§ 11.4 a.m.
§ Mr. Michael Hamilton (Salisbury)
I beg to move,That this House disapproves of the holding of planning inquiries in secret, except in the interests of defence and national security.The House has been in continuous session for over 20 hours and I should like to express my appreciation to those who have made it possible for today's business to take place.
I think that most people regard a planning inquiry and a public inquiry as one and the same thing, but that is not so. What we used to call a public inquiry may now take place behind closed doors. A citizen may decide to attend a planning inquiry. The application may affect his house, village or community. He may wish to listen or to give evidence. But when he reaches the town hall, he may find that he is refused admission. As a member of the public he cannot count on being admitted to the hearing. He is no longer entitled automatically to attend. This fact has become apparent only as a result of events in my constituency. I find this a disturbing development, and when a citizen's freedom is curtailed I think it right that this House should know of it.
Through force of circumstances and not my own choosing, I have become a reluctant specialist in secret planning. I make no apologies for raising the subject this morning. I do so because we are unhurried and because hitherto discussion has been confined within the 30 minutes limit of an Adjournment debate. I do so because what has happened in the part of England that I represent can happen tomorrow elsewhere, and I wish to spare my colleagues on both sides of the 986 House a similar experience. I do so because the traditional checks and safeguards cannot be counted on. For that reason, I believe that back-bench Members still have a rôle to play.
I am grateful to the Minister for being present at this debate this morning. If the rôle of Government in this sphere has not so far been distinguished, I hope that he will be able to reverse that trend.
I stress at the outset that the honours are even between Labour and Conservative Governments and that there is no element of party controversy in what I have to say. Nevertheless, I ask the Minister, although matters are well documented, not to hesitate to interrupt me and to intervene if any statement of fact that I make is inaccurate or incorrect.
I should like to remind the House briefly of what occurred, to sketch through the reaction of Governments to those events here, and, finally, to summarise the present procedural position and make three recommendations.
If you, Mr. Deputy Speaker, drive with me to Wiltshire this afternoon you will find big open country and miles of rolling unspoilt countryside. We are privileged to enjoy it and we are jealous to protect it. You will also find that a very large company has moved in from another part of England, that it has acquired 600 acres of farmland—an area twice the size of Hyde Park—that it has spent £1 million on railway sidings and a processing plant, and that large-scale mineral working is in progress.
If the House inquires how this great company comes to be there, it will find that a planning inquiry took place at Salisbury, that the central evidence at that inquiry was heard behind closed doors, that such a thing had not happened before, that no prior warning of such proceedings was given by the Minister, that the expert witness was excluded, and that the in camera evidence was taken into account by the Minister in arriving at his decision.
If the House inquires more closely still it will draw the inescapable conclusion that the whole thing was born of a mistake. I must explain. A month before that planning inquiry, representatives of the company called by appointment at the Department in London. This was not within the knowledge of myself or my 987 constituents. There those representatives saw a civil servant. They asked whether part of the forthcoming inquiry could be held in camera. They had commercial secrets which they wished to protect.
This raised questions of major principle. Planning law and practice date back to the beginning of the century, if not earlier. No planning inquiry had ever before been held partly or wholly in secret. Such a procedure had never been countenanced. The House will agree that such a decision could not be left to a relatively junior civil servant. If we were to cross this threshold and move forward into an era which tolerated planning inquiries behind locked doors then the Secretary of State would need to know of this and to give it careful consideration. Further, this House which is rightly jealous of the rights of the citizen, should first have the opportunity to make its views known.
Yet none of these things happen. The mechanism broke down. What should have been referred to policy level was never so referred. No one in a position of authority in the Department was consulted. Let me be more specific. The Minister in charge of the Department at that time was Mr. Anthony Greenwood, as he then was. He was a much-respected Member of this House, capable of appreciating at once the implications of the company's request.
Lord Greenwood of Rossendale, as he now is, will confirm that the issue was never referred to him, that it never so much as crossed his desk. There was, of course, a system of delegation operating within the Department. There were two junior Ministers yet there are no grounds for believing that that decision was referred to either. Unhappily, and by cruel mischance, neither is alive today. What of the Permanent Secretary? He was Sir Matthew Stevenson. Later Sir Matthew, a distinguished public servant, was to be cross-examined by a Select Committee of this House. Members who choose to read the printed evidence will see that he, likewise, had no knowledge of the matter whatever.I am not really terribly well-equiped to answer.Those were Sir Matthew's words.
Thus it was that that decision on that morning was left to a relatively junior 988 civil servant and thus it was that this House was never consulted. Thus it was that Government stumbled into this unfortunate situation and thus it was that successive Secretaries of State, the Council on Tribunals, the Lord Chancellor, the Solicitor-General and a host of other people were burdened with an issue which even today remains unresolved. The mechanism broke down. It was a mistake, albeit a small one, which started this chain of events.
Let me return to that meeting at the Department 28 days before the inquiry. At the end of the interview the company's representatives put on their hats and, having obtained the assurance that what they were asking was acceptable, they returned to their headquarters and were able to make preparations for their case to be heard in camera. Meanwhile, the Department alerted the inspector to expect an application for secret proceedings. On the appointed day—28 days later in Salisbury—there was the company and there in his place was the inspector who had travelled down from London.
At the appropriate moment, and in accordance with advice given by the Department, counsel for the company rose in his place and applied to the inspector for a private hearing. The inspector was waiting for his cue. My unsuspecting constituents who were present in numbers, and who were naturally anxious at the threat of mineral workings in their district, knew nothing of what had happened in London. The inspector heard the plea and granted it. It would be difficult to stage a less attractive piece of pre-arranged official play-acting than that.The first we knew about it"—wrote a local farmer—was when the appellants asked to go into camera and the inspector agreed. We were flabbergasted.Thus was launched the first hearing in Britain of a planning application behind closed doors.
