Disapplication of statutory closure provisions

High Speed Rail (London-West Midlands) Bill – in a Public Bill Committee at 11:30 am on 3rd March 2016.

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Photo of Andy McDonald Andy McDonald Shadow Minister (Transport) 11:30 am, 3rd March 2016

I beg to move amendment 17, in clause 40, page 15, line 7, after

“discontinuance which the Secretary of State,” insert “reasonably”

This amendment would require the Secretary of State to reach a ‘reasonable’ decision on closures, which could be challenged under this act if not reached reasonably.

With this it will be convenient to discuss the following:

Amendment 18, in clause 40, page 15, line 8, leave out from “expedient” to “High Speed 2” and insert

“in relation to the Northolt and Acton Line (also known as the Wycombe Single Line).”

This amendment would limit the Secretary of State’s powers to close any line or station and restrict it to the Northolt and Acton Line (also known as the “Wycombe Single Line”).

Amendment 20, in clause 40, page 15, line 10, at end insert—

“(1A) If the Secretary of State makes a direction under subsection (1), he must make a written statement to Parliament within 28 days, setting out his reasons for making such a direction.”

If the Secretary of State makes a direction under subsection (1), this amendment requires the Secretary of State to make a written statement to Parliament within 28 days, setting out the rationale for his decision.

Amendment 19, in clause 40, page 15, line 15, leave out

“sections 29 to 31 (discontinuance of use or operation of stations),”

This amendment would remove the station closure powers in this Clause.

Photo of Andy McDonald Andy McDonald Shadow Minister (Transport)

As drawn, the clause gives the Secretary of State power to disapply the closure provisions of the Railways Act 2005 and enables the Secretary of State to close existing services, stations or parts of the rail network that are necessary or expedient because of the construction or operation of phase 1 of HS2. Amendment 17 would require the Secretary of State to reach a reasonable decision on closures that could be challenged under the High Speed Rail (London - West Midlands) Act if not reached reasonably.

Clause 40 states:

The Secretary of State may at any time before Phase One of High Speed 2 is ready for commercial use direct that the statutory closure provisions…are not to apply to any discontinuance which the Secretary of State considers necessary or expedient because of…the carrying out…of works”.

Although we understand and accept that it is necessary for the Secretary of State to disapply statutory closure provisions, we are concerned that the powers granted by the Bill as it stands would be too far-reaching and are unnecessary. We are attempting to place some proper and reasonable parameters around the powers that we agree the Secretary of State should have.

When the Minister responded to our concerns in previous clauses about excessive powers granted to the Secretary of State, he explained that the Government have taken a belt-and-braces approach. There seems to be a proliferation of belts and braces. Perhaps it is time to think about getting a better-fitting pair of trousers rather than to keep adding different pieces of apparatus to keep them up.

The HS2 project shares cross-party support. Labour supports the Government’s efforts to pass the legislation necessary for us to start constructing this important and transformative piece of national infrastructure. We do not disagree that, in some instances, it is better to be safe than sorry. However, it is our job as legislators to ensure that unnecessary powers are not granted under the guise of erring on the side of caution, which is the case with clause 40. The disapplication of statutory closure provisions means the closure of existing services, stations or parts of the rail network right up until the Secretary of State has informed Parliament that phase 1 is ready for general use. The clause exceeds the belt-and-braces approach so we have tabled a series of amendments that would particularise the limit of the powers granted to the Secretary of State and increase accountability and transparency.

Amendment 17 would introduce the familiar concept of the Secretary of State having to reach a reasonable decision on closures that could be challenged under the Act if not reached reasonably. It demands a short examination of what constitutes reasonableness, to which lawyers have given a great deal of attention over the years. I will submit that it is not a daunting concept, nor one that should in any way trouble the Minister. Our legal system has defined reasonableness, quite sensibly, as,

“Whether a belief is reasonable is to be determined having regard to all the circumstances”.

In making that assessment, the judgment of a reasonable person has to be applied.

We are in Clapham omnibus territory. To reject the notion of reasonableness would be to imply that the way was clear for the Secretary of State to behave unreasonably. We would not wish to see our Government Ministers behaving unreasonably—perish the thought. Let us consider “the man on the Clapham omnibus”, or London bus route 88, to be more precise. Given the progress we have made since 1871, when that phrase is thought first to have been coined, we should be describing this hypothetical individual as “the person on the Clapham omnibus”—or better still, “the reasonable person travelling on HS2 from London to Birmingham”. In any event, the judgment of the reasonable individual was originally described as being the judgment of

“a reasonably educated and intelligent but nondescript person”,

against which a decision could be measured.

Reasonableness is an important measure for introducing some transparent objectivity into the decision-making process. When significant and wide-ranging statutory powers are created, it is important to ensure that there are proper checks and balances. It is an important principle in our legal system, and was considered again quite recently in paragraphs 1 to 4 of the UK Supreme Court judgment on the case of Healthcare at Home Ltd v. Common Services Agency [2014] UKSC 49.

The concept of reasonableness as a prerequisite for decision making is well embedded in many legal jurisdictions, notably in Canada. It is also described, with some local adaptations, in Australia, where in New South Wales the Clapham omnibus traveller has been replaced by “the man on the Bondi tram”, a now disused route in Sydney. One can only hope that the Bondi man’s judgment was applied in deciding whether it was reasonable or otherwise to close the Bondi tram route. In Melbourne, Victoria state, it is the person on the Bourke Street tram whose judgment is applied. We can only hope that that tram service is still running. In Hong Kong, the equivalent expression is “the man on the Shaukiwan tram”, although I think I might be running out of track now.

By introducing the word “reasonably”, we merely wish to ensure that, on any objective assessment, the decision to close a service, line or station can be readily identified as having been reached properly and reasonably on the basis of all the information that the Secretary of State has in his or her possession at the time. The amendment to insert the concept of reasonableness is the model of reasonableness itself, and I trust that it can command the support of the Committee.

Amendment 18 relates to a specific issue concerning a particular line. It would limit the Secretary of State’s blanket power to close any line or station by restricting the power to the Northolt and Acton line, which is also known as the Wycombe single line. The way the amendment would work speaks for itself. HS2 Ltd’s information paper B6 states:

“The only line that would close is the eastern end of the Northolt and Acton Line…between Old Oak Common and Park Royal.”

As there are no plans to close other lines, the onus is on the Minister to justify the Secretary of State receiving that broadest-ranging blanket power, if he does not support the amendment to limit the power to the specific plan to close the Wycombe single line. In short, that is the one we know about—the only closure being contemplated —so why not say so and limit the power?

Amendment 20 speaks for itself. It would introduce an important element of accountability and transparency to the powers. If the Secretary of State chooses to close services, stations, or parts of the rail network, significant amounts of disruption will be caused to the rail network and to consumers’ plans. Considering that the only such anticipated closure is, as we discussed earlier, the Wycombe single line, it is important that there is a degree of oversight and accountability of the Secretary of State by Parliament. If the Secretary of State wishes to be bestowed with these far-reaching blanket powers to disapply statutory closure provisions, it can only be right that he makes a written statement to Parliament within 28 days, setting out the rationale, as the amendment requires.

Amendment 19 would remove the statutory powers in their entirety. We have set that out separately, because HS2 Ltd’s information paper B6 says that no station closures are planned. There are no intermediate stations on the Wycombe single line, so this amendment removes the station closure powers in the clause altogether. Again, the onus is on the Minister to justify the blanket powers to close stations, as part of the construction and operation of phase 1, where no such closures are expected. As I interpret matters, as there are no such planned closures, it seems illogical to have the power to close stations. It would be a dangerous power for a Secretary of State simply to decide to close a station for reasons we know not—nor would we know where his axe may fall if he retrieves it from the Beeching store.

Many people would view such a power with great trepidation. There is nothing in the Bill or in any document describing or discussing the undertaking as a whole that I am aware of which would render it necessary for the Secretary of State simply to use the powers that the Bill currently presents, or perhaps for some unknown future Secretary of State to abuse such powers to achieve the closure of a station or stations for purposes totally outwith the contemplation of the promoters of the Bill or the nature and intent of the overall scheme.

This is a bad power and it should not remain in the Bill. If the Minister thinks it is necessary, we would like him to inform the Committee whether HS2 Ltd’s information paper B6 stating that no such station closures are planned still obtains. If not, can he state clearly which stations are within his contemplation of such closure or within the contemplation of the Ministry or promoter as being earmarked, considered or contemplated for closure? The users of any such stations and the residents in the areas of the stations will certainly wish to know whether their station is under threat. Undoubtedly, they would wish to express a view as to whether they were content with any such proposal, or whether they objected and would otherwise wish to make representations.

The excellent Select Committee went through a most rigorous and robust process to listen to objections and petitions about the disruptions and land loss that the scheme necessarily causes. It would be totally unacceptable for others who may be affected by subsequent plans or announcements to close any such stations to be denied the same degree of scrutiny and the ability to challenge. There is nothing in clause 40 to describe any form of scrutiny of the Secretary of State’s decisions exercised under the clause, nor is there any statutory right of challenge. Given this Government’s attack on citizens’ ability to challenge the lawfulness of Government decisions through the judicial review procedure, there can be little or no confidence that any person will be able to challenge or contest a decision so made.

We considered extending our amendment to cover the other elements of subsection (2), as much the same considerations apply to the implied potential closure of passenger railway services in sections 22 to 25 of the Railways Act 2005 and to the discontinuance of the operation of passenger networks under sections 26 to 28 of the Act. That said, our amendment is restricted to the discontinuance of the use of or operations of stations, and I trust that the Minister is prepared to accept it.

