ESSEX CHALK-PIT INQUIRY DECISION

HL Deb 08 May 1961 vol 231 cc35-76

4.15 p.m.

LORD SILKIN rose to call attention to the Lord Chancellor's reply, printed in the OFFICIAL REPORT of the 20th April, 1961, to a Question for Written Answer on the subject of the appeal of Messrs. Heath & Son Ltd., against a refusal of permission to win and work chalk on land in Essex; and to move for Papers. The noble Lord said: My Lords, I beg to move the Motion standing in my name. This case, the Essex chalk-pit case, has aroused considerable and wide- spread interest and concern, in the Press, in the legal profession, in Government and local government circles, and even in another place, where the Prime Minister himself was called upon to answer a number of questions.

Several newspapers and periodicals dealt with the case in leading and other articles, and there have been many letters in the correspondence columns of those periodicals. I personally have had very considerable correspondence. I thought it right, therefore, to bring the facts of this case before your Lordships' House. I know of no assembly where it is possible to have a discussion on a subject of this kind in a more objective and informed manner. It is all the more appropriate to discuss it here because your Lordships are always ready to act as watchdogs to safeguard the public against possible abuse by Whitehall. The matter is important, not because of the magnitude of the issues involved, nor because of the people concerned in it, but because it brings out vital questions as to the fairness and correctness of our methods of public inquiry, a subject in which Parliament has over recent years shown a lively and continuous interest.

The system of public inquiry which was evolved in this country is one of which, on the whole, we are justified in feeling proud. It is intended to operate for the protection of the individual against arbitrary authority, and to secure an impartial tribunal for determining issues of certain special kinds arising between private persons. Generally it has worked well, but occasionally weaknesses and defects are manifested—as, for instance, in the Crichel Down case. As a result of that case, the Franks Committee were appointed, and as a result of that in other cases steps are taken as soon as these difficulties are manifested.

When such cases do arise, we must be prompt, vigilant and courageous in remedying them. As the Franks Committee have so well stated in their Report, it must be a feature of these inquiries that they are conducted with openness, fairness and impartiality. To that I would add that they must be manifestly seen and believed by the public to be carried out with these characteristics. Otherwise they will come to be regarded as mere window-dressing, or as just providing the public with a chance of blowing off steam. It is because grave doubts have been, widely expressed as to the openness, fairness and impartiality of the manner in which this particular case has been conducted, that I hope that to-day's debate will be of value. I want to make it clear, before I give the House a brief summary of the facts, that I am not asking your Lordships' House to form any judgment on the merits of this case. I am not going to try to show that the Minister primarily concerned, the Minister of Housing and Local Government, necessarily came to a wrong decision, though I myself happen to think he did. But even if his decision were right, I hope to establish that he arrived at it by committing breaches of the three principles I have set out.

Now I want to come to the facts of this particular case. In 1958 an application was made to the Saffron Walden, Rural District Council by Messrs. D. Heath and Sons, Limited (whom I will hereafter call "the applicants"), for planning permission for the working of chalk on the site of an exhausted sand and gravel pit belonging to them at Stansted, in Essex. The local authority refused the application on two grounds, among others: first, that because of chalk dust that would be created the proposed development would be likely to be detrimental to a valuable herd of pedigree pigs and to ponies which are being reared on adjacent land; and secondly, that there was no need for the production of chalk from this pit as the demand could be satisfied from other pits in the district. The applicants appealed against this decision, and the appeal was heard in November, 1958, before an inspector of the Ministry of Housing and Local Government. I want to describe fairly fully what happened at the inquiry.

The applicants were represented by counsel and called three witnesses: their managing director, their head salesman and the partner in a firm of local surveyors and auctioneers. The local authority called the area planning officer and the clerk of the Stansted Parish Council. I may say that the clerk of the Stansted Parish Council has said that his council were unanimous in opposing the application. Then there were four adjoining owners, who claimed to be affected, and they included a Major Buxton, the owner of the pigs and ponies, to which I have just referred and which were mentioned in the local authority's ground for refusal. These four adjoining owners were represented by counsel at the hearing, and themselves gave evidence and were cross-examined. They also called a number of witnesses: a farm manager, an estate agent and a representative of the Nature Conservancy Board. All of them gave supporting evidence to the objection. In addition, they called two highly qualified technical witnesses.

The first was described in these terms—and I hope your Lordships will forgive me if I set out fairly fully what his qualifications are. He is the agricultural analyst for the counties of Northumberland, the East Riding of Yorkshire, Northampton, Oxford, Middlesex, the Isle of Ely, Huntingdon, Buckinghamshire and the City of Oxford. He is consulting chemist to the Royal Agricultural Society of Great Britain, and to the Bath and West and the Southern Counties Society. He is a member of a standing advisory committee appointed by the Minister of Agriculture, and he is the public analyst for five counties and three boroughs. He has had 31 years' experience as a consultant. I hope that your Lordships will agree that that is a formidable list of qualifications. He had visited the area at Stansted and also the proposed chalk-pit. He had had discussions with the applicants' manager on the site and had the proposed method of working the chalk explained to him. As a result of all this, he had no hesitation in supporting the objection to the proposal, and his opinion as to the dangers of the chalk workings and of the dust arising as a result of them was not shaken in cross-examination.

The other witness was an eminent veterinary surgeon, who gave evidence as to the likely effect of chalk dust on the animals. Major Buxton also produced at the hearing an objective report on the supply of chalk in Essex and the neighbouring counties which had been prepared on his behalf by the Economist Intelligence Unit. I have the report here, and any noble Lord who is interested may see it. This report was not challenged by the applicants. Broadly speaking, it indicated that there was no shortage of ground chalk in Essex, and is demolishes one of the points made by the applicants. Both sides were cross-examined, and I can say that certainly the case of the objectors was not shaken as a result of cross-examination. The inspector then visited the site and in due course reported very full, recommending that the appeal be dismissed.

