CHAIRMAN: Good morning, ladies and gentlemen. The sensible
arrangement would be that those who are to address us on behalf
of the petitioners and promoters should be seated in what I might
call the witness seats at the front here and those who are advising
them or colleagues should be behind them ideally. Can I welcome
you here. I am Alan Haselhurst, Chairman of Ways and Means and
Chairman of the Court of Referees. We are going to use the term
"Chairman" as it seems the most easy. The other members
of the Court are Dennis Turner, Mrs Linda Perham and Mr Peter
Atkinson. John Vaux is Speaker's Counsel and Frank Cranmer is
the Clerk of the Court. We are quorate with three, so we are covered
in that sense.
We are intending to hear the three cases of the petitioners
consecutively. We will hear first from Ms Hanson on behalf of
the North West Regional Council TUC, then Mr Cashman on behalf
of the T&GWU, the GMBU, the AEEU, UCATT and Mr William McCoy,
then Mr Fleming on behalf of the Merseyside and West Cheshire
Region of the Federation of Small Businesses, and finally the
Agent for the Promoters, Mr Owen. May I say, I hope not unnecessarily,
that as there is a considerable amount of common content to the
three petitions that you will pick your way through that without
unnecessary repetition. I would have thought for the expedition
of proceedings you would have that in mind in any case. I need
say no more other than to call upon Ms Hanson to address the Court.
MS MARGARET HANSON: Thank you, Mr Chairman. My name is Margaret
Hanson and I am the Policy and Campaigns Officer for the North
West TUC. This is a body that represents just under one million
working people through their affiliate unions in the North West
of England, around 200,000 of whom live in the Merseyside subregion.
I was appointed as the Agent for the aforesaid organisation as
per an extract of minutes of the North West Regional Council's
Executive which has been forwarded to the House of Commons' authorities,
that minute being taken from our meeting of 15 January 2002.
I hope to show the Court of Referees that the North
West TUC is a proper body to petition against the Private Bill
presented by the Merseytravel Passenger Executive and that the
objections raised to our petition by the latter body are without
Firstly, I would like to draw your attention to the fact
that the previous Private Bill, promoted by the Merseyside Passenger
Transport Executive, was contested by the North West TUC Regional
Council in a petition back in 2000. No objection was made at that
time to our acting as a petitioner and although the provisions
of that Bill were different in some aspects, I would argue that
a precedent was established as to our locus standi in this
The North West TUC was established in 1868 in order
to argue on behalf of all its affiliate organisations in matters
such as this. It would be impossible for all of our affiliates
to appear before your Court to argue their case, but the North
West TUC, as authorised per the minutes, is the appropriate association
so to do.
The objections raised to our petition by the promoters
of the Bill are not factually accurate. Although this is not the
forum in which to argue the merits or otherwise of the actual
Bill, I hope that you will accept that our affiliates' members
as individuals as well as collectively would suffer loss if this
Bill were to proceed. Increasing already high tolls on an annual
basis, possibly above the rate of inflation or at least by the
rate of RPI inflation, would definitely injure our members' ability
to travel to work and to pursue their legal trade. One must remember
that they are a monopoly in the Merseyside area and many people
do not have an alternative way to travel to work or to pursue
The objection to our petition, especially in the light
of the first point above, is an attempt to use parliamentary procedure
to frustrate a due democratic procedure. If we are prevented from
petitioning against the Bill our affiliates'members have no other
forum in which to make their concerns heard. As the Merseyside
Passenger Transport Executive is a quango, it is extremely difficult
for an ordinary person, a worker or an employer, to make their
views known to the body. Despite having petitioned against the
first Bill lodged by the MPTE, the North West TUC was not included
in a consultation exercise that preceded the current Bill. The
opportunity of airing the issues raised in our petition before
the House is the only opportunity that we shall enjoy to raise
our affiliates' members concerns. There are no viable alternative
methods of crossing the Mersey for many of our affiliates' members.
The buses, trains and ferries which currently operate are all
overcrowded and the services inadequate to serve the working population
of the Merseyside area.
Sections 5 and 6 of the promoter's objections are incorrect.
We have around 200,000 trades union members in the Merseyside
and adjacent area. There are members in all of the large unions
and you will hear from them directly shortly. But there are also
many members of smaller specialist unions all of whose members
will use the tunnels at some time and many of them will use them
to travel to work or to pursue a trade. Investors, we believe,
coming into the area will be dissuaded from investing, especially
in the Wirral peninsula, if they face ever-increasing tolls to
cross the Mersey and there is no reasonable alternative to the
crossing except a 50mile round detour to the already overcrowded
We do not object in our petition to public policy
this is an important issue which is raised by the objectors to
our petition but we would dispute the Mersey Passenger
Transport Executive's interpretation of what is public policy
and, in a democracy, would argue that we have a right to point
out where that policy, or that of a quango such as the MPTE, misinterprets
the Government's policies, and is likely to injure the public
good. We do have a right to actually make our objections.
Section 8 of the objections to our petition is patently
untrue. As per the minutes and a letter which was lodged with
your officers and checked by those Officers of the House, I am
a duly authorised agent and the process was carried out correctly.
Lastly, under Standing Order 95 as set out in Erskine May,
as Court of Referees I believe you do have the discretion, if
you so choose, to grant to the North West TUC a locus standi
in this matter. I would ask you to consider granting us this petition
so as to ensure that the merits or otherwise of the proposed legislation
are heard in the proper place, namely the Chamber of the House
of Commons and, if the Bill passes through there, in the appropriate
Committee. If the promoters of the Bill have faith in the strength
of their arguments and the integrity of what they propose for
the whole of the Merseyside region, I think they should be prepared
to test that in the proper way and not to seek to frustrate the
due democratic process by tying us up in parliamentary procedure
as they are seeking to do this morning. Thank you very much.
CHAIRMAN: Thank you very much indeed. Would anybody like
to ask any questions of Ms Hanson?
SPEAKER'S COUNSEL: I have one. Do you as the North West Region
of the TUC represent any interests that are not already adequately
represented by the specific unions that have already petitioned,
or indeed other unions that could have petitioned but chose not
MS HANSON: Yes, we have around 60 affiliated unions as part
of our association, only some of whom have members who work in
the tunnels. Many of the other unions are those which I have referred
to as small and specialist unions who do not have the resources,
either financially or in terms of staff, to be represented here
today. As I referred to in my submission, the TUC was established
in order to give a voice not simply to the large unions from whom
you will hear directly but to those small, specialist trade associations
some of whom represent hospital workers, radiographers
those very specialised professions and they will be people
who use the tunnels to get to hospitals, for example on one side
of the river or across to the other, and who will not be able
to be heard today or to be heard against the petition unless the
petition of the North West TUC actually succeeds.
SPEAKER'S COUNSEL: In relation to those small and specialised
unions is it your case that the cost of getting to work would
be increased by the exercise of the powers in the Bill or is it
that their ability to work at all might be affected by the exercise
of those powers?
MS HANSON: We will argue, should we succeed today, that the
potential of the Bill is such that the scope of powers that it
would give to a quango, given the monopoly status of the Mersey
Tunnels and the lack of alternative of a river crossing. It is
not like London. The nearest river crossing from the Mersey Tunnels
is around 20 miles plus away from the centre of the city across
to the conurbation of the Wirral and we would argue that the medium
and longterm effects could be that, one, tunnel viability
could be threatened and, two, the cost of using those tunnels
will be such that people will be forced to make the detour or
that prospective employers we are not just talking about
people working in the public sector, we are talking about the
specialist trade unions who work in private sector employment
would choose (because of the added tax on jobs that these
tolls would effectively represent) to invest elsewhere and therefore
investment in the area will be seriously threatened and jobs could
actually be lost.
LINDA PERHAM: Can I just clarify, did you say that you were
not consulted in the runup to the Bill being presented?
MS HANSON: On the second Bill, the one that your House will
consider, despite being a petitioner duly authorised by this House
to petition against the first Bill, we were not consulted and
that is despite having written in the spring of last year to the
MPTE asking for a meeting to discuss some of the issues and a
meeting to discuss the way forward for the tunnels. At that time
we did anticipate that the Mersey Passenger Transport Executive
would wish to have another bite of the cherry and we wished to
get into dialogue. We got a reply back to our initial letter saying
"we will talk to you after the General Election". That
meeting did not happen and we were not consulted. In fact, the
first we knew about the issue was when it was raised with us by
the affiliate unions and after I heard Members of the House on
the radio saying that the Bill had been represented.
LINDA PERHAM: Just a couple of other things. You are concerned
about the extra tolls that could be imposed. Could they not be
used to improve the Runcorn Bridge, which is a 50 mile diversion?
Could that money not be used to improve that and the Birkenhead
Tunnel which is another one that has been raised? Is it not something
which could be used because the tunnels are not in a very good
MS HANSON: Because of the setup of the Merseyside Passenger
Transport Executive it does not include the authority in whose
area the Runcorn Bridge falls. The proposals within the Bill do
make similar suggestions that monies creamed off from
the tunnel tolls could be invested into public transport
but if we succeed in you accepting our petition today, we would
argue that public transport needs to be improved before people
will move from their cars and use public transport. I do believe
that is something which the Government accepts and it is the way
round that you do it. They are some of the issues we would like
to debate should the Bill get to the Committee.
LINDA PERHAM: And if the other routes are a long diversion
or not really suitable to be used, could it be argued that people
I am thinking in my own case of Dartford Tunnel
would have to use them anyway if the alternative is a long diversion
or inadequate transport facilities?
MS HANSON: Yes it could; and that is one of the reasons that
we are concerned because the powers that this Bill would give
to the MPTE would be such that the tolls would go up, and effectively
it is a form of taxation upon people who have no right to consent
to it or otherwise. They would be forced to pay the extra tolls.
LINDA PERHAM: Thank you, Chairman.
SPEAKER'S COUNSEL: I want to be sure that I understood the
answer. Did you say that all the other river crossings in the
Mersey area are outside the jurisdiction of Merseytravel so that
in your submission the funds generated by the tolls could not
be spent on improving the other river crossings? Did I hear right?
