Court of Referees Summary Report

Session 2001-02


Petitions of (1) the North West Regional Council of the Trades Union Congress, (2) the Transport and General Workers' Union, the General, Municipal and Boilermakers' Union, the Amalgamated Engineering and Electrical Union, the Union of Construction, Allied Trades and Technicians, and Mr William McCoy, and (3) the Merseyside and West Cheshire Region of the Federation of Small Businesses.

Locus standi of all petitioners, except Mr William McCoy, allowed. Locus standi of Mr McCoy disallowed.

20th March 2002 — before Sir Alan Haselhurst MP, Chairman of Ways and Means, Mr John Vaux, Counsel to the Speaker, Mr Peter Atkinson MP, Linda Perham MP and Mr Dennis Turner MP.

Bill to amend provisions of the County of Merseyside Act 1980 relating to the levying, revision and application of tolls for use of the Mersey Tunnels and to amend that Act for other purposes.

Petitioner (1) claimed locus as an organisation representing the interests of around 200,000 trades union members in Merseryside, many of whom used the Mersey tunnels to travel to work or to pursue their trades.

Petitioners (2) claimed locus as organisations whose members used and worked in the Mersey tunnels. Mr McCoy was a member of the General, Municipal and Boilermakers' Union who worked in, and used, the tunnel and was a resident of Merseyside.

Petitioner (3) claimed locus as an organisation representing local small firms, many of whom used the tunnels to travel to work or to pursue their trades.

Each of the petitioners objected to the Bill because it would provide for annual increases in tolls without recourse to existing provisions for local representations to be taken into account; and would allow revenue from toll income to be spent on other aspects of public transport in Merseyside.

The promoters objected to each of the petitioners on various grounds, including that they did not sufficiently represent a business, trade or interest in the district affected by the Bill and had not indicated how they, or their members, would be injuriously affected by the Bill's provisions. The locus of Mr McCoy was challenged on the grounds that he had no specific and distinct interest in the Bill, over and above that as a worker in, and a user of, the tunnel and as a local resident.

Hanson, for petitioner (1). 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 matter.

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 their trade.

If we are prevented from petitioning against the Bill our affiliates' members have no other forum in which to make their concerns heard. 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.

Mr VAUX. Do you 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 to?

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.

LINDA PERHAM. Can I just clarify, did you say that you were not consulted in the run-up to the Bill being presented?

Hanson. On the second 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.

Cashman, for petitioners (2). 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.

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.

We raised 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 syphoned off to be used elsewhere and this could clearly affect our members.

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. Standing Order 96 allows individual petitioners to be heard in cases like this.

Mr VAUX. 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 tunnels?

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.

Mr VAUX. So you are relying on Standing Order 96 as well as on 95. Is that right, he is an inhabitant of the area?

Cashman. Yes

Fleming, for petitioner (3). 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.

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. Are you saying because we are not consulted therefore that is a reason for gaining locus?

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. 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?

Fleming. It is interesting. It probably answers the question why the FSB is probably the leading organisation now for the self-employed. 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?

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. 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.

Owen, for the promoters. 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 three-part 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.

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.

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 96.

The summary of our objections to Mr McCoy is three-fold. 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.

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?

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.

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?

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.

Mr ATKINSON. If this Bill becomes law what other avenue would there be for people to make any representation to Merseytravel?

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 any representations?

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.

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 evidence?

Owen. We are 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 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 petitioners actually bear a striking resemblance to the petitioners 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.

Mr VAUX. 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?

Owen. 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. We merely feel that this Bill is a local application of what is now established policy and therefore we do not think it is setting a precedent in that respect.

Mr VAUX. The precedent is in public legislation. In terms of private legislation do you accept that cross-subsidisation is an innovation?

Owen. I would accept that.

Mr VAUX. 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 available petitioner?

Owen. It is certainly one of those Bills where it is quite hard to believe who could be specially and directly affected.

Mr VAUX. We are dealing with an unusual state of affairs where the authority for the construction of the tunnels and the authority for their financing (or putting their financing on a new basis) are done through separate Bills. The tunnels were built a long time ago and now you want to change the basis on which they are 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.

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 have 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.

Mr VAUX. 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.


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 effect.

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 authority?

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.

Mr VAUX. 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.

Owen. Yes.

CHAIRMAN. You did not object to Mr McCoy when he petitioned against the last Bill?

Owen. We did not.

CHAIRMAN. Despite the very strong reasons you put before the Court today that he could not possibly be accepted?

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 worthwhile.

CHAIRMAN. 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.

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?

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.

Locus standi of all petitioners, except Mr William McCoy, allowed. Locus standi of Mr McCoy disallowed.

Hanson for petitioner (1).

Cashman for petitioners (2).

Fleming for petitioner (3).

Owen for the promoters.

Agents for the Bill: Bircham Dyson Bell.


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