Will infrastructure projects happen without 'hybrid bills'?

Infrastructure is big news at the moment - since September of last year, we have had a number of government announcements about how infrastructure projects will be prioritised in an attempt to boost the construction and the wider economy. This included plans announced by the chancellor in the autumn statement and the publication of the government’s second National Infrastructure Plan (NIP2) at the end of November. The first plan (NIP1) was published in October 2010, when the government described it as its “vision for the future of UK economic infrastructure”. The government has given its go-ahead for a new high speed rail link between London and the West Midlands and on to Manchester and Leeds (HS2) and announced a consultation on a new hub airport in the Thames Estuary.

NIP1 sets out plans for £200bn of projects over five years and NIP2 details £250bn to be spent on 500 projects to “2015 and beyond”. NIP2 relies on a mixture of private and public funding. Although there is political will to drive through the projects there is no legal framework to enforce it, which raises the question of whether willpower alone is enough.

It is worth looking at how legislation has been used to push through infrastructure projects in the pastand consider how it might be used now to drive forward the projects in the pipeline.

Our electricity supply system is an interesting example - in the twenties it was not joined up, so access to electricity was patchy and, where connection was possible, expensive. The political landscape had striking similarities to today - France and Germany had interventionist states and we had a Conservative government. In what might be seen as a bold decision, that government set out to create a grid system to distribute electricity evenly across the country. It did this by passing the Electricity (Supply) Act 1926 to pave the way for constructing a “national grid-iron”.

There is a form of legislation that brings together the public and private sectors

By 1935, the grid was largely complete (both ahead of schedule and on budget) in what was the largest peacetime construction programme the country has seen. Being grand in scale, the national grid had the advantage of being solely in the public sector, without the need to integrate the private sector. The ODA’s London Olympic Games and Paralympic Games Act is an example of similar legislation in modern times.

Where the public sector is not able to go it alone, there is a form of legislation that brings together the public and private sectors in what are known as “hybrid bills” which share the characteristics of public bills (which changes the law as it affects everyone) and private bills (which changes the law as it affects specific individuals or organisations). Due to their nature and complexity, hybrid bills can take significantly longer than ordinary bills to get through parliament. Hybrid bills are relatively rare and there have only been something like 11 hybrid bills in the last 25 years but, when used, they often relate to infrastructure projects. Recent examples include the Channel Tunnel Rail Link Bill and the Crossrail Bill, which have been enacted, and the government has announced that a hybrid bill will be used for HS2.

So, what are the prospects of legislation in relation to NIP2? Some of the projects, such as high-speed rail, will be the subject of hybrid bills. But what will drive forward the majority of the 500 infrastructure projects identified in NIP2? It is likely to be the case that many of the projects will continue to have to battle through the system to get planning and other approvals. Is there a case for an “Infrastructure Act” that could be used to help push through those of the 500 infrastructure projects that will not qualify for their own specific legislation? It is an attractive prospect that projects could be expedited through the system but it is more likely to be the case that they will have to go through all the same processes as any other project, subject to challenges such as judicial review and the appeal process, all of which can take quite some time to work through.

Should they be treated any differently? There is, of course, the balance to be drawn between the wider public interest in driving through infrastructure projects and the interests of those impacted by those projects.

The fact is, we are in extraordinary times, which is perhaps the time for extraordinary measures.

Michael Conroy Harris is a senior legal manager at Eversheds