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).


One response to this post.

  1. Posted by chriseaglen on July 10, 2014 at 4:07 pm

    Archane was the word used by the Chair. This seems a warm up period for the process in which the chances are very slim of reversing the decisions made on objection. The Promoter is firing aces each presentation with only one googly seen on the first day but a petitioner no show and two withdrawals in the Promoters favour.

    Good sensible and credible propositions and expertise demonstrated by several but may not be changing the locus standi positions.

    What are the petitioners expecting to obtain because on the showings to date more HS2 short shrift may be the outcome for many.

    With the summary by the Promoter of the 2008 planning framework only a public inquiry with oral presentations would make the difference to what HS2 UK said was a second rate design and over tunnelled proposal in Route 3.


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