High Speed Rail (London-West Midlands) Bill

Lord Stevenson of Balmacara Excerpts

Committee: 1st sitting (Hansard): House of Lords & Committee: 1st sitting: House of Lords & Report stage: House of Lords
Tuesday 10th January 2017 Grand Committee

Tabled by

[Lord Stevenson of Balmacara]

11: After Clause 11, insert the following new Clause—
“Phase One of High Speed 2 property bond scheme
(1) The Secretary of State must establish a property bond scheme in relation to the scheduled works.(2) Where—(a) the value of an interest in land is depreciated by the presence of any of the statutory nuisances listed in section 79(1)(a) to (h) of the Environmental Protection Act 1990 (statutory nuisances and inspections therefor); and(b) the nuisance arises from the construction or operation of the scheduled works,if the person entitled to the interest (“the applicant”) makes a valid application within the prescribed period, a property bond for that depreciation shall be issued by the nominated undertaker to the applicant.(3) The Secretary of State must make rules governing the making and approval or rejection of applications for property bonds under this section, including—(a) the contents of an application,(b) the evidence of open market value that is required to be provided,(c) the evidence of depreciation that is required to be provided,(d) any fee for making an application,(e) the process for assessing and deciding the open market value and the depreciation of the land, and(f) any minimum depreciation that is required for an application to be valid.(4) When the interest in land is sold the owner of that interest must decide whether to— (a) redeem the property bond and sell the land for its depreciated value, or(b) sell the property bond with the land and sell the land for its open market value.(5) If the owner of the interest in land decides to sell according to subsection (4)(a) the owner must serve notice on the nominated undertaker of the owner's intention to sell the land together with details of the property bond at least one month before selling the land.(6) If the owner validly serves a notice under subsection (5) then the nominated undertaker must pay the difference between the depreciated and open market value of the land to the purchaser of the land at the date of completion of the sale whereupon the property bond is redeemed.(7) A property bond shall be a local land charge until it is redeemed and for the purposes of the Local Land Charges Act 1975 the nominated undertaker shall be treated as the originating authority as respects such a charge.”

High Speed Rail (London–West Midlands) Bill

Lord Stevenson of Balmacara Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Thursday 12th January 2017 Grand Committee

[Baroness Randerson]

My Lords, we need something to deal with this issue, whatever form that “something” takes, and we need it to be independent and to have a responsibility to provide reports and analysis of the issues and problems as they occur.

The committee’s report is very critical of the record of HS2 so far. The committee said:

“The promoter has attracted a good deal of criticism from some petitioners for lack of engagement”.

HS2 Ltd has now made a commitment to put in place a strategy for community engagement, including for vulnerable residents, and has employed someone to deal with community engagement and complaints. However, it has a lot of ground to make up in terms of public trust. Indeed, the final amendment that the Minister put forward in our previous debate, which was a last-minute change of approach in terms of traffic regulation, does not inspire one with confidence that the Government are looking ahead at what they need, or if they are looking ahead, that they have raised the issue in time for full consultation on it. I am not sure which of those two scenarios is the more disturbing. As I say, HS2 has ground to make up. Throughout the project residents have a right to expect a good, simple, straightforward and independent process when concerns arise and they have complaints. I believe that a similar process was followed in relation to Crossrail. However it is done, we need intelligent mediation on this.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I apologise for not being present at Tuesday’s Committee debate due to private reasons. I have subsequently read the report of the proceedings and very much appreciate the contributions made by my noble friends Lady Mallalieu, Lady Young and Lord Rosser. I particularly appreciate the Minister’s contribution as he covered some of the points I would have made had I been present, and did so very well. Of course, now that he has declared that he is a would-be train driver, I am sure that he will be disqualified from any future activities with regard to transport, but while we have him, we should cherish him.

I declare my interest as a resident of Little Missenden in the Chilterns AONB. I have also been involved in some of the campaigns associated with Little Missenden. My private interests were dealt with during a sitting of the Select Committee in your Lordships’ House. However, I think that, to the extent to which they were able to help, those matters are extinguished. Therefore, I am not dealing here with private interests but with the fallout from the issues that occur to me as a Member of your Lordships’ House in relation to some of the processes that I have been able to observe from a variety of positions.

I am speaking to Amendment 30, dealing with a complaints commissioner; to Amendment 31, in my name and that of the noble Baroness, Lady Pidding; and to the associated amendments relating to those. Amendments 30 and 31 relate to issues that stem from some of the processes that have been established to try to progress the Bill through a hybrid arrangement. The noble Baroness, Lady Pidding, made a very good speech in which she tried to identify where the gaps occur from a local perspective. I should have mentioned in my opening remarks that I thank her for speaking on Tuesday on another amendment. Noble Lords may not be aware that she rushed here, almost straight from the airport, and had not even unpacked before she arrived, and yet she was still able to give a very substantial speech, and I thank her for that.

The process we have been through reveals the need for either a complaints commissioner or an adjudicator. I absolutely agree with the points made by my noble friend Lord Berkeley and the noble Baroness, Lady Randerson, on these issues. During the Select Committee phase, the focus is on the personal interests of those who are directly affected by the Bill. The problem is that, even if you are trying to argue a more general public interest case, what you can do is narrowed down by the fact that the opening position and arrangements against which those presentations are made relate to your residence and propinquity to the line.

I am conscious that there are members of the Select Committee here today, and I do not in any sense want to do anything to suggest that I do not hold them in the highest regard or do not think that the report was an excellent summary of the work that they did. However, I found it a very difficult experience, and I am not an inexperienced public speaker. If I found it difficult, it is fair to say that other petitioners will have found it the same. It is a very adversarial process, focusing on private interests, and therefore mitigation, rather than on the broader issues that exist. There is no equality of arms because the process is done in a court-like setting with very highly trained, and presumably quite expensive, advocates against you.

