Automated Vehicles Bill [HL]

Earl of Lytton Excerpts

Committee stage
Wednesday 10th January 2024 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to follow the noble Lord, Lord Hampton, who has done sterling work in contributing to this Bill. I apologise for the fact that I have not managed until today to fully engage with Committee stage. I also thank the noble Baroness, Lady Bowles, who raised a crucial issue which, as the noble Lord, Lord Berkeley, said, really does not seem to be covered here.

I want to take a specific example here of the tragic case—which is far too common—of small children, toddlers up to the age of about seven, being killed on domestic driveways by human drivers. A report from the Royal Society for the Prevention of Accidents which was supported by the Department for Transport shows that, since 2001, 34 children have been killed in domestic driveways, nearly always in their own home. There have been 19 deaths since 2008. In 22 of those cases, the child was killed by a reversing vehicle.

Here we have circumstances where—one would assume—usually competent and careful human drivers were not able to make allowance for what was happening around them. If we are going to think about automated vehicles, we need to think very hard about circumstances where we are not on the road but are in situations where vulnerable people, or animals for that matter, are not going to behave in manners that follow some logical kind of algorithm. That is not how the world works and, if we are going to have automated vehicles, we have to allow for circumstances like that.

I will pick up a point that the noble Lord, Lord Hampton, and a number of others made. Whether we have this Bill or not, and whether we have automated vehicles or not, we should be aiming to do vastly better than we do now on road safety. In the most recent figures we have, in 2022 there were 1,711 fatalities and nearly 30,000 when you put the “killed” and “seriously injured” figures together. That was five fatalities per billion vehicle miles travelled. That sounds like a big number, but the figure is up 2% on the last time we had a year like it, which was 2019, the pre-Covid year. So, on the metric we should be counting, we are heading in the wrong direction.

Like the noble Lord, Lord Hampton, I think that, of the amendments we have before us, Amendment 8, which says

“significantly better for all road users”

is probably the best one; we have a number of ranges before us. Again, I am not sure that this would get past the Table Office, but I believe, and the Green Party very strongly believes, that the Government should be adopting a policy known as Vision Zero. It is the idea that we should have the goal of no deaths or serious injuries on our roads. We know that humans will make mistakes, that pedestrians will make mistakes and that there will be children, animals and all sorts of things. We have to design everything to reduce the risk to as close to zero as we can possibly manage. I do not know whether we could write Vision Zero into this Bill. I can foresee the wrestle we might have with the Table Office now, but I think that

“significantly better for all road users”

at least takes us in the right kind of direction.

Like the noble Lord, Lord Hampton, I thank Cycling UK for its excellent briefing. We often talk about cyclists as vulnerable road users and this briefing is from Cycling UK, but the most vulnerable road users are pedestrians, particularly young people and, increasingly, older pedestrians who on average tend to move more slowly and are more vulnerable in all sorts of ways. In recent years we have seen a real increase in the dangers to older pedestrians, such as in changes made a few years ago to traffic lights in London that had disastrous, hideous impacts on them. Amendment 8 refers to “all road users”; a lot of the discussion at Second Reading was about interactions between two motorised vehicles, but we have to make sure that we think about all the other interactions as well. We need a great deal more work and thought on this Bill, particularly this element of it.

[The Earl of Lytton (CB)]

My Lords, this may be the only contribution I make to this part of the Bill, but I wish to follow the noble Lord, Lord Hampton, and other noble Lords because this business of safety in Clause 2 seems to be the most pivotal thing in the entire Bill. As the noble Lord said, the public are looking to us to make sure that it is enshrined here.

One thing the noble Lord did not mention is the claim that these automated vehicles will be materially safer than the human-driven equivalent. It is therefore right that it is not “no worse than” or even “as good as”; it has to be “materially better than”. Otherwise, we simply should not go there. As this Bill paves the way for what will have to come through a lot of secondary legislation, that is vital to get across at this juncture. If we do not agree it today, I hope we will at some other stage on the Bill.

The noble Baroness, Lady Bowles, made a really important point about road safety in the debate on the previous group of amendments and elaborated on it in the debate on this group with her Amendment 7. Clause 2(2) says:

“The principles must be framed with a view to securing that road safety in Great Britain will be better as a result of the use of authorised automated vehicles”.


That is a low aspiration. In my view, it needs to be considerably better. The noble Baroness said that she wanted to include private drive entrances, but they were declared out of scope by the clerks. I encourage her to persist. In my profession as a chartered surveyor, over many years I have helped people with their property boundaries, and one point that often comes up is where the private property ends and the highway starts. The customary arrangement is that between the blacktop—the adopted surface—and the front of the property boundary there is usually a verge or sometimes a pavement. Over it, the private driveway has what is known in the cant of the trade as a crossover. It is still part of the public highway, although it may be maintainable by the householder. That is an important distinction. The noble Baroness might go back to the clerks and say, “I want something that deals with crossovers”. I obviously do not wish to make a legal pronouncement, and I certainly defer to the views of the clerks, but that has been my understanding over many years of the principle behind the interface between the highway and private property.

Automated Vehicles Bill [HL]

Earl of Lytton Excerpts

2nd reading
Tuesday 28th November 2023 Lords Chamber

[The Earl of Lytton (CB)]

My Lords, it is a great pleasure to follow the noble Lord, particularly because it was he who encouraged me to take part in this debate. I acknowledge that self-driving vehicles are an exciting technology, with considerable advantages and implications for distribution, deliveries, and public and personal transport. It is partly the reason why 5G rollout is an object of government policy. To get ahead of that, we obviously need legislation and a framework for the future. I commend the all-party parliamentary group on its work and on setting out a very useful shopping list of criteria. I found that most helpful.

Any policy in this area must consistently apply core principles or it will fail, which is why Part 1 of the Bill is so important. But before the Government get too misty-eyed over the seductive technology and the benefits claimed by protagonists, I just suggest a slight reality check. This is also in the hope that someone will tell me that there are answers to all my reservations.

First, there are some claims made for AVs that I respectfully challenge. One is that AV technology is greener. It transpires on closer examination that this is largely hypothecated on the use of battery electric vehicles, a development that already exists and is not intrinsic to self-driving vehicles. Another is that it might be expected to reduce congestion. On that, too, I am not entirely convinced. Even in a fully digitised, connected and traffic management-ordered world, and even if the numbers of vehicles are reduced, peaks of congestion, unplanned events, inadequate capacity and progressive devotion of urban road space to other priorities are likely to persist. However, the idea of instantly directing approaching vehicles away from traffic incidents would be extremely welcome and, I am sure, benefit emergency services. That said, if the traffic jam-avoiding algorithms of some of the more hyperactive satnav systems are any indication—and I have used a few—significant additional road miles by way of diversions through previously quiet residential streets may be one rather negative outcome.

