High Speed Rail (Crewe - Manchester) Bill — Delegated Powers Memorandum: Memorandum by the Department for Transport to the Delegated Powers and Regulatory Reform Committee

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High Speed Rail (Crewe – Manchester) Bill
Memorandum by the Department for Transport to the Delegated Powers
and Regulatory Reform Committee

Introduction
1. This Memorandum identifies provisions for delegated legislation and
other powers in the High Speed Rail ( Crewe – Manchester) Bill (“The
Bill”). It describes the Bill in outline and deals in detail with the delegated
powers it confers.
2. The Bill authorises, or in some cases confers powers to authorise, the
works required to construct part of the next phase (referred to as “Phase
2b (Crewe – Manchester)” of the national high speed rail network called
“High Speed 2”. Phase 2b (Crewe - Manchester) will involve the
construction of a high speed rail line between Crewe in Cheshire and
Manchester Piccadilly Station, and a rail line between Hoo Green in
Cheshire and a junction with the West Coast Main Line at Bamfurlong.
The southern end of the route is mostly rural , with a depot north of
Crewe. The line will include works at two stations, Manchester Airport
and Manchester Piccadilly. The works also include a depot at
Annandale, in Dumfries and Galloway. The Bill contains all of the
necessary powers to build and operate the line.
3. The Bill is a hybrid Bill becau se it contains provisions which affect the
interests of particular individuals, as well as containing provisions of a
more general public nature. It is a public Bill promoted by the
Government which is treated like a Private Bill for part of its passage
through Parliament, in addition to being scrutinised in the same way as
any other public Bill.
4. This means that individuals, groups or organisations affected by aspects
of the Bill have an opportunity to petition against the Bill and to be heard
before a Select Committee in either or both Houses.

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Summary of the Bill’s provisions
5. This Bill comprises 66 clauses and 33 schedules. The main provisions
of the Bill provide for the following:
a. The authorisation of work necessary for the construction and
maintenance of Phase 2b (Crewe-Manchester) and all ancillary
works.
b. Powers to carry out these works, which are conferred upon the
“nominated undertaker” . The Secretary of State is given the
power to nominate that undert aker. In promoting this Bill, the
Department is being assisted by High Speed Two (HS2) Limited
(“HS2 Ltd”), a company whose only member is the Secretary of
State for Transport. The Secretary of State has nominated HS2
Ltd as the nominated undertaker in respect of delivery of Phases
One and 2a of High Speed 2, the high speed rail line s between
London and the West Midlands, and the West Midlands to Crewe.
c. The acquisition of land (or airspace or subsoil) necessary for the
authorised works to be carried out. The Secretary of State is
granted compulsory acquisition powers. The compulsory
acquisition po wers are intended to expire eight years from the
date of Royal Assent. The Bill en ables the Secretary of State to
make an order once extending this period, but not by more than
two years.
d. The acquisition of limited rights in land required for works
necessary for the construction of Phase 2b (Crewe-Manchester)
to be carried out. These p rovisions are included so that, for
example, where access over land or possession of land is needed
only temporarily for construction works, the Secretary of State
may seek to obtain limited rights over land, rather than having to
compulsorily acquire the freehold interest in the land. This would
have the effect of reducing the amount of land that needs to be
compulsorily acquired for construction works to take place.

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e. Planning and the granting of planning permission for the
authorised works. It also seeks to establish how local planning
authorities may have control over local effects.
f. The deregulation of works on Phase 2b (Crewe - Manchester).
This refers to the disapplication of certain provisions of other Acts
so that work on Phase 2b (Crewe - Manchester) may take place
without further legal constraints after enactment of this Bill. These
disapplications are to apply only in relation to works for Phase 2b
(Crewe-Manchester).
6. The provisions in this Bill and the framework which it is seeking to
establish are similar in many respects to those of the High Speed Rail
(London – West Midlands) Act 2017 (“Phase One Act”), and the High
Speed Rail (West Midlands – Crewe) Act 2021 ( “Phase 2a Act ”). The
Phase One and Phase 2a Acts were based on the Channel Tunnel Rail
Link Act 1996 and the Crossrail Act 2008. These are the most recent
hybrid Bills to be introduced for railway projects. However, deviations
from previous Bills have been included on the basis of changes to wider
legislation, and to reflect the inclusion of land in Scotland in the Bill.

Description and analysis of delegated powers
7. The following section of the Memorandum describes the powers being
conferred by the Bill, explains both their purpose and why the matter is
to be left to delegated legislation rather than included in the Bill, and
specifies what Parliamentary scrutiny procedure (if any) is provided for
each power. It deals with the provisions in the order in which they appear
in the Bill.

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Clause 3 and Schedule 5 paragraph 15 - Designation of trunk or special
roads
Power conferred on: Secretary of State for Environment, Food and Rural Affairs
and Secretary of State for Transport; and Secretary of State for Transport in
consultation with the Scottish Transport Secretary in relation to works in
Scotland
Power exercisable by: Direction and Regulations made by Statutory Instrument
Parliamentary scrutiny procedure: No Parliamentary procedure
Purpose of the power
8. Clause 3, together with Schedule 5, confers powers on the nominated
undertaker to stop up and interfere with highways. The power may only
be used where the nominated undertaker has applied to the Secretary
of State for Environment, Food and Rural Affairs and Secretary of State
acting jointly for confirmation of the stopping up etc and under paragraph
3(9) the Secretaries of State may direct another person to consider that
application. Paragraph 15 of Schedule 5 governs the designation of trunk
and special roads, and sub-paragraph (2) contains an regulation-making
power to enable the Secretary of State to provide that a highway is to
become a trunk road or special road (or both) from the date specified in
the order or else in an instrument after the making of the order.
9. If making these regulations in relation to works in Scotland, the Secretary
of State would consult with the Scottish Government.
Why the matter that is the subject of the power has been left to delegated
legislation
10. The purpose of this power is to enable suitable provision to be m ade if
part of a trunk road network or a special road is extended or realigned
as a result of Phase 2b (Crewe - Manchester). This power is needed
because this level of detailed information will not be available before
Royal Assent and so the Secretary of State needs this flexibility so that
the integrity of the highway network is maintained

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Choice of Parliamentary scrutiny procedure
11. As the trunk road network within England and Scotland is within the
remit of the National Highways and Transport Scotland respectively, it is
not considered that Parliamentary scrutiny is required for any decisions
to alter aspects of their networks.

