Lessons from history, part 6

(… continued from Lessons from history, part 5, posted on 18 Jul 2014).

The most important thing that you can do in connection with presenting your petition to the HS2 Select Committee is to turn up on the right day, and at the appointed time. There has already been one instance of a petitioner not being in the Committee Room when called during the locus standi challenge proceedings and Committee Chairman, Robert Syms MP, was clear about his attitude to no shows:

“I think that it is very clear to the Committee that, if people are scheduled in, given the number of people in this Committee, they have a responsibility to turn up unless there are exceptional circumstances. If they do not turn up when they are scheduled in, I do not think that we should hear what they have to say, because, frankly, they are not actually taking part in the process. Unless we have an exceptional explanation at a later date when we can reconsider, we will move on.”

(paragraph 112 in the transcript for the morning of Thursday, 10th July 2014)

So you really must allow plenty of time for your journey and, if you are unavoidably detained, for pity’s sake try and get a message through by either telephoning the Commons Private Bill Office (020 7219 3250) or the Government’s parliamentary agents Winckworth Sherwood (020 7593 5000).

If you have been told to present yourself for an afternoon session then give careful consideration to attending for the whole day and being there when proceedings start, usually at 9.30am. This will allow you to be aware of anything that is said when other petitions are heard that may have relevance to your own case. It is very likely that other petitioners attending on your day will share some common themes with yours, and you may wish to say that you agree with points that have been made rather than try the patience of Members of the Committee by repeating what they have already heard. This will allow you to concentrate on any aspects of your petition that have not been covered, or where you can add to what has been said, or even take a different approach.

I would also suggest that you dress appropriately. Now I realise that I am a conventional sort of cove, but my view of what is appropriate for a man attending such an occasion is lounge suit, shirt and tie with a definite lean toward the sober rather than the flamboyant. For a lady I guess that the equivalent would be a smart day dress or suit. I appreciate that the wearing of neckties is regarded as optional for men these days, but, as you might expect, I don’t really subscribe to that particular lowering of standards.

As I mentioned in part 1 of this blog series, barring unforeseen changes, your ultimate destination upon arrival at Westminster will be Committee Room 5 in the main Houses of Parliament building. You will be required to use the main public entrance, which is known as the Cromwell Green visitor entrance. This is near the southern end of Westminster Hall, about half-way along the frontage between Elizabeth Tower (“Big Ben”) and the Victoria Tower (the Sovereign’s Entrance).

Cromwell Green Visitor Entrance (flickr:mrgarethm)

Cromwell Green Visitor Entrance (flickr:mrgarethm)

Tell the police officer manning the entrance that you are going to Committee Room 5 and move down the long sloping ramp – the start of which is just visible in the lower right-hand corner of the above photograph – towards the security check area, where airport-style checks are carried out on all visitors and you will be issued with a day pass to wear on a cord around your neck at all times whilst in the building. Queues inevitably develop here and the official advice is to expect at least a fifteen-minute delay extending to exceeding three-quarters of an hour on Tuesday and Wednesday afternoons. The official advice also says cryptically to “dress appropriately for the weather”; this is because most of the queuing time will be on the long descending ramp, which affords no protection from the elements.

Cromwell Green is the tatty area of grass immediately to your right as you queue on the ramp, appropriately enough with a statue of Oliver Cromwell at its centre. Last time I visited Westminster it was being used as a builder’s yard – will the desecration of the memory of the Lord Protector of the Commonwealth of England never end!

Once it has been determined that you do not represent an undue threat to the safety of the realm, proceed into the medieval Westminster Hall, pausing to gaze up at the magnificent hammer-beam roof that was commissioned by Richard II and is the largest medieval timber roof in Northern Europe. Climb the steps at the southern end of the hall, reflecting that you are passing the spot where Charles I stood to hear sentence of death passed upon him – there is a commemorative brass plaque set in the floor – and turn left through the doors into St Stephen’s Hall, which is actually not a hall, but more of a grand corridor. It is so called because it is on the site of the royal Chapel of St Stephen’s, where the House of Commons sat until the Chapel was destroyed by fire in 1834.

If this is your first visit to the Houses of Parliament, don’t be afraid to take your time and gawp at the magnificent interiors, an activity that will go into overdrive when you proceed through the doors at the end of St Stephen’s Hall and into the Central Lobby. Walk directly across the Central Lobby, taking care not to trip over Nick Robinson doing a piece to camera, into the Lower Waiting Hall, up the stairs and into the Committee Corridor on the first floor.

