Select Committee on Procedure Minutes of Evidence



Examination of Witnesses (Questions 100-119)

RT HON SIR IAIN GLIDEWELL, and MR ROY VANDERMEER QC

WEDNESDAY 19 JUNE 2002

Mr Burnett

  100. Could I just ask one supplementary question. You have quite rightly said that need could be taken out of the equation: how long did you spend dealing with that in Terminal 5; and secondly, could you speculate about other issues that could be taken out of the inquiry?
  (Mr Vandermeer) Need was a matter of months, or certainly quite a long time—many days, because we had forecasts of air traffic movements which were challenged.

  101. Anything else? Highways, traffic?
  (Mr Vandermeer) Highways, no, I do not think that could come out.

  102. I meant traffic.
  (Mr Vandermeer) No, traffic, there had to be calculations of traffic, but I envisaged that if I did it in the way I mentioned, that I not necessarily advocate, I merely say if you go the Government's route, then you have to ask yourself what you are saving, and I think you could possibly save. I think the inspector, if he was not faced with need, could come back and say,"These are all the problems, now you, Parliament, can be the judge." I was only going to make this point before stopping, to Mr Hamilton, because I think it goes back a bit to the point you were making about local authorities: that report would effectively be a very detailed planning officer's report to Parliament, leaving Parliament then to pick up the reins just as—

Chairman

  103. Sir Iain, would you like to comment briefly on the discussion and the questions that have been put, because you are here on an equal basis with Mr Vandermeer.
  (Sir Iain Glidewell) I hope I can do so fairly briefly, Sir Nicholas. I agree with Roy Vandermeer that the need and the likely amount of future air traffic, if we are talking about airports—which, incidentally, I regard as the paradigm for this discussion, because it is almost certain that airports in the South East is going to be the next major problem to be dealt with under whatever the system is. I believe that those questions can be taken out of the equation and dealt with by Government, by policy decisions. The question is what happens from thereon as to where that need—once it has been decided that it is in the national interest and it must be met, where is that to go? Suppose one is then confronted with an application by BAA—I pluck this out of the air—to build a third, or, to be very precise, a fourth runway at Heathrow parallel to but north of the A4? With all the enormous implications that has, noise of aircraft in the air and on the ground, destruction of homes, access by road and by rail—possible to widen the M4, impossible or not? Effects upon employment in the locality, all these matters clearly have to be examined, and in some detail, before a decision can properly be made that is going to be acceptable to the public. You have before you—I know because your secretariat were good enough to send it to me—a paper by Professor Malcolm Grant, not to this Committee, but to your sister Committee, and in paragraph 6 of that—your secretariat merely makes a note of the paragraph number—he said, "A planning system will only find the public acceptance that it needs today if it allows properly for the expression of people's views", and I am absolutely confident that that is correct. We do not live in a world where the informed public is going to be willing to accept decisions made on major issues that affect them vitally unless they have been given the opportunity to comment. Even if, in the end, the decision is adverse to their interests, they must have the opportunity in some form or other to be able to express their views. But I go on and say it does not seem to me that it necessarily means that all their views have to be tested by the procedure that the lawyers have inflicted for oral examination and oral cross-examination. I believe that there are quite a number of major issues, and it may be things like, road traffic is one, possible effects upon pollution of the atmosphere is another, which can be dealt with without the necessity for cross-examination in the Court sense. You will notice, Chairman, that I referred in my piece to the Conseil d'Etat; that may have caused a sharp drawing in of breath in some quarters. I am, as you may have gathered, something of an admirer of what I believe to be the system that they operate to deal with this sort of situation. They have an inquiry conducted in-house, in the Council itself, and they have one or more people who act as, in effect, counsel to the inquiry. They do not have privately instructed counsel; CPRE, or the French equivalent, are not represented, but the issues they have raised are represented, and their own in-house people, on behalf of the Council, ask the questions of those who are proposing the particular project under discussion. We do not have anything like that, nor, do I believe, we ever should have or shall have, but I do believe that a system could be adopted that would enable examination of these major issues to take place without quite so much of the apparatus, which we have derived, of course, from the procedures of the Law Courts. I believe that Parliament could be informed, if you think it right, to take on the task of dealing with these matters.

  104. Very quickly, Sir Iain, do you think that Parliament has the competence and the time?
  (Sir Iain Glidewell) I do not think you have the time. I am confident that some of you have the competence, I imagine all of you have. I have been brought up to believe that you are all cleverer than I am. Yes, I am sure you have the competence, but you have to have the time, and I do not believe you have the time. I do not see how you can have. Your diaries are full of all sorts of other things. This demands, as we have both said, full-time application by some person or small group of persons over a fairly lengthy period of time. The Minister was talking about doing the whole process between the beginning of one session and the end, from October to July of the following year. I cannot see a Committee conceivably doing that. Perhaps I do not understand—

  Chairman: Very quickly because I need to pass on.

