Note for Friends of the Earth on the Government's consultation on Parliamentary Procedures for Major Infrastructure Projects
1. You have asked me to consider the legality of the proposals in the consultation document published in December 2001. My initial view (given by phone) was that, for reasons set out below:
(1) the proposed procedures were not necessarily unlawful (and they could thus produce lawful decisions) but
(2) they are probably unworkable (or, at least, it is difficult to see how they can be made to work, consistent with what appear to be the Government's expectations and the constraints of parliamentary processes); and
(3) as such, they are likely to increase the likelihood of an unlawful decision.
I remain of that view which, is reinforced by answers given by the Minister, Lord Falconer, to the Select Committee on 18 December 2001, and which themselves provide further grounds for concern.
2. In that light, you have asked me not to provide a detailed advice on the legality of the proposed procedures. Rather, I offer the following general thoughts on what I consider to be the major potential legal problems with the proposed procedures.
3. I have read CPRE's report of November 2001 which comments on the desirability of the proposals (as they were then known). I agree with the broad thrust of those comments. However, I note that matters have moved on somewhat since that report was written. In particular, the consultation document itself makes clear (which had not been clear from the earlier, July 2001, statement) that the new procedures will be invoked in relation to a particular application for planning permission (or equivalent) rather than at a more strategic level (which previously appeared may have been the case). This change reduces some concerns (for example: it is now clear that a site-specific EIA will at least be provided as part of the parliamentary process and to some extent thus inform a decision that a particular development is "needed", which had previously been unclear); but it increases other concerns (for example: parliamentary approval of the need for, say, a new port in principle, will include approval for the development of that particular port such that, by the time the matter is considered by a public inquiry, the chosen site will have been approved in principle). In any event, I have confined my comments below to the potential legality of the proposed procedures (as opposed to their desirability).
4. As noted above, I do not consider that I can conclusively say that the procedures will lead to unlawful decisions. There are two main reasons for this:
(1) The proposals expressly and deliberately leave the detail of how parliament will consider each case to parliament itself. It is not clear whether parliament will be asked to decide in advance how it is going to deal with all the cases which come before it (which would, at least, leave open the possibility of a legal challenge to the decision-making structure at that point); or whether the Government envisages that parliament will decide what procedures to adopt on a case-by-case basis (in which case legal challenges will be particularly difficult: they are likely to have to wait until a final decision is made in the particular caseso as to avoid accusations of prematuritybut then face all the normal difficulties associated with challenging a final "planning" permission, including potential complaints of delay and prejudice (going to discretionary remedies) by the developer).
(2) The proposals make clear that the actual decision (to grant planning permission, or whatever) will be made by the Secretary of State in the light of the parliamentary order and the report of the inspector and that, significantly, the Secretary of State will "exceptionally" be able to refuse permission in the face of a parliamentary approval. I therefore consider that, if a strategic challenge were brought (i.e. to the procedures as a whole when approved, but outside the context of a particular development), the court would place considerable reliance on that exceptional power. It would be said, and I consider held, that the majority (if not all) of the problems I identify will not necessarily arise, because the Secretary of State could (in theory) cure any defect. There would, however, be an air of unreality about such an analysis because I consider it most unlikely that the Secretary of State would, in practice, go against the principle of a development approved by parliament (it would, indeed, be "exceptional"), particularly when it was the same Secretary of State which had established the procedures in question. In any event, in what follows, I assume that, for any particular decision, the Secretary of State will not exercise this exceptional power.
5. I make the following observations on what I consider to be the key areas of potential legal weakness in the proposals:
(1) The proposal is based on the assumption that it is possible to consider separately (a) the principle of, the need for, and the location of the project and (b) the details of the project. This is likely to be unworkable in practice since the acceptability/desirability of a project may well turn on its details, as is rather grudgingly admitted [para 22]. For example: how can the principle of constructing a nuclear power station or the need for it be determined without a detailed safety / economic appraisal of the proposal? Or how can a choice be made between "alternatives" (both ways of meeting the claimed need or, sites) without a full understanding of the environmental impact. The point is likely to have legal consequences because the separation in question is inconsistent with:
(a) the basic assumption in the EIA Directive that the ultimate decision on both the principle and the detail must be taken by the relevant person at the same time;
(b) basic principles of English public law (given that, the detail of the impact is almost bound to be a "mandatory material consideration" in any decision on the principle of a development); (I recognise, of course, that clear statutory language could deal with this point but I consider that judges would require the clearest of language to render immaterial that which would otherwise plainly be considered material); and
(c) in some instances, the provisions of the Article 6 ECHR, as given effect by the Human Rights Act 1998. I note, in particular, that recent case law has more or less established that, where a planning decisionincluding thus a decision on the principle of a development approvalturns on the resolution of purely factual disputes, an affected person is entitled to have that dispute resolved by an independent fact finder able to offer full procedures commensurate with the task, such as come with a planning inquiry before an inspector (see, for example, Friends Providentv- SSE  EWHC Admin 820, 19th October 2001). I doubt that the proposed arrangements here would suffice.
(2) The assumption [para 21] is that the only details of the project to be considered at the second stage are `detailed issues of its implementation on the ground'. Clearly, there may be some implementation details which could be left to be decided once the principle for the project has been approved; but these would be limited to matters such as those which might traditionally have been left to be agreed between the developer and planning authority pursuant to a "Grampian" condition (eg details of a landscaping scheme, a restoration scheme or a parking scheme), but the proposals are plainly premised on much greater level of detail being disregarded at the parliamentary stage. Accordingly, the idea that "detail" is to be left to the inquiry stage is based is an aspiration but, even if realised by general legislative fiat or on a case by case basis by the SoS when he determines the terms upon which approval is sought [para 19], it does not overcome the problems identified above. (Indeed, when one focuses on the level of detail which might properly be left out of consideration at the stage when the principle is being considered, the use of a public inquiry would seem cumbersome and undermine the government's intention to streamline.)
