Examination of Witnesses (Questions 180-197)
MR NEIL SINDEN, MR TONY BURTON, DR HUGH ELLIS AND MR MARK SULLIVAN
TUESDAY 2 JULY 2002
180. Then I have one more question for you, Dr Ellis, and it is a public law point and you are probably not an expert on public law and we might be having to take this up with others in due course. Are you implying that in any statute bringing these procedures into force it may be difficult for a minister to give the appropriate certification of Human Rights Act compliance?
(Dr Ellis) I am not an expert. You will be aware that we submitted with our statement some legal advice which at that stage was in confidence and which I should say the Department has now asked for a copy of and we have, unusually, supplied to them, not something Friends of the Earth tends to do lightly. In our advice it was made clear to us that there was no clear strategic challenge under the Human Rights Act Article 6 to any of these proposals, much as we might have wished there was. That seemed to me to be fairly clear. It seems also though, in terms of the Human Rights Act, that because there is so much uncertainty about how these rules and regulations might finally play out, it is very difficult to make a judgement about whether or not they would be compliant. It seemed to me only that ironically issues of the Habitats Directive and EIA Directive presents stronger legal points on the issue of detail and principle than might at first appear.
181. Can I move on, really taking this whole matter a little further forward? Do you believe that there is a case for an independent evaluation commission which would investigate the principle and no doubt some of the detail of a proposal and submit a report on the basis of which Parliament would be invited to take a decision? As part of that question would interested organisations and the public in your view necessarily accept the legitimacy of an independent commission's findings? Should the commission's findings be submitted to further scrutiny in Parliament or outside Parliament?
(Mr Sinden) If I can lead on this, the CPRE were at pains to understand why the Government, when it first came out with these proposals on major infrastructure projects, were not inclined to examine very carefully the potential that there was in the Planning Inquiry Commission model which is still on the statute books and is covered in a relevant circular from the late 1960s. We believe that the Planning Inquiry Commission model could well do some of the job that you have just suggestedI think you call it a major projects evaluation commissionin terms of feeding into the decision making and policy making process on national policy statements in particular as a precursor for consideration of detailed project proposals through a conventional inquiry process. The point that we would stress is that that commission, in order to gain the legitimacy it would need should be properly resourced and to be seen to be contributing to the policy making process through the application of such techniques as strategic environmental assessment and so on, and reporting not necessarily to Parliament but to government in the process of the Government's preparation of a national policy statement which might then be subject to scrutiny and examination through an appropriate parliamentary procedure.
182. But do you think such an evaluation commission could add meat to the principle of a particular project, that the Government and the Minister might be putting forward, ie, there will be more substance to it and certainly evaluation and assessment is inevitably going to have taken place, carried out by that evaluation committee, before the Government comes to Parliament and states that a project in principle is going to be introduced?
(Mr Sinden) I think that could well be an outcome but I think the critical issue is the approach that the Commission takes to appraising alternative solutions to the problem which the infrastructure proposals are seeking to resolve and address. In a sense the devil is in the detail but the precise terms of reference, the remit, the tools that the commission is given to do the job and the approach to appraising the issue that it is being asked to address will be critical in determining the effectiveness with which that commission can play a part in the policy making process.
(Mr Burton) I think it would be wrong to think there is a sort of expert black and white, right or wrong answer which is just waiting for some commission to come up with. Inevitably this process is one that will be about addressing a mixture of facts and values. Ultimately these will be political processes and political decisions but what is needed is an injection of resources in a systematic way in the process of policy development of which a commission could be a part. We would hope it would not be a commission of experts. We would hope it would be a process which would involve a mixture of experts and consultative and participative techniques to arrive at more robust and more persuasive decisions.
