High Speed Rail (West Midlands–Crewe) Bill

Baroness Vere of Norbiton Excerpts

Tuesday 8th December 2020 Lords Chamber

[Lord Tunnicliffe (Lab) [V]]

My Lords, I thank the noble Lord for raising these issues. I take his point about the safety of the public and protesters, and I hope that he will get appropriate assurances from the Minister.

The issue is one of corporate culture, particularly on safety. With the permission of the House, I will take this as an opportunity to say a word or two about safety. The noble Baroness, Lady Randerson, was quite right to say that HS2 is a linear building site. She referred to safety standards two or three decades ago. Those were decades when I was responsible for parts of railway safety. I became managing director of London Underground nine months after we had killed 31 people at King’s Cross. That made safety my highest priority for the next 12 years. Essentially, I discovered that safety comes from personal leadership by the people at the top.

Subsequently, I was chairman of the Rail Safety and Standards Board for five years. During the early period of my responsibilities, the Channel Tunnel was completed. That cost 10 lives. We were about to start building the Jubilee Line extension and, pro rata, we would have expected to kill some people, but we decided that that was unacceptable. We set as a major objective of the project that we should kill nobody—and I am delighted to say that we succeeded.

It was a £3.5 billion project, built in extremely difficult conditions under some of the most sensitive, complex and little-understood parts of central London. Leadership was key to conducting the programme to the highest safety standards, which were not traditional in the construction industry at that point. We achieved that by involving the very top people among the contractors. As part of their contracting process, they had to turn up with their managing directors and understand, and commit to, high standards of safety. A key feature of our whole safety philosophy was that London Underground always retained principal responsibility for safety, whoever was doing the work. You cannot subcontract responsibility: you might be able to join other people in that responsibility but you cannot subcontract it.

In preparing for this debate, I looked at the HS2 health and safety policy. It is fine as far as it goes, but I do not know whether there is a real safety culture. Can the noble Baroness take back to the Minister in charge of HS2 my strong recommendation that he makes it his top priority to assure himself that a health and safety culture exists in HS2? I freely offer my help and advice in this task.

[The Parliamentary Under-Secretary of State, Department for Transport (Baroness Vere of Norbiton) (Con)]

My Lords, I thank my noble friend Lord Randall for tabling the amendment on this very important topic. The health, safety and well-being of the communities along the route of the new railway, of HS2 staff and of protestors is a primary concern for HS2 Ltd, which has a “safe at heart” approach, putting health, safety and well-being at the heart of the project. That ethos is carried through those employed by HS2 Ltd and those in its supply chain. This goes beyond the worksite itself. People must be safe when they are working on large, complex HS2 construction sites; they must be safe when they live, work or travel near the worksites; and they must be safe when travelling on roads affected by HS2 works and traffic. That is why HS2 Ltd already reports on health and safety in its annual report and accounts, using standard industry metrics. The overall health and safety index score increased throughout the 2019-20 financial year.

We recognise that, given the nature of the works on HS2 and the profile of the project, it is necessary for security personnel to be a part of the project. They ensure the health and safety of those who work on HS2 and those who live and work near it. Those security personnel are held to strict standards. It is a contractual requirement that all security guards working on the HS2 project must hold a licence issued by the Security Industry Authority. Additionally, the companies that they work for must be part of the Security Industry Authority’s voluntary approved contractor scheme, which acts as a quality assurance scheme for the private security industry.

HS2 Ltd has been very clear on the values that it expects to be followed by all staff in its supply chain, and on the behaviours of those in public-facing roles, such as security guards. Actions or behaviours that fall short of these expectations are dealt with firmly but fairly after a thorough investigation. My noble friend Lord Randall asked how members of the public can bring forward concerns. HS2 Ltd operates a freephone community helpline, 24 hours a day and 365 days a year, where anyone can register their concerns. HS2 Ltd has committed to respond to questions and complaints quickly and efficiently, with an acknowledgement within two working days and a response within a maximum of 20 working days if the query cannot be answered straightaway.

