The Select Committee proceedings began in earnest last week, with the DfT setting out its opening statement (all 37 pages available here).
The Committee will no doubt grab some headlines this week when it begins to consider the 24 petitions submitted by parties whom HS2 Limited believe have no locus standi – that is they are not directly and specially affected by the proposals.
Amongst the parties who may be denied the right to appear in front of the Committee are the Stop HS2 campaign group, and the HS2 Action Alliance. It’s no great surprise that the locus standi of those organisations is being challenged by HS2 Limited, not least because if they do both appear it is likely to lengthen the Committee Hearing process by a number of days, possibly weeks. Most of us involved with the process cannot foresee the Committee process being concluded before early 2016, even without action groups being given air-time.
It will be interesting to see what decisions the Committee make this week. If they grant the campaign groups a right to be heard it may be seen as an indication that they will be more sympathetic to petitioners, but if they decisions agree with HS2 Ltd that those groups have no locus standi, it may be seen as an indication that they will apply their terms of reference very strictly.
Aside from acting as a pre-cursor to this week’s decisions, perhaps the two most important statements for petitioners and their advisors to note from Timothy Mould QC’s opening statement for the DfT are:
1) ‘On many occasions we shall direct you to the Information Papers as containing the gist of our response on particular petitioning issues’ (para 34)
2) ‘There is no substance in the argument put forward by some petitioners that the law requires this Committee to act as a kind of auditor of the overall adequacy of the Environmental Statement’ (para 119);
As we have long been stating in these articles, at presentations and in advising our clients, familiarity with the Information Papers (‘IPs’) is critical. As with Crossrail and CTRL before that, the promoter will use the IPs to rebut petitions wherever possible. It is likely that within Petition Response Documents – to be received by individual petitioners four weeks prior to their appearance in front of the Committee – HS2 Limited will seek to rebut each point of objection that a petitioner has made by referring the Select Committee to statements within the IPs.
The problem with that of course is that the IPs are very generic, whereas petitioners generally require property-specific commitments. In preparing petitions on behalf of our clients we repeatedly referred back to the IPs, to ensure that the arguments we were developing could not be rebutted by simple reference to ‘commitments’ contained within those documents. The ‘commitments’ contained in the IPs cannot be enforced by individual landowners – the IPs are basically a set of documents which set out, in high level detail, the principles that HS2’s contractors will be required to apply when carrying out the works, but they have no legal standing.
If any petitioners are concerned, having read this, that they may become unstuck at the first hurdle (i.e. their petition may be easily rebutted by reference to the IPs), it is not too late to seek advice about how the points raised within their petition can be developed at the Select Committee hearing, such that the Committee Members understand how and why the ‘commitments’ within the IPs are insufficient, and why property-specific undertakings are required. Two members of our team have enrolled as Roll B agents and we are also working closely with a number of lawyers and Roll A Parliamentary Agents to advise existing clients. If you would like to discuss your petition please contact Jonathan Stott on 0121 212 2002 or at email@example.com.
In relation to the ES Timothy Mound QC explained, quite rightly, that ‘time and again the courts have emphasised that the function of the ES is to inform statutory bodies, the public and the decision maker about the likely environmental impacts of a project. It forms part of the process of Environmental Impact Assessment. It is not an end in itself’.
All of that said, there is no reason why a petitioner should not point out any aspects of the ES which he or she believes to be incorrect or inaccurate. What is important however, is for petitioners do avoid focusing their case around an argument based on the legality or purpose of the ES. Those things are not in question.
On reading the DfT’s Opening Statement a couple of statements made me smile, or caused me to raise my eyebrows…..
Firstly, at para 32 Timothy Mound QC stated that ‘the complexities of the Environmental Statement have been overstated’. I have only read the statement and I Affecting have not heard it, but QCs are not generally known for using sarcasm on these occasions, so I assume this statement was delivered with a straight face! In reality, it’s an awfully painful document to navigate, as many readers will know all too well.
Secondly, at para 62 it was explained that ‘in April 204 the Secretary of State announced a further package of discretionary compensation measures to mitigate the effects of generalised blight’. Unsurprisingly, Timothy Mound QC did not draw any attention to the fact that only two of the four measures announced have actually been implemented! The other two – the rural voluntary purchase scheme and the rent-back scheme have yet to be subject to the additional stage of consultation that was promised to happen ‘shortly’ back in April.
Finally, the phrase ‘disinterested MPs’, used to describe the members of the Select Committee, is supposed to relate to the fact that the Committee members’ constituencies are not affected by the scheme, and so they have no conflict of interest. However, last Wednesday, one of the dis-interested MPs, Yasmin Qureshi, was apparently unaware that not only had HS2 Ltd seen the House of Commons’ Environmental Audit Committee’s report on HS2, but they have responded to it as well! If there are many more displays of members being unaware of key issues the phrase may begin to take on an altogether different meaning!