MS HANSON: There are two tunnels both of which are in the
control of the MPTE, the Birkenhead Tunnel, and the other one
is the Wallasey Tunnel. Runcorn Bridge is part of the highway
system in Halton in Cheshire and the Bill does not propose to
give the monies that would be raised by the powers that the Bill
gives to the MPTE to anybody else other than the MPTE. It proposes
to use those monies to improve certain parts of the public transport
infrastructure which are not necessarily going to benefit those
currently who have to use the road tunnels to get to Liverpool
and to the Wirral peninsula.
MR ATKINSON: To pursue that, when you are talking about the
MS HANSON: Mersey Passenger Transport Executive.
MR ATKINSON: Is that Merseytravel? Is that one and the same?
MS HANSON: Yes.
MR ATKINSON: Do they not have some control over the ferries?
MS HANSON: Yes, but the ferries are not adequate.
MR ATKINSON: And the suburban rail service?
MS HANSON: Yes, which is not adequate.
MR ATKINSON: They have a connection?
MS HANSON: They control everything and also the trains
MR ATKINSON: Again, it is not particularly relevant to what
we have to decide today, but to get a feel for it, can you give
me an idea of what the tolls are at the moment?
MS HANSON: For a return journey for a car it is £2.40,
for a lorry it is just under £10 and motor cycles are free.
CHAIRMAN: The thrust of your argument is that a power to
increase tolls, which assumes that the power would be used, would
be injurious in terms of cost to employees of various businesses
and so on. How do you distinguish that from any other extra charges
which life might bring to people through increased taxation or
other causes? Life is full of increased costs which nobody likes.
MS HANSON: The Bill would give automatic annual increases
at the rate of inflation and it is the monopoly situation that
causes us concern, that people do not have a viable alternative
to this route. It is not like London where you do have a number
of bridges in the city and you also have motorways and different
tunnels that you can use. Although some of them are tolled, you
do have nontoll alternatives and you can choose to use them.
We do not have the option in this area. We have the two tunnels
or you can use the ferries which are antiquated and which are
not adequate. If you are in a car you are hidebound. People
do travel great distances to Liverpool and that is a good thing
because the city needs the vibrancy that people coming in from
outside bring, and therefore it helps create jobs and helps the
economy of the city. We believe that the Bill would work against
that and we believe there are other alternatives but we cannot
argue that until we are given a locus standi in this issue
CHAIRMAN: This Bill has not, fairly obviously, begun its
substantive parliamentary consideration. Do you not have confidence
in the elected representatives being able to deploy all these
arguments on your behalf and on behalf of all the people that
could be affected in the course of the processes of the Bill?
MS HANSON: Absolutely and we have been working very closely
with the elected representatives who are objecting to the Bill.
We believe, given the fact that it is a Private Bill and would
affect a very close circle of people, although it is 200,000 of
our members, that we have an added perspective to put and that
we would be seen by our members to be failing in our duty to them
if we did use absolutely every avenue open to us to ensure that
the issues that the Bill raises are aired and are debated. The
problem is that we would have liked to have had that debate outside
this forum; but given the nature of the Mersey Passenger Transport
Executive it is very difficult to engage with them. We wish to
take the opportunity which is offered to us by procedure to actually
bring to the fore the concerns of our members and our affiliates.
CHAIRMAN: But the question I am asking is are you able to
demonstrate that it is only by having your petition accepted that
arguments could be put, whereas there are Members of Parliament
who would have opportunity in debate to put those arguments if
asked by you o r the people you represent to do so?
MS HANSON: I believe that the contribution we could make
would strengthen the debate and make the legislation, should it
come out at the other end, better. Equally, given the way in which
we have been treated during the consultation process, as a body
the North West TUC felt that it should avail itself of the opportunity
which Parliament does give to organisations such as ourselves
to engage in the democratic process. We have effectively been
denied the opportunity to do that in the North West, back on our
home territory, by the way in which the consultation was or was
not carried out. We are asking that the House grants us the opportunity
to have our say which has been denied to us so far in this matter.
CHAIRMAN: Thank you very much indeed, Ms Hanson. May I now
ask Mr Cashman to address the Court.
MR MICK CASHMAN: I am Michael Cashman. I am a Regional and
Industrial Organiser for the Transport and General Workers' Union.
I have got a direct servicing responsibility for Transport and
General Workers' Union members employed at Mersey Tunnels. In
addition to the 155 Transport and General Workers' Union members
employed at Mersey Tunnels, I also service and represent about
3,700 other Transport and General Workers' Union members in a
variety of workplaces on the Wirral and in Liverpool.
I have been asked to act as Agent on behalf of our members
of the Transport and General Workers Union, the General and Municipal
Boilermakers Union, UCATT, the AEEU, and also William McCoy in
respect of our petition against the Mersey Tunnels Bill. William
McCoy, who signed a petition as an individual, is also the chairperson
of the Joint Shop Steward Committee on Mersey Tunnels.
The promoters of this Bill have objected to our petition
on a number of grounds. In point (1) they say that the petitioners'
property and interests, and the property and interests of those
they represent are not directly affected by the Bill.
Clearly, we disagree with this point. Our members' interests
are specially affected by these proposals.
Section 92 (6) of the County of Merseyside Act 1980
states that any person or body sufficiently representative of
persons who have a substantial interest in the use of the tunnels
has the right to object to proposed toll increases and this can
result in the Minister calling a public inquiry to ensure that
such increases are necessary.
We say that our organisations are bodies as described
in this section; and this Bill would deprive us of the opportunity
to oppose unnecessary toll increases by providing evidence to
a public inquiry in future, as toll increases could be made automatically
if the Bill was passed.
It is clear that the Merseyside Passenger Transport
Authority regard us as such a body because we were consulted along
with other interested groups when they were proposing this Bill
when they had this consultation process. The Transport and General
Workers' Union and the other unions that I am representing today
received invitations to give their views on the proposed Bill,
so they clearly regarded us as such an organisation who should
be consulted in this case.
We deal with our concerns of the effects of toll increases
in Paragraph 9 of our petition.
The trade unions who are signatories to the petition
have a substantial membership on Merseyside. Our members are employed
in local businesses who will be adversely affected by unnecessary
increases tolls and this could directly affect their wages and
conditions of employment. Many of our members use the tunnels
to travel to and from work across the Merseyside conurbation and,
as I mentioned before, our unions have a substantial membership.
The Transport and General Workers' Union has approximately 34,000
members on Merseyside. The AEEU also represents thousands of members
across Merseyside. The GMB has approximately 30,000 members, and
UCATT has approximately 5,500 members across the Merseyside conurbation.
In addition to the effect this Bill would have on our
Merseyside membership in relation to the increased tolls and the
impact on the businesses they work for, our members employed at
Mersey Tunnels would also be directly and specially affected by
the proposal to allow Merseytravel to utilise the money raised
by the Mersey Tunnels for other initiatives. This would create
a tension between spending revenue on the maintenance and running
costs of Mersey Tunnels and the initiatives elsewhere, for example
the proposed tram link using toll money in Liverpool. This could
have a direct effect on the working conditions of our members.
Section 99(1) of the County of Merseyside Act 1980 restricts
spending this revenue to paying the tunnels' debt and the running
costs of the tunnels and the running costs of the tunnels include
our members' employment and working conditions. So we do not accept
the objection raised in point (1).
In relation to point (2) of the objections, we do accept
that we have not got any direct property interests involved.
In point (3) I believe we have dealt with this point
in addressing point (1). Clearly our members do suffer pecuniary
loss or injury as a consequence of this proposal.
In point (4) the promoters state that "No facts
are adduced in the petition to support the allegation that our
rights and interests are injuriously affected by the Bill."
We say that this is not the case. In paragraph 9 of our petition
we point out that the Bill would take away our right to give evidence
to a public inquiry to object to unnecessary toll increases.
We also refer to the economic effect on local businesses
such increases would have. Our role as an organisation involves
representing the interests of our members in the workplace. Anything
that has an effect on the profitability and viability of local
businesses adversely affects the interests of our members.
There is also a direct effect on our members who use
the tunnels for travelling to work and leisure.
In paragraph 11 of our petition we point out that the
increases do not take account of the financial, transport, social
and economic consequences that would have an injurious effect
on the petitioners.
In point (5) it says the first four petitioners do not
state how the trade or business of their members would be affected
in the petition. We do this in paragraphs 9 and 11 of our petition.
In point (6) the objectors raise objections on matters of
public policy. Again, this is not the case. We raise objections
because these proposals will have a direct and special effect
on our members. Toll revenue is used to pay our members and provide
safe working conditions for our members. The Bill seeks to allow
this revenue to be siphoned off to be used elsewhere and this
could clearly affect our members. The economic and social consequences
of unnecessary toll increases would have a direct effect on our
members who use the tunnels and who live in the Merseyside area.
In point (7), the promoters say that William McCoy is
represented by the six members of the Liverpool City Council of
the Merseyside Passenger Transport Authority under the Doctrine
of Representation and so he is not entitled to be heard. We do
not accept that this is the case. The Merseyside Passenger Transport
Authority is not a local authority it is a Passenger Transport
Authority and Executive constituted under Section 9 of the Transport
Act 1968. Its function is described in section 9(3) of the Act.
Its role is to secure and promote the provision of a properly
integrated and efficient system of public passenger transport.
It is not there to represent the general interests of the people
in the same way that a local authority is. It is false to equate
a Passenger Transport Authority with a local authority. The elected
members who sit on the PTA are not there to represent the general
interests of the council taxpayer but to carry out the duties
of a Passenger Transport Authority.
William McCoy is a council taxpayer who will be adversely
affected by this Bill and we believe that he should be heard.
The Standing Orders of the House of Commons Private Business 2001
Standing Order 96 allows individual petitioners to be heard
in cases like this.