The AVs that replace conventional vehicles may also be on the road for longer hours, so there are numerous other factors to be considered before some of the claims are entirely credible to me. Safety, referred to by the noble Lord, Lord Berkeley, seems to be at least partly a factor of road design as opposed to the intrinsic error of the human.

Secondly, I believe it is an acknowledged fact that for an extended period of time—possibly several decades —there will be AVs with artificial intelligence and smart sensors, and conventional vehicles driven by fallible mortals, all sharing the same space. This was referred to by the noble Lord, Lord Tunnicliffe. This requires an artificial intelligence that can cope with the irrational. I am a driver—that is the only interest I need to declare for this purpose—and I can usually tell whether a motorist in front of me or in another lane is distracted, looking for a destination, diffident or nervous, likely to cut in or pull out with little warning, or just plain aggressive. However, if I live long enough to be a driver faced with general AV use, I would like a visual warning of the fact so that I can make due allowance. Maybe a little flashing light could do that job for me.

Thirdly, there is the technology itself, which—leaving the matter of 5G rollout to one side—still has some way to go, in my view. I drive a vehicle that has certain automated assistance functions; noble Lords will be familiar with these. It has an automatic braking system that I cannot disable. A bit like a flighty horse, it is liable to screech to a halt for a plastic bag blowing across the road in front, an uneven roadside kerb or even pedestrian railings on a bend. It is only a matter of time before another driver goes into the back of me because of this. It also warns me fairly frequently that this function has become inoperative due to external conditions. It did not react to a deer that crossed the road immediately in front of me on the A24 the other night, which I hit a glancing blow.

The lane change warning is, however, something I can disable; it takes the form of a rather unnerving wobble in the steering that could, of course, mean other things to an experienced driver. On satnav, I frequently find that the speed limit, road priorities or even roads and junctions themselves have not been updated, despite a recent software download. Sometimes the system does not even know where I am, for admittedly short but potentially critical periods—there is one junction on the M25 that is like that. I predict that it will be some considerable time before the communications network is robust and comprehensive enough and has adequate reserve capacity—emergency capacity in particular —for general AV use. For a while, I suspect that greater differentials will arise between those areas where AVs can be used successfully and those where they cannot. We should not be blind to that.

Of course, there is the issue of suitability, to which Clause 1(3) of the Bill refers in terms of vehicle credentials. It should also take account of the road environment in which these vehicles operate, which is often of very variable quality. AVs may operate successfully somewhere such as Milton Keynes, for instance, on a coherently designed and well-constructed street layout. But get to, say, the rural West Country, an area that I part-time share with the noble Lord, Lord Cameron of Dillington, and it is a rather different matter.

So, even without erased road markings; signage hidden behind vegetation or too dirty to read; the odd failed traffic light; roads with hidden potholes, anything but conventional width and—my noble friend Lord Cameron will understand when I say this—with or without large farm vehicle usage on narrow lanes; and no 5G or indeed any G at all, there are potential limits to where AVs may be safely used, apart from the general competency of the vehicle itself. I do not see this expressed clearly in Part 1.

While on that subject, I note a peculiarity in the definition of a road, which in 2021 was the subject of a legal case on the Isle of Wight and caused me to contemplate private roads where Street View does not penetrate and which may have novel street finishes, furniture, strange demarcation and so on. Two recent road schemes on public roads near my home are clearly defective. One is affected by appalling visibility for traffic approaching from the right, and the other is a new staggered junction of such appalling geometry that you cannot negotiate it without seriously cutting the corner. That does not matter if you are in smart car, but it does if you are in a delivery truck.

I entirely take the point made in an email I received from the cycling lobby that its members, plus, of course, the elderly on scooters, pedestrians, pets, deer, foxes, badgers and preferably hedgehogs, need to be recognisable by this evolving technology.

I have a particular worry, which has been expressed by other noble Lords, about this hybrid driver in control who is none the less able to allow automation to take over, subject to immediate human intervention where necessary. I sense this may become a commonplace halfway house, which is why I mention it when other noble Lords have also done so. I am not a behavioural scientist, but I wonder how quickly human attention returns to effective and possibly emergency reaction if, given conventional distractions inside or outside the vehicle, focus has wandered elsewhere once automation takes over. Avoiding danger is often a matter of intuitive prediction and behavioural clues, not always achieved in the last resort by sensors suddenly deciding they are going to apply the brakes.

Finally, a cautionary tale. In a previous attempt to improve highway capacity and safety, the Government invested in—noble Lords will know this—smart motorways. But, seemingly in an effort to reduce costs, they decided to omit the safety camera system designed to detect vehicles stopped in the slow lane—with tragic consequences. I am no longer happy simply to allow a Government driven by the politics of presentation and the balancing of finances, possibly in priority over safety, a completely free hand in such matters. I want an entity with comprehensive focus, independence, status and determination, equivalent to something like the Health and Safety Executive, to have oversight of how this technology is rolled out. I am not clear that the Bill adequately deals with that.

Therefore, while welcoming AV technology and the necessity of this Bill, I do not see it as addressing all essential aspects; and there are a lot of caveats to this, with critical elements left to subsequent regulation. I simply suggest proceeding with some caution lest we act in haste only to repent at leisure.

Public Transport in Towns and Cities

Earl of Lytton Excerpts

Monday 17th April 2023 Grand Committee

[The Earl of Lytton (CB)]

My Lords, it has been my great privilege to serve on the Built Environment Committee during the period when this subject was considered. I add my appreciation of and thanks to our former and present chairman and our erstwhile clerk, Dee Goddard, and for the briefing that was issued just in the past few days. For those of us who find their grey matter displaced by the jumble of things added subsequent to a report such as this, it is very helpful to have that prompt. Much of the content to which I would have referred has been covered by others, and I am satisfied that the relevant material is more than adequately contained within the report, which I believe speaks for itself.

The report identifies a series of worthy and sometimes inspirational initiatives, with what I think would be generally accepted as Transport for London’s example being the gold standard, but we have been subjected to what might be called exceptional circumstances. There are not only the normal constraints—perhaps now the additional constraints—on public spending but the disruption to and changes in consumer usage caused by the Covid pandemic, with lasting effects on matters such as commuting, whether people attend their place of work full-time or part-time and what that means for land use and the applicable facilities. I do not forget that this is also accelerated by squeezed household budgets and the impact of daily commuting as a net-of-tax cost on people’s income. Nor do I overlook the fact that commuting travel time is often neither enjoyable leisure nor gainful work.

