Compensation culture, part 4

(… continued from Compensation culture, part 3, posted on 24 Feb 2017).

I don’t believe that I am alone in regarding the National Planning Policy Framework (NPPF) as providing too little protection for our natural environment. Chief amongst my concerns is the “presumption in favour of sustainable development”, which the NPPF describes as “a golden thread running through both plan-making and decision-taking” (see footnote 1). We are told that “the purpose of the planning system is to contribute to the achievement of sustainable development”, and that the NPPF sets out “the Government’s view of what sustainable development in England means in practice for the planning system” (see footnote 2).

The NPPF helpfully reminds that the United Nations’ definition of sustainable development is “meeting the needs of the present without compromising the ability of future generations to meet their own needs” (see footnote 3). This appears to me to be a very tough requirement to satisfy, and I don’t see that the NPPF comes anywhere near measuring up to this.

Take, for example, the exception in the NPPF that I mentioned in part 3 that permits a developer to justify the destruction of irreplaceable natural assets on the basis that the “need for, and benefits of” his planned development will “clearly outweigh the loss” of that asset. This is, I feel, at least potentially an unsustainable activity because, clearly, future generations are being deprived of that natural asset: whether you regard that as compromising the ability of those future generations “to meet their own needs” depends on your own value judgement, but I would say that it does if we define “needs” as the things that sustain more than just a basic existence.

Despite the NPPF identifying “three dimensions to sustainable development” – economic, social and environmental (see footnote 4) – it is clear that it is economic growth that the Government wishes to encourage above, and even to the detriment of, the other two dimensions (see footnote 5):

“The Government is committed to ensuring that the planning system does everything it can to support sustainable economic growth. Planning should operate to encourage and not act as an impediment to sustainable growth. Therefore significant weight should be placed on the need to support economic growth through the planning system.”

The implications could not be plainer: in our planning system the interests of the natural environment are subservient to economic interests.

Although the NPPF is important in setting the policy for determining decisions on planning applications, it does not, as is stated therein, “contain specific policies for nationally significant infrastructure projects for which particular considerations apply” (see footnote 6). In the case of Phase 1 of the HS2 project the determination of planning decisions was entrusted to two groups of parliamentarians working within Victorian procedures, and subsequent to an overwhelming vote of support for the project to be built in both their respective Houses. Notwithstanding, one would surely expect the decision making to follow broadly similar guidelines to those that are prescribed by the NPPF, if they were to be consistent with national planning policy.

Despite this I cannot recall, on any occasion, the question being asked in either of the HS2 Phase 1 select committees just how sustainable HS2 is, and whether it was likely to deliver sufficient benefit to the national economy to justify its undoubted negative impacts on the natural, and indeed social, environment. The reason for this, of course, is that the decision to go ahead with HS2 Phase 1 had already been made at Second Reading, so neither select committee considered this a question that fell within its remit. However, since the question does not appear to have been addressed in either second reading debate also, this fundamental aspect of the planning process has been, it would appear, effectively swept under the parliamentary carpet.

There is no excuse for neglecting to tackle this issue, since one of the tick-box exercises that HS2 Ltd completed in the early days of the project was a detailed Appraisal of Sustainability for Phase 1. This document includes a massive tabulation of appraisal data, assessed against a set of evaluation criteria (see footnote 7), but fails to assess what that data mean in terms of the overall sustainability of Phase 1. I addressed this shortcoming in a couple of blogs that I posted in the autumn of 2011 (see footnote 8), presenting some analysis of my own and reporting the expert opinion of the Principal Sustainability Officer of the London Borough of Hillingdon – a qualified planner with fifteen years experience within the environmental sector – that Phase 1 was, at the time that the analysis was made, “effectively an ‘unsustainable’ project in all but the economic categories” (see footnote 9). Since a number of eminent authorities (see footnote 10) have since challenged the soundness of the economic case, even that saving grace appears to be in doubt and there is considerable justification for the expert from Hillingdon’s categorisation of HS2 Phase 1 as “a significantly unsustainable scheme” (see footnote 11). It is his expert opinion that (see footnote 9):

“New infrastructure projects, even if they are considered essential for the national interest, are not exempt from being carried out in a sustainable way.”