Of course, there are also those determined to obstruct the works, with the aim of halting the progress of a project authorised by Parliament. We recognise that members of the public have a right to protest peacefully and in a lawful manner, but it is entirely proper that once Parliament has authorised a scheme, contractors should be allowed to get on with building it. Where any protestors refuse to leave land needed for construction and must be removed, HS2 Ltd works with specialist security staff, the police, the fire service and the ambulance service to do this safely.

Health and safety on worksites, and in the workforce, is of vital importance, especially when it comes to Covid-19. Since the beginning of the pandemic, the HS2 Ltd supply chain has stipulated to all staff and subcontractors the requirement to comply with government and industry guidelines. Where works cannot be delivered in accordance with Public Health England and industry guidelines, sites have temporarily closed to ensure the safety of staff and local communities. Nevertheless, some staff may have to be present to make the safety assessments and to ensure that the sites remain safe and secure.

I was very interested to hear the experience of the noble Lord, Lord Tunnicliffe, and certainly I will take his suggestions back to my colleague Andrew Stephenson MP, the Minister for HS2. It was heartwarming to hear of such a large project being constructed so successfully. The amendment is welcome. It is an opportunity to raise these issues. HS2 Ltd must be held to account by the high standards that it has set. I hope that my noble friend is reassured by what I have said, is less Swampy or Grumpy, is happy, and on that basis is able to withdraw his amendment.

[Lord Randall of Uxbridge (Con) [V]]

My Lords, I thank noble Lords who have taken part in this short debate, particularly the noble Baroness, Lady Randerson, and the noble Lord, Lord Tunnicliffe. I echo what the Minister said about the opportunity to have such expertise from him, which we should be making use of on this project. I say to the noble Baroness, Lady Randerson, that a lot of these sites are round-the-clock. There are a lot of issues around light pollution and so forth, but it is very difficult to keep an eye on all aspects of it.

I was struck by the noble Lord saying that the leadership at the top must take responsibility and that you cannot subcontract responsibility. Although, as always, I am charmed by the Minister and her warm words, I am not entirely convinced that the practice matches the theory around some of the security personnel. They do a difficult job in difficult circumstances, but one or two—not all of them—are overstepping the mark. It happens in every walk of life, and they must put up with a lot from some of the protestors, especially those protesting illegally. It is not an easy job.

Regarding the Minister’s comments about Covid-19, I hope that this will not be an issue for phase 2A, which we are discussing, but I must say again that whatever security was instructed to do, the practice was not as specified. There were numerous incidents where all the things that we were trying to do at the height of the first lockdown—social distancing et cetera —were not being observed. However, I have aired my worries. It is true that we do not so much look at the safety aspect of this but take it for granted, which we should never do. With that, I beg leave to withdraw my amendment.

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[Lord Rosser (Lab) [V]]

My Lords, I do not intend to detain the House for long. I congratulate my noble friend Lady Young of Old Scone on achieving a positive result for her amendment on an issue that she has pursued with great tenacity and persuasiveness, not least during the passage of this Bill. I hope that the Government will also feel able to provide the assurances that my noble friend is seeking. It is very helpful that the Government are accepting the amendment in the name of my noble friend, with its requirement for the nominated undertaker to prepare and publish annual reports about the impact of the construction of each phase of High Speed 2 on ancient woodland. Hopefully, this will raise the profile of the actual adverse impact on ancient woodlands of the construction of HS2 and, by doing so, help achieve a better result as far as the protection of, or damage limitation to, such woodlands is concerned than would otherwise be the case.

[Baroness Vere of Norbiton (Con)]

My Lords, there are two amendments in this group, the first in the name of the noble Baroness, Lady Jones, to which I cannot agree, and the second in the name of the noble Baroness, Lady Young of Old Scone, which, if she chooses to move it, I will be pleased to be able to support. Turning to the first amendment, this might at first glance appear to be very similar to the second amendment—indeed, some noble Lords have referred to it as being “soft” or “gentle”. I would like to reassure noble Lords that Amendment 13 is not in any way less good. From my perspective, I would like to highlight the important differences, as did the noble Baroness, Lady Jones of Moulsecoomb. In putting my perspective on them, I hope that noble Lords will agree—and I hope that the noble Baroness, Lady Jones, in particular will agree—that their fears are unfounded, and that Amendment 13 is certainly a very good amendment indeed.