Once across this threshold it is hardly surprising that what could go wrong did go wrong. From modest beginnings the trouble escalated. The secret hearing was short, maybe half an hour, maybe an hour. It contained the kernel of the inquiry, the reason why the company needed to operate in that particular location rather than in some other part of England.
989 Only two of my constituents were admitted. A declaration of life-long secrecy was first produced for signature. Neither constituent has any technical qualification whatever. A prominent geologist from London University attended the inquiry. The company objected to his presence. He was therefore refused admission and took the train back to London. No one present was able to understand, still less to contest, the technical evidence which was then brought forward. The House will appreciate how deeply insulting these proceedings were to my constituents. It will appreciate too, the shock to public confidence and the injury done that day to faith in the fairness of our planning procedures.
Some months elapsed before the Minister came to his decision. It was during those months that yet a further bizarre little incident took place. Confidential evidence taken into consideration by the Minister became public. Part of what had been secret emerged from secrecy. It lay at the National Reference Library here in London, and there were many closely printed pages of it. The inquiry should have been reopened to enable this evidence to be cross-examined in public, but it was not reopened and, instead, the Minister proceeded to his decision.
The Minister decided to grant the applition. When the inspector's report was published, the confidential proceedings were kept in a separate annex and this annex was withheld. It was kept at the Department under lock and key. Neither my constituents nor I had any knowledge of what it contained. My constituents were not told why their particular stretch of countryside had been chosen. They were left to watch excavation get under way.
This is how this industrial complex arrived in Wiltshire. It is a company of the highest standing. It has done no more than what has been permitted it by government. I congratulate the company on its efforts to screen the workings. I believe the company to be no less unhappy than I am at these events and at how they have been handled. I believe the company to be no less anxious than I am to see a solution.
I think it right at this point to make it clear that after admission to Wiltshire the company has made two further planning applications and there have been two 990 further planning inquiries. The first—in 1970—was to extend its activities in the form of railway sidings and a processing plant. That application was granted. The second—in 1974—was to extend the period of mineral working by a further 10 years. For that inquiry the Minister insisted on the confidential annex to the inspector's original report being laid upon the table.
The Minister's decision on this application is awaited. That issue is therefore sub judice today. I make no comment on it. It has no relevance to today's debate. I am concerned today with in camera hearings and with the implications which arise therefrom.
I return to London. The events which I have described were remarkable. Yet the reactions of government to those events have been more remarkable still. A study of HANSARD will confirm that I have raised matters from time to time in Adjournment debates, but progress has been slow. When something without precedent occurs in one's constituency, it will be found that there is no concerted view or body of opinion on the subject within the House and it is no good going to the Library to ask what happened on the last occasion because there was no last occasion. This accounts for the fact that it has been a rather slow business.
Initially Ministers set off bravely under the banner of the Duke of Wellington—"There is no mistake. There has been no mistake. There shall be no mistake." Ministers firmly adopted the stance that inspectors have the power and have always had the power to conduct proceedings as they see fit. "It is a matter for the inspector", it was said; "He has the discretion and the right, having listened to the case, to decide whether he thinks that it is in the public interest." Thus ran the the departmental brief which was served up to successive Parliamentary Secretaries in successive administrations. To be fair, they did their best with it, but, for all their brave efforts, the position was clearly untenable from the start.
If an inspector can close the doors at will, not only against the public but also against the specialist acting for objectors, it follows that warning can never be issued. The point was well illustrated when I sought to obtain from government the travelling expenses of the 991 geologist who had been excluded from the central hearing and had taken train back to London. In his letter of refusal the Minister said:As you know, it was not possible until the application had been made at the inquiry for anyone to say whether the inspector would agree to hear part of the evidence in camera. It was not therefore possible for anyone to say in advance that Dr. Hancock's journey would be abortive.Thus the stance of government was that highly-paid specialists must travel from London to a planning inquiry in, say, Aberdeen only to risk finding on arrival that the journey had been wasted. It was this remarkable defence by government which clearly could not hold out for long.
I said that progress has been slow, but I have found allies. I found that the matter had been aired in another place. I found that Lord Brooke of Cumnor, no less—there can be few greater authorities on planning law, as I am sure the Minister will agree—had made clear his opinion that there must be something wrong with the procedure. I found, too, that The Times had grasped far more clearly than Ministers had the real significance of the issue.
I found an ally, too, in the Council on Tribunals. That council came forward with the clear recommendation that new rules must be produced and that our planning law must be overhauled to provide for in camera hearings.
The House will know that the Council on Tribunals is appointed by and is responsible to the Lord Chancellor. Thus it was that Lord Hailsham arrived on the scene and for two and a half years, while the machines were digging deeper and deeper into Wiltshire countryside, the Lord Chancellor worked on new rules with the Secretary of State for the Environment and the Council on Tribunals. I felt that at last something was being done, if not by way of redress, at least to spare others the injustice which had been done to my constituents. By now that Wellington banner—"There is no mistake. There has been no mistake"—was beginning to wear rather thin.
Finally, rules were ready to be laid before Parliament. The House will note that two and a half years had been spent on consultation among the most eminent authorities on these rules. They were 992 circulated for comment to public bodies such as the Country Landowners' Association. The rules ran to 23 pages. They insisted on the need for warning of an in camera hearing. They insisted on the admission of an expert witness. They sought to ensure that what had happened would never happen again. I was satisfied at least that the Lord Chancellor in his study of the case had recognised the grave mistakes which had been made.
But how wrong can one be? The rules were never laid before Parliament, they were stillborn. The Government suddenly stopped in their tracks—why I shall never know. Either the subject was held to be too complex to be encompassed within a set of rules or it was feared that when the rules came before the House their origins might have received close scrutiny. One or two unhappy skeletons might have tumbled out of the cupboard on to the carpet.
In any case, the rules were stillborn and on 4th May 1972, the Secretary of State announced:It is Government policy that inspectors should in future not accede to requests that they should hear evidence in private at planning inquiries."—[OFFICIAL REPORT, 4th May 1972; Vol. 836, c. 199.]That was the end of the Wellington dictum.