(To be continued …)

Footnotes:

  1. See paragraph 14 of the document National Planning Policy Framework, Department for Communities and Local Government, March 2012.
  2. See paragraph 6 of the National Planning Policy Framework.
  3. See the sidebar on page 2 of the National Planning Policy Framework. The source of the definition is Resolution 42/187 of the 96thplenary meeting of United Nations General Assembly, held in December 1987.
  4. See paragraph 7 of the National Planning Policy Framework.
  5. See paragraph 19 of the National Planning Policy Framework.
  6. See paragraph 3 of the National Planning Policy Framework.
  7. This tabulation may be found in the publication HS2 London to the West Midlands Appraisal of Sustainability, Main Report Volume 2 Plans and Appraisal Framework, Booz & Co and Temple for HS2 Ltd, February 2011.
  8. The two blogs are Scoring an own goal (posted 22 Sep 2011) and You weren’t supposed to read that (posted 26 Sep 2011).
  9. See paragraph 13.1 of Appendix 13 (Assessment of Sustainability Overview) to 51m Response to HS2 Consultation, Ian Thynne for the 51m consortium of Local Authorities, July 2011.
  10. Probably most significantly the House of Lords Economic Affairs Committee, see paragraphs 10 and 11 on page 7 of the publication The Economics of High Speed 2, 1st Report of Session 2014‒15, House of Lords Economic Affairs Committee, March 2015.
  11. See paragraph 13.6 of Assessment of Sustainability Overview.

 

Compensation culture, part 3

(… continued from Compensation culture, part 2, posted on 20 Feb 2017).

The Government’s attitude to environmental protection appears to be very much a Jekyll and Hyde act. In the guise of the good Dr Jekyll it publishes well-meaning policy documents, but the evil Mr Hyde, in the guise of the National Planning Policy Framework (NPPF), is out to ride roughshod over this good intention and, as is usually the case, evil seems to be triumphing over good.

Take, for example, the joint Department for Environment, Food and Rural Affairs (Defra) and Forestry Commission publication Keepers of Time. This is clearly the Government’s Dr Jekyll personality at work because one of the stated policy aims of this document is that the “existing area of ancient woodland” – which is described as a “living cultural heritage, a natural equivalent to our great churches and castles” – “should be maintained”. In pursuance of this policy aim, the document sets a strategic object to take “steps to avoid losses of ancient woodland and of ancient and veteran trees” (see footnote 1).

But, the malevolence of Mr Hyde won’t let this good intention go unchallenged, and has spawned a paragraph in the National Planning Policy Framework that permits a developer to destroy ancient woodland and veteran trees where the “need for, and benefits of, the development in that location clearly outweigh the loss” (see footnote 2). I’m not sure how you can possibly demonstrate this justification and, in the case of the HS2 project, I have never seen any attempt being made; it just seems to be assumed that the loss of ancient woodland is an acceptable price to pay for HS2.

The influence of the Government’s superego is also evident in its Biodiversity 2020 strategy document. This strategy identifies a “mission” to be achieved by the year 2020 that includes as a target “to halt overall biodiversity loss” (see footnote 3). The document claims that the Making Space for Nature review – known commonly as “The Lawton Report” – concludes that “the first priority is to protect and enhance the quality of existing priority habitat” (see footnote 4 and footnote 5), and adds the undeniably true observation that it “is much harder, more expensive and not always possible to re-create habitat than it is to look after what we currently have” (see footnote 6).

Biodiversity 2020, whilst generally following the Lawtonian tenet of “protect and enhance”, is not totally unwavering in its faith, conceding, as it does, that “in some cases, biodiversity losses may be inevitable”. In such circumstances, Biodiversity 2020 requires that those losses are made up for balancing gains elsewhere – the principle of “no net loss” (NNL). Notwithstanding, Government policy, as expressed in Biodiversity 2020 is that, whilst ideally the loss and the gain should involve the same habitat type, pragmatism may require that this need not necessarily be the case, but that “replacing the rare and threatened with the commonplace” should not be acceptable (see footnote 7).

This general outline of the application of the NNL principle in Biodiversity 2020 raises important questions in two associated areas that have direct implications for the HS2 project: under what circumstances the loss of priority habitat to development might be acceptable, and how far the creation or improvement of other habitat can satisfy the NNL requirement. In the remaining parts of this series I will discuss these two areas, both in general terms and their specific relevance to the HS2 project.

But, before moving on to these discussions, we need to recognise that the dastardly Mr Hyde and his instrument of darkness, the NPPF, appear set to thwart the good intentions of Biodiversity 2020. The same paragraph as appears to give a developer an easy justification for destroying ancient woodland and veteran trees, provides the same defence to allow him to cause an “adverse effect” on a Site of Special Scientific Interest (see footnote 8).

I find this all extremely frustrating. It is really not enough for the Government to publish, from time to time, a glossy policy document, launched with a speech from a minister crammed full of meaningless platitudes. The fine words in such documents, it would appear from what is actually happening to our natural environment, butter no parsnips, they merely serve, it seems, to salve the conscience of successive governments.

