High Speed Rail (West Midlands-Crewe) Bill

Baroness Watkins of Tavistock Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords & Committee: 2nd sitting : House of Lords & Committee: 2nd sitting
Thursday 12th November 2020 Grand Committee

[Baroness Vere of Norbiton (Con)]

My Lords, non-disclosure agreements, or NDAs, are entered into voluntarily with the consent of both parties. In the case of the HS2 programme, NDAs are used for good reason and in the public interest. For example, NDAs may allow HS2 to have open and frank conversations with stakeholders, including local authorities and businesses, on a range of plans and proposals—these are not firm schemes but plans and proposals; they are things that may come to pass or may not. By doing so, it has better access to the information it needs to inform the proposals then put forward. If all possible developments are public at all times, the alarm and concern created in local communities would be simply extraordinary.

NDAs provide huge value to the taxpayer and local communities by reducing generalised blight that would happen otherwise. HS2 entered into agreements with local authorities as part of the very early stages of exploring the different route options. This protected swathes of the country from suggestions of new infrastructure. What would have happened had those suggestions come out? Property values would have plummeted, yet most of those suggestions were just that—suggestions—and they would never have come to fruition.

The private nature of such conversations is helpful. It reduces worry and uncertainty for those affected by the scheme. The use of NDAs also protects the public’s private and personal data. Sometimes, it is necessary to share information between organisations. For example, there might be concerns about somebody’s welfare. HS2 has a duty of care but also needs to share such data in compliance with the law. NDAs allow this to happen. Protecting personally sensitive and project-related data in this way allows the project to avoid affecting property values unduly and to protect individuals’ rights. I am confident that the use of NDAs by HS2 is in the public interest. It is not a way to avoid transparency; it is a way to ensure that HS2 is able fully to scope the costs of the various proposals in a confidential manner and to ensure that whatever proposals are eventually put on the table are those most likely to succeed, while minimising the alarm caused in areas which, frankly, do not need to be alarmed because they were not in the end chosen.

The need for an independent assessor to testify to the public interest has been discussed extensively and considered by the Secretary of State for Transport during the passage of this Bill, including whether it might be pertinent to appoint further observers or implement a new complaints procedure. The conclusion has been that it is right that those who wish to do so should have the opportunity—they do not have to do it—to enter into an NDA with HS2 Ltd. In this sense, people who are affected by the scheme should be allowed to protect themselves and their private conversations with HS2 without concerns that their data will be shared with a third party. Just because these private agreements are just that, private, does not make them invalid or an illegitimate form of protection for the parties—it does not make them shady, as has been the impression I have been given by the speeches of some noble Lords. They are voluntary agreements that can be entered into for various reasons.

If an independent assessor were appointed to scrutinise such agreements, they would be breaching the privacy of those agreements. The appointment of an assessor would effectively prevent the sharing of information on a confidential basis. This would cause delay, which noble Lords tend not to like. It would increase uncertainty —again, a bad thing—and costs for those affected by the project and the cost of the project itself, which is ultimately paid for by the taxpayer.

I want briefly to mention that there are established complaints procedures for members of the public who wish to have their concerns considered through independent scrutiny. As noble Lords are aware from day 1 of Committee, there is Sir Mark Worthington, the independent construction complaints commissioner. There is also the residents’ commissioner, Deborah Fazan, who is in place to hold HS2 to account for the commitments in the residents’ charter. She produces periodic reports on HS2 performance against those commitments. Within HS2, there is an established whistleblowing hotline, called Speak Out. Speak Out provides a route for staff, contractors and members of the public to raise concerns about any potential misuse of taxpayers’ funds.

The noble Baroness, Lady Kramer, mentioned that she would like a meeting. I would very much appreciate a meeting with her, although I might perhaps offer my colleague, Minister Stephenson, as the HS2 Minister. He would be better able to hear her concerns, because we need to get below the whole “Ooh, it’s a bit shady; 342—isn’t that too many?” I do not know: is it too many or is it too few? The whole point is: are the non-disclosure agreements the right ones, and are they reached voluntarily and for the right reasons?

