Better cooperation still needed to get full value out of pensions implementation statements
Out-Law Guide | 13 Jul 2021 | 10:19 am | 7 min. read
A hybrid bill is sometimes used by the UK government to secure parliamentary approval for major infrastructure projects, such as High Speed 2 (HS2) or Crossrail, as an alternative to seeking consent under the normal planning process.
Hybrid bills combine elements of public and private bills, meaning that they are of general application but also have a particular impact on specific groups, people or places.
The government confirmed in the Queen’s Speech in May 2021 that it intends to introduce a bill to authorise the Phase 2b (Western Leg) extension of HS2 between Crewe and Manchester. This will be the third in a succession of hybrid bills for the project. An understanding of the process, including the role of parliamentary agents and engaging and negotiating with the scheme promoter through the petitioning process, is important for those who will be affected.
New railways generally require much more than just planning permission – for example, specific statutory powers to operate; to compulsorily acquire land; and to interfere with watercourses, rights of way, utilities and equipment, etc. Traditionally, UK railways were authorised by way of private bills in parliament, much like the canal network before them. However, in the early 1990s, the UK parliament decided to delegate powers to ministers, acting on the advice of planning inspectors, to authorise railway development.
Powers were delegated under the Transport and Works Act 1992, and later the Planning Act 2008. However, these do not preclude the government from legislating in parliament to authorise a particular rail scheme, or other infrastructure scheme, if it wishes to.
Successive governments have used hybrid bills to ask parliament directly to authorise new railways that are of national significance including the Channel Tunnel Rail Link (HS1), Crossrail (the Elizabeth Line) and the two previous HS2 phases: Phase One from London to Birmingham and Phase 2a from Birmingham to Crewe.
The hybrid bill process offers flexibility in developing proposals. The government can change its mind on aspects of the detail and bring forward revised proposals as the bill proceeds through its stages in parliament
There are a number of reasons why this route may appeal to ministers as an alternative to the development consent process under the Planning Act. First, an act of parliament is immune from legal challenge: under the Bill of Rights, proceedings in parliament cannot be impeached or questioned in the courts. Judicial review of infrastructure schemes causes significant uncertainty and delay and so, if it can be avoided, that is definitely a very positive outcome for the scheme promoters.
Secondly, the hybrid bill process offers flexibility in developing proposals. The government can change its mind on aspects of the detail and bring forward revised proposals as the bill proceeds through its stages in parliament, a facility that is less readily available under other processes.
The hybrid bill procedure also allows for the question of whether or not the scheme is a good idea in principle to be established early in the process, with subsequent debate on this issue closed off. In technical terms, this is because the ‘principle of the Bill’ is settled at the outset of the process, on second reading when the bill first enters parliament. A government with a comfortable majority can overcome parliamentary opposition to drive through that second reading. Thereafter, while the detail of the bill can be considered in specific hearings before select committees, that detail can only be considered in the light of the fact that the principle has been endorsed, with no ability at that stage to complain that the scheme is just “not a good idea”.
Hybrid bills are bills before parliament like any other, proceeding through the same overall process, but with some additions. They are considered and debated in one House of Parliament (e.g. the House of Commons) at second reading; then considered by a select committee; then the report of the select committee is considered by the House before a further vote at third reading. The bill is then passed to the other House (in this case, the House of Lords) where the process is repeated. Subject to some reconciliation between the two Houses on any amendments made by the second House, the bill then receives Royal Assent and becomes an Act.
However, as hybrid bills authorise a specific infrastructure development, there are two main changes to the procedure to reflect the need for the decision-making to assess the impacts of the development on the environment through the environmental impact assessment (EIA) process, and that certain parties are more affected by the provisions of the bill than other elements of the public at large.
First, when the bill is introduced by the government, it is accompanied by a mass of documentation including an environmental statement and a book of reference setting out a list of parties with interests in land that may be affected. Notice of the bill is published in newspapers. A public consultation follows on the EIA, and an assessor is appointed to review and comment on the responses to the consultation.
The assessor’s report is intended to inform MPs when they come to consider the principle of the bill at second reading. The consultation process means that there is a considerable gap between a bill’s introduction and second reading – for example, it was five months in the case of HS2 Phase One.