So you have arrived, hopefully in the right place and in good time. As for what happens next, that is my cliffhanger for the next part of this series.

(To be continued …)

 

 

Lessons from history, part 5

(… continued from Lessons from history, part 4, posted on 14 Jul 2014).

So what are the lessons that those of us who are planning to go to Westminster to argue our petitions in front of the HS2 Select Committee might learn from the report on a single day’s business of the Crossrail Select Committee that I presented in part 4?

I suggest that, first and foremost, we all need to prepare well for our big day. Make a list of your issues and think about who else might be petitioning on the same, or similar, topics and list these organisations also. If you have route-wide issues in your list, then perhaps these are more than adequately covered by the national campaign organisations or the national environmental charities. Your local issues may be included in the petitions of your local authorities, including your parish or town council, or your local action group. Study the petitions of each of the organisations that you have identified to determine if you have any unique points in your petition or matters that you might have covered better than the others – these would be the best topics to lead on when you present your petition.

Remember that individuals are likely to be the last in your area to get their turn. It is not clear how the Select Committee will timetable national organisations, so you may get your chance ahead of them, at least (see footnote).

Try and watch one or two of the petition hearing sessions that will be held in late July and September to get a feel of what goes on. Definitely make sure that you catch any appearances by organisations that are on your list, or study the transcripts.

Try and do as much preparation of the material that you will use in your presentation in advance as you can. Think now about maps, diagrams and photographs that you might need and identify any work that you need to do on these.

Anytime between now and when you are scheduled to appear in front of the Select Committee, HS2 Ltd (or its parliamentary agents Winckworth Sherwood/Eversheds) may contact you to discuss your petition with you – the main aim of such discussions is likely to be to give you sufficient assurances to persuade you that you don’t have to appear. Be very wary of any such assurances, or apparent concessions. You must make sure that any such assurances will be recorded in the Register of Undertakings and Assurances document, that you are told precise wording that will be recorded and that you fully understand the assurances that are being offered. The Crossrail Select Committee saw this last point as a potential pitfall for petitioners, commenting, in paragraph 36 of Volume 1 of its report that it was “concerned that the draft Register of Undertakings and Assurances, published by the Department for Transport, is not user-friendly”.

Failing an agreement that leads you to withdraw your petition, according to the note on procedure that has been issued by the HS2 Select Committee, you should expect that “shortly in advance of your scheduled appearance” you will receive a “petition response document”, or PRD, from HS2 Ltd. The lead counsel for the promoter, Tim Mould QC, was kind enough to provide his definition of what “shortly” means in his opening statement made on Tuesday 1st July (see paragraph 35 of the transcript):

“We shall issue Petition Response documents no later than four weeks before the petitioners’ scheduled appearance before the Committee.”

The PRD should set out the promoter’s response to the issues that you have raised in your petition – don’t expect much in the way of agreement with your point of view. It is likely that, rather than being drafted to address your points specifically, the PRD will make extensive use of references to a suite of “information papers” that are currently being developed by HS2 Ltd. In order to steal a march on any brinkmanship by HS2 Ltd in getting your PRD to you, it might be prudent to start to become familiar with such of the information papers that appear to be relevant to your petition well in advance of the PRD arriving.

The Members of the Select Committee each have a computer screen in front of them and we have already seen this facility in use by the promoter’s representatives to display maps, diagrams, photographs and the like when making their opening statements. As I mentioned in part 2 of this blog series, anyone presenting evidence to the Committee may make use of this facility. So if you have access to a scanner, or even at a pinch a digital camera or mobile ‘phone camera, think about how you might enhance your presentation to the committee in this way. The note on procedure that has been issued by the HS2 Select Committee requests that “evidence that you intend to use” should be received by HS2 – not you will notice the Private Bill Office – “by 5pm, two working days before you are due to appear” in order that “this information can be forwarded to the Committee members, and be uploaded for display during the hearings”. No details on formats or contact points have been provided at this stage, but presumably this information will be provided when the promoter’s parliamentary agents contact you about the arrangements for your hearing. At any rate, I will try to make further enquiries on this and will post any information that I may find out on this blogsite.

That, I think, covers all that I wish to say about preparing for your hearing, but what about the big day itself? That, I’m afraid will have to wait until the next posting.

(To be continued …)

Footnote: A further indication of the order that the Select Committee may wish to hear petitioners was given by the Chairman, Robert Syms MP, during his announcement about the outcome of the hearings of locus standi challenges given on the afternoon of Wednesday 17th July 2014. Referring to the wish of the Select Committee to hear submissions on matters of route-wide impact from the HS2 Action Alliance and Stop HS2, Mr Syms said that the Committee believed that “it would be best to hear from those groups after individuals and other petitioners” (see paragraph 137 of the transcript).

