositing petitions from petitioners who decide not to make the journey personally is substantial. Petitioners have to come back again, possibly more than once, if they want to petition against an additional provision. Although deposit in person provides some limited opportunity for checking, and for obtaining procedural advice, it seems hard to justify given the travel expenses incurred by petitioners who do not delegate the job to their Member of Parliament, and the highly constrained time available for checking in the final days of petitioning deposit, when hundreds of petitions can be received each day. In many cases, travel costs exceed the £20 petitioning fee.

390.The defenders of the current system argue that it deters speculative or spurious petitions and continual amendment of petitions by petitioners who realise they want to include another point. It should be possible to design a new system which is not dependent on personal attendance at Westminster but which retains safeguards. Such a system should almost certainly be electronic. (In this context we note the successful introduction in the last Parliament of a “portal” for the electronic submission of written evidence to select committees.) A new system could allow some limited scope for petition amendment in the light of changed circumstances; say, once, a sensible number of weeks before the relevant hearing.

391.On the question of petitioning fees, for our part we favour retention of a deposit fee to discourage speculative or spurious petitioning. The financial impact can be reduced by sharing the cost of a petition, for example between members of residents associations.

392.Many have commented that the traditional petitioning language required is old-fashioned and off-putting. To make the process more inclusive, the language used in hybrid bill petitioning can be brought up to date, in line with changes agreed by the House for public petitions. That this has not happened before is a function of the recent relative infrequency of hybrid bills. We also believe there would be merit in revisiting the somewhat Victorian language and complex architecture of the private business standing orders, from which much of the hybrid bill procedure derives, to bring that up to date and make the standing orders more accessible. With the prospect of several more hybrid bills in the near future, these and other procedural updates will be worthwhile, and needed.

Rights of audience

393.The Promoter, in deference to the Committee, initially took a cautious approach to locus standi challenges on the Phase One Bill and challenged only 24 out of 1,918 petitions. This was understandable; at the start of proceedings and without the benefit of a recent comparable hybrid bill on which to base its decisions, a hybrid bill committee could be expected to want to show latitude to petitioners. (On Crossrail, the promoters challenged no petitions at all.)

394.With the benefit of nearly two years’ experience, we believe that there should be a stricter approach to locus standi. Past convention has been that hybrid bill committees should make their own determinations on locus. (This is different from the practice in relation to private bills, where a separate committee, the Court of Referees, makes such decisions.) The current method could be retained, or replaced by a different mechanism. We believe that it is a priority that strong guidelines on acceptable locus should be set out before the establishment of the Committee and before petitioning starts. This would make the “terms of trade” much clearer to all parties. Such guidelines could, for instance, establish distances from the Bill works whereby petitioners beyond those limits could expect to have their locus challenged and the challenge upheld. They could also illustrate instances where locus will almost certainly not be upheld, such as where petitioners no longer live in the area, are petitioning from abroad, are in effect suggesting changes to general transport policy, or are complaining about possible service impacts or nuisances that are common to the wider travelling public or the public generally. Similar guidelines should be established on what constitutes locus standi to object to an additional provision. Additionally, guidelines could spell out that generic objections about local effects are better made in one petition from a single representative group, or a few such groups, than in multiple repetitive, ‘template’ petitions.

395.Whatever vehicle is decided on for agreeing the guidelines on locus standi, when it comes to the process of deciding on challenges brought by the Promoter we would emphasize the importance to efficient process of the locus standi challenge process taking place in writing as far as possible. In our view, the House authorities should recommend locus guidelines, consider the locus challenges and recommend decisions for the Committee, which could then review those decisions and hear any locus challenges orally if it wished.

Hearings and programming

396.At present, the powers of hybrid bill committees are somewhat indeterminate, at least partly because they derive from the standing orders relating to private business, which do not always mesh neatly with hybrid bill practice. The position is not helped by the fact that the last thorough review of practice in hybrid bill committees was nearly 70 years ago, in 1948.77 (The phrase “hybrid bill” does not even appear in the standing orders of either House.) This situation is unsatisfactory. It opens the committee and its supporting advisers to a barrage of questions about scope of powers. It would be better and fairer to have greater certainty from the outset.

397.The application of private business standing orders and Court of Referees’ rules to hybrid bills should be clarified. The present conventions, such as those on applicable time limits, lack transparency and cause confusion. We thank Joe Rukin of Stop HS2 for drawing our attention to this. There should also be more practical rules for appointing representative agents. Roll B formalities, such as the certificate of respectability, are redundant and should be simplified, and there should be scope for a petitioner to appoint more than one agent to accommodate business availability, vacation arrangements and sickness.