The Government recognised the deep injustice done to my constituents. The Government announced that it must not happen again, but they failed to muster the courage to admit openly that they had been wrong. As for the Lord Chancellor's two and a half years' hard work, within days of the Secretary of State's announcement he made clear that rules would be "inappropriate". That was the word used.
And what of the Council on Tribunals, the third member of this triumvirate, watchdogs poised to sound the alarm when danger threatens, the sacred geese of the Capitol, whose upkeep costs the British taxpayer more than £1,000 a week, and who had stressed in successive annual reports the need for these rules? They, too, found that such rules would be "inappropriate".
So we are no nearer a solution. The Secretary of State's announcement was a matter of policy and we all know that policies can change overnight. Besides, 993 that administration has been swept away and the present Government are in no way bound by the policies of their predecessors. There are no fresh safeguards. What happened in Salisbury can equally happen tomorrow in Salford, in Norwich, in Carlisle. A highly-paid expert can take train to a planning inquiry in Newcastle only to find that his journey is wasted, that he is excluded from the proceedings and that no one will reimburse him for the costs of his journey. Indeed, a Member of Parliament can travel to a planning inquiry in his own constituency only to find the doors closed to him on arrival.
It is a ludicrous situation, and Ministers know it, but once having adopted and defended the posture that nothing untoward had occurred at Salisbury, it is very difficult for Governments to climb down. How much more honourable and practicable it would have been if Ministers had said at the outset, "Yes, it was a mistake, we all make mistakes, a civil servant made a mistake. It will not happen again and of course we shall have a fresh hearing." Governments are majestic institutions, but one of their weaknesses is the difficulty they find in admitting a mistake.
What should be done now? It is no answer for Ministers to say, as they have done, that these situations are rare, that secret hearings are exceptional. Of course they are, but this is the argument of the nurse excusing her illegitimate baby, "Please, ma'am, it was only a little one." It is no answer for Ministers to say, as they have said, that what is past is past. These things will not lie down or get lost, however convenient that might be. There is no skirting this problem.
The proceedings of Government mishandling stand like a monument in Wiltshire for all to see. As the Council for the Protection of Rural England said:The beauty of this lovely stretch of rolling countryside will be largely destroyed.It is no answer either for Ministers, as they have done, to make charges of obstinacy. If we on these back benches—Labour and Conservative alike—see clearly that the dice have been loaded against our unsuspecting constituents to their lasting detriment, then we say so. That, after all, is what this place is all about.
994 Three things are needed. First, I ask the Minister for an assurance that the stated policy of the last administration, curbing the discretion of inspectors, still obtains. In itself that solves nothing, but it provides a breathing space. Second, I ask that our planning rules themselves be amended. It must be clearly stated in black and white that, apart from defence considerations, a planning inquiry shall be held in public. It is as simple as that. There can be no compromise. At least the abortive efforts of the Lord Chancellor in seeking to prepare rules demonstrated that a code of safeguards is impracticable.
Of course commercial secrets are important. I was myself a carefree businessman for ten years before I entered the House. But a planning inquiry is not a court of law. Its function is essentially different, and if justice is not seen to be done, it is better that it were not held at all. The wider public interest demands that proposals can be challenged by all who feel concerned, and that they may summon the aid of all such experts as they choose to muster.
A leading article in The Times summed up the situation far more ably than I could ever hope to do:So it would seem unrealistic to hope for a compromise solution whereby evidence could be heard in camera at planning inquiries under conditions that would be a satisfactory safeguard against injustice or abuse. A choice has to be made between the guarantee of openness and the assurance that an appellant would not be inhibited from giving evidence because its publication would damage him. The choice must be for openness. That is essential for public confidence in planning inquiries and it is unlikely to impose too great a burden on commercial interests; otherwise the 1967 case would surely not have been the first of its kind.What is the third need? If this matter is ever to be laid to rest, there must be a judiciary inquiry. There is no other way. The damage to confidence and to countryside can be remedied only by that means.
The Government will need no reminding of a similar case in 1954 with which my predecessor at Salisbury was intimately concerned. I am content that this morning the Minister should judge for himself the accuracy of the parallel. The scene in one case lay a few miles to the South West of Salisbury, the other a few miles to the South East. Both concerned 995 the future of some 600 acres of farmland. Both occasioned years of local protest and both met with refusal of investigation. The Minister in one case said:No new fact or consideration which would justify an inquiry into this case has been disclosed.The Minister in the other case said:No case for a special investigation by an independent committee has been established.But later came a shift of emphasis. The Minister in one case said:I recognised that this case raises a general issue of principle.…I am ready to consider the issue of policy involved in consultation with my colleagues.Recognition in the other case ran thus:The Council of Tribunals recognise that a procedural point of considerable general importance has been raised by this case.Then came the caution:In your case, however, events have proceeded too far to be affected by the outcome of this consideration.So said the Minister in one case. The Minister in the other case said:This…cannot affect the decision in the Grimstead case.Then came the change of mind. A judicial inquiry took place at the Corn Exchange, Blandford. A Select Committee of this House invited the Permanent Secretary and an Assistant Secretary to appear before it. At the cross-examination of senior civil servants it was demonstrated that the Minister had acted upon inadequate advice. At the cross-examination of other senior civil servants it was also demonstrated that the Minister had acted upon inadequate advice.
The terms of reference in 1954 were to inquire into the procedure adopted. The report following that inquiry, Cmnd. Paper No. 9176, concludes:There was no trace in this case of anything in the nature of…personal dishonesty … The procedure adopted, however, was such that it inevitably gave rise to misgivings among local farmers and landowners, and I am satisfied that…The petitioner's name is then mentioned. The passage continues:…was fully justified in the circumstances in pressing for a Public Inquiry.If it was right to set up a judicial inquiry in 1954—and no one in this House would deny that it was—it is equally right to do so in 1974.