Important disclaimer: This blog is not intended to give legal advice, and I am not, in any case, qualified to provide such advice. You should not therefore rely legally on anything in this blog. If you are in doubt about any aspect of petitioning and giving evidence to the Select Committee you are strongly recommended to seek advice from a suitably-qualified professional. You should also find the staff at the House of Commons Private Bill Office helpful and unbiased (email: prbohoc@parliament.uk).

Lessons from history, part 4

(… continued from Lessons from history, part 3, posted on 10 Jul 2014).

It was the practice of the Crossrail Select Committee, that where a common theme could be found between a number of individual and organisation petitions, then those petitions would be heard in the same session. So, for example, on Tuesday 13th June 2006 the Committee heard petitioners from the Spitalfields area of London. The transcript of that day’s proceedings may be found in pages Ev 927 to Ev 972 in Volume III of the Crossrail Select Committee report.

The “house rules” were explained for the benefit of all petitioners at the start of proceedings by acting Chairman of the select Committee, Ian Liddell-Grainger MP (paragraph 9623 on page Ev 927):

“The Committee wants to hear every Petitioner’s case. However, as you know, the Committee will not listen to the same evidence being made more than once. We understand that many people here do have similar concerns. We would ask you to listen carefully to the case being made to you and other responders by the Promoters and try not to repeat, if possible, anything that has been said. If you agree with the case that is being made, you can tell us which points you support, that is absolutely acceptable, and you do not then need to repeat the argument.”

He also reminded all present that “some of the issues” had also been “already taken into account” when the petition of the London Borough of Tower Hamlets had been heard the previous week.

Eleven petitions were heard that Tuesday (46, 47, 48, 54, 107, 123, 220, 231, 324, 328 and 356). The day began with a summary of the main issues raised in these eleven petitions by David Elvin QC, counsel for the promoter (paragraph 9626 on page Ev 927 to paragraph 9642 on page EV 930). Then one of the individual petitioners, Dr Pedretti (356), made her opening statement in person (paragraph 9646 on page EV 930 to paragraph 9715 on page Ev 934) – if she had wished to call witnesses, I presume that the examination of these witnesses would have followed.

The Committee then proceeded to hear the petition of the Spitalfields Society (328) in parallel, as it were, with the first petition. The Society was represented by barrister Hereward Philpott, who made his opening statement (paragraph 9716 on page Ev 934 to paragraph 9724 on page Ev 935). Mr Philpott then called two expert witnesses: a Chartered Architect, and an urban planner. His examination-in-chief of these witnesses runs from paragraph 9727 on page Ev 935 to paragraph 9784 on page Ev 945 of the transcript.

Mr Elvin passed up the opportunity to cross-examine the two witnesses, saying that there were “a large number of misconceptions” in their evidence, which would be best challenged by calling his own witnesses (paragraph 9786 on page Ev 945).

All of that had occupied the whole of the morning session and the Committee broke for lunch, after which Mr Elvin put up two witnesses, the Director of Land and Property at Crossrail and an expert witness on sound – the examination of these two witnesses, by all parties, is transcribed in pages Ev 946 to Ev 960.

The examination-in-chief of the Crossrail Director of Land and Property by David Elvin QC is covered by paragraphs 9791 to 9818. He was then cross-examined by Hereward Philpott (paragraphs 9819 to 9890), and fielded some questions from a Member of the Committee (Kelvin Hopkins MP, paragraphs 9891 to 9895) before being re-examined by Mr Philpott (paragraphs 9896 to 9903).

The second witness – the sound expert – was subject to similar questioning by the two barristers (examination-in-chief in paragraphs 9917 to 9919, cross-examination in paragraphs 9920 to 9924).

Then Dr Pedretti exercised her right to cross-examine the two witnesses for the promoter (paragraphs 9925 to 9973).

David Elvin QC elected to defer his closing statement until after all of the day’s petitions had been heard – a statement that he never actual got to make – so the final act in the hearing of the first two petitions was for Mr Philpott to make his closing remarks on behalf of the Spitalfields Society (paragraphs 9979 to 9984).

The transcript does not provide a timing, but I would think that the session was, by now, well into the late afternoon, so it must have come as a relief to all present when the Roll B agent representing the next three petitions to be called (46. 47 and 48) announced that their points were “very similar” to those already made and that they “were not intending to repeat them again” (paragraph 9988).

