So what can you do for me, My Lord?

Having just returned from my session presenting the petition of my parish council to the House of Lords HS2 Phase 1 Select Committee (see footnote 1), I feel bound to reflect on the differences between this experience and the similar visit that I made to Westminster some eighteen months ago to petition the equivalent committee of the House of Commons. The Commons Committee described the Lords as undertaking “a similar task to ours” (see footnote 2), but I think that anyone who was expecting that we would see a simple rerun of the examination of issues that had already been considered by the Commons Committee would by now realise that is not what is going on. The House of Lords may have an important role in scrutinising and reviewing decisions that are taken in the Lower House, but the evidence so far is that the Lords HS2 Select Committee does not appear to have much of an appetite for challenging decisions taken by its Commons counterpart. The Promoter’s legal team appear to be using this reluctance to their advantage by citing decisions taken “in the Other Place” as being sufficient justification that those decisions were correct (see footnote 3). What petitioners are experiencing appears to be far removed from the promise made in the guide put out by the House of Lords Private Bill Office that “the two Houses consider the bill entirely independently” (see footnote 4).

To my mind, the appointment as Chairman of the Lords Select Committee of a former Justice of the Supreme Court of the United Kingdom has coloured the way that decisions and rulings have been made. These are handed down by Lord Walker in a form that appears indistinguishable from the rulings that he would have delivered from his Supreme Court bench, and rely on a strict judicial interpretation of Standing Orders and precedent, rather than on the modicum of good sense and common justice that the Commons Select Committee brought to bear – on a good day that is. Without doubt this has favoured the Promoter’s legal team, who have been able to pray in aid rules and past rulings that many feel are inappropriate in a modern context in order to severely limit the scope for petitioning. So most of the locus standi objections lodged by the Promoter have been upheld, leaving little more than a half of those who petitioned able to have their petitions heard in Committee Room 4. Even worse than this perhaps, the Government’s view that the Lords Select Committee has no powers to consider further changes to the HS2 design that would require an additional provision has been accepted by the Committee, so ruling out many of the remedies suggested by petitioners.

This is not to say that I think that Lord Walker is guilty of unduly favouring the Promoter. He is a Crossbencher and, as such you would hope, independent of any influence that the Government’s business managers might want to exert to get the hybrid Bill to Royal Assent as soon as possible. It is just that the judicial view of life and what one might call a common sense appreciation of what is right do not always arrive at the same conclusions. What does appear to be the case is that the Promoter’s legal team have enjoyed almost complete success with their attempts to reign back the rights of petitioners.

I also sense that under Lord Walker’s stewardship we are seeing a shift in the way that select committee proceedings are conducted. Although the Commons Select Committee was said to be a quasi-judicial process, it was a remarkably relaxed affair and petitioners appearing were often allowed considerable latitude. From what we have seen so far, it appears that proceedings in Committee Room 4 will be far closer to the conduct of a court of law and petitioners may expect to be brought into line if they stray off course.

I witnessed an example of how brutal this approach could be on the very day that I attended the Committee. A petitioner who was unhappy with the valuation that he had been given for a compensation payment under the Express Purchase Scheme was told that the Committee were “not going to listen to any more of this” and were “not a Committee that can deal with detailed questions of valuation”. When the petitioner continued to argue his case, Lord Walker terminated the hearing, telling the petitioner that he was “wasting [the Committee’s] time” (see footnote 5).

The day following my visit to Westminster, another person appearing in front of the Committee was given short shrift. In spite of having previously advised those “whose individual petitions are disallowed” that they could “still contribute … as witnesses on others’ petitions” (see footnote 6), the Chairman curtailed the evidence of one such witness, protesting that he was “simply trying to have another go at his own personal complaints” (see footnote 7).

The day following that, the presentation of evidence by a parish meeting petitioner was interrupted by the Chairman – Lord Freeman, not Lord Walker on this day – to ask the Promoter’s Counsel, “Do you believe that what [the petitioner is] basically asking for is what’s called an additional provision?” (see footnote 8).

