The key to the door, part 1

During his oral evidence given to the House of Commons Environmental Audit Committee on the afternoon of Wednesday 26th March 2014 (video), Dave Buttery, Deputy Director of High Speed Rail Legislation at the Department for Transport, remarked (under Q149 in the transcript):

“I think it is also worth noting on the issue of land access that the Hybrid Bill, which is before the House, seeks to address that issue by giving promoters of the Hybrid Bill access to land to do the environmental surveys, so that we are not in a situation where we are being criticised for not being able to get on land when we just have not been able to do it.”

Mr Buttery was referring to the provisions of Clauses 51 and 52 of the Phase 1 hybrid Bill, which may be found on pages 20 to 23 of the Bill as currently drafted. If these clauses are made statute, an “authorised person” will, subject to being in possession of a warrant or, in some cases, a letter of authority, have right of entry to any land that is within 500 metres of the centre line of the proposed route of any projected high speed railway line – yes not just HS2, but any high speed railway that is the subject of a Bill or even a “proposed” Bill – for the purposes of “surveying the land” or “facilitating compliance with EU environmental protection legislation”.

Whilst my inclination is always to back the freedom of the individual against the power of the State to curtail that freedom, I am inclined to the view that a case can be made for legally obliging property owners to grant access in this instance on a “greater good” argument. It is clearly in the interests of the community as a whole for the environmental impact assessment for HS2 to be as accurate as possible, and a comprehensive field survey database, which cannot be captured if land is inaccessible, is essential to this process.

I do however have a small number of comments to make about the inclusion of the two clauses in the HS2 Phase 1 hybrid Bill, which include one or two which I think you could justly regard as reservations.

In the first place, there is the question of whether the clauses, as currently drafted, might be too all-embracing. The long title of the Bill is:

“A Bill to make provision for a railway between Euston in London and a junction with the West Coast Main Line at Handsacre in Staffordshire, with a spur from Old Oak Common in the London Borough of Hammersmith and Fulham to a junction with the Channel Tunnel Rail Link at York Way in the London Borough of Islington and a spur from Water Orton in Warwickshire to Curzon Street in Birmingham; and for connected purposes.”

The clear purpose of the Bill is to make it possible to construct HS2 Phase 1, but the phrase “and for connected purposes” is a formulation that is a standard inclusion in long titles in order to avoid any subsequent amendments taking the contents of the Bill outside the scope of the long title, which is not permitted by the procedures of Parliament. Clearly, even before any amendments may be agreed, the compass of Clause 51 would breach these procedures were it not for those four words tacked on the end of the long title, since it applies “in connection with a Bill or proposed Bill to authorise works for a high speed railway line in Great Britain”, and is not restricted to Phase 1 {subsection (1)}. Subsection (4) clarifies what “proposed Bill means”; it is any proposed legislation that has been the subject of a Command Paper, but is not yet subject to a Bill that has been presented to Parliament. Interesting though, subsection (8) precludes any high speed railway that “starts, ends and remains in Scotland” – presumably in deference to Scotland’s separate jurisdiction, and also reflecting the very low likelihood that any such railway will ever be proposed by the UK Government. So the provisions of Clause 51 will apply not only to environmental survey work for HS2 Phase 1, but will also cover any surveys deemed necessary for HS2 Phase 2 and for HS3, HS4 and so on.

Whilst I can just about accept that survey work for Phase 2 could be claimed to be a “connected purpose” to constructing Phase 1, I feel that it might be stretching things a bit to make a similar claim for HS3 and higher marques, since we don’t know yet where these railways will run, or even if they will be brought forward. To tell the truth, I feel that the whole idea of using a convenient bill to carry legislative provisions for projects that will, in turn, require their own bills is a little dubious. We saw it in the High Speed Rail Preparation (paving) Bill (now Act), which refers to a high speed railway transport network, not just Phase 1 – I remember clearly Transport Minister Simon Burns pointing out that the inclusion of the words “at least” meant that its provisions will apply to all high speed rail projects that may come along in future. You could argue that this is appropriate in the case of the Paving Bill, since this is clearly intended to be general legislation rather than being project specific, but the Phase 1 hybrid Bill is legislation that is restricted to the needs of building Phase 1; it is, for all intents and purposes, a Private Bill, like the Railway Bills of old, that is only “hybrid” because the promoter happens to be the Government, rather than a private company. In view of this, it is my assessment that it should not be used as a convenient clothes hanger on which to drape any additional legislation that might be expedient for other projects.

(To be continued …)

 

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One response to this post.

  1. Posted by chriseaglen on May 27, 2014 at 7:26 am

    Why would you support a flawed route location in this way. It makes no sense to contribute to mistakes in locations. People have not petitioned for the sake of this but out of some despair about loss of large acreage. Supporting mistaken locations and lack of care to correct locations is not supportable by legislation in place or not. 1925 petitions have many stories of grief and impacts. Suggest the root causes are addressed first to local groups. Talk to Quainton Twyford and Chetwode and others dissected by a route in the wrong location for marginal railway services.

    Reply

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