A serious matter has arisen

It would appear that, as the long process required for the Phase 1 HS2 hybrid Bill to gain Royal Assent has played out, the criteria applied by the Promoter to decide if a petitioner should be challenged on whether s/he will be, or represents someone who will be, “directly and specially” affected by HS2, and whether s/he has locus standi as a result, appear to have got tougher to satisfy. The evidence for this conclusion is clear: of the 1918 petitions that were originally deposited against the Bill in the House of Commons, 24, representing a little over one per cent of petitions, were objected to by the promoter, by the time that the fourth Additional Provision (AP4) had been reached, this had risen to 59%, and this percentage also applied to AP5.

In the case of the additional provisions there had been some justification for the harder line being taken, as it was clear that petitioning against a change to the Bill was only legitimate if the petitioner had been directly and specially affected by that change: using an AP as an excuse merely to repeat objections that had been raised against the Bill as originally presented was clearly not on, although a good few had, it appeared, seen this as an appropriate tactic.

Notwithstanding this particular feature of additional provisions, the 821 petitioners against the hybrid Bill wishing to be heard by the House of Lords Select Committee were likely to have expected that they would be able repeat any of their original objections that had not been addressed to their satisfaction to a fresh panel of faces. If this were the case, then this expectation would clearly have been encouraged by the advice provided in the Petitioning Kit Guide published by the House of Lords Private Bill Office that Lords petitioners will “need to make [their] case as though [they] were doing so for the first time” on the basis that “the two Houses consider the bill entirely independently” (see footnote 1). However, what just about a half (414 in total) of these petitioners found was that their right to be heard by the Lords Select Committee was challenged by the Promoter, even in cases where no such challenge had been made when they petitioned the Commons. Clearly something has changed.

The clue to what this change is was provided by Transport Minister, Lord Ahmed, in a written Lords answer (see footnote 2). My interpretation of the noble Lord’s answer is that individual petitioners who are not having their land taken for HS2, and are accordingly not entered in the Book of Reference, are likely to have been challenged. In general, those who will suffer the effects of HS2, but will not lose any of their property to it, are regarded as being capable of having their interests represented adequately by their local authorities, who have not been challenged, although councillors petitioning as individuals have. Other representative groups, such as HS2 action groups, have been challenged on the basis that, in the first place, only local authorities have locus to speak for communities, although some “groups representing amenity or recreational interests” have not been challenged where this has been seen (by the government) to be appropriate.

The two action group umbrella organisations, HS2 Action Alliance and Stop HS2, have been challenged on locus, as they were when they petitioned the Commons. You will probably recall that both organisations successfully appealed these earlier locus challenges, and I think that most observers would agree that they made a valuable contribution to the proceedings in the lower house; the Members of the Commons Select Committee certainly appeared, on the whole, to appreciate their input. On this basis, it is a mystery to me why these bodies are expected to justify their appearance before the Lords Select Committee by making a further appeal on their locus challenges.

Lord Ahmed’s answer also informed us that Members of the House of Lords who have petitioned have not been challenged on locus, although we know that all eight Members of Parliament who petitioned on the basis that HS2 will cross their constituencies have been challenged.

This apparent snub to the lower house has caused some consternation on the green leather benches. Indefatigable opponent of HS2, the Rt Hon Cheryl Gillan MP, raised the issue in the Commons Chamber as a point of order, telling Deputy Speaker, Natascha Engel MP, that (see footnote 3):

“A serious matter has arisen that I believe is an attempt by the civil servants who are paid for by the taxpayer and who run HS2 Ltd through their agents—very highly paid lawyers, Eversheds—to gag Members of this House. I do not know whether the Chair is aware of this, but the locus standi of no fewer than four Ministers, three Back Benchers and, I believe, even the Speaker has been challenged.”

On the day, as is so often the case with points of order, Mrs Gillan did not get very far with her protest The Chair ruled that it was a matter for the Upper Chamber, but did indicate that the Speaker would take a look at her complaint as it involved a matter of privilege. The right honourable lady was clearly not content to let the matter rest there, however, as about two weeks later a letter was duly dispatched to Simon Kirby, Chief Executive of HS2 Ltd, taking him to task for the challenges to the locus of the elected members. This letter was signed by all eight MPs including, interestingly enough, Mr Speaker himself (although not, of course, in that capacity).

This letter defends the MPs’ right to speak on behalf of their constituents in the House of Lords and warns that the “sheer number of challenges” to petitioners’ locus “will be seen as inappropriate and undemocratic” and “could bring Parliament into disrepute”. The letter accuses HS2 Ltd of “attempting to expedite the process through the Lords by ignoring the concerns and suggestions put forward by petitioners”. So the language used is fairly blunt and the opportunity of the letter has also been taken to criticise HS2 Ltd for more blunders in communicating with petitioners. Also attacked is the decision that the Lords Select Committee will sit during the EU Referendum recess, although this point would appear to be one for the parliamentary authorities rather than HS2 Ltd.

I can’t help but wonder if the strength of this representation from the lower house may yet give the Government some cause to regret the position that it has taken over challenging petitioners’ locus in the House of Lords.

Of course, one outcome of challenging the locus of 414 petitioners is that the Lords Select Committee has the additional task of hearing appeals from as many of those petitioners as may wish to defend their locus. At this time we don’t know how many appeals there will be, how the Committee will tackle the task, how long the whole process might take, and when the actual hearing of petitions will begin. We do know, from the programme that the Committee has published for its first full week of public sessions (see footnote 4), that thirty-six petitioners appealing locus challenges are scheduled to appear that week. We will have to wait and see how the task will proceed in subsequent weeks.

Footnotes:

  1. See the section I petitioned in the House of Commons, do I need to petition again? on page 3 of the Petitioning Kit Guide The High Speed Rail (London–West Midlands) Bill: How to Petition against a Hybrid Bill in the House of Lords.
  2. See High Speed Two on page 11 of House of Lords Written Statements and Written Answers for Wednesday 11thMay 2016.
  3. See columns 563 and 564 of the House of Commons Official Report for 10thMay 2016.
  4. Well, it’s not quite a full week as the Select Committee does not plan to sit on Monday 6th June.
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2 responses to this post.

  1. The letter is not signed by Keir Starmer of course so not all the MPs.

    Reply

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