The particularity of the situation in the Lords was that the committee, for reasons that I understand, had decided that it would not hear cases that involved alternative provisions. That meant that most of those who wished to speak, certainly those from the Chilterns, felt that they could not raise all the issues they wanted to. I could go on—I could mention that the lack of action groups and the reliance on parish councils was reflected, but I do not wish to get into that area. I just want that to be noted as the background. Looking back at the process, it seems to me that important issues have fallen by the side. It is not clear to me how those can be picked up, except through this process. This process is dealing with the public aspects of the Bill, but it engages with issues that could be regarded as private, even though they are germane.

I appreciate that this is quite a difficult point to get across and I have no doubt that I will be attacked for it. However, there is a gap around the need to regard what local expertise and understanding can bring to the broader picture. That is not the same as private interests. The issues faced by those trying to petition the Select Committee were no different from the issues faced by those arguing more generally against the Bill.

The Bill will go through—there is no question but that the Government will get their Bill. Therefore, it is now a question of how best to improve it for the future for all people. However, in the absence of the ability to get direct cost information about what is involved, we were constantly frustrated. How could it be that decisions were being reached that balanced the direct costs of building part of the railway and the adverse costs that would occur if the environment were destroyed? This obviously applies to the Chilterns, but there are other areas in which this is also a responsibility. We could not get that cost information: we lacked the ability to do so through the private sector and we have not been able to do it in any public way. That is a problem. I am not saying that were the information to be made available it would change anything, but we cannot get it and the decision is not transparent. There is no information available in the public sector about the trade-off that needs to be made—as I understand it, through the legislative process—between the responsibilities the Government have to maintain AONBs and the need to have the infrastructure of a railway. I have come to terms with the fact that there will be a railway and it will go through the Chilterns. However, I do not have the information to understand better the mechanics of how a decision was reached that it was too expensive to continue the tunnel past Wendover, for example.

There are some difficulties here. It may be that the review which is to be carried out on how we deal with these issues and how lines are to be built will pick up on the point, although I certainly understand that it is probably too late to look at this particular railway. But I want to put on the record that, from my experience, there are difficulties here.

My real point is one I mentioned earlier. It is about the way in which local experience about the problems and the pinch points cannot be built into the process. Some very good examples were given to the Committee in the sitting on Tuesday. The noble Viscount, Lord Astor, in what was a series of powerful and appropriate contributions, talked about the tunnelling at Wendover and the issues that have arisen from knowledge about a cheaper version which simply is not being discussed, along with the issues at Doddershall and Quainton. As the noble Viscount explained, these are all extremely pertinent in the local context, but there are wider issues about whether they are the better solution to the problems being faced by the proprietor in putting forward the railway. Like the noble Viscount, I do not understand how it is that these decisions are taken in the absence of information and in the absence of a process under which better interrogation could take place.

I shall mention two or three other matters although I do not wish to go into any detail and I am not looking to the Minister to make a response to them. However, I have been copied into correspondence from people living near Savay Lake and Savay Farm, which I know the committee heard about at length. As I say, I do not wish to go into the detail, but it seems that there may be a miscarriage here which is of an extent that might require, for instance, an independent adjudicator to take some interest in further down the line. That is why I support the proposal. The question about the haul road in Great Missenden for which there seemed a solution brokered outside the Select Committee in order to ensure that there would be a programme to mitigate the damage to Great Missenden collapsed and there seems to be no way to retrieve it because the system simply does not provide an opportunity to do so.

All these issues—there are others; I could mention the question of more issues closer to Great Missenden at Hyde Heath and further up the line as referred to by the noble Viscount, Lord Astor—show that the detail is not needed to make the general point that there is no body, no person, likely to be able to take account of redress where there is environmental impact as mentioned by the noble Baroness, Lady Pidding, or impacts on communities which occur after the Act is passed but during the process and before the line is opened. That is because the system does not seem to permit it. It will be, as it were, cast in concrete as soon as the Bill gets through. That seems wrong and therefore I agree absolutely with the idea that there should be some form of complaints commission. However, the noble Baroness, Lady Pidding, made the right point when she said that we need something with teeth, and therefore her proposal for an independent adjudicator may be the right way forward.

Before I close on this perhaps I may mention a point that was raised by my noble friend Lord Rosser on Tuesday. Many of the complaints that arose in the original hearings and in both Select Committees were about compensation. I think we have all had experience of how difficult that can be to apply. There is a proposal which I would commend to the Minister to take on board. I do not think that it could necessarily be available on this project, but it might be appropriate for phase 2. It could be of more general interest and I would ask him to take it away because I am not looking for a response today. It stems from a Private Member’s Bill tabled around 18 months ago in the other place. The idea is a property bond approach through a substantial fund that would be controlled by a mutual on the basis that where a person has a property which is affected by some form of infrastructure arrangement, it would not be necessary for the promoters of the scheme to provide a direct contribution towards the replacement costs should that property be required. There is too much detail for me to go through at this point in the proceedings, but I would like to leave the proposal with the Minister and I am happy to write to him and attend meetings if he feels that it is worth following up.

The difficulty that has bedevilled all the compensation schemes in the Chilterns has been around propensity to the line. Setting an arbitrary figure of so many metres before someone can qualify for one or other of the various arrangements was always going to cause problems, and that is a general observation rather than applying just to this line. If it could be possible to arrange matters, perhaps through some form of mutual obligation on all property owners, so that anyone affected by waterworks activity, electricity, railways and roads is covered for the diminution in the value of their property because of the works, that would lift a huge weight from those who are affected by infrastructure arrangements and, I think, it would help the Government to gain support for their projects. The proposal comes under the general idea of a property bond, but it is really related to the blighting effect of infrastructure projects. I commend it to those who might be interested and I will be happy to follow it up later.