Two petitions (54 and 220) were then heard together, since the petitioners’ representative was the same. He made his opening statement (paragraphs 9990 to 10007) and then promoter’s barrister Tim Mould responded with a few brief comments, generally along the lines that everything had already been covered (paragraphs 10011 to 10017). This concluded the hearing of the two petitions; the petitioners’ representative was not offered the opportunity to make any closing remarks by the Chairman.

As the Committee had, in the Chairman’s words (paragraph 10020), “been sitting … for quite some time” a short adjournment was called, resuming at 6pm.

After the adjournment a further petition (231) was heard, following very much the same pattern as the two heard together immediately before the adjournment (paragraphs 10024 to 10043). It was notable that the Chairman interrupted the statement by the petitioner three times for raising matters that had already been covered and for straying outside the remit of the Select Committee.

The presenter of the next petition (107) showed determination to talk about the failings of the promoter’s consultation process, despite the Chairman’s attempt to stop her (paragraphs 10045 to 10063). David Elvin QC, responding, said that he did “not want to get into a debate about the pros and cons of the consultation” (paragraph 10065) and she scored a notable victory, the Chairman admitting that she had “brought up some useful points that [the Committee] do need to look at” (paragraph 10066).

The penultimate petition (123) was presented by the owners of a house in Spitalfields that was “built by Huguenot silk weavers in 1724”, and which the owner characterised as with “poor foundations and was not really built to last” (paragraph 10077). Her concerns were potential subsidence, noise and passing construction traffic. Mr Mould said in response that the petitioners “have raised points that [the Committee] now have heard about in some detail”, but he provided some clarifications (paragraphs 10088 to 10092).

The final petition (324) was from the community of a local estate with a high proportion of Bangladeshi origin. This led to a discussion between the Chairman and Mr Elvin about the quality of Crossrail’s engagement with black and minority ethnic communities (paragraphs 10119 to 10122). One notable event during the hearing of this petition was that the hearing was adjourned for almost a quarter of an hour to allow Members to take part in a division in the House of Commons. Short adjournments for this purpose are a regular feature of committee life in the House of Commons.

The time that proceedings were drawn to a close by the Chairman calling the Committee to order is not recorded in the transcript, but, judging by the times recorded for the adjournment for the division, must have been about 7.30pm.

Now you may wonder why I have discussed, at considerable length, a single day out of the 84 days that the Crossrail Select Committee sat. The reason is that I feel that it is representative of what we might expect from the HS2 Select Committee and that there are a number of important lessons that HS2 petitioners can learn from this example, but I will come on to that in my next posting, which will be part 5 of this series.

(To be continued …)

Lessons from history, part 3

(… continued from Lessons from history, part 2, posted on 6 Jul 2014).

Within the “quasi-judicial” process that will be run by the HS2 Select Committee the petitioner is effectively the “complainant”, also often referred to as the “plaintiff” or “claimant”. This puts the promoter in the role of the “defendant”. Paragraph 14 in Volume 1 of the Crossrail Select Committee’s report, sets out the consequences of the petitioner’s status:

“… the onus is on the Petitioner, or their Agent, to prove that they are unreasonably affected by the Bill. It is usual in these circumstances to allow the Petitioner both the first and last words on each case.”

The Committee’s report also describes, in paragraph 15, the way in which the petitioner’s case was heard, as three steps:

  1. “… the Petitioner had their opportunity to set out their concerns and objections”.
  2. “The Petitioner was able to call witnesses in support of their case”.
  3. “The witnesses could be cross-examined by the Counsel for the Promoter, and re-examined [on points arising from the cross-examination] by the Petitioner”.

Paragraph 16 of the Committee’s report also sets out, in paragraph 16, the steps that followed to hear the promoter’s response and conclude the proceedings:

  1. “… the Counsel for the Promoter would open his case”.
  2. “… witnesses [for the promoter] could be called, examined, cross-examined and re-examined”.
  3. “The Petitioner had a right of reply”.

So you, if you present your own petition, will be required to examine your own witnesses (termed “examination-in-chief” in legal circles), who in turn must face cross-examination by a top barrister. You will also probably feel the need to react to any cross-examination of your witnesses by asking further questions on any weakness in your case that the promoter’s barrister succeeds in exposing. The note on procedure that has been issued by the HS2 Select Committee requires that “leading questions should be avoided as much as possible” during the process of examination, cross-examination and re-examination.

