My Lords, I thought that the noble Lords, Lord Adonis and Lord Liddle, did a very good job of making many of my points for me. Then, of course, the noble and learned Lord, Lord Hope, came in and did a proper job on the matter in hand. I will play this with a straight bat and read out what I have here, which I thought I understood when I read it through over the weekend. I hope this will be helpful to the noble Lord, Lord Tunnicliffe. It was certainly helpful to me. When I got to the end of it I thought, “Right, I get this,” so here we go.
It is normal practice on major infrastructure projects such as HS2 or Crossrail that, during construction, further planning consent needs to be sought for details of the scheme that were not anticipated when it passed through Parliament. One of the means for doing this in relation to railway works is an order made under the Transport and Works Act 1992, known as a Transport and Works Act order.
During its construction, Crossrail has had three such orders, addressing changes in station design at Whitechapel, stabling arrangements at Plumstead and connections between platforms at Paddington, all of which arose from continuing discussions on the design and operation of the railway after the Crossrail Bill was enacted. Phase 1 of HS2 has had one Transport and Works Act order so far, in that case for new sidings near Calvert Green for use by a waste-to-energy facility. This was to honour an assurance given to the operator of the facility during the passage of the phase 1 Bill. The facility could not be included in the scheme because of the time needed to develop the proposals, which would have unduly delayed progress. As we build phase 1, it may be found that there is a need for more orders.
I will mention briefly the process that such a Transport and Works Act order goes through. The application for the order is submitted to the relevant Secretary of State—in England that would be the Transport Secretary and in Wales it would be the Welsh Government. The applicant must then make the application public by publishing notices in local newspapers, by writing to people directly affected, by posting notices near the works and by notifying specified organisations. If the scheme is large, the applicant may be required to hold public information events. It is clear that such orders go through a large amount of consultation.
People who wish to object then have six weeks to notify the relevant decision-maker of their objections. If there are many objections or if there are statutory objectors—those who are considered directly affected because their land is being bought compulsorily, for example—there may be a public inquiry. A recommendation on the application for the order will then be made to the Secretary of State, who will ultimately make the decision as to whether it should be approved. There may also be a need for the applicant to apply separately for planning permission, but that is another process.
If an application for a Transport and Works Act order were to be made in relation to phase 2a of the railway, Clause 49 would allow such an order to adopt, as necessary, any provision of the Bill so that the works were constructed within the same legal and planning framework as the rest of the scheme. Further, Schedule 1 to the Bill allows any engineering work shown on the plans and sections that were submitted alongside the Bill to be substituted by a work not so shown. Any such work would still be bound by the environmental minimum requirements of the scheme. What this amendment seeks is already addressed in the Bill.
However, we know that the amendment is not entirely about that. I know that the hybrid Bill process in this House can be a little frustrating. As I said to the noble Lord when discussing his amendment with him last week and as I will repeat now, it is accepted practice on the basis of fairness that, as the second House to consider the Bill, it cannot make amendments that would extend the powers in it; for example, to acquire new rights over land to change the route. This practice was confirmed by the noble and learned Lord, Lord Hope, as chair of the Select Committee that considered this Bill and by the noble and learned Lord, Lord Walker, who chaired the Select Committee that considered the phase 1 Bill in 2016. The Select Committee chaired by the noble and learned Lord, Lord Hope, also considered the suggestion that instructing the promoter to make an amendment to the scheme through a Transport and Works Act order would provide a valid alternative to taking powers in the Bill. The committee did not take this view.
I agree that this is the right approach. Such a committee directing the outcome of an application for a Transport and Works Act order without the formal application being made and therefore without any such change going through the process I described would be unfair. It would take away the opportunity for those who wished to object to have their concerns heard.
I agree with the conclusions of both committee chairs. It is right that if a Transport and Works Act order was necessary, any such order should be entirely outside the scope of the Bill, but I would add that any such order, being associated with phase 2a of HS2, should attract the environmental protections that this scheme offers. The amendment would do nothing to change the ability of the nominated undertaker to use a Transport and Works Act order to amend the scheme; nor would its use in a future HS2 Bill allow the Select Committee in the second House to adopt a different
approach. The Bill makes sure this is the case. I trust that this fully explains the stance that the Government take on this matter.
However, I am given to understand that the House authorities are considering a further consultation on the hybrid Bill process in the near future. If the noble Lord, Lord Berkeley, has an issue with that process, he may wish to participate in those discussions—I am sure that his input would be welcome. As such, I wonder whether he might withdraw his amendment.