Photo of Robert Goodwill Robert Goodwill Parliamentary Under-Secretary (Department for Transport) 11:45 am, 3rd March 2016

I am pleased that the hon. Gentleman mentioned the Clapham omnibus. I had the great pleasure last week of visiting the Wrightbus factory in Northern Ireland, which builds the Boris buses that ply their trade so successfully around this city, although I must add that other double-decker manufacturers are available, including, dare I say, one based in my constituency.

May I allay some of the hon. Gentleman’s fears about the reasonableness of what we intend and the proportionality of what we are doing? It is reasonable for him to raise these issues, but I hope that I can allay his fears. Clause 40, to which the amendments apply, deals with the disapplication of statutory closure provisions and provides that the Secretary of State may, before phase 1 of HS2 is ready for commercial use, disapply the closure provisions of the Railways Act 2005 in the case of closures that are necessary or expedient due to the construction or operation of phase 1 of HS2.

London TravelWatch, the passenger representative body for the capital, asked for an explanation of the power and its expected use. We have already responded, stating that there are no station closures planned as part of the construction and operation of phase 1of HS2, and that the only line that would close is the eastern end of the Northolt and Acton line, known as the Wycombe Single, between Old Oak Common and Park Royal, which currently carries one weekday passenger service from London to West Ruislip.

The disapplied closure provisions set out what must be done in terms of notice, consultation and provision of information in the event of a proposal to close existing services, stations or parts of the rail network. There are services that may run with a reduced frequency as they are replaced by alternative services in phase 1 of HS2. The power in the clause does not apply to such services, as the Secretary of State may not exercise the power after he has notified Parliament that phase 1 of HS2 is ready for commercial use. Once it is commercially open, the Railways Act 2005 procedures come back into force.

The clause ensures that phase 1 of HS2 can be built efficiently, as the decision to construct phase 1 of HS2 will have been approved by Parliament. We believe it is reasonable to disapply the closure procedures during construction. The proposed closure of the “Wycombe single” and its impact were set out in the environmental statement, on which the public were consulted. The issue of the Wycombe single was also raised in petitions, meaning that Parliament had full opportunity to consider it. All of that means that going through the full closure procedures would be an unnecessary duplication. Phase 1 of HS2, of course, is about adding capacity to the rail network, not reducing it. The power can be used only for closures that are necessary for the construction and operation of phase 1 of HS2, and currently we have identified only one that is necessary.

Turning specifically to the amendment, as I said, clause 40 is essential if phase 1 of HS2 is to be delivered efficiently and effectively. However, I understand the importance of getting the clause right to ensure balance. As I mentioned, London TravelWatch asked for an explanation of the power, and I responded separately. It is important to remember that clause 40 as proposed would apply only during construction. When the line is operational, it will not apply.

As I said previously, we have sought not to legislate unless necessary. I do not believe that it is necessary to insert the word “reasonable” into the clause, as in amendment 17; it is inherent. Inserting “reasonable” in that context would cast doubt on other provisions of the Bill. Similarly, I do not feel it necessary to remove the word “expedient” as amendment 18 would do. We would still behave reasonably. As to amendment 20, the Secretary of State would need to be satisfied that any closure was appropriate, having worked closely with the relevant railway operators, so I do not think any such closures require a parliamentary process.

Amendments 18 and 19 would, in relation to the line and the stations respectively, limit the power to the closure of the eastern line end of the Northolt and Acton line—known as the “Wycombe single”—which currently carries one weekday passenger service, and remove the ability to close stations. I repeat that at present there are no station closures for the delivery of HS2, and the Wycombe single is the only line that we expect will need to close. That was outlined in the environmental statement. However, I must stress that the design of HS2 is at an outline stage, so we cannot guarantee that other closures will not be necessary. Therefore a level of flexibility is involved. Currently there are no stations that have been earmarked, or are being contemplated, for closure. The provision is purely about allowing some flexibility, should unexpected situations occur.

I hope that what I have said reassures the hon. Member for Middlesbrough that the amendments are not needed, and that in some cases they could not be passed if we are to deliver HS2, and that he will withdraw the amendment.

Photo of David Anderson David Anderson Opposition Whip (Commons)

To take the Minister back to what he said about flexibility, which I understand, if it were decided that some stations needed to go, what degree or level of consultation would take place?

Photo of Robert Goodwill Robert Goodwill Parliamentary Under-Secretary (Department for Transport)

As I say, we are not proposing that. There would certainly be wide consultation. In this theoretical case that we cannot actually identify, there would need to be provision for the passengers who used that station. Indeed, if there were plans to build a new station, of course that would mean closing the old station that it was to replace.