I would like the noble Baroness, Lady Kramer, perhaps to have a meeting with my colleague, the HS2 Minister, to talk through some of the evidence and some of the things that may have happened in the past, which we have been able to remove, because of the steps that have been taken, and to discuss any ideas that she has for steps that we can take in future to ensure the requisite level of transparency—but also to protect the taxpayer and ensure that confidential conversations can take place when appropriate.

On the basis of my intervention, I hope that the noble Lord feels able to withdraw his amendment.

[The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)]

I have received requests to speak after the Minister from the noble Lord, Lord Adonis, and the noble Baroness, Lady Kramer.

[Lord Adonis (Lab)]

The Minister’s response has been compelling. She is right to point up the importance of HS2 Ltd being able to discuss with local authorities confidentially different route options, treatment of works, and so on. That is completely correct. Of course, if that was not possible, HS2 probably would not be able to have some of those conversations, because the issues raised would be too sensitive. Therefore, I do not think that the case for this amendment has been made even in principle.

I note that the noble Baroness, Lady Kramer, is going to come in after me. If she is going to try to persuade the Committee that there should be some more different and onerous process for HS2 Ltd in respect of non-disclosure agreements, she will have to be franker with the Committee about that. I do not think that we should have general statements made that would lead to substantive changes in a non-disclosure agreement that could impede the work of HS2 Ltd, unless we are given instances that we find compelling to justify that.

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Amendments 8 to 10 not moved.

[The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)]

We now come to the group beginning with Amendment 11. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate.

Amendment 11

Moved by

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[Lord Berkeley (Lab)]

My Lords, I shall speak briefly in support of these two amendments. They are vital to getting the best out of HS2. Amendment 11 was moved by the noble Baroness, Lady Randerson, who mentioned 20 trains an hour in and out of Moor Street, and there is a great deal that needs to be done around Birmingham to improve local services there. She and other noble Lords mentioned the problem—or the not very good services—and the tracks that head from Birmingham eastwards towards Nottingham and Derby. I think there is quite a strong argument for either upgrading the existing lines or at least building HS2 section 2b there.

I have more of a problem with making decisions now about what should happen to HS2 between Derby and Nottingham towards Leeds and Sheffield. There are various ways of doing it, such as just upgrading the existing routes or improving the east coast main line, which I know my noble friend Lord Adonis is greatly against, as he said on Monday. However, all these things need to be looked at because when we were doing some of the consultation, such as it was, for the Oakervee report, it was quite clear that the demand for services in the Midlands and the north was primarily for shorter distance and to a large extent east-west, and therefore getting across the Pennines somehow is very important. Whether it is HS2, Network Rail or Transport for the North does not really matter as long as there are services there and further south from Birmingham to the Derby area. The key is to have frequent, reliable services going faster, but whether they need to be separate or together with HS2 is something I think the Minister is looking at in her study.

For me, HS2 is, as my noble friend Lord Adonis said, not a network but a line which starts in London, splits in two and goes to Manchester, and perhaps a little further north to connect with the west coast main line, and to Sheffield and Leeds. The network is there to connect with much improved local services, and therefore the amendment tabled by the noble Baroness, Lady Randerson, is very important. It needs to link with, I hope, improved local services.

I also support the amendment tabled by my noble friend Lord Rosser to some extent. It is very important, but we are almost going back to the discussion we had about the Transport and Works Act and hybrid Bills and whether local authorities in the present set up have enough resources and are given enough time in Committee to make their arguments. That is something that I am sure we will continue to discuss over the next few weeks.

[The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)]

I call the noble Lord, Lord Bradshaw. Lord Bradshaw? We will move on and I will call the noble Lord, Lord Rosser, and return to the noble Lord, Lord Bradshaw, if we can connect with him. The noble Lord, Lord Rosser.

