UK: HS2 - Next Stop: Westminster

Last Updated: 15 April 2013
Article by Robbie Owen and Sarah Clark

After the recent HS2 judicial reviews, ministers stated that the judgment had '"categorically given the green light for the Government to press ahead without delay". As preparations continue on a Hybrid Bill, Robbie Owen and Sarah Clark consider whether HS2 phase one is now a done deal.

Following Patrick McLoughlin's January announcement of preferred routes for lines to Manchester and Leedsand with a major public consultation on those routes expected later this year, all attention has been on High Speed 2's second phase. One might be for-given for thinking that the phase one proposals, from London to the West Midlandswere more or less decided and entering something of a hiatus as far as opportunities to influence them are concerned. Detailed route maps have been published, major consultations have been undertaken and key policy decisions have been made by successive transport secretaries.

This impression is reinforced by the recent judgment of the High Court, in rejecting nine grounds of challenge put forward by claimants opposing the scheme, including the HS2 Action Alliance and members of 51M, a group of 18 affected local authorities.

These groups had mounted various legal challenges to the Government's 2012 decision to proceed with phase one following a consultation the previous year. They argued that the consultation process had been flawed; that the information given to local authorities was insufficient; that European environmental legislation had been breached; and that the consultation on compensation proposals for affected property owners was unlawful.

But in a judgment handed down on 15 March, it was only the last claim – the challenge by the HS2 Action Alliance to the lawfulness of the consultation on the discretionary compensation scheme – which succeeded. The other nine challenges identified in the five separate cases were not upheld, in a decision the DfT described as a "landmark victory" for the project.

The Government will have to consult again on the compensation options, and with leave to appeal granted in respect of two of the grounds of challenge, there remains some work to do following the judgment. However the re-consultation will not delay the HS2 timetable and the Government intends to press on with preparing its phase one Hybrid Bill for introduction into Parliament at the end of this year.

A significant challenge may have been successfully overcome but a number of critical milestones remain for the project between now and the 2015 general election, not just for the development of phase two but particularly for phase one. Opportunities for campaigners from both sides to influence matters lie ahead and those interested should be gearing up to ensure that these are not missed.

So what should those interested in HS2 phase one expect over the next two years and how might they try to influence the proposals?

From the courts to Parliament

Despite the court challenges, the Government has been pressing ahead and the Secretary of State recently confirmed that the DfT remains on track with plans to deposit a phase one Hybrid Bill by the end of this year. He was, however, somewhat non-com- mittal when asked whether it was still intended to secure Royal Assent before the general election, as originally suggested. Such a timescale seems particularly optimistic, bearing in mind that the Crossrail Act 2008 took more than three years to pass through Parliament and the HS1 bill took a little over two years.

It is important to appreciate, therefore, that the process of seeking authorisation for HS2 phase one has yet to begin. So what will the Parliamentary authorisation process mean? Will it just be rubber-stamping plans already drawn? Is there still an opportunity to try to secure changes – or is the scheme at risk of being defeated altogether?

Hybrid Bills mix the characteristics of public and private bills because the changes to the law proposed would affect the general public but would also have a significant impact on specific individuals or groups. HS2 could have been authorised by means of a development consent order under the Planning Act 2008, but a Hybrid Bill is understandably the Government's preferred way of authorising the construction and operation of the new high speed railway.

In this way, an expensive, important, yet controversial project, if it is to proceed, will have received the blessing of Parliament. Additionally, by securing powers through primary legislation, the Government will not find itself constrained by the legal parameters of the Planning Act.

The first opportunity to influence phase one will arise before the Hybrid Bill has even been published. To comply with European legislation HS2 Ltd must undertake a full environmental impact assessment of its proposals to identify likely significant environmental effects and the need for mitigation measures.

The Government has already confirmed that it will consult publicly on a draft of the resulting environmental statement in spring or summer this year. This means there will be an opportunity to respond regarding the approach taken to the assessment of impacts and the proposed mitigation measures to address those impacts. This will be an important opportunity for those affected to raise issues of concern and to suggest how they would like those issues to be addressed.