§ 11.44 p.m.
§ Mr. James Wellbeloved (Erith and Crayford)
The hon. Member for Salisbury (Mr. Hamilton) has deployed a powerful case in respect of planning matters concerning his constituency. I do not know the detailed circumstances of those matters or of the inquiry. It is not my intention to support the hon. Gentleman in any detail of his own case. I felt it right that at least one Labour Member should add his voice to the motion.
There can be no doubt that it is against the public interest for planning inquiries to be held in camera. I am certain that if the House were fully attended—I appreciate the reason for a smaller attendance today after the hectic proceedings of yesterday's sitting—those who struggle for the preservation of civil liberties would be here to participate and to vote if necessary for the hon. Gentleman's motion. I hope that the Minister will accept the spirit of the motion and allow it to be passed by the House, so as to give the seal of approval of this democratic Parliament to the basic principle that we disapprove of planning inquiries being held in secret.
I know from my own experience, having attended a number of planning inquiries and having appeared as an unqualified person on behalf of my constituents who have been objectors to planning inquiries, how fairly the inquiries are conducted. I pay tribute to the inspectors because I am certain that the majority of the Minister's inspectors who preside over planning inquiries are of the same calibre and courtesy as those who have presided over the inquiries which I attended. The inspectors have gone out of their way to put the ordinary layman at ease and to try to make the proceedings as informal as it is humanly possible to make them within the rules of planning inquiries. Nothing that I have said should be construed as criticism of the inspectors.
Responsibility for the rules that govern inquiries and the guidelines given to inspectors is a political responsibility that is fairly placed upon the Government of the day. One of the troubles with planning inquiries in general is that ordinary people are fearful to exercise their rights. Very often they are not aware of their rights. I find a great deal of criticism 997 in my constituency about planning inquiries. The possibility of their being held in secret would increase tremendously the already high degree of apprehension that is felt when ordinary applications for planning approval are subjected to an inquiry after refusal of the application.
My experience tells me that planning inquiries are weighted against the ordinary applicant not because of unfairness but because of limited resources. If there is an appeal against a local authority's refusal of planning application, the whole panoply of the local authority is to be seen at the inquiry. All the professional officers and all the expertise are gathered together at the inquiry after months of detailed research. The ordinary chap, very often unrepresented, stands little chance despite the protection that the inspector invariably extends to him. Planning laws are complicated and what to the layman seems a straightforward matter can quickly be made into a most complicated matter once the experts get to their feet.
If we put on top of all the disadvantages which already exist the possibility of the proceedings being held in camera, the balance will be seen to have gone to an unacceptable and unreasonable degree against the citizen. I believe that there is no justification for secrecy except in the sort of case that was clearly defined by the hon. Gentleman and involves defence and national security.
As for commercial applications, it must be a factor that a commercial applicant takes into account in deciding to submit a planning application that he will have to disclose certain facts if he wishes to proceed. If he does not wish to disclose those facts, let him seek some other place for his development. It is unreasonable that the purpose of commercial secrecy should be used to exclude the public from planning hearings.
I agree with two of the hon. Gentleman's final requests to the Minister. First, he wanted an assurance that the 1972 statement of the then Government's policy still applies in respect of this matter. Secondly, I ask my hon. Friend the Minister to consider seriously the hon. Gentleman's plea for the publication and approval by the House of rules governing the secrecy position in planning in- 998 quiries. It is necessary for a clear statement to be laid down in rules available for all the participants in a public inquiry—the applicant, the objector and everyone else—so that they know clearly where they stand on the matter.
I cannot go along with the hon. Gentleman's request for a judicial inquiry into his own case, because I do not know the circumstances, but I hope that my hon. Friend will be generous on the matter and accept the principle of the motion, because it is an important principle which should have the backing and approval of the House.
§ 11.51 a.m.
§ Mr. Jim Spicer (Dorset, West)
I lend my weight briefly to the statement of the hon. Member for Erith and Crayford (Mr. Wellbeloved) in support of what my hon. Friend the Member for Salisbury (Mr. Hamilton) has said this morning. I, too, have no particular knowledge of the case, but I am very worried about its implications.
My hon. Friend spoke of an area covering only 600 acres, but we all know that the effect of exploitation such as that of which he spoke goes far beyond the immediate area in question. He also spoke of the insult to local people that they should be excluded from the planning stages and that the inquiry should be held in secret.
I would take the matter further. Whenever this sort of thing happens, there is a growth of anger which spreads far beyond the boundaries of Wiltshire into all other rural areas. There is a continual and increasing search for raw materials, for water, oil and other mineral resources. In our part of Dorset we have seen the widespread effect that such exploitation can have not only upon the immediate area but for 50 or 100 miles round about. We have seen roads bulldozed out of existence and roundabouts destroyed to allow transportation of the material when it is extracted.
I have spoken very briefly, but I am very much in favour of what my hon. Friend said and I hope that the Government will take due note of it.
§ 11.53 a.m.
§ Mr. Hugh Rossi (Hornsey)
First, I congratulate my hon. Friend the Member for Salisbury (Mr. Hamilton) on raising 999 this matter. More than that, I congratulate him on his tenacity in bringing it before the House so often on behalf of his constituents. I believe I am right in saying that this is the sixth time over the years that my hon. Friend has shown this diligence on behalf of his constituents. One must also give congratulations to the constituents of Salisbury on having a Member who looks after their interests with such great care and who will never take "No" for an answer when he thinks that a Minister has given him a wrong answer.
I think it would be right if I left comment on the details of the particular case raised to the Minister, because he will obviously have before him the departmental brief reciting the facts in detail. However, there is one point that I must raise for a specific answer. What disturbed me most in my hon. Friend's recital of the circumstances was his suggestion that a decision had been taken on an important matter of this kind—namely that an inquiry should be held in camera—by a junior civil servant without reference to a Minister or the Permanent Secretary of his Department. If that is correct, a most rigorous inquiry, possibly even a judicial inquiry, should be held into the matter.
