Today, the a consultation on changes to the process to petitioning Hybrid Bills has concluded. here is our response:
Stop HS2 welcomes a further opportunity to respond to this this inquiry, as it is abundantly clear that the process of petitioning Hybrid Bills is archaic, and falls well below the appropriate level of accessibility, especially for members of the general public who are unfamiliar with Parliamentary processes. This has been underlined by completely different approaches on many issues being adopted by the Commons and Lords Committees.
This reinforces the issue outlined in our previous response, that we are concerned that an unstated aim of this review may well be to limit the already limited access of recourse to those impacted by Hybrid Bills. Whilst the process of depositing petitions was more flexible in the Lords, it is our opinion that this positive start was followed by a concerted policy to reduce the number of petitioners on a clearly arbitrary basis, with no consistency of approach.
The vast majority of petitioners appearing before both Committees were private individuals, who very much found themselves at the bottom of the food chain, bereft of resources and seemingly ‘outranked’ by their local authority, which in many cases did not share their concerns, as they had prioritised what they concerned to be the ‘big ticket’ issues. The most damning indictment of the process is that single petitioners, whether representing personal or business concerns, almost exclusively only got positive outcomes if they could afford legal representation and the counsel of experts. It is clear that there was effectively a financial barrier preventing ordinary people from getting satisfactory outcomes and, in our opinion fair hearings.
With seemingly unlimited Government resources available to the promoters of Hybrid Bills, it is against any concept of natural justice that experts were not made available to either the Committee or the petitioners. This situation led to a state of affairs where the opinion of experts employed by the promoter was hard to challenge, and petitioners even found themselves questioning their own position, in the face of the absolute insistence from the promoter and their experts that they were wrong.
Going forward it is imperative that in the future, either Committees have their own experts, or petitioners have access to experts, akin to the concept of a ‘duty solicitor’, but preferably both.
Whilst perhaps beyond the purview of this review, engagement between promoters and potential petitioners has to be addressed, as much could be done to influence the likelihood of people to petition before the petitioning process takes place. In the case of HS2, five years had passed between the original announcement of the project and the start of the Commons petitioning process. If the promoter had adopted a stance whereby those affected by the proposal had felt that they had been engaged with, treated fairly, and provided with relevant and timely information, we are certain there would have been fewer petitions, and less complicated petitions. There were many instances whereby petitioners only got answers to questions they had been asking for six years, during petition hearings. This represents a complete failure on behalf of the promoter to act appropriately and respectfully in dealings with members of the public until the point at which they reluctantly had to, as demonstrated in the conclusions of reports from the PHSO, PACAC and Mr Ian Bynoe.
Specific Questions Raised by This Review
How should the process of depositing petitions be modernised?
The process for depositing petitions which was adopted by the Lords, in that petitions did not have to be physically delivered in quadruplicate but could be delivered by email, fax or post was far better than the process employed in the Commons. The standard wording required at the start and end of a petition should be redacted, so that all a petitioner has to worry about is writing the content of their actual petition. If a standard wording of some sort would still be required, this should be moved onto a standard and separate cover sheet, effectively a form, so these words do not have to be edited around in the body petition.
In the case of the HS2 project, the promoter has stated though we believe incorrectly, that when prior consultations about the project had been ongoing, they had contacted all individuals within a certain distance from the project. However, similar efforts were not taken to inform residents about the petitioning process. There was also no requirement on Parliament to inform and educate people about the petitioning process. Whilst the Private Bills Office has produced guidance, there was no requirement to proactively inform those affected that the recourse of petitioning existed. Indeed, it was exceptionally clear that it was action groups and councils which made sure those affected where aware of the existence of the petitioning process, again despite the imbalance in resources available.
We believe it should be a statutory requirement for any promoter of a Hybrid Bill to at the very least directly contact affected residents (i.e. those who would not normally be challenged on locus standi if they did submit a petition) and inform them in full of the procedure, mechanisms, processes and deadlines associated with submitting a petition against that Hybrid Bill, in a set form of words without editorial bias. This should be in addition to press notices, and would be consistent with how residents are informed of the opportunity to object in the case of regular planning applications.