We also showed that the command structure is to a degree fragmented and is not monitoring outcomes adequately. Different departments operate in different sectors. Decisions may be made at departmental level, but with the onus for delivery and taking risk devolved to local government—never mind that it has fewer resources—and, in turn, to commercial transport providers. There are gaps in accountability between control of resources, responsibility for action and the concurrent duty to take action. Each segment has its own priorities, whether they be political, public finance, planning, operational risk and so on. The absence of integration between land use and planning, mentioned by so many other noble Lords, is extremely concerning, given the obvious synergies.

I mention just one thing on bus transport in particular. Bus is one of those things that provides the opportunity to vary it to an almost infinite degree: it is not set on rails, it is by and large not attached to cables, and it is capable of adapting, both by the nature of the vehicle and the frequency and position of stops, in ways that most other forms of public transport cannot meet. It should therefore be the initial, and possibly the interim, mode of choice in changing circumstances, particularly changing environments, and especially when we are talking about changes in development patterns within urban areas.

Funding is not always evenly applied or secure over time. Sometimes, it looks as if there is a poor understanding of likely outcomes. There is a need for long-term, consistent, durable and continuous progress towards broadly common goals and an understanding of what good practice in transport looks like. If policies are too narrowly focused or shorter term than the time horizons of the project development and rollout, the result is dented commitment, lack of trust, user disaffection and, ultimately, lack of investment necessary to carry it all forward. I am satisfied that a more holistic approach—if noble Lords will excuse that overused term—is necessary.

Scheme participation procedures that are overcomplex or require expensive bidding processes are rightly regarded with suspicion and deter participants on cost alone. Funding streams that are proposed but which may be turned off at critical stages are also unattractive. Scheme architecture combined with responsibility for the policy, funding, delivery and outcomes—including that very necessary post-project evaluation—are key to this, along with slicker ways of ticketing and improvement of the customer experience. These cannot be left to chance and should not be the subject of a bewildering array of different local schemes, as if every city in the land were some sort of foreign jurisdiction, or indulged in a bidding war for too few resources. For users, relearning car parking ticket technology or public transport ticketing for each municipality is a nightmare and should not be an acceptable outcome in this modern world.

I will leave it there, but it should be said that this is, as the noble Lord, Lord Berkeley, said, work in progress. It has been a privilege to be involved in this matter, but I would just say that a less defensive and slightly more inclusive approach to discussions would be helpful, especially in the knowledge that there may not be one perfect solution to the matters that we have to deal with.

High Speed Rail (West Midlands-Crewe) Bill

Earl of Lytton Excerpts

Monday 14th December 2020 Lords Chamber

[The Earl of Lytton (CB)]

My Lords, it is a privilege to bid this Bill farewell as noble Lords clearly want the scheme to go ahead, although with understandable concerns about the detail. I am unsure how I view the amendment tabled by the noble Lord, Lord Adonis, but I do get his point. I noticed with wry amusement his reference to the inverse relationship between the parliamentary time taken up and the distance of the phase in question we have before us. Whether or not one regards HS2 as a serious addition to communications and rail capacity, it remains an ambitious scheme using state of the art engineering. I hope it will be something the nation can be proud of.

If there is anything I would say by way of postscript, it is that government departments should be more ready to engage with external experts before re-writing existing specialist legislation such as that on party walls. I thank the Minister for writing to me last week clarifying the issue of residual liabilities. I fear, however, that it may highlight some different views on the long-term liability holder under party wall procedure as opposed to under HS2. Like the Minister, I believe we are indebted to the work of the Select Committee. I found the contributions by members of the committee in our discussions invaluable. I am particularly grateful to the noble Baroness for agreeing to issue guidance on party wall matters under the HS2 arrangements. I am glad to report this process is now well in hand. She has been helpful throughout and has kept us all exceptionally well informed on responses to points made. That has enormously improved the way this has proceeded.

I thank the Bill team for their patience, tolerance and understanding over some very narrow and technical—but important—issues. This is despite the fact that the party wall bird has flown, and probably flew as long ago as the Crossrail legislation. I also thank the many outside professionals, who have gone more than the extra mile to advise and guide me on specific areas of this Bill.

Finally, in his absence, I thank the noble Lord, Lord Berkeley, for his support and assistance and other noble Lords for their support. Given that the festive season is nearly upon us, I wish all noble Lords, the Minister, clerks and the Bill team a well-earned and above all congenial and peaceful break.

High Speed Rail (West Midlands–Crewe) Bill

Earl of Lytton Excerpts

Tuesday 8th December 2020 Lords Chamber

Moved by

[The Earl of Lytton]

16: Schedule 23, page 188, line 16, at end insert—
“9 (1) The Secretary of State must by regulations made by statutory instrument make such alterations as may be necessary to the provision under this Schedule for—(a) the notification to adjacent owners, and(b) disputes and their determination.(2) A statutory instrument containing regulations under sub-paragraph (1) must be laid before Parliament in sufficient time to allow the regulations to come into force not later than the commencement of works authorised by this Act. (3) A statutory instrument containing regulations under sub-paragraph (1) is subject to annulment in pursuance of a resolution of either House of Parliament.”Member’s explanatory statement
This amendment seeks to commit the Government to producing statutory guidance to resolve an apparent gap between safeguards under the Party Wall etc Act 1996 and those remaining following the partial disapplication of that Act by Schedule 23 and the alternative measures in Schedule 2.

[The Earl of Lytton (CB) [V]]

My Lords, in moving Amendment 16, I will speak also to Amendment 17, both relating to party-wall procedures. I thank the Minister and the Bill team for hearing me out on this quite narrow issue and for convening several online meetings. I also thank the noble Lord, Lord Berkeley, and a number of external experts in this specialist field for their advice and support. I remind noble Lords of my own professional involvement in party-wall matters. I hope the Minister will be able to suggest something here, and therefore I trust that it will not be necessary for me to press these amendments.

I proceed by making an apology. In Grand Committee the Minister asked about the numerical incidence of cases in phase 2a that might be subject to party-wall procedures. The estimate of numbers that I provided informally to her was produced by someone else and is probably a mistaken figure, so I confess that I am no further forward. However, I have put out further inquiries and will let her know what the situation is. Of course, cases relating to party-wall procedures under the existing phase 1 are only now beginning to trickle in, so there is a long time lag between setting the Act in motion and cases emerging.

I will summarise for the record the current situation, as follows. First, the Minister told us that Schedule 23 to Bill as drafted, while removing key sections of the Party Wall etc. Act 1996—which I will refer to as “the 1996 Act”—for HS2 purposes, would none the less leave the main elements of the 1996 Act procedures intact. I must beg to disagree. If the claim to entitlements under the 1996 Act is not formally notified, it is incapable of agreement or dissent and there is no default to the dispute procedures or a party-wall award, so the entire rationale and balance of a process that impinges on common-law rights is thereby lost.