Before I press the Minister for a judicial inquiry, there are three questions that need to be asked and answered. First, did the junior civil servant make a decision that the appeal should be held in camera, or did he merely advise the appellant that under the existing regulations the inspector had power to ask for the hearing in camera? Those are two quite distinct situations.
Secondly, did the junior civil servant give a direction to the inspector or influence the inspector as to whether the hearing should be held in camera, or did the inspector exercise his own discretion, given him by the regulations, without any direction or hint coming from the Department of the Environment?
Thirdly, did the inspector fail to give the other persons present at the inquiry an opportunity to object to the proceedings being held in camera? Did they avail themselves of the opportunity to object, so that the inspector had all the circumstances before him prior to exer- 1000 cising this discretion—if that was what he did? These are preliminary questions that one would wish to have answered before deciding whether this is a proper case for a judicial inquiry.
My hon. Friend mentioned two matters that immediately struck a chord of sympathy with other hon. Members. The hon. Member for Erith and Crayford (Mr. Wellbeloved) and my hon. Friend the Member for Dorset, West (Mr. Spicer) endorsed the principle that the policy declared in 1972, that all future planning inquiries must be held fully in the open, should be continued. I endorse and underline that policy decision, which was taken by my right hon. Friend the Member for Worcester (Mr. Walker) when he was Secretary of State in 1972.
I ask the Minister to confirm that it is his Government's policy, as it was my Government's policy, that all planning inquiries be held in public and not in camera. I would extend that principle one stage further. I would like not only inquiries into planning matters held in public but all local authority planning committees held in public as well. Quite often authorities resolve to go in camera to discuss planning applications. Planning applications so concern the amenities and environment of citizens in the neighbourhood affected by the planning inquiry that it is only right that people should be given full knowledge of what is happening and an opportunity to be present when the decision is taken.
That applies not only to the public inquiry but to a local authority decision because, as the rules stand, a public inquiry is held only if the person making the application is disappointed and does not get from the local authority what he wants. At that point the public can go to the inquiry and make their case. If, however, the local authority agrees to the application, the appellant is satisfied and the local authority has made its decision, but the other people affected by the planning application cannot appeal against the decision and ask for a public inquiry. They are excluded. It is therefore important at that first stage that nothing should take place in camera. I ask the Under-Secretary of State to give us the Government's views on that matter.
If there is to be a policy change, my hon. Friend the Member for Salisbury is absolutely right that clear-cut rules of 1001 procedure must be laid down as indicated by the Council on Tribunals. I therefore ask the Minister whether this matter is before the Dobry Committee which is considering planning matters. Is that committee considering the rules of procedure regulating the conduct of planning inquiries? If so, we shall await its findings with interest in the hope that we shall have an opportunity to discuss them.
My hon. Friend the Member for Salisbury brought a further matter to our attention. He did it almost as an aside but it was a matter of importance to the individual concerned. It concerned the question of the denial of costs to the expert who travelled to the public inquiry but found that he could not give evidence because he was excluded through the proceedings being held in camera. What I found extraordinary was the quotation which my hon. Friend gave from the Department of the Environment in justification of the refusal to allow the costs. According to the note which I made, my hon. Friend said that the letter from the Department stated that as it was not possible to know in advance whether part of the hearing would be in camera it could not be known whether the expert's journey would be abortive.
I should have thought that that was a reason for allowing rather than disallowing the costs, because the expert would not know whether his journey was necessary until he had arrived. Therefore, he should not be put in that jeopardy. If he knew beforehand that it was likely that the hearing would be held in camera and still made his journey, one could say, "You took the risk. It was up to you whether you made the journey". But if he properly went all the way to the inquiry and then found the door slammed in his face, those responsible for taking that decision should ensure that funds were available to reimburse the expert called to the inquiry and who properly attended it. If the reason for the refusal to pay the costs is that given by my hon. Friend the Member for Salisbury in the quotation which he mentioned, it begins to defeat comprehension.
That is possibly a matter which should be considered by the Under-Secretary of State once more if it is not too late. Certainly it should be covered by any rules which the Council on Tribunals or the 1002 Dobry Committee may recommend regulating the conduct of these proceedings. The costs of expert witnesses and others should be allowed out of public funds if their journey has been rendered unnecessary by circumstances entirely outside their control.
§ 12.5 p.m.
§ The Under-Secretary of State for the Environment (Mr. Neil Carmichael)
This is an important debate, but we should not be too disappointed by the small attendance of hon. Members because the House has been through a particularly difficult 18 hours.
I should like to read the motion so that hon. Members may be clear about it and so that I can deal with it more effectively. I start with the introduction:To call attention to the practice"—I emphasise "practice"—of holding planning inquiries in camera; and to move, That this House disapproves of the holding of planning inquiries in secret, except in the interests of defence and national security.I cannot begin my reply without recognising the tireless efforts of the hon. Member for Salisbury (Mr. Hamilton) on behalf of his constituents over the problems of the East Grimstead quarry. The hon. Member for Hornsey (Mr. Rossi), who perhaps has been more closely associated with this matter than I have, also paid tribute to the hon. Gentleman. This is the seventh debate on this subject which the hon. Member for Salisbury has obtained in this House since 1969. His powerful advocacy is matched only by his wide-ranging attempts outside the House to bring the matter to the attention of all who could conceivably offer some assistance, including the Parliamentary Commissioner for Administration—the Ombudsman, as he is more popularly known—and the Council on Tribunals, not to mention many Ministers, including successive Prime Ministers.
The hon. Member for Salisbury is only too well aware of the results of all these inquiries and it is therefore with some surprise that I find myself dealing in this debate with what amounts to the same questions as the hon. Gentleman has been asking since 1969. Stubbornness, particularly in the House, is often a great virtue. I am only sorry that I shall not be able to offer the hon. Member any further 1003 assurances than those he has been given before.