In his report, he dealt with the two main points at issue, and gave at great length the reasons for his recommendations. In so far as there was a conflict of evidence—and the conflict was merely on the amount of dust that would be created—he had the immense advantage of having seen the witnesses and how they reacted to cross-examination. He was, therefore, in a position to assess the strength and value of the evidence, a task for which, of course, he is immensely qualified by virtue of his vast experience in this field; and as I said, he saw the site and the locality generally. I have read the evidence and all the available relevant documents and I have seen the notes of the cross-examination. I am bound to say, with all humility, as one who has had some experience in these matters, that the evidence, and particularly the weight of it, overwhelmingly supports the inspector's recommendation. In my opinion, no impartial person could reasonably have come to any other conclusion.

The inspector's report went to the Minister for his decision. He took ten months before he decided, and then he allowed the appeal, permitting the working of the chalk subject to a number of safeguarding conditions, thus overriding the recommendation of his inspector. What happened in those ten months is not definitely known. We do not know whether the Minister personally saw the papers in this case. One knows from experience that a Minister cannot possibly see all appeal cases himself. I hope that the noble and learned Viscount will be able to tell us. We do not know whether the Minister even knew about the case or was personally consulted. But whether he himself knew or not, of course he must, and does, accept full responsibility.

The Minister's decision appeared to Major Buxton and his legal advisers to be so entirely unjust and against the weight of evidence in the inquiry that he decided to take proceedings in the High Court to quash the Minister's decision. I am informed that the Judge was unable to come to a decision on the merits, though he appeared to be sympathetic to Major Buxton's case, because, as a last resort, a technical point was raised—namely, that Major Buxton and his neighbours were not, in law, aggrieved parties. The Judge felt obliged to dismiss the application on this ground. This, by the way, raises an important issue as to the rights of third parties, who, though not immediately and directly parties to an appeal, are nevertheless very much affected. At present they are given unofficially—as it were by grace—the right to be heard. It is a matter for serious consideration how far we ought to go, and what degree of interest would be regarded as justifying, the giving to such third parties of all the rights of third parties in the proceedings. However, I recognise that this is a separate issue and one which requires a good deal of consideration.

Major Buxton did not let the matter drop—and may I say here that I have never met Major Buxton? I do not know what he looks like or anything about him. Your Lordships may regard him as an awkward customer—the sort of man who, when he feels he has suffered an injustice, will move heaven and earth to put it right. Well, thank Heaven! there are people who will not lie down to injustice and take the line of least resistance, who are prepared to make sacrifices to see that right prevails. Obviously, all this must have been very costly indeed to Major Buxton. But that is the way things generally happen in this country, and it is a good thing that there are people like that around. My friend—I might say my noble friend—Lord Stansgate is one such person; Major Buxton is another; and I hope that there will be many more who will take this line.

After being defeated in the High Court, Major Buxton submitted the facts to the Council on Tribunals. I do not know what view they took, but they evidently thought it sufficiently important to ask for a statement from the Lord Chancellor. That statement was duly made, in reply to a Written Question by me which was printed in Hansard on April 20 [Vol. 230, cols. 740–44]. I must say, in passing, that although this procedure appears to be that laid down in the Tribunals and Inquiries Act, 1958, it is an embarrassing duty to impose on one member of the Government to adjudicate on the conduct of one of his colleagues. To a lesser and less objective man than the noble and learned Viscount on the Woolsack it would have been an almost impossible task. I should not dream of making any charge against the noble and learned Viscount of lack of objectiveness in his statement. Nevertheless, the general public could be excused if they took the view that "dog does not eat dog", if I may use that expression, and that it was only to be expected that the noble and learned Viscount would, out of loyalty, use his great skill to exonerate his colleague.

Certainly the statement did not satisfy the Press. Criticisms continued. In a powerful leading article The Times referred to it as "Circumlocution 1961". It would appear that the Council on Tribunals, presided over by the noble Viscount, Lord Tenby, were also not entirely satisfied by the statement (though this is pure inference), and I understand that last Thursday the noble and learned Viscount met the Council. What transpired I do not know. I am therefore in some difficulty. The Lord Chancellor will make a statement about this meeting when he replies to the debate. I may have to ask the indulgence of your Lordships to reply to him if any controversial point arises.

My Lords, I have dealt at some length with the factual history of this matter, and now I have to embark into the realm of conjecture. What did happen during the more than ten months while the Minister or his advisers were cogitating over this case? Why did the Minister not accept the clear advice of his inspector? I am aware that he is under no obligation to do so: the function of the inspector is merely to report and to recommend, and it is for the Minister to make the decision. But in a case of this kind, where no serious question of policy arises, he should accept the advice tendered to him, unless he has overwhelming reasons for rejecting it. If it he contended that the need for more chalk in the area is a question of policy, I would say that whether or not there is a shortage is a question of fact, which is verifiable statistically and on the basis of evidence. The evidence on this point given by the objectors was not challenged by the applicants and was accepted by the inspector. Indeed, the noble and learned Viscount, in his statement, by implication agreed with this, because he said (col. 741). …the case really turned on the second point—namely, whether the winning and working of chalk on the particular site would cause an unacceptable degree of damage. With respect, I agree with the noble and learned Viscount. But if that is the only point in the case why did the Minister reject the advice of his inspector? The reasons emerge from the Minister's decision letter and from the Lord Chancellor's statement.

It seems clear that, after the inquiry, and before giving his decision, the Minister did two things. He consulted the Minister of Agriculture regarding the risk of dust arising first from stockpiling and subsequently from the handling of the chalk, and the effects that such dust might have on plants and animals. Secondly, he sought advice from experts in his own Department on the effects of chalk working on neighbouring land. The question of production need was apparently also discussed with the Minister of Agriculture, but, in view of the Lord Chancellor's statement, which I have just quoted, I assume that this did not weigh with the Minister. I hope that is so, because it would be highly improper to accept the Minister of Agriculture's view, in the light of the weight of the evidence and research to the contrary, without first giving the objectors a chance of commenting on it or even of cross-examining the persons making the statement about production needs. But I take it that the real issue was on the question of chalk dust and not on the need for the production of chalk.

