A legal challenge, part 1

I mentioned at the end of my previous posting (Remembrance of things past, part 2, 9 Jun 2016) that I felt that the barriers erected by the Promoter designed to prevent members of the public, and some of their associations, having their petitions heard by the House of Lords HS2 Phase 1 Select Committee, based as they were upon a particularly tight interpretation of Standing Orders and being backed-up by precedent, some of which dated back to Victorian times, signalled that “Committee Room 4 may be a place intended for lawyers, rather than the ordinary citizen”.

I also got the impression, from what was said on the first day of hearing appeals against locus standi challenges and the tone in which some of it was uttered, that some Members of the Committee were inclined to view entitlement to locus standi very much in the same way as the Promoter. One particular noble Lord, Lord Young of Norwood Green, appeared to have cast himself in the role of bad cop. For example, in response to the claim by the HS2 Action Alliance (HS2AA) that individual petitioners and groups were relying on them to argue route-wide issues and provide the expert evidence that this entails, he told Hilary Wharf, a director of HS2AA, “I didn’t really feel that you’d established a case which meant that, if you weren’t represented, their issues wouldn’t be heard” (see footnote 1).

Faced with what seemed like a very uneven contest, the approach taken by the nine petitioners who had appeals against their locus standi challenges heard that day varied depending upon the means and tactics of the appellants.

As is generally the case, but not invariably so, HS2AA chose to be represented by a barrister. This meant that the group was able to offer authoritative submissions in relation to the legal precedents that the Promoter’s Counsel, James Strachan QC, had set out at great length first thing that same morning, although James Burton, the barrister representing HS2AA, complained about the way that evidence concerning the legal precedents had been disclosed to him and his clients by the Promoter (see footnote 2).

Although HS2AA appealed its locus challenge on a number of fronts, I think that it is fair to say that the main thrust of the group’s argument is that as one of the witnesses who appeared on HS2AA’s behalf, the Rt Hon Cheryl Gillan MP, put it “many of the people who would have petitioned … are relying on someone like HS2 Action Alliance to put the overall picture as well” and that “if [HS2AA’s] locus standi is turned down, those people will be rendered voiceless in many instances” (see footnote 3). Mrs Gillan also claimed that for HS2AA to have its petition heard would be “both on the public interest and in the interests of [the Select Committee] in [its] deliberations” (see footnote 4).

A letter submitted within HS2AA’s evidence bundle from Cubbington Action Group against HS2, which I had signed, supported Mrs Gillan’s point about those who may have elected not to petition on the basis that HS2AA would represent them. The letter says that the Cubbington AG took the decision not to petition the House of Lords leaving local issues to Cubbington Parish Council and with “the expectation that route-wide issues would be petitioned by HS2AA as [the action group’s] umbrella organisation” (see footnote 5). I understand that the evidence bundle contained a number of similar messages.

Nevertheless, I feel that much of the wind was taken out of HS2AA’s sails by the Promoter’s suggestion that the organisation would be able to give its evidence by putting up expert witnesses to support the hearings by some petitioners who had not been challenged on locus standi (see footnote 6). I hope that I am being unduly pessimistic, but I didn’t feel that the Committee was particularly receptive to HS2AA’s pleadings; time will tell.

We were treated to the appearance of a second barrister that day, though he appeared in the disguise of Chairman of the HS2 Euston Action Group, Robert Latham. Although he was not announced as a barrister, Mr Latham’s demeanour and use of certain barrister’s turns of phrase (see footnote 7) betrayed his having been called to the Bar, and his case was made with the aplomb and skill that one might expect.

Mr Latham’s pleading appeared to be given at least some chance of enjoying a tolerably fair wind and favourable sea when, at the very start of his group’s hearing, Chairman of the Select Committee, Lord Walker of Gestingthorpe, identified the appeal as “a particularly important one that we have to decide” (see footnote 8).

In his submission, Mr Latham provided an overview, but not an excessively detailed one, of the issues that face residents in the vicinity of Euston station, sufficient to establish his claim that the situation of Camden “is exceptional”, is one needing “special treatment” and that the Commons Select Committee had recognised that the “disturbance of residents was on a scale beyond the experience in any other area” (see footnote 9). He sought to demonstrate that members of his action group are “specially and directly affected” by HS2 and that the group is “in the best position to address the Euston-wide issues” (see footnote 10). He also made the – to me at least – persuasive claim that his group acts “for a number of members who are elderly, from BAME backgrounds and disabled” and “who cannot petition themselves” and that the group has “a role in empowering all members of the community so that their voice can be heard” by the Committee (see footnote 11).

In his consideration of Mr Strachan’s legal precedents, Mr Latham advanced the belief that “a modern view of locus standi should allow some latitude to petitioners on how they chose to present their case” in view of petitioning being “a complex process and there [being] a public interest in it being seen to be rigorously fair to all”. He opined that it was the role of the Select Committee to “decide what a modern view of locus standi is” and suggested that “one needs to look at the current century rather than back to the 19th century” (see footnote 12). He prayed in aid three items of modern legislation that, perhaps, underpin this modern view: the Aarhus Convention; the Equality Act 2010; and, the Human Rights Act (see footnote 13).

