Hybrid Bills are go: consultation on rehauling the Hybrid Bill procedure

Parliament has launched a consultation on further reforming the process for Hybrid Bills. These Bills combine both public and private aspects, and so the procedures for them require carefully balancing the mitigation of localised impacts with expeditiously delivering projects with wide ranging national benefits.

This consultation has to be seen in the context of two relatively recent drivers. First, the government has launched ‘Project Speed’ for infrastructure projects which are caught by the relatively more conventional development consent regime under the Planning Act 2008, the aim of which is to build ‘faster, better, greener’ and no doubt parliament doesn’t want to be seen to be lagging behind.

Second, it’s difficult to disentangle the drive for additional reforms in light of the House of Commons’ Select Committee on the HS2 Phase 1 Bill (a recent Hybrid Bill). That Committee heard 1,600 Petitions over a 160 day period. Back in its 2016 report it noted:

‘Although the number of petitions deposited against the HS2 Phase One Bill did not break records (that honour goes to the Channel Tunnel Bill), we have broken records with the number of petitions we have heard and with the Committee’s number of sitting days. We do not believe that spending nearly two years on this process is sensible or sustainable in terms of recruitment of future hybrid bill committee members. Nor is it necessary or indeed helpful to petitioners’.

Since that Committee report, both Hybrid Bill and Private Bill procedures have been modified, including the use of petitioning periods, dealing with some petitions on a written or group basis; and enabling standalone committees to consider petitions against a private or hybrid bill.

The current consultation is aimed at Hybrid Bills, although some of the changes might be sensible for private bills too. It broadly focuses on the following aspects:

• ensuring that those who are ‘directly and specially affected’ know how to use the petitioning process, considering whether there is an ‘imbalance’ in resources between promoters and petitioners and assisting petitioners in understanding the process;
• practices used in other systems which could usefully be applied to the Hybrid Bill procedure; and
• the effective monitoring and enforcement of undertakings (commitments) given by promoters to parliament.

What could reforms on each of these areas look like? Here are some humble suggestions.

The first aspect was the subject of the bulk of reforms following the HS2 Phase 1 Select Committee mentioned above. That said, there may still be scope for further reforms. In the Planning Act 2008 context, guidance issued by the Ministry of Housing and Local Government requires promoters to positively evidence how reasonable steps in acquiring land early have been undertaken. Would similar guidance in the parliamentary context assist both promoters and petitioners? In addition, having been involved in a virtual Opposed Bill Committee for the Highgate Cemetery Private Bill, consideration of increased use of virtual hearings or appearances would no doubt make proceedings easier for MPs, Peers and petitioners.

On the second aspect (ie learning from other regimes), a matter which deserves consideration is the use of concurrent select committee hearings, particularly where a proposal spans a large geographic extent. This is something which is expressly provided for in the context of compulsory wayleave orders under the Electricity Act 1989. Whilst the appropriateness of concurrent hearings would turn on the complexity of each project, it is at least plausible that their increased use could benefit both promoters in streamlining the parliamentary timetable for Hybrid Bills, helping petitioners find closure sooner in whatever outcome a committee endorses and sharing the burden amongst MPs and Peers who form the membership of the committees.

On the third issue (ie the enforceability of undertakings), it’s important to caution against throwing the baby out with the bathwater. In the context of conventional planning applications, Transport and Works Act Orders and DCOs, the discharge of conditions and requirements is often held up by the need to implement various commitments. Such a system does not necessarily resolve issues, and instead merely kicks the can down the road. Parliamentary undertakings shouldn’t therefore necessarily follow course. Nonetheless, increased digitalization of undertakings (which allows for monitoring and updates on performance to be easily accessible), as well as producing some ‘standard’ provisions may provide comfort that assurances will be fulfilled, whilst also reducing the time spent negotiating the detailed terms of an undertaking.

The consultation closes on 21 July 2021 – what happens after then will be of interest to those far beyond the walls of parliament.