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HOUSE OF COMMONS SESSION 2013-14 HIGH SPEED RAIL (LONDON-WEST MIDLANDS) BILL Notice of Objection to the locus standi of HS2 ACTION ALLIANCE LIMITED SUBMISSIONS ON BEHALF OF HS2 ACTION ALLIANCE AND ASSOCIATED DOCUMENTS NABAR R HOUSE OF COMMONS SESSION 2013-14 HIGH SPEED RAIL (LONDON-WEST MIDLANDS) BILL Notice of Objection to the locus standi of HS2 ACTION ALLIANCE LIMITED SUBMISSIONS ON BEHALF OF HS2 ACTION ALLIANCE AND ASSOCIATED DOCUMENTS Tab Document 1 Skeleton submissions of Richard Harwood OBE QC 2 Report from the Select Committee on Hybrid Bills 1948 (paragraphs 1-34) 3 HC Deb 14 February 1949 - volume 461 cc791-838 4 HS2 Judicial Review transcript extracts from Day 9 (13 December 2012) 5 Selected Articles from the Codified EIA Directive 2011/92/Eu (Articles 1, 2, 6, 8 and 9) 6 Witness Statement of Hilary Wharf with enclosures IN PARLIAMENT HOUSE OF COMMONS SESSION 2014 - 2015 HIGH SPEED RAIL (LONDON - WEST MIDLANDS) BILL SKELETON SUBMISSIONS ON BEHALF OF HS2 ACTION ALLIANCE ON STANDING 1. This skeleton outlines HS2 Action Alliance's submissions to the Select Committee on 9th July 2014 in response to the Secretary of State's Notice of Objection. 2. The Notice of Objection raises two points: (a) HS2 Action Alliance do not have and should not be given locus standi (para 1-7, 10); (b) The matters in the petition are principally ones which 'affect the public at large' and the Select Committee cannot consider matters which may be considered by a Standing Committee (para 8) and that 'certain' (but unidentified) objections go to the principle of the Bill (para 9). Standing (locus stanch) 3. There are two types of standing: standing as of right where the petitioner's property or interests are directly and specially affected' or where the Standing Orders give an entitlement2 to be heard; and standing granted by the committee. 3 In the latter cases, standing has been given without a hearing, in the absence of a challenge. 4. The Select Committee is asked to admit HS2 Action Alliance to be heard as an association representing interests in the districts to which the Bill relates (SO 95(1)) and representing the inhabitants of areas alleged in the petition to be injuriously affected by the Bill (50 96(2)). In the Standing Orders as in legislation generally, 4 singular includes plural, so an organisation representing inhabitants or interests across a long line is within these provisions. 5. The facts of this representation are set out in the petition (paragraphs 60 to 61) and elaborated upon in Hilary Wharfs witness statement. In addition letters from action ' Erskine May page 95 8. 2 Standing Orders 93, 97, 102. Under Standing Orders 92, 95, 96, 99, 100, 101. Interpretation Act 1978. 1 groups and residents directly affected by the scheme explain that HS2 Action Alliance represent them, see the appendices to Ms Wharf's statement. Some of those residents and groups have petitioned themselves and their standing is not challenged. It follows that HS2 Action Alliance represent persons who do have standing. The Secretary of State (through Mr Mould QC) explicitly accepted in the High Court that HS2 Action Alliance represents the interests of village residents associations and individuals affected by generalised blight. 5 6. HS2 Action Alliance's contribution to the scrutiny of HS2 has been accepted and welcomed by Parliamentary Committees, the Courts, the Secretary of State and H52 Limited.6 This Select Committee invited HS2 Action Alliance to attend and speak at the programming hearing and we did so. 7. The special role of H52 Action Alliance in contributing to the Committee's processes is recognised by: (i) The letter from Rt Hon John Bercow MP, Rt Hon Cheryl Gillan MP and Rt Hon David Liddington MP and from the 51 M group of local authorities (both dated 30th June 2014) explaining their helpful and representative role and supporting their standing; (ii) The local residents and groups who explain that they have not petitioned on particular matters because they were being taken by the 11S2 Action Alliance in its petition. They were sensibly leaving matters to the route-wide scope and the pooled expertise of HS2 Action Alliance 8. The Secretary of State did not object to HS2 Action Alliance's presence and role at the programming hearing. If he considered that we should not be heard by the Committee then he should have taken the point prior to or at that hearing. 9. The hybrid Bill process needs to achieve the objectives of the Environmental Impact Assessment Directive for the exception to the Directive's requirements to apply. 7 A failure to be within that exception would mean that a planning permission or development consent order would be needed (going through fresh processes) to See Mr Mould's submissions in the High Court. 