He also had a convincing counter to the Promoter’s interpretation of legal precedent being that “where a local authority has petitioned against a Bill, the general principle is that that local authority represents the interests of the inhabitants of its area” (see footnote 14). Included in his group’s evidence bundle was a witness statement from the Leader of the local authority for the Euston area, Cllr Sarah Haywood of the London Borough of Camden. It was reported by Mr Latham that in that statement Cllr Haywood draws a distinction between petitioning for the best interests of the borough, which she sees as the remit of her council, and representing the best interests of the members of Mr Latham’s action group, which Cllr Haywood regards the action group as being best placed to do (see footnote 15).

It seems to me that, of the nine people seeking to convince the Select Committee to overturn the Promoter’s locus standi objection that Tuesday, Mr Latham probably had the best call, but we will, of course, have to await the Committee’s ruling in due course.

(To be concluded …)

PS: I would not normally wish to extend an already overlong posting, but I feel that I must add a postscript to record my shock and sadness at the news of the sudden and tragic death of the Clerk to the House of Commons HS2 Select Committee, Neil Caulfield, at the far too early age of fifty-one. Whatever feelings about the process those of us who took our petitions to the House of Commons may hold, I am sure that anybody who sought Neil Caulfield’s help and advice in this somewhat daunting and bewildering process would have found him helpful, accommodating and impartial. I particularly remember attending an informal briefing that he gave in Committee Room 5 to steer a group of us through the mechanics of making our appearance, where his friendly and matter-of-fact approach helped dispel the mystery and delivered a good few practical tips. One person who dealt with him more often than most, if not all, of us is Joe Rukin of Stop HS2, whose blog tribute to Neil I strongly recommend if you haven’t already seen it.

Footnotes:

  1. See paragraph 285 in the transcript of the morning session of the Lords HS2 Select Committee held on Tuesday 7thJune 2016.
  2. The HS2AA hearing may be watched from 11:16hrs in the video of the morning session of the Lords HS2 Select Committee held on Tuesday 7thJune 2016. Mr Burton complained that his client had been presented the previous week with “a lever arch or two worth of these Court of Referees’ decisions”, but with “absolutely no suggestion” which was relevant to HS2AA’s locus appeal. He said that, being “used to wading through authorities” he had been “better placed” to cope with this treatment, but he cautioned that “there may be other petitioners who are not quite so well placed”. Mr Burton’s comments may be found in paragraph 223 in the transcript of the session.
  3. See paragraphs 172 and 173 in the transcript of the morning session of the Lords HS2 Select Committee held on Tuesday 7thJune 2016.
  4. See paragraph 168 in the transcript of the morning session of the Lords HS2 Select Committee held on Tuesday 7thJune 2016.
  5. This letter is referred to in paragraph 276 in the transcript of the morning session of the Lords HS2 Select Committee held on Tuesday 7thJune 2016.
  6. See paragraphs 290 to 294, 301, 302, 308 and 309 in the transcript of the morning session of the Lords HS2 Select Committee held on Tuesday 7thJune 2016.
  7. Mr Latham’s appeal may be viewed from 14:01hrs in the video of the afternoon session of the Lords HS2 Select Committee held on Tuesday 7thJune 2016.  One example of his use of barrister’s phrases is, “I am grateful for that” in paragraph 6 of the transcript of that session.
  8. See paragraph 9 of the transcript of the afternoon session of the Lords HS2 Select Committee held on Tuesday 7thJune 2016.
  9. See paragraph 15 of the transcript of the afternoon session of the Lords HS2 Select Committee held on Tuesday 7thJune 2016.
  10. See paragraph 27 of the transcript of the afternoon session of the Lords HS2 Select Committee held on Tuesday 7thJune 2016.
  11. See paragraph 28 of the transcript of the afternoon session of the Lords HS2 Select Committee held on Tuesday 7thJune 2016. In the unlikely event that the acronym “BAME” is new to you, it stands for Black, Asian and Minority Ethnic.
  12. See paragraph 31 of the transcript of the afternoon session of the Lords HS2 Select Committee held on Tuesday 7thJune 2016.
  13. See paragraphs 32 and 33 of the transcript of the afternoon session of the Lords HS2 Select Committee held on Tuesday 7thJune 2016.
  14. See paragraph 84 in the transcript of the morning session of the Lords HS2 Select Committee held on Tuesday 7thJune 2016.
  15. See paragraph 36 of the transcript of the afternoon session of the Lords HS2 Select Committee held on Tuesday 7thJune 2016.

Important Note: The record of the proceedings of the Lords HS2 Select Committee from which the quotes reproduced in this blog have been taken are uncorrected transcripts of evidence, which are not yet an approved formal record. Neither witnesses nor Members have had the opportunity to correct the record in such instances, and it may therefore be subject to changes being made in the light of any such corrections being requested.

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