The additional disadvantages being suffered by petitioners as a result of the rulings being made by the Select Committee were further added to by a statement made by Lord Walker at the start of the session that I attended. He upheld the Promoter’s challenge to the locus standi of eight Members of Parliament who had petitioned, on the basis that they had no locus as of right and that the Committee saw no basis on which to grant its discretion in this matter. One MP, the Rt Hon Cheryl Gillan, was as a “mark of respect” given the right to address the Committee, but not as a petitioner. Lord Walker stressed that the ruling “does not in any way diminish the reciprocal relations of courtesy and respect that prevail between Members of the two Houses” (see footnote 9).

I’m not sure that Mrs Gillan agrees with Lord Walker’s assessment of the impact that his ruling might have on relations with the Lower Chamber: she is quoted by one source as describing the decision as “an affront to democracy” (see footnote 10). It certainly silences eight powerful voices supporting petitioners.

At the start of the morning session of the Committee’s penultimate day of public hearings before the summer recess, Lord Walker warned petitioners yet to be heard that (see footnote 11):

“They will be squandering their time if they choose to present proposals which would require an additional provision, just as they will if they present proposals which go against the principle of the Bill. Instead, they would be wise to focus on issues and solutions over which the Committee does have power to intervene.”

That being the Committee’s view, it would be helpful, I feel, for Lord Walker to identify the areas where he feels that his Committee does have the power to intervene.

In the face of all this negativity, I am pleased to report that at least one petitioner has returned from Westminster with a victory. After an appearance before the Commons Select Committee after which he thought that he had been granted a fair deal, followed by eighteen months of frustration with HS2 Ltd holding back on delivery, this petitioner was granted a no ifs or buts ruling by the Lords Select Committee, giving him what he was asking for, within hours of having his petition heard (see footnote 12).

This particular petitioner, who is a near neighbour of mine, was obviously delighted, declaring that, “It just goes to prove that the House of Lords is worth keeping”.

Well I’m not sure that I would go quite that far!

Footnotes:

  1. Cubbington Parish Council’s hearing made be viewed from 17:08hrs in the video and is reported from paragraph 331 in the transcript of the afternoon session of the Lords HS2 Select Committee held on Monday 18thJuly 2016.
  2. See paragraph 406 in the publication Second Special Report of Session 2015-16, House of Commons Select Committee on the High Speed Rail (London-West Midlands) Bill, 22ndFebruary 2016.
  3. For an example, see paragraph 389 of the transcript of the afternoon session of the Lords HS2 Select Committee held on Monday 18thJuly 2016.
  4. 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.
  5. See paragraphs 253 and 263 of the transcript of the afternoon session of the Lords HS2 Select Committee held on Monday 18thJuly 2016.
  6. See paragraph 6 of the transcript of the afternoon session of the Lords HS2 Select Committee held on Monday 13thJune 2016.
  7. See paragraph 143 of the transcript of the afternoon session of the Lords HS2 Select Committee held on Tuesday 19thJuly 2016.
  8. See paragraph 88 of the transcript of the morning session of the Lords HS2 Select Committee held on Wednesday 20thJuly 2016.
  9. See paragraphs 12 and 15 of the transcript of the afternoon session of the Lords HS2 Select Committee held on Monday 18thJuly 2016.
  10. See the article HS2 Ltd successfully blocks MPs from speaking to the House of Lords committee, getbucks, 20thJuly 2016.
  11. See paragraph 2 of the transcript of the morning session of the Lords HS2 Select Committee held on Tuesday 19thJuly 2016.
  12. The hearing starts at paragraph 6 of the transcript of the morning session of the Lords HS2 Select Committee held on Wednesday 20thJuly 2016 and the ruling may be found in paragraphs 1 to 9 of the transcript of the afternoon session of the Lords HS2 Select Committee held on Wednesday 20th July 2016.

Important Note: The record of the proceedings of the Commons 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.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: