This is very much a probing amendment so that we can have a debate about the role that Transport and Works Act orders play in and around a hybrid Bill. I will talk about one or two examples but I want to stick to the principle. This has been raised many times during the passage of many previous hybrid Bills, and the problem does not go away. This particular Bill and the transcript of the Select Committee hearings give us some interesting issues to debate.
As I think all noble Lords know, a hybrid Bill is a public Bill which includes private interests. A Select Committee is therefore appointed in each House and follows very similar procedures, except that if anyone—including the Government or a petitioner—wants to propose small changes to the Bill, in the House of Commons, which is usually the first House on these occasions, that is quite often done by an additional provision. However, it cannot be done in the Lords, for very good timetabling reasons. The only other option is for it to be done by way of a Transport and Works Act order process. That is provided for in Clause 49, and my small amendment seeks to clarify the extent to which it could be used. However, to some extent that is not really the question I want to debate and put to the Minister.
Going back to the phase 2 Bill, which is what we are talking about, we have talked before about the Stone railhead. It has been discussed in the House of Commons and in debates here, and when the Minister kindly had a meeting with a number of noble Lords last week it came up then. However, I do not want to discuss that—except to say that some people, the promoters, believe that it will save £98 million and could be completed three years earlier, but that is a question for debate. Something similar has happened on phase 1 regarding Wendover, which has also been rejected by the Government because they will not do a Transport and Works Act order there. It is said that that would save £300 million and save between one and three years, with enormous environmental benefits; I know that because I used to live around there.
I do not want to discuss the pros and cons but I want to explore why the Government have decided that there should be no alterations to hybrid Bills in the second House, even arguing that alternatives that require a Transport and Works Act order, the only option open to petitioners to the second House, should not even be discussed in the Select Committee. I understand why they might not want that, but the extent to which Mr Strachan, the government counsel in the Select Committee, went to long and repeated lengths to tell the committee that it really should not go for a Transport and Works Act order was extraordinary. I could read out several paragraphs but I will save the Committee, except to draw attention to paragraphs 146 and 165 on 16 March. I can find no instance in the transcript of the Government instructing the committee that it should not use the Transport and Works Act, but I would say that it was almost threatened by the government counsel that it really should not do so. The noble and learned Lord, Lord Hope, who chaired the committee so well, said in paragraph 9 of Appendix 2 in the committee’s report that
“certain petitioners have suggested that changes similar to those that might be made by additional provision might instead be effected through an order under the Transport and Works Act 1992; that would involve a process which is separate from the parliamentary process on this Bill, and it is highly unlikely that we could be persuaded that there was any recommendation that we could … make.”
I find that extraordinary, given that the Transport and Works Act option is included in Clause 49, something that Mr Strachan did not draw to the committee’s attention. Since he spent the whole day introducing the project to the committee, which I am sure was necessary, it is surprising that he did not raise it.
Even more surprising is the precedent in phase 1 where the Government are proposing a tunnel in place of a viaduct, I think, at a place called Bromford by a Transport and Works Act order, claiming that the tunnel will increase its length by almost double, remove the need for complex engineering and so on. I believe that the Government are proposing another one at Calvert. My contribution is going to go on for some time, incidentally, so if the Chair wants me to stop then I will. These procedures that the Government are doing are exactly the same as the Wendover one. It seems to me that the decisions are taken out of the hands of the committee in order to be made by the Government and their own promoter, who have very good reasons for resisting change. That limits the ability of petitioners, who on the whole do not have highly paid lawyers, to put their case against what I would call guerrilla warfare by government counsel to close down debate, making the Government both judge and jury. I have been involved in Transport and Works Act processes and hybrid Bill processes and I find that conflict very odd.
4.15 pm
I have been debating with the Minister, Andrew Stephenson MP, over probably six months about the Wendover case because, quite surprisingly, the petitioners are proposing a tunnel under the hillside behind Wendover through chalk, which is exactly the same material—chalk, clay, lower chalk and upper chalk—that we had in the Channel Tunnel, which I was involved in, as my noble friend Lord Snape will probably remember. Having been told for the last six months that the geological information was confidential, the petitioners have finally got hold of it. Even more surprisingly, their technical advisers are the same contractors who built the tunnel through Castle Hill and the Channel Tunnel using the same methodology with no problem at all. However, Andrew Stephenson’s letter to me, dated 21 September this year, says that the short-line tunnel, as it is called, is not a viable or safe method of construction. I just give that as an example; I may be wrong and the petitioners may be wrong, but it is not a fair assessment for the Government to make statements such as that, supported only by the people they are paying, without some kind of independent assessment of how it could be done, with both parties being treated equally.
My question is: how can Parliament force Ministers to think again and accept that some petitioners’ views can be accommodated without a loss of face, time or money? I want to propose one or two options, if I still have time. The nuclear one in terms of House of Lords procedures is for me to move a Motion on Report to commit a part of the Bill to a new Select Committee to examine certain bits that could be taken forward by a Transport and Works Act order if the committee thought that was a good idea. That is allowed within paragraph 8.118 of the Companion, which I am not going to read out as noble Lords can read it for themselves. That process would allow petitioners to make their case in a more balanced environment, request and receive the necessary evidence with no problem of confidentiality and bring in experts to support their case. As we all know, Transport and Works Act orders can be processed very quickly if Ministers want them
to be; equally, they can take several years if Ministers do not. We all know that and I do not want to comment on it. I say to the Minister, in the pursuit of some intention of fairness towards petitioners, that this needs resolving, not just now but for future Bills.
I have three questions. First, does the Minister accept that the Transport and Works Act option is available for use with a hybrid Bill? Secondly, does she agree that the committee and the petitioners appear to have been misled by government counsel into thinking that they should not really consider a Transport and Works Act option unless the Government thought of it first? I expect that she will say no to that one, but it is worth trying.
Thirdly, and more constructively, will she arrange a meeting with HS2 and her department on those two issues and on the principles of how we could take this forward in a more inclusive manner? That would bring benefits to petitioners who have so far failed to have their petitions accepted, and I believe there are others as well. Does she agree that if the arguments for the alternatives are positive or balanced then the Government could agree to take forward these two examples along with others through the Transport and Works Act order process in place of the relevant parts of the Bill?
I hope that she will agree some or all of those because I could seek to persuade the House to set up a new Select Committee, as I have outlined, but I do not really want to and I hope that we can have some meetings first. I beg to move.