[Lord Young of Norwood Green]

My Lords, I do not know where to start on the amendment after that omnibus. However, first, in response to the noble Baroness, Lady Pidding, I do not think that having another independent adjudicator as well as the complaints commissioner is a good idea. It will confuse the situation. I agree with her on the substance of the point: a complaints commissioner should be appointed, as one will be, and that individual should have teeth. However, we really need to correct the notion that there is a “get out of jail free” card simply because we occasionally see a reference to doing everything practically possible in relation to the environment and that there are no requirements on HS2’s contractors to take care of the environment. Hundreds and hundreds of assurances have been given and they really have to be adhered to. I have said that many times to petitioners. We had petitioners from Camden who said, “Oh, there are a few assurances”. There were 100 assurances given to Camden Council and I pleaded with them to look at what is already available. We went over the environmental concerns meticulously. There is not an animal or insect that we have not considered, from hedgehogs to crested newts and barn owls or whatever, and rightly so. We paid them a lot of attention.

It is unfortunate that my noble friend Lord Stevenson of Balmacara was not here on Tuesday because we had the same allegation from the noble Viscount, Lord Astor, that we did not debate this. We did: it did not matter whether they were additional provisions, we debated them at length many times. As for the costing, we did not take the word of the contractors or the promoters. We looked carefully, by an independent assessment, to see whether that could justify their view of extending the tunnel. Do not forget that this tunnel has been significantly extended, as a result of the debate in the Commons, and at significant expense. My noble friend shakes his head; I do not know why. It is not enough because we know what the objective is. He wants to tunnel right the way through it but did not achieve that objective. As for the idea that my noble friend somehow could not make his case, I find that hard to understand. He had plenty of opportunity.

On the idea that we in the Select Committee would somehow pay more attention to the barristers, believe me: we were bored out of our skulls by barristers on many occasions and often paid more attention to people who represented their case effectively, whether they were from the parish council or just individuals. The main thing they had to do was to focus on what they wanted the Select Committee to do, and when they did we supported them. In many cases, that was on compensation as well. It really is wrong to tell this Committee that somehow we did not have an opportunity to look at these issues. We did, again and again. In fact, it is probably lucky that I was not chairing it because I would have been more ruthless. We allowed lots and lots of people to present their case, including in locus standi hearings. We made sure that whether it was on environment or noise, or whatever it was, we gave people the opportunity to make their case—not just once but on many occasions.

It should not be suggested to this Committee that individual petitioners somehow had not had an opportunity to present their case or were browbeaten by the barristers. Of course it was a robust environment; I do not deny that but we took account of it and listened carefully. My noble friend shrugs his shoulders; I do not know whether that means that he disputes the integrity of the committee or our attempts to give a fair hearing to petitioners. I do not know why he does that.

[Lord Stevenson of Balmacara]

I made it perfectly clear that I was in no sense criticising the committee. Obviously, I have let the noble Lord speak, but I was trying to say that there was a gap in the ability of those who wished to make points broader than their private interests, the cause of which obviously did not lie with the committee. I am not blaming the committee, which did exceptional work, and was fantastic. I felt—the noble Lord, Lord Young, can read the transcript; he was there—that I could not say the things I wanted to say. Indeed, the chairman stopped me and said, kindly, that he was taking account of my experience and presence in the House, and would listen to me, but that he wanted me to stop. I cut out two pages of what I was going to say. I am not saying that it was good or bad—it just happened. I am trying to get behind that to say that the committee’s process did not engage sufficiently with the issues that could have been considered. I am trying to play back to the amendment proposed by the noble Baroness, Lady Pidding, as I think that that will continue, and in the future an independent adjudicator would be a good thing.

[Lord Young of Norwood Green]

I am afraid that we will have to agree to disagree, because they did have the opportunity to make wider points on many issues. On the fact that my noble friend was stopped from speaking, I cannot remember precisely why, but it may well be that we had heard those points on many occasions and reiteration did not necessarily produce a better impact for the committee. However, again, I refute the idea that my noble friend is promoting: that this was an unfair environment in which petitioners were not able to address the wider case. The noble and learned Lord, Lord Walker, was meticulous in allowing people to develop the whole case even though we had heard the same issue on many occasions, whether it was the requirement for extra tunnelling or a whole range of issues. Inevitably, if you look at the geography of the petitioners, we heard the same case again and again.

I am not saying that the Select Committee procedure was perfect but I refute that petitioners did not have the opportunity to make their case and address the wider issues. They did. We heard them and wherever we could, if anything, we leaned towards the petitioners. We knew that if people had taken the time and trouble to come to Westminster to make their case, they were entitled to a fair hearing. In fact, the pressure was more on the promoters to prove that the petitioners were wrong than the other way round.

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[Baroness Buscombe]

My Lords, I am grateful to all noble Lords who have spoken to these amendments in the names of the noble Lords, Lord Berkeley and Lord Stevenson of Balmacara, and my noble friend Lady Pidding. The Government share the concerns that noble Lords have highlighted through the tabling of this amendment, and I fully acknowledge the importance of residents and businesses along the route knowing they can seek fair and independent resolution of complaints, if necessary—the word “independent” has come up several times, as it is important.

I will immediately address points made by the noble Lord, Lord Stevenson. I hope that he will recognise, as indeed he said in his speech this afternoon, that the Minister addressed a number of the issues that the noble Lord raised this afternoon during our first day in Committee on Tuesday. However, I shall quickly reference a couple of things he talked about. One is with regard to engagement on wider issues. While he is correct that the Select Committee focuses on private interests, there has been frequent consultation on the scheme at a detailed level, even as it evolved and changed through additional provisions. Consultation responses, which numbered nearly 23,000, were analysed and reported on by an independent assessor appointed by Parliament. Six reports are available in the House Library for the noble Lord to consider. In addition, the noble Lord referenced property bonds, which I shall refer to. I hope he will be reassured by the fact that we will review the full suite of HS2 discretionary compensation schemes later this year, and as part of that, I can confirm that we will consider arguments with regard to a property bond option.