Effective cross-examination is a skill that can take barristers many years of experience to perfect, so don’t expect to make the promoter’s witnesses putty in your hands – they are also likely to be acknowledged experts in their field. However, you have every right to expect that you will get clear and truthful answers to your questions, so be prepared to challenge any obfuscation. It will do you no harm to consult one or two of the guides on examination-in-chief and cross-examination that are available on the web; this one is particularly clear, concise and straightforward.

In addition, the note on procedure that has been issued by the HS2 Select Committee advises that “the Committee may intervene with questions at any point”.

If you present your own case you will not be subject to cross-examination, but if someone else presents your case for you and calls you to give evidence in support of your own petition, then you become a witness and, thus, subject to be cross-examined.

If all this sounds very intimidating, and appearing in front of the Select Committee may be stressful to some, be assured that the Committee will be aware of this. The experience of Crossrail indicates that those who feel unsure of themselves, or who are unsettled by unfamiliar procedures and surroundings, will be treated with understanding and tolerance by the Chairman and Members of the Select Committee and also, generally, by the promoter’s legal team. However, anyone who strays from the compass of his or her petition and the remit of the Committee, or who’s deposition is unnecessarily long or repetitious, will be gently brought back into line. For an example of this policy in action, please refer to the transcript on pages Ev 930 to Ev 934 in Volume III of the Crossrail Select Committee report.

The Crossrail Select Committee’s report advises, in paragraph 12 that all hearings “took place in public and were transcribed and web-cast” and the HS2 Select Committee will promulgate its proceedings similarly. Judging by the practice of the few sessions that have taken place so far, we can expect live video of all sessions that take place in Westminster to be streamed on the Parliament TV website and watching one or two of these sessions is likely to be good preparation for your own day in Westminster, by familiarising you with what goes on and even, perhaps, suggesting one or two tips.

The HS2 Committee has also, so far, published “uncorrected” transcripts of its sessions the day after each has taken place; these may be accessed from the Select Committee’s  website.

(To be continued …)

Important disclaimer: This blog is not intended to give legal advice, and I am not, in any case, qualified to provide such advice. You should not therefore rely legally on anything in this blog. If you are in doubt about any aspect of petitioning and giving evidence to the Select Committee you are strongly recommended to seek advice from a suitably-qualified professional. You should also find the staff at the House of Commons Private Bill Office helpful and unbiased (email: prbohoc@parliament.uk).

Lessons from history, part 2

(… continued from Lessons from history, part 1, posted on 2 Jul 2014).

Petitioners appearing before the HS2 Select Committee, in person or by proxy, are permitted to present evidence supporting their case in the form of documents, maps and diagrams, photographs and models (see footnote). They can also call witnesses to provide oral evidence. Although petitioners may, in theory, call anyone as a witness, the expectation is that any witnesses appearing will be able to enlighten the Select Committee on an evidential basis, which indicates that they should normally be in the class of “expert” witnesses, or be able to provide particular insight by virtue of experience or circumstances. Petitioners need to be wary of overusing this concession; calling unsuitable witnesses, or an unnecessarily high number of witnesses, or otherwise dilatory tactics is likely to be regarded as attempting to impede “the performance of the functions of the Commons” (see part 1 of this blog) and given short shrift.

The note on procedure that has been issued by the HS2 Select Committee comments that petitioners “should feel free to include in their evidence a summary of their arguments, of no more than two pages”. On the face of it, this seems a good idea except that the Select Committee’s note also comments that petitioners presenting evidence “can assume that the Committee will have read [the summary] and that there will be no need to expand on it in the hearing”. It strikes me that, if followed to the letter, this stricture could severely limit your ability to present a coherent and forceful case and I, for one, do not see any advantage to providing such a summary.

In the report published by the Crossrail Select Committee the comment is made (in paragraph 7 of Volume 1) that:

“One of the main causes of frustration for the Committee was that some Petitioners wished to raise issues which we were not empowered to consider.”

One such restriction is identified in paragraph 9 of Volume 1 of the Crossrail report, as being that petitioners may “seek to amend the Bill” but that, in virtue of the approval in principle granted to the Bill by the House of Commons by agreeing that it be read a second time, petitioners “may not argue that the Committee should reject it”. However, the instructions to the HS2 Select Committee from the House of Commons also require that the Committee shall not hear any petition that “relates to whether or not there should be a spur from Old Oak Common to the Channel Tunnel Rail Link”.