Should petitioning fees be changed or abolished? Are other petitioning expenses significant?
We completely understand that the £20 fee exists to make sure that only people with genuine concerns submit petitions. We feel that if the surrounding mechanisms for submitting petitions are to be made more accessible, it is sensible that this fee remains. We feel the fee is just at the right level. However, if the fee is intended as a show of good faith, reimbursing the fee following an appearance before the committee should be considered, as a repayment of this good faith.
We feel it is totally unnecessary to charge petitioners in the second house who petitioned and appeared before the first house.
As the final part of modernising the petition submission process, electronic payments should be allowed, but as adopted by the Lords, it should remain possible to send cash or a cheque by post after the petition has been submitted and the deadline has passed, i.e. by those submitting an email petition on deadline day.
An extremely significant cost of petitioning for many members of the public is the cost of travelling to London. In the first instance, the change to the deposition of petitions should be confirmed, in that the requirement to physically deliver them should be abolished. This represents a totally unnecessary cost, both in terms of the cost of travel itself, but potential loss of earnings or the need to take holiday to get to London during office hours.
The most equitable solution to this problem would be for travel and accommodation expenses of petitioners to be met by the promoter. This would be an insignificant expense compared to the other costs to the promoter incurred during the petitioning process.
Another option in terms of petition hearings, holding them outside of London should be considered. It is likely that the next two Hybrid Bills to be presented to Parliament will be for Phase 2a and 2b of HS2, meaning greater distances, taking longer journey times and costing more money would be incurred by all petitioners if they are required to travel to London.
If this is not an acceptable option, consideration should be given to the timings of petition hearings, as many petitioners have been forced to buy peak-hour tickets or arrange overnight accommodation. All possible efforts should be taken to minimise this financial burden on petitioners. This could be achieved by a number of mechanisms, including: starting hearings later in the morning and finishing later in the evening, only scheduling petitioners to be represented by Roll A Agents first thing in the morning, allocating allotted appointment times so that petitioners scheduled for the ‘morning’ do not have to arrive at the start of the session, and holding hearings at weekends.
Should there be different processes for determining rights of audience (’locus standi’), such as a written or partly written process?
We feel that a written process would further tip the balance of determining locus standi in favour of any promoter. Going through previous precedents shows that the legal firms representing promoters have successfully been arguing completely contradictory points concerning the subject of locus standi for over a century.
We feel the entire procedure for determining locus standi should be redefined, effectively reset by a change in standing orders, as it is abundantly clear there was absolutely no consistency in approach in the rulings by the House of Lords Committee, and the precedents for granting locus standi are completely contradictory.
Indeed it is our belief that the Lords Committee had absolutely no interest whatsoever in determining whether a group or individual qualified for locus standi, but was solely interested in where groups or individuals were based and what they were to say in their petitions, not whether or not they had a right to say it.
This is demonstrated by the completely inconsistent approach taken in determining whether or not action groups, all of which represented individuals effected by HS2, had locus standi. The perfect example of this was the Euston Action Group, whereby the Chair of the Lords Committee specifically said the Committee were very interested in what the group had to say, immediately prior to the commencement of their locus standi hearing. This group was given locus standi, whilst other action groups were not, and we feel this clearly demonstrated that the Committee had already decided on the locus standi of all the action groups prior to their hearings, irrespective of the evidence to be presented. Moving to a written process would only allow decisions like this to be made on a more arbitrary and opaque.
The current system, due to the sheer number of contradictory precedents, most obviously now being that of Stop HS2 which won locus standi in the Commons and lost in the Lords, no-one being challenged on locus standi knows the measure by which they will be judged. This is clearly unreasonable and unfair and against the principle of natural justice. Again, this clearly favours the promoter due to the resources available to them.
We believe that the statement of the Chair of the Commons Committee, Robert Syms MP, when determining that Stop HS2 and HS2AA had locus standi not only should have been adopted by the House of Lords, but should now form a central plank of new rules regarding the determination of locus standi. It reads:
“On balance, we believe that a modern view of locus standi should allow some latitude to petitioners on how they chose the present their case.