[Lord Rosser (Lab)]

I shall be relatively brief. My amendment is on a similar theme to the amendment moved by the noble Baroness, Lady Randerson, but mine relates more specifically to transport provision in Shropshire and Staffordshire. It refers to the construction and maintenance of the HS2 works and to changes to general passenger movement caused by the works and the implications for railway stations in order to keep it within the scope of the Bill.

Shropshire and Staffordshire are not particularly well placed when it comes to public transport, and it looks as though HS2 phase 2a is going to present considerable upheaval for some residents during construction, and perhaps to a degree afterwards, when there is no direct subsequent benefit to them from HS2 phase 2a, as there will be no stations nearby that will give them easy access to the new high-speed service.

At Second Reading, my noble friend Lord Tunnicliffe raised the lack of transport infrastructure in Oswestry. Since Second Reading, it has been announced that the bus station in Oswestry could close. On the other side of the coin, there are rumours of the Government supporting the reopening of a railway station in Oswestry. Can the Minister say whether the Government would support such a station and obviously then the restoration of a rail link to Oswestry?

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It would be helpful to have responses to these questions and also to the general point about whether it is the Government’s intention to take a serious look at improving transport links generally in Shropshire and Staffordshire as an associated part of the HS2 phase 2a project, which will pass through the area but be of little benefit to those most affected if transport links to gain access to and from the new high-speed services are not also considerably improved.

[The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)]

I call the noble Lord, Lord Bradshaw. Lord Bradshaw, I think you are muted. You have to unmute yourself with the new system. Lord Bradshaw, I am sorry, but as we cannot connect with you, we will move to the Minister.

[Baroness Vere of Norbiton (Con)]

My Lords, connectivity between HS2 and the wider network and the impacts of HS2 on that network are critical concerns. The central aim of HS2 is to improve connectivity along its length and to ensure that it integrates with all modes of transport, including local rail and bus networks.

On rail specifically, noble Lords will be aware that Crewe, at the northern end of phase 2a, has a long history as an important hub on the railway network. Construction of phase 2a will allow passengers who connect through Crewe currently also to connect to HS2 services. This will significantly improve rail connectivity, and we expect regeneration benefits at the station and in the surrounding areas. The details of those services cannot be defined now but will be worked out in due course through existing rail operations processes.

The time to assess the connectivity benefits of phase 2a, whether by rail or indeed any other mode, will be when the railway has been built and the services have been planned such that other services can be connected to them. In the meantime, the Government continue to invest in local and longer range transport infrastructure in the UK to improve connectivity and capacity, and we continue to identify and assess problems and possible solutions.

We continue to talk to local communities and railway operators and to invest in infrastructure and services that level up opportunities for everyone across the country. For example, the Restoring Your Railway programme includes an ideas fund that provides development funding for early stage ideas to explore options to restore lost rail connections. Ten proposals are already being funded at the development stage so that they can move from the first round of the ideas fund to the subsequent stages.

The noble Lord, Lord Snape, asked about the role of the ORR, and I shall be honest with him that I will have to write, but I will happily do so.

Many noble Lords have tried to lure me into a discussion of connectivity and services beyond phase 2a, but I fear that I would only repeat myself and I cannot countenance repetition, so I will not be lured at this point. We are talking about phase 2a, and I believe that there are huge opportunities for its connectivity, many of which were mentioned by the noble Lord, Lord Rosser, and of course the Government take into account those sorts of opportunities whether or not one is building HS2 in the area because local connectivity is always important.

Turning to the amendment of the noble Lord, Lord Rosser, the question of the impact of construction on the transport networks in Shropshire and Staffordshire has been considered quite extensively in the environmental statement. The majority of the phase 2a route passes through rural Staffordshire. As I can confirm from my own visit to the route, some of the sites are accessible only by very minor roads. The environmental statement that accompanies the Bill therefore gives significant consideration to the issue of getting workers to and from the worksites in the most efficient and least disruptive manner.