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Clause 5(4) – Acquisition of easements and other rights over land
Power conferred on: Secretary of State
Power exercisable by: order not made by statutory instrument
Parliamentary scrutiny procedure: No Parliamentary procedure
Purpose of the Power
12. Under clause 4(1) of the Bill, the Secretary of State may acquire land
compulsorily within the Act limits as required for the Phase 2b (Crewe –
Manchester) works. Clause 5(1) extends the right in 4(1) to acquire
easements or other rights over land. That right to also acquire easement
or other rights can also be for the benefit of a person other than the
Secretary of State. Clause 5(4) provides that the Secretary of State may,
by order, provide that the acquisition of easements and other rights be
for such person specified in the Order.
Why the matter that is the subject of the power has been left to delegated
legislation
13. There is a need for maximum flexibility given that it is not known whether
any easements or other rights need to be transferred for the benefit of
another person. This will only become apparent when there is a need to
acquire land and, if necessary, any easements over that land.
Choice of Parliamentary scrutiny procedure
14. It is not considered necessary for Parliament to have scrutiny over this
provision. Such acquisition will be subject to the protections afforded by
the Bill in relation to the acquisition of property compulsorily and
accordingly it is not felt further scrutiny is required.

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Clause 9 – Power to extend the period for the exercise of the Compulsory
Purchase Powers
Power conferred on: Secretary of State
Power exercisable by: Order
Parliamentary scrutiny procedure: special Parliamentary procedure.
Purpose of the power
15. The Secretary of State is permitted to acquire the land required for
Phase 2b (Crewe-Manchester) by compulsory purchase (clause 4(1)).
Clause 9(1) provides that the period for exercising the powers in clause
4(1) will end 8 years after the Bill receives Royal Assent. Clause 9(2)
allows the Secretary of State by order to extend this period once, and by
not more than 2 additional years, in relation to specified land. F urther
detail on the right to require the acquisition of land where the time limit
has been extended is contained in Schedule 13.
16. Similar provisions were contained within the Crossrail Act 2008. These
were originally unlimited, in both time and usage, but were amended at
the request of the House of Commons Select Committee during the
passage of the Phase One Act. In the Phase One and Phase 2a Acts
the powers are exercisable by the Secretary of State once within 5 years
of the Bill receiving Royal Assent extending the period up to a maximum
of 5 years (so the maximum period for exercising powers is10 years after
Royal Assent) . The provisions within this Bill reflect the principle of those
amendments, and the same maximum period of 10 years after Ro yal
Assent for exercising the powers.
Why the matter that is the subject of the power has been left to delegated
legislation
17. The order making power will allow appropriate flexibility for the Secretary
of State in relation to the compulsory acquisition of land needed for the
construction of the Phase 2b (Crewe-Manchester) route. The
construction and delivery of the route may be u nexpectedly hampered,
delaying the need for land. To avoid taking powers over land sooner

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than the land is required, this power allows compulsory purchase powers
provided by clause 4(1) to be exercised after the initial 8 year period.
18. The period for the exercise of the compulsory purchase powers may only
be extended once by the Secretary of State.
Choice of parliamentary scrutiny procedure
19. The power to extend the 8 year period is exercised by an order which is
subject to “special parliamentary procedure”. This procedure was
chosen because of the protection it will provide to those affected by the
extension of the time limit by which the compulsory purchase power is
to be exercised.
20. The special parliamentary procedure was established by the Statutory
Orders (Special Procedure) Act 1945 (as amended in 1965). The
procedure is particularly relevant in cases such as this where land is
subject to compulsory acquisition and where there is a need for the
extension of such powers to be subject to a high level of scrutiny.
21. A Minister must lay a special procedure order before Parliament with a
certificate stating that the prescribed preliminary proceedings have been
complied with. Objectors (such as those whose land is affected) then
have 2 8 days to deposit petitions against the order or in favour of
amendments. The Chairman of Ways and Means and the Senior Deputy
Speaker in the House of Lords determine any questions of standing
before reporting to both Houses whether any petitions remain aga inst
the order. Within 28 days of this report, any Member of either House may
move that the order be annulled or that petitions against are not to be
referred to a Joint Committee.
22. Clause 9 of the Bill modifies the requirements of the Statutory Orders
(Special Procedure) Act 1945, to provide that an order under Clause 9
can be made without firstly complying with the requirements of Schedule
1 to the 1945 Act, which include s the service of notices and the
requirement to hold a public inquiry where objection s to the order are
received, or to confirm that no such inquiry is required given the special
circumstances of the case. The requirements for notices to be issued to

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all parties affected by the order remain and they continue to have the
right to object to the order itself. Therefore, although a public inquiry is
not a potential option for an order under clause 9, there will be sufficient
opportunity for affected parties to object to the order.
23. If the order is annulled, there can be no further proceedings on it
although a fresh order may later be introduced. If the order is not
annulled and no further petitions against the order, or seeking
amendments to it, remain, the order comes into force. Otherwise, the
remaining petitions are referred to a Joint Commit tee, at which point
petitioners are given the opportunity to prove the merits of their case.
The Committee may then approve the order, with or without
amendments, or decline to approve it.
24. If the order is reported from the Committee without amendment, or with
amendments which have been accepted by the Minister, it comes into
force. If the order is reported with amendments that are not accepted, or
is not approved by the Committee, it may be confirmed by the
introduction of a public bill.
25. Special procedure orders are suitable for use in the type of situation in
clause 9 (i.e. the extension of time for the exercise of compulsory
purchase powers), as they present an opportunity for affected individuals
to make representations and for active scrutiny by Parliament. The
Department suggests that the level of scrutiny provided by special
parliamentary procedure is therefore appropriate.

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Clause 10, Schedule 14 – Power to direct re extinction of private rights
Power conferred on: Secretary of State
Power exercisable by: Direction
Parliamentary scrutiny procedure: No Parliamentary procedure.
Purpose of the power
26. Schedule 14 provides for the extinction of private rights over land within
the Act limits for Phase 2b (Crewe – Manchester) purposes. Clause 3(1)
provides that the Secretary of State may direct that certain private rights
are not extinguished to the extent set out in a direction. Private rights
include easements, rights of way and other rights and liberties applying
to land.
Why the matter that is the subject of the power has been left to delegated
legislation
27. The ability for the Secretary of State to make a direction restricting the
ambit of the general extinction of rights in certain cases will avoid
unintended consequences from such extinction. Until the extinction of
private rights is necessary a nd imminent it will not be possible to
ascertain whether or not a direction is appropriate and therefore it is
more suitable for a delegated power.
Choice of parliamentary scrutiny procedure
28. As this is a direction making power relating to the preservation of rights
or obligations over specific land, to avoid unintended negative impacts,
it is felt that, to maintain maximum flexibility, Parliament does not need
to have oversight of its use.