Secondly, the Minister suggested that for HS2 arbitration would be simpler and quicker than the 1996 Act dispute procedure, which she claims would delay HS2. I have to say that in all my years of practice I have never heard such a claim, even less seen substantive evidence supporting it.

Thirdly, the Minister averred that Schedule 2 to the Bill provides an adequate replacement for Section 6 of the 1996 Act—the bit relating to adjacent excavation—which is otherwise disapplied by Schedule 23 to the Bill. Replacement in part I can acknowledge, but I have to point out that it is on distinctly less than equal terms. I point in particular to changes in which consent, if a notice is not responded to, is deemed to have been given, instead of the 1996 Act protection of deemed dissent.

Safeguarding adjoining property and the notification of that is, it seems, the sole option of a nominated undertaker—which I will refer to as the NU—whereas this would be challengeable and potentially liable to counternotice under the 1996 Act. To explain further, safeguarding practices may be followed where risks to adjacent buildings arise from HS2 works, but based on internal assessment by the NU in which up to 10 millimetres of building movement is considered acceptable. However, in combination with natural subsoil shifts, this may well be mutually exacerbated and is therefore of considerable significance to owners of nearby buildings even if unimportant in engineering terms.

Fourthly, the Minister stated in Grand Committee that the NU would have to get agreement before commencing work falling under Schedules 2 and 23. However, there is no apparent mechanism for that in the Bill.

Neither external experts nor I agree entirely with the Minister’s analysis, but we do agree on some things: namely, that identical measures already exist in the phase 1 Act, that they were not challenged at the time, and that there was no consultation with expert practitioners on them. I suggest that practitioners were accordingly largely unaware of the proposals. In any event, accepting that phase 1 provisions exist does not make the risks go away.

I submit that for HS2 purposes the 1996 Act process does not remain intact; the essential balances of powers and responsibilities, of investigation and brokering of practical outcomes, cease to exist in the HS2 world. In the 1996 Act, it is a combination of the defining notice, a response and a challenge, followed by an award that gives rise to the rights—not a simple statement in Section 2 of the 1996 Act. The 1996 Act provides that the person proposing works meets the reasonable costs of the neighbour. This follows the obligation to make good any loss or damage occasioned. I am not clear what happens under the Bill, as notice under the 1996 Act customarily sets a clock ticking on costs and expenses. The removal of the requirement for notice, or perhaps a predilection for leaving notice under Schedule 2 to the last moment, might well mean that a prudent neighbour could themselves potentially incur an irrecoverable cost in obtaining advice on physical aspects, possibly before the NU had started to engage.

Of course I accept that we cannot have neighbours running up needless costs for reimbursement or, worse, undermining or destroying essential HS2 works. But this is a far cry from disapplying the provisions for everything that HS2 Ltd may happen to own or control and removing established protections. Hollowing out the 1996 Act and cherry picking the bits that suit HS2 is, of itself, questionable.

I do not see the Bill’s arbitration solution covering anything like the same process as the 1996 Act, in which surveyors negotiate the outcome based on a broad investigative process. Arbitration, after all, is a quasi-judicial process of a scope that needs to be defined. It used to be relatively cheap and quick, but a common criticism now is that it has become legalistic, expensive and slow, and so, I suggest, a good deal less flexible than party wall procedures. I think there will be arguments over the scope of arbitration.

It is clear to me that the Bill, by virtue of Schedules 2 and 23, and for HS2 purposes, does a great deal more than harmlessly disapply parts of the 1996 Act. It is a profound change of procedure and balance and will make the Act scarcely recognisable to most practitioners, especially when the customary consensual process is replaced with an essentially an adversarial one in which previous precedents are not a given. In short, it will require a significant realignment of skills and is likely to involve greater legal input. Awards of the type that occur under 1996 Act will not apply, and the intervention of the courts seems more likely. However, I accept that the bird has largely flown here. It is apparent that the Government will not accept any material changes to the Bill in respect of this matter. Fortunately, it is limited to HS2, but it makes for a bad precedent.

In discussions with the Bill team, the desirability of guidance was raised. I see three justifications for this: first, as a guide to professionals, given an unusual procedure and a significant departure from current established practice; secondly, as an indication of what an adjoining owner can expect; and, thirdly, as a means of fostering good order, cost control and consistent administration.

In the hope that there might be a partial solution in this direction, I took the liberty of asking the Royal Institution of Chartered Surveyors, of which I am a fellow, if it would be prepared to set up a working group, as consultee. I am glad to say that it has agreed to do so if the principle is agreed. I hope this will be welcomed. I have already flagged 14 initial points of my own which I believe any guidance should cover.

I now turn to Amendment 16. I recognise the implications of amending the Bill and the potential practical outcomes for the phase 1 Act of so doing, although of course phase 1 represents the greatest likelihood of issues arising because of the urban nature of some of its route, but future phases of HS2 might also benefit from sorting things out now. However, I believe that there ought to be a statutory hook for any guidance, and that is why Amendment 16 is so framed. The purpose will, I think, be entirely clear—namely, to put on the face of the Bill the requirement for guidance, to identify the means of parliamentary scrutiny and, lest it be forgotten or overlooked, to establish a clear timeframe for its coming into force.

Amendment 17, which I shall speak to extremely briefly, is the fallback. If nothing is agreed, this is “exit without a deal”. It would leave the 1996 Act provisions largely intact, but I accept that it is far from a perfect fit in the Bill simply to disapply Schedule 23.

Therefore, I invite the Minister to confirm what is intended. If she cannot agree to Amendment 16, might she commit to bringing forward a government amendment at Third Reading or, if not, to guidance?

Finally, on an allied matter, I remind the Minister of the query that I raised earlier about the form and final repository for long-term liabilities and obligations arising from works in, adjacent to or beneath neighbouring properties. HS2 Ltd is a delivery vehicle and, I assume, will at some point cease to exist. Can she indicate where long-term legal responsibility will lie and how it will be enforced? I appreciate that she may need to write to me on this subsequently, but it is an important matter, whatever agreements or arbitration awards are reached. I look forward to her reply. I beg to move.

[Lord Berkeley (Lab) [V]]

My Lords, I am pleased to be able to support the noble Earl, Lord Lytton, on these two amendments. We had some useful discussion in Committee, and I know that the Minister and her officials have been working very hard on seeing what the problems are and what the best solution is. Amendment 16 is certainly a way forward, because the status quo is, unfortunately, very unsatisfactory.