I acknowledge several helpful interventions made by the noble Lord, Lord Young of Norwood Green, and my noble friend Lady O’Cathain, in amplifying, illustrating and helping us through this process by referencing so much that took place during that whole process when they sat on that Select Committee. We must be mindful of the enormous amount of work that they achieved and of course the considerable care they took to ensure that people were genuinely listened to.

The Government want to reassure noble Lords that these amendments are unnecessary, as we are already putting in place comprehensive measures to address these concerns in the guise of a construction commissioner. The construction commissioner will fulfil the requirements that noble Lords are seeking in their proposed amendments, and more besides. The commissioner will mediate in unresolved disputes between the project and individuals or bodies relating to the construction of HS2 and will be able to receive and deal with complaints about the construction of the railway on an independent and impartial basis. Furthermore, the commissioner will have a role on advising on actions the nominated undertaker and contractors can take to reduce the number of complaints they receive. The commissioner will also have a particular role in determining complaints which are made under the small claims scheme—this point makes immediate reference to the question raised by the noble Lord, Lord Rosser—which provides a simple and informal basis to recover losses up to £10,000 for each individual claim.

The construction commissioner will be independent of the Secretary of State and any nominated undertaker appointed to construct the proposed scheme. We have already appointed an interim construction commissioner, Mr Gareth Epps. A permanent appointment—to reassure my noble friend Lady Pidding—will be made following Royal Assent, when the Secretary of State will establish an independent body to appoint the construction commissioner and determine its precise terms of reference, including its regular reporting requirements. The independent body will be made up of a range of stakeholders, including representatives of local authorities affected by HS2 phase one. The commitment to appoint a construction commissioner is a binding one, made to Parliament and recorded in the register of undertakings and assurances. Given that we are already addressing this issue, I hope that noble Lords will accept that legislation is unnecessary and not press this proposed new clause.

With respect to the issue of an independent adjudicator, I note that this amendment was previously tabled during the Public Bill Committee in another place. I am not convinced on the need for an HS2 adjudicator. There are already extensive checks and balances built into the Bill, based on the regime adopted by Crossrail and the Channel Tunnel Rail Link. The regime has proved effective for those projects and we see no reason why it would not be effective for this project. This issue was raised before your Lordships’ Select Committee, which also saw no need to impose such a role. I do not believe that this Committee should either.

This amendment, as well as being unnecessary, is unwelcome, as it would effectively create a quango with all the unnecessary cost and bureaucracy that this would entail. I cannot resist citing the noble Lord, Lord Berkeley, who, at the beginning of this afternoon’s Committee, said on his second amendment that he is not in favour of creating an enormous bureaucratic nightmare. These amendments would create just that.

[Lord Stevenson of Balmacara]

I am sorry to interrupt the Minister’s peroration but, while I understand the point about the construction commissioner, who may well solve a lot of the difficulties raised today, who is going to take responsibility once construction is completed for ongoing concerns and issues? She mentioned current practices in Crossrail, which may have a resonance for us. Without having to spend too much time today, perhaps it would be possible for her to write with details of what that might contain for us.

[Baroness Buscombe]

My Lords, in response to the noble Lord’s question, it will continue to be the construction commissioner. In fact, if I could continue my response to noble Lords it would perhaps be helpful.

There are a considerable amount of checks and balances already established by the Bill and the environmental statement, which protect the natural environment and communities from the impact of construction works. The Bill sets out the detailed controls and planning approvals needed for construction works, such as the limits on land that can be taken for the railway and where and how works can be constructed. There is also a strict envelope of environmental impacts within which HS2 has to be built or it does not have planning permission. Furthermore, there are requirements for the Government to gain approval from local authorities under the planning regime on specific issues, including the approval of construction traffic routes.

Additional commitments have been made during the parliamentary process: literally thousands of individual undertakings and assurances that are a matter of public record. These commitments are either legally enforceable through the courts or matters for which the Secretary of State will be answerable to Parliament if there is any breach of them. These commitments also include those relating to the environmental minimum requirements, which have been developed in consultation with local authorities and others. The code of construction practice, which forms part of these commitments, sets out detailed standards of work that will be adopted by contractors throughout the construction period to control potential impacts on people, businesses and the natural and historic environment. This code also sets out the mechanisms that will be used to engage with the local community and their representatives throughout the construction period.

Let us not forget all the existing legislation that will continue to apply during the construction of HS2. This includes the Control of Pollution Act 1974 and the Environmental Protection Act 1990, which give necessary roles to statutory bodies that will all play a role in regulating HS2. The Freedom of Information Act and all its requirements will, of course, continue to apply to the Department for Transport and to HS2 Ltd. These existing protections will be reinforced by the dual roles of the residents commissioner and the construction commissioner. The residents commissioner ensures that the Government are communicating with affected residents in the clearest and plainest language possible. The role of the construction commissioner is to mediate unresolved disputes between HS2 Ltd and individuals or bodies and to provide independent, impartial decisions.

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Moved by

[Lord Stevenson of Balmacara]

65: After Schedule 16, insert the following new Schedule—
“DUTY OF CARE AND LIABILITY OF SECRETARY OF STATE 1 The Secretary of State and the nominated undertaker, and their contractors and sub-contractors, are, when dealing with persons whose land is subject to the exercise of powers under sections 4 to 19 or whose land is otherwise affected by the construction of the scheduled works, subject to a general duty of care to those persons.2 The general duty of care includes requirements to—(a) act fairly and in good faith at all times;(b) minimise so far as reasonably practicable the acquisition and temporary occupation of land of third parties;(c) minimise so far as reasonably practicable the impact on third parties of the carrying out of the scheduled works;(d) act transparently;(e) for not less than five years after the completion of the scheduled works, provide an information and assistance service for those affected by the scheduled works;(f) pay fair compensation promptly;(g) consult affected persons before and during any process of compulsory acquisition;(h) provide accommodation works during the construction of the scheduled works where reasonably required.3 Notwithstanding any agreement to the contrary between the Secretary of State and the nominated undertaker or any contractor or sub-contractor, the Secretary of State is liable to third parties for the actions of the nominated undertaker and his or its contractors and sub-contractors in exercising the powers conferred by this Act and carrying out the scheduled works. 4 It is the duty of the Complaints Commissioner appointed by the Secretary of State under section (Complaints Commissioner) to determine how the Secretary of State and the nominated undertaker must observe the general duty of care created by this Schedule.”

