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HS2 fiasco: What does it mean for Parliament?

15 Oct 2023
Early visualisation of HS2 trains and station. ©HS2 Limited (CC BY-NC-ND 2.0 DEED)
Early visualisation of HS2 trains and station. ©HS2 Limited (CC BY-NC-ND 2.0 DEED)

The Prime Minister’s decision to cancel the next stage of HS2 has given rise to criticism that once again the Government has ridden roughshod over Parliament. Just over 1,300 hours of legislative time have been spent on four HS2-related Bills over nine Sessions in the last decade. Why has it taken so long and what now happens to that legislation?

Matthew England, Researcher, Hansard Society
Dr Ruth Fox, Director , Hansard Society
,
Researcher, Hansard Society

Matthew England

Matthew England
Researcher, Hansard Society

Matt joined the Hansard Society in 2023 to focus on the Society’s ongoing research into delegated powers and the system of scrutiny for delegated legislation. He also maintains the Society’s legislative monitoring service, the Statutory Instrument Tracker®. He graduated with a BA in Philosophy, Politics, and Economics from the University of Oxford in 2020 and an MSc in Political Theory from the London School of Economics and Political Science in 2021. Before joining the Hansard Society, Matt worked as a researcher for a Member of Parliament focusing primarily on legislative research.

,
Director , Hansard Society

Dr Ruth Fox

Dr Ruth Fox
Director , Hansard Society

Ruth is responsible for the strategic direction and performance of the Society and leads its research programme. She has appeared before more than a dozen parliamentary select committees and inquiries, and regularly contributes to a wide range of current affairs programmes on radio and television, commentating on parliamentary process and political reform.

In 2012 she served as adviser to the independent Commission on Political and Democratic Reform in Gibraltar, and in 2013 as an independent member of the Northern Ireland Assembly’s Committee Review Group. Prior to joining the Society in 2008, she was head of research and communications for a Labour MP and Minister and ran his general election campaigns in 2001 and 2005 in a key marginal constituency.

In 2004 she worked for Senator John Kerry’s presidential campaign in the battleground state of Florida. In 1999-2001 she worked as a Client Manager and historical adviser at the Public Record Office (now the National Archives), after being awarded a PhD in political history (on the electoral strategy and philosophy of the Liberal Party 1970-1983) from the University of Leeds, where she also taught Modern European History and Contemporary International Politics.

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As Parliament reconvenes on 16 October following the party conference recess, MPs will have their first opportunity to question the Government about the Prime Minister’s decision to scrap the next stage of the HS2 rail line.

Since the Government announced in 2012 that HS2 would go ahead, four Bills have been laid before Parliament across nine parliamentary Sessions, of which three have received Royal Assent and one is still in the scrutiny process.

Our initial research suggests that at least 1,302 hours of parliamentary time have been spent considering this legislation since the first HS2 Bill was introduced in 2013.

Yet, despite the critical role Parliament has played in the HS2 process to date, the Prime Minister announced his decision at the Conservative Party Conference rather than to MPs – further evidence of the Government’s disregard for the legislature. As well as requiring hundreds of hours of parliamentary time, the HS2 legislative process has involved dozens of MPs and the testimony of hundreds of petitioners, HS2 staff and lawyers. In contrast, the decision to abandon it appears effectively to have been the decision of the Prime Minister in consultation with a small number of Ministers and advisers, and no formal parliamentary proceeding is required.

Construction of HS2 was divided into phases, and the legislation to enable the line has mirrored these plans.

The High Speed Rail (Preparation) Bill was passed in November 2013. This was a short, three-clause Bill to authorise funding for the work necessary to prepare phases 1 and 2 of the project.

The High Speed Rail (London-West Midlands) Bill sought parliamentary authority to proceed with the first phase of the line. It received Royal Assent in February 2017, 39 months after it was first presented to Parliament. This part of the line is being built, so the legislation is likely to remain untouched.

The High Speed Rail (West Midlands-Crewe) Bill sought parliamentary approval for the second leg of the line (phase 2A) to run north of Birmingham. It received Royal Assent in February 2021, 43 months after it was first laid before Parliament.