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Clause 18 (deemed planning permission) and Schedule 17 Paragraph 13
– Power to specify qualifying authority
Power conferred on: Secretary of State
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary scrutiny procedure: No procedure for 13(1) and Negative
resolution procedure for others
Purpose of the power
29. Clause 18 makes provision for planning permission to be deemed to be
granted under Part 3 of the Town and Country Planning Act 1990 for the
purpose of development authorised by this Bill. Clause 18(3) introduces
Schedule 1 7 which provides for the conditions of dee med planning
permission. Paragraph 13(1) of Schedule 17 requires the Secretary of
State, by means of regulations, to specify which local authorities will, for
the purposes of this Schedule, be considered to be ‘qualifying
authorities’. It is intended that these ‘qualifying authorities’ will be local
planning authorities which have given the Secretary of State
undertakings regarding the handling of requests for approval under the
Schedule made by the nominated undertaker. There is no parliamentary
procedure for these Regulations.
30. Paragraph 13(3) and (4) contain further delegated powers regarding the
specification of qualifying authorities. Paragraph 13(3) allows the
Secretary of State to determine by regulations that a body is no longe r
to be considered a qualifying authority, while paragraph 13(4) provides
that the Secretary of State may determine by regulations that a body is
to be a qualifying authority for the purposes of this Schedule. Th ese
regulation making powers are subject to consultation with the nominated
undertaker and the authority in question (paragraph 13(6)) . The
regulation making powers under paragraph 13(3) and (4) are subject to
the negative resolution procedure.
31. These powers may be used if, for example, following th e completion of
the major works, an authority has requested that its status be changed
as it considers that the additional responsibilities (as well as powers)

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arising from being designated a qualifying authority are no longer cost
effective. They may also be exercised if a qualifying authority has
persistently failed to comply with its obligations under the undertakings
given by it referred to above. These powers were also contained in the
legislation for the Phase One and Phase 2a Acts, Crossrail and the
Channel Tunnel Rail Link.
32. Paragraph 14 of Schedule 17 allows regulations made under paragraph
13 to make transitional provision, say in relation to how outstanding
requests for approval under Schedule 17 are to be dealt with. To allow
the Secretary of State to give some reassurance to anybody that may be
appointed as nominated undertaker, paragraph 14(3) enables the
Secretary of State to fetter his discretion, when entering into a project
construction agreement with the nominated undertaker, about how such
transitional arrangements would work.
Why the matter that is subject of the power has been left to delegated
legislation
33. The regulation making power in relation to paragraph 13(1 ) is only
considered to be a delegated power in the sense that it is an obligation
to list those planning authorities which had provided undertakings to the
Secretary of State with respect to the handling of planning matters which
he considered satisfactory and had not been sub sequently released
from its undertakings.
34. The regulation making power s under paragraph 13(3) and (4) will
provide the Secretary of State with additional flexibility to allow changes
to the designation of qualifying authorities after the Parliamentary
scrutiny process by the Select Committee in the House of Lords had
been completed.
Choice of Parliamentary scrutiny procedure
35. The regulations made under paragraph 13(1) are a mechanism of putting
matters on the record following Parliamentary scrutiny. In these
circumstances the Department considers that no further scrutiny is
needed.

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36. Regulations made under paragraph 13(3) or (4) would involve a change
of designation of a qualifying authority after Parliamentary scrutiny had
been completed. Such regulations are therefore subject to the negative
resolution procedure so that there is an appropriate degree of
Parliamentary scrutiny.

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Clause 18 (deemed planning permission) and Schedule 17 Paragraph
18(6) – Conditions of Deemed Planning Permission
Power conferred on: Secretary of State
Power exercisable by: Regulations
Parliamentary Scrutiny Procedure: Negative resolution procedure
Purpose of the power
37. Paragraph 18 of Schedule 17 provides for planning authorities to consult
relevant statutory bodies in connection with applications for approval of
plans of development authorised by the Bill. The bodies are consulted in
relation to applications which affect specified matters for which they have
a statutory responsibility. These include historic battlefields , parks and
gardens and listed buildings. Paragraph18(6) allows the Secretary of
State to make regulations updating the reference to battlefields, parks
and gardens, and to listed buildings to reflect possible changes in the
way that battlefields, parks and gardens are identified as being of historic
importance or the way that listed buildings are classified.

Why the matter that is subject of the power has been left to delegated
legislation
38. The Secretary of State will have power to amend primary legislat ion (a
Henry VIII power). However, the purpose of these regulations is not to
make a substantive change in the matters on which the Bill requires
consultation but to reflect changes in legislation or policy (both in
England and Scotland) in the way that features of heritage interest may
be designated in the future. As we cannot anticipate any such changes
in the Bill itself, delegated legislation is appropriate.
Choice of Parliamentary scrutiny procedure
39. Although Schedule 17, paragraph 18(6) is a Henry VIII power, it is for a
very limited purpose and limited in scope to the Bill. It will be exercised
only in the light of other legislative or policy changes which justifies the
inclusion of this type of power. It is therefore considered that the negative
resolution procedure provides adequate parliamentary scrutiny.

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Clause 18 (deemed planning permission) and Schedule 17 Part 3 – Fees
relating to requests for planning approvals.
Power conferred on: Secretary of State for Transport and Secretary of State for
Levelling Up, Housing and Communities, or the Secretary of State for Transport
in consultation with the Scottish Transport Secretary in relation to works in
Scotland.
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary scrutiny procedure: Negative resolution procedure
Purpose of the power
40. Part 3 of Schedule 17 contains supplementary provisions regarding the
approvals process for the planning regime for Phase 2b (Crewe-
Manchester) works. Within this are contained a number of delegated
powers which can be exercised by the “appropriate Ministers” who, for
the purposes of this Schedule, are the Secretary of State for Transport
and the Secretary of State for Levelling Up, Housing and Communities ,
acting jointly.
41. Paragraph 17 of Schedule 17 enables the appropriate Ministers to make
regulations regarding the fees for r equests for approval made by the
nominated undertaker to a planning authority. Sub-paragraph (2) details
what these regulations may provide for. As was the approach with Phase
One, Phase 2a and Crossrail , it is considered appropriate for the
appropriate Ministers to be able to create a bespoke set of regulations
regarding fees.
42. Paragraph 24(6) of Schedule 17 enables the appropriate Ministers to
make regulations regarding the extension of the appropriate period for
appeals in connection with the payment of fees by means of cheque.
43. If making these regulations in relation to works in Scotland, the Secretary
of State would consult with the Scottish Government.
Why the matter the subject of the power has been left to delegated
legislation

