Comment

01.05.14

Securing a seat at the negotiating table

David Haines and Malcolm Dowden, who both acted as ‘Roll B’ Parliamentary Agents in relation to the Crossrail Bill, explain the upcoming petitioning process for the HS2 Hybrid Bill.

It is not always the best, the most appropriate or the most beneficial rail project that is built. Often, a project will be built primarily because it is the ‘only game in town’. That was a key message of a presentation on HS2 at the House of Commons as long ago as 2010. The extent of the preparatory work required for a major infrastructure project – including the intensive lobbying required to line up sufficient political support, as well as route planning and the environmental impact assessment – means that there is very little likelihood that governments will be offered a choice of mature and viable schemes. Consequently, the real-world decision tends to be one between reaching for the available project – or being accused of allowing the nation’s infrastructure to fail.

In practice, arguments concerning the relative merits and potential economic benefits of HS2 as against urban metro or mass transit schemes have been largely academic. Political impetus has gathered behind HS2. The scheme requires Parliamentary authorisation by means of a ‘Hybrid Bill’. At the time of writing, that Bill is scheduled to receive its second reading on 29 April 2014 (Editor’s note: The result is here). Once past its second reading, the ‘principle’ of a Bill is approved, meaning that no fundamental opposition to the scheme or major alterations to the route will be considered. The Bill moves to a committee whose remit is to consider petitions seeking specific protections for landowners or other interests affected by the scheme. The committee is concerned with detail, not big-picture issues.

Taking Crossrail as the most recent example, the committee stage can take up to two years, depending on the number of petitions received and the extent to which those petitions can be settled through negotiation. Behind the parliamentary scenes, there will be an intensive effort to agree the assurances and undertakings required to persuade petitioners to withdraw before their concerns have to go before the committee.

Petitioning is a key element of the Hybrid Bill procedure. Immediately after the Bill’s second reading there will be two ‘windows’ within which those affected by the scheme must submit their petitions. The first period, applicable to local authorities (not including parish councils) and businesses runs from 29 April to 16 May. Individuals have until 23 May to submit petitions.

Petitions may be submitted in person or through a solicitor who is registered as a ‘Roll B’ Parliamentary Agent. Given that the petitions must meet formal requirements, and form the basis both for negotiation with HS2 and for a hearing in front of the committee if they are not withdrawn, there is a strong case for instructing a solicitor with relevant experience. Negotiations with HS2 are intended to lead to legally enforceable agreements or assurances and undertakings, and as several businesses affected by Crossrail have found to their cost, loose wording on issues such as rights of way or protection from disruption during the construction phase can lead to business-threatening problems.

Early estimates based on the length of HS2’s route, as compared with Crossrail, suggest that the committee can expect as many as 5,000 petitions to be submitted by the May deadlines. Some will relate to the need to record and protect ‘accommodation’ or ‘occupation’ rights for land and roads crossed by the new line. Others will seek enhanced protection, for example allowing longer notice periods for the relocation of telecommunications equipment than the Bill provides as standard.

Others are likely to ignore (or to be unaware of) the rule that petitions cannot challenge the principle of the Bill and call for the scheme to be scrapped or radically altered.

Consequently, petitions will have to be assessed, categorised and grouped for negotiation. The process is time-consuming and complex. Parliamentary committee members and the senior barristers appointed to respond to petitions in committee sessions will hear of little else for up to two years.

The question after second reading is not whether HS2 is the best scheme, or even whether it is a good scheme. The procedure is concerned only with authorisation of the scheme as it stands, complete with its limits of deviation and limited protections for those affected by its construction and operation – and petitioning is the only way to secure a seat at the negotiating table.

David Haines (below, left) is a partner at Charles Russell LLP and Malcolm Dowden (right) is a consultant for the firm. Both acted as ‘Roll B’ Parliamentary Agents in relation to the Crossrail Bill.

David Haines Hi resize 635352226688222000       Malcolm Dowden - Colour resize 635352226532222000

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