First, Amendment 10 calls for the frequency of reporting to be every six months, whereas Amendment 13 proposes that it be annually. I will explain a bit later why that is appropriate. Secondly, the amendment restricts the reporting required to only those works authorised in this Bill—phase 2a—where we believe, and I hope that the noble Baroness, Lady Young of Old Scone, believes as well, that all HS2 phases could be and should be included in this report.

Thirdly, in the amendment tabled by the noble Baroness, Lady Jones of Moulsecoomb, the report required is narrowed by the definitions of direct and indirect impacts. Again, I will go on to explain how that will be covered in the report that we propose, because we believe that we can go broader than that. Finally, there is a difference with regard to the requirement for a mini-consultation associated with each report.

I do not believe that these differences augment the amendment in the name of the noble Baroness, Lady Jones of Moulsecoomb; rather, they restrict it and place limitations on the value that more reporting on the impacts on ancient woodland could bring. On this basis, and given the knowledge that I am able to support Amendment 13, I hope that the noble Baroness, Lady Jones of Moulsecoomb, will withdraw her amendment.

Turning to Amendment 13, one of the aims of the HS2 project is always to try to reduce its impact on ancient woodland. As has been said before, some impact is inevitable. The environmental statement gives an assessment of the reasonable worst-case scenario. Although impacts on ancient woodland cannot be fully compensated, losses will be addressed through a range of measures, as I have outlined previously.

Through extensive engagement on phase 2a, HS2 Ltd has already found ways to protect some veteran trees which were previously expected to be lost. Furthermore, through the redesign of embankments in the Whitmore Wood area, HS2 Ltd has been able to commit to some reduction in impact on the ancient woodland there. Wherever possible, the Government will continue to push HS2 Ltd to go further on this matter.

I am so grateful to the noble Baroness, Lady Young of Old Scone, for her engagement on this matter; she brings vast knowledge and experience. I recognise that her amendment may not go quite as far as she would ideally have liked, but I hope she will agree that the outcome is a significant step forward. Her amendment places a requirement on HS2 Ltd to publish reports annually on the impacts on ancient woodland across the whole of HS2, not only phase 2a. This has the benefit of committing to reporting on phase 1 of the project as well as phase 2a, and, of course, on future phases. The annual nature of reporting fits well within the life cycle of trees, as the works undertaken follow the seasonal pattern of trees, as required by other legislation. But just because the reporting is annual, it does not mean that the monitoring is annual, or that lessons learned are put in place on an annual cycle—it can be more frequent than that.

Furthermore, by not defining the term “impacts”, HS2 Ltd will report on a wide range of issues relating to ancient woodlands, including those that could potentially be caused by non-compliance with the code of construction practice. The reporting will include measures undertaken relating to breaches of assurances for ancient woodland and lessons learned, should they occur—and, of course, we all hope that they do not.

The phase 2a draft code of construction practice sets out the management measures that HS2 Ltd will be required to follow during construction of the scheme. This includes measures designed to control and prevent the impacts on which noble Lords have raised specific concerns, including the protection of habitats such as ancient woodland, and the control of dust, water quality, noise, vibration and lighting. I believe that these are the sorts of indirect impacts sought by the noble Baroness, Lady Jones of Moulsecoomb.

But, of course, there is more. There are also specific measures designed to minimise adverse ecological effects, including: developing a programme of ecological surveys to be undertaken prior to and during construction, including on bats; the relocation and translocation of species, soil and plants; the reinstatement of any areas of temporary habitat loss; restoration and replacement planting, for example of trees, hedgerows, shrubs and grassland; and using by-products of construction to enhance mitigation provisions, for example using felled trees to provide dead-wood habitats. There is also a requirement to consult with Natural England, the Environment Agency, local wildlife trusts and with relevant planning authorities prior to and during construction.