One problem, which the noble Earl, Lord Lytton, alluded to, is that party wall issues come only well after the legislation is completed. We are now beginning to see some problems with phase 1. It will be a long time before we see similar problems, although of a smaller scale, with phase 2, but I hope that we can really move forward on this. The RICS and the noble Earl, Lord Lytton, have offered to take this forward, with the hope of creating some statutory guidance, but, if not, there needs to be some other means of ensuring that there is fair play without the project being delayed. I think we all agree that this should not be a way of delaying the project; it should be a way of getting party wall issues resolved quickly and cheaply to everybody’s satisfaction. As the noble Earl said, if we do not get it right, the prospect of litigation and even class actions, with knock-on effects for the cost of HS2, would be very real, and I am sure the Minister will agree that we do not want that.

It is clearly the Government’s view that Schedule 2 to the Bill would be an alternative way of dealing with access to carry out investigations and notifying owners, particularly before carrying out safeguarding works, given the disapplication, by Schedule 23 to the Bill, of Section 6 of the Party Wall etc. Act 1996, which relates to adjacent excavations for construction. In a minute I shall come up with an example which I fear rather indicates that this is not working at the moment.

--- Later in debate ---

As noble Lords will be aware, the route of the phase 2a scheme is rural in nature. Therefore, it is not expected that many party walls will be created by the works authorised by this Bill. I reiterate that, where necessary, the modified process would provide a safe and speedy resolution for both the project and the adjoining owner. I will write to the noble Earl on the question of long-term liability, but, on the basis of my contribution, I hope that he feels able to withdraw his amendment.

[The Earl of Lytton (CB) [V]]

My Lords, first, I thank all noble Lords who participated in this short debate. In particular, I thank the Minister for her generous comments towards me and, most of all, for agreeing to the principle of guidance; I am sure that many professionals will be extremely relieved by that. With that in mind, I can certainly confirm that I will not press this amendment, in the light of what she said.

On the nature of guidance, again, the Minister may not be in a position to respond to me today but perhaps she could guide me on that. I ask her to comment on how non-statutory guidance will sit alongside the Bill’s specific provisions, in the knowledge, of course, that we are all seeking best practice and not just the cheapest and quickest procedure available.

I thank the Minister for agreeing to write to me on the question of residual liabilities. As I anticipated, this matter obviously requires further thought and consideration.

I particularly thank the noble Lord, Lord Berkeley, for his continued support. He gave the interesting example of Park Village East, which is in the phase 1 scheme. I want to explain in non-technical terms my take on this, which is as follows: are the ground anchors being placed underneath a nearby owner’s property for the purposes of restraining something else that is not part of that property, or are they to safeguard the adjacent property itself from the HS2 works? If it is the former, I suggest that it is a question of compulsory purchase to acquire the necessary rights. If it is the latter, it might fall under Schedule 2 to the Bill. This highlights the need to clarify what procedure is being engaged in any given instance. That is what I suggest formal notice should do.

The noble Baroness, Lady Randerson, kindly lent me her listening ear; I am extremely grateful to her for her confidence. She asked what I will call the $96 question, which remains unanswered. I am grateful to her for raising that issue.

The noble Lord, Lord Tunnicliffe, asked why significant changes to the Party Wall etc. Act were needed. Crucially, he pointed to the question of good management. I agree with that, but I also note his caveats and reasons why he would not have been in a position to support the amendment had it been pressed to a Division.

I finish by paying tribute to the group of party wall specialists who have put in hours of time to help and advise me. I say this to them: I could not have done it without you. I thank them very much indeed.

On that basis, I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

High Speed Rail (West Midlands-Crewe) Bill

Earl of Lytton Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords & Committee: 2nd sitting : House of Lords & Committee: 2nd sitting
Thursday 12th November 2020 Grand Committee

[Lord Berkeley (Lab)]

My Lords, the amendment is in my name and that of the noble Earl, Lord Lytton. On our previous day in Committee, we discussed regular reporting and had a good debate. This amendment is slightly different, because the emphasis is on independent peer review. I remind noble Lords that this project has been around, discussed in another Parliament, for probably 10 years and things have moved on. We have learned a lot. There have been changes, which we all know about. It is probably time for Parliament to commission an independent review so that it knows what has been asked for, what will be built, how much it is going to cost and so on. In particular, we have had a lot of debate both on the Floor of the House and in the Select Committees on the environmental impact, costs, forecast revenue before and after Covid—well, not after yet—the economic impact, the engineering and the governance.

I do not wish to express any opinion on whether what we have now is good or bad. What is needed is an independent opinion—independent of government, of HS2 and of the various contractors. The experience in the Oakervee review last year was that when we tried to seek independent opinions on whatever we were looking at under the terms of reference, we found it quite difficult to identify people or organisations that were not or had not been in some way linked to HS2 or the Department for Transport. I am not being critical, but it is pretty important if one wants an independent review that those conducting it are independent and not worried about where the next contract will come from, for example.

I shall not say much more except to remind noble Lords that probably one of the most important things that I am focused on is costs. There have been three or four times when Department for Transport officials or HS2 staff have basically said that they do not know what the costs are. One HS2 executive, when asked why they had not been transparent on costs, memorably replied:

“If we’d told Parliament the real costs, they’d probably have cancelled the project.”


That is a very bad reason for going ahead with a project. I know that my noble friend Lord Adonis will say that I am trying to get it stopped, which I am not; I just think that it is time now to get a one-off, independent review so that Parliament and other people can then monitor progress and hold the Government and HS2 to account if they feel it necessary. I beg to move.

[The Earl of Lytton (CB) [V]]

My Lords, I do not have much to add to what the noble Lord, Lord Berkeley, so ably said, and the amendment is largely self-explanatory. It will become apparent as further amendments are moved that there is a strong case for an amendment such as this, which is why I added my name to it.

For all the many pages written on matters of safeguards, it seems that few outside the cerebral world of the department, HS2 and its contractors are entirely convinced that HS2 Ltd will honour the spirit as opposed to the letter as it sees it. Too much of this Bill appears to rest on HS2 Ltd’s self-assessment, in which the Government as ultimate funder and promoter are a party. Costs have soared, as we have heard. Budgets for things such as land acquisitions seem to have been woefully inadequate. Timelines have become stretched; procedures have been subject to novel interpretations, and a good deal of unnecessary uncertainty and doubt about aspects of the scheme have crept in as far as those outside but affected by the scheme are concerned.

This is a scheme by the nation for the nation, and it should embed best practice and be seen to be doing so. I am pleased to support the amendment because it goes to the heart of public confidence in the manner in which this truly mighty project is being managed.

