That’s it then, we’re off, part 7

(… continued from That’s it then, we’re off, part 6 posted on 6 Apr 2016).

In this final part of the current series I will complete my examination of the issues with the hybrid bill select committee process that I listed in part 6.

In contrast to the absence of any radical suggestions to improve the hybrid bill select committee procedures in the final report, the Select Committee does claim that it would be possible to address the problems that it has identified with petitioning “through some quite easily achievable procedural changes” (see footnote 1). The final report identifies two specific areas where such changes might be made: the petition deposit process, and rights of audience and the conduct of hearings.

In its deliberations on the petition deposit process, the Select Committee favours the retention of the petitioning fee on the grounds that it serves to “discourage speculative or spurious petitioning” (see footnote 2). Whilst some petitioners, I know, regarded the fee as an unwarranted imposition, I tend to side with the Select Committee, although the considerable hassle that was involved in authoring and depositing a petition in the House of Commons was probably sufficient deterrent for most. On the actual mechanics of depositing a petition, the Committee does not see deposit in person as necessary and suggests that the Commons should move to an electronic system; the email-based process devised for the House of Lords would appear to be a good model for the Commons to adopt (see footnote 3).

The emphasis of the Select Committees views on changing petitioners’ rights of audience and procedures for the conduct of hearings is to reduce the time spent in public hearing sessions. On rights of audience, the final report suggests three changes that I broadly support (see footnote 4):

  • That “strong guidelines on acceptable locus should be set out before the establishment of the Committee and before petitioning starts”
  • That the locus standi challenge process should be conducted in writing, as far as is possible, but with the option for an oral hearing
  • That the House authorities should adjudicate on locus challenges, with the Committee having an ultimate review function

The final report appears to suggest that the oral hearing and locus review options should only be exercised at the behest of the Committee. If this what is being suggested, then my view is that this would not be equitable, and that the petitioner should have an equivalent right to enforce these options.

The final report makes a number of suggestions to modify the procedures for hearing petitions in person. The Committee’s proposals for greater certainty relating to the powers of a select committee and for more practical rules for appointing representative agents may, I think, be warmly welcomed. However, I am far less enthusiastic with the suggestions aimed at streamlining the hearing of petitions in person and reducing the quantity of written evidence; there is a real danger that petitioners’ rights could be eroded by these proposals. I support the idea of giving written submissions equal weight to appearing in person, but do not agree with the corollary drawn in the final report “that oral submissions should be restricted to those principally affected” (see footnote 5).

The final report claims that it is wrong to believe “that there is a democratic right for everyone who wants to show up to have their say to repeat issues for as long as it takes” (see footnote 6). Whilst I don’t want to defend deliberate filibustering, I would urge caution in unduly restricting the right to be heard, on the grounds that it risks perpetrating injustice and lack of even-handedness in the treatment of petitioners with similar complaints – how can it be equitable for the first petitioner on a particular issue to be heard, whilst the tenth wishing to speak on that issue is denied an audience?

And that leaves my four additional issues, not mentioned in the final report, but which I identified in part 6.

My first point concerns long sittings. The usual practice in the Royal Courts of Justice is for courts to sit for around five hours a day (10.30am to 4.30pm, with an hour for lunch). It is unreasonable to expect a panel to be suitably alert and attentive for much longer than this. It is also unfair to petitioners being heard, who may be faced with impatient or irascible Committee Members towards the end of long sessions, and also put under pressure to be unreasonably brief due to time constraints.

My second point is those wretched handheld computers and communication devices that we all seem to be unable to be parted from these days. I am sure that none of my readers would ever be in the position, but just imagine if you were in the dock in Crown Court and looked across at the judge to see her/him reading emails and the jury members checking messages and sending texts on their smartphones. It would not be acceptable there – you would be justified in thinking that you are not being given a fair trial – and it should be equally unacceptable behaviour by MPs sitting in a quasi-judicial hearing in Parliament. The same applies to reading documents that are not associated with the hearing in progress.

My third point is that the average Member of Parliament is ill-equipped to adjudicate on complex planning issues that may involve difficult legal, technical and environmental considerations. Our national planning system relies heavily on professionals, with decisions either being devolved to qualified planning specialists or made by elected representatives on the advice of professionals. And yet, for our large public infrastructure projects our MPs appear to think that they can, unaided, substitute for this well-tried system. It’s rather like asking a motor mechanic to tune a grand piano!

In part 6 of this blog series I suggested that the solution to this weakness in the hybrid bill process was “not to entrust the planning inquiry function to MPs at all, but to a non-parliamentary expert body”. Such a body already exists in the Planning Inspectorate, which as an executive agency has at least a degree of independence from the Government. If the Planning Inspectorate were required to carry out a full public inquiry before a hybrid bill is deposited in Parliament, then MPs and Lords would only be required to consider its recommendations as a part of the bill deliberations, rather than having to hear petitioners. As well as meaning that issues raised receive expert consideration this would, as I mentioned in part 6, relieve time pressures on MPs.

My final point is that the hybrid bill process fails to meet contemporary standards for environmental protection, and I have particularly in mind what the then Chair of the House of Commons Environmental Audit Committee, Joan Walley, cited as “the failure to take on board the formal requirements of the Strategic Environmental Assessment [Directive]” (see footnote 7). She also said that the Supreme Court had “a clear expectation that Parliament will ensure that the Hybrid Bill process will deliver the requirements of the environmental assessment directives”. It is clear that the parliamentary process has not delivered on this expectation for HS2 Phase 1. An obvious, and necessary, change to this process to bring it in line with the environmental protection provided for non-public projects would be to require a strategic environmental assessment to have been completed before the bill is deposited in Parliament.

So that’s what I think. I would be really interested to hear from my readers what they think, so please don’t be shy to use the comment facility to let me, and other readers, know.

Footnotes:

  1. See paragraph 384 in the Select Committee’s final report.
  2. See paragraph 391 in the Select Committee’s final report.
  3. See paragraphs 389 and 390 in the Select Committee’s final report and page 7 of the Lords Petitioning Kit Guide.
  4. See paragraphs 394 and 395 in the Select Committee’s final report.
  5. See paragraphs 396 to 400 in the Select Committee’s final report.
  6. See paragraph 385 in the Select Committee’s final report.
  7. See the letter dated 13thMay 2014 from Joan Walley to Robert Syms MP.

 

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One response to this post.

  1. Posted by johnma on April 11, 2016 at 11:49 am

    I fully endorse the comment made by Paddy to Part 4.
    “This would not be so bad if the proposals had emerged from a clear process which had openly and thoroughly considered the nature of the problem to be addressed and a full range of options. Unfortunately that was not the case. The proposals came from nowhere, were presented as the only show in town, and were rushed through a legislature preoccupied with weightier matters. There has at no point in the HS2 process been an authoritative, objective and open assessment of what has been proposed. For petitioners there is no justice and for the electorate and for tax-payers there is simply no way of knowing whether they are paying for a golden goose, or for just a turkey, or for a classic white elephant.”

    I doubt if more than a few percent of those MP’s who voted for the Bill have bothered to read or understand the arguments against the current proposals. The fact than they were whipped to support the Bill shows just how unsatisfactory it is to have available the Hybrid Bill process. The public inquiry process can be very time consuming but there is much more likelihood of some proper examination of the evidence. A more sensible approach would be to have an examination in front of a truly independent expert panel who could call witnesses to evaluate the options first before proceeding to draw up detailed options, at huge cost. The House of Lords Economic Affairs Committee were able to identify numerous issues but sadly its recommendations fell on deaf ears.

    Reply

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