(3) One of the particular matters which is identified as "detail" to be divorced from consideration of the principle, is that of "mitigation measures, conditions and legal agreements" [para 21]. In my experience, these are often the very matters which go to the heart of the acceptability of a project in principle. Indeed, this is implicitly recognised in the Habitats Directive and the Habitats Regulations (which will clearly not apply to all development proposals but will apply to some of the more controversial ones). The "habitats" framework sets up a staged decision-making process leading to the "in principle" decision which requires consideration, in sequence, of: (1) the impact of the development on the protected site (which plainly requires consideration of points of detail), (2) the need for the development, (3) the potential for mitigating the impact, and (4) the scope for compensating for the impact. Step (3) plainly requires considerationwhen the principle is being consideredof "mitigation", a matter the Government's proposals treat as "detail"; and Steps (3) and (4) clearly cannot be resolved without consideration of conditions and legal agreements, again, "detail" under the proposed regime.
(4) The objective of the exercise is to reduce time. Prima facie introducing a new stage of consideration (the approval by each House) will only achieve this objective if the time which the process consumes is less than the time which would be spent on the equivalent issues at a public inquiry and in considering the Inspector's report by the SoS. Since Inspectors and Government Departments are less likely to need to have matters explained slowly as they include those who have relevant expertise, that is not something which will necessarily be achieved simply by virtue of a change in the identity of those involved. Nor is there any reason to suppose that committees are conducted in a more focused way than an Inquiry (eg by more extensive pre-reading rather than oral evidence). The only practical way of achieving the objective is if there is a less thorough examination of the issues. This may be the inevitable result of having a less specialist tribunal. But the more limits placed on the rights of objectors to present evidence and cross examine that provided by the promoter on questions of principle, need and location, the more chance there will be of unlawfulness of some description. In other words both the achievement of the aim and the likely lawfulness of the overall process are likely to depend on precisely what happens in both Houses, a topic on which the Green Paper is silent! My understanding of private and hybrid bills in practice is that they are not necessarily quicker or more rational means of decision taking. Indeed I suspect that their failings as procedures was one reason for the introduction of the Transport and Works Act!
(5) Even if, contrary to my expectations above, parliament (through its chosen procedures) were to have proper regard to the detail of the environmental (etc) impacts of the proposal (derived, it seems, from the Environmental Impact Assessment), then it is difficult to see how the claim that "this [i.e. the role of parliament] will not reduce people's involvement in the process" [para 7] can seriously be sustained. I assume, from the use of the term "Environmental Impact Assessment" that parliament would, at least, have before it copies of public comments on the Environmental Statement (per the EIA Regulations). However, that falls a long way short of objectors being able effectively to challenge (through cross examination, or equivalent) the developer's assessment of the impact of its project (as set out in the ES). Indeed, it almost seems as if the proposal is premised on a belief that the ES is an objective assessment of the environmental impacts of a project; when, of course, in this country at least, it is generally no more than material presented by the developer in support of its case (in contrast to what I understand to be the position in, say, the USA, where the equivalent to an ES is a much more objective assessment).
(6) I consider that there may be an unavoidable problem about how changes which may occur affecting principle, need and location between the date of approval by each House and the decision of the SoS are to be handled;
(7) My concerns above are heightened by answers given by the Minister, Lord Falconer, to a House of Commons Select Committee, on 18th December 2001. In particular, at paras 53, 64, 68, 69, 73 and 74 he made clear that the Government considers that some, at least, of the applications which came before parliament might be treated as "whipped" business. In my opinion, for the reasons outlined below, it would be plainly unlawful to proceed that way. However, as above, the lack of certainty about whether that would, in practice, be the approach adopted makes it very difficult to make an anticipatory, strategic, challenge (and it may thus be necessary to wait for a decision which was taken that way, and then challenge that decision). In any event, a decision which had been "whipped business" would, in my opinion, be plainly unlawful because (among other things):
(a) that implies pre-determination which would be unlawful on basic public law principles (in that the MPs looking at, for example, the ES are not actually looking at it to decide the matter before them; they are simply doing what they have been told to do by the whips)
(b) it would also be contrary to the EIA regime, for similar reasons; and
(c) in any event, it makes it even less likely that the MPs involved would focus on the required detail.
6. I thus consider it most unlikely that the Government can achieve its objective of shortening timescales and streamlining the process without the resulting decisions being, in one way or another, unlawful. However, the vagueness of the proposals at this stage make it impossible to say that such decisions will, inevitably, be unlawful (the one exception being that arising from the question of "whipping"if decisions were "whipped" then I consider they almost would inevitably be unlawful).
7. In terms of points arising from the above which I consider you may want to highlight in responding to the consultation, I suggest:
(1) that you draw attention to the points I make in paragraph 5 above;
(2) that you try and push parliament and the Secretary of State to focus more clearly on precisely what parliamentary procedures would be used, and how they would work (in order, in part, to try and reach the position where a strategic challenge to the procedures overall might be possible); and
(3) that you focus on the "exceptional" power in the Secretary of State to go against the recommendation of parliament (as discussed in my para 4(2) above). If, on the one hand, it is made absolutely clear (now) that the power will, in practice, never be used (which is unlikely!), then that will strengthen the possibility of a strategic challenge; if, on the other hand, the power is widened (such that, for example, the Secretary of State were simply treating parliament's prior view as a "material consideration" then, although that would reduce the possibility of a strategic challenge, it would make the process less likely to be illegal. (I leave the question of which of these is more "desirable", as distinct from the legal questions, to you.)
David Wolfe, Matrix