By committing HS2 Ltd to report on non-compliance with the measures set out in the code of construction practice, we are ensuring that all these impacts are captured and are not limited to the narrower definition of impacts in the amendment proposed by the noble Baroness, Lady Jones of Moulsecoomb. Further, the reporting will include the variance between what ancient woodland the environmental statement has assessed will be lost or impacted by HS2 and what actually occurs. The environmental statement is a reasonable worst-case scenario; in effect, it is an educated estimate of the impact. I hope very much that reporting on the actual outcome in comparison to the baseline in the environmental statement will have a positive impact on helping future programmes and projects improve their assessments for their own environmental statements and reporting.

I will go further. I am pleased to commit HS2 Ltd to reporting on the volume of metres cubed of ancient woodland soils that have been translocated, and to reporting on the number of hectares of ancient woodland compensation and restoration that have been included in the detailed design of the scheme. I am also pleased to commit the company to reporting on the number of hectares of ancient woodland creation and restoration delivered through all HS2 funds that deliver woodland creation. The intention is to publish the ancient woodland impact reports in the annual environmental report. Ancient woodland mitigation and impacts are discussed in the ecology review group.

The noble Baroness, Lady Randerson, tried her luck in seeing whether we could go further on wetlands and meadows. Of course we recognise the importance of those environments so, if she is in agreement, I will write to her on the steps being taken to make sure that those impacts are also minimised.

I thank the noble Baroness, Lady Young of Old Scone, for Amendment 13, and for taking me on a journey. I am not quite at the same point as she is on it, but I am not quite where I used to be. I hope that she will move her amendment when the time comes, and it will give me great pleasure to support it.

[Baroness Jones of Moulsecoomb (GP) [V]]

My Lords, I thank all noble Lords who have taken part in the debate, which has been quite interesting for me as well. I reassure the noble Baroness, Lady Young of Old Scone, that I am absolutely thrilled to be left holding the baby. It is a beautiful baby and I am honoured to do so.

I found the contribution of the noble Lord, Lord Haselhurst, to be appalling. I was quite staggered to hear him say things like we must not be held prisoners of the past. Images came to mind of students pulling down statues of slave owners and I wonder if he supports those as well. It is absolutely fantastic if he does. He made comments about how the railway must be straight. It does if trains are going at 250 miles an hour, which is the planned speed for it. Of course, the railway will not do that at first—it will be 225 mph or something—but is still exponentially far less environmentally friendly at that sort of speed. Yes, it has to be a straight railway line because it cannot go around corners, which means that the line will go through a lot of extremely valuable land.

Both the noble Lord, Lord Haselhurst, and the noble Lord, Lord Bradshaw, talked about replacement trees. I congratulate them on wanting replacement trees, but there is also the fact that in the drought of summer 2018, tens of thousands of trees that HS2 Ltd had planted died. It said that it was cheaper to replace them than to water then, which means that 89,000 trees died and were replaced with, again, small trees. What is needed as a replacement is large trees; if you have to keep replacing them, you will keep on getting small trees. I would argue that HS2 is not entirely reliable about planting its trees.

As usual, the noble Lord, Lord Cormack, was extremely kind to me, apart from the comment about my short fuse, which is sadly true. I am glad that he likes Amendment 10, which is a credit from him and I thank him for it. I congratulate the noble Lord, Lord Carrington, on planting hardwoods instead of pines. I am not sure that I liked his description of Amendment 10 as “well intentioned and harmless”. I would like to think it is tough and radical. I also congratulate him on pronouncing my name correctly, which many Peers do not.

The noble Baroness, Lady Randerson, talked about the rich ecosystem that exists in ancient woods. That is the whole point: it is difficult, if not impossible, to replicate that when such biospheres are very precious. This is not just about preserving the past; it is about making sure that our whole environment stays healthy. Sometimes we do not know, until we have lost them, what the precious things we have do overall. I am also glad that she talked about wetlands and meadows, which of course are just as important. Had there been amendments concerning them, I would have supported them fully.

The noble Lord, Lord Rosser, congratulated the noble Baroness, Lady Young, on her incredibly important work on this. I thank the Minister. It was good that she talked about direct and indirect impacts. That was valuable, but I am not clear how the lessons learned will be dealt with by the Government and am not sure if the Minister is able to let us know. In the meantime, I beg leave to withdraw Amendment 10.

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[Lord Tunnicliffe (Lab) [V]]

My Lords, I too attended the Zoom session on this issue. I thank the Minister and those present for organising it.