(To be continued …)

Footnotes:

  1. See pages 10 and 11 of the publication Keepers of Time: A statement of policy for England’s ancient and native woodland, Department for Environment, Food and Rural Affairs (Defra) and Forestry Commission, 2005.
  2. See the fifth bullet point of paragraph 118 of the document National Planning Policy Framework, Department for Communities and Local Government, March 2012. For more on this clash of policies, please see my blog A truth universally acknowledged (posted 3 Nov 2014).
  3. See 2020 Mission on page 12 of the publication Biodiversity 2020: A strategy for England’s wildlife and ecosystem services, Defra, August 2011.
  4. I have been unable to locate this conclusion, expressed in the precise terms used in Biodiversity 2020, in the report Lawton, J H, et al, Making Space for Nature: a review of England’s wildlife sites and ecological network, report to Defra, September 2010. Nevertheless, the prioritising of the protection and enhancement of the quality of existing priority habitat would be consistent with the recommendations of the Lawton Report.
  5. A list of priority habitat types may be found on the webpage, UK BAP list of priority habitats, Joint Nature Conservation Committee (JNCC).
  6. See paragraph 2.5 of Biodiversity 2020: A strategy for England’s wildlife and ecosystem services.
  7. See paragraph 3.10 of Biodiversity 2020: A strategy for England’s wildlife and ecosystem services. It is, perhaps, significant that the example given in Biodiversity 2020 of a circumstance that might make biodiversity losses inevitable, “unavoidable climate change”, is not one that could be laid at the door of any one particular project: it is not clear how far Biodiversity 2020 would go in classifying specific developer activities that lead directly to biodiversity losses as “unavoidable”.
  8. See the second bullet point of paragraph 118 of National Planning Policy Framework.

Compensation culture, part 2

(… continued from Compensation culture, part 1, posted on 16 Feb 2017).

In part 1 I reported that our natural environment is, in the words of Sir David Attenborough, “in serious trouble”. According to the State of Nature partnership’s report (see footnote 1):

“We have a moral obligation to save nature and this is a view shared by the millions of supporters of conservation organisations across the UK. Not only that, we must save nature for our own sake, as it provides us with essential and irreplaceable benefits that support our welfare and livelihoods.”

The United Kingdom is a comparatively densely populated country (see footnote 2), that is highly industrialised and intensely farmed and our natural environment has suffered the consequences. The development stimulated by relentless population growth and the desire for ever-increasing prosperity will continue to threaten our natural environment. Even if we wanted to, we can’t go back to our relatively unsullied countryside as it was before the Agrarian Revolution and the Industrial Revolution: we couldn’t support our standard of living or even feed our current population if we did. But we do need to compromise our apparently unbridled passion to root out and plough up our natural assets and “improve” our wildernesses, in order to give nature a fair chance.

Changes in practice in the last century, such as the replacement of conifers by native broadleaved species in forestry and the introduction of more environmentally-aware methods into agriculture, have demonstrated that much can be achieved for the benefit of nature and, with the help where necessary of the taxpayer in providing subsidies, without significantly reducing the bottom line for those seeking to exploit our natural resources. But, if we are to halt the decline that the State of Nature partnership’s report chronicles, we must obviously do more. Those whose activities contribute to this decline are unlikely, without inducement or coercion, to rein back, and it is to government that we must look to formulate appropriate policy, backed up by legislation. Unfortunately, my researches over the past five years or so lead me to conclude that the two Governments serving over that period have failed to provide the necessary leadership: certainly, they seemed to have talked the talk, but their actions have, by and large, not delivered.

Of course, I have been particularly concerned with the environmental impacts of the HS2 project, where the Government is both polluter and regulator – well, officially the environmental regulation of HS2 has been in the hands of Parliament, but the Government, secured by a large parliamentary majority, has been pulling the strings, in practice. The Woodland Trust was so disturbed by the treatment that was being meted out to ancient woodland that it told the Lords HS2 Phase 1 Select Committee that the approach being taken by HS2 Ltd was “woefully short of … best practice” (see footnote 3) – a remark which was condemned as “unduly harsh” by the Committee in its report (see footnote 4).

Unduly harsh, or not, if the Woodland Trust – a trusted and respected body, that has no political axe to grind – is concerned that a major government-backed project is not making adequate provision to protect nature, then this surely brings into question whether the State of Nature partnership’s message is being heeded. This is not to claim that, with the possible exception of barn owls, HS2 alone is likely to have a measurable impact upon the nationwide species population levels that State of Nature monitors, but that the project’s significance is, as the Woodland Trust expressed it, that it is “going to set the bar” for other projects (see footnote 5). The Trust sees HS2 Phase 1 as setting a poor precedent as “there has been poor assessment, with little avoidance, indirect effects not fully appreciated and poor compensation proposed” (see footnote 4).