Two further restrictions that the Crossrail Select Committee enforced on petitioners (see paragraph 17 of Volume 1 of the Crossrail report), and which the HS2 Committee will presumably also impose, are that petitioners “could only be heard on matters included in their petitions, and were not able to make additional arguments” and that they “could only seek to represent themselves and those who signed the petition”. The report offers the following explanation for the second restriction:

“Any attempt to raise the concerns of neighbours or others who had not petitioned the Committee was not allowed. This was because the Committee could not reasonably determine why others had chosen not to petition. To allow Petitioners to argue on behalf of others would fall foul of the rules relating to locus standi.”

The note on procedure that the HS2 Select Committee has issued also proposes, “if agreed by the petitioner”, that the Promoter’s representatives, meaning one of HS2 Ltd’s barristers, will provide “an opening statement of relevant background facts and facts at issue” before the petitioner presents his arguments. This was also the practice of the Crossrail Select Committee – indeed they say that they “insisted” on such a statement being made. The Crossrail Committee saw this practice as beneficial to the petitioner, who, it was felt, may be disadvantaged by having to present a case from scratch, as it were, and having to “explain complicated technical matters” (see paragraph 14 of Volume 1 of the Crossrail report). Where a number of petitions were heard that shared related themes, it appears to have been the practice of the Crossrail Select Committee to hear a single opening statement common to all petitions, which were then heard one after the other.

I do not regard this practice as at all sinister, but merely one that serves generally to assist all parties. Whilst the summary is provided by the promoter of the Bill, and will include an overview of the promoter’s counter-case, I think that we can rely on a barrister to present the facts in an impartial way, at least at this stage of proceedings. If you want to get a flavour of how a summary might be conducted, the one in paragraphs 6377 to 6328 on page Ev 614 of Volume 3 of the Crossrail report is, I feel, fairly typical.

(To be continued …)

Footnote: Supporting evidence that was referred to by advocates, petitioners and witnesses before the Crossrail Select Committee is archived separately for each day that the Committee sat (list for session 2005-6, list for session 2006-7). The documents stored for a randomly-selected day, 28th March 2006, amount to twenty-nine pages which were made available for display to the Committee on a video screen; ten of these pages contain plans, twelve are pages from documents, and seven are photographic images. Twenty-one of the pages relate to material originated by the promoter, of which some appear to have been prepared specifically for the hearing (for example, the plan of the location of petitioner’s properties on page BRWDBO-14903-007). As well as using their own material (for example, the photographs on pages SCN-20060328-006 to SCN-20060328-008 and the plan on page BRWDBO-4305-002), petitioners also used promoter-originated material as evidence (for example, LINEWD-IPA1-012) and a marked-up promoter’s plan (LINEWD-ES17-102). The document referenced as SCN-20060328-001 to SCN-20060328-004 is an example of a summary of petitioners’ arguments, covering a number of petitions.

Important disclaimer: This blog is not intended to give legal advice, and I am not, in any case, qualified to provide such advice. You should not therefore rely legally on anything in this blog. If you are in doubt about any aspect of petitioning and giving evidence to the Select Committee you are strongly recommended to seek advice from a suitably-qualified professional. You should also find the staff at the House of Commons Private Bill Office helpful and unbiased (email: prbohoc@parliament.uk).

Lessons from history, part 1

“Those who cannot remember the past are condemned to repeat it.”

The Life of Reason, George Santayana.

Those of us who have deposited petitions against the HS2 Phase 1 hybrid Bill are looking into the future with uncertainty. After all it is not every day that you have to go to Westminster to appear in front of a select committee of the House of Commons, unless your name is Joe Rukin of course. It is far from clear what is expected of us, and what preparation we should make particularly regarding the written evidence that is required. So, bearing in mind that HS2 is not the only project that has followed the hybrid bill route through Parliament, perhaps we should take a leaf out of Sr Santayana’s book and try to avoid making too many mistakes by looking back at what has happened in the past.

Fortunately, we don’t have to rely on “remembering the past”; one of the documents that I have stumbled across is the report presented to the House of Commons by the Crossrail Select Committee when it had completed its deliberations in October 2007. This report provides, in Volume I, an overview of and commentary on the Select Committee procedures and explains the decisions and recommendations made by the Committee. It also provides details of the cases presented by a number, but not all, of the petitioners. In addition, there are four additional volumes (Volume II, Volume III, Volume IV, and Volume V) that contain transcripts of the oral evidence sessions at which petitioners were heard.

