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).

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One response to this post.

  1. Posted by chriseaglen on July 7, 2014 at 4:52 pm

    Suggest you are arguing the case why the petitioning process in Select Committee is not suitable for the legacy issues and follows a brushing or most off the agenda. Left with the complexity of facing an army of Government experts and with a team of 5 with no judge and uncertainty of the biases of the jury this seems to be a case of heads or tails you lose but in addition we are not listening to your deep concerns. This procedure is well beyond the many of the 1918 petitioners and likely to be most ineffective. Next step will be the PM declaring this is the right thing to do since most of the public cannot be expected to understand or represent themselves at the Select Committee. They can if required hire expert witnesses and legal team but unfortunately do not expect this to overwhelm the Select Committee making the process of advancing HS2 Route 3 faster. No amendments except for the whims of the SST is again gambling in a loaded dice casino.

    Reply

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