[Lord Stevenson of Balmacara]

I beg to move this amendment standing in my name. I realise that my following remarks risk throwing petrol on an already blazing flame and that my great friend and former colleague my noble friend Lord Young will probably never speak to me again. However, I say again that I fully acknowledge that the committee did exactly what was required of it and went to extraordinary lengths and made a huge personal commitment in doing so. In no sense was anything I said on the earlier amendments meant to imply anything other than huge admiration for what it has done. I hope that point is well taken. However, I was trying—obviously ineffectively—to argue that the work of the committee, however good, could never address the sorts of issues that I was trying to articulate as they concerned private interests.

I follow the noble Lord, Lord Framlingham, in saying that a 19th century Victorian approach to dealing with the vested interests of private landowners is being used in a situation where it is completely inappropriate. It is not in any sense the committee’s fault that we are today talking about the issues that it may feel it knocked on the head and put to bed. There are still issues out there and they were raised by my new friend, the noble Baroness, Lady Pidding, because she has experience, as I have, of how they will operate in practice. This issue is about structure.

I have submitted evidence on all this to the committee that was set up to look at hybrid Bills. I hope that it will consider that evidence as we go forward. Why have we not had an opportunity to discuss the committee’s report? That could still be done. It is the biggest gap of all. As I understand it, there is no procedure as regards discussing the excellent report, which I have read. I have looked at every piece of evidence the committee received and I have read every transcript of the events, so I am not unaware of its work. I almost died but I did it. However, the report will never be discussed. That seems an extraordinary lacuna in the process of looking at the Bill. It needs to be picked up because there are things in the report which ought to be brought out and discussed. There are things which perhaps we could agree to disagree about but at least they could be aired and ventilated in a discussion. That is a terrible mistake. I move on.

My last point concerns an issue that came up and reflects points made on it both today and on Tuesday.

[Lord Framlingham]

I am sorry to interrupt the noble Lord, but he was not here on Tuesday, when I think that the Minister gave us assurances that the response to the report will be available before the Report stage.

[Lord Stevenson of Balmacara]

I have taken note of and am aware of that, but a response is not a debate. While of course I am looking forward to the response and will read it with considerable interest, it will not give us the opportunity to debate and discuss all the other issues, and that is disappointing.

The amendment before us asks whether a duty of care should be placed on the promoter and the nominated undertaker in relation to the acquisition of land by compulsory purchase and associated issues. The reason for tabling it stems from our discussions on questions of how HS2 has been dealing with the people with whom it has to engage around the acquisition of land in preparation for the construction phase. It is clear that the ability to purchase land compulsorily should always be used with a sense of great responsibility and as a last resort. The ability to purchase the property of another against their will is a really substantial power and one hopes that it will be used and exercised with care.

When the Bill before us today receives Royal Assent, HS2 Ltd will have compulsory purchase powers. However, many people feel that the organisation has not really earned the right to move ahead in the way it has done because of how it has operated before in terms of dealing with them. Those most affected by the scheme seem to be the most upset about it, and that is obviously a concern which perhaps will be picked up by better and more informed engagement, but the more that people push top-down on engagement, possibly the less effective it will be. This duty of care is not about disrupting or delaying the Bill—we are not in any sense trying to do that—but introducing a set of standards against which HS2 Ltd can be judged; that is, how is it treating those who are losing land or property to the scheme?

Examples which have led to this amendment have been reported to me and I am happy to share them with the Minister if he wishes me to do so. I am keeping them neutral at this stage, but there is evidence to back up what I am saying. Examples include landowners finding out about significant changes to the design of a scheme only once the information has been released to the public. In some cases, landowners have had meetings with HS2 representatives only shortly before changes were announced, but at which it was denied that any changes were forthcoming. There has been a refusal to engage in extensive discussions with landowners, and that is obviously very frustrating. If adaptations to the design are going to be made, previous plans will not necessarily follow. This has often meant that almost fake meetings have been set up where discussions have been held, but it was clear that another agenda was in place which had not been revealed to the landowner.

There are examples of the failure to pay properly for access to land. Some landowners have agreed to allow HS2 Ltd access on the basis of a fee, but those fees have still not been paid. That seems to be a very poor practice. Some sense of a duty of care being overseen by an independent complaints commission of the type talked about by the noble Baroness when she addressed the last amendment may be a way forward on this, and I am sure would help, but it may mean that the whole process needs to be stiffened by having a formal duty of care. I do not think that this should be seen as being in any way bureaucratic, because obviously that is not allowed. It also should not be seen as in any sense a way of slowing down the scheme. In fact, in some ways a duty of care might actually set standards that would improve the quality of the process between landowners and HS2 Ltd. It is important to look at whether that might be the right way forward.

There is a lot of uncertainty up and down the line about how much land will finally be taken, for how long, on what basis it will be paid for, and how the timing of those payments will work out. This is not helping in terms of making the scheme a success. It would be sensible to have the basic structure of a duty of care as provided for in this amendment, which I commend. I beg to move.

--- Later in debate ---

[Lord Ahmad of Wimbledon]

My Lords, I thank the noble Lord, Lord Stevenson, for his contributions, and the noble Lords, Lord Rosser and Lord Berkeley, for their questions. To take the final issue first, because that is quite a specific matter, I will write to the noble Lord. I think the noble Baroness, Lady Randerson, raised the issue of what had been heard from residents. I appreciate that that has been received in a positive light and that is taking place, and I hope that that addresses one of the points that the noble Lord, Lord Rosser, raised on that.