183. Clearly people are concerned that if Parliament takes a decision in principle then a project is going to proceed and all there will be thereafter at a public inquiry is argument about the detail. Quite clearly it could well be that the project in principle becomes untenable. I agree that the minister at the end of the day does have the authority to withdraw that major infrastructure project but I think we are concerned that the whole procedure should be more transparent and that those who will be impacted by the proposal and have their lives or property affected by the proposals should have a proper say and it seems odd that something in principle can be launched and Parliament take a decision on the principle without sufficient knowledge of the detail.
(Mr Burton) Absolutely, and I suppose the point that I am making is that if there to be an injection of that kind of resource into the process it should be before you get to a project being thought about in principle. If in a sense we do not have that option then clearly there is a value in some serious analysis of the principle of that project being there.
184. Can I just put one further question myself? Should the Government decide to press ahead with its proposals, the House will need to determine how decisions in principle on specific projects should be considered notwithstanding, which I fully understand, your objections to the Government's proposals and your misgivings (perhaps with some justification) about Parliament's capacity to assess the principle of specific major infrastructure projects, how could you advise this Committee this afternoon that Parliament should set about this very difficult task? You have touched on some ideas but could you be more specific?
(Dr Ellis) It is very difficult but I would say that it perhaps traces back to where I ended one of my other answers, which is that it is essentially the object of trying to recreate the best aspects of the public inquiry process in a parliamentary context which is almost perverse, I think. You are I guess trying to take the opportunity for the public to have their say and for there to be positive policy scrutiny of the proposal, possibilities of cross-examination. By the time you have actually reinvented all of those positive mechanisms you have a public inquiry with a parliamentary label under it. That is not at all to be facetious. I think that if these proposals get taken forward, if that was wrapped up in a commission of some kind or in some other mechanism, that would at least be some safeguard for the public in terms of the way decisions get taken in principle.
(Mr Sullivan) There again, the paper from the Scottish Parliament on their private Bill process may be helpful here because it does set out how they intend to take evidence in committee and what rights the public will have to question each other and for promoters and objectors to question each other and of course submit to questioning from the MSPs. I think there will be ways in which this can be done and what I would like to stress is that one should not think normally of projects suddenly appearing from nowhere and having to be debated in principle. There are some private developers who do this but on the whole it is a minister initiated or a nationalised industry initiated scheme and it should be debated for some time beforehand. It is perfectly true to say that airport developers will try and drop things on people suddenly and one thing Parliament could do is to say that if we are to be asked to determine things through either a private Bill or some other process such as Lord Falconer's proposal, there must be very clear evidence that matters have been thoroughly debated locally and the public have had plenty of opportunity to take part in the formulation of the plan.
185. Assuming that the House of Commons established a committee to assess the principles of any proposals, and I would like to know how we could stop Swampy invading its proceedings, how would we hear evidence, do you think, on the process? What do you think would be a reasonable time span for those likely to be affected to get a decision out of the process on a project, and how would we gather evidence, how would it be submitted? We are concerned here about procedure. That is our remit, to think about the procedure and how this might work if Parliament decided to go ahead with the proposal.
(Mr Sullivan) Can I say first that there should be local hearings, not only in the House, like the Channel Tunnel Bill and the Channel Tunnel Rail Link Bill. The old Scottish Private Legislation procedure, which has just finished this month, did require basically two peers and two Members of Parliament to go round and hold a local inquiry as commissioners, so what would not be acceptable would be sitting in the House and people having to come here.
(Mr Burton) As Hugh Ellis has indicated, we have already got an approach for doing that called the public inquiry and you could import a lot of those approaches into the parliamentary process, and that is a genuine comment. There would be value because of the impossibility of dividing the principle and the detail in looking at the issue in a number of ways with a combination of the inquisitorial and round-tabling to address some of the big themes and the big issues around any individual development alongside a much more adversarial approach to addressing individual objectors or those with particular local interests to be heard, so I would not have thought it would be one pace or one style. I think it would be a mixture of styles to ensure that the different issues which needed to be addressed were heard effectively. The committee process would need to be much better resourced and have access to the kind of combination of expert advice and consultative and participative techniques to ensure that it was able to harness the evidence which was drawn in and that evidence would have to be drawn in ideally at a local level, not just in terms of hearings but in terms of knowledge of the local community and the local area so that it was actively seeking views rather than just waiting and hoping that people would come along on the basis of an advert in the local paper.