Point (8) questions whether we are representing our organisations
in signing the petition against this Bill. The signatories who
have signed on behalf of the trade unions concerned are fulltime
officials of the representative unions who have direct servicing
responsibility for their unions' members in Mersey Tunnels. It
is clearly signed on behalf of the respective unions and of William
McCoy. We opposed the previous Mersey Tunnels Bill by petition
in the same way and the promoter did not challenge our right to
petition in that case.
Our members employed at Mersey Tunnels overwhelmingly
voted to oppose this Bill at a mass meeting at which all Mersey
Tunnels trade union members were invited to attend. We are all
supported by our respective trade unions in this case. I do have,
with your permission Chairman, copies of letters from regional
trade unions confirming that we are authorised to act on behalf
of our unions.
CHAIRMAN: If we need them later then thank you very much.
MR CASHMAN: I have letters from senior union officials of
three of the unions supporting this. Unfortunately the AEEU letter
has not arrived on time and we do not have that letter. The Transport
and General Workers' Union are paying my wages and expenses in
attending today. They also paid for the barrister who assisted
in drawing up our petition against this Bill. All of the unions
involved have assisted in organising opposition to this Bill and
so we think that we are clearly acting on behalf of our organisations.
To be honest, common sense says that we operate in that way. We
are paid officials of the union. Our members have asked us to
oppose this Bill in the same way as they asked us to oppose the
previous Bill and that also was by a mass meeting of members when
we agreed to oppose the first Mersey Tunnels Bill.
All we are asking for in submitting this petition is
for the right to be heard at an Opposed Bills Committee. We want
to have the opportunity to give evidence as to how this Bill will
adversely affect our members.
There are three petitions in front of you today and
all of the petitioners obviously represent substantial interest
groups in Merseyside and the North West who will be affected by
the Mersey Tunnels Bill. Our petition represents a specific group
of people who have a direct interest in this matter they
are the employees who run the Mersey Tunnels as well as employees
who work in many of the areas in the local economy.
If any of these petitions is allowed to go forward to
the Opposed Bill Committee it means there will be an Opposed Bill
Committee. We would say if that is the case then our petition
should be allowed because we have direct experience of running
of the Mersey Tunnels and we believe our members could provide
valuable evidence in respect of the proposed Bill. Thank you.
CHAIRMAN: Thank you very much indeed.
LINDA PERHAM: Mr Cashman, you talked (as did Ms Hanson) about
the inadequate transport facilities existing in the area and you
are both concerned about the monies being used for purposes other
than on the tunnels themselves. Would you not accept that to the
people who are using the tunnel it would be a good use of the
money to try and improve the other public transport or would you
say that had to be done generally from council tax/income tax
so that everybody in the area pays towards improved transportation?
Is it acceptable that people who are using the tunnels should
be paying towards improved public transport?
MR CASHMAN: My union has many members employed in the passenger
transport industry. We are obviously very concerned that we have
an effective and efficient public transport system on Merseyside,
but it is not our view that that should be paid for by having
a local tax levied on a small group of people who use Mersey Tunnels.
We think that the impact of that will be that local businesses
that use Mersey Tunnels that employ our members will find it difficult
to pay the everincreasing costs and we do not think it is a sensible
way of developing funding for the transport system. We believe
that it should come out of a general fund as opposed to aiming
it as a quite a small group well, quite a large group
of people but a discrete group of people that use Mersey Tunnels.
In addition, our concern from the point of view of the Bill is
that it will also enable Mersey Tunnels to use toll revenue; and
that could affect the amount of investment that we are prepared
to put into Mersey Tunnels to keep the tunnels safe for use and
for our members who work in Mersey Tunnels and could also impact
on the terms and conditions of our members. Obviously if there
are financial pressures elsewhere and money is taken out to fund
other programmes that is money not being spent on Mersey Tunnels'
LINDA PERHAM: You said a small group and then you said a
MR CASHMAN: It is a large group.
LINDA PERHAM: What is the usage, the statistics of how many
people use the tunnels and the vehicles?
MR CASHMAN: 30 million trips a year. Our members anecdotally
have said they believe the revenue is roughly a quarter of a million
a week on Mersey Tunnels, but 30 million trips a year is the number.
LINDA PERHAM: Thank you, Chairman.
SPEAKER'S COUNSEL: I wanted to ask a question about Mr McCoy
and clarify the basis on which he is a petitioner. Is he a petitioner
simply as a representative inhabitant of the area or is it your
argument that his use of the tunnels in some way sets him apart
from other inhabitants of the area? Is he a frequent user of the
MR CASHMAN: He is an employee of the Tunnels. He is a user
of the tunnels and he lives in the Merseyside area in Liverpool
and would be affected by these increased costs. He is signing
as an individual who would be affected and we believe individuals
who are directly affected in this sort of case should have an
opportunity to give evidence in respect to this Bill.
SPEAKER'S COUNSEL: So you are relying on Standing Order 96
as well as on 95. Is that right, he is an inhabitant of the area?
MR CASHMAN: Yes
CHAIRMAN: Are we not, in fact, getting down to what might
be an ageold argument about whether or not it is users or
people in general who should pay? Is that not just a matter of
general public policy?
MR CASHMAN: Sir, my view is that it is not just a matter
of public policy because there are specific interests of tunnel
users involved and certainly in terms of our petition our members
are specifically involved in the increasing tolls; and whether
that should be used to fund other transport initiatives is not
just a matter of public policy.
CHAIRMAN: No, but if the tolls were to remain at their present
level in perpetuity or to cease and at the same time it was the
desire of people in the affected area to see improvements in public
transport or maintenance, there might have to be imposts through
taxation which would be every bit as disagreeable to your members
as to anyone else.
MR CASHMAN: Possibly, Sir, but all we are asking for in respect
of this Bill is for the opportunity to give our evidence in respect
to our objections to the Bill. Merseytravel has chosen to use
the course of a Private Bill to make these changes. We are just
asking for an opportunity under the same legislation, if you will,
to give our evidence as to why the changes should not be made.
CHAIRMAN: To come back to a point I put to Ms Hanson, if
we were not doing this through the Private Bill procedure and
it was a Public Bill, then your avenue would be through your elected
representatives in Parliament?
MR CASHMAN: That would be the case, Sir, but our view is
that there is an opportunity for our members to give evidence
in respect of this Bill, a Bill that will directly affect our
members. One of the effects of this Bill will be to take away
the right of people to be consulted in future in respect of toll
increases. At the moment if Merseytravel wishes to increase the
tunnel tolls and there are groups who object, then a public inquiry
process has to be gone through and it gives people the opportunity
to give evidence for and against the issue. The effect of this
Private Bill will be to take away that right, so it is even more
important that those groups that are affected are given the opportunity
at an Opposed Bill Committee to give their evidence before this
right is finally taken away from them.
MR DENNIS TURNER: Could I ask a further question about Mr
McCoy. You say that he is a general elector of Liverpool. Did
I understand it to be said that he was also a member of the Passenger
MR CASHMAN: He is an employee of Mersey Tunnels.
MR TURNER: But not a member of the Passenger Transport Executive?
MR CASHMAN: No.
MR ATKINSON: If he is employed by the Tunnel then he presumably
does not pay tolls when he uses it?
MR CASHMAN: I do not think he does, Sir, no. Again, I am
saying this. I think they get vouchers for so many trips. When
the vouchers run out then they have to pay.
CHAIRMAN: Thank you very much indeed, Mr Cashman. Now Mr
Fleming on behalf of the Merseyside and West Cheshire Region of
the Federation of Small Businesses.
MR PHILIP FLEMING: Mr Chairman, members of the Court, my
name is Phillip Fleming. I am the Regional Chairman of the Merseyside
and West Cheshire Federation of Small Businesses. I would like
to concentrate on Section 95, our main area of concern, and on
the fact that we would hope that you would grant us through your
discretionary powers on under Section 95 the right to put forward
First of all, the Federation of Small Businesses, for
those who do not know, was formed in 1994. Nationally we currently
have a membership of 170,000. In terms of statistics that gives
FSB more members than the Conservative and Liberal Democratic
parties together, so that gives you some idea of the sphere of
influence. If you couple to that the fact that 92 per cent of
businesses in this country employ less than nine people, you will
see FSB as a national organisation which was possibly very little
heard of five or six years ago but which has grown in strength
and stature. We are coming down to a regional level. In terms
of the national structure we go back then through regions and
branches. Basically the region comprises about six branches. The
Merseyside and West Cheshire area geographically encompasses the
area of Merseytravel so to that extent our geographic location
as well as our economic location is concentrated. We have 6,000
members in our region. On that basis we feel as though we do represent
a lot of businesses. As I say, the 6,000 members that we have
there, if you multiply it out, we act for quite a lot of members.
CHAIRMAN: May I just interrupt you. There are 6,000 in the
MR FLEMING: We have 6,000 members in the Merseyside region
as opposed to 170,000 nationally. Those are pretty active members.
The Federation of Small Businesses is an organisation that is
there to look after the rights of the selfemployed and people
that direct small businesses. It is membership-led. People like
myself are not paid employees. I am here as a businessman in my
own right. I am not paid by anybody to come here. My job is as
an activist and the FSB has built its reputation up on people
like myself being active within an area and having the local knowledge.
We work quite a lot with politicians, hopefully bringing grassroots
levels of influence to bear into subject matters like this. We
are an apolitical organisation. All we are looking for is a level
playing field. This is one of the main reasons we have got involved
in this particular Mersey Tunnels Bill.
We were also not consulted on this particular consultation
document. We find it quite surprising. We do attend various meetings
with Merseytravel. Whether it was an oversight or not, we were
not consulted. We sat back and did not take the lead and waited
until our members started complaining about this procedure. From
then onwards I was nominated to take up the role on behalf of
our members and we have gone to town to the extent of producing
a petition that has full backing. There are objections obviously
from the promoters. They said we have not got the authority. These
have all been produced at the time to the Private Bills Office,
so I do feel we have the authority on these matters. To that extent
I feel as though I am here as a duly elected representative of
the Federation of Small Businesses and we do have the right under
Section 95. We have an arguable case that our members will be
injured as a result of this Bill.