On the proposal for the duty of care, the noble Lord, Lord Stevenson, said that he had read all elements of the Select Committee’s reports, and we shall of course be testing him on his verbatim knowledge of them at the end of this afternoon’s proceedings—I shall not hold him to that. I am sure that he recognises— I have said this several times, but I shall not tire of saying so—that the Select Committees in both Houses looked at this issue closely among other areas, and the proposal for a duty of care was considered.

The noble Lord, Lord Rosser, again rightly raised the specific issue promoted by the Country Land and Business Association in its petitions. Let me assure both noble Lords that this matter received lengthy hearings and the Government have now given more than a dozen assurances to the association in response to its concerns. The noble Lord referred specifically to the Select Committee report in this regard, as set out on pages 97 to 99. As I have said previously and will now repeat, we shall respond to those points when we publish our response to the report next week. However, notwithstanding what I have just said, there were no specific recommendations from either committee on the need for such a duty.

As the noble Lord, Lord Stevenson, may well know, the compensation code which I alluded to in our debates on Tuesday, is both understood and has been developed over time. It has been further refined through the Housing and Planning Act 2016. Furthermore, the Government are already working to an existing commitment, reinforced by several assurances on the formal register, to minimise likely areas of permanent and temporary land take where it is practicable to do so. We have also developed a series of environmental minimum requirements, while the code of construction practice already provides a series of protections for those who may be affected by the construction of the scheme. It is already the case that, if contractors engaged in the construction of the railway fall foul of the expected standard of reasonable care and skill, they will find themselves exposed to claims of negligence which will be actionable through the courts in the ordinary way.

To prevent the need for people to seek redress through the courts, as my noble friend Lady Buscombe mentioned in her response to the previous debate, the Government have provided an alternative remedy in the form of the role of the construction commissioner who is able to receive and deal with on an independent and impartial basis any complaints about the construction of the railway. As my noble friend has already said, the commissioner has a particular role in determining complaints that are made under the small claims scheme, which provides a simple and informal basis to recover losses of up to £10,000 for each individual claim. To emphasise that point, the construction commissioner will also be independent of the Secretary of State and any nominated undertaker appointed to construct the proposed scheme.

Wider protections are already included in the Bill, such as the enforcement of planning controls, which will rest in the ordinary way with the responsible planning authorities. We have talked during our various debates today about the important role that local planning authorities and related agencies will have as we build and construct HS2. I am sure that noble Lords will also be aware that previous hybrid Acts referred to in our debate, such as the Crossrail Act and the Channel Tunnel Rail Link Act, did not include the provision of a duty of care to ensure that those affected by the construction of these projects were sufficiently protected. I hope that the noble Lord is reassured by what I have said and is therefore minded to withdraw his amendment.

[Lord Stevenson of Balmacara]

I thank the Minister for that full response. I think that one would be more inclined to accept it if there was a good record of engagement on the part of HS2 Ltd across the range of the piece that we have been talking about today and which I am sure was touched on last Tuesday, but of course the reality is that that is not the case. There have been too many mistakes, too many issues, too much neglect and too much arrogance in terms of assuming that people will just go along with what is being said. These are all words that have been used to me, and I am sure that they are not strange to the Minister’s ears. The point is that this is something that really does have to be handled carefully. On that basis, I beg leave to withdraw the amendment.

Amendment 65 withdrawn.

High Speed Rail (London-West Midlands) Bill

Lord Stevenson of Balmacara Excerpts

Report stage (Hansard): House of Lords
Tuesday 24th January 2017 Lords Chamber

Moved by

[Lord Stevenson of Balmacara]

2: Clause 1, page 1, line 11, at end insert—
“( ) The scheduled works may not commence until the nominated undertaker has consulted appropriate bodies representing the interests of landowners about its disposal of surplus land policy, and has published a report on that consultation.”

[Lord Stevenson of Balmacara]

My Lords, I draw your Lordships’ attention to my interests as declared at the Committee stage of the Bill and earlier. The subject of the amendment was discussed in Committee and the Minister made a helpful response at that time. The issue was also raised in the Select Committee of your Lordships’ House, as it engages the private interests of many petitioners, and that committee made a strong recommendation, to which I wish to refer. We also now have the Government’s response to the Select Committee, which raises the point that I want to raise with the Minister.

The Crichel Down rules have governed the selling of surplus land following compulsory purchase for over half a century. Although there are said to be problems with them—that is perhaps a matter for another day—they are respected as the rules of the game. This issue has great importance, as there is no real accessible right of review once land has been taken, as judicial review is effectively out of the financial reach of most landowners.

The problem is that HS2 Ltd has decided that, rather than simply follow the Crichel Down rules, as has been the established practice, it will introduce alongside those additional exceptions under which it will not offer, in the first instance, land that it has compulsorily purchased back to the original landowner. These exceptions include, it says,

“where it makes sense to pool the land with adjoining ownerships in a joint disposal”.

What this might mean, of course, is that where HS2 Ltd thinks that it will be better for it financially to keep the land it no longer needs and sell it in a different parcel, it will. It will not be offered back to the owner whose land it was originally. The Lords HS2 Select Committee recognised this and recommended in its report:

“We strongly urge the Secretary of State not to add further exceptions to what is already … a long list of cases … in which the original owner will not be given first refusal to reacquire the land at its then market value. Apart from other more principled reasons, which we need not repeat, it would be odd if one Department of State had its own version of the rules”.


The Government say at paragraph 122 of their response:

“The Promoter is prepared to reconsider the additional exceptions set out in the Information Paper in the particular circumstances of each case”.