[Lord Liddle (Lab) [V]]

My Lords, I oppose the amendment. I do not see any point in it whatever. It seems to me that in this country we can never make up our minds about whether we are going to do anything that is big and expensive. We have constant reviews, and we are constantly cancelling projects that have already made some advance. We have just had the independent Oakervee review of HS2, and we have just had a government decision to go ahead with the line to Manchester—although I share the worries of my noble friend Lord Adonis about what the Government are thinking about the eastern leg. However, I see no purpose in launching another review now.

My noble friend Lord Berkeley says that it is very difficult to get independent advice regarding all these concerns about costs, et cetera. Of course it is difficult to get independent advice, as the people who really know the facts are the ones who are doing the job. Unless the taxpayer is to fund an independent organisation to be critical of a scheme that Parliament has voted for and that the Government have reaffirmed and have cross-party support for, then this is a ludicrous proposal. I suppose that the answer to my noble friend’s legitimate concerns is to have an effective HS2 board. If there is an answer to this problem, it lies in having an effective board to supervise the management of the project. That is the point that the Government ought to be satisfying themselves on. I honestly do not think that this is a matter for legislation at all.

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Moved by

[The Earl of Lytton]

12: After Clause 58, insert the following new Clause—
“Mitigation of loss or inconvenience to owners or occupiers of land used in these works
In any matter relating to the entry on, occupying or acquiring of, private land, the nominated undertaker must take all necessary steps to mitigate the inconvenience or loss to any owner or occupier of that land.”Member’s explanatory statement
This amendment seeks to ensure that best practices in minimising loss or inconvenience are followed by HS2 Ltd and its contractors.

[The Earl of Lytton (CB) [V]]

My Lords, it is fortuitous that this amendment follows the comments of the noble Baroness, Lady Randerson, about Amendment 7. I stumbled across this matter almost by accident in discussion with various bodies and individuals over the operation of the HS2 Ltd land acquisition regime. I am particularly indebted to Andrew Shirley of the Country Land and Business Association, of which I happen to be a member, and Kate Russell of the Central Association of Agricultural Valuers, of which I am not a member. I have also spoken to other chartered surveyor practitioners of the dark arts of compulsory purchase and compensation who have been prepared to share their experience with me. To some extent, the amendment builds on earlier amendments before Grand Committee on day one.

Kate Russell forwarded me a copy of a lengthy letter she sent on 1 June 2020 to Thomas Barry at the DfT in response to the general question—I paraphrase—what could be improved? Noble Lords will be glad that I paraphrase the seven pages of that letter, but I have permission to show it to any noble Lord who may be interested and to whom I have not already forwarded it to, but I have sent it to the Minister and those who spoke to Amendment 5. Bear in mind that this is sent by an official of a professional body, not a disaffected claimant’s agent. Even so, I would not have attached such importance to a single letter had it not encapsulated many of the same sentiments independently expressed to me by others. Please also bear in mind that phase 2a naturally follows the procedures laid down for phase 1.

Kate Russell first explained that the issues being encountered over land and property acquisition went far beyond the normal range and severity that she would have expected. In her letter, she encouraged the department to pause for reflection—a figurative pause, that is, because of course she did not ask for everything to be stopped—because of uncertainties due to design refinements, consequential to the reality of land acquisition and the implications for and disruption to claimants. She outlined the significant stress levels not only for claimants but also to professionals involved and that this has been directly due to the manner in which HS2 Ltd had been handing cases. So bad was this that the very notion of working on HS2 cases has become an issue in professional recruitment and retention, with her members seeking guidance because requirements of their tasks seemed to be at odds with professional codes of conduct.

Her letter goes on to cite several underlying causes. I truncate this, but there was the scale and timeframe of the undertaking and the implications of that, the highly impersonal manner in which the claims were handled and HS2 Ltd’s apparent desire for total consistency above all else in what is a sea of highly variable individual cases—in other words, uniformity in preference to fair balance to individual circumstances.

Of course, everyone recognises the need for value for money in these huge schemes, but the underlying sense expressed to me by another commentator was that the Treasury’s hands were around the financial throat of the department, which in turn has its around the neck of HS2 Ltd and so on, with HS2 Ltd acting in a similar manner towards its suppliers, professionals and, last of all, at the end of the supply chain, the claimants. This, in varying terms, was reflected in the views of everyone I spoke to on the point. The suggestion is that the structure and chain of command of this project is in large part to blame.

Ministers have publicly professed “compassion, fairness and respect” as objectives—or did, until the terminology changed to “compassion, dignity and respect”. When I heard the comments of noble Lords on Amendment 2, I wondered whether this terminology had been intended to refer to the graves and memorials of the long dead rather than to the pressing imperatives of the living. But the word fairness none the less seems to have disappeared.

The visible symptoms of this malaise are these: shifting the burden of proof and justification on to claimants even when it is plain that there must be a reasonable case in principle; challenging every claim line by line; the adoption of the unique HS2 Ltd “take” on matters such as injurious affection and then claiming that this is established practice; delaying payment for as long as possible by these means, or seemingly so; and claimants being driven to the point where they will give up and take whatever is offered to them because they simply cannot go on any longer. We have already mentioned the temporary access provisions which appear to have been used to occupy land first and deal with claimants’ costs at leisure. There is also the demand for professional service suppliers to adhere to these objectives as a priority over their professional rules of conduct, as I explained earlier, as well as overturning their recommendations if it suits. Finally, there is control from the centre to ensure uniformity with no delegation of any decision-making, regardless of the rigidity that results from the process.

Some of these tactics are commonplace and are easy to slant either way. For instance, if you make an internal, unminuted decision to apply a “beyond reasonable doubt” criminal proof standard to compensation claims in what should be a balance of probabilities civil test, that requires no new laws or regulations and can easily be defended as financial control, but which does lasting injustice. Similarly, if you ask for clarification for further and better details, not just once but drip-fed one after the other and each taking a turnaround time of several weeks, that can paraded as diligence. The timeframe can be endlessly spun out and, where payment is involved, delay the pay-out. Another tack when confronted with anything like a complaint is to deny everything to the point of calling black white.

These things are not unique to HS2 Ltd; they are part of the standard pattern of behaviour of large organisations which think that they are beyond the need for customer care or are too big to fail, or have only themselves or a government parent as a regulator, or believe that the noble purpose of their mission is more important than conduct, ethics and fairness, or perhaps all of these.

In our debate on Amendment 5, the Minister took a particular dislike to my reference to the perception of coercion: I did use that word. Perhaps she would prefer “strong-arm tactics” as an alternative, but this does seem to be what is going on here—not yet on an industrial scale, I suspect, but significant enough to matter and important enough for measures to be taken to reduce it, as suggested by Miss Russell. Please understand that this has nothing to do with the adequacy of the compensation claim; it is about the mode, culture and characteristics of implementation.