All this seems to be a far cry from the image that the Government wants to sell to us. Take, for example, the speech made by the Secretary of State for Environment, Food and Rural Affairs, the Rt Hon Andrea Leadsom MP, at the launch of the State of Nature 2016 report (see footnote 6). At the heart of this speech was the Environment Secretary’s announcement that it was her “ambition” and her department’s “vision” that the current generation will be the first “to leave our environment better than we found it since the industrial revolution”. Whilst admitting that this was “quite an ambition”, the Minister said that she and her department were “determined” and promised us a “long term vision” provided by “an ambitious 25 year plan for the environment”, which would be a “new game-changing approach to managing the environment”.

However, although Mrs Leadsom cited a proposed ban on the use of microbeads in cosmetics and personal care products and the 5p plastic bag charge as examples of her department’s determination “to take action to protect the environment”, she failed to mention the potentially much greater threat to the environment that the loss of biodiversity resulting from development posed.

(To be continued …)

Footnotes:

  1. See page 6 of the report Hayhow D B, et al, State of Nature 2016, the State of Nature partnership.
  2. The UK ranks fiftieth in the list of the population densities of 233 countries/territories produced by the Population Division of the United Nations Department of Economic and Social Affairs, with a density of 262 people per km2 in 2015.
  3. See paragraph 364 in the transcript of the morning session of the Lords HS2 Select Committee held on Wednesday 23rdNovember 2016.
  4. See paragraph 305 of the publication Special Report of Session 2016-17 High Speed Rail (London-West Midlands) Bill, House of Lords Select committee on the High Speed Rail (London-West Midlands) Bill, 15thDecember 2016. I feel that the Lords Select Committee would have been better employed addressing the concerns that gave rise to the comment, rather than criticising the words used.
  5. See paragraph 375 in the transcript of the morning session of the Lords HS2 Select Committee held on Wednesday 23rdNovember 2016.
  6. The speech was delivered at the Royal Society on 14thSeptember 2016.

Important Note: The record of the proceedings of the Lords HS2 Select Committee from which the quote reproduced in this blog has been taken is an uncorrected transcript of evidence, which is not yet an approved formal record. Neither witnesses nor Members have had the opportunity to correct the record in such instances, and it may therefore be subject to changes being made in the light of any such corrections being requested.

 

 

Compensation culture, part 1

If you ever come across an octogenarian, life-long birdwatcher buy him – for it will almost invariably be a chap – a drink and ask him to tell you about birdwatching in his youth. He will, I’m sure, amaze you with tales of common encounters on countryside walks with birds such as corn buntings, tree sparrows, turtle doves and grey partridges, all of which can be very hard to find today. And his tales won’t be just the creation of nostalgic yearnings for a golden past: data from field surveys published by the Department for Environment, Food and Rural Affairs (Defra) reveal that, over the period from 1970 to 2014, the overall decline of a group of twelve bird species that are “restricted to, or highly dependent on, farmland habitats”, which include the four that I have singled out, was 69 per cent. The position regarding those four species is, however, significantly worse; populations of all four having declined by 90 per cent, or more, between 1970 and 2013 (see footnote 1).

More easily encountered farmland birds have fared little better over the same period: lapwing has declined by 66 per cent, linnet by 60 per cent, skylark by 60 per cent, and yellowhammer by 55 per cent (see footnote 1).

Defra concedes that these large declines “have many known and potential causes” (see footnote 2). Pinpointing the reasons is difficult enough for resident birds, but for migrants such as turtle dove changing conditions on their migration route and in their wintering grounds are likely to be contributing factors as well as what is happening in the UK. Nevertheless, migrant birds spend the critical breeding period in the UK and the UK population of many “resident” species is swollen in winter by visiting birds seeking our comparatively mild climate, so the hospitableness of the UK’s environment is crucial to the future of many bird species.

The Defra publication identifies “land management changes and the intensification of farming” in the UK as the cause of “many of the declines” in farmland species abundance and also implicates human activity, including its putative connection with climate change, in declines in the populations of other avian classes (see footnote 2).

According to Defra, “bird populations have long been considered to provide a good indication of the broad state of wildlife in the UK” (see footnote 3): if so, then our natural environment is clearly not doing very well, and it would appear that humans must take much of the blame for this.

Indeed, a key study published by a partnership of more than fifty organisations involved in the recording, researching and conservation of nature in the UK and its Overseas Territories, styling themselves the State of Nature partnership (see footnote 4), indicates that there has been a widespread loss of nature in the UK. This study collated UK population trend data from 3,816 different freshwater and terrestrial species over the period 1970 to 2013 – dubbed the “long-term” – and found that 56 per cent of those species exhibited a decline, with 40 per cent showing strong or moderate declines. A similar analysis for the period 2002 to 2013 (the “short term”), but using data from 3,794 species, revealed very similar results: 53 per cent having declined, and 41 per cent exhibiting strong or moderate declines (see footnote 5).