398.Much greater clarity about the powers of the committee would help bear down on the amount of time spent in committee, and ensure that time was spent as effectively as possible. The aim should be to ensure that lead organisations, residents associations and other seriously affected individuals and bodies get to set out their points fully, while those who wish merely to reinforce points already made may do so only within an allocated time, or after agreeing to group together. Hybrid bill committees should have express discretion over programming, including in choosing lead petitioners, imposing time limits, and grouping together of petitioners. Committees might be given discretion to appoint a programming sub-committee to hear representations on such matters. This overall approach would act as an additional disincentive to so-called ‘template’ petitioning from those who arguably use the petitioning process more as a way to register an objection on principle than because they are themselves particularly affected. Such petitions could be strictly programmed and/or grouped.

399.Although petitioners understandably wanted to vent some spleen about the impact of the HS2 project, we heard too much reciting of past history for the sake of it. We believe the Chair should have an express power to direct the order of addressing the committee between petitioner and promoter, so that where appropriate the promoter could open and explain any points that have become non-issues. Committees should also have an express power to restrict the volume of evidential submissions and the numbers of witnesses. If committees had that power, they could choose to use it sparingly, given its deterrent effect. The lack of such a power meant in our case that hundreds of pages of evidence were submitted that have seldom been referred to, with occasional parades of witnesses who, with due respect to their enthusiasm and commitment, were not always witnesses on a point of fact but, rather, supporters of a point of view.

400.At present there is no provision for allowing petitioners to make their ‘appearances’ in writing. To make even a simple independent point, petitioners must appear in person or otherwise forsake any appearance. This is unfair on such petitioners and should be changed. If petitioners perceive no disadvantage in making a written submission rather than appearing in person, then their judgment should be respected. Putting it the other way round, it may be that oral submissions should be restricted to those principally affected.

Decision making

401.At several stages during our proceedings, questions were raised about whether we could or would issue preliminary determinations before having heard all relevant petitions, including petitions on additional provisions. We accept that the starting point should be to hear all relevant arguments on an issue before announcing a determination. However, we believe there are cases where, once the major exponents of an argument have been heard, the likely sensible conclusion becomes obvious, and to delay a determination - and thus decision - might incur financial cost. We believe there may be merit in giving future hybrid bill committees should be given an express power to issue preliminary decisions.

Conclusions on procedural reform

402.We leave it to others to determine the means by which the kind of reforms we have outlined above might be implemented, but one simple approach could be a revision to standing orders allowing delegation of certain procedural powers to hybrid bill committees. We urge the House, and Ministers, to consider such changes in good time before the next hybrid bill is introduced. Suitably drafted, such revisions should make the process simpler and less time-consuming, without affecting the Government’s need to get its legislation through or of petitioners to make their case effectively.

403.Lest it be thought that these reflections indicate dissatisfaction with all those who addressed us on their petitions, we state that we have particularly appreciated the knowledge, commitment and contribution of many local representative groups, including parish councils and residents’ associations. Many who appeared before us clearly made huge efforts to persuade by succinctness, relevance and acute observation. We applaud their immensely hard work.

Conclusions

404.HS2 will profoundly transform this country’s railway network. It is right to have processes—albeit they should be proportionate—to allow those adversely affected to voice their concerns and complaints and seek design improvements and redress. The task of dealing with nearly 2,600 petitions (of which nearly 1,600 were heard) was a challenging one for the Committee and its staff. It required many sitting hours, much behind-the-scenes negotiating, a degree of flexibility from petitioners on appearance dates, and a great deal of work from them in grouping their cases and in researching and presenting arguments. In many cases, there has been a substantial financial cost in preparing submissions, as well as an emotional cost. We are grateful to all those whose efforts helped achieve the task within a period that ensured fair scrutiny.

405.We wanted to see a fairer, broader and more efficient compensation system for those affected by the proposed railway. Through the efforts of parliamentary colleagues, petitioners and others, we heard of some severe difficulties with compensation and shortcomings in the available schemes. We recognise that we will not have satisfied those who wanted radically different compensation structures, but the modifications we have prompted should go a long way toward achieving a more just and appropriate framework.

406.There may be better ways for the scrutiny process to operate in future. We have suggested some. We invite those concerned, including colleagues in the Lords who will undertake a similar task to ours, to reflect on them. As far as our own task is concerned, we have endeavoured always to be sympathetic, even when we did not agree that we should intervene. Where we believed there was unfairness or scope for sensible improvement, we directed change. We believe the proposed railway will be a better one thanks to the improvements and compromises that the select committee process has brought about. The Bill goes forward for further consideration and for decisions by this House and the House of Lords.



75 See the environment section of the route-wide chapter

76 The Committee on the Channel Tunnel Rail Link Bill heard some 260 petition cases of 993 deposited. The Committee on the Channel Tunnel Bill heard some 660 from 4,835 deposited.

77 Report of the Committee on Hybrid Bills (Procedure in Committee), HC 191, 1947–48




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Prepared 29 February 2016