I can see that NDAs were necessary in the consultation stage, but there is a question mark, which is difficult to debate, over whether they were necessary in such volume. More importantly, was there possible misuse to suppress whistleblowers? We were given some assurances about that, which, once again, I found at least partially convincing. I hope that the Minister will repeat those assurances for the record.

There is a more general point as to whether NDAs are overly used in public procurement. I believe that there may be a case for more transparency and that the Government should consider launching a general investigation into transparency in public procurement. However, I agree with the noble Lord, Lord Berkeley, that that is a bigger issue and it would be inappropriate to pursue it further at this point.

[Baroness Vere of Norbiton (Con)]

My Lords, I recognise that transparency is a key issue in relation to HS2. It enables oversight by Ministers and Parliament, and provides accountability to the public on how we are spending taxpayers’ money and on how the project is being delivered. This amendment is trying to get to the heart of this issue of transparency. However, I do not recognise that it is of any aid in this endeavour. I am not sure that I can add much more to what I already said in Committee or in subsequent meetings, but I will happily go round the track again to put the Government’s position on record.

HS2 enters into two types of agreements—confidentiality agreements and settlement agreements. Confidentiality agreements enable the exchange of information between HS2 and other individuals or organisations, including local councils and businesses. With such an agreement in place, HS2 Ltd can have open and frank conversations with the other party about a range of plans and proposals, some of which may not come off. These could include early considerations of different design options that, if made public, could cause unnecessary alarm and blight local properties.

Confidentiality agreements also enable those other parties to share information with HS2 Ltd without it being made public. These agreements are being made not because HS2 Ltd wants them, but because the other party does. For example, a small local business could share its accounts to determine the compensation available to it. This could not happen if confidentiality was not ensured.

As a number of noble Lords have noted, in the history of HS2 since 2011, 339 confidentiality agreements have been signed. Not all will have been required by HS2; some will have been required by the other contracting party. I know that some feel this is too many. I have to disagree. Thousands of landowners, businesses and councils are involved with the project, so I do not think this is disproportionate. I have the feeling that the noble Lord, Lord Rooker, does not think it is disproportionate either.

Confidentiality agreements are not entered into with staff members at HS2 Ltd. There are confidentiality obligations within staff members’ employment contracts, but this is standard business practice, consistent with that in other public sector organisations.

Settlement agreements are a completely separate form of legal undertaking. They are entirely voluntary and include confidentiality provisions in line with the guidance set out by the Cabinet Office. These agreements can be signed only when an individual has taken independent legal counsel and fully understands their rights and obligations. Settlement agreements are entered into with a small minority of staff who are leaving HS2 to document mutual actions that avoid tribunal claims, or to keep private the sums involved in certain redundancies.

Neither confidentiality agreements nor settlement agreements can be used to gag those who wish to raise concerns about HS2. Whistleblowers are protected by law and none of HS2 Ltd’s business practices contravenes or frustrates this. HS2 Ltd has a whistleblowing procedure called Speak Out, as the noble Baroness, Lady Kramer, noted. This provides a route for staff, contractors and members of the public to raise concerns. The operator of this line is independent of HS2. Queries or concerns raised through this process are investigated by HS2 Ltd’s counterfraud and ethics team, and any necessary action is taken. Where necessary, suitable independent third parties will be brought in to investigate the issues raised. Updates are provided regularly to senior HS2 leaders, including non-executive directors, who act within the seven principles of public life: selflessness, integrity, objectivity, accountability, openness, honesty and leadership.

A number of noble Lords have noted that there may be one or two deficiencies in the amendment. It states that an independent third party should have control over how HS2 Ltd uses what it refers to as non-disclosure agreements—NDAs—which are those two previous agreements I spoke about. We do not feel that this is appropriate, necessary or, indeed, helpful. This issue was considered by the Secretary of State for Transport during the passage of this Bill in the other place, including whether it might be pertinent to appoint further observers or implement new complaints processes. The conclusion was that the use of these standard agreements should not be constrained by the imposition of a third party. There is simply no evidence that such an imposition is necessary or in the public interest.