A technique that the State of Nature partnership’s report describes as “a new measure to assess how intact a country’s biodiversity is”, the Biodiversity Intactness Index (BIL), puts the UK twenty-ninth from bottom in a list of 218 countries for which BIL estimates are available. It has been proposed that the minimum BIL level for ecosystems to “reliably meet society’s needs” is 90 per cent, and the UK, with a BIL estimated at 81 per cent, is clearly some way short of meeting this threshold. The report also warns that, due to limitations in the methodology that has been employed to assess BIL, “the UK’s true BIL may be even lower” than has been stated (see footnote 6).

The State of Nature partnership’s report also makes an assessment of 7,964 terrestrial and freshwater species for the likelihood of their extinction from Great Britain, using the “Red List” standardised approach: of these, 1,057 (13 per cent) “are thought to be at risk of extinction from Great Britain”, and 142 (2 per cent) are “known to have gone extinct from Great Britain”. Of course, some degree of “natural turnover” is to be expected – according to Mr Darwin that’s what leads to evolutionary improvement (although he, I believe, envisaged imperceptible change over eons, rather than decades) – so it is, perhaps, difficult to judge how alarmed we should be by these figures. Nevertheless, that there is clear cause for concern is indicated by another recent assessment, albeit relating only to 247 bird species and using a different methodology, that red-listed 67 species (27 per cent) in 2015, showing “a substantial increase” from the 52 species that were identified in 2009 (see footnote 7).

In his foreword to the State of Nature partnership’s report, Sir David Attenborough (see footnote 8), whilst acknowledging that “our wonderful nature is in serious trouble”, sees “cause for hope” in the conservation and restoration work that has answered “the rallying call” that the partnership issued with its previous report in 2013. Whilst I understand why Sir David is keen to encourage this work, I feel that he is being unduly optimistic and is out of step with the body of the report, which opines (see footnote 9):

“The loss of nature in the UK continues. Although many short-term trends suggest improvement, there was no statistical difference between our long and short-term measures of species’ change, and no change in the proportion of species threatened with extinction.”

Clearly, whilst one can point to conservation successes in individual species, overall current efforts are achieving little more than to maintain rates of decline, and this is clearly not good enough.

(To be continued …)

Footnotes:

  1. For the overall decline see Figure 2b of the report Wild Bird Populations in the UK, 1970 to 2014 Annual statistical release, Department for Environment Food & Rural Affairs, 29thOctober 2015. Data for each of the twelve species are tabulated in Annex A to that report, on page 28.
  2. See the section Factors affecting bird populations on pages 2 and 3 of Wild Bird Populations in the UK, 1970 to 2014 Annual statistical release.
  3. See the section Why monitor bird populations? on page 2 of Wild Bird Populations in the UK, 1970 to 2014 Annual statistical release.
  4. The partnership members are listed on pages 84 and 85 of the report Hayhow D B, et al, State of Nature 2016, the State of Nature partnership.
  5. See the section Our key findings on page 8 of State of Nature 2016.
  6. See the section A UK-wide perspective on “biodiversity intactness” on page 71 of State of Nature 2016. I have also used a quote that appears on page 6.
  7. See the subsection National Red Lists on page 9 of State of Nature 2016.
  8. Sir David Attenborough has amassed far too many honours, awards and distinctions to list his post-nominal letters in the text, but to give him the respect he deserves they are OM CH CVO CBE FRS FRSB FLS FZS FSA.
  9. See pages 3 and 6 of State of Nature 2016.

Didn’t they do well, part 4

(… continued from Didn’t they do well, part 3, posted on 8 Feb 2017).

In part 3 I explained that the powers of the House of Lords HS2 Phase 1 Select Committee to grant requests made by petitioners had been severely curtailed “based upon principles of fairness”, in that introducing an additional provision into the House of Lords would deny those wishing to petition against it the “opportunity of presenting petitions against the bill in both Houses of Parliament”. Whilst I support this standpoint, even if it leads to the unfortunate conclusion of rendering the Lords Select Committee somewhat impotent, there is another equally important aspect of the fair treatment of petitioners that appears to have been overlooked by our legislators, which is that all petitioners should have equal expectation of achieving a change to a hybrid bill in select committee irrespective of when their petition is heard.

In Standing at the end of the queue (posted 6 Nov 2015) I presented pretty conclusive evidence that petitioners who came before the House of Commons HS2 Phase 1 Select Committee after about October 2015 found that the bar that they had to clear to achieve an additional provision had been raised significantly, and that at least two barristers representing petitioners had complained about this. The Select Committee Chairman, Robert Syms MP, was quite open about the reason for making life tougher for petitioners: changes would mean “additional provisions and additional petitioning and you could add years to the Bill” (see footnote 1).

So it would appear that treating petitioners fairly is important in so far as it does not hinder the process of the HS2 hybrid Bill through Parliament, but can be conveniently ignored where fair treatment carries the risk of delaying that progress.