The draft code of construction practice sets out that workforce travel plans will be developed with the relevant highway authority and these will take into account public transport and cycling and walking routes. It is our expectation that the existing railway network will not be used much on a daily basis by workers on HS2 phase 2a. The environmental statement, taking a reasonable worst-case approach, assumes that all workers will commute either in a car or in a van, with some element of ride-sharing. Worker accommodation will be provided at some locations, and this will reduce the volume of journeys. We also expect many of the workers to travel outside peak hours.

I therefore do not see the merit of requiring an annual review of rail connectivity, as suggested in the amendment of the noble Baroness, Lady Randerson. There will be ongoing discussions about connectivity that will develop over time. The provision of transport in Staffordshire and Shropshire has already been looked at, but, of course, we will continue to be open to opportunities for further improvements. I hope that on this basis, the noble Baroness feels able to withdraw her amendment.

[The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)]

I have received a request to speak after the Minister from the noble Baroness, Lady Gardner of Parkes.

[Baroness Gardner of Parkes (Con) [V]]

My Lords, my comments are about connectivity and probably relate more to Amendment 11 than to Amendment 14. The Minister has just spoken about connectivity, so it seems to be an appropriate moment to follow that point. I declare an interest in that I have close family living near the place where the trains will pass.

HS2 is a hugely expensive and long, drawn-out process; it should be viewed in that context. I am a supporter of high-speed rail, with the qualification that it is not satisfactory that direct travel between London and the north will still not be possible. Instead, travellers and their baggage will need to leave the station in Birmingham that they arrived at and swap to the new terminus, which, I understand, is to be called Birmingham Curzon Street, and is some distance away. This is not good enough for the 21st century; people are used to travelling with less disturbance and more convenience than that. This is an opportunity not to be missed to make a better connection.

I also concur with noble colleagues who have commented on trains, speeds, tracks and their suitability. There really is not much more that I need to say, because so much has been said, and I have been very impressed and interested, but I am a supporter. I hope that in the end this line will provide excellent connections and direct travel from London to the north. I wish it well.

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[The Deputy Chairman of Committees (Baroness Watkins of Tavistock)]

We now come to the group consisting of Amendment 12. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate.

Amendment 12

Moved by

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[The Earl of Lytton (CB) [V]]

My Lords, it is fortuitous that this amendment follows the comments of the noble Baroness, Lady Randerson, about Amendment 7. I stumbled across this matter almost by accident in discussion with various bodies and individuals over the operation of the HS2 Ltd land acquisition regime. I am particularly indebted to Andrew Shirley of the Country Land and Business Association, of which I happen to be a member, and Kate Russell of the Central Association of Agricultural Valuers, of which I am not a member. I have also spoken to other chartered surveyor practitioners of the dark arts of compulsory purchase and compensation who have been prepared to share their experience with me. To some extent, the amendment builds on earlier amendments before Grand Committee on day one.

Kate Russell forwarded me a copy of a lengthy letter she sent on 1 June 2020 to Thomas Barry at the DfT in response to the general question—I paraphrase—what could be improved? Noble Lords will be glad that I paraphrase the seven pages of that letter, but I have permission to show it to any noble Lord who may be interested and to whom I have not already forwarded it to, but I have sent it to the Minister and those who spoke to Amendment 5. Bear in mind that this is sent by an official of a professional body, not a disaffected claimant’s agent. Even so, I would not have attached such importance to a single letter had it not encapsulated many of the same sentiments independently expressed to me by others. Please also bear in mind that phase 2a naturally follows the procedures laid down for phase 1.

Kate Russell first explained that the issues being encountered over land and property acquisition went far beyond the normal range and severity that she would have expected. In her letter, she encouraged the department to pause for reflection—a figurative pause, that is, because of course she did not ask for everything to be stopped—because of uncertainties due to design refinements, consequential to the reality of land acquisition and the implications for and disruption to claimants. She outlined the significant stress levels not only for claimants but also to professionals involved and that this has been directly due to the manner in which HS2 Ltd had been handing cases. So bad was this that the very notion of working on HS2 cases has become an issue in professional recruitment and retention, with her members seeking guidance because requirements of their tasks seemed to be at odds with professional codes of conduct.

