Assurances from HS2 Ltd: More unhelpful things from the blogosphere.

On 20th October, the issue of the difference between assurances and undertakings came up at the HS2 Hybrid Bill Committee, following an article published two days earlier on the Stop HS2 website. The article was published as a warning to individuals due to appear before the committee, who are being contacted by HS2 Ltd, with a view to stop them appearing in front of the committee.

The issue revolved around the experience of what happened in Kent with HS1, when assurances were given, but what had been promised never happened.

When petitioner Paul Blackmore brought this issue up, Tim Mould QC who was acting for HS2 Ltd told the committee:

“What I do know is that there have been – let me put it this way – there have been things being said on the blogosphere, which are not terribly helpful about past experience. That is where the Kent County Council experience comes from. In fact, the position as I understand it – and I’ll see if I can find someone who, as I say, can bring their own practical experience to bear for you on this – my understanding is that actually the system worked very well with CTRL, far from what’s been suggested by some on the blogosphere.”

Now, the original article did have a quote from a Kent County Council Officer which was labelled ‘[sic]’, meaning that it was knowingly not an exact quote, as two years had passed since the meeting in Warwick where the warning had been given, so we tracked down the officer in question for clarification, with Sharon Thompson from Kent CC* telling Stop HS2:

During the Parliamentary process, petitioners secured a number of ‘commitments’ from the promoter to address concerns that were raised. These were either in the form of assurances or undertakings. In hindsight, there was probably little understanding about the difference between them, both being a way forward of addressing  local concerns and couched in language that satisfied the concern. In my experience however following the enactment of the Channel Tunnel Rail Link Bill those commitments that were secured via an undertaking were much more robust. Those commitments that were assurances were more flexible and more akin to best endeavours to do x based upon a particular circumstance. That is not to say that an assurance was worthless – in many cases the commitment was as good as an undertaking.”

*Please note, this comment was made in a personal capacity, and is not the official view of Kent CC.

This was pretty much in line with what we had originally published, that assurances might happen, but they might not. Wondering if his contribution would end up classified as another ‘unhelpful thing from the blogosphere’, Paul Thompson of Bircham Dyson Bell asked if the difference between undertakings and assurances matters, and answered his own question with a unequivocal ‘Yes’, saying:

“This is because framing intended commitments as assurances has a number of deficiencies so far as those who seek to rely upon them are concerned. In particular:”

  • assurances will not be directly enforceable by the petitioner but only by the Secretary of State
  • the petitioner will have no say over (or probably even sight of) the contractual arrangements between the Secretary of State and the nominated undertaker which render the assurances binding
  • it will be up to the Secretary of State to decide what is reasonable and necessary to secure compliance with commitments
  • other than to the extent that the HS2 Complaints Commissioner can become involved there is no guarantee that a process and resources will be put in place and maintained by nominated undertakers and the Secretary of State to deal with concerns over, and disputes on, assurances given to petitioners, and to ensure that these are determined fairly and promptly
  • any enforcement action by the Secretary of State will have to be considered by him and his Department in the context of their overall relationship with the relevant nominated undertaker at the time – as such, it may be influenced by wider considerations (eg cost or programme over-runs or other matters needing to be agreed by the Secretary of State with the nominated undertaker) rather than simply having regard to whether the assurance has been complied with
  • assurances provide no basis for referral of anything to arbitration or other form of dispute resolution, as is often needed in complex commitments respecting works affecting property

So not only will no resources be put in place to arbitrate on disputes, but point five must scare everyone, because in saying that enforcing assurances may come down to how the budget is going, he may as well be saying that if the budget is going south, the first thing which will get cut will be the assurances. In fact, scrapping assurances may practically be the only thing which can be cut in the face of over-spending.

Mr Thompson went on:

“Nobody involved in or affected by ordinary building or other construction works and relying on commitments made in relation to them would normally expect to, or ever be advised to accept, commitments on the basis of assurances as offered by HS2 Ltd.  That being so, it may be asked why should petitioners be expected to or HS2 Ltd and the Government want them to?”

“There is certainly no advantage to the petitioner in doing so other than the consideration that HS2 Ltd and the Government (who hold an overwhelmingly stronger negotiating position than any petitioner) may not be prepared to proceed otherwise.  There are however significant advantages for HS2 Ltd and the Government, not least the following:”

  • there is no risk then of the petitioner being able to take legal action in relation to any perceived failure to comply, either directly against a nominated undertaker or against the Secretary of State
  • HS2 Ltd can keep proposed commitments in very general high-level terms, rather than being driven into specific detailed commitments
  • phrases can be adopted in the assurances which are either quite imprecise or leave enormous discretion to the Secretary of State
  • the precise interpretation of the assurances will be a matter for the Government and incapable of being tested independently

And finally, to echo exactly what we said in our original ‘unhelpful’ article, Mr Thompson concluded:

“Plainly, assurances do not confer the same protection as could reasonably be included in a legal written agreement and would normally form the basis for protection of property interests affected by construction works.  We at Bircham Dyson Bell therefore believe and will continue to advise that protection negotiated with HS2 Ltd should be translated into a formal legal agreement where this is practicable, or, in those limited circumstances where only provision included in the Bill itself can bind future Secretaries of State, by amendment to the Bill.”

The full blog can be found on the Bircham Dyson Bell website.

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