The Prime Minister’s announcement means that this leg of the line will not now be built. Although Parliament granted authority to HS2 Ltd to build the line, and the powers necessary to do so along a particular route, the Government is not bound to proceed. The legislation is permissive not mandatory: HS2 Ltd is owned by the Department of Transport, so the Department decides whether to use the powers granted by Parliament, and the Treasury holds the purse-strings for the work and can decline to fund it.

However, Ministers have not said what will happen to the Act: will the powers be left lying on the statute book unused, or will they be repealed? Repealing the Act would require a further Act, and therefore also debates and votes which might prove embarrassing to Ministers and reveal divisions in the Conservative parliamentary party. On the other hand, leaving the powers in place would create a degree of uncertainty, particularly for those living along the route, and also add to statute book clutter.

The High Speed Rail (Crewe-Manchester) Bill (for phase 2B of the line) was presented to Parliament in January 2022. Its Second Reading was held in June 2022, shortly after the start of the current Session, after which the Government successfully moved a motion to carry the Bill over to the next Session (2023-24) while the Select Committee on the Bill completes its work. The Government may clarify in the King’s Speech on 7 November what it intends to do with the Bill if no further proceedings are to be taken.

As Bills which concern a matter of national importance but which have implications for private individuals as well as public interests, all three of the main HS2 Bills have taken the form of Hybrid Bills. (The High Speed Rail (Preparation) Bill was a regular Public Bill.)

A major infrastructure project like HS2 affects people’s homes and land. The Hybrid Bill procedure is therefore designed to provide democratic authorisation of the project whilst ensuring that any interference in a person’s enjoyment of their possessions is both lawful and fair.

To this end there are three key differences in the scrutiny process for Hybrid Bills compared to Public Bills. These differences make for a much more laborious legislative process and therefore significantly extend the time required to pass the legislation.

Firstly, the Bill must be checked for compliance with the Standing Orders of each House for Private Business. Following First Reading, a Hybrid Bill is referred to the Examiner of Petitions for Private Bills. The promoter of the Bill – HS2 Limited on behalf of the Government, in this case – must prove to the Examiner that all the necessary steps have been taken ‘to publicise the proposed scheme and notify owners, lessees and occupiers, alerting them to the Scheme’. If the Examiner finds that one or more of the Standing Orders for Private Business has not been complied with, the matter is referred to the Standing Orders Committee in each House to decide whether the Standing Orders concerned should be dispensed with. This can lead to delays in the scheduling of Second Reading.

Secondly, the Bill is sent to a Hybrid Bill Select Committee for consideration. Once a Bill is approved at Second Reading, in effect the principle of authorising the development is agreed. The rest of the legislative process then largely focuses on determining compensatory measures for those affected by the project. In the Select Committee, a small body of MPs whose constituencies must have no ‘material interest’ in the project sit in a quasi-judicial capacity. They do not look at principle or policy; their focus is restricted to addressing mitigation, compensation, and adjustment.

Thirdly, those affected by the project are able to lodge a petition to be granted a hearing at the Select Committee. (There is a special process for this, separate to Parliament’s e-petitions system.) To be heard, petitioners must be deemed to have ‘standing’ in the case: they must be ‘specially’ and ‘directly affected’ to be eligible.

Once the Select Committee process is complete, the Bill proceeds to the normal Public Bill process of consideration by a Public Bill Committee, followed by Report Stage and Third Reading.

For each of the four HS2 Bills, the table below sets out how much time we estimate has been spent on the normal Bill stage proceedings (Second Reading, Public Bill Committee, Report, Third Reading and Consideration of Lords and Commons Amendments (ping-pong)) plus, for the three Hybrid Bills, on the Examination, Standing Order Committee and Select Committee stages, in the two Houses. (For more detail see our methodology note.)