From the noble and learned Viscount's statement it becomes clear that, in spite of the evidence, both the Minister of Agriculture, or his technical advisers, and the alkali inspectors in the Minister's own Department—and here I quote from Column 742 advised…that there was no real likelihood of dust emission in this case on such a scale as to cause trouble… An unfortunate feature of the consultation with the Minister of Agriculture was that an officer of that Department concerned with lime production had already informed the applicants, before they made their planning application, that the application would be regarded as acceptable, and had thus encouraged the applicants to believe that their application would go through. So much so, in fact, that I am given to understand that the applicants, on the strength of this statement, bought machinery and equipment for the purpose of carrying out the chalk workings. This information was given at the preliminary site meeting before the inquiry, in addition to having been given before the application was put in. Neither the officer—no doubt for good administrative reasons set out in the Lord Chancellor's statement—nor anybody else from the Ministry of Agriculture gave evidence at the inquiry. The noble and learned Viscount has explained why nobody from the Ministry of Agriculture gave evidence, even though they thought the application ought to be granted, and I do not propose to comment on it except to say that it seems to me to be highly technical and difficult for the ordinary layman to understand.

It is, therefore, a matter giving rise to legitimate suspicion that the whole thing, so far as the Ministry of Agriculture were concerned, was cut and dried: the officer had made up his mind before the appeal inquiry started; although he does not intend to give evidence at the inquiry nothing that takes place art the inquiry is going to shake him; and when he is consulted after the inquiry, he naturally expresses the opinion that he has done all along. How do the Government reconcile this with the doctrine that justice must be seen to be done? A decision ought not to be influenced in this way by a person giving evidence or advice behind closed doors, and free from any obligation to have his evidence tested by cross-examination. What I say about the officer of the Ministry of Agriculture applies also to the Minister's own officer. Can this be said, in the circumstances I have described, to be an acceptance of the doctrine of the Franks Committee, that the decision of tribunals shall be openly arrived at? There was nothing open about this procedure.

The Government and the Lord Chancellor seek to draw a distinction between new factual evidence, which would justify giving the parties an opportunity of commenting upon it, or even of reopening the inquiry, and expert or tech- nical evidence. I regard the distinction as quite artificial. The function of the expert or the technician at the Ministry, whichever Department it is, is to explain and elucidate to the Minister what the evidence means, so that the Minister may query and fully appreciate the nature of the evidence which has been given. It is not for the expert or technician to assess or evaluate the evidence. That is equivalent to giving his own expert evidence, and if that is given it should render him liable to be treated as a fresh witness. Once the Minister has had the technical evidence explained to him, and has understood it, it is his own responsibility to make a decision on the basis of the evidence presented at the inquiry. He must not shelter himself behind the experts, whom he is perfectly entitled to consult, whether in his own Department or any other.

In the present case virtually new evidence, and not evidence of policy—or, if you like, additional evidence—has been adduced, and has been a determining factor in the Minister's decision. The objectors have had no opportunity of testing this new or additional evidence. It was taken and acted upon behind closed doors and without disclosing the fact to the parties. In the debate on the Report on the Franks Committee on October 31, 1957, the Government spokesman accepted the Report and made no suggestion of any disagreement with or reservations on paragraphs 347 to 350, or on the recommendations that flowed from them in paragraph 83. The recommendation of the Committee reads as follows: the deciding Minister should be required to submit to the parties concerned any factual evidence…obtained after the inquiry". The Committee go on, in paragraph 350 of the Report, to say: In the definition of factual evidence for the purposes of this recommendation we include expert opinion on matters of fact but not expert assistance in the evaluation of technical evidence given at the inquiry". They go on to say: There may be cases in which it is clearly desirable to give the parties an opportunity to cross-examine on the new evidence".

There can be no doubt whatever, my Lords, that in this case what the experts did was not merely to evaluate the evidence given at the inquiry, or to explain it, but to give fresh evidence to impose their opinion on the opinion which had been given at the inquiry. That is clearly against the first principles of justice, and certainly against the recommendations of the Franks Committee, which I understood the Government had accepted. I hope your Lordships will be satisfied that this is exactly the kind of case the Franks Committee had in mind. It illustrates a serious defect or weakness in our procedure. It departs from the principle of "openness, fairness and impartiality." It tends to destroy public confidence in that justice is not manifestly being done. I do not ask for the Minister's head to be delivered on a charger. I do not even ask for his resignation, though I am not so sure about the Minister of Agriculture. This is not a Crichel Down case, but it discloses a serious defect or weakness in our procedure which the conduct of the Minister in this case, no doubt in all innocence, has helped to bring to light.

I await with the greatest interest the further statement of the Lord Chancellor and the views of the Council on Tribunals. I am very sorry that the noble Viscount, Lord Tenby, who is here, has not thought it right to take part in the debate. It may be that he is correct, but his observations would have been of great interest. I hope that the defects to which I have drawn attention will be speedily rectified and that action will be taken, whether by the Government or by the Council on Tribunals, or both, which will restore public confidence, which has undoubtedly been shaken, in the openness, fairness and impartiality of our procedure in connection with public inquiries. My Lords, I beg to move for Papers.

4.47 p.m.

LORD WALSTON

My Lords, my noble friend, Lord Silkin, has, in my opinion, held the balance very fairly between the general and the particular in this problem. To a certain extent he has dealt with the general principles which should underlie these inquiries or activities of tribunals and he has also outlined, in an extremely clear and objective fashion, the procedure and the actual occurrences that have taken place over this so-called chalk-pit inquiry. I do not propose to follow him at all in the particular; I shall stick solely to the more general aspects and the prin- ciples that seem to me to be involved in this case.

My noble friend has already quoted from the Franks Report, and I should like, at the risk of repeating what he said, to read a couple of paragraphs at the opening of Chapter 3 of that Report. The Report says: When we regard our subject in this light, it is clear that there are certain general and closely linked characteristics which should mark these special procedures."— that is, the procedures on inquiries and tribunals— We call these characteristics, openness, fairness and impartiality". That, surely, must be something which we should always keep in our minds in any approval or condemnation of the action of such tribunals. There is no question at all that, in the initial stages of this particular inquiry, everything was done openly, fairly and impartially. But once the inspector had made his report, that is where the question mark comes. Prior to Crichel Down—the affair which led up to the Franks Report—there was, quite rightly, a great deal of feeling of disquiet that decisions were taken by nameless men who could pronounce on matters which, while not necessarily of great national importance, were of great importance to individuals and to their right to enjoy their individual freedom. It was for that reason that the Franks Committee was set up and made its recommendations, and it was for that reason that those recommendations were, quite properly, accepted and endorsed by the Government.