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44. The regula tion making powers allow the appropriate Ministers the
necessary flexibility to provide a fees structure for planning approvals for
the Phase 2b (Crewe - Manchester) works. This is necessary because
the nature of the requests for approval will differ from those under the
normal planning application regime being limited to requests for approval
of certain specific operations or works set out in Part 1 of Schedule 17.
45. The regulation making power unde r paragraph 24(6) ) of Schedule 17
allow an extension of the appropriate period for appeals for payment by
way of cheque so as to allow for flexibility when considering how
payments are to be made and to enable a regulatory framework to be
put in place which deals with the issue in an appropriate manner.
Choice of Parliamentary scrutiny procedure
46. These regulations are subject to negative resolution procedure, (by
virtue of paragraph 29(3) of the Schedule) which is considered to provide
the appropriate level of scrutiny for regulations having financial
implications for the nominated undertaker and local authorities

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Clause 18 (deemed planning permission) and Schedule 17 paragraph 20
– Directions to restrict a planning authority’s powers in relation to a
request for approval under Part 1
Power conferred on: Secretary of State for Transport and Secretary of State for
Levelling Up, Housing and Communities; or the Secretary of State for Transport
in consultation with the Scottish Transport Secretary in relation to works in
Scotland
Power exercisable by: Directions, not made by Statutory Instrument
Parliamentary scrutiny procedure: Not subject to Parliamentary procedure
Purpose of the power
47. Paragraph 20 of Schedule 17 enables the appropriate Ministers, by
direction, to restrict the powers that a local authority has with regard to
giving approvals under this Schedule. Such directions may relate to a
specific approval or to approvals of a specific description, may be over
a specific period or without a time limit, and may cancel or vary specific
requests.
48. This is based on provisions contained within the Phase One and Phase
2a Acts, which in turn reflec t provisions contained within the Crossrail
Act 2008. The use of these provisions in practice is generally coupled
with the possible exercise of powers by the appropriate Ministers to “call
in” a request for approval.
49. If these powers are made use of in re lation to works in Scotland, the
Secretary of State will consult with the Scottish Government.
Why the matter that is the subject of the power has been left to delegated
legislation
50. The direction making power has been provided to allow the appropriate
Ministers the necessary level of flexibility for planning matters occurring
after Royal Assent. In any event, the direction making powers are
essentially to allow for the administration of the planning approval
process and it would not be appropriate for this type of detail to appear
on the face of the legislation.

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Choice of Parliamentary scrutiny procedure
51. It is not considered necessary for Parliament to have scrutiny over the
making of these directions. Under the Bill, the appropriate Ministers have
the authority to determine any appeals relating to a request for approval,
and as such Parliament will therefore have accepted (if the Bill is enacted
in that form) that they have a supervisory role on such matters.

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Clause 18 (deemed planning permission) and Schedule 17 paragraph 21
– Compulsory reference of requests for approval to the appropriate
Ministers
Power conferred on: Secretary of State for Transport and Secretary of State for
Levelling Up, Communities and Local Government ; or the Secretary of State
for Transport in consultation with the Scottish Transport Secretary in relation to
works in Scotland.
Power exercisable by: Directions not made by Statutory Instrument
Parliamentary scrutiny procedure: Not subject to Parliamentary procedure
Purpose of the power
52. Paragraph 21 of Schedule 17 enables the appropriate Ministers to “call
in” a request for approval, that is , direct that a planning authority is
required to refer any request for approval under Part 1 of the Schedule
to them. These directions can relate to a specific request or to a specific
type of request and can cancel or vary specific requests.
53. In certain circumstances, it may be considered more appropriate that
decisions on planning matters are determined at a ministerial, rather
than planning authority, level. In such cases, these powers will be
required to provide flexibility to enable the appropriate Ministers to make
these decisions. They reflect similar powers contained within the Phase
One and Phase 2a Acts, Crossrail Act 2008 and the Channel Tunnel Rail
Link Act 1996.
54. If these powers are made use of in relation to works in Scotland, the
Secretary of State will consult with the Scottish Ministers.
Why the matter the subject of the power has been left to delegated
legislation
55. The direction making power has been provided to allow the appropriate
Ministers the necessary level of flexibility for planning matters occurring
after Royal Assent. In any event, the direction making powers are
essentially to allow for the administration of the planning approval
process and it would not be appropriate for this type of detail to appear
on the face of the legislation.

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Choice of Parliamentary scrutiny procedure
56. No Parliamentary scrutiny is considered necessary for the exercise of
these powers. The appropriate Ministers will have been granted powers
under the Bill (if it is enacted in its present form) to determine any
appeals relating to a request for approval. Therefore, Parliament will
have accepted that they are the appropriate authority to make the
decisions in these instances. Furthermore, there is recourse to the
Courts through judicial review for questioning a determination by the
appropriate Ministers in exercise of these powers within six weeks of a
determination being given.

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Clause 18 (deemed planning permission) and Schedule 17 paragraphs 24
to 27 – Powers relating to modification of the appeals procedure
Power conferred on: Secretary of State for Transport and Secretary of State for
Levelling Up, Housing and Communities; or the Secretary of State for Transport
in consultation with the Scottish Transport Secretary in relation to works in
Scotland.
Power exercisable by: Directions (not made by Statutory Instrument) and
regulations (made by Statutory Instrument)
Parliamentary scrutiny procedure: Directions are not subject to Parliamentary
scrutiny and regulations are subject to the negative resolution procedure.
Purpose of the power
57. Paragraphs 24 to 27 of Schedule 17 contain provisions regarding the
appeals procedure for planning approvals. The power to decide appeals
is vested in the appropriate Ministers (defined in paragraph 30 of
Schedule 17) . However, under paragraph 2 5(1), unless otherwise
directed, these functions are to be exercised by an appointed person
(expected to be from the Planning Inspectorate).
58. This power to direct that the appropriate Minsters themselves should
decide an appeal is required as there may be instances where it is
necessary for the appropriate Ministers to take the decision after
considering the appointed person’s report. There is further power in
paragraph 25 to revoke a direction or substitute an appointed person.
59. Under paragraph 2 7(1), appe als are to be decided by written
representations unless the person deciding the appeal directs otherwise.
This is necessary in order to cover a case where the person determining
the appeal thinks an oral hearing is necessary in a particular case.
60. If these powers are made use of in relation to works in Scotland, the
Secretary of State will consult with the Scottish Government.
61. Paragraph 24(6) and 24(10), and paragraph 27(2) of Schedule 17 give
the appropriate Ministers the power to make regulations to prescribe the
form required for a notice of appeal by a nominated undertaker
aggrieved by a decision of the local authority on a request for approval