Table 1: Parliamentary time spent scrutinising HS2 Bills  • The time spent (in hours and minutes) by MPs and Peers scrutinising each of the four HS2 Bills to date, by category of proceeding

HS2 (Preparation) Bill [hours: minutes]HS2 (London-West Midlands) Bill [hours: minutes]HS2 (West Midlands–Crewe) Bill [hours: minutes]HS2 (Crewe–Manchester) Bill [hours: minutes to date]TOTAL [hours: minutes to date]
Examination and Standing Orders Committees in both HousesN/A 24:2104:0407:5936:24
Chamber stages & Public Bill Committees in both Houses 31:2943:1233:0204:56112:39
Commons Select Committee [public hearings]N/A673:25116:1961:52851:36
Lords Select Committee [public hearings]N/A258:3642:41N/A 301:17
TOTAL 31:29999:34196:0674:471301:56

Significantly more time was spent on the Bill for the first phase of HS2 than for the others, as this was the longest element of the proposed line. This section of HS2 is being built, albeit with adjustments, so the investment of parliamentary time has not been wasted. However, the debate on that Bill took place in a context in which MPs assumed that this first leg of the line would be the foundation for a much bigger project.

Much of the nearly 271 hours of parliamentary time spent on the two Bills for the Phase 2A and 2B legs of the HS2 line north of Birmingham may have been squandered, given the Prime Minister’s decision to abandon development of the railway beyond the Midlands.

However, this data covers only those parliamentary proceedings related to the HS2 Bills. It does not take account of the additional hours of time spent debating the HS2 project in adjournment debates, Backbench Business Committee debates, in tabling and responding to oral and written questions and ministerial statements. Nor does in include the significant amount of time spent investigating the HS2 project by departmental Select Committees such as the Public Accounts Committee and the Transport Select Committee in the House of Commons.

The Government chose to use a Hybrid Bill as its legislative vehicle of choice.

Prior to HS2 there had been only 12 Hybrid Bills since 1979, including those for the Channel Tunnel and Crossrail, and there had never been a series of Hybrid Bills for one project. Following the significant turnover of MPs at the 2010 General Election, most Members during the HS2 process had never seen a Hybrid Bill before.

Authorisation of some previous infrastructure projects has been sought using powers in the Transport and Works Act 1992 and the Planning Act 2008. Provisions in these statutes were designed to circumvent the Hybrid Bill procedure or normal planning laws.

It is impossible to say whether the HS2 project might have been better served if one of these two alternative legislative routes to authorisation had been taken. MPs have the opportunity for just a single vote on the principle of a proposed development under the 1992 Act. A Select Committee inquiry can be held on National Planning Statements under the 2008 Act but this could lead, as happened over the proposed third runway at Heathrow Airport, with the House of Commons embracing a different policy position to that of the Government. On the critical question of the time the HS2 project has taken, by way of comparison it took 10 years for the Sizewell C nuclear power station to be granted a Development Consent Order under the Planning Act 2008, following completion of the initial statement of community consultation in 2012. Yet it is arguably a less complex project than HS2, not least because it does not involve a significant volume of compulsory purchase orders.

Why did the Government choose Acts of Parliament for HS2? The choice ensured that the project was immune from challenge in the courts; that any provision could be included if it was consistent with EU law (prior to the UK’s departure from the EU); and that the process would provide flexibility so that changes could be made if required. A briefing note produced by HS2's former Head of Hybrid Bill Preparation for the HS2 Learning Legacy Project highlights early on the perceived value to the project of this flexibility, allowing for amendments to be made as the project progressed.

The HS2 Bills have been bigger in scope and substance than any previous infrastructure Bill. The scale and complexity of the project resulted in an extraordinary level of technical documentation. The Bill covering the first phase of the HS2 route from London to the West Midlands alone was 440 pages long. It was accompanied by 11 volumes of drawings setting out hundreds of plans and sections, and a 2,800-page book of reference, running to a seven volumes, which set out a description of every parcel of land identified on the plans plus information about their owners. The Bill was also accompanied by an Environmental Statement which was reportedly the largest of its kind ever produced, at approximately 46,000 pages and weighing nearly a tonne. House of Commons Standing Orders had to be amended to permit electronic deposit of the document. When amendments were made to the Bill to extend the powers which affect private interests (known as Additional Provisions) such as the acquisition or use of land outside the geographical area specified in the legislation, then additional supporting documentation (plans and sections, a book of reference, an Estimate of Expense identifying the costs involved) was also required.