Going on to that, our objections are quite clearly stated
in the petition. The promoters seem to think that they are not,
but as an overview I am here as a Mersysider. This particular
Bill from Merseytravel seems to have polarised the Wirral. I am
here to give you a little bit of local knowledge and hopefully
answer questions from yourselves. Merseyside is unique in terms
that Liverpool, Birkenhead and the Wirral, if you do not know
the area, are virtually conjoined. The economic viability of one
is very much mutually dependent on the others. I feel that this
Bill seeks to polarise that situation. I want to enhance Merseyside.
I am not here to object to a Bill because I am objecting to a
ten pence rise in a tunnel toll. There are far greater economic
issues at stake. I feel that because of the procedure and the
consultation we were not given the proper opportunity at that
level to argue our point. Indeed, the consultation process was
ignored anyway. The vast majority of people were against it but
it went on. So we have this situation here, and yes, we are going
through a petition to try and put our side of story. I would agree
that it is a Private Bill. If it was not a Private Bill and this
had been in somebody's manifesto in an Election obviously we would
have gone through a different procedure. I feel the way Merseytravel
have carried out the consultation procedure totally ignored the
views of our members. It seems they have ignored the views of
the TUC. We feel we have the right to ask for your support to
have locus standi on this issue. If there are any points
you would like from my side, it might be easier to answer any
points in that way.
CHAIRMAN: Thank you very much. Mr Atkinson?
MR ATKINSON: Are the 6,000 members that you have 6,000 individual
businesses or do you have several members in one business?
MR FLEMING: No, basically we will have 6,000 members and
those members would employ one to nine people.
MR ATKINSON: Each member would therefore represent a business
so we are talking about 6,000 businesses?
MR FLEMING: Correct, we are talking about 6,000 businesses.
MR ATKINSON: That is in what you might term the Merseytravel
MR FLEMING: Our geographic limits are very similar to the
Merseytravel area. It is an area that encompasses Liverpool and
MR ATKINSON: I think that somewhere like Southport, for instance,
might be in that area.
MR FLEMING: Just on the boundary.
MR ATKINSON: Quite a lot of your 6,000 members would not
be affected in any way. If one had a newsagent's business in Southport,
the fact that the tolls went up would be of no relevance?
MR FLEMING: I would agree. You have to adopt an accountancy
audit viewpoint on this. We represent 6,000 members. If you look
at the political parties, the Conservative Party only has so many
thousand members but they are activists, these are the people
who have taken the trouble to join an organisation.
MR ATKINSON: The point I am trying to get at is we are talking
about locus standi here, and some of your members would
be selfemployed painters and decorators who would regularly
travel through the tunnels and therefore this would have a substantial
impact on their business but an awful lot of your 6,000 members
would have absolutely no interest in the tunnels at all because
they or their customers would not travel through it. We are talking
not about 6,000 members but a lot fewer.
MR FLEMING: As far as I am concerned you must take this audit
viewpoint. We have 6,000 members. In terms of feed-back, it is
the like the viewing figures for TV, they know 15 million people
watch it but they do not ask 15 million people. All we know is
the number of people raising objections to this and that objections
are raised even more when they got into the difference between
this consultation practice and the Bill.
MR ATKINSON: I do understand that. What I am trying to get
at is a better idea of how many of your members would be affected.
I gave the example of somebody like a selfemployed painter
and decorator who drives through the tunnel but I do not see how
a newsagent's business on the Wirral would be affected by this.
Perhaps you could explain.
MR FLEMING: It is very difficult to pick up on your point.
Maybe I can give another example. I am concerned at the overall
knockon effect on the economy. We have the largest employer
in the Wirral that, literally, if we were granted the opportunity
of our petition, we would bring this person along who will state
that virtually for the flip of a coin 3,000 jobs would have been
lost in the Wirral last year because an American conglomerate
was looking at closing a factory in the Wirral or a factory in
Scotland. These guys sat there in the States looking at numbers,
that is all these guys do, and they were saying, "Gee, this
factory is okay but why are the transport costs so high?"
It went down to the wire. It was only through the intervention
of Members of Parliament that the factory was saved in the Wirral.
These are the impacts. It is not the guy that is going through
the tunnel, it is a far wider issue. This is the biggest employer
and the Wirral could least afford to lose business, never mind
we are trying to create inward investment into the Wirral and
Merseyside. At the moment Liverpool is on a little bit of a rise
with a major investment on the waterfront. We would like to see
this continue across the other side of the water and we feel this
particular Bill is not the way forward. I would be there at the
front of the queue to try and sort out a really good way forward
to bring forth an end to some of the inefficiencies on the tunnel
but I do not think this Bill is the right way. That is the major
CHAIRMAN: Thank you. Mrs Perham?
LINDA PERHAM: You say in your evidence, Paragraph 13, there
is "increasing evidence" becoming available to show
that the high cost of transport to other parts of Merseyside is
discouraging businesses from setting up or relocating to the Wirral.
You have just mentioned this particular factory in the Wirral.
If you are allowed to proceed will you be able to present further
evidence on that matter? It is very easy to say "increasing
MR FLEMING: It is a very hard thing to show that somebody
has not done something but there are instances where people come
through to me in my position. They want advice over setting up
businesses, etcetera. I had one instance where two chaps left
the Army and wanted to set up a business. I met them, showed them
round the area, tried to get them to locate in the Wirral, and
they were looked after very very well. The one stumbling block
was "we are a warehousing company", and they went to
another area north of the river because they could not afford
the tunnel costs and the thought of them being increased was an
absolute discouragement to them. It is a unique situation. It
is a total monopoly at the moment. The tunnel is an artificial
barrier that should not be there. It is five miles of roads. There
are two tunnels. When we are talking about the tunnel we are talking
about two tunnels. The total milage is five miles but this is
an economic barrier to the area. It is something I would like
to see go away. I have felt for many years that the Tunnels should
be part of the national road system. We might not ever get there
and in fact there is a need for some form of control in the traffic.
I would love to try and be part of a scheme that would make the
place more efficient. This Bill will literately put under the
table any rights of any of the businesses to bring it forward
or air it again. This is my major objection because it is not
LINDA PERHAM: You are the Federation of Small Businesses.
Obviously you are the only one that is petitioning. Are there
other businesses or organisations like the Chamber of Commerce
who, for whatever reason, are not petitioning?
MR FLEMING: Yes, it is one of those reasons that I think
if you check with everybody all of these organisations are against
it but literally I put my hand up and I said I will at least try
and carry the cudgel. We understand that this is not the normal
thing for people like yourself and we are taking you away from
your jobs as well. To have the Chambers of Commerce and the Forum
for Small Business, everybody, putting a petition in was not the
right way forward. I cannot speak on behalf of the other people.
I have made the effort to come forward here and I am grateful
for the opportunity to be here. If you follow all the press cuttings
there is a general consensus on Merseyside from the general public,
business organisations, academics who are all against this Bill.
LINDA PERHAM: You said opinion was polarised in this area.
We know there are people in favour of the Bill or it would not
be coming forward. You are saying in general the feeling amongst
businesses is that it would be disadvantageous and general business
in the area would suffer if this Bill were to go forward?
MR FLEMING: Yes, because this Bill in its entirety will throw
open all manner of things that Mersey travel can do. They have
gone from the original consultation document where it was really,
"Unless we can find a fast track way of raising money, we
are all going to be in trouble", and it was scaremongering
tactics to help them through with this. "We only want to
put things up in line with inflation, let's just get this Bill
through." Suddenly we have gone from a situation where local
councillors were scared stiff into agreeing with this because
part of the consultation said, "Everything is all right now,
but if things go a slightly different way, we are going to have
to ask you to put your hands in your pockets", the councils
ran scared and suddenly we go to a Bill where, "Never mind
covering costs, chaps, what are we going to do with all the excess
profit we are going to make?" The fact that excess funds
have been used for two holes in the ground is not acceptable either.
As far as I am concerned our tunnels are a fact of life but they
should be made as efficient and as cost-effective as possible
and not be used as a cash cow to service any other ways.
I firmly believe it is against the EU Directives. It
is in the petition. This is not the opportunity to bring it up;
but I go back to my whole point that when I looked originally
into this Bill that they want to put prices up in line with inflation.
That sounds very good but what you have to remember is that the
normal rate of RPI index is based on a basket of products which
are basically products such as food, fuel, etcetera. If that works
out as an annual rate of inflation of five per cent that does
not apply to the Mersey Tunnel or public utilities because they
do not eat food and they do not use fuel. Basically, in a nutshell,
they encapsulate the fact that Merseytravel are not just trying
to balance the books, as it were. They knew by this RPI index,
which on the face of it sounds quite viable, they were going to
create cash. To me that was not exactly telling the truth. Again
it is one of the reasons why I am here objecting to the Bill as
LINDA PERHAM: Thank you, Chairman.
SPEAKER'S COUNSEL: I may be repeating ground that has already
been covered. I appreciate that the Mersey area is an economic
entity divided by a river and getting across the river is obviously
important in the area, but I have not quite got to the bottom
of how the cost of crossing the river through the tunnel
which someone said was £2.40 for a return journey for a car
and £10 for a lorry has an impact on the costs of
a typical member of your Federation. To what extent are small
businesses constantly sending lorries backwards and forwards across
the tunnel in the Mersey area? You are not coming here saying,
"Here is a business that will lose ten per cent of its turnover.
I can show you it will lose ten per cent of its turnover if this
Bill goes through." You are saying that there is a complex
economy in the Mersey area and there are adverse consequences
on that complex economy if the Bill goes through and our members
will suffer. Can you be a bit more particular about it?
MR FLEMING: It comes back to a basic economic viewpoint.