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under Part 1, and the power to make regulations regarding the
procedures for the appeals process for the planning regime respectively.
This includes the setting of a time limit for making representations and
enabling the person deciding the appeal to proceed where no
representations are received within the specified time.
Why the matter that is the subject of the power has been left to delegated
legislation
62. The power to make directions under paragraphs 2 4 and 2 7 are
principally administrative in nature and depend on the facts of individual
cases. It allows flexibility to the appropriate Ministers to make directions
as required.
63. The regulation making powers set out in paragraphs 24(1) and 24(10),
and 27(2) allow the appropriate Ministers to have the necessary flexibility
to set out the appeal process.
Choice of Parliamentary scrutiny procedure
64. The direction making power is essentially administrative in nature and
so it is not considered necessary for there to be any additional
Parliamentary scrutiny on the exercise of this power.
65. Regulations under paragraphs 2 4(1) and 24(10) and 27 are subject t o
the negative resolution procedure. This is considered to be the
appropriate level of Parliamentary scrutiny for regulations setting out the
procedural rules which are to apply to appeals on planning matters under
Schedule 17

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Clause 19 – Power to extend the time limit of deemed planning permission
Power conferred on: Secretary of State
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary scrutiny procedure: Negative resolution procedure
Purpose of the power
66. Under Clause 18, planning permission is deemed to be given for works
authorised by the Bill. Clause 19(1) places a condition on this which is
that where the work comprises the construction of a scheduled work it
must be begun within 10 years following Royal Assent. Clause 19(2)
confers a power on the Secretary of State to extend th e period of
deemed planning permission in relation to specific development.
67. It is expected that all of the land required for construction will be acquired
within a maximum of 10 years after Royal Assent.
Why the matter that is the subject of the power has been left to delegated
legislation
68. The regulation making powers allow flexibility to the Secretary of State
in relation to the construction and delivery of Phase 2b (Crewe-
Manchester), which is a large and complex project. Particular scheduled
works may begin their construction sometime after th e land itself has
been acquired. The power to extend the period mentioned in clause
19(2) is a contingency in case the timing of particular works becomes
delayed.
Choice of Parliamentary scrutiny procedure
69. It is conside red appropriate that regulations made using this power
should be subject to negative resolution procedure, as this should
provide a sufficient level of Parliamentary scrutiny in whatever
circumstances may require the making of such regulations at the time.

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Clause 20 – Power to disapply deemed planning permission
Power conferred on: Secretary of State
Power exercisable by: regulations made by Statutory Instrument
Parliamentary scrutiny procedure: laid before Parliament after being made
Purpose of the power
70. Under clause 20, the Secretary of State may by regulations disapply the
deemed planning permission granted under clause 18 in relation to
operations for the maintenance or alteration of works which have been
constructed under the Bill and which are specified in the regulations.
71. In essence, this allows the Secretary of State to ‘switch -off’ deemed
planning permission granted by the Bill with respect to future
maintenance or alteration of the specified works, and instead revert to
the normal planning regime applying to works authorised by local Act.
Why the matter the subject of the power has been left to delegated
legislation
72. The regulation making power will allow the Secretary of State to have
the flexibility to ensure that once the construction phase is over, where
works done under the Bill compris ing the realignment of a railway
belonging to Network Rail to accommodate the new high speed line, a
single planning regime will apply to the Network Rail track.
Choice of Parliamentary scrutiny procedure
73. The exercise of this power would be an act of administrative
simplification which would restore the normal planning regime for certain
works. The goal of Parliamentary procedure in this instance is
transparency rather than scrutiny, and the Department believes that the
laying of the regulations before Parliament after they have been made is
sufficient for this purpose.

25

Clause 22(1) and Schedule 18 – Power to disapply provisions related to
listed buildings
Power conferred on: Secretary of State
Power exercisable by: regulations made by Statutory Instrument
Parliamentary scrutiny procedure: laid before Parliament after being made
Purpose of the power
74. Clause 22(1) introduces Schedule 18, which provides for the lifting of the
disapplication of the specified legislative provisions with respect to listed
buildings from Phase 2b (Crewe-Manchester) works. This is to ensure
that works may be undertaken expeditiously.
75. Paragraph 5(1) of Schedule 18 provides that the Secretary of State may,
by regulations, reapply certain of these disapplied provisions once the
initial construction phase is over (that is, reapply them to subsequent
maintenance and alteration works).
Why the matter that is the subject of the power has been left to delegated
legislation
76. The regulation making power will allow the Secretary of State to have
the flexibility to decide that once the construction phase is over, when
subsequent maintenance and alteration works are required, disapplied
heritage regime provisions can be reapplied . It fulfils a similar purpose
to that of Clause 20 (power to disapply deemed planning permission)
and paragraph 3 of Schedule 19 (ancient monuments).
Choice of Parliamentary scrutiny procedure
77. Regulations made under these provisions would not be subject to any
affirmative or negative Parliamentary procedure. This is because the
power would only be used to reapply restrictions which would otherwise
have been in place, save for the provisions of this Bill. However, as there
is a need for transparency as to how these powers are used, the
regulations will be made by statutory instrument and will be laid before
Parliament after having been made.

26

Clause 22(2) and Schedule 19 – Power to disapply provisions related to
ancient monuments
Power conferred on: Secretary of State
Power exercisable by: regulations made by Statutory Instrument
Parliamentary scrutiny procedure: laid before Parliament after being made
Purpose of the power
78. Clause 22(2) introduces Schedule 19, which provides for the lifting of the
disapplication of the specified legislative provisions in relation to works
involving ancient monuments. These are to allow works on Phase 2b
(Crewe - Manchester) to progress as necessary, witho ut encountering
undue legal obstacles.
79. Paragraph 3 of the Schedule contains provisions which enable the
Secretary of State by r egulations to reapply certain of these disapplied
provisions once the initial construction phase is over (that is, reapply
them to subsequent maintenance and alteration works).
Why the matter that is the subject matter of the power left to delegated
legislation
80. The regulation making power will allow the Secretary of State to have
the flexibility to decide that once the construction phase is over , when
subsequent maintenance and alteration works are required, disapplied
heritage regime provisions can be reapplied . It fulfils a similar purpo se
to that of Clause 20 (power to disapply deemed planning permission)
and paragraph 5 of Schedule 18 (listed buildings).
Choice of Parliamentary scrutiny procedure
81. Regulations made under the power in paragraph 3 are to be made by
Statutory Instrument. As they are only to be used for reapplying certain
statutory restrictions, it is not considered necessary for Parliament to
exercise any scrutiny over the making of these regulations. However, as
there is a need for transparency, these re gulations will be laid before
Parliament after they have been made.