Mr Burnett

  105. Perhaps it will assist the inquiry to know that you, Sir, as well as Mr Vandermeer, were specialist planning lawyers, and had perhaps 30 to 40 years' experience before you sat on Terminal—
  (Sir Iain Glidewell) I believe that was part of the problem.

Chairman

  106. Are you going to reply, very briefly, both of you? Do you think that is part of the problem, because you are so knowledgeable, and therefore you perhaps go into the matter in immense depth—I personally think it should be done, but do you think that is part of the problem?
  (Sir Iain Glidewell) I believe that part of the problem is that my profession has got hold of the planning process and produced some over-complication.

Mr Swayne

  107. On the basis of what you said about the public not standing for a system where there was not an opportunity for them to be consulted fully, to what extent are the proposals, as they stand, likely to give rise to legal challenge under Human Rights legislation?
  (Sir Iain Glidewell) The proposals, as they stand, if I may say so, are so vague that it is difficult to answer that question, but unless some procedure is evolved that does enable people to have a proper say, either in writing or orally, then yes, I think it is very open to challenge, both in the Courts of this country in the first place, and in the Court of Human Rights in the second, if it gets to that point.
  (Mr Vandermeer) I do not differ from that, but I wonder if I might take up the jocular, I hope, point, without knowing too much about it. It is possible that is a factor, but I think that really what you have to bear in mind is that over time, the issues that inevitably have to be considered have grown. I make no comparison between my inquiry or Sir Iain's and the varying lengths, but I would just make this observation, that the need for environmental assessments has massively lengthened the time that you will have to take, or that an inquiry will take, and inevitably has meant that you have to consider a lot of minutiae, or somebody has, that you would have ignored many years ago. There is a great problem. If I could also pick up on one point Sir Iain made about the workload: I think it is important, when you look at the length of the Terminal 5 inquiry and say, "It took three years and ten months", to bear in mind that we actually sat 525 days. That is a massive amount, and it would be marvellous to cut it down. I believe we should try and I believe we can, whether it is by the Government's procedures or by improving—in the way I have been talking about, and in others, some of the points Sir Iain has been made—the procedures. But we took that time. It was not because we were having lots of holidays. There was such a mass of material coming in through the process and programme of inquiry that we had a couple of weeks' break, after 6, 7 or 8 weeks' sitting to catch up with the reading.

  Chairman: I do not think we ever catch up. Mr Swayne.

  Mr Swayne: Mr Chairman, you are aware I was going to ask a number of questions about the separation of principle and detail, but I think we have already pretty well covered that with evidence from the witnesses.

  Chairman: Thank you. David Wright.

David Wright

  108. Similarly, Chairman, I think a number of the questions I was going to raise have really been covered. I just wanted to reflect on what is currently happening in local authorities for a moment. My local authority in my area, for example, has decided it wants a rail freight terminal, and it is decided on principle of the need for that. It is now trying to determine the best possible site for that. I think that is a trend that we need to follow broadly, and it seems to be what you are saying as well, that at a national level, we need to decide what our key priorities are, what our needs are, remove that from the equation in terms of considering major infrastructure projects, and boiling it right down to the practical nature, in simple language, of whether the project can be applied in a certain location during the public inquiry phase. Is that a fair summary?
  (Mr Vandermeer) With one caveat, that you have made the assumption that it definitely will be provided within your local authority area. In one sense, it is a fair comparison with what I was saying because I am saying they can decide it has got to be put in the South East, but I would have suspected, with your particular example, which is of less national significance—

  109. Tell that to the residents where the proposed site is.
  (Mr Vandermeer) I never said of this immediacy, that is the last thing I would say. I suspect there that you might have to consider whether it might be better placed at the next door authority because you do not have an acceptable site. When it is at a national level, we either have to meet the demand or we have not.

  110. But we have to make a fundamental decision, do we not, on a location? I am trying to find my way around the problem here, because we could say that about national projects, could we not? We could say, "We need a brand new airport for London, and therefore we should not put in an additional terminal".
  (Sir Iain Glidewell) That is a possible answer, clearly.
  (Mr Vandermeer) It was an answer that was reached some years back.