There are four basic principles that need to apply here. First, there has to be a high degree of accountability in the areas of ethics, fairness, transparency and professionalism, and that has to be embedded in the very culture of the organisation with a comprehensive and effective code of practice. Secondly, there has to be independent oversight and monitoring. Thirdly, there has to be an effective and accessible redress system. Fourthly, there have to be meaningful sanctions for poor practices in appropriate circumstances. The amendment would pave the way for this approach, but I acknowledge that it would require proper resourcing.

In particular among large construction enterprises and administrative organisations, there is a belief in spending much fine gold in defending the process in which they are engaged. Directors get together in order to defend the principle of their existence and what they are involved in. With that comes the question of the exercise of power for its own sake instead of making that process more efficient and transparent. I cannot count the number of times I have pointed out that this is a false philosophy that merely increases friction, although I do not doubt that it gives the impression of being busy, however fruitlessly.

With HS2 Limited I am getting the message that whatever form of corporate social responsibility is at work, it is not one that professionals or citizens universally recognise as a modern or effective duty of care or that it is confined to handling claims. The resultant delays, lack of trust, uncertainty, added disputes, blame shifting and financial loss and so on are capable of being mitigated to good effect were there, as Miss Russell suggests, a claimant strategy document that is worthy of the name, incorporating the four principles I have mentioned. Miss Russell has also told me that in September she inquired of the Department for Transport about such a strategy, having mentioned it in her letter, but she was told that it would be out “soon”, a word I have heard used so often by Government Ministers but which is then followed by no visible action, so that it has nearly lost all meaning and value. However, confirmation that this is somewhere in the pipeline does underline my general point about the need for action.

I invite the Minister simply to confirm that the production of a claimant strategy document is imminent, that it will be independently assessed and not just some internal box-ticking exercise, and that it will be available for us to scrutinise in draft at any rate before the Bill leaves this House. I beg to move.

[The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)]

The noble Lord, Lord Liddle, has withdrawn from speaking to this amendment so I call the noble Lord, Lord Haselhurst.

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My colleague Andrew Stephenson is there to help us make sure that people are being treated with the respect and dignity that we would wish and that they deserve. These concerns are not just about money or inconvenience; this is about making sure that people are treated properly. I do not agree that the amendment achieves the outcome of respect, dignity and fair treatment, but adherence to the policies that are already in place and the work that my colleague Andrew Stephenson is doing will. I hope that the noble Earl, Lord Lytton, will join me and Minister Stephenson—and any other noble Lords with an interest in land and property—to discuss these matters further, and that, on that basis, he will feel able to withdraw his amendment.

[The Earl of Lytton (CB) [V]]

My Lords, I thank all noble Lords who have spoken; those who have been in favour of this amendment and those who think it is unnecessary. This was essentially a probing amendment—a fishing expedition, if you like—to discover the existence of or progress towards a document that I considered important.

I have noted what noble Lords said about the compensation code. I said in my opening remarks that this was not about the fact of the compensation code, and I tried to steer clear of any question of the quantum of compensation, because that is really quite outside my brief and my knowledge. I do know a fair bit about large projects, because when I worked in a public service, I had to deal with something called the A27 Folkestone-Honiton trunk road. I advise noble Lords that it has reached neither Folkestone nor Honiton, and there are large gaps on the way, but, hey-ho, that is what happens with these things. I also know very well about Part 1 of the Land Compensation Act 1973—the compensation for physical factors where no land is taken, referred to by the noble Lord, Lord Haselhurst. The point here is that I had identified that the Department for Transport had something in train. I do understand that no compensation system can cover everything and no set of procedures in a large organisation can deal with every eventuality.

I am not sufficiently familiar with the process of how petitioners come to appear before the Select Committee. I do not know whether that happens after the point at which they have been in negotiation on compensation matters or beforehand in the prospect of something happening. Certainly with regard to phase 1 of HS2, I am not sure how much of the land acquisition and the acquisition of rights has actually taken place; I suspect that it is not a great deal and that a lot of design work is going on that needs to be sorted out before that can happen. The point I am getting at is that the Department for Transport seems to have admitted that it is doing something and I want to draw out the facts on that and find out what is happening, to provide some background to the reason why that was important.

I am grateful to the noble Lord, Lord Berkeley, and the noble Baroness, Lady Randerson, for their comments. I note also what the noble Lord, Lord Rosser, said about whether the validity of these things is appropriate or not. I turn now to the comments made by the Minister. I did wonder about the question of advance payments and I accept entirely her correction. However, I would say simply that there is an issue here. I am glad that the Government are looking at ways of improving the position and that they are committed to the land and property review, but I am not sure that I am encouraged by “very shortly” as a term of art and whether it is materially better than “soon”, “presently” or whatever other terminology is used. I am particularly interested in the point made by the Minister that there is no requirement to conclude an agreement before entry, or at least that is what I understood her to say.

I will say this: if you do not settle and get an advance compensation payment before entry, you will have someone who has had the use of their land removed, with all the disruption that that entails, but who does not have the money for restructuring or anything like that. In some cases, that may be harmless and inconsequential. After all, you do not earn much by depositing money in the bank these days. In other circumstances, however, I can see that it would be absolutely mission critical for the operation that is being compensated, so that needs to be looked at closely.

I welcome the opportunity of a meeting with the noble Baroness and Mr Stephenson. With that, although I may return to this matter later on in the progress of the Bill, I beg leave to withdraw the amendment.

Amendment 12 withdrawn.

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Debate on whether Schedule 23 should be agreed.

[The Earl of Lytton (CB) [V]]

My Lords, given the Minister’s earlier remarks, I am delighted to provide a vehicle for what I detect she thought might be some excitement, and I see that I have a little more than an hour to do so. With a bit of luck, it will not take that long, but here goes.

Schedule 23 to the Bill makes fundamental changes to the long-established procedures for dealing with party walls, works at the line of legal property boundary and adjacent excavations, all of which are covered by the Party Wall etc. Act 1996, which I took through this House. However, the Bill does so for HS2 phase 2a purposes only.

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[The Deputy Chairman of Committees (Baroness Henig) (Lab)]

There are no questions to the Minister, so perhaps the noble Earl, Lord Lytton, might want to comment briefly on what has been said.