Given that the recent legal challenge sought to argue that the EIA process was unlawful before it had even begun there will be considerable pressure on HS2 Ltd to ensure its environmental assessment is rigorous if any further challenges are to be successfully avoided or defended.

Autumn Hybrid

The proposals will reach Parliament "in the autumn" – in reality, probably at the end of November. Like the Channel Tunnel Rail Link and Crossrail bills before it, the HS2 phase one Hybrid Bill is expected to go to the House of Commons first. At Second Reading there will be a debate regarding the general principle of HS2. If the Government were to be defeated on a vote at this stage, that would be the end of the bill and the HS2 proposals in their current form. However, this is unlikely as there is cross-party sup- port for high speed rail, particularly because the proposals began life under Andrew Adonis and the previous Labour Government.

The principle of HS2 cannot then be challenged during the bill's subsequent stages; instead Parliamentary scrutiny will move on to consider the detail of the bill's public and private provisions. Opponents of HS2 will need to direct their arguments accordingly and it will be pointless trying to argue about, for instance, the business case for HS2. However, what is, and is not, included in the principle is an issues that will still be raised.

A brief opportunity will then be given, usually for two or three weeks following Second Reading, for those outside or private interests "specially and directly affected" by the Bill to lodge objections to the proposals through the deposit of a petition. This is not a petition of the public type, many of which have already been established on the Government's e-petition website, but instead a specific document setting out detailed matters of concern together with a request for a specific response or remedy. For instance, petitioners might question elements of the proposed route or the effect on particular properties.

A select committee will then be appointed to consider the petitions and those petitioners who wish to do so may appear in order to present their case, in a manner similar to a public inquiry. When they have heard all the petitioners the committee will make recommendations. Committees often recommend significant changes to projects and the Government will usually accept those recommendations. So it is important for all affected parties to choose their points carefully and to take the opportunity to present their case if they are unable to reach an agreed position with Department for Transport officials and HS2 Ltd.

The whole process can take many months, even over a year. It is usually then repeated in the House of Lords, where petitioners who have been unsuccessful can try again and new petitioners can try their luck too. However, in order to speed up passage of the HS2 Bill, we expect the Government to try to secure the appointment of a joint select committee of both Houses – something that has not been done on a Hybrid Bill since 1946.

Paving the way

Patrick McLoughlin recently announced that the Government intends to bring forward an HS2 Paving Bill "when Parliamentary time is available". Paving bills are normally brought forward in order to provide a government department with authority to spend money in a preparatory manner, in other words to develop a proposal which has not yet secured approval in principle from Parliament.

Paving legislation is generally very short, comprising only a few clauses, but its passage through Parliament is not necessarily quick because the legislation can be controversial. In this case it is likely that it will result in a parliamentary debate on the whole principle of high speed rail.

According to press reports the paving bill is expected in the new parliamentary session starting in May. The timing may seem surprising given that the phase one Hybrid Bill will be relatively close behind. However, we understand that the paving bill will be seeking spending powers in respect of phase two in particular (a Hybrid Bill for phase two is not expected to be deposited until 2015) and will create a new duty on the Secretary of State to promote a high speed rail network. No doubt this is designed to secure some political momentum behind HS2 before the phase one bill arrives, and to provide confidence that phase two will follow and so shore up the phase one business case.

Paving bills are ordinary public bills and so there will not be any opportunity for individuals to petition against them in the same way as Hybrid Bills – but no doubt MPs whose constituencies are badly affected by the proposals will make their views well known.

In recent months eyes have turned to the northern legs of the high speed rail proposals and with a public consultation exercise about to begin this will continue. However, phase one is far from settled and interesting times lie ahead as powers will be sought and resisted for the London to West Midlands route. Those interested and concerned about phase one should be preparing for the Hybrid Bill now and for what will be a challenging, if not high speed, journey through Parliament.

This article was originally produced for 'Transport Times' in April 2013.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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