An additional feature of the HS2 legislation was the consultation process on the environmental impact assessment (to ensure compliance with EU requirements). A minimum 56-day consultation period was required, after which an independent assessor considered the responses and reported to Parliament. The Second Reading of the Bills could not start until at least 14 days after completion of this process.

As a quasi-judicial process, MPs on the Select Committee cannot just read the papers submitted: each and every relevant issue must be heard on the record and discussed. MPs on the Select Committee have significant power over the extent and form of compensation offered, which may take a non-monetary form.

For a major infrastructure project like HS2, stretching hundreds of miles, it is no surprise that thousands of petitions against the Bills were received (albeit the majority of petitions were received in relation to the Bill for the first leg of the line to Birmingham). The result is that the Select Committee in each House has had to hold many public hearings (see Table 2) as well as site visits.

Table 2: Select Committee public hearings for the HS2 Bills  • The number of public hearings held by the Select Committee in the House of Commons and the Select Committee in the House of Lords for the HS2 Bills [the Select Committee stage of the HS2 (Crewe-Manchester) Bill is not yet completed]

HS2 (London-West Midlands) BillHS2 (West Midlands – Crewe) Bill HS2 (Crewe – Manchester) BillTOTAL
Commons Select Committee 2466730 [to date]343
Lords Select Committee6519N/A 84
TOTAL 3118630427

The volume of petitions is reflected in the enormous amount of time spent by the Select Committees hearing the petitioners, as well as any other oral evidence (see Table 1 above).

Has the laborious nature of the Hybrid Bill process contributed to the long-drawn out nature of the HS2 project? Did the flexibility of the legislative process – so desirable at the start of the project - ultimately prove part of the problem?

Parliament has historically been regarded as the most appropriate place to provide democratic authorisation for major infrastructure projects, given the need to strike a balance between national and private interests which may straddle multiple local government boundaries and where the costs and benefits may occur unevenly. But is a Hybrid Bill Select Committee comprising less than a dozen MPs – all of whom must have no material interest in the project - the best model for determining mitigation measures, particularly when the process straddles a General Election, leading to significant churn in the Committee membership? Do MPs have the experience and skills necessary to digest and understand the thousands of pages of technical documentation underpinning the project? Is it the best use of MPs’ time? Does the Select Committee’s consideration of mitigation measures dovetail sufficiently with the constraints of the project budget?

At this stage it is too early to be anything other than speculative. But in whatever inquiries follow about the future of HS2 and about how the project came to be mired in such difficulties, some consideration needs to be given to the role of the legislative process and to the reforms that may be necessary to ensure that the HS2 debacle is not repeated.

As Hybrid Bills have a number of different stages compared to Public Bills and stretch over multiple Sessions, the normally useful Bill pages on Parliament’s website are less so for HS2 legislation, particularly for the earliest Bills. Some of the information is not easily accessible, not least as it is contained in PDF documents, and transcripts of meetings are difficult to find. We have therefore in some instances had to compile, analyse and make our own calculation of the amount of parliamentary time spent at different stages of each Bill.

Time spent debating the legislation in the Chamber (Second Reading, Report, Third Reading and any motions relating to the Bill) and Public Bill Committees has been sourced from the relevant entries in Hansard.

Time spent by the Select Committee considering petitions against the Bill in each House has been calculated from Parliamentlive.tv. The data only includes public hearings of the Committee; any time spent in separate private session is not included. Moreover, public hearings sometimes are suspended (for instance, during a division of the House), or switch to private (for instance, to allow for private deliberation). The volume of hearings has made it impractical to locate, calculate and remove the time arising from all such interruptions from the data. However, where such adjournments and suspensions have been found, the time has been calculated to reflect this.

Data on the number of Select Committee hearings in each House has been extracted from the events pages on the relevant committee webpages, cross-referenced with the entries extracted from Parliamentlive.tv.

We are grateful to former parliamentary clerk Paul Evans CBE for his comments and advice on this blog. However, any errors are ours alone.

England, M. and Fox, R. (15 October 2023), HS2 fiasco: What does it mean for Parliament? (Hansard Society blog)

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