But, even worse, both the Government and the parliamentary committees appear to be happy to deprive those affected by HS2 design changes of the ability to petition Parliament altogether, when it suits. So we learnt late on in the life of the Commons Select Committee that a change to HS2 to allow the relocation of some existing sidings at Calvert Green, which would have necessitated an additional provision and involved a delay in Royal Assent of at least nine months, was to be accommodated instead by an order under the Transport and Works Act 1992 (see footnote 2).The Promoter’s Lead Counsel, Tim Mould QC, was quite open that the reason for opting for this course, was to avoid “delaying the timely delivery of the Bill” (see footnote 3).

Whilst the promotion of an order under the Transport and Works Act 1992 does allow affected parties to object, this is a distinct and separate procedure from the parliamentary select committee and is under the control of the Secretary of State and may not, necessarily, offer equivalent recourse (see footnote 4).

Clearly, if the current select committee procedure is to be changed for future hybrid bills, and it surely needs to be, then fairness and equal treatment for all petitioners needs to be at the heart of the revised procedure, whatever it is.

That just about completes what I want to say about the Lords Select Committee, except that I need to update you on one issue. I reported in Cutting out the old wood, part 1 (posted 10 Dec 2016) that HS2 Ltd had agreed with a recommendation made by Natural England (NE) that losses of ancient woodland arising from HS2 should not be included in the general no net loss (NNL) calculation, but should be recognised separately. In Cutting out the old wood, part 7 (posted 3 Jan 2017) I reported that the Lords Select Committee had failed to endorse the NE recommendation. Although I made no comment to the effect at the time, I was rather concerned that the Government would take advantage of the Select Committee’s position to renege on HS2 Ltd’s agreement to take ancient woodland out of the NNL calculation.

Happily, my concerns were unfounded, as the Government has now confirmed its intention to follow the NE recommendation (see footnote 5).

And finally, although it has nothing to do with the Lords Select Committee, I can’t resist bringing to your attention a comment made by Lord Adonis during the HS2 Phase 1 Grand Committee proceedings. In speaking against an amendment which requires the Government to publish, within twelve months of Royal Assent, a “comprehensive and detailed working timetable” for HS2 and the routes on the classic network that will be affected by it, the noble Lord said that to do so “will greatly build up the expectations of those who will benefit and lead to big and controversial campaigns by those who will not” (see footnote 6). This appears to be, at last, an acceptance from one of the chief proponents of HS2, that there will be losers as well as winners from HS2, and also provides an insight into the reason why the Government has not been prepared to come clean on this.

Footnotes:

  1. See paragraph 518 in the transcript of the morning session of the House of Commons HS2 Select Committee that was held on Tuesday 13thOctober 2015.
  2. This course was confirmed in the final report of the Lords Select Committee. See Appendix 6 to the publication Special Report of Session 2016-17 High Speed Rail (London-West Midlands) Bill, House of Lords Select committee on the High Speed Rail (London-West Midlands) Bill, 15thDecember 2016.
  3. See paragraph 605 in the transcript of the afternoon session of the House of Commons HS2 Select Committee that was held on Tuesday 25thNovember 2015.
  4. The ability to object is explained in the pamphlet Transport and Works Act orders: A brief guide, Department for Transport, July 2013.
  5. See paragraph 85 in the publication House of Lords Select Committee on the High Speed Rail (London-West Midlands) Bill Promoter’s Response to the Select Committee’s Special Report of Session 2016‑17, Cm 9396, Department for Transport January 2017.
  6. See under Lord Adonis in Column 132 of House of Lords Hansard, Grand Committee, Volume 777 12thJanuary 2017.

Important Note: The record of the proceedings of the Commons HS2 Select Committee from which the quotes reproduced in this blog have been taken are uncorrected transcripts of evidence, which are not yet an approved formal record. Neither witnesses nor Members have had the opportunity to correct the record in such instances, and it may therefore be subject to changes being made in the light of any such corrections being requested.

Didn’t they do well, part 3

(… continued from Didn’t they do well, part 2, posted on 4 Feb 2017).

Many petitioners, me included, formed the opinion, from the information that we were fed around the time that the HS2 Phase 1 hybrid Bill was deposited in the House of Commons, that the Lords Select Committee would provide a second bite of the cherry for those who had been unable to secure agreement to changes to the design of HS2 by petitioning the Commons Select Committee. As I am sure my readers will be aware, a ruling read out by the Chairman of the Lords Select Committee, Lord Walker of Gestingthorpe, at the start of the day’s proceedings on Thursday 7th July 2017 was that, subject to receiving further instructions from the House of Lords, the Committee did not have the power to recommend changes to the design of HS2 Phase 1 that would require an additional provision (see footnote 1). The ruling also expressed the view that for the House of Lords to issue such an instruction to the Select Committee would be “contrary to well-settled practice” (see footnote 2).

