That’s it then, we’re off, part 6

(… continued from That’s it then, we’re off, part 5 posted on 2 Apr 2016).

“There were some concerns raised during the course of the judicial review proceedings that were ultimately heard by the Supreme Court as to whether the Parliamentary procedures would be able to deliver the standards of fairness and inquiry into the issues raised by petitioners that might, perhaps, have come, for example, from a public inquiry. I think, if I may say, the work of the Committee and the degree of care and consideration that the Committee has given to the cases raised by the petitioners before you over the course of the last more than 18 months has laid those concerns very resoundingly to rest.”

This is the view of one man who had occupied a ringside seat for many of the petition hearings before the HS2 Select Committee, but who was also speaking on behalf of his client, the Promoter (see footnote 1). As the silk appointed to lead the Promoter’s legal team, Tim Mould QC had cause to be satisfied with the process: I am sure that the Promoter would have entered into the Select Committee process with a costed worse-case scenario of changes to the hybrid Bill design, mitigation proposals and implementation methodology and had managed to emerge from the Select Committee in the House of Commons with far less change, and far less consequent cost increase, than that worse case.

One of the major representatives on the petitioners’ side, HS2 Action Alliance (HS2AA), does not view the process so favourably. In the press release marking the publication of the Select Committee’s final report that I referred to in part 2 of this blog series, the HS2AA accuses the Select Committee of not wishing “to do anything other than go along with what the Government wanted”.

And even the Select Committee, in its final report, is minded to “acknowledge several criticisms of hybrid bill process”, which are identified as (see footnote 2):

• That “petitioning procedures and hearing arrangements have been inherited from previous eras and are no longer fit for purpose”
• That “the Administration has rather too much sway over the process and its timing”
• That the “process requires a huge time commitment from the politicians appointed to the select committees, which has a severe impact on their other duties”
• That the process tends to attract too many petitions, and that there should be “more focus on serious detriment” and less “repetition of the same issues”
• That “the powers of hybrid bill committees are somewhat indeterminate”

To this list I would add four further criticisms of my own:

• That a committee that has been in public session for more than two or three hours is unlikely to be fully attentive to petitioners being heard
• That by using handheld computers and communication devices or reading unrelated documents during hearings Members are being discourteous to petitioners
• That Members of Parliament are unlikely to have all of the specialist technical and legal skills to enable them to adjudicate authoritatively on the wide range of issues that petitions typically cover
• That the process does not meet contemporary expectations for environmental protection

On the first of these points, the Select Committee suggests that the wording of both the petition and the private business standing orders should “be brought up to date” (see footnote 3). Whilst I am sure that no one would oppose such a move, I have to say that I don’t regard the formal and antiquated wording required for petitions as the most burning issue in the above list. Anyone who was capable of addressing a select committee cogently should also be capable of copying text forms from a supplied pro forma and, to judge by the state of some of the petitions that can be viewed on the Parliament.uk website, a fair degree of tolerance has been exercised where petition documents are not quite as they should be; as far as I am aware, no petitions have been excluded on the grounds of drafting errors.

The second question, of whether the Administration has rather too much sway over the process, is rather dodged by the Select Committee in its report, except for the observation that exercise of the theoretical power that select committees have to “dig their heels in” has “in practice been limited” (see footnote 4). We can only speculate upon the degree of influence that the whips have had over the Select Committee, since whips operate in a world that is not open to public scrutiny, but I would suspect, from what we have seen, that the Select Committee has received strong encouragement to complete its deliberations in the shortest possible time and has been discouraged from making recommendations/rulings that would add significantly to the budget cost. It is also worth noting that, since HS2 has cross-party support, it is likely that both government and opposition whips would be united in this, so every Member of the Committee would be getting the same message whispered in his ear.

It is a forlorn hope that the influence that the whips have over virtually everything that goes on within the precincts of the Palace of Westminster is going to diminish anytime soon, which may explain the absence of any proposals to improve the independence of hybrid bill select committees in the final report. The impossibility of changing the beast is one of the reasons why I feel that the “planning inquiry” function that is currently entrusted to a hybrid bill select committee should be removed to an independent, and expert, body, well outside the dominion of the whips.

I have every sympathy with the view that conscientious Members of Parliament have enough to occupy their time without having to sit for interminable hours in a hybrid bill select committee. This is not only unfair to them but leads, I feel, to irascibility with, and lack of attention to, petitioners, amongst other discourtesies. The only amelioration that is suggested in the final report is to reduce the time required to hear petitions, but this risks, in my view, curtailing the rights of petitioners to be heard. I have a solution, albeit a radical one, which is, as I suggest above, not to entrust the planning inquiry function to MPs at all, but to a non-parliamentary expert body.

In my next posting, which will be the final part in this series, I will discuss the remaining issues in the above lists.

(To be concluded …)

Footnotes:

1. See paragraph 10 in the transcript of the afternoon session of the HS2 Select Committee held on Monday 22^ndFebruary 2016.
2. See paragraphs 384 and 396 in the Select Committee’s final report.
3. See paragraph 392 in the Select Committee’s final report.
4. See paragraph 384 in the Select Committee’s final report.