It is that phrase to which I would like a response from the Minister. Obviously, if that means that no decisions will be given in general but only in particular cases, there is no certainty for the landowner, who would have to wait each time for HS2 Ltd to decide, presumably towards the end of the time for which it needed the land, whether to keep it. HS2 Ltd would still have the power to keep any land it wanted—for example, for a development—which it would have acquired at much below the market rate. Is that fair?

HS2 Ltd has provided no details of what criteria it would use to undertake case-by-case reviews. If a case-by-case approach is used, these criteria should surely be in the public interest. That makes the case. I look forward to hearing from the Minister. If he cannot agree to review, perhaps he would be prepared to write giving examples of what criteria would be used. I beg to move.

[Lord Ahmad of Wimbledon]

My Lords, as I am sure the noble Lord is aware, the policy regarding the disposal of surplus land received an extensive examination by the Select Committees of both Houses with regard to individual cases, to which he referred, and more broadly when they heard from representative bodies such as the National Farmers’ Union and the Country Land and Business Association. I am sure the noble Lord has noted this, but I say for the benefit of your Lordships’ House that paragraphs 417 and 421 of the Lords Select Committee’s report set out its conclusions in detail.

The Secretary of State is under a general duty to minimise land take for the railway, whether permanently or temporarily. In general terms, any land that is surplus following construction will be disposed of in accordance with the Crichel Down rules. These rules provide for the circumstances in which land acquired by compulsory acquisition, but no longer required, will be offered back to the former owners. The rules have been developed over the course of half a century and have been endorsed by previous Governments. The basic principle is that former owners will, as a general rule, be given the first opportunity to repurchase any surplus land at current market value provided it has not materially changed in character since acquisition, such as new buildings having been built on it.

The rules set out a number of other exceptions to this general principle, which HS2 follows, but have also added two further exceptions to cater for the special circumstances of the HS2 scheme. These exceptions would allow the Secretary of State to retain land acquired for the project where a site is needed for regeneration or where it is needed for the relocation of a business directly affected by HS2. The Select Committee report recommended that the project remove these two additional exceptions. In their response, the Government have noted, and agreed to reconsider, the additional exceptions in the particular circumstances of each case.

I hope the fact that we are proposing to use a very well-established approach for this policy and have further agreed to revise that approach to make it further in line with the original policy demonstrates that this amendment is unnecessary. I hope that the noble Lord is minded to withdraw his amendment.

[Lord Stevenson of Balmacara]

I thank the Minister for that response. I look forward to reading it in more detail in Hansard. For the moment, however, I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

Moved by

[Lord Stevenson of Balmacara]

3: Clause 1, page 1, line 11, at end insert—
“( ) Before the date on which the nominated undertaker commences any works authorised by this Act, the Secretary of State must publish a cost-benefit analysis of the environmental impacts of the proposed works within Phase One of High Speed 2 and connected construction works in the Chilterns Area of Outstanding Natural Beauty.( ) The report must include an explanation of the methodology used to value the savings in environmental impact that would have arisen from more extensive tunnelling.”

[Lord Stevenson of Balmacara]

My Lords, I will speak also to the other amendments in this group. We are at the end of a very long and extensive planning process, which, while not as lengthy as the planning inquiry for T5, I think could be agreed all round to have been quite a marathon. Despite the scrutiny of the public aspects of the Bill in this House and in the other place—and in particular, the excellent and thorough work done by the Select Committees, which was heroic in all respects, and to which I have already paid tribute in Committee, and about which others have spoken again today—I have a view that the public interest has not yet been fully satisfied. So I would like to make a couple of points arising from these amendments.

There are, of course, a number of problems to do with the hybrid Bill process. This has been described in earlier discussions as a hangover from the Victorian era, and it is probably going to be reviewed in the light of the fact that a Joint Committee has been set up of both Houses. We are aware that comments in the Select Committees of both the Commons and the Lords have been also been made, and it is a matter of some regret that your Lordships’ House has not had the opportunity to discuss the report of the Select Committee of the Lords that looked at this Bill in detail. If we had had that chance, some of the points that I am going to make could have come up at that time. I am not going to continue on process issues, however, because I think that they will be the subject of a report from the Joint Committee, and I hope that this House will have a chance to discuss this later on. I myself have submitted evidence, and I know that a number of other noble Lords have done so as well.

My argument in very skeletal form—and I hope that I am not engaging with any of the points that might be raised by members of the Select Committee who are present today, because this is a matter about public interest, not private interest—is that the procedures of the two Houses, more by accident than design, dealing with the public aspects of the planning Bill as in the case of HS2 through the Public Bill procedure, and the private aspects through Select Committees, somehow manage to exclude a full consideration of public interest issues. I want to argue that point in relation to these three amendments.

My three areas of concern are not matters that I expect your Lordships’ House to consider for amendment to the Bill. They were not put down as wrecking amendments; they are not intended to delay the progress of the Bill through to Royal Assent. But I hope that, at some point in the future, they will be open to interrogation by those responsible for delivering the Bill. They might well ask themselves important questions about whether what has been decided in the Bill through the processes that I have described is in the best possible form that it could be.

In Amendment 3, my question is not whether we should open the case for a through-the-Chilterns tunnel but to ask for transparency over how that decision was reached. Everyone will say that the Select Committee process, both in this House and in the other place, has done this issue to death. My point is that it probably has done it to death from the point of view of the private interest—but not from the point of view of the public interest. This is partly because the process engages with private interest from the start, and that tends to drive the way the debate is going. It is also a reflection of where we are today in relation to public bodies funded from public funds, which find it very difficult to put up arguments that are opposed to those that are made by a government department, such as the Department for Transport in relation to HS2. In that sense, there is a danger that the public interest would not be fully considered.

So I have two particular questions for the Minister. We are told in two or three places in the Bill documents that the statutory tests that are required by the Countryside and Rights of Way Act were undertaken by the Secretary of State. This was referred to by the Lords Select Committee. But what precisely were the tests and why is the information that was used to determine these points not made available? Surely it would be in the public interest to be transparent on this point, and I look forward to hearing from the Minister on this.