Her letter goes on to cite several underlying causes. I truncate this, but there was the scale and timeframe of the undertaking and the implications of that, the highly impersonal manner in which the claims were handled and HS2 Ltd’s apparent desire for total consistency above all else in what is a sea of highly variable individual cases—in other words, uniformity in preference to fair balance to individual circumstances.

Of course, everyone recognises the need for value for money in these huge schemes, but the underlying sense expressed to me by another commentator was that the Treasury’s hands were around the financial throat of the department, which in turn has its around the neck of HS2 Ltd and so on, with HS2 Ltd acting in a similar manner towards its suppliers, professionals and, last of all, at the end of the supply chain, the claimants. This, in varying terms, was reflected in the views of everyone I spoke to on the point. The suggestion is that the structure and chain of command of this project is in large part to blame.

Ministers have publicly professed “compassion, fairness and respect” as objectives—or did, until the terminology changed to “compassion, dignity and respect”. When I heard the comments of noble Lords on Amendment 2, I wondered whether this terminology had been intended to refer to the graves and memorials of the long dead rather than to the pressing imperatives of the living. But the word fairness none the less seems to have disappeared.

The visible symptoms of this malaise are these: shifting the burden of proof and justification on to claimants even when it is plain that there must be a reasonable case in principle; challenging every claim line by line; the adoption of the unique HS2 Ltd “take” on matters such as injurious affection and then claiming that this is established practice; delaying payment for as long as possible by these means, or seemingly so; and claimants being driven to the point where they will give up and take whatever is offered to them because they simply cannot go on any longer. We have already mentioned the temporary access provisions which appear to have been used to occupy land first and deal with claimants’ costs at leisure. There is also the demand for professional service suppliers to adhere to these objectives as a priority over their professional rules of conduct, as I explained earlier, as well as overturning their recommendations if it suits. Finally, there is control from the centre to ensure uniformity with no delegation of any decision-making, regardless of the rigidity that results from the process.

Some of these tactics are commonplace and are easy to slant either way. For instance, if you make an internal, unminuted decision to apply a “beyond reasonable doubt” criminal proof standard to compensation claims in what should be a balance of probabilities civil test, that requires no new laws or regulations and can easily be defended as financial control, but which does lasting injustice. Similarly, if you ask for clarification for further and better details, not just once but drip-fed one after the other and each taking a turnaround time of several weeks, that can paraded as diligence. The timeframe can be endlessly spun out and, where payment is involved, delay the pay-out. Another tack when confronted with anything like a complaint is to deny everything to the point of calling black white.

These things are not unique to HS2 Ltd; they are part of the standard pattern of behaviour of large organisations which think that they are beyond the need for customer care or are too big to fail, or have only themselves or a government parent as a regulator, or believe that the noble purpose of their mission is more important than conduct, ethics and fairness, or perhaps all of these.

In our debate on Amendment 5, the Minister took a particular dislike to my reference to the perception of coercion: I did use that word. Perhaps she would prefer “strong-arm tactics” as an alternative, but this does seem to be what is going on here—not yet on an industrial scale, I suspect, but significant enough to matter and important enough for measures to be taken to reduce it, as suggested by Miss Russell. Please understand that this has nothing to do with the adequacy of the compensation claim; it is about the mode, culture and characteristics of implementation.

There are four basic principles that need to apply here. First, there has to be a high degree of accountability in the areas of ethics, fairness, transparency and professionalism, and that has to be embedded in the very culture of the organisation with a comprehensive and effective code of practice. Secondly, there has to be independent oversight and monitoring. Thirdly, there has to be an effective and accessible redress system. Fourthly, there have to be meaningful sanctions for poor practices in appropriate circumstances. The amendment would pave the way for this approach, but I acknowledge that it would require proper resourcing.