27

Clause 23 and Schedule 20, paragraphs 3, 4, 5, 8, 9 and 10 – Power to give
directions with respect to the carrying out of burial ground related
functions under the Schedule
Power con ferred on: S ecretary of State , in consultation with the Scottish
Transport Secretary in relation to works in Scotland.
Power exercisable by: Direction not made by Statutory Instrument
Parliamentary scrutiny procedure: Not subject to Parliamentary procedure
Purpose of the power
82. Schedule 20 provides a regime for the removal, reinternment or
cremation, or in the case of ancient remains the custody, of human
remains buried on land used for the purpose of constructing Phase 2b
(Crewe-Manchester). Provision is also made for the removal, keeping,
disposal and recording of monuments on such land.
83. Paragraph 3(4), 4(3), 4(5), 4(7), 5(4), 5(6), 8(2) and 9(2) of the Schedule
give the Secretary of State power to make directions to the nominated
undertaker to deal with particular cases such as directions as to how
remains are to be dealt with pending the settlement of disputes between
relatives.
84. Paragraph 10 gives the Secretary of State a general power to give
directions with respect to any of the functions under the Schedule.
85. If these powers (save for paragraph 10) are made use of in relation to
works in Scotland, the Secretary of State will consult with the Scottish
Government.
Why the matter that is the subject of the power has been left to delegated
legislation
86. The arrangements set out in Schedule 20 are detailed and will ensure
the appropriate administrative arrangements are made in each particular
matter. It is necessary to ensure the Secretary of State has sufficient
flexibility to be able to deal with circumstances that may arise in which
further detail may be needed. It is therefore thought appropriate that the
Secretary of State should be able to give directions in certain specified

28

circumstances as well as having the flexibility of a general power to give
directions.
Choice of Parliamentary scrutiny procedure
87. As such directions can only be made in relation to matters of
administrative detail it is not considered appropriate that they should be
subject to any Parliamentary scrutiny procedure.

29

Clause 31 and Schedule 25, paragraph 4(2) – Power to grant lorry permits
subject to conditions
Power conferred on: Secretary of State
Power exercisable by: Order not made by Statutory Instrument
Parliamentary scrutiny procedure: Not subject to Parliamentary procedure
Purpose of the power
88. Clause 30 introduces Schedule 25. This Schedule makes provision
relating to “lorry ban orders” under the Road Traffic Regulation Act 1984
which prohibit or restrict the use of lorries on certain roads without a
permit. The Schedule provides a streamlined process for the granting of
permits for the use of lorries in the construction of HS2.
89. Paragraph 4 provides an expedited procedure for cases of urgency,
where a lorry is required to undertake a journey after the application for
a permit has been made but before it is granted. In such a case the
permit is deemed to have been granted subject to conditions specified
by the Secretary of State in the order.
Why the matter that is the subject of the power has been left to delegated
legislation
90. The order making power is an administrative provision. It is required to
ensure that the Secretary of State has sufficient flexibility in urgent
cases.
91. This will mean that lorry journeys may be undertaken immediately
following an application for a permit, without needing to wait for approval
to be granted, but subject to appropriate conditions specified by the
Secretary of State. This will allow any unnecessary delays in the
construction stage to be avoided.
Choice of Parliamentary scrutiny procedure
92. As this is an administrative provision to fill a gap while a permit is being
obtained under the Schedule, it is not considered necessary for the
exercise of the power to be subject to Parliamentary scrutiny.

30

Clause 32 and Schedule 26 – Power to make provision in relation to
appeals about the control of noise on construction sites
Secretary of State for Transport and Secretary of State for Environment, Food
and Rural Affairs; or the Secretary of State for Transport in consultation with
the Scottish Transport Secretary in relation to works in Scotland.
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary scrutiny procedure: Negative resolution procedure
Purpose of the power
93. Clause 32 introduces Schedule 26, which enables disputes over noise
on construction sites under the Control of Pollution Act 1974 to be
determined (amongst other matters) by arbitration. Paragraph 1(2) of
Schedule 26 enables the Secretaries of State for Transport and for
Environment, Food and Rural Affairs to jointly make regulations about
the procedures for such arbitrations.
Why the matter that is the subject of the power has been left to delegated
legislation
94. The regulation making power will ensure the Secretaries of State have
sufficient flexibility in arbitration matters. The power to make such
regulations would be used if it were considered necessary to supplement
the ordinary procedures for statutory arbitrations with tailored provision
for noise appeals under Part 3 of the Control of Pollution Act 1974,
similar to that found in regulations made under section 70(2) and 70(3)
of that Act.
Choice of Parliamentary scrutiny procedure
95. Regulations made under this power are subject to the negative
resolution procedure. This is because it is considered that some scrutiny
over this power may be required, and that the negative resolution
procedure would provide a sufficient level of scrutiny.

31

Clause 35 – Power to remove the construction of Phase 2b (Crewe-
Manchester) from the objectives of the Office of Rail and Road
Power conferred on: Secretary of State
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary scrutiny procedure: laid before Parliament after being made
Purpose of the power
96. Clause 35 requires that facilitating the construction of Phase 2b (Crewe-
Manchester) of High Speed 2 is to be treated as included in the list of
objectives of the Office of Rail and Road (“ORR”) governed by section
4(1) of the Railways Act 1993. The regulation making power allows the
Secretary of State to remove the objective when it is no longer
necessary.
Why the matter that is the subject of the power has been left to delegated
legislation
97. Clause 35(3) enables the Secretary of State to disapply this provision by
regulations as it will no longer be necessary once Phase 2b (Crewe-
Manchester) construction has been completed.
Choice of Parliamentary scrutiny procedure
98. As this would be an administrative arrangement, the purpose of the
Parliamentary procedure is to provide clarity and transparency on what
has been done. To that end, it is considered a sufficient procedure that
the order is laid before Parliament after it has been made.