The ruling further indicated that the Lords Select Committee was not minded to hear submissions from petitioners who were requesting changes that would require an additional provision, on the basis that “it would be a waste of time and resources for [the Committee] to hear evidence and submissions that would be relevant only in a fanciful contingency” (see footnote 3).

A few days later Lord Walker thought it necessary to remind petitioners that they should be “extremely mindful of [the Select Committee’s] limited powers”, and that (see footnote 4):

“They will be squandering their time if they choose to present proposals which would require an additional provision, just as they will if they present proposals which go against the principle of the Bill. Instead, they would be wise to focus on issues and solutions over which the Committee does have power to intervene.”

This rather begged the question just what the “issues and solutions over which the Committee does have power to intervene” were – a question which I asked at the time (see footnote 5). Experience showed that the Lords Select Committee was prepared to intervene in matters such as compensation (see footnote 6), traffic and mitigation and other small design changes within the limits imposed by the hybrid Bill. It further emerged that the Lords Select Committee appeared reluctant to countermand a clear decision handed down by the Commons Select Committee, and this further reduced the opportunities for that second bite of the cherry. Notwithstanding these limitations, the Lords Select Committee was able to help towards the resolution of a number of cases (see footnote 7).

The judgement that Lord Walker delivered in July 2016 was argued on the basis of the interpretation of House of Lords Standing Orders and precedents set by earlier bills, but the established practice, we are told, is “based upon principles of fairness”. A hybrid Bill “resembles a private bill in that it adversely affects private interests” and “almost every Additional Provision which solves or mitigates difficulties for one group of people raises new difficulties for another group”. Because of this, “petitions against Additional Provisions are permitted” “and fairness requires that those affected should have the opportunity of presenting petitions against the bill in both Houses of Parliament”. “Those adversely affected by an Additional Provision ordered in the House of Lords, as Second House, would be denied that opportunity in the House of Commons, as First House, unless the bill were to be returned to a Select Committee of the Commons” (see footnote 8).

This logic is, I feel, perfectly sound, but it does appear to lead to the somewhat incongruous situation where Lords Select Committee, which we learnt in Really not that grand, part 1 (posted 23 Jan 2017) is intended to look “specifically and primarily at private interests raised by petitioners”, and which, as I reported in part 2 of this current series, was granted the power to amend the hybrid Bill, was not empowered to make substantive changes to the parts of that Bill that affect private interests, since that would have required an additional provision. That left the Committee putting forward amendments to the hybrid Bill that were more public bill related; a function that we would normally have expected to be the remit of the Grand Committee.

Of course, there would be no need to venture into this muddy water at all if the current practice of holding two select committees were to be dropped in favour of having a single petition-hearing body, as I suggested in part 2 of this current blog series.

(To be concluded …)

Footnotes:

  1. This ruling is reproduced in full as Appendix 3 to the publication Special Report of Session 2016-17 High Speed Rail (London-West Midlands) Bill, House of Lords Select committee on the High Speed Rail (London-West Midlands) Bill, 15thDecember 2016.
  2. See paragraph 7 of Appendix 3 to Special Report of Session 2016-17 High Speed Rail (London-West Midlands) Bill.
  3. See paragraph 17 of Appendix 3 to Special Report of Session 2016-17 High Speed Rail (London-West Midlands) Bill. The “fanciful contingency” is, of course, that the House of Lords would issue an instruction to the Select Committee allowing it to require changes to the hybrid Bill in the form of an additional provision.
  4. See paragraph 2 of the transcript of the morning session of the Lords HS2 Select Committee held on Tuesday 19thJuly 2016.
  5. See my blog So what can you do for me, My Lord? (posted 23 Jul 2016).
  6. Although, since the compensation arrangements do not fall within the scope of the hybrid Bill, it is surely debateable whether the Select Committee should have concerned itself with issues arising from those arrangements.
  7. For examples, see Chapter 3 of Special Report of Session 2016-17 High Speed Rail (London-West Midlands) Bill.
  8. The source of the quotations is paragraphs 24 and 25 of Special Report of Session 2016-17 High Speed Rail (London-West Midlands) Bill.

Important Note: The record of the proceedings of the Lords HS2 Select Committee from which the quote reproduced in this blog has been taken is an uncorrected transcript of evidence, which is not yet an approved formal record. Neither witnesses nor Members have had the opportunity to correct the record in such instances, and it may therefore be subject to changes being made in the light of any such corrections being requested.

Didn’t they do well, part 2

(… continued from Didn’t they do well, part 1, posted on 31 Jan 2017).