As I have said, the provision is purely another example of braces and belt, in case we should find ourselves in the unexpected situation of needing to close additional lines or a station. The clause would allow us to do that, but I have not heard even a hint that we might need to close stations. Indeed, HS2 is about increasing capacity on the line, and people’s opportunity to travel. That is why it has been welcomed across the political divides in the House.

I hope that the hon. Member for Middlesbrough will withdraw his amendment and accept at face value my assurances—“reasonably” is my middle name, for goodness’ sake—that we certainly do not have a hidden agenda that the clause is intended to facilitate.

Photo of Andy McDonald Andy McDonald Shadow Minister (Transport)

I would not suggest any hidden agenda at all. If “reasonable” is the Minister’s middle name, why not put something in the Bill? To suggest that doubt might be cast on the ability to construct HS2 is something of a stretch. Surely we should all behave reasonably. To reject the amendment is to leave the way open to do otherwise.

I am not particularly persuaded by the argument about a need for flexibility, when no closures have been identified. The Bill has been pored over in minute detail. The plans are extraordinarily well known. A suggestion by the Minister that as construction develops something might be unearthed that would demand the closure of a station would send shockwaves around the communities along the lines. He has mentioned the very line that has been identified—the Wycombe single; and that is good. What I am driving at is that we should be specific about the closure plans.

I hear what the Minister says, and that he has requested me to withdraw the amendment, but in the first instance the insertion of the word “reasonable” is eminently reasonable. I see no reason to withdraw that.

Photo of Robert Goodwill Robert Goodwill Parliamentary Under-Secretary (Department for Transport)

The point I was trying to make was that the specific use of the word “reasonable” in the clause might throw doubt on the reasonableness of other areas where we have not used that word. I stress that this Government will behave reasonably at all times; that reasonableness contributed to a large degree to the electoral success we had last year. We are always reasonable in all things.

Photo of Andy McDonald Andy McDonald Shadow Minister (Transport) 12:00 pm, 3rd March 2016

I am grateful to the Minister for that, but putting this requirement in the Bill would leave the matter in absolutely and utterly no doubt, and it would put in that check and balance to ensure that is possible to have an objective examination of the decision to close. Without it, the Secretary of State is beyond criticism and incapable of being held to account. It is a basic principle of English law that Ministers in these circumstances should behave with all reasonableness.

That is why I indicate now, Mr Hanson, that I wish to see amendment 17 put to a vote; if you wish me to continue with my approach towards the rest of the amendments, I will. It has been very clearly established that the current intentions only extend to the Wycombe single line and I am content with what the Minister has had to say about that. So it is not my intention to trouble the Committee any further with amendment 18.

I turn to amendment 20. A simple requirement to make a written statement to Parliament following the making of such a decision is hardly an onerous provision and I would expect the Government to make such a statement in any event, but putting the requirement in the Bill would leave absolutely no doubt about it.

Photo of Robert Goodwill Robert Goodwill Parliamentary Under-Secretary (Department for Transport)

There is no shortage of parliamentary procedures that could be used, including urgent questions, Opposition day debates and all the other tools in the toolkit of an MP to raise issues in Parliament. So, although I understand the points that the hon. Gentleman is making, I do not think that we need to include this measure in the Bill.

Photo of Andy McDonald Andy McDonald Shadow Minister (Transport)

I am grateful to the Minister for that. I have only been here a very short time—three years or just a bit more—but there have been so many occasions when I have gone back to my constituency on a Friday night and seen an announcement made that has snuck out when we are not here, or that has been made during a recess. I am very much aware of the parliamentary procedures available to us all to seek an urgent question, or hopefully the Minister would come along and make a statement, but this amendment would leave it in absolutely no doubt that there was a formal, statutory requirement for a Minister to come along and make a statement when any of these plans were being contemplated, and that would put it in the Bill and give it a degree of certainty that otherwise would not exist.

For those reasons, I would like us to have a vote on this particular amendment.

Question put, That the amendment be made.

The Committee divided:

Ayes 5, Noes 9.

Division number 3 Christmas Tree Industry — Disapplication of statutory closure provisions

Aye: 5 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Amendment proposed: 20, in clause 40, page 15, line 10, at end insert—

“(1A) If the Secretary of State makes a direction under subsection (1), he must make a written statement to Parliament within 28 days, setting out his reasons for making such a direction.”

If the Secretary of State makes a direction under subsection (1), this amendment requires the Secretary of State to make a written statement to Parliament within 28 days, setting out the rationale for his decision.

Question put, That the amendment be made.

The Committee divided:

Ayes 6, Noes 9.

Division number 4 Christmas Tree Industry — Disapplication of statutory closure provisions

Aye: 6 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Clause 40 ordered to stand part of the Bill.

Clause 41