The Queen gave her royal assent to the High Speed Rail (London – West Midlands) Act 2017, allowing phase 1 of HS2 to be built from Euston in London to near Lichfield in Staffordshire.
This project has been authorised by its own Act of Parliament rather than via the Planning Act 2008 since it is of such magnitude and is being promoted by the government. To avoid it being an offence under the Planning Act 2008 to build it, section 24 of this Act avoids the need for consent under the 2008 Act. Section 31(4) does the same for any electric lines built as a consequence of this Act.
The bill is known as a ‘hybrid’ bill because it has features of a private bill (a bill affecting only a section of the public against which external objections can be made) and a public bill (a bill affecting the law in general).
Contrast between hybrid bills and development consent orders
I would say that the four main differences between scrutiny under the Planning Act 2008 and the hybrid bill process are first, the nature of the ‘tribunal’, the group of people considering objections to the project (‘representations’ and ‘petitions’ respectively), secondly, that there are two bites of the cherry in Parliament, thirdly, that objectors can be thrown out for not having sufficient interest in the project, and fourthly, there is an ability for changes to be made to a Bill that aren’t wanted by the project promoter.
On the first point the contrast is between one to five inspectors whose main job is to examine applications and who are scrupulously fair and thorough, and a group of (recently six) Parliamentarians for whom hearing petitions isn’t their main day job and they approach it with varying degrees of enthusiasm. The former weigh up evidence carefully and over a long period; the latter can be swayed (either way) by oral representations and make less predictable decisions, which can make the process more exhilarating.
On the second point Bills allow petitions to be made in both houses of parliament, either raising the same points again by the same people or new points by the same or new people. This second chance is a little illusory, however, as the second house rarely makes any changes to the project, however conscientiously they hear petitions.
The third point appeared to be disappearing but was revived for this bill: the ‘standing’ of petitioners can be challenged by the project promoter. Unlike under the Planning Act 2008 where anyone can make a representation, only those ‘specially and directly affected’ by the project that is the subject of a Bill are guaranteed an ability to petition against it. Few were challenged on the last hybrid bill, the Crossrail Bill, but many were challenged on the HS2 Bill, especially in the House of Lords, where more than half of the petitions were challenged. A related point is that objections cannot be made to the principle of a bill in parliament, since it has been voted on as being able to go ahead by the time the petitioning process starts.
The final point is the most interesting to me and is a definite advantage for objectors using the parliamentary process. The committee of MPs will make interim decisions upon hearing a number of petitions and can ask that the project be changed as a result. The convention is that the promoter of the project accepts such recommendations and this is almost always honoured. Contrast this with the Planning Act examination process where only changes proposed by the promoter have any chance of being accepted.
Having said that, this does not mean that the parliamentary process favours objectors. The length of time a select committee sits for and the geographical extent of the project means that the committee gets very familiar with the promoter’s team and the same issues come up again and again, so a kind of Stockholm syndrome settles in. Petitioners come and go and do not have a comprehensive understanding of the project nor of the history of issues that have already been raised and this puts them at a disadvantage. Under the Planning Act 2008, give how few hearings there are it is quite usual for a few main objectors to appear at all of them.
Timings and scale
The bill that led to the Act was deposited on 25 November 2013, so it has taken just under three years and three months to be enacted. Compare this with the Crossrail Bill, which took slightly less – three years and just over two months, from 18 May 2005 to 22 July 2008. How we smiled when the HS2 bill was going to be the fastest hybrid bill ever. Even though it wasn’t, towards the end of the Commons select committee stage petitions were being heard at breakneck speed with a lot less time devoted to them than the early petitions.
1918 petitions were made against the original bill in the Commons, and a further 668 were made against changes to the bill in the Commons. A further 820 petitions were made in the Lords, making a total of 3406. Only a handful of Planning Act 2008 applications have attracted more than 1000 representations.
The committee sat for 160 days and heard about 2/3 of the petitioners – the rest either did not appear or had grouped together, making about ten petitions per day on average. The Crossrail Bill committee heard 205 out of 457 petitions but sat for proportionately longer: 84 days, making about 2 1/2 petitions per day. Contrast these with the Planning Act 2008 process where it is rare for more than ten hearings to be held, but then again examinations are largely conducted in writing, whereas Parliament is primarily an oral process.
Next steps
There are two more phases of HS2: phase 2a, from the West Midlands to Crewe and phase 2b from Crewe to Leeds and Manchester. These will be the subject of two further bills; the phase 2a bill is expected later this year and the phase 2b bill towards the end of next year.