Now what has happened in this particular case?—as an example, and only as an example, of how that is carried out. The inspector's report was made public, as it was bound to be, following on the Franks Report, and the inspector's report was unquestioning in its recommendations. There were no "ifs" and "buts" about it. The inspector recommended that this particular appeal in this particular case should not be allowed. The Minister did not agree with the report; he said so, and he ruled in favour of the applicant. I am not for a moment suggesting that a Minister must be bound 100 per cent. by the findings of any inspector that he appoints. He must, of course, have a right of final decision, and that means that he must have the right to disagree with his inspector. But we must be very certain, and he must be very certain, to make it very clear—and the Franks Report said this—what his grounds of disagreement are, if he should disagree.

It is quite clear—and this has been mentioned in some of the correspondence and the writing which has taken place about this case already—that there are certain aspects of national policy or even of departmental policy which make it very reasonable for the inspector to give a certain decision or recommendation and for the Minister then to disregard it and to rule in the opposite direction. But that has not been the case with the chalk pit inquiry at all. There is no question there of national or departmental policy. There is a further reason for disagreeing with the inspector's report: that fresh evidence has come to light; and here, surely, we come to the crux of the matter in this particular question. Has fresh evidence been brought to light? If fresh evidence has been brought to light, then, in common justice, it must be open to all interested parties to be able to rebut that evidence if they can.

We have it on the authority of the Minister and of the noble and learned Viscount that no new factual evidence has been brought to light. Therefore, the only reason, so far as I can see, for the Minister to disagree with the findings of his inspector is either that he considers the inspector to have been incompetent and to have come to a wrong decision on the given evidence (and that has not been asserted at any stage) or—and this is not so very different from that—that, for some reason or another, the evidence that was presented to the inspector has subsequently been presented to the Minister in a different light. That, from all the reading of the case that one has been able to find, seems to be what in fact has happened here. The various expert witnesses who came along and were called in evidence gave it as their opinion that certain results would accrue if certain actions took place, and on the other side the applicants contended that those results would not accrue. The inspector listened, there was cross-examination, he saw the reactions and the personalities and he came to his decision. But on that particular type of expert evidence it appears that the Minister brought in other experts in his own Ministry—for which one cannot blame him; he must listen to them—and he gave them overriding precedence over the findings of his inspector.

It is obviously an extremely difficult position for a Minister to be in in this case. One cannot debar him from seeking the advice of his own experts, or indeed the advice of experts in other Government Departments. On the other hand, there is the point of view of the public and of the aggrieved or potentially aggrieved parties. It is worth remembering here that either party may be aggrieved; it is not a single individual fighting against the Government or being victimised, as he thinks; in this case there are two private individuals; one wants to do a thing and one does not want to do a thing. We must not look here at the Minister or his Department as being a monolith which overrides one individual; he is sitting in a judicial capacity and deciding the rights between individuals. It seems to me, in the interests of the appearance as welt as the execution of justice, that his experts should be subjected to exactly the same examination by the interested parties as any other experts who have been called at the inquiry itself. We cannot be satisfied that justice is done if half or three-quarters of the witnesses are called at the inquiry itself but another one or two are called in when the inquiry is closed; they are not known, their evidence is not known, their opinions are not made public, the inspector does not hear them, the applicant and the other interested parties do not hear them at all. That is a thing which is done behind closed doors and which brings us perilously close to the position we were in before Crichel Down and before the Franks Report.

There is only one further point should like to make, and it is more by way of tentative suggestion than anything else. It is conceivable—and I do not want to enter into personalities in this case at all—that a case could arise, a dispute of this nature between two private individuals, where one party is highly skilled in the matters of public inquiries, is extremely well advised, is able to obtain counsel or legal advice, professional advice of the highest order, and can bring forward a whole bevy of most impressive expert witnesses to support his case. On the other hand, you may have a rather simple agricultural, rural person who is not very used to any of these things, who does not come well prepared for the inquiry and who is not equipped with all the countervailing expert advice which quite possibly he can get hold of. I am not for a moment saying that that happened in this case, but it could happen.

It seems to me that where such a thing is likely to happen, the inspector or the Minister of the Department concerned could be empowered, for his own information, to bring forward technical advice and expert witnesses to assist the inquiry, so that there should not simply be one batch of expert witnesses on one side and a complete blank on the other. If there had been some modification which had enabled that to be done, it would have resulted in the present instance in the Department's witnesses—if the Minister felt they were needed at all, as obviously he did; otherwise he would not have called them in after the inspector's report—appearing at the inspector's inquiry in the first place. They could have given their opinion to the inspector, have been cross-examined, and the whole decision taken from the report made by the inspector with the full facts and the full assessment given to him, as indeed it was later to the Minister. As things are, with the stale of affairs that has been shown to exist as a result of the present inquiry, it cannot he said by anybody, looking at the matter objectively, that the real objects of the Franks Report, the abuses it sought to remove, have in fact been removed, or that an aggrieved party can with confidence go before an inquiry of a Ministry inspector, knowing that all relative facts will be taken into account and that the decision will be made openly and in the full light of cross-examination and publicity rather than in the semi-darkness of a Government Department.

4.58 p.m.