We look at the European Common Market and we are looking for this
level playing field. The people in Merseyside have not got a level
playing field. If you look at the rates of pay for the selfemployed
they are lower than the national average so you have got some
small business guys trying to earn a living. If he has to go through
the tunnel one return trip a day that is £600
and £600 a year at present rates. We are looking at some
system that could increase that amount of money and it is an awful
lot of net disposable income on a small businessman. At that particular
level, if you want to home in on that level, it will materially
affect these small members of the community.
The other thing about the proposed tax in London is
at least there is some sense in that it will be a tax for the
day. In Liverpool a small businessman might want to ply his trade
going backwards and forwards between Birkenhead and Liverpool.
He does not get a day pass. Every time he goes through it is an
extra charge. These are the areas I would have loved to have got
to grips with Merseytravel to try to improve some of the facilities.
I believe this particular Bill, if it goes forward ,will put everything
under the carpet and say here is a pricing structure in place
and that is it. We need better ways of pricing the tunnels, better
economies to be brought in and I feel we will lose the opportunity
if this Bill goes forward in its present form.
CHAIRMAN: But might not your complaint really be a generic
complaint that businesses, depending where they are, might have
all sort of ways in which they might have impositions to their
costs. I know the area of which we speak pretty well and the whole
region in fact; and companies which happen to be indigenous to
the West Cumbrian coast have a penalty because they have got to
travel a certain distance in difficult conditions to get anywhere
and to communicate with any of their business partners. That is
a fact of life. The fact that Merseyside is divided by a river
which requires a tunnel of which one of the means of financing
it is a toll. Is that not a similar fact of life?
MR FLEMING: It is a similar fact of life but if we have the
ability to improve that situation we should surely take that.
CHAIRMAN: Arguably that is what Merseytravel is seeking to
do, albeit in a way that you do not like. The arguments are about
which way it should be done. As I think I heard in some of the
arguments we have already heard, it is a question of fairness
as to whether it is done one way or whether it is done another.
MR FLEMING: Again I cannot accept that interpretation because
Merseyside is unique. It has received Objective 1 funding from
Europe on two occasions. I firmly believe that the money will
be illspent as it was last time. To me we would be far better
redirecting that money. I would have loved to have had some of
that money to write off part of this debt on the Mersey Tunnel.
Then we could have at least had some improvements. The problem
with the pricing of the Mersey Tunnel at the moment is that it
is literally 30 million journeys, say at an average of £1,
it is £30 million and the one has got to equate to the other.
This is because we have £114 million worth of debt, etcetera,
that I do think should be written off somewhere. We have got £680
million coming from Objective 1 funding. I would like to have
seen that go into somewhere we can help. I would have liked to
have been part of some system where we could try obtaining money
to give the Mersey Tunnels' finances some more stability so that
it could engage itself in better pricing policies which would
help an integrated transport system within Merseyside. All I am
saying is with this Bill going through we would lose the opportunity
to do that again. I do not accept the fact that the Mersey is
there and we have got to put up with it. Again I come back to
the fact I think it should be part of the national road system.
Why should the people of Merseyside have to pay for the five miles
of road because of the fact that it runs under a river?
CHAIRMAN: But is lack of consultation really sufficient argument
to persuade us that you should have a locus within the
terms of the Private Bill procedure? There is many an occasion
when a lack of consultation can be shown. I understand that the
Government is eyeing up a part of Merseyside for a possible asylum
removal centre which I am led to believe is scaring business away
like mad. There is no consultation about that. Are you saying
because we are not consulted therefore that is a reason for gaining
MR FLEMING: No, I am saying that I think I have better ideas
than are on the table at the moment. The previous Mersey Tunnel
Bill of 12 months ago had a bit more merit to it. This one to
me has no merit to it whatsoever.
CHAIRMAN: Taking up Mrs Perham's point, it is interesting
is that we have the TUC, we have four unions and we even have
an individual, yet we do not have the CBI, we do not have the
Chamber of Commerce, or any other business organisation or even
an individual business on a par with Mr McCoy as an individual
citizen seeking to petition. Is that not interesting?
MR FLEMING: It is interesting. It probably answers the question
why the FSB is probably the leading organisation now for the selfemployed.
If there are 20 people behind me all well and good; but I cannot
be criticised for being here. As far as I am aware I sufficiently
represent trade and business.
CHAIRMAN: Certainly I am not faulting your own determination
and it is absolutely right that you should do that, but it is
surely an indicator if we have, as I say, the broad union representative
body, four unions themselves and even an individual, and the business
case that your admirable organisation represents, but no one else
has thought to petition?
MR FLEMING: The people locally have said, "We know the
FSB is doing it, we know the TUC is doing it, we will sit back."
I have been in communication with local Chambers of Commerce.
They are in agreement with what we are doing but they have not
bothered to petition. Again it would have been very difficult
because of the process to do a conjoined petition. The promoters
are querying whether I have an authority. I have kept authority
at regional level because it was easier to do it like that. I
could have gone to the national organisation to obtain the consensus
of members but I dealt with it at regional level. It is a complicated
process that we are going through. A lot of the other organisations
have just sat back and said there are other people there doing
it, that should be sufficient.
CHAIRMAN: Thank you very much indeed. We now come to the
Agent for the promoters, Mr Owen.
MR ROBERT OWEN: Chairman, good morning and good morning to
members of the Court. My name is Robert Owen and I am a Parliamentary
Agent and a solicitor with my firm Bircham Dyson Bell acting of
course for Merseytravel.
If I could ask for a very small bundle I have had prepared
to be handed round. I can assure you that it is less formidable
than it looks. I think it will help the Court with the various
issues I would like to focus on and it contains extracts from
previous decisions of the Court of Referees.
MR ATKINSON: I just want to raise a point. This is quite
a large document and we have not had any time to read it. It would
have been helpful if we could have had this with our papers before
so we could have absorbed it before.
MR OWEN: The points I wish to make can be made quite briefly
with reference to it. I did enquire of the House Authorities before
today and it was suggested that it would not be appropriate to
produce anything in advance. I am merely doing what has been done
in the past. The bundle contains an outline of the issues that
I would like to cover and many extracts from Erskine May
but I am very happy to proceed without it.
CHAIRMAN: I think I would prefer if you proceeded without
it. I declined the opportunity to take other documentation from
one of the other petitioners, so I would rather put this to one
side and you speak as they did individually directly to the Court.
MR OWEN: Sir, if I could start by way of introduction to
just mention that of course the role of the Court of Referees
and the rules relating to locus standi as they had developed
were considered in a modern context by the Joint Committee on
Private Bill Procedure which reported back in 198788. That
Committee considered it a fundamental principle of Private Bill
legislation procedure that only parties that were specially and
directly affected by Private Bills should be heard and the Committee
recommended that promoters should be encouraged to police the
rules of locus standi. We are here today, Chairman, in
the spirit set by the Joint Committee. The guiding principle of
locus standi is that petitioners only specially and directly
affected may be heard against Bills. The former Member Geoffrey
Lofthouse MP, reiterated that point in virtually the last words
of the last hearing of this court, when he said that: "the
rules of locus standi require a petitioner to show that
they are directly affected in a manner which is distinct from
the public at large."
By way of introduction, Merseytravel is, in fact
and this may help the Court the operating name for the
Merseyside Passenger Transport Authority and the Merseyside Passenger
Transport Executive. This Bill is being promoted by the authority
being the public body that is comprised of 18 members nominated
by the five constituent Merseyside councils, namely Liverpool
City Council, Wirral Council, Sefton Council, St Helens and Knowsley.
In terms of the background to the Bill, reference has
been made this morning to the earlier Private Bill promoted by
Merseytravel two years ago and it is a fact, Chairman, that this
Bill is materially different from that Bill in one respect, which
is that whilst the former Bill sought provisions relating to tolls
which are virtually identical to the current Bill, it also went
on to seek a number of powers in relation to the future operation
and maintenance of the tunnels being transferred to a concessionaire.
Merseytravel has thought again about that second element and has
publicly said that it wishes the tunnels to remain in public ownership
and daytoday control. Certainly the first half of
that former Bill is virtually identical to this current Bill so
it is not correct to say, as I think has been said this morning,
that the tolling provisions of the first Bill were different and
better in some way.
Without wanting to labour the merits of the Bill because,
although that would be tempting, I understand, of course, that
it is not the purpose of today's proceedings, I would like for
a minute or two to give you some background which will help you
to understand the purpose of this Bill. The volume of traffic
using the Mersey Tunnels has grown steadily over the last 30 years
despite regular toll rises and it has now reached 90 per cent
of the lane and exit road capacity at peak times on week days.
Queuing is a growing problem at these times despite the tidal
operation of lanes in the morning rush hour. Many tunnel users
have to travel at peak times and yet surveys show that 25 per
cent of those tunnel users could switch to public transport. After
suffering substantial operating losses and escalating debt for
25 years, the tunnels' finances have been stable now for a decade.
Current toll levels which I can confirm are £1.20,
£2.40, £3.60 and £4.80 for cars up to heavy goods
vehicles were fixed in 1999 and they continue to produce
sufficient toll income to meet annual operating and refurbishing
costs and capital financing and debt charges. Currently debt stands
at £120 million or so and that is gradually being repaid.
It will not be totally repaid until approximately the year 2035.
Tolls, however, may have to increase in due course to pay for
inflation on operating costs and continued refurbishment of the
tunnels for health and safety purposes. As the tunnels get older
and health and safety requirements become more and more stringent,
the cost of maintenance will increase and the increasing usage
of the tunnels will mean that maintenance work will have to be
done at unsociable hours which of course has an added cost to
it. Nevertheless, the current toll increase procedure involves
a public inquiry and can take two years to conclude. Operating
losses in the meantime have to be met by local council taxpayers
even though the tunnels are only used by three per cent of Merseyside's
population. That is precisely what happened between 1988 and 1992
when the total operating losses of £28 million had to be
financed by the local councils.
Merseytravel is seeking powers to allow tolls to rise
in line with inflation. This will mean an increase of ten pence
on the car toll every three years or an extra pound a week for
most motorists if inflation continues at two per cent a year.