It would appear from the note on procedure that has been issued by the HS2 Select Committee that, unless the Committee elects to make changes later in the light of its experience of hearing petitions, the conduct of the petitioning process will follow closely that employed by the Crossrail Select Committee, so what can we learn from this note and Volume I of the Crossrail Committee’s report?

The Crossrail report (paragraph 7) describes the proceedings as “quasi-judicial” and says that they “operate more like a court”. In keeping with this you will find that the promoter of the Bill (the Secretary of State, represented by HS2 Ltd) will have a legal team, led by a Queen’s Counsel. However, we were promised by Robert Syms MP, Chairman of the HS2 Select Committee, during the oral evidence session held on Tuesday 13th May (see paragraph 45 of the transcript) that the decision had been taken “to dispense with wigs and gowns”.

The Select Committee will normally meet in Committee Room 5. This is one of the committee rooms that lead off the Committee Corridor on the first floor of the Palace of Westminster, accessed up a staircase from the Lower Waiting Hall, off the Central Lobby. Public entry is via the security check at the Cromwell Green entrance, near Westminster Hall. Whilst you are waiting to be heard you will, at least, have the consolation of being able to admire the handiwork of Victorian interior decorator supreme, Augustus Pugin.

Committee Room 5 is set out in the Select Committee Room style, with Members sitting at a horseshoe shaped table and witnesses at a rectangular table facing them. There is some room for members of the public, but this appears to be for no more than a couple of dozen people and could, I would imagine, be further limited if the space requirement of the legal teams dictates. The Select Committee note on procedure advises that “the public, including other petitioners, may attend”, but warns that “space may be limited”. It suggests that any requirements for large numbers to attend should be advised to the Private Bill Office in advance.

The proceedings are subject to the contempt rules of the House of Commons. In theory a member of the public found to be in contempt, by committing any act or omission which impedes the performance of the functions of the Commons, may be summoned to the bar of the House to be reprimanded, or even dragged off to prison by the Serjeant at Arms. However, since the last time that a member of the public was subjected to contempt proceedings was more than fifty years ago, I don’t think that any petitioners need fear these sanctions unduly.

The Crossrail report merely records (in paragraph 17) that avoiding any possible contempt requires that those appearing before the Select Committee are “obliged to be respectful” and adds:

“Repetitious and irrelevant evidence, deliberate delay, and refusal to answer questions were all treated as possible contempts of the House and were deprecated in Committee.”

So due deference will definitely be the order of the day for anyone appearing in front of the Select Committee – you will be required to sign a statement that you agree to observe the rules and procedures of the House of Commons before they will let you anywhere near the Select Committee. Witnesses, but not it appears petitioners, will also be obliged to undertake to tell the truth, by swearing an oath or making an affirmation on the day of appearance, which will presumably be in a similar form to the process used in the courts.

Anyone who signed a petition and is “directly and specially affected” by HS2 will be able to present his or her case to the Select Committee in person. If your petition was submitted by an agent, then the agent will normally present on your behalf. However, you can decide at any stage (up to two working days before your appearance) to be represented by an agent, providing that such agent is either a Roll A agent or a properly accredited Roll B agent. You can also change agents up to that deadline, or at short notice if the situation, such as illness, dictates. What I have not been able to find is confirmation that you can dismiss the agent who signed your petition and elect to represent yourself, but I would expect that this would be permitted, subject to the two-day’s notice applying.

If you, or the organisation that you are representing, have really deep pockets then you can brief a barrister to act on your behalf during the Select Committee hearing, who will make your opening and closing statements and undertake any cross-examination that is necessary.

(To be continued …)

Important disclaimer: This blog is not intended to give legal advice, and I am not, in any case, qualified to provide such advice. You should not therefore rely legally on anything in this blog. If you are in doubt about any aspect of petitioning and giving evidence to the Select Committee you are strongly recommended to seek advice from a suitably-qualified professional. You should also find the staff at the House of Commons Private Bill Office helpful and unbiased (email: prbohoc@parliament.uk).

 

 

SEA views, part 6

(… continued from SEA views, part 5, posted on 24 Jun 2014).

The debate in the House of Commons on the afternoon of Tuesday 29th April 2014 to consider four procedural motions for the High Speed Rail (London – West Midlands) Bill was, in contrast to the previous day’s Second Reading debate, a fairly unhurried affair. Contributions from backbenchers had been limited in Monday’s debate, initially to five minutes and then to four (for the final five back-bench speeches), and there were many who wanted to be heard. On Tuesday, however, all contributions could be as expansive as the speakers wished and I don’t recall a single request to intervene being declined.