32

Clause 37 – Power to disapply statutory closure provisions
Power conferred on: Secretary of State
Power exercisable by: Direction
Parliamentary scrutiny procedure: No Parliamentary procedure
Purpose of the power
99. The Secretary of State may disapply statutory closure provisions before
a railway or railway asset authorised by the Bill is ready for commercial
use. The statutory provisions relate to obligations regarding consultation
and the provision of information relating to the closure of a railway. Under
clause 3 7(1) the Secretary of State may direct that such closure
provisions are not to apply to a ny closure of a railway or asset due to
works or the operation of a railway authorised by the Bill.
Why the matter that is the subject of the power has been left to delegated
legislation
100. There is no certainty that it will be necessary to disapply such provisions.
The intention is to ensure that the statutory provisions don’t cut across
and inhibit the resolution of the particular closure that takes place prior
to the commercial opening of the railway. Once the railway is
operational, this power will cease.
Choice of Parliamentary scrutiny procedure
101. This power will only be used where a closure or discontinuance is
necessary and it is necessary to disapply statutory closure provisions
that would interfere with the resolution of that closure or discontinuance
and accordingly, as this is a temporary measure that may need to be
applied quickly Parliamentary oversight is not thought appropriate.

33

Clause 39 and Schedule 29 – Power to direct the arbitrator of a dispute
between railway companies
Power conferred on: Secretary of State
Power exercisable by: Direction
Parliamentary scrutiny procedure: No Parliamentary procedure
Purpose of the power
102. Under paragraph 1 of Schedule 29, the Secretary of State must be
notified where a dispute ari ses between railway companies. Under
paragraph 1(3) , the Secretary of State may, on request or otherwise,
direct the arbitrator as to the results to be achieved in any agreement
between parties that is achieved through arbitration. This does not permit
the Secretary of State to set the terms of any agreement but enables a
direction to be made to ensure that an agreement does not hamper or
impede the delivery of the Phase 2b (Crewe – Manchester).
Why the matter that is the subject of the power has been left to delegated
legislation
103. The power to make a direction is only intended to be used where any
agreement between railway companies could, without the direction,
result in a negative impact on the scheme. Therefore, whether or not a
direction is made will depend entirely on whether any disputes arise and
the nature of those disputes. Accordingly, it is felt that a delegated power
is more suitable given the flexibility needed.
Choice of Parliamentary scrutiny procedure
104. As the power is one of a direction which would be applied in only very
specific circumstances and may be required in some cases, urgently, it
is not considered necessary to have Parliamentary oversight of its use.

34

Clause 39 – Schedule 29 - Power to direct the consolidation of arbitration
proceedings or hearings
Power conferred on: Secretary of State
Power exercisable by: Direction
Parliamentary scrutiny procedure: No Parliamentary scrutiny
Purpose of the power
105. Paragraph 2 of Schedule 29 provides a power for the Secretary of State
to group arbitration proceedings together, or that hearings should be
held concurrently. This will allow the Secretary of State to direct that
proceedings with the same or similar issu es are grouped or heard
together. This will ensure that arbitration proceedings are expedited and
that common issues are not revisited unnecessarily.
Why the matter that is the subject of the power has been left to delegated
legislation
106. Use of the direction will depend entirely on the nature of any disputes
and whether consolidation or grouping is necessary to ensure a suitable
resolution is achieved in the dispute. Therefore a delegated power is
more appropriate given the flexibility needed.
Choice of Parliamentary scrutiny procedure
107. As this is a direction power which will be used in relation to specific as
yet unknown disputes between railway companies being arbitrated, it is
felt that Parliamentary oversight is not necessary.

35

Clause 40 – Power to make transfers of functions relating to works
Power conferred on: Secretary of State
Power exercisable by: Order not made by Statutory Instrument
Parliamentary scrutiny procedure: No Parliamentary procedure
Purpose of the power
108. Clause 40(1) provides that if the Secretary of State acquires land from a
railway operator on which there are authorised statutory works, the
Secretary of State may by order provide for the transfer of any statutory
duty or power to carry out these works to the Secretary of State or to the
nominated undertaker. Clause 40(2) provides a power whereby the
Secretary of State may by order make a further transfer of any power or
duty already transferred under subsection (1).
109. As it may be the case that the nominated undertaker is in a better
position to carry out the works than the land’s original owner, this power
is required to ensure that the appropriate powers can be transferred.
Clause 40(3) enables this to wor k in reverse, in such cases as where
another body acquires land upon which there had previously been High
Speed 2 works.
Why the matter that is the subject of the power has been left to delegated
legislation
110. The powers are intended to marry land ownership with statutory duties
and powers appropriately. As the question of land ownership during and
after the construction of High Speed 2 is not yet settled, these powers
are of necessity delegated to provide flexibility.
Choice of Parliamentary scrutiny procedure
111. As these powers only relate to the transfer of already authorised
statutory works, and will require third party consent, it is not considered
necessary for Parliament to be able to scrutinise their exercise.

36

Clause 41 (Traffic) and Schedule 3 0 – Power to direct traffic authority to
make traffic regulation order
Power conferred on: Secretary of State
Power exercisable by: order made by Direction and Statutory Instrument
Parliamentary scrutiny procedure: No Parliamentary procedure
Purpose of the power
112. This clause introduces Schedule 3 0 which makes provision regarding
traffic regulation. Paragraph 4 of the Schedule provides that the
Secretary of State may give a direction to a traffic authority to make a
traffic regulation order if the Secretary of State considers that the making
of the order is necessary to ensure the timely, efficient and cost effective
construction of the works authorised under Phase 2b (Crewe -
Manchester) and it is reasonable in the circumstances.
113. Paragraph 7(1) provides that the Secretary of State may direct a traff ic
authority to revoke a traffic regulation order made by an authority
pursuant to paragraph 4. Paragraph 7(2) provides that the Secretary of
State may direct a traffic authority to vary a traffic regulation order made
by an authority pursuant to a direct ion under paragraph 4 where the
variation is necessary to ensure the timely, efficient and cost effective
construction of the works authorised under the Phase 2b (Crewe-
Manchester) Bill and it is reasonable in the circumstances.
114. Paragraph 8(1) provides tha t where a traffic authority has failed to
comply with a direction under paragraph 4, the Secretary of State may
make the order required by the direction. Paragraph 8(2) provides that
where a traffic authority has failed to comply with a direction under
paragraph 7, the Secretary of State may by order vary or revoke the
traffic regulation order as required by the direction.
115. Paragraph 9(1) provides that the Secretary of State may by order made
by Statutory Instrument vary or revoke a traffic regulation order
(whenever made) if the Secretary of State considers the variation or
revocation necessary for the timely, efficient and cost -effective