During the debates in the Lords HS2 Phase 1 Grand Committee, two items of putative procedural lacunae were identified. Lord Berkeley queried why the amendments to the hybrid Bill that had been proposed by the Lords Select Committee (see footnote 1) had been incorporated into a new issue of the Bill that had been published “without debate”. He asked the Minister “is it not a bit unusual for a Select Committee’s amendments to be incorporated in a Bill without debate?” (see footnote 2). The Minister replied (see footnote 3):

“My understanding is that it is entirely normal procedure for a Select Committee to amend a hybrid Bill; indeed, it is a key part of its function and when setting up it we granted it that particular power.”

Notwithstanding which of the two noble Lords is correct, I think that we can all rejoice that the amendments have been made, since a key element of the changes is the deletion from Clause 48 of the extremely controversial powers for the Secretary of State to acquire additional land by compulsory purchase where HS2 gives rise to “the opportunity for regeneration or development” (see footnote 4). Likewise, I am sure that we will all welcome the Government’s confirmation that it will not seek to reintroduce the powers into the hybrid Bill (see footnote 5).

Lord Stevenson of Balmacara asked: “Why have we not had an opportunity to discuss the [Lords Select Committee’s] report?”. He amplified (see footnote 6):

“… the report will never be discussed. That seems an extraordinary lacuna in the process of looking at the Bill. It needs to be picked up because there are things in the report which ought to be brought out and discussed. There are things which perhaps we could agree to disagree about but at least they could be aired and ventilated in a discussion. That is a terrible mistake.”

It does seem extraordinary, doesn’t it?

One question that was not asked, however, is that, notwithstanding that we have a bicameral legislature, why it is considered necessary to have two Select Committees to hear petitions against a hybrid Bill. Surely, it would be possible to have a single body to hear petitions.

This would, I feel, work to the convenience of all, and should reduce costs, as I’m sure that one committee could complete the task in fewer sitting days than two would take in total. Petitioners would only need to petition, and be heard, once, saving them hassle, time and expense. Best of all, perhaps, the first committee would be deprived of the safety net of having a second committee to pick up any outstanding matters, and would have to do the job properly and completely rather than leaving numerous loose ends as the Commons Select Committee did (see footnote 7).

It is true that the Lords Select Committee served a very useful function in giving a nudge to a number of matters involving those affected by HS2 that the Commons Select Committee had suggested the Promoter should resolve, but which remained unsettled: in this respect the Lords Select Committee was effectively acting as an arbitrator. A glance through the final report published by the Lords Select Committee will bring to light examples where this happened (see footnote 8).

Just why the Promoter was so unresponsive to the Commons Select Committee’s suggestions for resolving issues is a mystery, but the valuable service performed by the Lords Select Committee to petitioners who found themselves making little progress in negotiations should not have been necessary. A better way would have been for the Commons Select Committee to have monitored the progress that petitioners were making in resolving issues subsequent to having had their petitions heard and Committee recommendations having been made, and for the Committee to have been prepared to step in where negotiations were not progressing satisfactorily. Such an approach may well have resulted in satisfactory outcomes being achieved sooner for a number of petitioners.

It is also true to say that the Lords Select Committee process resulted in the size of the Register of Undertakings and Assurances swelling considerably. Again, why the Promoter would appear to have been more obliging to second time around petitioners is a mystery. I’m tempted to suggest, on the assumption that the Promoter’s bonhomie is increasing with passing time, there should be further select committees to persuade the Promoter to grant even more assurances, but am not offering this as a serious proposition. Rather, I feel that a single petition-hearing body that took a more active and detailed role in the thrashing out of solutions between Promoter and petitioner is what is required.

(To be continued …)

Footnotes:

  1. These amendments are listed in Appendix 4 to the publication Special Report of Session 2016-17 High Speed Rail (London-West Midlands) Bill, House of Lords Select committee on the High Speed Rail (London-West Midlands) Bill, 15thDecember 2016.
  2. See under Lord Berkeley in Column 51 of House of Lords Hansard, Grand Committee, Volume 777 10thJanuary 2017.
  3. See under Lord Ahmad in Column 59 of House of Lords Hansard, Grand Committee, Volume 777 10thJanuary 2017.
  4. These powers are explained and discussed in paragraphs 389 to 394 of Special Report of Session 2016-17 High Speed Rail (London-West Midlands) Bill.
  5. This confirmation is provided in paragraph 115 of the publication House of Lords Select Committee on the High Speed Rail (London-West Midlands) Bill Promoter’s Response to the Select Committee’s Special Report of Session 2016‑17, Cm 9396, Department for Transport January 2017.
  6. See under Lord Stevenson in Column 59 of House of Lords Hansard, Grand Committee, Volume 777 10thJanuary 2017.
  7. I complained about this in my blog That’s it then, we’re off, part 2 (posted 21 Mar 2016).
  8. For example, see Chapter 3 of Special Report of Session 2016-17 High Speed Rail (London-West Midlands) Bill.