So it was that when Madam Deputy Speaker (Eleanor Laing MP) rose to put the Question on the four motions there was still more than ten minutes of the four hours allowed for the debate remaining. None of the amendments was pressed to a vote and the four motions were adopted on a voice vote without a single “no” being uttered. So it was that, as is often the case, a debate in the Commons had no impact whatsoever on the motions tabled by the Government.

Following this outcome, the recommendation of, and attempt by, the Commons Environmental Audit Committee to ensure that the Hybrid Bill Select Committee “consider and report on the environmental impacts of the project” (paragraph 86 of the HS2 and the environment report) has become something of a busted flush. Indeed, I am writing this blog just a day after the Government’s response to HS2 and the environment has been published (see footnote 1), and this response points out that the Committee’s “recommendation has now been overtaken by the Instruction by the House to the Select Committee” (paragraph 19).

The response also helpfully explains (also in paragraph 19) why the Government considers the procedures set out in the Standing Orders of the House of Commons for Private Business should be sufficient to satisfy the requirements of the Environment Audit Committee without further modification;

“If the Select Committee process leads to any new likely significant environmental effects, be it from changes to the design or new information coming forward from petitioners or further surveying, the procedures set out in Standing Order 224A of the Commons Standing Orders for Private Business require a consultation to be held on this “supplementary environmental information”. The responses to this consultation will be summarised by an independent assessor appointed by the House Authorities. This summary report will be available for the House when it reconsiders the principle of the Bill at Third Reading. In this way the process ensures that all environmental information, whether it touches on the principle of the Bill or not, is properly considered by Parliament as decision maker.” (see footnote 2)

I have two main issues with these procedures.

In the first place the whole process appears to be under the sole control of the Promoter of the Bill (i.e. the Government via HS2 Ltd), since it relies on an additional provision being tabled in the House of Commons by the Government in order to kick things off.

Secondly, and principally as far as I am concerned, we have already seen the worth of the independent assessor report in the one that was prepared by Golder Associates for the public consultation on the Phase 1 Environmental Statement. This report is very sketchy on detail – the consultation submissions in my own community forum area for example, which included one of approximately forty pages by local community organisations, were condensed to less than half a page – and does not attempt to make the assessment that the Environmental Audit Committee is seeking of whether “reasonable or practicable environmental protections and mitigations” have been adopted. I also have grave doubts of whether the assessor’s report has done anything to inform Parliament. I cannot recall, in the whole ten hours or so of debate that took place at the end of April, any backbencher out of the more than seventy that spoke or intervened referring to the information in the report. Indeed I would venture that the number of those Members taking part in the debates who had actually read the report would probably have been a small handful, if that.

It appears, however, that these procedures are all that stand between HS2 and an environmental disaster. All that is apart from the ability of the Hybrid Bill Select Committee to consider, in the words in paragraph 19 of the Government’s response to the HS2 and the environment report, whether “reasonable and practicable mitigation” can be introduced into the hybrid Bill in response to any petition that “raises environmental effects of the Bill”.

I hope that the Select Committee Members turn out to be environmental champions, but fear that “reasonable and practical mitigation” may prove to be inadequate mitigation.

Fortunately, I feel that Ms Walley is not the sort of person who gives up easily. In a letter addressed to the Chairman of the Hybrid Bill Select Committee, Robert Syms MP, and sent subsequent to the April debates, she reminds Mr Syms that the Hybrid Bill Select Committee “plays a vital role in fully addressing the environmental impacts” and of the Supreme Court’s expectation that “the Hybrid Bill process will deliver the requirements of the environmental assessment directives”. Further, she expresses the hope that the Select Committee “will be able to address the concerns [that the Environmental Audit Committee] raised in [its] report, subject of course to such matters also being raised in the Petitions that [the Select Committee] receive”. She also makes a specific request of Mr Syms:

“Please lets us know how your Committee plans to cover such concerns through its evidence-taking. I do hope that your Committee will be able to give these matters the time and consideration they deserve, particularly given the gaps in the process we have rehearsed in our report.”

I think that we can trust Ms Walley to keep her eye firmly on what transpires. Unfortunately, she has announced that she will retire from the Commons at next year’s General Election. I hope that her replacement as Chairman of the Environmental Audit Committee will take on this task also.

Footnotes:

  1. With one exception, the Government has rejected all of the Committee’s recommendations. A very good short summary of, and commentary on, the response is provided in a blog that has been posted by Stop HS2.
  2. Further information on these procedures may be found in the High Speed Two Information Paper B8: Additional Provisions.
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