VISCOUNT COLVILLE OF CULROSS

My Lords, I welcome this debate, and I venture to take part in it because I think it is bound to shed light on a subject which is of very great importance to those who take part from time to time in public inquiries at the instance of various individuals or Ministries. The noble Lord, Lord Silkin, has already given a full description of what took place in this particular case, but as I see it the crux of the whole matter is in one sentence from the Minister's decision letter, of which the noble Lord, Lord Silkin, has already read a part to your Lordships. I think I must read it again, because it is the foundation of the whole complaint. The letter said: The Minister has considered the risk of dust arising from stockpiling and subsequent handling of chalk and the effects such dust might have on plants and animals and has consulted the Minister of Agriculture, Fisheries and Food It was the consultation with the Minister of Agriculture, Fisheries and Food which started the whole of this controversy, and I think it was Major Buxton who found himself dissatisfied with that statement in the decision letter, and by means of various systems he has got two interpretations of it. One, I think, is in a letter from the Minister himself which Major Buxton has since published. If I am correctly informed, the Minister said that by that expression he meant: we consulted the Ministry of Agriculture by asking them whether they wished to add anything. Had 'they done so we should, of course, have informed the parties to the appeal and invited their comments: that would have been our duty. On the other hand, in the abortive proceedings in the High Court that same phrase was examined by Mr. Justice Salmon, and he said: I think the letter setting out the reasons on its ordinary construction means 'as a result of what I learnt from the Ministry of Agriculture I have come to the conclusion that the dust would only he occasional and insufficient in quantity to cause damage to crops and livestock'. That is what I think the letter means. Then my noble and learned friend who sits on the Woolsack gave an explanation of what had happened in the way of inquiry behind the scenes, if I may so put it, and this appears in two places in the OFFICIAL REPORT of April 20. At column 744, towards the end of his statement, my noble and learned friend described this as being what happened when the Minister of Housing was consulted. He said: He simply received confirmation of the appellants' argument that chalk from the appeal site would make a useful contribution to the area, and advice on the argument which had taken place at the inquiry about the damage which the chalk might be expected to cause; and his advice was that on this point the inspector's conclusion could not be supported, given the conditions which were to be imposed"— that is, imposed on the planning consent as it was finally granted. The noble and learned Viscount also gave a little more information about this advice which was received from the Minister of Agriculture and his experts. I do not want to read all of it, but it ends up by saying (col. 742): They said that in their opinion there was unlikely to be dust nuisance from the proposed working, even in the driest weather, and that even if some dust were dispersed beyond the site the quantity would not be sufficiently large to have any deleterious effects on crops or livestock. That is in comparison with the Minister's own explanation, saying that he consulted them by asking whether they wished to add anything.

These various quotations may not be as inconsistent as they might at first sight appear to be, and I do not wish to give the impression that I am in any way attacking my noble and learned friend's explanation as given in the OFFICIAL REPORT. What he said was that he thought there had been some misunderstanding in the application of paragraph 350 of the Franks Committee Report, and he said that the meaning to be attached to the words "new factual evidence" might not be exactly what some people had thought it to be.

He went on to say that Her Majesty's Government had been unable to accept the distinction in that paragraph of the Report between the expert opinion on matters of fact and expert assistance in the evaluation of technical evidence given at the inquiry, and that on those grounds he thought the assistance which had been given to his right honourable friend the Minister of Housing and Local Government by the experts, both of his own Department and from the Ministry of Agriculture, fell within the category of advice which might properly be given to a Minister without any necessity either to reopen the inquiry or invite comments from the applicants. It is precisely from that state of affairs that I think this debate may be able to shed some light on something which is of great interest to those who take part in these local inquiries; and of course it must bring in the Council on Tribunals which was set up under the 1958 Act.

The sort of distinction which my noble and learned friend drew between those two sorts of evidence is, clearly, an extremely fine one, and one which some people might say was bandying words. But I believe that there must be some dividing line. At present, so far as I can make out, it is decided within the Ministry itself. It may appear to those who have not been privy to the consultations within the Ministry that the decision has come down on the wrong side, and that the technical evidence should have been open to comment or further cross-examination, whereas in fact the Department has decided that it should not be so open. I would suggest (I hope that my noble and learned friend will not regard this as an impertinent suggestion) that it should not perhaps, in the long run, be the Ministry which is the final arbiter of this decision but that, in suitable cases, the decision as to which side of the line the evidence and the advice falls might be made by the Council itself. Although the Council is not the sort of watch-dog which is found in some Scandinavian countries, none the less there is a great deal of public concern that there should be a non-ministerial body, which at any rate can give advice and guidance on the procedure and mechanism at and after a public local inquiry. The difficulty that arises is that the decision on this sort of distinction between the two varieties of evidence is, of course, taken long before anything can be done in the Council; and, so far as I know, it may be very difficult for the Council to reopen it.

However, what I should like the noble and learned Lord Chancellor to explain, if possible, is exactly what procedure a person involved in this sort of difficulty should take. As I understand it, the Council of Tribunals has two jurisdictions under the 1958 Act as regards this sort of inquiry. One is that it can take up the matter if it considers it to be serious, on its own motion, and the other is that the matter should be referred to it by my noble and learned friend. It is certainly far from clear to the public whether they may themselves approach the Council in a case like this, or whether they would have to take it through my noble and learned friend before it could be referred to the Council at all.

If the first is the case, then I cannot but think that my noble and learned friend may sometimes find himself in a difficult position, because it is perfectly clear that in a case where a private citizen may consider he has received injustice from a Government Department, the case which he wishes to put before the Council is not necessarily one that is suitable for the Council to look at. If, however, my noble and learned friend were to refuse to refer it to the Council, this might add fuel to the flames. If on the other hand the Council can consider this on their own motion, then the position will be all right, so far as it goes. But there then arises the difficulty: once the matter has been considered, what happens to the report of the Council?

It is perfectly clear that the Council should not, and cannot, deal with policy; but there must be occasions such as this where they can, and should, report on the correctness or incorrectness of the procedure which has taken place at or after the inquiry. And if they choose to do so, so far as I can make out their report is given to my noble and learned friend and is not made public. That, at any rate, is what seems to have happened in this case. Again that must put the noble and learned Viscount the Lord Chancellor in a difficult position, because if the report is not known there is bound in some cases to be a suspicion that he has not accepted the report when it was in favour of the person who considers he is aggrieved; and once again there is some further fuel added to the flames of the supposed injustice.