186. Again it is how long is a piece of string. It is time span. It is very difficult in that context to conduct it as it is conducted in the public inquiry process.
(Mr Burton) It should not be confined to the parliamentary session which requires that we will be entering into the period of September/October and we have to rush this because we have to make a decision before Parliament is prorogued. It would have to be the pace of the inquiry coming up with the right answer. There are already principles established for doing that but we could not artificially impose a timetable on this process which works for the rest of the parliamentary process.
187. The other problem of course, and nobody has mentioned this, is the fact that it is going to be very difficult to get the Members to serve on this because ultimately it is going to completely dominate, if it is a session of Parliament, the entire session or possibly beyond that, and that is going to be a real problem for Members who have a myriad of other things to deal with and problems to sort out and constituents to deal with.
(Mr Sinden) This is certainly an issue that we have reflected on and we decided that we might hesitate to suggest that this is not a responsibility which Members of Parliament would be very likely to welcome what with the existing pressures on their time and so on.
188. Of course there is a particular practice of carry-over.
(Mr Burton) I understand that.
189. And carry-over in other matters is in fact currently being considered, I would advise you, by the Modernisation Committee of the House. Whether all the parties in the House will agree such a dramatic change to general carry-over is of course quite another matter. Dr Hugh Ellis, normally Friends of the Earth have a lot to say on such matters. Are you quiescent or is it that you just agree with what your colleagues have said?
(Dr Ellis) I agree largely with what my colleagues have said. In discussions inside Friends of the Earth on what this might mean in campaigning terms the only comment is that of course Members of Parliament become the focus of our campaigning. That is the only opportunity you give people and I am not sure that is good for the process for either party.
190. Some of it is good.
(Dr Ellis) There is the cut and thrust of it and that campaigning is fine, and Friends of the Earth is good at shouting about these issues, but the question here is also about whether we get good quality decisions and I am not sure we do.
(Mr Burton) You also at the bottom of it have the electoral cycle and there is a whole set of additional uncertainties which could scupper a process which wants to kick off six months before a general election is held.
Chairman: I have seen quite a lot of them come and quite a lot of them go.
Mr Burnett: I do not think we need to dwell too long on this because Dr Ellis has kindly responded to a point I made on the Human Rights legislation and we have had a copy of your opinion which we hold in confidence. Would all four of you, if you feel moved, like to let us know what you believe are the minimum requirements that decision making processes must incorporate in order to satisfy the requirements of natural justice, human rights legislation and any other aspects of the EU law, and in particular inside public consultation?
191. Before you answer can I follow up what John Burnett has asked and seek to find out from you whether the legal opinion that you let us have in confidence is still in fact in confidence or whether you can now release it in public and release the content of that opinion?
(Dr Ellis) It is now in the public domain, as I said to the Clerk yesterday. It is unfortunate and I apologise to the Committee in that we decided that the Department should have it after we had submitted it to this Committee. Since they now have I think there is no harm in it being in the public domain.
192. Could you perhaps then deal with John Burnett's question? Thank you for that clarification.
(Dr Ellis) To some degree I have covered these points in the advice that that gives. There are clearly a number of issues though that I point to in terms of what minimum requirements might be. We have spoken about opportunities for rights to be heard but there is an issue that is raised about an independent tribunal and what that might mean, and I think that is an important principle. If Parliament is to decide this does it constitute an independent tribunal that people can appear before? There has clearly been case law building up about whether the Planning Inspectorate is considered to be an independent tribunal or whether or not they are an executive arm. That is a problem that does need to be addressed. Over and above that I think I stand by the comments that I have made before and they are that clearly individuals must have these minimum rights to be heard; they must have these rights to cross-examine; they must have rights of access to information, and the process must be transparent and open. Critically, it must be seen to be all these things because the legal questions return us to what Tony Burton said at the very beginning of the session, that we are trying to create a system in which there is public confidence, and I think that is extraordinarily difficult at the moment. There is considerable cynicism, I suppose, about these proposals. All those things I believe are if you like a bottom line and over and above that, as I said, this decision, this development consent in law must be made at one moment and in its entirety holistically and that is an absolute requirement, it seems to me, not just of policy making but of European legislation.
