High Speed Rail (West Midlands-Crewe) Bill

Debate between Earl of Lytton and Baroness Watkins of Tavistock

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

[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.