37

construction of the works authorised under the Phase 2b (Crewe-
Manchester) Bill and it is reasonable in the circumstances.
116. Paragraph 11(1) provides that the Secretary of State may give a
direction to a local traffic authority preventing that authority from making
or bringing into operation a traffic regulation order if the Secretary of
State considers that such an order could significantly interfere with the
use of any road for the phase 2b (Crewe – Manchester) works.
117. The provisions in this Schedule are based on the provisions contained
in Schedule 9 to the Road Traffic Regulation Act 1984 (“the 1984 Act”)
which pro vide for similar powers for the Secretary of State to direct,
make, vary or revoke traffic regulation orders. The provisions relating to
the way these traffic regulation orders are to be made will therefore
reflect the arrangements set out in the 1984 Act.
Why the matter that is the subject of the power has been left to delegated
legislation
118. The provisions in this Schedule relate to traffic regulation orders made
pursuant to a direction given by the Secretary of State under paragraph
4 where a traffic authority is required to make an order under section 1,
9 or 14 of the 1984 Act. Section 124 of that Act make provision as to
certain orders. Section 124(2) provides that any power of the Secretary
of State to make an order under the sections cited (which in cludes
sections 1, 9 and 14) shall be exercisable by statutory instrument.
119. This Schedule does not seek to disapply section 124(2) as the
Department felt that to do so would cast doubt on whether a resulting
order would be a proper traffic regulation order for the purposes of the
1984 Act.
120. Further it is not possible to foresee the circumstances in which the
Secretary of State might be required to make such an order. It is
necessary to ensure there is sufficient flexibility for an order to be made
as necessary.

38

Choice of Parliamentary scrutiny procedure
121. Section 124(2) of the 1984 Act makes no provision for any Parliamentary
scrutiny.

39

Clause 42 – The ‘nominated undertaker’
Power conferred on: Secretary of State
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary scrutiny procedure: Regulations und er clause 41 (1) are not
subject to Parliamentary scrut iny; Regulations under clause 41 (4) are subject
to negative resolution procedure
Purpose of the power
122. Clause 42(1) allows the Secretary of State by r egulations to appoint a
‘nominated undertaker’ for the purposes of such provisions of the Bill
(when it becomes an Act) as may be specified. At this stage, the person
that is responsible for constructing and operating the railway for Phase
2b (Crewe-Manchester) is yet to be decided.
123. In circumstances where there is no appointed nominated undertaker, the
Secretary of State is deemed to be the nominated undertaker for the
purposes of the relevant provision. Clause 42(4) grants the Secretary of
State the power by regulations to modify any provision of this Bill under
which the Secretary of State is exercising the functions of the nominated
undertaker. This would enable the Secretary of State to modify the
provisions in situations such as where the functions of the nominated
undertaker are vested in the Secretary of State but the Secretary of State
also has the function of determining disputes between the nominated
undertaker and other parties.
Why the matter the subject of the power has been left to delegated
legislation
124. The regulation making power will afford flexibility to the Secretary of
State in making an appointment by regulations under clause 42(1). This
will allow the Secretary of State to make the decision at the appropriate
time as to the appropriate person to undertake that particular role.
125. The regulation making power under clause 4 2(4) will provide the
Secretary of State with the necessary flexibility to modify the provisions
of the Bill whe re the Secretary of State exercises the function of the
nominated undertaker.

40

Choice of Parliamentary scrutiny procedure
126. Regulations made under clause 4 2(1) are not subject to any
Parliamentary scrutiny as the person appointed as the nominated
undertaker will carry out the functions that have been specified.
Regulations made under clause 42(4) are subject to negative resolution
procedure. This is because it is re cognised that these are powers over
which Parliament should possess a degree of scrutiny, and it is
considered that negative resolution procedure provides a sufficient
means of ensuring this.

41

Clause 48 –Power to direct that deemed planning permission does not
apply to reinstatement works
Power conferred on: Secretary of State
Power exercisable by: Direction made by the Secretary of State
Parliamentary scrutiny procedure: No Parliamentary scrutiny
Purpose of the power
127. Clause 18 provides that planning permission is deemed to be granted
under Part 3 of the Town and Country Planning Act 1990 in respect of
development carried out under the Act. This is subject to the conditions
set out in Schedule 17. Clause 48 provides that the Secr etary of State
may direct that deemed planning permission under clause 18 does not
apply in relation to particular reinstatement works. The power of direction
allows the Secretary of State to also deem planning permission is
granted subject to certain cond itions or that a particular person is
authorised to carry out the works. The power of direction gives the
Secretary of State the ability to remove deemed planning consent for
reinstatement works where it would not be appropriate for such works to
be subject to Schedule 17.
Why the matter the subject of the power has been left to delegated
legislation
128. The power allows the Secretary of State to issue a direction on
reinstatement works where that is considered appro priate. Much will
depend on the extent and nature of such works and accordingly this
should be part of the overall planning regime for the works.
Choice of Parliamentary scrutiny procedure
129. As the power will be utilised within the planning process and dependent
on specific instances of reinstatement works, it is felt that Parliament
does not need to have oversight.

42

Clause 58 –Power to make rules about the provision of arbitration under
the Bill.
Power conferred on: Secretary of State for Transport and Secretary of State for
Levelling Up, Housing and Communities, or the Secretary of State for Transport
in consultation with the Scottish Transport Secretary in relation to works in
Scotland.
Power exercisable by: statutory instrument
Parliamentary scrutiny procedure: Negative resolution procedure
130. This clause provides the mechanism for arbitration to take place where
it is allowed for in the Bill. So, for example, it provides that a single
arbitrator be appointed by the President of the Institu tion of Civil
Engineers (paragraph 58 (1)) or where that would not be appropriate the
arbitrator can be appointed by the Office of Rail and Road.
131. Paragraph 58 (5) provides that the Secretary of State for Levelling Up,
Housing and Communities and the Secretary of State for Transport
acting jointly may make rules in relation to arbitration under the Bill,
unless that relates to arbitration in Scotland.
132. Paragraph 5 8(6) provides a simil ar power to make rules relating to
arbitration in Scotland and paragraph (7) provides that this must be in
consultation with Scottish Ministers.
Why the matter the subject of the power has been left to delegated
legislation
133. The Bill provides the essential provisions for arbitration to operate
properly under the Bill, namely the source of the arbitrator, so it is not
yet clear that additional rules will be required. This may not be known
until arbitration needs to take place f ollowing a dispute. Therefore, it is
sensible that this is left to delegated legislation so that the rules can be
made in a way that reflects the issues that may have arisen in arbitration
under the Bill when enacted.
Choice of Parliamentary scrutiny procedure

43

134. It is clear that Parliament should be appraised of any rules that are
considered necessary and the negative resolution procedure is
appropriate to ensure sufficient Parliamentary oversight.

Department for Transport (2022)