Merseytravel believes that toll rises of this nature will help
to manage traffic growth, avoiding further congestion and pollution
and provide more than sufficient income for the tunnels' needs.
Merseytravel wants to replace the requirement to reduce the tolls
once the tunnels are debt free, which is a current provision in
the legislation, with a provision to allow surplus toll income
to be used to improve local public transport services and Merseytravel
believes that is in line generally with Government policy on road
congestion charging. It is felt that modest toll rises will help
to manage the growing tunnel traffic and obviously provide finance
to help improve local public transport services.
I mentioned earlier that surveys suggested that up to
a quarter of the tunnels' users could switch to public transport
and Merseytravel believes that this Bill will encourage that switch
helping the local environment and helping to protect local council
CHAIRMAN: Mr Owen, you acknowledged the fact that we are
not meant to be talking about merits. You now seem to have been
talking about them for quite some time. This is about locus
MR OWEN: I appreciate that. I thought that in view of what
we have heard this morning it might be of some assistance. Finally,
in terms of figures, sir, I can confirm that 25 million vehicles
use the tunnels a year, which equates to 40,000 people regularly
using them a week, which is 80,000 movements a day. Those are
the current figures 80,000 vehicle movements a day from
40,000 regular users.
Chairman, I am not sure if you wish me to address the question
of consultation. I could do. There has been extensive consultation
on the Bill including with unions particularly and extensive efforts
were made following the General Election last year to involve
the tunnels' unions and that offer, that olive branch, was rebuffed,
as we would see it. The consultation was, in our view, thorough.
It was a threemonth consultation exercise carried out in
accordance with Cabinet Office guidelines, and the resulting Bill
that was promoted was unanimously supported by the Passenger Transport
Authority, Merseytravel, and was also supported by its five constituent
district councils. We simply do not accept there has been inadequate
consultation. We feel that the consultation undertaken was very
thorough indeed. One is often accused of consulting poorly but
we feel in this case Merseytravel that bent over backwards to
Could I clarify the other factual matter in terms of river
crossings. Within Merseytravel's area there are public transport
crossings, the Mersey ferries and also the Mersey rail network
which has tunnels under the river connecting the Wirral with Liverpool
City Council's area. Those are both within the management of Merseytravel
and of course a key purpose of the Bill is to use tunnel tolls
to improve public transport in Merseyside, including to improve
the Mersey rail services and the Mersey ferries.
Sir, in terms of the petitions I would like to take
the Regional Office of the North West TUC, the Federation of Small
Businesses and the Tunnels' unions first, because the rules relating
to the locus standi of individuals are rather different
and it might be appropriate for me turn to Mr McCoy in a while.
Standing Order 95(1), which has been referred to, provides
that "where any society or association, sufficiently"
and I stress that word "representing any trade, business,
or interest in a district to which any bill relates, petition
against the Bill, alleging that such trade, business, or interest
will be injuriously affected by the provisions contained therein
..." then it is competent to the Court of Referees to award
a locus if it so wishes.
That Standing Order sets a threepart test which
I would like to go through. It requires the petitioner first of
all to demonstrate that the petitioner sufficiently represents
a trade, business, or interest in the district to which the Bill
relates. Secondly, it requires the petitioner to allege in the
petition that those it represents will be injuriously affected
by the provisions of the Bill and, thirdly, it requires the petitioner
to prove that those it represents will be injuriously affected.
Dealing with the first point, whilst we do not raise
any objection against the individual tunnels' unions under this
head, on the point of whether they are sufficiently representative
of a trade, business or interest, we do submit that umbrella groups
such as the Federation of Small Business and the North West TUC
cannot be said to represent any particular trade or business.
Our understanding is that the Federation is a lobbying organisation
for small and medium sized business and thus purports to represent
those businesses in general rather than a particular trade or
business. In fact, I see from the Federation's web site that the
Merseyside and West Cheshire region, which is the region in whose
name the petition has been lodged, covers the geographical area
of Southport in the north to the border of Shropshire, and from
the Wirral in the west to the border of Greater Manchester in
the east. This is a significantly wider area than Merseytravel
covers which is confined to Merseyside. It is that region which
has 5,550 members and is divided into six branches one of which
is the Wirral branch, which has a current membership of 1,162.
Similarly, the North West TUC states at paragraph 7
in its own petition that it is an organisation representing the
interests of approximately 200,000 trades union members in Merseyside
but the same point applies. The North West TUC represents trades
unionists in general rather than a particular trade or business.
Its membership comprises affiliated unions rather than individuals.
This distinction between organisations that represent a specific
trade or business and those that represent a trade or business
in general is well established and has long been recognised by
The second test is a requirement to allege in the petition
that those whom the petitioners represent will be injuriously
affected. Each petition states that "Your petitioners and
their rights and interests are injuriously affected by this Bill
to which your petitioners object for reasons, amongst others,
hereinafter appearing." They go on to state that these consequences
that they refer to will have an injurious effect upon your petitioners.
The allegation is that the rights and interests of petitioners
as corporate entities will be injuriously affected but at no point
in the petitions is it alleged that the members of petitioners,
let alone their trades or businesses, might be affected. No allegations
are made to the effect that any members practising any individual
trade, for example tunnel workers or engineering workers, will
be specially and directly affected by the Bill. It is noteworthy
that Standing Order 95 does not entitle a representative organisation
to petition on its own behalf, only on behalf of the trade, business
or interest of the members that it represents. It is also a wellestablished
principle that locus standi is limited to points made in
the petition and although today we have heard arguments that members
of the petitioners will be injuriously affected that is not something
that is in the petitions.
I recognise that those first two points are slightly
technical but the third point is even more important, in our submission,
which is proof of the allegation that members of the unions and
the Federation are specially and directly affected, which of course
is the fundamental principle of locus standi. If we therefore
assume, or if the Court is inclined to read the petitions as if
they did allege that the membership of the petitioning organisations
is affected, then those petitions must still provide grounds for
believing that the trades, businesses or interests of individuals
will be injuriously affected. Chairman, your Court has consistently
ruled that in order to be granted a locus petitioners must
be affected to a greater extent than an ordinary member of the
public, and I referred to the words of Mr Geoffrey Lofthouse earlier.
Equally, if the Court accepts the promoter's argument
that the petitioning bodies themselves have not alleged that their
members' trades, businesses or interests are injuriously affected
by the Bill, then the petitioning bodies themselves need to demonstrate
that they themselves are affected to a greater extent than the
general public. It is our submission that this Bill will affect
neither the members of petitioning bodies nor those bodies themselves
any more or any less than any other tunnel user. That is the key
point. That is admitted in the petitions themselves. Paragraph
13 of the TUC and Federation petitions and paragraph 11 of the
other petition state that "the said proposed change to the
1980 Act is wholly undesirable, and prejudices the interests of
all tunnel users, and those living and working in the surrounding
Mr Cashman earlier constructed an argument that because
of the tension between the continued maintenance of the tunnels
and using surplus toll income for public transport purposes, the
Bill would create an effect on his members. There are a number
of points in answer to that but just briefly, of course Merseytravel
would remain, whatever happens to this Bill, under an obligation
to maintain the tunnels and any effect that Mr Cashman tries to
make out (apart from being most unlikely to happen bearing in
mind the constraints under which Merseytravel will be operating)
will be a very indirect effect and we would invite the Court to
dismiss that argument. An additional point of course is that that
argument is not in Mr Cashman's petition and that is an argument
that he raises purely today. We say that in itself means it should
not be taken into account.
The final point I would like to raise in relation to
the Federation and Unions' petitions is that we say that they
are really objecting to the Bill not because they or their members
are directly and specially affected by it, but they are objecting
on public policy grounds, as has been discussed earlier today.
The requirement for petitioners to prove that the Bill specially
and directly affects them is an important safeguard which has
long been applied by the Court to prevent Parliament's role from
being usurped. It is our case that it is for Parliament not petitioners
to determine whether or not a Bill is in the public interest.
The Court has regularly refused locus standi to groups
or individuals petitioning on the grounds of public policy. In
summary, in relation to the Unions' petitions and the TUC's and
the Federation of Small Businesses' petition, we say five things,
First, neither the North West TUC nor the Federation
is an organisation which represents a trade or business. Secondly,
none of the petitioners alleges in their petition that the trade,
business or interests of their members is or will be injuriously
affected. Thirdly, even if they had made that allegation, we say
that the trade, business and interests of the members of the petitioning
organisations are not affected any more or any less than any other
user of the tunnels. Equally, fourthly, we say the interests of
the petitioners themselves are not so affected. Fifthly, we say
that objections to the Bill on grounds of public policy do not
entitle the petitioners to be heard on their petition. We submit
that each one of those objections on its own is enough for the
Court to refuse to grant locus standi to the petitioners.
Before I turn to Mr William McCoy, I can say that we
do not propose to take any further the point about signatories
and resolutions. We had not been given copies of those before
the notices of objection had to be lodged and therefore we were
not in a position to know what resolutions were or were not authorised.
We are very happy not to take that point further, Chairman.
If I can turn finally to the locus standi of
Mr McCoy, because being an individual the rules are a little different.
We are told in the joint petition of the Tunnels' Unions that
he is a resident of Liverpool, a maintenance worker in the tunnels,
an active trades unionist, and a user of the tunnels. We believe
for him to establish locus standi he has to demonstrate
that he personally is specially and directly affected by the Bill
or, secondly, he is entitled to locus under Standing Order
I would like to take the first point first. Mr McCoy
himself makes no claim whatever in his petition that he is specially
and directly affected by the Bill. As with the unions we say there
is no more effect on him than any other user of the tunnels and,
as the Court has frequently made clear in the past, an individual
who is unable to demonstrate an interest in the Bill which is
distinct from the interest of the general public has no locus
The second point deals with Standing Order 96. That
provides that a petitioner can be awarded locus if he is
the local authority of any area the whole or any part of which
is alleged in the petition to be injuriously affected by the Bill,
or if he is one of the inhabitants of any such area. Despite the
fairly clear words of Standing Order 96 a long line of decisions
of this Court has made it quite clear that for an individual to
obtain locus under this Standing Order he must be representative
of a substantial body of residents.