The motion is in general terms, but the hon. Member has made it clear that his concern arises from a particular case, and I should like first to set out briefly the background to the East Grimstead case. In June 1967 a public local inquiry was held into a refusal by the Salisbury and Wilton Rural District Council to grant planning permission to English China Clays Limited for the winning and working of chalk from some 25 acres of land at East Grimstead.
Part of the proceedings at the inquiry were heard in camera because the applicants wished to rely on commercially confidential evidence to justify the use of the large area of land for chalk workings. I make no bones about the fact that, before the inquiry took place, a representative of the appellant company called at the Department to seek procedural advice about the possibility of this evidence being heard in camera. This answers one of the points raised by the hon. Member for Hornsey. The representative was told that there was no bar to this happening if the inspector conducting the inquiry should think that it was appropriate. It was a matter entirely for the inspector's discretion. As I have already said, the inspector subsequently decided that an in camera session would be appropriate in this instance.
I think I should make it clear, as successive Ministers before me have done, that there was no question of conniving, no question of rigging an in camera session for the 1967 inquiry. The company was advised purely on a procedural point that if it wished to make an application for such a session it could do so and the inspector in the exercise of his discretion would then decide what to do on the merits of the application before him.
The hon. Member has asked before now the basis on which the inspector could make such a decision. In this instance the procedure at the inquiry was governed by the Town and Country Planning (Inquiries Procedure) Rules 1965, which have since been replaced by the Town and Country Planning (Inquiries Procedure) Rules 1974 but which are unaltered in this respect. The rules lay 1004 down certain requirements and provide that, apart from these,the procedure at the inquiry shall be such as the appointed person shall in his discretion determine.After the company's application, the inspector agreed to hear the technical evidence in camera in the presence of representatives of the appellant company, the Clerk of the Rural District Council who represented the local planning authority, who had a right to be heard, and the solicitor representing two owners of adjoining land. At the short—the very short—in camera proceedings, it was agreed that the appellant company's claim about the special quality of the chalk should be the subject of further technical examination undertaken by the then Minister, Anthony Greenwood, who is now Lord Greenwood of Rossendale.
On the basis of what was said in the inspector's report and the confidential annex, together with the results of the investigation, the Minister decided in September 1968, to allow the appeal in respect of part only of the site—about 10 acres—and for a limited period of five years from the commencement of operations, which meant that the permission would expire on 31st March 1974. There were other stringent conditions as to restoration and hours of work. The time limit and area restriction were imposed because it was considered that one of the main problems was that of moving the material from the site because of the effects of increased road traffic on the area. The Minister therefore strongly endorsed his inspector's view that every effort should be made to arrange rail or even pipeline transport.
Subsequently in 1971, following a public local inquiry, permission was given for a rail siding at East Grimstead, which permission was due to expire also on 31st March 1974, and for a minerals treatment works at Quidhampton, six miles away. In giving his decision on these called-in applications, the Secretary of State made it clear that these developments in no way prejudged any future application to extend the East Grimstead chalk-working consent.
Towards the end of 1973, the Department received from the Wiltshire County 1005 Council the details of a planning application by the company for a 10-year extension of the two permissions in respect of the winning and working of chalk and the use of the railway sidings, from 1st April 1974—the previous permissions expiring, as I have said, on 31st March 1974. The then Secretary of State decided that the application should be called in for decision, and this was done on 14th December 1973. A public local inquiry was held earlier this year in June and July and the report of the inspector, who took the inquiry, is currently before the Secretary of State for consideration. I am sure that the hon. Member understands that I cannot discuss the merits of that application or the contents of that report.
I think it is worth pointing out here, however, that one of the major points which the hon. Member had raised since the 1968 decision was met before the current application went to inquiry. This concerns the annex to the inspector's report concerning the evidence heard in camera in 1967. He had taken the view that his constituents would be placed in an extremely unsatisfactory situation when the company applied for an extension of its temporary planning permission—in other words, they would be trying to make a case against evidence which they had not seen.
But, as the hon. Member will recall, his right hon. Friend, the Member for Crosby (Mr. Page), then Minister for Local Government and Development, told him in reply to a parliamentary Question on 26th November 1973 that the company now had no objection to the full disclosure of the evidence given in camera and the then Minister sent to him and the others concerned a copy of the then confidential annex to the Inspector's report on the same day, the company having agreed to this as they were now fully protected by patents.
Thus, in his letter of 14th December 1973 to the county council calling in the latest application, the Secretary of State said:Evidence about particular qualities of the chalk in the site was a material consideration in the decision on appeal given in 1968. Because of their desire in 1967 to maintain confidentiality, the grounds for the Minister's decision of 1968 were not fully open to general discussion at the local inquiry but the Secretary of State understands that the company 1006 no longer regards it as essential to keep that evidence confidential and he considers that it now appropriate to enable interested persons to hear all the evidence in support of the present application and comment on it.As the hon. Member knows, the inquiry which took place earlier this year was held with its doors wide open to the public; the company confirmed its earlier decision that confidentiality was no longer required; and all the evidence that was originally confidential was available for comments by any interested persons, including the hon. Member who attended the inquiry.
It is, therefore, somewhat difficult to see why the hon. Member keeps going on about the East Grimstead case. There is nothing more to offer the hon. Member on it and I hope he will accept that the Secretary of State will now reach his decision on the current application in the light of all the relevant evidence presented by both the applicant and other interested parties at the inquiry, including the hon. Member himself, on a fair and rational basis.
The motion refers tothe practice of holding planning inquiries in camera"—as though this were a frequent occurrence. I am sure the hon. Member does not wish to mislead. There has been no case where a whole inquiry was ever held in camera. The session at East Grimstead lasted about one hour in a two-day inquiry, and this is one of only two cases that the Department can trace where the question has been raised at all. In the other case it proved unnecessary in the event to elicit confidential information. This is an important point and we are all concerned whether it is the thin end of the wedge. Therefore, it is important to see how thin the wedge here is and how little substance there is behind the point.