We read in both Select Committee reports—from this House and the other place—that a full-bore tunnel through the Chilterns AONB was considered, but rejected on cost grounds. If that is so—and I have no reason to doubt that it was done properly—why is that information not published and made available? The amendment states:

“The report must include an explanation of the methodology used to value the savings in environmental impact that would have arisen from more extensive tunnelling”.


Again, this is a matter of public interest, and I would be grateful if the Minister could respond. These requests are not disproportionate; they are in the public interest and should be answered, and I look forward to hearing what the Minister has to say about them. If he chooses to write in more detail, I will be happy to receive a letter from him at a later date.

On Amendment 4, the arguments are much the same —although, because it is a modest project, the costs here are much less. Again, we find that the tiny village of Chetwode, which is in north Bucks, argued persuasively for a bored tunnel, which was refused by the Commons Select Committee “on grounds of cost”. The Lords Select Committee also received this and said that it,

“reluctantly reached the same conclusion”.

We have not seen the figures. Again, that is an issue of public interest, and I would be grateful if the Minister could provide them now—or, if he wishes, in a letter.

--- Later in debate ---

[Lord Ahmad of Wimbledon]

I referred to the specific addition, but I note what the noble Lord has said. I will write to him in that respect and ensure that a copy of the letter is laid in the Library of the House for the benefit of all noble Lords. I reassure noble Lords that this is an area that the Government have considered very carefully. Indeed, it has been scrutinised specifically by the Select Committees of both Houses.

I want to pick up on a couple of points that have been raised. The noble Lord, Lord Stevenson, asked specific questions. I will write to him in detail on some of the issues that he raised, but my understanding is that the response on Section 85 was set out in the Government’s response to the 2011 consultation, which was subsequently published in January 2012. The other issue, of environmental mitigation, is also included in the business case, as was assessed according to the department’s guidance. As I said, the noble Lord raised some specific points and I will write to him in that respect.

The noble Lord, Lord Berkeley, raised the issue of the ideas that contractors may put forward. As I am sure the noble Lord is aware, contractors come under the powers in the Bill, including the limits on deviation. Contractors are also limited by the environmental statement. Within those limits, contractors will be encouraged to be innovative. Indeed, a key commitment to Parliament in the environmental minimum requirements is that we will seek to reduce the environmental effects beyond those in the environmental statement itself. That will be done by innovation, much akin to what the noble Lord suggests.

I reiterate the point that the Public Accounts Committee in the other place and the National Audit Office will continue to examine the costs of HS2 as we move into the detailed design and construction stage and more detailed cost information becomes available. I hope my detailed response demonstrates what has been done, the analysis that has been undertaken and the revisions that have been made in response to issues that have been raised, particularly in the area of the Chilterns. I hope it demonstrates to noble Lords that the tabled amendments before us this afternoon are unnecessary. I underline that these issues have been fully examined, not by one Select Committee but by two. I have already underlined the amount of time they took and detail they went into in their careful consideration. As a Government, we feel that any further cost review at this stage would serve only to delay the railway, which I am sure is not the intention of the majority of Members in your Lordships’ House. I hope that, with the detailed explanation I have given, the noble Lord is minded to withdraw his amendment.

[Lord Stevenson of Balmacara]

I thank all noble Lords who contributed to this brief debate. I expected to be vilified and attacked, and that all happened in due order. I have no comments to make on that—it goes with the burden of trying to stand up for things that you believe in. At least my noble friend withdrew the idea that I might be hysterical, which was only marginally worse than getting a low 2.2 for drafting when we introduced the discussions on the higher education Bill a few weeks ago.

I had a good response from the Minister on the particular questions I raised, and I thank him for that. On whether the statutory duties required under the CROW Act had been dealt with, he said he thought that they had been published. I would be grateful if we could perhaps have a further discussion on that when I have seen the letter that he will write. My impression was that they were not spelled out in the detail that I am looking for. I am sure that we will get to that point, so I am not worried. I look forward to corresponding with him on that.

The second point is on the cost of tunnelling, a question that came up several times from noble Lords. I understand the point that has been made but, as was said, I think, by the noble Baroness, Lady Pidding, to know the cost of building the whole railway is important, but it is not the only factor that we need to know. What savings have been built into the overall cost by not doing other things that would have cost more money or, indeed, less? It is that argument that we are lacking information about. If it is true that the tunnelling is providing environmental benefits, those benefits need to be taken into account in the total value for money—a point that was made. It is that issue that we do not get.

For instance, my noble friend Lord Young raised the issue of the Colne Valley, which was not part of the amendments I put down, although it could have been. He said, as has been said elsewhere, that this was independently assessed and so is okay. But when you learn that the independent assessor was a non-executive director of the Department for Transport, which authorised the review, you wonder whether that is truly independent. Again, the point is: what does that show us? If the figures provided by the promoter are correct, that is one aspect, and it is very useful. But it does not tell you what would have been the cost had it been done a different way, such as by tunnelling. If you do not cost in the environmental benefits, that is an issue.

The Minister mentioned a range of costs for different tunnels. The figure that we most often hear, and therefore the one we are using, is about £485 million—I do not want to go into this in any detail—for the extension of the tunnel from where it comes out in the AONB in the Chilterns to Wendover. It is that figure that I want to measure against the savings that would occur from the environmental benefits preserved—the lack of building of viaducts and the requirement not to build bunds and sound-proofing. That is the figure we never hear.

Lots of people who have been engaged in the process say that they have read the reports and seen the figures. They always say that it is okay, but they never tell us what the figures are. Do noble Lords not find that just a little odd? That is why I say that the public interest needs to be satisfied and why I put down these amendments. However, I am satisfied that we have had the debate that I wanted to have at this stage. I look forward to the letters from the Minister and, with that, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.