In paragraph 11 of the petition Mr McCoy makes the allegation
that increasing tunnel tolls in line with inflation prejudices
the interests of all tunnel users and those living and working
in the surrounding area. Even he does not allege he is petitioning
as a representative of local residents, let alone that he represents
a substantial proportion of them.
The final point in relation to Mr McCoy is that it is wellestablished
that under something known as the "doctrine of representation"
an elector may not be heard against a Bill that is promoted by
a corporation or an authority to which he pays a charge. There
is a long line of decisions by the Court to this effect and, furthermore,
the doctrine extends to cases where the petitioner pays a charge
to a constituent authority which nominates members of a joint
authority such as Merseytravel. Mr McCoy states in paragraph 5
of his petition that he is a resident of 4 Manica Crescent, Liverpool,
L10, which is situated in the area of the authority. Applying
the doctrine of representation to Mr McCoy, he is liable for council
tax levied by Liverpool City Council, one of the five local authorities
which elects members to serve on the Merseyside Passenger Transport
Authority and that authority, as I remarked earlier, is the promoter
of this Bill. Applying the doctrine, we submit it is quite clear
that Mr McCoy is not entitled to be heard against this Bill.
The summary of our objections to Mr McCoy is threefold.
First of all, we say he is not affected by the Bill any more or
any less than any other user of the tunnel. Secondly, he does
not allege that he is representative of a large body of residents
nor does he represent such a body of residents. And, thirdly,
Mr McCoy is represented by Merseytravel indirectly and in accordance
with the doctrine of representation may not be heard against Merseytravel.
As with the Unions and the Federation, we submit that any one
of these three objections, if sustained, is sufficient for the
Court to refuse to grant locus standi to Mr McCoy.
In summary, Mr Chairman and other members of the Court,
our conclusion is that none of the petitioners is, putting it
broadly, specially or directly affected by the Bill, therefore
none of them passes the test which has been established for many
many years and on that basis we would invite the Court to disallow
locus standi in all three cases. If there is anything else
I can help you with I am happy to.
CHAIRMAN: We may ask questions. Thank you. Mrs Perham?
LINDA PERHAM: Just a point of the clarification, Mr Owen.
You did say that only three per of the population used the tunnel.
What population are you talking about?
MR OWEN: Three per cent of the population of Merseyside,
which is comprised of five districts, Liverpool, Wirral, Sefton,
St Helens and Knowsley.
LINDA PERHAM: What about the other 97 per cent?
MR OWEN: Sorry, if it was unclear. What I had intended to
say was that three per cent of the population of Merseyside use
LINDA PERHAM: Of Merseyside?
MR OWEN: Which is the 40,000 regular users.
LINDA PERHAM: Presumably the others are people connected
with businesses or travelling from outside the area and into the
area that is not covered by Merseytravel?
MR OWEN: A proportion of the 40,000 regular users come from
outside Merseyside. I am not entirely sure without checking what
the precise proportion is. Certainly three per cent of those living
in Merseyside are regular users. That is what I intended to say.
I apologise if it was unclear.
MR TURNER: You did state, did you not, that you were very
happy with the consultation that is taking place and that everyone
had been consulted, but we heard from Mr Fleming that his organisation
had not in any way been consulted. How do you reconcile that?
MR OWEN: The consultation included a number of business umbrella
groups, if I can put it like that, like the local CBI and Chambers
of Commerce. I cannot say directly why the Federation was not
consulted. I imagine it was an unfortunate oversight that regrettably
happens sometimes. The consultation exercise was a threemonth,
very considerable one. It was a very interactive exercise involving
not just those who are normally consulted on these sort of things
but tunnel users. There was a full effort made at the end of the
exercise to analyse the results of the consultation and to inform
consultees of the Passenger Transport Authority's decision to
proceed with the Bill. We certainly feel that business interests
were consulted. If I may, the consultation document I have just
been handed has a list of initial consultees in Appendix 5 and
the document goes on to stress: "Merseytravel wishes to stress
that it would welcome views from any individual users of the tunnels
and representatives of the local community. To that end the initiation
of this consultation document will be given wide publicity."
Appendix 5 is a long list of consultees business community
representatives, Liverpool Stores Committee, Chambers of Commerce
and Industry from Mersey, Liverpool, St Helens, Sefton, and the
Wirral. There are other headings with trade unions, for example
the Amalgamated Engineering and Electrical Union, motorists, motoring
organisations, public transport operators, local community representatives,
academia, MPs from Merseyside and Mersey belt constituencies,
and local and public authorities of Merseyside. So it was certainly
felt that a very fair attempt had been made to capture all of
those who had an interest. I accept, of course, that the Federation
is not on that list and that is very much an oversight. I am sure
that is the case.
MR ATKINSON: Could you help me on one point. Under the existing
arrangement Merseytravel has to publish an intention to increase
tolls whereby outside organisations, like the ones represented
perhaps here today, are able to make representations to oppose
those. That is correct, is it not?
MR OWEN: That is correct. The current procedure is if there
are unsustained objections there is a public inquiry. That applies
if Merseytravel is seeking an increase in line with inflation
or a real terms increase. There have been over the last 20 or
30 years eight such public inquiries and in every case the increase
applied for has been approved despite there being objections.
Certainly the proposal here is that the tolls be index linked
to keep them in line with inflation automatically in terms of
there being an annual review, not necessarily an increase but
an annual review, and if inflation has been sufficient in that
year then the tolls will go up. Certainly that is the procedure.
MR ATKINSON: If this Bill becomes law what other avenue would
there be for people to make any representation to Merseytravel?
I believe the Secretary of State has some role in it.
MR OWEN: If I can answer your question in two parts. So far
as inflationary increases are concerned, whilst the review procedure
would be automatic, the Bill does provide for the Passenger Transport
Authority to and I am not sure Members of the Court have
the Bill in front of them at each occasion before the tolls
go up in line with inflation to consider the economic and social
consequences of that and, if necessary, to temper that inflationary
increase. There is protection there and of course Merseytravel
is made up of publicly elected representatives.
MR ATKINSON: If, for instance, the petitioners thought that
the Executive had not properly considered the economic and other
impacts of it, they would actually have no opportunity to make
MR OWEN: They would in the extreme be able to apply for a
judicial review of Merseytravel's decision not to temper tolls
because of economic considerations, and of course they would be
able to try and persuade members of the Passenger Transport Authority
to exercise that power because they would have direct access to
them being their own councillors in their own districts.
That was the significant modification to the first Bill.
We have sought to put that protection in to temper, in appropriate
circumstances, in case of an economic slowdown or such circumstances,
the effect of the index-linking of the tolls. Certainly in terms
of real terms of toll increases then the provision in the Bill
is largely identical to the current legislation, which is that
there would be an ability for the Secretary of State to hold a
public inquiry if he felt that the real terms increase being sought
by Merseytravel warranted a public inquiry and if objections were
such that a public inquiry was warranted. That would be the procedure
in terms of real terms toll increases.
MR ATKINSON: Could you explain, Mr Owen, why it is that the
Merseyside Passenger Transport Authority should be so concerned
about these organisations petitioning a Private Bill Committee?
In normal circumstances Private Bill Committees, and I was the
veteran of a very long-running one, were quite happy and prepared
to hear petitioners. It was part and parcel of the procedure.
Why should you be so excited that Mr McCoy should come and give
MR OWEN: We are, as I indicated in opening, doing what Parliament
has enjoined promoters of Bills to do, which is to police the
rules. Last time round, when the Bill was considerably broader
and dealt with powers to operate the tunnels on a concession,
we acknowledged that there were concerns being expressed by the
tunnel unions in that case that could affect the terms and conditions
of the employment of their members and therefore we did not challenge
the locus standi of these broadly same
petitioners last time round, but for good reasons. We thought,
"Well, we do not agree with what you are saying but we can
understand why you might be concerned. We are going to try and
take you through those concerns".
We do not feel this time around that they have really
thought about the Bill. We do not feel that they have acknowledged
that it is a very different Bill in that we are not pursuing powers
for the tunnel to be operated on a concession by a private sector
company. We feel they have not really responded to the changes
we have made and the petitions actually bear a striking resemblance
to the petitions the first time round. That was why we felt in
this case that the time of honourable Members going through a
two or three week Opposed Bill Committee based on these petitions
was not worthwhile. We do not feel that they are specially and
directly affected; it is an unjustified use of time and we are
operating the rules.
SPEAKER'S COUNSEL: Mr Owen, would you agree that it is fair
to characterise the Bill which your clients are promoting as being
innovative, that is to say, that by providing that the proceeds
of tolls may be applied for purposes other than the construction
and maintenance of the tunnels it is breaking in Private Bill
terms new ground? Would that be a fair way of characterising it?
MR OWEN: In terms of the power to cross-subsidise, which
is what I think you are referring to, certainly the index-linking
provisions are precedented in the Dartford Crossing legislation
and the Severn Crossing legislation. In terms of the power to
cross-subsidise, of course the precedent has been set by the Transport
Act 2000 and the Government's policy on road congestion user charging
and providing for a ring-fenced funding mechanism to improve local
transport services and the like. We merely feel that this Bill
is a local application of what is now established policy and therefore,
whilst we think it is an imaginative use of the existing tunnels'
structures to try and improve public transport in Merseyside,
we do not think it is setting a precedent in that respect.
SPEAKER'S COUNSEL: The precedent is in public legislation.
In terms of private legislation do you accept that cross-subsidisation
is an innovation for private legislation? I agree that you have
got a public Bill precedent, but for private legislation that
was something that has not happened before.
MR OWEN: I would accept that. Unless I am mistaken I am not
sure it is anything that the petitioners have objected to in terms
of the precedent, but yes.