Secondly, following second reading there is a ‘petitioning period’ – essentially, a period in which objections can be made to the provisions, although not the principle, of the bill. Relatively recent changes to parliamentary standing orders mean that a minimum period of 25 days must be allowed for this.
For a petition to be considered, the petitioner must have ‘standing’ – they must be “directly and specially affected” by the bill. Those who own or possess land interests or rights that the bill proposes to acquire or use automatically have standing, but other circumstances can also give rise to standing. For example, local authorities within whose area works are to be authorised under the bill will have standing, and it is likely that train or freight operating companies would also have standing where access to lines or depots may be affected. A petitioner without sufficient standing may be challenged by the promoter, with challenges heard at the beginning of the select committee process.
Parliament has consulted on further possible changes to hybrid bill procedure. This consultation is related to a second phase of reform of hybrid bill procedure intended to be implemented before the HS2 Phase 2b (Western Leg) Bill reaches parliament.
Petitions will be considered by a select committee, composed of a number of ‘disinterested’ MPs or peers – usually five or six. MPs must have no constituency interest in the subject matter of the bill.
A petitioner used to have a right to be heard by the select committee but this was removed in recent reforms. Although most petitioners will be heard, some may have to rely on their petition alone. This is intended to cover ‘pro forma’ petitioners who have argued exactly the same case – these petitioners can now be grouped and heard as one.
The earlier any difficulties or problems are raised with the promoter, the easier it is for both parties to arrange things so that the problems do not arise, or to come to an accommodation
The process before the select committee is informal, with an emphasis on short, sharp submissions. The select committee is not like a court of law, or even a planning inquiry. It is not a forum that is particularly focused on technical detail. Instead, a typical hybrid bill select committee will hear submissions and, if it feels there is merit to the case made, encourage the promoter and the petitioner to come to an acceptable accommodation and report back.
The select committee process to deal with all petitions can last many months. The Commons committee for the HS2 Phase One Bill was appointed in April 2014 and not discharged until February 2016.
While the first select committee process is underway, the government can bring forward alterations to the scheme, known as additional provisions. These can be very substantial – for example, additional tunnelling – and form in effect their own ‘mini bill’ until they are added to the main bill. As with the main bill, they must be accompanied by an environmental statement and will be subject to public consultation.
Additional provisions are only possible in the first House, not the second. This means that a petitioner who wants changes to be made to the bill which would require an additional provision – for example, an alternative route – would need to petition in the first House so that there is a chance that the changes can be accommodated.
In many respects, petitioning is the backdrop against which the process of engagement and negotiation with the promoter – HS2 and the Department for Transport – plays out.
Engagement must happen early in order to be successful, well ahead of the bill process and petitioning periods. Parties who are affected will get their first real indication of the potential effects of the bill on them when they are contacted for land referencing purposes by the promoter or its agents; or when the safeguarding direction or the environmental statement and other supporting information is published. Affected parties should consider this carefully, with assistance from their professional advisers, and then seek to engage with the promoter.
The earlier any difficulties or problems are raised with the promoter, the easier it is for both parties to arrange things so that the problems do not arise, or to come to an accommodation. As the scheme gathers pace before publication of the bill, the more fixed it becomes and the harder it is to tweak the scheme. Petitioners should focus on protecting their interests by way of a legally binding agreement with the promoter, or an undertaking given by deed – prospective and actual petitioners should be wary of accepting mere ‘assurances’ from the promoter as they are unlikely to give a suitably enforceable or robust commitment in most circumstances.
Instructing suitable professional advisers will be crucial to success – particularly legal advisers who can negotiate and document agreements with the promoters, as well as draft petitions and advise on strategy and process as the hybrid bill proceeds through parliament. There is a small number of law firms with parliamentary agency expertise who can best provide that specialist advice.
The HS2 Phase One Bill was introduced into parliament in November 2013 and was given Royal Assent in February 2017 – a total of three years and three months. The HS2 Phase 2a Bill, from the West Midlands to Crewe, took three years and seven months, a longer period due to the significant Covid-19 pandemic disruption. Given the scale of the Phase 2b Western Leg Bill, we can expect the process to take between two and three years.
Better cooperation still needed to get full value out of pensions implementation statements