  111. So really the authority has to say, "We will be having an extension to this particular airport sorted out", is that what you are saying?
  (Mr Vandermeer) No, I think what I am saying is that Government says we must meet the need. This is our assessment of the need we are meeting, that the public could possibly be given written representations on the Green Paper or whatever, we believe that the need would be met by a new Maplin type airport, but we need to know whether that creates problems. In many respects, you will have a much shorter inquiry if you choose that route because many less people will be worried, but, obviously, if you choose a new runway at Gatwick, there will be many more people concerned, I suspect very many more will be concerned if you go for a fourth runway at Heathrow. I think the caveat is, on a national level, bearing in mind there are so many areas where it could be accommodated, one needs to say, "Provided it can be accommodated in an acceptable way". I think that is where I would perhaps make the slight drawing together of what you have said, which very much reflects what I am saying, with one observation, that I would expect your authority to say, "Yes, we are going to have one, subject to the fact that if it appears, when we look at the various sites, that there is just no possibility, then we have to consider whether we should go elsewhere. If it cannot, and we have to have one, then we choose the least worst".
  (Sir Iain Glidewell) I disagree on one respect. We are both agreed that it is for them, ie. government, to say, "Our best estimate is that the demand for flying is likely to grow by between X and Y million passengers per annum over the next 20 years". I also agree with him that it is for them to say whether or not that demand should be met in the South East or whether it should be constrained in some way. There, I think, they should stop at expressing a view. I do not think they ought to say, "Our preferred solution is . . . but subject to inquiry, it should be X or Y or Z". I think they ought to stop and leave it to whoever is going to apply to apply, put the matter before whatever body is going—

Chairman

  112. Are you then suggesting, though, that Parliament should become involved at that stage, without the Government of the day indicating they believe that another runway or another airport is required in the South East of England?
  (Sir Iain Glidewell) I am sorry, I have not made myself clear. It follows that if the government department says, "We take the view that capacity has got to be given for another 20 or 30 million passengers over the next 20 years, and that will necessarily mean two new runways somewhere," I do not think it is for the department also to say whether it should be a new airport off Maplin or that they prefer extending Gatwick or Stansted or whatever.

  113. Thank you. Does Mr Vandermeer agree with Sir Iain that you do not think, as he does not think, that Parliament will have the time to give these extremely complicated matters the lengthy attention that is required?
  (Mr Vandermeer) I think if Parliament is to determine the principle on the basis of taking account, as I believe they should, of the adverse effects and striking some kind of potential balance, then it is a massive task.

David Hamilton

  114. I thank Mr Vandermeer for some of the comments that he came back on because that was a bit that concerned me in relation to some of the points that have been made. Can I make two or three observations, because the questions have already been answered in my case, but I would like to expand on two or three parts which I think are relevant. It is said that the Charles de Galle airport took advantage of the planning applications that were in for Heathrow for Terminal 5, and indeed increased their capacity to such an extent that by the time Terminal 5 gets up and going, they will have lost that part of the market. That is our major issue that is being debated, and I would think that Parliament, as we talk in terms of economy of a certain part of the United Kingdom, should be a factor that comes in. Sir Iain, you indicated just two minutes ago that the should take a view that they identify that there has to be an increase in capacity, but we should not go any further than that. Where does that land itself when the Government makes a determination of a major industrial blackspot where unemployment is high and you make a political decision, and we expect that to go to, say, Manchester, for reasons which are good for the economy? Because we take a bigger view than just a planning application. Who would be the people that would make that determination that we did not do that and stopped when you said? Could I make one other analysis. We have talked at great length about airports all the time. I used to be a strategic planner, I was a planner, I was half joking about lawyers, just as I am half joking about planners who live in a small world of their own sometimes when it comes to planning applications. You tell me where a nuclear power station, in Great Britain, anybody would be able to accept a nuclear power station and not have an objection to it, because that is a decision that has to be taken at a national level. If we take, for example, some of the big projects that we may be talking about in Parliament, that is the very thing, a nuclear power station being put somewhere in the United Kingdom at that point, how do you then get into that argument, because maybe the attitude would come in that if you accept that the public have a right to say—which I agree with—the public elect the politicians, they can always deselect the politicians if they do not argue their corner. That is what happens locally in local government: if you have a big planning issue and you go against that planning issue against the wishes of local people, you may not be there in five years' time, so it does happen that way. My point is this: there are decisions that have to be taken by those who are democratically elected in this country, and it should be taken away for some of the professionals because sometimes professionals are not the best people to be dealing with that. A nuclear power station, give me an analogy of that one. A nuclear power station is something that nobody, nobody anywhere in Britain would want, so why have a public inquiry? Or am I being too Stalinist?