“This is a somewhat complex process and there is a public interest in it seeming to be rigorously fair to all. “It seems to us therefore that both HS2AA and Stop HS2 have sufficiently demonstrated that they are representative of the people specially and directly affected by the Bill to have locus standi in relation to the effect on such people and fall within our standing order discretion.
“Notably, their petitions are not just protests against the principle of the bill.
“However they have said that their petitions are about route-wide effects, therefore we find that they will have locus on these matters only. It will be on route wide matters that we look forward to hearing from them.”
A clear, unambiguous statement of the rules of locus standi is what the imperative objective of any review must be. Once that has been established, we believe process will attend to itself.
Would guidance on cases where locus is likely or unlikely to apply be helpful?
Guidance would only be of help if it were certain how it would be applied. During the House of Lords challenges, the promoter provided guidance via reference to precedents which exclusively showed that all challenges would fail, despite the fact there were very many contradictory precedents. In fact, the promoter provided information sheets which included the crossed out text of precedents where the petitioners had won locus standi.
This was clearly unfair, but also demonstrates that any guidance based on precedents is completely meaningless, as over the years different committees have made different rulings on locus standi of groups and individuals, despite them presenting incredibly similar cases. Most obviously is the case of Stop HS2, as we received completely different judgements, based on exactly the same case.
In an attempt to level the playing field, during the Commons process, the Clerk of the Committee, the late Neil Caulfield made Stop HS2 aware of the ‘Crossfire’ precedent that we believe was fundamental in achieving locus. Although the Lords decided to ignore this precedent, we believe this was clearly an acceptance by Mr Caulfield, with or without the direction of the Committee, that the process and availability of information is unfair, and stacked in favour of the promoter and the legal firms representing them.
The reality is that unless a reset as advocated in the answer above is adopted, no amount of guidance will be of any use unless a clear, unambiguous statement of the rules of locus standi is adopted, as there are simply so many contradictory locus standi precedents that it is an oxymoron to call them ‘precedents’. Quite simply, people facing locus standi challenges do not know the standard by which they will be judged. This can only be achieved by a reset and change to standing orders.
How can petitioner representation, including by agents, be improved and simplified?
The concept of needing to register as a Roll B agent should be abolished. Petitioners should be free to choose who represents them, without the need for certificates of respectability, and likewise organisations such as Parish Councils, Residents Associations and Action Groups should simply be able to appoint one of their number to represent them without an unnecessary additional administrative burden.
If the certificate of respectability is to be retained, the number of professionals authorised to sign them should be extended to at least include the likes of doctors, teachers and councillors.
It should be made clearer that petitioners can call witnesses, so that experts can be brought in, or that groups can decide to split parts of their arguments between different advocates.
As mentioned previously, we believe it is imperative that in the future, either Committees have their own experts, or petitioners have access to experts, akin to the concept of a ‘duty solicitor’, but preferably both.
Should Members of Parliament be allowed to petition on behalf of their constituents and/or to represent petitioners?
Absolutely. The decision to deny locus standi to MPs by the Lords Committee sent a very clear message to those affected by HS2 that the Lords Committee was not interested in hearing genuine concerns about the project, but simply wanted to complete the process as quickly as possible. Unlike other locus standi cases, this decision over-ruled all existing precedents, where MPs had been allowed to petition without locus standi challenges.
This decision was quite simply a disgrace and quite simply represented the point whereby many members of the public lost all confidence in the process in the Lords.
How should Committees programme petitions so that arguments are heard fully and fairly by different contributors, and with opportunities for pursuing different remedies, but without unnecessary repetition?
At the start of the Commons petitioning process, Stop HS2, HS2AA and many of the Roll A Agents were called in to give their views on this issue. It was our position then, and it remains so now, that national issues which affected the entire project irrespective of local concerns should have been heard first. The committee rejected this argument, however later came to complain that these very issues kept being raised by numerous petitions, a situation which could have been avoided if our suggestion had been adopted.