In particular among large construction enterprises and administrative organisations, there is a belief in spending much fine gold in defending the process in which they are engaged. Directors get together in order to defend the principle of their existence and what they are involved in. With that comes the question of the exercise of power for its own sake instead of making that process more efficient and transparent. I cannot count the number of times I have pointed out that this is a false philosophy that merely increases friction, although I do not doubt that it gives the impression of being busy, however fruitlessly.

With HS2 Limited I am getting the message that whatever form of corporate social responsibility is at work, it is not one that professionals or citizens universally recognise as a modern or effective duty of care or that it is confined to handling claims. The resultant delays, lack of trust, uncertainty, added disputes, blame shifting and financial loss and so on are capable of being mitigated to good effect were there, as Miss Russell suggests, a claimant strategy document that is worthy of the name, incorporating the four principles I have mentioned. Miss Russell has also told me that in September she inquired of the Department for Transport about such a strategy, having mentioned it in her letter, but she was told that it would be out “soon”, a word I have heard used so often by Government Ministers but which is then followed by no visible action, so that it has nearly lost all meaning and value. However, confirmation that this is somewhere in the pipeline does underline my general point about the need for action.

I invite the Minister simply to confirm that the production of a claimant strategy document is imminent, that it will be independently assessed and not just some internal box-ticking exercise, and that it will be available for us to scrutinise in draft at any rate before the Bill leaves this House. I beg to move.

[The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)]

The noble Lord, Lord Liddle, has withdrawn from speaking to this amendment so I call the noble Lord, Lord Haselhurst.

[Lord Haselhurst (Con) [V]]

My Lords, I listened with interest to the noble Earl, Lord Lytton. In general, while of course one should uphold the idea of best practice in these circumstances, we are never going to get to a situation where best practice is perfect practice.

I have seen the law on compensation tightened over many years and become more rigorous and more extensive. The present situation is that it is backed up, in the case of the hybrid Bill procedure, with the opportunity for an individual, community or business to bring their grievance to Parliament. The HS2 Bill has been through that process in the Commons and in the Lords.

One should remember that there will always be two parties to any negotiation. Our committee listened with great sympathy to many of the points that were made to us. Our job was to try to push both sides together to reach an agreement. Many an agreement was made, some of them without the petition having to be brought as far as the committee. Some claims seemed slightly far-fetched—that must be honestly admitted—whereas others were deeply emotional and it was difficult to find the absolutely correct way of addressing them.

I have seen various things in my political lifetime relevant to a discussion of this kind. In my first constituency, Middleton and Prestwich, those two towns were suddenly separated by a six-lane highway, the M62. That project finally tipped the Government of the day into recognising that it is not just land-take that should be measured in circumstances of that kind but that there are various other factors, such as noise disturbance, obviously. That led to the Land Compensation Act 1973.

For most of my political life I was the Member of Parliament for the constituency in which it was designated that London’s third airport should be established, at Stansted. The battle over where the third London airport should be put was fought for over 40 years. I was the unlucky person who was finally overridden in the campaign by the Government of the day. But I saw a whole host of types of grievances that arose and there is nothing more potent than aircraft taking off a mile or two away from where you live. One understands that the very concept of a high-speed railway gets people on the defensive, quite rightly.

However, I honestly do not recognise that from my recent experience on the HS2 hybrid committee. I think a great measure of justice has been done, as far it as can be when you are talking about the construction of a railway of this magnitude. I say to the noble Earl that I do not recognise too much of what he has just described to the Committee. What other colleagues who were alongside me on the committee would say I do not know but I think it was our general recognition, as may be judged from the report, that we were able to get accords in many difficult situations. Not all of them—maybe one or two of the claims were extravagant —but by and large petitions kept being withdrawn because an agreement was reached.

I just do not know whether it is possible at this stage to put into legislative form a compensation system which will ever be universally acceptable. There will always be consideration of the other side. If there is going to be wider public complaint about the rising cost of great infrastructure schemes of this kind, there has to be some sort of control on the level of compensation given, which will not, alas, fully satisfy every single person affected by the project. So I honestly do not see the need for an amendment of the kind proposed.