[The Earl of Lytton (CB) [V]]

I am grateful to all noble Lords who have spoken in this debate. Perhaps I may deal with a few points raised by the noble Lord, Lord Berkeley. My understanding, having spoken to Shirley Waldron—who I mentioned earlier, and who was closely involved in Crossrail matters—is that Crossrail disapplied only Section 6 of the Party Wall etc. Act 1996; it did not disapply Sections 1 or 3, as the Bill seeks to do. She also told me in a phone conversation that the party wall matters had been completed so long ago that they could not possibly have been responsible for the current delays that have recently come to light. However, that might be only her view. I can confirm on good authority, because I checked today, that no one consulted the Royal Institution of Chartered Surveyors regarding the drafting of this Bill or, for that matter, the phase 1 Bill.

The noble Lord, Lord Snape, raised an interesting point about how many properties might be affected. It is difficult to know because the party wall Act provisions apply not only to party walls but to adjacent excavation and construction near to adjoining owners’ properties. Even with phase 1, in many instances the detailed design has not yet got to the point where an accurate quantification of all those affected in a densely urban area can be calculated. So I have to say that I just do not know. The noble Baroness, Lady Randerson, asked the Minister to report to the Committee. I am sure that there will be more to come out of this, and that point is noted.

The noble Lord, Lord Tunnicliffe, gave due praise to the operation of the party wall Act—of which I was not the architect; I was simply what is known in the trade as the parliamentary midwife of a private Bill. However, the provisions have been in existence in the metropolitan area of central London since the 1930s, and the principles of party walls have been with us since the year after the Great Fire. So in enacting legislation in 1996 that was going to apply to the whole of England and Wales, one was drawing on a cadre of very experienced specialists in central London. That experience has been rolled out across the country. It is a philosophical issue and a situation where all the provisions of the party wall Act hang together as a whole. The notification, the counternotification and all that follows, up to the conclusion of the dispute resolution procedure—the way in which it is appealed and the safeguards—are of a piece. They all interrelate. It is quite difficult to unpick bits of the Act without doing some serious mischief to the rest, and I think that that is what this Bill threatens to do.

High Speed Rail (West Midlands-Crewe) Bill

Earl of Lytton Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 9th November 2020 Grand Committee

Moved by

[The Earl of Lytton]

5: After Clause 58, insert the following new Clause—
“Compensation scheme for tenants
(1) The Secretary of State must by regulations make provision for a scheme to compensate tenants adversely affected by the scheduled works.(2) Regulations under this section may contain such supplementary, incidental, consequential or transitional provision as the Secretary of State considers necessary or expedient.(3) Regulations under this section must be made by statutory instrument.(4) A statutory instrument containing regulations under this section is subject to annulment in pursuance of resolutions of both Houses of Parliament.”Member’s explanatory statement
This is intended to require the Government to introduce regulations to ensure that tenants affected by the works are fairly compensated.

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[The Earl of Lytton (CB) [V]]

My Lords, we now move from natural landscapes and habitats to the man-made ones. Before I go any further, I declare my interest as an almost completely retired chartered surveyor, although I confess that it is a very long time since I dealt with anything in relation to compulsory acquisition. Provided that the Committee chair does not object, I propose to speak to Amendment 5, during which I will incorporate any comments I have in relation to Amendment 10, which covers the same ground to some extent. I will also speak to Amendment 13 before formally moving Amendment 5.

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[The Deputy Chairman of Committees (Baroness Barker) (LD)]

I have received no requests to speak after the Minister so I call the noble Earl, Lord Lytton.

[The Earl of Lytton (CB) [V]]

My Lords, I thank the Minister and all noble Lords who spoke on these amendments. I am particularly grateful to those who expressed some support for the principles behind them.

I will deal with some of the points in the Minister’s response. One of her first points was that she did not recognise coercion in this. I hope I did not accuse HS2 of that in precisely those terms, because clearly these are matters that have been presented to me by others; I do not have direct experience of dealing with compulsory purchase cases with HS2. However, my later Amendment 12 revolves around a copy of a letter I have received. I do not know whether we will get to that amendment this evening or whether time will be curtailed, but in so far as the Minister has not seen the letter—although it was sent to the Department for Transport back in June—I will make sure she gets a copy of it.

The Minister went on to say that tenants’ rights are complex and ones of balance. I absolutely agree. I assure her that I do not believe there is anything fundamentally wrong with the compensation code as such, it is just that certain things can slip through at the edges. I am concerned that the way this is being approached is being driven by other considerations. It is not about the compensation code as such but may be about the way it is administered. The Minister is therefore right about the legal position and the way this is set by the MHCLG in the compensation code.

The Minister touched on this question of losses. The difficulty one has when dealing with laypeople is that it is not always easy to demonstrate the losses that you have suffered; the burden of proof is on the claimant to make and substantiate a claim. The risk is that, however genuine one might feel the claim is, the view tends to run from Treasury circles and through all those which it funds that if you cannot prove the loss, you do not get compensation for it. There are potential issues there, because this is not about putting an extra burden on the public purse but, to a degree, about fairness and compassion in dealing with these things. The Minister touched on temporary possession; I will say only that it starts as temporary but in some cases it seems to have ended up being rather less than temporary. Perhaps that ought to be more straightforward.

Turning to what other noble Lords have said, I will try to be as brief as I can. The noble Lord, Lord Berkeley, referred to the question of adequacy of Treasury funding; that may be a driver behind this. He also referred to the fact that people get the impression that they are not being treated fairly. That is grit in the system—it causes friction and resistance for future schemes or indeed later stages of the HS2 project perhaps.

The noble Lord, Lord Haselhurst, has of course the great advantage of his involvement with the Select Committee. To pick up on his point about the amendment possibly being a big hammer to crack a nut, yes, it is, but it has done what I set out to do, which was to raise the issue and give it an airing. This is a probing amendment after all, so it is not in the form in which I would think of doing it. The Minister is quite right that, taken to its logical conclusion, this could be financially destabilising. That is not my intention; my intention is to get a discussion about it.

The noble Baroness, Lady Jones of Moulsecoomb, said that HS2 might not have had as good a business case and that there might be financial constraints. Yes—possibly. I was pleased to have at least the tacit support of the noble Lord, Lord Adonis, because he is a passionate supporter of HS2. I am not passionate one way or the other; I see this as a technical matter where we need to get processes that are streamlined and which do not cause friction, and we need fairness. I also noted the points made by the noble Lords, Lord Framlingham and Lord Tunnicliffe, and the noble Baroness, Lady Randerson. The noble Lord, Lord Tunnicliffe, made the point that a tenant’s tenure is not necessarily a guide to the compensation that might properly and objectively be due to somebody who had made a commitment with the prospect—perhaps not reflected in the length of the tenure they have—that they might be able to build a business and continue. That is something where the code possibly does not fully recognise what is going on.

I hope I have covered all the points raised by noble Lords. However, as I say, this was a series of probing amendments, therefore I beg leave to withdraw the amendment.

Amendment 5 withdrawn.