Chairman

  115. You could talk about it all day and so could we all. Sir Iain, your response to that.
  (Sir Iain Glidewell) We have been talking about airports. I took part in what I still think of as the "Windscale Inquiry", the thermal oxide reprocessing plant at Windscale, presided over by Sir Roger Parker, and I was acting for the County Council. My clients took the view that they were not capable of assessing the risk to health, nor of spending sufficient money to justify them getting in real experts, and so they wrote to the then Department of Trade & Industry, which was then one department, and asked what they were supposed to do, and they got a letter back saying, "we have decided that, given proper safeguards, this development will be safe". At the beginning of the Inquiry, Sir Roger said, "We are examining safety issues", and I got up and said, "I am very sorry, you are not. Here is my letter." So he got on the phone and he got another letter saying, "Oh that was a mistake. You have to examine safety issues." What happened in the end—I will not say you may remember because you are all too young to remember—was that that decision, having been made on Sir Roger's recommendation that the application should succeed was then brought to Parliament. The actual decision in the end was approved by Parliament. A very interesting exercise of power.

  116. Do you think it was the right decision, and was it made in the knowledge of all the facts that should have been taken into account?
  (Sir Iain Glidewell) That had gone through an inquiry process that lasted 120 days. Yes, I believe that everything that ought to have been examined was examined. Not everything that was supposed to have been done has been done since, but that is another story.
  (Mr Vandermeer) Could I make a few comments. I think—did I misunderstand? You made some point about the programme, the timetabling having economic consequences. Yes, I endorse that entirely, of course it does. That is why I believe there are ways, even if one did not go down the parliamentary route, of speeding up the planning system, and if you go down the parliamentary route, and it is done in a way that I believe could be made acceptable, you would also speed it up. So yes, you need to improve, but I would just want to put something in context because I have read various things about Terminal 5 and about other countries. When I went to visit Frankfurt, I discussed how long it took them to get their second terminal approved, but I believe I was told it took them ten years from inception to grant. Totally different procedures.

  117. A different grant of consent?
  (Mr Vandermeer) Effectively, it was totally different procedures, and I was further told that they had got a kind of speedy process that if a project was identified as benefiting the integration of the East and West of Germany, it could be done in five years. Yes, it is slow; we should try to improve. I also was told at Charles de Gaulle that they took seven or eight years for the last development there. We all think they are very quick, and I suspect on their railways they are jolly quick, and possibly on their roads, but Charles de Gaulle's last development took quite a long time. I would just like to make, on that one, one other point: when people talk about how long Terminal 5 took, yes, I have made it plain, I do not make excuses under the present system for that. I have also said it can be improved. But I think one has to get the facts right. The Terminal 5 application was in 1993. It took two years before we started the inquiry: why was that? The first year of that, almost—and somebody might research and say that I got the facts wrong in terms of precise time—was taken up with a decision as to whether someone else should start an inquiry on the widening of the M25 before we started Terminal 5, or whether we should start Terminal 5 before the inquiry into the M25. Something like a year was taken interdepartmentally to decide which to do. Of course, when we got to the Terminal 5 inquiry, the road proposal before us was abandoned anyway. So if you look at the Terminal 5 timescale, I think you are more realistic looking at it taking from, let us say, 1993—2001, or whatever it was—a long time—but knocking a year off for the problems of interaction of M25 and Terminal 5. So you are down to about seven years, and I believe you could, possibly, for the reasons I have given, knock a reasonable amount off that. It would still be slow, and it would still have economic problems. Turning to a power station point, I very much agree with Sir Iain here, there are differences, of course. Airports affect a vast number of people over a vast area, and, I suspect, create more public concern and anger—and I stress "anger"—of people being woken up in the middle of the night, than things like nuclear power stations. That is not to say that people are not, some of them, appalled by the idea of having a power station near them, I do not doubt that, but it seems to me that things like the intrinsic safety of a power station is something that really can probably be determined outside a proper inquiry process by proper discussions and so forth, and somebody has to bite the bullet on something like that and say that it is safe. I think sometimes that has to be done. Then I would see Government saying, "If we are having a power station, there has to be a distribution of these. Obviously the next one should go to the North East or South West", or whatever.

David Hamilton

  118. So supply and location is a concern?
  (Mr Vandermeer) You narrow it down. Then your inquiry gets into some reasonable compass.

Chairman

  119. Can I just say at this stage, and we have a few more questions to put to you, Sir Iain and Mr Vandermeer, would you be prepared to produce a short paper for us on how you believe—and I do say short, I do not want to put you to too much inconvenience, trouble or expense—(1) that the present system of public inquiries could be improved and speeded up and made more efficient and effective; (2) how, in the light of the consultation document, you believe that Parliament could handle this new responsibility? I think both of you have exemplary and exceptional qualification to help this inquiry. That is really why you are the first witnesses to come and give evidence to us. Would you be prepared to do this, if I asked you to, on behalf of the Committee?
  (Mr Vandermeer) Most certainly.
  (Sir Iain Glidewell) Are you asking us to prepare a joint paper?

 


 
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