This House has debated on many occasions the arguments which abound in relation to the public disclosure of what companies feel is confidential information. One can talk at large about doing what is in the best interest of the public, and indeed different aspects of this concept can be advanced on either side.
On the one hand, for example, the hon. Member vigorously campaigns for the disclosure of information which he thinks his constituents need to know in order to 1007 have the opportunity to test the company's claims. On the other hand, companies may seek to preserve trade secrets or the details of manufacturing processes because they do not wish to lose what may be a substantial competitive advantage in exports. This, too, can be said to be in the public interest. The arguments on this problem have not just arisen in connection with the East Grimstead case, but in other fields also. We have seen similar arguments where there have been problems over air emissions and over the discharge of trade effluents into rivers. In the end, one must strike a balance with the long-term aim of ensuring that what is done is done in the public interest.
As the hon. Gentleman knows, the Council on Tribunals expressed the view, in the light of the hon. Gentleman's original representations, that a procedural point of considerable importance had been raised by virtue of the in camera session at the 1967 inquiry, and the Council thought that this ought to be covered by a provision in the statutory rules of procedure for planning inquiries. Draft rules were prepared, were the subject of widespread consultations, and were shown to the hon. Gentleman by the then Secretary of State and the then Lord Chancellor at the end of 1971.
The conclusion was reached, however, that the making of rules for the appropriate procedure would have resulted in rules which were so overpowering in relation to the other rules as to give the impression that hearings in camera could be a usual and recognised feature of inquiries, whereas it was intended that they should be very exceptional only. This was not just the then Government's view. It was also the view of the hon. Gentleman himself, who said in this House on 25th February 1971 that he thought that the new rules were likely to be so complex as to be unworkable in practice.
The point that I am trying to make is that if a set of rules is of such great importance—the situation having arisen in only a small part of an inquiry on one occasion—then, if they are extended by a provision such as this it will dominate the rest of the rules and give the impression that this kind of procedure is more normal than we expect it to be.
1008 I must emphasise here that the Government's view, like that of their predecessors, is that in camera inquiries are only ever likely to be justified in exceptionally rare circumstances. Their rarity in the past is surely some guarantee of this. We adhere to the principle that hearings should be in public so that the public can satisfy themselves that the Franks Committee's recommendations for openness and fairness are being applied and can see the justification for what has been done. It follows, therefore, that any departure from this rule will be very exceptional.
I refer the hon. Member to what his hon. and learned Friend the Member for Wimbledon (Sir M. Havers), the then Solicitor-General, said in reply to a debate concerning the Council on Tribunals which the hon. Member raised on 19th July last year. The hon. and learned Member drew attention then to the practice of the courts in relying on the exercise of discretion according to the circumstances of the case, rather than on written rules. He explained that the practice of the courts tended to confirm that there was indeed an advantage in the public's interest is not having fixed rules. Let me remind the hon. Member for Salisbury here that the whole British constitution itself is an unwritten one: it relies on a series of theoretical, practical and conventional bases which have grown up over the years in the light of experience. The situation here is no different.
Inspectors have been advised not to accede to a request that they should hear evidence in private at planning inquiries. If such a case does arise again—and one cannot rule out that possibility—the inspector will refer the request to the Secretary of State. I can certainly give an assurance that the Government adhere to the general principle that planning inquiries should be held in public and that any departure from that practice could be justified only in an exceptional case. If there were an application, it would be for the Secretary of State to decide whether and how the confidential material should be heard. I note that the hon. Member does not dispute that matters of defence and national security would have to be dealt with privately. It is, as the hon. and learned Member for Wimbledon said last year, 1009 impossible to lay down hard and fast rules about these matters.
I can hold out no promises of legislation or statutory rules, for nothing has happened to suggest that it would be any easier now than it was three years ago to find a way of expressing the provisions that would be needed in a way that did not encourage the idea that in camera sessions could be a normal everyday procedure. To some extent, this should itself be a re-assurance to the hon. Member. If there are no specific provisions for in camera proceedings, people will not be encouraged to suppose that it will be easy to obtain a private hearing.
I can, however, like our predecessors, assure the hon. Member that, if such a case occurs again, the Secretary of State will consult the Council on Tribunals about the procedure to be followed.
I hope that the hon. Gentleman will accept those assurances, not only from this Government but from his own party when they were in office. In accepting them, I hope that he will be willing to withdraw his motion.
§ 12.25 p.m.
§ Mr. Michael Hamilton
On this occasion, I wish to exercise my right of reply, which I have not been able to do previously.
I thank the Minister for what he said. I thank my hon. Friends the Members for Hornsey (Mr. Rossi) and for Dorset, West (Mr. Spicer) for what they said. I want especially to thank the hon. Member for Erith and Crayford (Mr. Well-beloved). It was a complete surprise to me to see him in attendance, and what he said was very welcome.
The Minister said that I had sought help from many quarters, and he instanced the Prime Minister. He will know that, on the day that the decision to permit the original application reached me, I approached the then Prime Minister, who is again Prime Minister today. I received a very courteous reply from the right hon. Gentleman to a letter which I handed in at Downing Street that morning. However, 14 months later, the same Prime Minister wrote to me explaining that his original letter had given a mistaken impression. He explained that the draft of that letter forwarded by the Department to Downing Street had been 1010 telescoped in the process of the fair copy being prepared.
Leaving aside the merits of that, it demonstrates that if a back bencher from either side of the House writes to the Prime Minister, the reply that he receives from the Prime Minister is drafted by the Department. We all agree that that is the case. Therefore, when the Minister says that I have had recourse to the Prime Minister, all of us on the back benches know what that means. What I am saying is accurate and is carefully documented.