SPEAKER'S COUNSEL: Secondly, and this is perhaps an introduction
to this question, on your argument on locus standi is there
any body, either an individual or a representative body, which
would have locus standi to petition against the Bill? Is
there any party out there who has not come forward who in your
view could have come forward, or would your argument defeat any
MR OWEN: It is certainly one of those Bills where it is quite
hard to believe who could be specially and directly affected.
I have not gone through a mental exercise of dreaming up who could
have petitioned and who therefore we would not have objected to
because they would be specially and directly affected. All we
can go on is what we have before us, of course, which is three
petitions, and, looking at those, we do not feel they are in that
category of petitioners who historically have been allowed to
pursue their concerns through Parliament.
SPEAKER'S COUNSEL: We are dealing with an unusual state of
affairs where the authority for the construction of the tunnel
and the authority for its financing (or its financing put on a
new basis) are done through separate Bills. The tunnel was built
a long time ago and now you want to change the basis on which
it is financed. On the basis of your argument that the petitioners
need to show that there is a direct effect on their trade or interest
through the changes in the finances, it seems to me that perhaps
no-one would actually be able to meet your test. That is the point
I am making.
MR OWEN: That may well be the case. I imagine that if a substantial
public body or even one of the local authorities had petitioned
we would not have got this far but, were one of
the local authorities to have been vehemently opposed to it but
nevertheless it was carried through the Passenger Transport Authority,
then I would thought undoubtedly that kind of petitioner would
have a locus standi. I think that because our Bill does
address matters of public policy, whether it is appropriate (albeit
in local legislation rather than public general legislation) to
cross-subsidise and so on are matters of public policy, we would
say, and therefore they are matters on which members of Parliament
are best qualified to and should judge through the procedures
that will still apply to this Bill were the Court to rule today
that locus is to be disallowed. There would still obviously
be Committee proceedings, the Second Reading, and all the safeguards
that are put in place for that very reason.
SPEAKER'S COUNSEL: I suspect that if a local authority had
petitioned against the Bill you might have argued against it on
the ground that they were constituent parts of the promoter. Pressing
on a bit, you have explained to a certain extent why you did not
object to the petitions on the previous occasions. Did you accept
then that certain of the petitioners, at least the individual
trade unions, had locus standi?
MR OWEN: In so far as we clearly, once we had received the
petitions, did think about locus standi, and because of
the second half of that Bill dealing with the future operation
and maintenance of the tunnels on the basis of Merseytravel wanting
to pursue a public private partnership with a concessionaire,
for that reason alone we felt that whilst we did not agree with
the concerns being put forward we could understand why they might
feel concerned, because clearly transfer of undertakings under
a concession agreement to the private sector can raise all sorts
of concerns about pensions, terms and conditions of employment,
etc. We can understand why they petitioned on that ground.
We did not apply our minds to the first part of the
Bill because the heat was very much on the second part of the
Bill last time around and the petitioners last time around did
not really focus, I would argue, a great deal on the first part
of the Bill, but because now it is all they have got to focus
on, even though it is still the same in material respects, we
looked at this in greater detail this time around because we felt
that there was not a case for petitions on the ground of them
being specially and directly affected.
SPEAKER'S COUNSEL: In effect what you are saying is that
it was easier for the petitioners last time round to show that
they had been injuriously affected because the Bill went wider.
MR OWEN: Yes.
SPEAKER'S COUNSEL. And I understand the argument on that.
The third limb of your argument on Standing Order 95 was that
petitioners not only have to allege that there is some injurious
effect on their trade or interest from the Bill; they also have
to prove it. I would like a bit more help on this. Presumably
your argument derives from precedent, from decisions of the Court
rather than from the terms of the Standing Order, which seems
to me simply to require that the petitioners allege some injurious
The point I am trying to make is that if we were to
require petitioners to prove that effect as rigorously as you
seem to be suggesting we would be anticipating the Opposed Bill
Committee that would follow if the petitioners were granted leave.
The extent of the effect on their interest would be one of the
major subject matters for the Opposed Bill Committee. Are you
arguing that we should anticipate that now and, if so, on what
MR OWEN: The point is really that, as some lawyers would
still say, the petitioners would have to make out a prima facie
case. They cannot just say in their petition (not that they have,
of course) that their members are injuriously affected without
there being some credibility behind that statement, because anyone
could say that sort of thing. Our submission would be that the
Court on this case would need to ask itself whether it had heard
any evidence that was a basis for that possibly being the case.
Of course, I accept that the role of the Court is not the same
by any means as the role of the Opposed Bill Committee, but cases
in the past on this point have made it clear that the Court does
inquire a little bit in terms of whether, even if it is said in
the petition that there is going to be a special or direct effect,
that is a credible claim. Maybe "prove" was putting
it a little too strongly.
SPEAKER'S COUNSEL: It is a very helpful clarification. The
burden you are putting on the petitioners is to produce a prima
facie case that there is an injurious effect rather than to
prove it as they might before an Opposed Bill Committee.
MR OWEN: Yes.
CHAIRMAN: Could you just assist me? Are these petitioners
the self-same in every exact sense as the petitioners last time
to whom you did not take objection?
MR OWEN: No, Mr Chairman. The Merseyside and West Cheshire
Region of the Federation did not petition last time round. The
North West Regional Council did, but the significant difference
is in the third one, the Transport and General Workers' Union,
etc, because last time round and I do not have it with
me certainly UNISON was included as a petitioner whereas
UNISON this time has come out in support of the Bill and UNISON
is clearly an important union for the tunnels and Merseyside generally,
as it is in the rest of the country. In terms of the identity
of the petitioners there is a key difference there, we would say.
So far as the petition content is concerned, certainly
they have significantly fleshed out their objections to what was
Part I of the first Bill because now Part I is all there is to
go on whereas last time around they directed their attention very
much on the concession parts of the first Bill and I think we
felt at the time, just through good measure, that there were a
few objections to the tolling parts of the first Bill which, as
I have said, were largely the same as the Bill now before Parliament.
I am not sure, Chairman, if that helps.
CHAIRMAN: So we have the North West Regional Council of the
TUC who were a petitioner last time.
MR OWEN: They were.
CHAIRMAN: And you did not object to them?
MR OWEN: We did not object to them for the reasons I have
CHAIRMAN: Indeed, and the unions who formed a separate petition,
did they still include the TGWU, the GMBU, the AEU and UCATT who
are now minus UNISON?
MR OWEN: From memory, Chairman, yes.
CHAIRMAN: And Mr McCoy?
MR OWEN: Yes.
CHAIRMAN: Including Mr McCoy?
MR OWEN: Yes.
CHAIRMAN: And you did not object to Mr McCoy?
MR OWEN: We did not, again
CHAIRMAN: Despite the very strong reasons you put before
the Court today that he could not possibly be accepted?
MR OWEN: Clearly in that case we had to assess what benefit
would be derived from objecting to Mr McCoy. Had we been successful
on the doctrine of representation point then, it would not have
got us very far because all of the other petitioners would still
have been left in there because it is quite open to the Court
to say in relation to a joint petition such as this one, "Mr
McCoy, sorry: we are not going to allow your locus but
the others can continue". We did not think it was at all
CHAIRMAN: Why not, because we could make the distinction
between any one of the petitions if we chose, so why did you not?
MR OWEN: The purpose of locus standi challenges is
of course, as the Joint Committee said, to help Parliament in
its procedures and the whole purpose of the joint report was to
deal with the time Private Bills were taking up in Parliament
and therefore, had we successfully challenged Mr McCoy but not
the others (because we clearly did not have a basis for challenging
the others), it would not have changed the procedure at all because
there still would have been, had the Bill got beyond the Second
Reading stage, an Opposed Bill Committee and the fact that Mr
McCoy was not there to give his own evidence we felt would have
made a very marginal difference to the proceedings that would
have been before the Committee at the instigation of the other
petitioners who remained. A judgement clearly has to be made in
those sorts of cases, Chairman, in terms of whether it is beneficial
to Parliament to pursue a locus challenge.
CHAIRMAN: But you would accept that the main difference,
so far as the petitioners are concerned, whether they have proved
that they are directly and specially affected, or indeed everybody
is concerned so far as facing increases in charges, is that there
is now no longer the automaticity of a public inquiry if they
wanted it. It would depend on the Secretary of State.
MR OWEN: For real terms increases that is right, it would
depend on the Secretary of State. Certainly we would point out
that real terms increases are very different from inflationary
increases and so far as inflationary increases are concerned,
just as tolls go up in line with inflation, so do other costs
and of course earnings historically go up above inflation. We
think therefore that the economic effect of an inflationary increase
mechanism is neutral, very much so.
CHAIRMAN: Against the loss of that right there is a substantive
difference between the two things. What is two or three weeks
before a parliamentary committee? Is that not a fair deal, that
if they are losing out for ever on something that they had before
they might be judged to have at least one go before a parliamentary
committee to put the case? Is two to three weeks in the oceans
of time really a terrible thing?
MR OWEN: That of course is one way to look at it. I can really
just repeat that we did not feel that these were issues of private
interest. It is public policy on which it is Parliament's job
to decide whether it is appropriate for public inquiries to be
dispensed with in these circumstances or not.
CHAIRMAN: Thank you very much indeed. Could I ask you all
to withdraw whilst the Court deliberates?
Agents and parties are directed to withdraw
and, after a short time, are again called in
CHAIRMAN: Ladies and gentlemen, we are grateful to you for
the presentations that you have made and the helpful way in which
you have dealt with the questions of the members of the Court.
We have decided to grant locus to the North West
Regional Council of the Trades Union Congress, to the TGWU, the
GMBU, the AEEU and UCATT but not Mr William McCoy, and we have
decided to grant locus to Merseyside and West Cheshire
Region of the Federation of Small Businesses.
We have heard the arguments about degree of representation
but we believe on balance, unanimously, that there is a case to
be heard and that there is no detriment to the procedures of Parliament
that it should be heard in the Opposed Private Bill Committee
when these matters can be thrashed out and adjudicated on in the
Thank you very much indeed for your attendance.