Would it not be possible for at any rate the recommendations of the Council on Tribunals in such a case as this to be laid before Parliament? I quite accept the position that their full report may not be suitable, because it goes into matters of policy simply to be considered in the Departments. But I should have thought that if they were to report that a matter had not fulfilled the recommendations of the Franks Committee, such a report should be placed before Parliament and, if necessary, should be debated in either House. Further and beyond that, I do not know (nor, I think, does anybody else I have met) what powers the Council have in their reports. I should have thought, again with great diffidence, that supposing it emerged that the procedure as recommended by the Franks Committee—and, indeed, as adopted by Her Majesty's Government—in some degree did not conform to the Committee's report, and that the Council considered that the correct procedure, whatever it is, had not been fulfilled, they should be able to recommend that the inquiry be reopened and that further evidence, if necessary, should be taken and be subjected to cross-examination.

This would mean that the decisions of the Minister would have to be held up; there would have to be some sort of moratorium, because otherwise it might involve compensation if the decision were finally reversed.

None the less, I feel sure that there would be a great deal of satisfaction among members of the public if it were felt that the Council on Tribunals were able to be seized of this sort of matter; were able to report at any rate their recommendations in public; and were able, if necessary, to recommend that the inquiry should be reopened. I hope, my Lords, that I have not taken this too wide, but it seems to me that this is the sort of thing that arises from this case and which might very well be further considered, perhaps when my noble and learned friend comes to reply, or later.

5.12 p.m.

THE EARL OF HUNTINGDON

My Lords, I wish to intervene only briefly and on only one point. Much of what I should have said has been said more ably than I could say it by my noble friends Lord Silkin and Lord Walston, who both, I think, made a very clear case and put the facts as clearly as anyone could wish to hear them. But there is one point I should like to mention. There are at times in our country conflicts between the Executive and private interests. It is something we cannot avoid, and these conflicts have to be resolved. At the same time, we all agree that the Executive must have the ultimate power of decision when it comes to questions of important national interest. I do not think that one would have any quarrel against those two points.

However, the thing that has begun to worry a lot of people and which certainly worries me is this question of public inquiries. We all have to remember that public inquiries, whatever their function is, should always be concerned in maintaining public liberty and in seeing that the rights of the individual are properly supported and are properly considered. It has always seemed to me that this system of public inquiries is one of the major supports in this struggle, a bastion of liberty. We must have these inquiries, and not only must they function well but they must be seen to function well. They must be considered and believed by the public to be acting completely fairly; the public must feel that their considerations and particularly their decisions will be given full consideration by the Minister. That is, unfortunately, what does not always seem to be the case.

In the first place, in the case of these inquiries there may be a conflicting interest, as we have seen to-day. An inquiry is arranged; the various parties come to it. And I should like to stress, my Lords, that it is a very expensive thing to be represented at an inquiry, and very often smaller interests cannot afford it. You have to pay counsel; you have to pay for research and for witnesses and so forth; and for the smaller man or smaller association this is a great hardship and may be a very difficult thing to do. But that we accept, if the inquiries are to have the prestige which we think they should have. If they are to work we must get our witnesses and have the case put forward. Then the inquiry reports and gives a decision; and after that one would expect that the Minister would normally accept the decision of that inquiry unless he has overwhelming interests of national importance or policy which make him take a contrary course.

The way people are beginning to believe inquiries work is like this. They think that a Minister makes a decision as to which side he wishes to support in the public interest or which side he favours. He then consults the major interests which might be a nuisance, or important people; then some compromise is reached or some bargain struck; then finally he says that an inquiry must be held under the Act of Parliament. It is then held and he says, "Good; we have heard the evidence and now we can go ahead with what we want to do." I am not suggesting that that is done, but that is an opinion that is gaining ground among a good many people. And, of course, an opinion like that is reinforced by cases such as we have heard about concerning the chalk pit or Crichel Down. I think, and in fact I hope, that the noble and learned Viscount the Lord Chancellor will make it very clear that these inquiries are in earnest: that when the report comes out it is valid and will be considered by the Minister; that no decision is taken before the inquiry takes place and that the final decision of the Minister will really be based on the inquiry and on the evidence of that inquiry. If this does not happen, the whole thing becomes a farce or eyewash, and it would bring the whole system into disrepute. That is really what I want to get clear in this debate this afternoon. I hope that some assurance can be given for people who are beginning to doubt the efficacy of these inquiries, to make it clear that the inquiries really are a bulwark and a defence of our liberties; because without that the whole system tumbles to the ground. That is all I wish to say this afternoon. I think that that is an important point and I hope that the Government can give a definite assurance on it.

5.20 p.m.

THE LORD CHANCELLOR (VISCOUNT KILMUIR)

My Lords, I am very grateful to the noble Lord, Lord Silkin, for giving me an opportunity of dealing in greater detail than it has been possible for me to do hitherto with this case, which undoubtedly raises issues of considerable importance and, as he says, has attracted a large amount of public interest. Apart from the obvious importance of the particular case to all those whose interests are affected by it, the matter is of much wider public importance because of the way in which it raises the general question of the procedure followed, not only at these inquiries but also during the interval between the conclusion of the inquiry and the time when the Minister reaches his decision.

I could not agree more profoundly that it is of the utmost importance that public confidence in the way in which these planning procedures are carried out should not be undermined and that people should feel that the procedure which is followed is fair and just to all concerned. I want to say to the noble Earl, Lord Huntingdon, that, to all my knowledge—and I have been considering these matters for years now—the inquiry is a serious, important part of the procedure, and I have never heard of any case where what he feared (or, rather, what he quoted opinion as fearing) has taken place. I can give him, to my full knowledge—and, after all, I have been a Minister of the Crown for quite a long time—the assurance which he desires. If, when I have dealt with any point, there is any further aspect which the noble Earl would like dealt with, he knows he has only to interpose and I will deal with it fully. I must not raise his hopes: because I have dealt with his point, that does not mean that I am going to be brief with regard to the matter; but I hope that he will understand that his point is so vital and fundamental that I had to deal with it first.

Now there are two aspects of this matter with which I should like to deal to-day. The first is the chalk-pit case itself, and the second is the general question of the procedure followed in these cases and the reasons for it, which I should like to explain to your Lordships as fully and as frankly as I can. I hope that, in doing so, I shall deal with all the questions raised by my noble friend Lord Colville of Culross; but, again, if any are omitted, he also knows that he has only to ask me, and I will do my best to deal with them. But I feel I must say something, and at some length, about the facts, because the noble Lord, Lord Silkin, did that, and I think it is important that one should get them clear. It is essential that I should make quite clear why it was that I informed the House that, in my opinion, there is no real ground for criticism of the procedure which was followed in this case, when all the facts are correctly understood.