6 See petition para 64. ETA Directive, Article 1(4). 2 authorise the works and the compulsory purchase powers could not be exercised before that further authorisation was in place. 10. Giving effect to the requirements of the Aarhus Convention, the ETA Directive gives a special status to the 'public concerned' who are 'the public affected or likely to be affected by, or having an interest in, the environmental decision-making procedures referred to in Article 2(2).8 For the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest.' 9 The status of environmental NGOs, such as HS2 Action Alliance, is the same as the public affected by the proposal - that is, those entitled to locus standi. It is the public concerned who are entitled to 'early and effective opportunities to participate in the environmental decision- making procedures' and consultation 10 and their views require particular consideration." Whilst the principle of the Bill is considered by the House at Second Reading, detailed environmental impacts and the measures to address them are considered by the Select Committee. The roles of the Public Bill Committee and Report stages are inevitably more general. The Select Committee can only deal with points raised by petitioners - it does not have a roving brief - and so the public concerned must have standing to petition on environmental matters. 11. In achieving the objectives of the ETA Directive the Secretary of State for Transport has relied in Court on the Select Committee process and in particular national non- governmental organisations such as Save Britain's Heritage and the Ramblers Association participating at the Crossrail Bill Select Committee stage. 12 8 Derived from Article 2(5) of the Aarhus Convention. Article 1(2)(c). 10 Article 6(4), (5), for example by written submissions or by way of a public inquiry. Article 9(1). 12 R(Buckinghamshire County Council) v Secretary of State for Transport [2013] EWHC 481 (Admin) per Ouseley J summarising the Minister's submissions '256 The Select Committee would be an important part of the overall process in the eyes of the SST; "authorities concerned by the project by reason of their specific environmental responsibilities", who had to have an opportunity to express their views on the environmental information and the request for development consent, (Article 6), would have locus standi at the Select Committee. The range of persons with locus under Standing Order 96 was extensive since it covered those whose property interests were specifically and directly affected, trade bodies representative of those affected in an area, bodies representing amenity, educational, travel or recreational interests which were materially adversely affected, local authorities of any area affected injuriously, the inhabitants of such an area, commons Conservators and the like. 257 It was up to the promoter to take a locus objection; none had been taken on the Crossrail Bill. NGOs such as Save Britain's Heritage and the Ramblers Association had participated at the Committee stage. Published rules governing participation at an oral stage before the decision-maker were not incompatible with the objectives of the Directive.' 3 12. The Select Committee are therefore asked to recognise or grant H52 Action Alliance's standing to petition on the Bill. The scope of the Select Committee's consideration of the Bill 13. There are two limits on the matters which may be raised by petitioners: (i) They may not argue on matters which do not give them locus standi including matters affecting the general public; 13 (ii) The Committee should stay within the instructions given by the House, including any instruction as to the principle of the Bill. 14. The concept of the principle of the Bill requires elaboration. The Committee on Hybrid Bills (Procedure in Committee) Report in 1948, subsequently adopted by the House, decided that 'provided that his arguments do not exceed his locus standi, a petitioner may traverse the principle of the Bill'. 14 In reality the point on principle is three-fold: (I) The expediency of the Bill does not have to be proved by the promoter; (ii) a petitioner may not challenge the public policy decision of the House at Second Reading'5 but may argue about the expediency of the Bill insofar as it affects it interests including contending that this hardship outweighs the public benefits; 16 (iii) The Committee cannot consider matters that it is instructed not to - such as the principle set out by the House's resolution. Although it can ask the House to instruct it to consider matters it could not otherwise do. 17 15. In practice therefore, the House's instructions limit the scope of the consideration. 16. The application of these conceptual issues is however straightforward for this Bill.