§ Mr. Carmichael
We also know, on the back benches and the Front Benches alike, that when someone approaches the Prime Minister and he takes sufficient interest in the matter to make inquiries of the Department, great care is usually taken in finding the facts to supply to the Prime Minister.
§ Mr. Hamilton
I do not criticise the Prime Minister. Regardless of his party, a Prime Minister is always hideously over-burdened. But when a back bencher hears from the Prime Minister, he must assume, as has been demonstrated in this case, that the letter has been drafted by the Department concerned.
The Minister also said that I had turned to the Parliamentary Commissioner in this case. He was correct. In this Chamber, I do not like criticising the Parliamentary Commissioner, and I should not choose to do so were it not for the fact that the Minister mentioned it in his speech. We are all fallible and it is my opinion that in this case the Parliamentary Commissioner was not at his best. The original report, which is on the bench beside me, is riddled with mistakes. It is not sufficiently informed. The Parliamentary Commissioner says that it came as no surprise to my constituents who were present at the original inquiry that suddenly an in camera hearing was ordered. That is not true. It came as a complete surprise.
It is clear from the report that the Parliamentary Commissioner had no knowledge whatever that an expert witness was present, yet it is the nub of the whole problem that an expert witness was present. The Parliamentary Commissioner says in his report that it was reasonable for the Minister to decide himself to test the evidence, but I think 1011 that the Parliamentary Commissioner was completely in the dark about the expert's presence.
He did not satisfy himself that in camera proceedings were legal. He satisfied himself that the Department had satisfied itself—in other words at one remove—but it has not yet been decided in the courts whether it is legal to have proceedings in camera.
When he appeared before the Select Committee, the Parliamentary Commissioner said that it did not occur to him that a change in the procedure would have helped the complainants. But two or three weeks later the Council on Tribunals recommended that there should be a change in the procedure. At least he said to the Select Committee:this is not to say that the complainants in this case do not suffer, because they do.
|Division No. 19.1||AYES||[12.32 p.m.|
|Alison, Michael||Howe, Rt Hon Sir Geoffrey||Stradling Thomas, J.|
|Atkins, Rt Hn H. (Spelthorne)||Kilfedder, James||Townsend, Cyril D.|
|Braine, Sir Bernard||Macfarlane, Neil||Weatherill, Bernard|
|Buck, Antony||Neave, Alrey||Winterton, Nicholas|
|Clark, Alan (Plymouth, S)||Nelson, Anthony|
|Craig, Rt Hon W. (Belfast)||Nott, John||TELLERS FOR THE AYES:|
|Fell, Anthony||Roberts, Michael (Cardiff NW)||Sir George Young and|
|Hall, Sir John||Rossi Hugh (Hornsey)||Mr. Patrick Cormack.|
|Hamilton, Michael (Salisbury)||Sinclair, Sir George|
|Heseltine, Michael||Spicer, James (W Dorset)|
|TELLERS FOR THE NOES:|
|Mr. Michael Cocks and|
|Mr. Thomas Cox.|
§ It appearing on the report of the Division that forty Members were not present, Mr. DEPUTY SPEAKER declared that the Question was not decided, and the business under consideration stood over until the next Sitting of the House.
§ Mr. Carmichael
I think, Mr. Deputy Speaker, that this comes ill from the hon. Member for Hornsey (Mr. Rossi). He has been a Whip, whereas I have not. I have been present on many occasions on a Friday. We all know that this is one of the ways used. The Government have
§ Although tempted to do so, I shall not deal similarly with the Council on Tribunals.
§ The Minister asked why I continued to raise this matter. There are two reasons. The first is that I believe that an injustice occurred. The Minister has heard the facts this morning and does not deny what took place. My second reason is that I believe that what happened in my constituency could equally happen elsewhere this week or next and there are no fresh safeguards to prevent that. In a nutshell, that is why I have chosen to raise this matter this morning.
That this House disapproves of the holding of planning inquiries in secret, except in the interests of defence and national security:—
§ The House divided: Ayes 25, Noes 0.
§ made some points in the debate. They have to some extent given safeguards. Rather than totally to defeat the motion it is better that it be carried forward to another day.
§ Mr. Anthony Fell (Yarmouth)
Further to that point of order, Mr. Deputy Speaker. The position has been a little odd. It is perfectly clear to everyone present that there were large numbers of supporters of the Government present. I understand that they spoke against the motion and then, I believe, ordered Members out of the "No" Division Lobby. Some Members did trickle in there, but they then were thrown out. The Government Whips stood in armed guard at the entrance to the Lobby to stop any of their supporters going in. It was a most extraordinary procedure.
§ Mr. Deputy Speaker (Mr. George Thomas)
Order. There is a providence which guides us in these matters. The Standing Orders are quite clear:If at any time it shall appear, on a division, that forty Members are not present, the business under consideration shall stand over until the next sitting of the House and the next business shall be taken.Mercifully, it is not the business of the Chair how hon. Members cast their votes, abstain or whatever they do, except that they keep in order in the Chamber. Mrs. Hayman.
§ Mr. Patrick Cormack (Staffordshire, South-West)
Further to that point of order, Mr. Deputy Speaker.
§ Mr. Cormack
On a point of order, Mr. Deputy Speaker. It is a very small point of order. Could it be recorded in the Journal of the House that the Government have not mustered a single vote in their support? The Minister, having delivered an oration from the Dispatch Box——
§ Mr. Deputy Speaker
Order. I am sorry, but even after an all-night sitting that is asking a lot, and it is quite impossible.
§ Mr. James Lamond (Oldham, East)
Further to that point of order, Mr. Deputy Speaker. I should not like to go unchallenged the statement that Government Members were ordered from the Lobby. The hon. Members on the Government side of the House who were present decided of their own free choice not to go into the Lobby. The Whips certainly gave them advice but in no way attempted to prevent them if they wished to go in. Certainly, the Whip said to me, "It is up to you to decide what you want to do".