Let me remind your Lordships, briefly, of the course of events. Messrs. Heath & Sons Limited had worked sand and gravel on land belonging to them at Stansted in Essex, since 1946. They were given planning permission for this in 1948, and this permission also authorised the working of chalk on the southern half of the site after the removal of the gravel. This permission was given without prejudice to the making of a later application for the working of chalk, as well as sand and gravel, from the re- mainder of the site; and, in 1950, permission was given for the northern part of the site to be worked for sand and gravel. The planning permission given in 1948 expired at the end of 1957, and, shortly before it was due to expire, Heaths applied for permission to continue to work the sand and gravel, and also to work the chalk, none of which had been worked up to that time.

Now I want to deal with the position of the Ministry of Agriculture, because that has been raised by one or two speakers. Before the planning authorities reached a decision on this application, an informal meeting took place on the site on March 25, 1958, which was attended by the neighbouring landowners or their representatives as well as by a representative of the Agricultural Land Service of the Ministry of Agriculture and the Ministry of Agriculture's agricultural lime officer. Before that meeting took place, the agricultural lime officer had advised Messrs. Heaths on the question whether their product would qualify for agricultural lime subsidy. II do not think I need elaborate that. Your Lordships are all interested in agricultural matters and know about these subsidies, and will realise what that officer was doing when I said that he advised whether their product would qualify for agricultural lime subsidy. But, my Lords, he was not in any way concerned with the question of planning permission. Indeed, when he was first consulted by Heaths he was not aware that fresh planning permission would be needed. At the site meeting he repeated his views about the quality of the product, and said that in his opinion he would not expect the working to cause damage; but he went on to make it clear that this could not be regarded as the official view of the Ministry, which could be obtained only after consultation within his Department. That is the agricultural lime officer: I think your Lordships have his position clearly in mind.

Now the land commissioner—that is, the representative of another section of the Ministry—said he would inform the local planning authority later of the Ministry's considered view, but in the event this was not done, because the planning authority took its decision on April 1 to reject the application without waiting for anything further from the Ministry. My Lords, I am quite satisfied that there is no ground for the suggestion that the Ministry of Agriculture were backing Heaths' application at this stage. The contrary impression, which appears to have been gained locally, can have been derived only from the fact that the agricultural lime officer had accepted that any chalk which might be produced if the pit were worked would qualify for subsidy. I think that that is very important, because the noble Lord, Lord Silkin, was to-day really deploying the case that the Ministry of Agriculture had in the initial stages been supporting this application, and that they came round to the same position later on.

That is what happened in the early stage, and now I come to the result before the planning committee. What happened then was that the planning authority gave further permission to work the sand and gravel, but refused permission to work the chalk. The reasons for the refusal were that the proposed development would be injurious to the amenities of adjacent residential property, due to chalk dust; secondly, that, for the same reason, the development was likely to be detrimental to a herd of pedigree pigs and to ponies on adjacent land; and, thirdly, that there was no need for the production of chalk from the pit as the demand could be satisfied from other pits in the district.

The next step was that Heaths appealed against the refusal of planning permission in respect of the chalk, and a local inquiry was held on November 13, 1958, by an inspector of the Ministry of Housing and Local Government. At this inquiry, Heaths' appeal was opposed, as we have been told, by the planning authority and by four neighbouring landowners, including Major Buxton. The two main questions considered at the inquiry were, first, whether the digging of chalk from the site in question would injure the amenities of the neighbourhood and cause damage to neighbouring property by the blowing about of chalk dust, and, second, whether there was any further demand for chalk in that part of Essex.

The inspector reported to the Minister on December 1, 1958, and in his report he recommended against allowing the appeal on the ground that the digging of chalk from the site was likely to result in dust being blown on to the adjoining land, with serious detriment to agricultural interests and to the occupants of property in the vicinity of the site. In view of this recommendation, it was unnecessary for him to deal with the question of production need but he did say there was no shortage of chalk in that part of Essex. If I may just read your Lordships a sentence, I think your Lordships will feel, as indeed the noble Lord, Lord Silkin, indicated, that my statement was quite fair on that point as being really not the important point in the matter.

The way the inspector put it is to be found in paragraph 49: Evidence about the need to produce agricultural chalk in this part of Essex tended to show that there is not a shortage of the mineral, and that there are existing pits not very far away from the appeal site equally well placed to meet the demand for the time being. That is not to say that chalk produced from the appeal site would not be sold. On the contrary, the mineral is obviously of a good quality, and its production on sites very close to a major road would no doubt be attractive to those persons engaged in the haulage of the chalk. If I might quote an even shorter passage from the Minister's decision in the matter, the Minister put it this way: He is further satisfied that chalk from the appeal site would make a useful contribution to an area which is partly dependent on pits lying at a distance. I think it was fair to say that that was not the declared reason for the decision through his inspector, but was really a secondary matter.

Now the report of the inspector was delivered, and after giving the matter careful consideration, the Minister decided to allow the appeal notwithstanding his inspector's recommendations, and he gave his reasons for this in a decision letter dated September 17, 1959, to which I have just referred. In the letter the Minister said that, after considering the risk of dust arising from stockpiling and subsequent handling of the chalk, and the effects the dust might have on plants and animals, he had come to the conclusion, after consulting the Minister of Agriculture, that the possibility of dust dispersal outside the site would be only occasional and would be insufficient to cause damage to crops or livestock or serious discomfort to people living in the area. The Minister therefore gave permission to work the chalk on certain conditions, which were designed to minimise the risk of any damage from the working.

The next stage to which the noble Lord, Lord Silkin, referred, was that, on receiving notice of the Minister's decision to allow the appeal, Major Buxton and the other landowners concerned applied to the High Court under Section 31 of the Town and Country Planning Act to quash the Minister's decision, on the grounds that the Minister had acted wrongly in rejecting his inspector's findings of fact without giving those concerned an opportunity of commenting on the advice which the Minister had received from his own officials and those in the Ministry of Agriculture; and it was also said that the Minister's decision was inconsistent with another decision he had previously given, refusing permission for the digging of gravel on some land nearby. The application to the High Court was dismissed on the grounds, first, that the applicants'—that is, Major Buxton's and his fellows'—legal rights were not infringed by the action of the Minister; and that, therefore, they could not be regarded as "persons aggrieved" within the meaning of Section 31 of the Act of 1959.