Despite the fact that these issues, mostly arising from the HS2 Environmental Statement, were subsequently raised numerous times, it is our feeling that none of them were sufficiently resolved, due to the committees’ original ruling.
Should programming of petitioner appearances be handled by area or by type of petitioner – for example, should local authorities all appear first?
We feel that the order adopted by the Committees was the wrong way round in dealing with local petitions. Hearing from the largest local authority in an area first and individuals last lead to a situation whereby the promoter and committee would say that the local council did not bring up a specific point brought by an individual, somehow suggesting this invalidated it.
The order should have been the other way round, if individuals had been heard first, it would give the opportunity to ask the local authorities for their opinion of certain points brought up by their residents, but not by them.
The order in which petitions were heard, along with petitioners’ access to legal counsel, led to a clear hierarchy of the perceived importance of points raised in petitions.
There were a number of expert organisations appearing before the Commons Committee, for example on environmental issues, various Wildlife Trust and CPRE branches and the Woodland Trust. It would be incredibly sensible to hear from such organisations together. Whilst there was a bunching of some of these organisations, sadly this was toward the end of the process both in the Commons and the Lords, mostly because some of these organisations felt they could not petition earlier as they were still waiting on information from the Promoter.
How can petition hearings work better?
Far too much reliance was put on the promoter during proceedings. As mentioned earlier in this response, experts broadly reflecting the scope of the standard set of experts at hand to the promoter, should be made available both to the Committees and petitioners.
Some form of generalised record should be kept of issues covered in petitions by an independent party. Whilst the both Committees regularly complained that petitioners were bringing up the same points, this was inevitable as besides watching or reading the minutes of every single session, there was no way for petitioners to know which points had been raised and how they had been addressed. It would be sensible to keep a ‘Readers’ Digest’ version of such recurring topics, which could be made available to petitioners who wish to cover similar topics.
Many petitioners found themselves being presented with new information by the promoter on the day of their hearings, in direct contravention of the rules and procedure for the deposition of evidence. This practice caused many petitioners, who had spent a long time preparing, to be completely thrown off on the day they appeared. This was completely unreasonable, but was continually allowed by both Committees. The rules for submission of evidence must be enforced, or petitioners finding themselves in this situation must have the automatic opportunity to defer and appear again at a later date, with their travel expenses reimbursed.
It is clear that pressure had been put on many petitioners to shorten the time period they expected to take up for the presentation of their petitions. This is clearly unreasonable, and future Committees should accept that the process will have to take as long as it takes.
Should written representations be allowed?
We feel that whilst some may find making written representations better for them, such representations will be a lower form of representation. Such representations could only work if they were ongoing conversations, allowing for responses and questions, which could become a never-ending cycle.
How can strength of support for petitions be demonstrated without requiring appearances by petitioners who do not necessarily want to appear?
By letters of support.
Which rules and guidance need clarifying?
All of them, as outlined throughout this paper.
Has there been a difference in the process of petitioning the Lords’ Committee and petitioning the Commons’ Committee? If so, what was different?
Whilst the method for submitting petitions was much better in the Lords, unfortunately that was it. It very much seemed that the Commons Committee started with the approach that the process would take as long as it would take, with the Chair reasonably accurately predicting it would take two years. This approach was not matched by the Lords Committee, who from the outset gave the impression they wanted to get through the process as quickly as possible, making it clear that there were only certain areas of interest to them.
The decision by the Lords Committee that they could not make changes which would require an additional provision effectively discounted many of the points being made by petitioners. This was not only inconsistent with the promises made by the Commons Committee, who said petitioners would have the opportunity to bring up issues again when the Bill moved to the Lords, but is completely inconsistent with the approach and powers of every other committee scrutinising legislation originating from the other house.
This was completely unreasonable and unfair on all petitioners, and seems very much to have been a decision arrived at, not because of any rules or procedure, but a requirement to get through the process as quickly as possible. As it is quite possible for an amendment to be passed by the whole House, which could require an additional provision and would require the Bill to go back to the Commons, it seems without any justification that the Lords Committee decided they could not make any such amendment.
Submitted by Joe Rukin, for Stop HS2.