193. And that goes also therefore not just by implication but de facto to the point of detail determining the principle?
(Dr Ellis) Yes.
194. I just want to reinforce that.
(Mr Burton) I would encourage you not to focus too much on whether it is compliant with human rights legislation. If it is not, of course, that is a full stop.
195. Not necessarily.
(Mr Burton) Potentially a full stop. It could be amended and adjusted, I am sure, but surely the issue here is about more than compliance with human rights legislation. It is about ensuring there is a process which brings people with you and engages people in major land use changes which will affect them, their families and that environment for generations and it needs to embrace all the principles which we would wish to see elsewherefairness, impartiality, inclusiveness, the rigour to the process. That is the test, not the one of being compliant with human rights legislation.
(Mr Sinden) I have nothing to add to that.
(Mr Sullivan) The public consultation stage is very important and it really is open-ended. History suggests that the public has usually demanded more consultation than ministers have wanted. The CTRL is a good example; in the end ministers have been involved in the process in the middle and delivering a reasonable solution before it came to Parliament and so I think if you can stress in your conclusions the role of public consultation before anything becomes a statutory application or Bill, that would be very helpful because that really is where the best work is done, early on.
Sir Robert Smith
196. Going beyond procedure more into the principles of the thing might be for another committee, but Mr Sullivan has touched on the different processes we are looking at in Scotland in dealing with planning projects. I just wondered what the perception would be of the public if you have a UK minister on a reserved issue, say energy or some major project, sitting back and deciding where the UK is going to locate it, and then his advisers pointing to him, "Well, he controls the planning process in England and to a certain extent in Wales, but not in Northern Ireland or Scotland." How will your members in your organisations feel when he makes that decision about the influence of that part of the process?
(Mr Sullivan) In the end only Scottish ministers can make decisions in the Scottish Parliament and enact a Bill to create works on the ground to take place in Scotland. I am not sure whether this has been thought through. This is a very general policy statement to do, say, with nuclear power stations or something like that. It would have to be sorted out between the administrations. When we come to the air traffic forecasts and the studies that are coming out there has been considerable joint working and I think we are going to hear that for the next few months to do with airports both north and south of the border.
197. Are there any other questions from my colleagues? Is there anything that our witnesses would like to add to the very comprehensive evidence that they have given in answer to questions this afternoon?
(Mr Sullivan) Just one. It is a matter which none of the procedures delivers, which is the quality of design, for example, particularly the architecture of bridges and tunnel mouths that result if you do a project. It is rather striking that in most projects one or two major structures have been the subject of very good design, such as the station at Waterloo or the Medway viaduct, but when one looks at parts of the Channel Tunnel Rail Link, the detail of bridges that have been built on the basis of the Act having been passed or the walls or fences are not that attractive and the catenary masts stick up in the air, so none of the processes allows the public to be involved in design.
Chairman: It is now on the record, Mr Sullivan, but I have to say that architectural design and project design are not part of our particular remit. Can I on behalf of my Committee, and the House for that matter, thank all four of you for the very comprehensive, reasoned, informed responses that you have made to the hard questioning that we have had now for over an hour and a half. I am very grateful to you. You have been very helpful in the important inquiry that we are undertaking and I am confident that the weight of evidence that you have given will be taken fully into account by this Committee and in due course by the House in any decisions that we reach. Thank you very much.