Human rights and human wrongs, part 3

(… continued from Human rights and human wrongs, part 2, posted on 25 Apr 2017).

The sentiments expressed by the five petitioners that I have reported so far in this blog series are, I trust, reasonably representative of the many voices that were raised in protest at the way that decent people were being treated appallingly by a State that was hell-bent on seeing the HS2 project become an awful reality, but there is one more petitioner who I really must mention. That petitioner is Mrs Pam Whittam (see footnote 1), who lives with her husband, Martin, in the village of Twyford in Buckinghamshire. Mrs Whittam submitted a written statement to the Commons Select Committee, which was read out for her.

At the time, the couple were both 74 years old and living, as Mrs Whittam puts it, “in a house which we love in a village which we adore”, but in recent years this idyll has become for the couple “a time which we find frightening and intimidating because of what the proposed railway is doing to our lives”. The spectre of HS2 is, perhaps, particularly menacing to the Whittams because Mr Whittam is “suffering from memory loss”, which is probably a symptom of “the early stages of Alzheimer’s disease”.

Anyone who has suffered the misfortune, as I have, of a near relative succumbing to this dreadful disease will understand why Mrs Whittam would say that “familiarity of our world is such a comfort to Martin” and that, accordingly, she does not want to move. However, the progression of Mr Whittam’s illness may make a move necessary in the course of time and Mrs Whittam fears that, when that time comes, the blight resulting from HS2 means that the couple will “find it difficult to sell”.

In those circumstances, I would expect that, an application to the Need to Sell scheme (NTS) would be successful, although you can never predict how the NTS Panel will rule. It is not, however, the possibility of failure that worries Mrs Whittam, but the process of applying. In her words:

“I have watched and listened to my friends and next-door-neighbours … struggle with the complicated process of the Essential Hardship Scheme (sic). They have had to jump through hoops to produce information which is required, laying their lives open to forensic investigation of health records and financial affairs. I just do not have the energy or the will to face that sort of struggle as it would be me on my own as Martin is now not able to apply himself to such an onerous task.”

She concluded her statement with a simple plea to the Committee:

“I feel that our lives are being caught up in a nightmare which shows no sign of ending. Please let us have our free choice so that we, or as will probably be the case, I, can choose to move without the fear of a lifetime’s loss of equity and without having to endure the tyranny of the Essential Hardship Scheme”.

It would be wrong to accuse the Commons Select Committee of being indifferent to the succession of tales of sad circumstances and heartless treatment that they heard from hapless petitioners. Indeed, its Members showed great sympathy, and the Committee took the significant step of demonstrating its concern by publishing a special report devoted solely to the topic of the NTS scheme. Whilst this report recognises that the operation of the scheme had improved over the time that the Committee had been sitting, it did note some significant shortcomings and concluded that there “remains some disparity between the aspirations for the scheme and the way it is actually working” (see footnote 2).

I should also report that some progress has been made in making improvements to the compensation schemes arising from discussions between the Department for Transport and the HS2 Action Alliance that followed representations made by the latter to the House of Lords Select Committee.

These discussions aside, both Parliamentary committees having packed their bags, the administrators of the compensation schemes have lost their superego and much of the impetus to improve. The latest statistics for the NTS scheme show a 59/41 acceptance/rejection rate for Phase 1 and Phase 2a.

In its end of term report the Lords Select Committee makes some interesting comments on the legal context of the compensation schemes and, bearing in mind that the Committee’s Chairman was a retired Supreme Court Justice, one might think that these comments have some considerable legal authority. The report includes a section that discusses the degree of compliance of the HS2 compensation arrangements with the Human Rights Act 1998 and the UK’s underlying obligations under the European Convention on Human Rights and Freedoms (see footnote 3). Elsewhere in the report two significant comments are made that arise from the impact of these human rights provisions (see footnote 4).

The first of these is that Article 14 of the Convention prohibits discrimination in the enjoyment of Convention rights, and that it follows from this that the “human rights of thousands of residents of parts of Camden require that they should be properly compensated, and that a fair balance is struck between the rights of owner-occupiers and residential tenants, and between rural and urban residents”. In making this observation, the Lords Committee almost appears to be inviting some body, or individual, from Camden to test in the courts the legality of the HS2 compensation proposals, and the limits set by the Rural Support Zone in particular.

The second is the observation that, “in the absence of a non-statutory scheme, the statutory compensation code might, on its own, fail to comply with Convention rights” and the Committee’s description of the statutory code as obscure and inadequate. It seems totally indefensible to me that there should be doubt that our statutory compensation provisions comply with the Human Rights Convention, and that it has been necessary to concoct ad hoc non-statutory schemes for the HS2 project in order to address any shortcomings.

It is clear that the Law as it relates to property compensation requires urgent amendment, so that the need for non-statutory schemes can be avoided. That this is necessary is clearly illustrated by a report on a recent successful legal action in respect of a blight notice that a landowner had served on HS2 Ltd: my understanding is that recourse to the courts to contest the decision of the Secretary of State is not an option that is open to applicants to any of the non-statutory schemes.

Footnotes:

  1. Mrs Whittam’s quotes are taken from paragraphs 380 to 383 in the transcript of the morning session of the House of Commons HS2 Phase 1 Select Committee held on Thursday 22ndOctober 2015.
  2. See Chapter 2 and paragraph 29 of the publication First Special Report of Session 2015-16, House of Commons Select Committee on the High Speed Rail (London-West Midlands) Bill, 16thDecember 2015.
  3. See paragraphs 272 to 280 in the publication Special Report of Session 2016-17 High Speed Rail (London-West Midlands) Bill, House of Lords Select committee on the High Speed Rail (London-West Midlands) Bill, 15thDecember 2016.
  4. See paragraphs 213 and 225 in Special Report of Session 2016-17 High Speed Rail (London-West Midlands) Bill.

Important Note: The record of the proceedings of the Commons HS2 Phase 1 Select Committee from which the quotes reproduced in this blog have been taken is an uncorrected transcript of evidence, which is 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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