Review of petitioning procedures on Hybrid Bills – Response of Stop HS2

Today is the deadline for submissions to a review of the petitioning process on Hybrid Bills. Below is the response of Stop HS2.

Stop HS2 welcomes 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. However, whilst this review is welcomed, it is of significant concern to us that an unstated aim of this review may well be to limit the already limited access of recourse to those impacted by Hybrid Bills.

The vast majority of petitioners appearing before the Commons Committee 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. 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. This situation has been exasperated in the House of Lords, with the near blanket refusal to hear action groups.

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 from the promoter seemed to become gospel in the eyes of the committee. 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 the promoter 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 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.

However from the outset, despite their protestations to the contrary, the promoter adopted a ‘them and us’ attitude, whereby they treated individuals impacted by the scheme, not as human beings with feelings and huge personal stakes in the balance, but as ‘the enemy’. This is clearly demonstrated by the independent reports produced by the PHSO, PACAC and Mr Ian Bynoe.

Specific Questions Raised by This Review

How should the process of depositing petitions be modernised?

The Commons should adopt 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 or post. 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 these standard words are still required, they should be moved onto a standard cover sheet, so they do not have to be edited around.

In the case of HS2, the promoter stated, though we believe incorrectly, that when consultations had been ongoing, they had contacted all individuals within a certain distance from the project. We believe, this should happen to inform residents about the opportunity to petition, or at least there should be some other mechanism to inform the public, perhaps by contacting those who had previously responded to consultations, which would always precede the petitioning period with future Hybrid Bills.

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, and if the fee is intended as a show of good faith, reimbursing the fee following an appearance before the committees should be considered, as a repayment of 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.

Should there be different processes for determining rights of audience (’locus standi’), such as a written or partly written process?

We feel the entire procedure for determining locus standi should be redefined, effectively reset by a change in standing orders. 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, as again this clearly favours the promoter due to the resources available to 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 recent House of Lords challenges, the promoter provided guidance via reference to precedent which exclusively showed that all challenges would fail, despite the fact there were very many contradictory precedents. This was clearly unfair.

Having said that, during the Commons process, the Clerk of the Committee made Stop HS2 aware of the ‘Crossfire’ precedent that we believe was fundamental in achieving locus, although the Lords decided to ignore this precedent.

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 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.

Additionally, 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.

Should Members of Parliament be allowed to petition on behalf of their constituents and/or to represent petitioners?

Absolutely. It is a damning indictment of how unfit for purpose the current system is that that question is even being asked.

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 Commons Committee 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 Commons process, 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 committee and petitioners.

Some form of generalised record should be kept of issues covered in petitions by an independent party. Whilst the Commons committee 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 the committee. The rules for submission of evidence must be enforced, or petitioners finding themselves in this situation must have the opportunity to defer or 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.

Submitted by Joe Rukin, for Stop HS2.

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