6240. CHAIRMAN: For five years.

  6241. MR LEWIS: Correct, so our amendment is not a wrecking amendment, and of course that is the last thing we want.

  6242. CHAIRMAN: I do not think anybody thought it was a wrecking amendment. All we wanted to do was to understand what it was.

  6243. MR LEWIS: Indeed. My Lords, as I did in the Commons, I would like to make some submissions about the amendment to the Bill which has been put forward today. I bring little that is new in terms of legal submission that was not heard last time, and I have detected from the transcript that you yourselves may have read some of the Commons proceedings and, if you have read my submissions in the Commons in respect of this Petitioner, then forgive me for repeating most of them today.

  6244. CHAIRMAN: It is much better to do so because we do not necessarily read all the Commons transcripts.

  6245. MR LEWIS: Indeed. What I would like to do is to supplement what Mr Anderson has said by demonstrating that what Canary Wharf Group are asking for in their proposed amendment is by no means unusual. In fact, what they are asking the Committee to do is to recast clause 6 in terms that are the norm for legislation that authorises public transport and other infrastructure projects.

  6246. I started in the Commons by citing the Great Western Railway as an example of how quickly a great infrastructure project like Crossrail could be built. The Great Western Railway was authorised by an Act of Parliament in 1835. There was a time-limit on the exercise of the powers of compulsory acquisition under the Bill and it was two years, with no powers to extend. Never mind that; it took Brunel less than three years from Royal Assent to complete the line to Maidenhead and another three to finish the job. The Act gave the Great Western Railway seven years to finish the construction of the railway. The Crossrail Bill gives deemed planning permission for the works if they are started within ten years and, even then, there is a power to extend that time-limit, but you will be glad to know that we are not here talking about extensions to the planning permission and we are only involved here on, as you know, the compulsory purchase. It would be wrong of me to suggest that things are the same now as they were in Victorian times, so I will move on to more modern examples to illustrate what the normal practice is nowadays.

  6247. When I undertook the exciting exercise of looking through every railway and tram Act and TWA Order since 1980 when I was preparing for the Commons, I found 24 promoted by British Rail or Network Rail or its predecessors, 15 by London Transport, eight for the London Docklands Railway, 15 for the Greater Manchester Tram, seven for the Midland Metro, three for the Channel Tunnel Rail Link and 16 others, making a total of 84. All of them contained powers of compulsory acquisition, but none of them allowed powers of compulsory acquisition to be exercised later than five years after enactment, and certainly none of them allowed the Secretary of State to make an order extending the period allowed. They did not of course all authorise projects of such scale as Crossrail, but they did include some substantial projects that are comparable, such as the whole of the DLR, the Jubilee Line Extension, Thameslink 2000, the whole of the Manchester Tram system, and the West Coast Main Line upgrade.

  6248. I deliberately did not mention hybrid Acts and there you will find the precedents for the extendable period, and there are only two. The first was the Channel Tunnel Act and the second was the Channel Tunnel Rail Link Act. They both contained the five-year period, extendable by order of the Secretary of State and, as far as I am aware, the powers to extend were not exercised, so one asks why they were needed. Other hybrid Acts, such as the Cardiff Bay Barrage, the QE2 Bridge and the Severn Bridges, did not allow an extension to the period.

  6249. In response to these points last time and again today, Ms Lieven mentioned that ten years is the normal period allowed for railway projects authorised by Acts of the Scottish Parliament. She is right, but, with all due respect, I would submit that it is rather like clutching at straws to be reciting a limited number of precedents from a different legislature in comparison with the list to which I have alluded.

  6250. I will now turn to the Department's own published position on these matters. I have looked at the Department's own guide to the Transport & Works Act procedures of June 2006, and I would turn your attention, my Lord, please to pages 4 and 5 of the documents which I have just handed in for reference, and paragraphs 1.39 to 1.42 deal with land acquisition and blight for Transport & Works Act Order applications. In paragraph 1.39, we see the passage that reads, "The exercise of compulsory purchase powers will be time-limited (normally to five years for transport schemes; any longer period would require exceptional justification in view of the blight and uncertainty that this could cause)". That is exactly the point that Canary Wharf put forward to you this morning.

  6251. This, in turn, is reinforced by the Department's own model clauses for Transport & Works Act Orders. That is SI 2006/1954, and I would ask you to look at page 7 of my bundle. If you look at Article 30, this provides for the five-year time-limit I have just mentioned, and I confirm that there is no model clause for time extensions.[8] These model clauses are of course intended to be advisory only and applicants for Transport & Works Act Orders do not necessarily have to follow them when they put their Orders in in the first place, but the Department makes it clear in its guidance, to which I have already referred, that any deviation would need to be justified by the applicant, and I refer you back to pages 2 and 3 for that reference. As I have already mentioned, I know of no case so far where the period for compulsory acquisition for a Transport & Works Act Order has been any longer than five years.