If a party wishes to enter into a confidential agreement with HS2 Ltd, they should be free to do so. Indeed, they should also have the option for the very existence of that agreement to be private. I tried to follow the contribution of the noble Lord, Lord Berkeley, earlier, and I thank him for it, but I was a little confused. On the one hand, he said that he wanted an assessor for the public interest and to look at all the agreements that have happened in the past—which, as the noble Lord, Lord Rooker, pointed out, is slightly problematic—but on the other hand he noted that the use of a third party should be voluntary between the two parties. I could not figure out how that would work or, certainly, what problem it would solve.

I do not believe that the amendment has merit but I recognise that transparency is important. HS2 Ltd already publishes the number of settlement agreements it has signed in its annual report. In addition, HS2 Ltd will begin reporting the cumulative number of confidentiality agreements it has signed in that same report. I believe that HS2 Ltd is using these agreements in the public interest, and I therefore hope that the noble Lord will feel able to withdraw his amendment.

[Lord Berkeley (Lab)]

My Lords, I am very grateful to all noble Lords who have spoken in this short debate, particularly the Minister, for the meetings, the letter and other comments she has made. I shall respond very briefly to some of the comments made by noble Lords.

I say to my noble friend Lord Rooker that this amendment started in the House of Commons probably two years ago. As the Minister said, it was rejected at that stage, but there seemed to be quite a lot of support in some parts of the House, which I thought was interesting.

The noble Baroness, Lady Randerson, mentioned balance. I think that goes to the heart of what I believe is necessary. Of course, there have to be NDAs. My point about NDAs being voluntary was that companies or individuals did not have to sign an NDA if they did not want to—that was the voluntary bit. On the question of balance, we have talked about more than 300 NDAs that have been listed, but I suspect there are very many more among landowners that we have not discussed. Of course, it is perfectly reasonable that they should sign NDAs as part of their negotiations.

This is an issue that will go on. It is helpful that the risk assurance committee set up in HS2 will look at some of these things. I am not actually suggesting that we go back to square one and look at every NDA that HS2 has signed, but one could say that one would look only at new ones signed after the Bill gets Royal Assent. However, this has been a very useful debate and I am particularly grateful to the noble Baroness, Lady Kramer, for her support. I beg leave to withdraw the amendment.

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[Lord Tunnicliffe (Lab) [V]]

My Lords, I have a lot of sympathy with the noble Earl, Lord Lytton. It seems that the 1996 Act covers these issues, and I am very suspicious of why HS2 needs such a significant change to the provisions of that Act for its project. I am not convinced that it needs these powers. I believe that, with modest alterations, good management should be able to overcome any problems. However, one faces the classic dilemma of a specialist area in an important Act, which is that I cannot know that I am right because we have not been able to listen to various points of view other than the expert knowledge of the noble Earl, Lord Lytton, and it is possible that the project needs these powers. As I understand it, there are likely to be few party walls in this phase of the project. He may be right that a dispute might significantly delay the project. Hence, I am unwilling at this stage to support the amendment if there is a Division.

[Baroness Vere of Norbiton (Con)]

My Lords, as I know the noble Earl is already aware, the Government cannot accept either amendment to the Bill. I will address the first amendment in this group and then move on to the second.

At the outset, I extend my thanks to the noble Earl, Lord Lytton, for the time and effort he has taken to work so constructively with department officials over the last few weeks. He has painstakingly explained his concerns both in writing and over the course of several meetings, as well as in the debate today. I am pleased that this work has been productive and that the first of these two amendments today recognises that we have moved on from the discussions in Grand Committee.

Schedule 23 to the Bill amends the operation of the Party Wall etc. Act 1996—which I too will call the 1996 Act—to enable the railway to be built as swiftly as possible. At the same time, Schedule 23 retains many of the protections for adjoining owners found in the 1996 Act. This schedule exists to reduce delay in construction due to any disputes which could otherwise arise if party wall matters were sorted out solely under the provisions of the 1996 Act. It also ensures the safety of the railway itself by providing for the railway to be constructed to the right engineering standards next to neighbouring properties. Lastly, it ensures that affected adjoining owners are afforded the protections and compensation due to them.