Lessons from history, part 9

(… continued from Lessons from history, part 8, posted on 30 Jul 2014).

In the note on procedure that has been issued by the HS2 Select Committee an “order of hearing petitions” is set out; this prescribes the steps that will be followed for both the petitioner and the promoter during the course of hearing one petition. Two of these steps are potentially important to the petitioner, as they provide the opportunity to present and strengthen the case over and above the petitioner’s presentation. The first of these is the cross-examination of any witnesses that the promoter may put up. This will give you the opportunity to seek clarification of any points made by the witness and even to challenge the witness on his, or her, evidence. Cross-examination will also give you the opportunity to request the witness’s opinion on any matters that the promoter’s counsel has neglected to, or opted not to, raise in examination-in-chief.

The second potentially important step is the closing statement of the petitioner. This gives you the “last word” and a chance to refute any arguments that the promoter has employed against your petition.

This is fine, as far as it goes, but the evidence of the Crossrail proceedings is that things can get a bit muddled in practice, especially when petitioners with common themes are lumped together or time pressures are mounting during a long day in the committee room. This appears to have happened on the typical day’s business of the Crossrail Select Committee in June 2006 that I reported on in part 4 of this blog series. On that day the schedulers had given the Select Committee the ambitious task of hearing eleven petitions, all of which were about issues in and around the Spitalfields area of London.

The first two petitions proceeded through the normal stages according to the book, except that they were effectively heard in parallel. The promoter’s counsel put up two witnesses, who gave their evidence after the two petitioners had been given the opportunity to present their cases and two witnesses had given evidence in support of one of the petitions.

In his introductory remarks for the day, the Chairman promised that “any witness brought forward by the Promoters may be cross-examined by each and every Petitioner, should they wish to, after they have made their case” (see paragraph 9623 on page Ev 927 of the transcript).

What actually happened was that each of the two witnesses was cross-examined by counsel for one of the petitioners and then the other petitioner, who was making her own case, was given the opportunity to cross-examine the two witnesses. By the time that these cross-examinations, and all of the business that had preceded them, had been completed the scheduled finishing time for the day’s proceedings was fast approaching, leading the Chairman to announce (see paragraph 9974 on page Ev 960 of the transcript):

“I intend now to go through the other witnesses. We have very roughly 25 minutes before we step down. I would remind Petitioners, please, if you have new things to say, say them; if they are repeated I will stop you.”

So clearly the Chairman had his eye on the clock, and the unfortunate sponsors of the remaining nine petitions could not fail to feel the pressure. As things turned out, the Committee session extended well beyond the scheduled finish time and every petitioner, or representative, who wished to speak was heard. However, the Chairman effectively limited the hearing of each petition to two stages, a statement by the petitioner and a response by the promoter’s counsel, by intervening to draw proceedings to a close immediately these two stages were completed (e.g. refer to paragraph 10018 on page Ev 964 of the transcript). No one was asked whether they wanted to cross-examine the two witnesses for the promoter that had been heard earlier, and no one was asked if they wanted to make a closing statement.

We are not, of course, in a position to know whether any of those who appeared in connection with those nine petitions would have taken advantage of their right to cross-examine witnesses or make a closing statement if it had been offered to them. Neither do we know whether Mr Syms, or any other Member of the HS2 Select Committee who may take the Chair in his stead, will conduct business in a similar fashion. However, over-ambitious scheduling, and the potential impact that this may have on an individual petitioner’s right to a fair hearing, is clearly something that we should be prepared for.

It is important that you come away from Westminster satisfied that you have been given every opportunity to state your case. If you feel that time constraints mean that you are unlikely to receive a fair crack of the whip, then you can always offer to be rescheduled for another day. This offer is unlikely to be taken up, since the schedulers will not want a backlog of hearings to build up, but your willingness to come back another day might strengthen your position when it comes to asking for what you are due. However, should the Chairman not wish to reschedule you, then he is obliged to grant you the time that you need to present your case, providing that you avoid, in the words of the note on procedure that has been issued by the HS2 Select Committee, “unnecessarily lengthy argument” and stick to “points not already addressed by” previously heard petitioners – I suggest that, on that last point, you would be justified revisiting points should you feel that they have not be adequately addressed.

In the case of making a closing statement, then this is a simple right to request, since you will be in front of the Committee at the time. You should be polite and respectful, but firm, in making any such request, and I do not see how the Chairman can refuse, whatever the time pressures.

The right to cross-examine witnesses that the promoter may have called earlier in the day, but whose evidence is being relied upon by the promoter in responding to your petition also is more tricky. The best time to indicate that you will want to cross-examine when your turn comes would be directly after the witness has completed giving evidence for the first petition hearing. However, at that time you will be in the public seats and, accordingly, unable to address the Chairman. I would suggest that your best course in such circumstances would be to contact a member of the staff of the Private Bill Office as soon as practical and say that you will wish to cross-examine the witness during your hearing. This should mean that the witness is asked to stay on so that you can have the opportunity to ask your questions. Again, if this does not happen you will be justified in complaining to the Chairman and requesting that you petition be heard another day when the witness will be available.

(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).

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One response to this post.

  1. Posted by chriseaglen on August 3, 2014 at 8:32 am

    This process in London was for property companies to obtain their rights to input funding to some joint developments. Not really about changes other than small perturbations to plans. This bill petitioning is not the way to manage changes in a project from those badly impacted. The process details described are helpful regarding process but this does not lead to effective change management. It is the wrong forum. Such changes should be designer and victim deliberations away from this evidenced/rule based approach. It is unwise to give false hope to petitioners. The Spitalfields area was on a small scale resembling much of HS2 with the layers or opposition. Better to look at where this failed and why and what can be a lesson learnt for an intelligent nation not one with archane dictation in the face of sensible criticism not being taken and acted on.

    Reply

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