  6252. Next, I briefly turn to national legislation. Where a public authority wishes to exercise compulsory purchase powers, for example, where a local authority wishes to assist redevelopment or housing improvement or, perhaps more pertinently, where a highway authority wishes to construct a new highway, then they have to follow certain procedures laid down inter alia by the Compulsory Purchase Act 1965 and the Acquisition of Land Act 1981. Section 4 of the 1965 Act, and again you have a reference to that, page 8, and I apologise, I took this from the Encyclopedia of Compulsory Purchase and the headnote on that page is, for some reason, wrong, so I crossed it out, but it says, "The powers of the acquiring authority for the compulsory purchase of the land shall not be exercised after the expiration of three years from the date on which the compulsory purchase order becomes operative".[9] Again, there is no power to extend and, note, it is three years. We are not in dispute, by the way, about the actual period of time that the Bill contains, the five-year period, as set against this three-year period, I should make that clear, it is only the extension we are in dispute about.

  6253. In response to my submissions to the Commons, and this morning we have heard a similar response today, Ms Lieven mentioned that the procedure for extending the time-limits, as set out in clause 6(9) of the Bill, provides adequate safeguards. Now, it is quite right to say that the special parliamentary procedure is rigorous. SPP orders do not come around that often and I have acted for the Promoters of the only two contested ones in the last decade. It is true that Parliament can throw them out, which again is something I have learnt from bitter experience, but, to be honest, this is a diversion from our main concern. The SPP process itself will involve delay and of course, whilst there is a chance that the order might not be approved by the joint committee that would be required to consider the order if there were any Petitioners, there is also the real possibility that it might. Even if the Committee rejected the order on principle, there is always the prospect that the Government could seek to promote a confirming Bill which would have the effect of overriding the decision of the joint committee. This happened in the case of the Okehampton bypass in the mid-1980s. Confirming Bills generally proceed straight to report and third reading. There is no second reading or committee stage and no opportunity for further objection by the individuals most affected. I have taken references there from the House of Commons fact sheet L9 which you will find at page 9 of my documents.[10]

  6254. I have one more reference to precedent, if I may, and it is perhaps the most important one. As you know, this is not the first Crossrail Bill to come before this House. I beg your pardon, it is the first Crossrail Bill to come before this House. I am sorry, this is a throwback to my speech in the Commons. The first Crossrail Bill did not of course make it to this House, so it is not the first Crossrail Bill to come before Parliament, is what I should have said. The private Bill promoted by British Rail and London Regional Transport, which was thrown out in the early 1990s in the House of Commons, contained a time-limit of five years and there was no power to extend. The current scheme is not so dissimilar from the old one so as to bring it into some exceptional new category, we would submit, and all we are asking you to do is to alter the Bill so that it is in line with nearly every recent precedent. We would ask you to support these conclusions and make the amendments requested.

  6255. My Lord, before I sit down, I would just like to respond to one of the points that Ms Lieven made in opening which was picked up by the Committee in terms of what could go wrong, why the Promoters might need an extension. I noted that, in opening, Ms Lieven said that there might be one of a large number of reasons why an extension could be needed. She mentioned delivery agreements needing to be put in place, the procurement process having to be gone through and the construction contracts having to be let. My Lord, I do not see how that is any different in relation to the Crossrail scheme from any of the other projects which I have mentioned, particularly the large-scale ones, like the Jubilee Line Extension. Those large-scale infrastructure projects are just as susceptible to that sort of disturbance, yet the five-year period is what has generally been accepted as being a fair and reasonable one in every case, except for those two hybrid Bills which were mentioned. My Lord, I do not think there is anything further I wish to say in submission, unless you have any questions.

  6256. CHAIRMAN: I think there are questions that I would like to ask you, Mr Lewis. I am looking at Clause 6 subsections (7), (8) and (9) of the Bill. This is the power to extend the period of five years once and for no more than five years and subject to SPP. Your amendment would leave that in so that it would relate to everybody else on the line of Crossrail except for Canary Wharf. Is that right?

  6257. MR LEWIS: That is true. That is correct.

  6258. CHAIRMAN: What is the justification for that other than special pleading, if I may say so?

  6259. MR LEWIS: I will start off with a general observation, of course that I am here representing Canary Wharf Group, I am not representing any other petitioner who may have an issue with this particular provision of the Bill. If another major landowner—and this was alluded to earlier—did have a problem with those particular provisions, then of course they could have petitioned and appeared before your Lordships.

9   Committee Ref: A30, Clive M. Brand, Encyclopedia of Compulsory Purchase and Compensation (Sweet & Maxwell Ltd 1968) (SCN-20080319-004) Back

10   Committee Ref: A30, House of Commons Factsheet L9-Order Confirmation Bills and Special Procedure Orders (SCN-20080319-004) Back