I should like to pause there for a moment. The noble Lord, Lord Silkin, referred to this as a technical point. I have seen it suggested that this decision turned on a mere legal technicality, but I do not think, if I appreciated Lord Silkin's speech correctly, that he thought it was anything but an important point, and I certainly do not think that to regard it as a mere technicality is the right way of looking at the matter. Before the planning Acts were passed, no permission was needed for one to dig chalk on one's own land; and if one's neighbour was injured by this, his remedy was at Common Law for damages, or for an injunction in respect of any nuisance that might be caused. One must consider very carefully whether it would really be satisfactory that anyone who might be objecting at a planning inquiry to proposals put forward by the owner of land for its development—and, as your Lordships know, at the larger inquiries scores of objectors may be heard—should be able to invoke the aid of the courts in any case in which he dislikes the Minister's decision, and thereby hold up action on that decision for what may be a matter of months. I hope I understood the noble Lord, Lord Silkin, correctly, but I think we have to consider very carefully where we are going before we make such a change, because it is a matter that requires careful consideration.

LORD SILKIN

The noble and learned Viscount did not understand me correctly, no doubt due to my inability to make myself clear. I did in fact say that I did not think that this right should be accorded to everybody. I thought there were cases where people who were directly concerned with the decision, and who had been given the right to object, should be able to regard themselves as persons interested and object to a finding which they considered wrong. But I did not think that this right should be given to any member of the public, however indirect his interest may be.

THE LORD CHANCELLOR

My Lords, do not think I misunderstood the noble Lord very badly. He did, as he said just now, state that it should not be given to everyone who might object at an inquiry, and I think it follows from what he said that who the categories are that should have that right is a matter that requires very careful consideration. I do not think there is any dispute on that point.

Now, the major ground of complaint is that was wrong that the Minister of Housing and Local Government should have rejected the recommendations of his inspector on advice which he received after the inquiry, without giving all those who had appeared at the inquiry an opportunity of commenting on that advice. What is said is that the question of whether or not damage was to be expected as a result of the blowing about of chalk dust was something which was fully canvassed at the inquiry, where the witnesses on both sides were examined and cross-examined; and that the advice given to the Minister afterwards was tantamount to new evidence which should equally have been open to cross-examination.

It is said that failure to allow this to be done was contrary to the recommendation of the Franks Committee, to the effect that the Minister should be required to submit to the parties for their observations any factual evidence, including expert evidence, obtained after the inquiry.

Whatever view one may take of the recommendations made by the Franks Committee—with which, in their wider aspect, I will deal later—I do not see how it can be said that in this case the Minister obtained any new factual evidence at all. What he did was to take advice on the weight he should attach to the evidence produced at the inquiry, about the damage which might be caused by the chalk dust. It is perfectly true that the inspector, after weighing the evidence given at the inquiry, advised the Minister that an appreciable amount of damage might be expected. But it is evident that any Minister with whom the final decision lies must be entitled to look to his officials, and, if need be, to officials with appropriate experience in other Departments, for further advice. This advice, my Lords, may relate to matters of policy or it may, as it did here, relate to the proper conclusions to be drawn from the evidence given at the inquiry. That is exactly what happened here. No new elements were introduced at all. The advice the Minister received was no more than this: that in the light of the evidence given at the inquiry, and if proper precautions were observed, the amount of chalk dust to be expected from the working would be unlikely to cause such damage that Heaths ought to be prevented from getting the chalk.

In my view, this was essentially evaluation of the evidence given at the inquiry, in the sense which the Franks Committee had in mind. At one stage the noble Lord, Lord Silkin, said—again, if I took his words down correctly—that he did not think that there should be evaluation by officials. My Lords, the noble Lord is entitled to that view, but that clearly is not what the Franks Committee are saying. If your Lordships will look once again at paragraph 350 of their Report, they say: In the definition of factual evidence for the purposes of this recommendation we include expert opinion on matters of fact but not expert assistance in the evaluation of technical evidence I am coming to the point raised by my noble friend Lord Colville of Culross, but clearly what is not ruled out by Franks is what I have just quoted: …expert evidence in the evaluation of technical evidence. My Lords, what does that mean? It means, of course, that you can have expert evidence so long as it is evaluating, assessing the value of the evidence that has been given. I should like to deal with it very carefully, but I only want to say this to your Lordships: that I have been hearing or observing evidence evaluated for 40 years, and your Lordships can take it from me that it is quite possible for two reasonable men to take a different view of the value of technical evidence. It comes to this: that what the Minister was doing was weighing the pros and cons and considering whether, on balance, the objections were serious enough to justify a refusal of permission to dig chalk from an existing pit. As I say, my Lords, that appears to me to be essentially evaluation of the evidence given at the inquiry, in the sense which I have read.

Then, my Lords, it is said that, wrong though it was for the Minister to have consulted the advisers in his own Department without disclosing the advice he had received, it was much worse for him to go further and consult the Ministry of Agriculture. But, my Lords, surely this was the most natural thing in the world to have done. The complaint, after all, was that the blowing about of chalk would injure the adjoining agricultural land. Just think what the outcry would have been if the Minister had allowed the appeal and it afterwards emerged that the Minister of Agriculture, whose special duty it is to see that agricultural land is not damaged, took the view that the dust would indeed do the damage which had been claimed for it, and the Minister of Housing had not consulted him!

I ask your Lordships to consider. It would be plainly contrary to the public interest for my right honourable friend the Minister of Housing and Local Government to misinterpret the evidence, and to reach a wrong decision in a case of this kind simply because he could not consult people in another department. In fact, the Minister, Mr. Brooke, was leaning over backwards here to find out how much weight he ought to give to the likelihood of damage to crops and livestock. After all, it is my right honourable friend's decision, and nobody else's. To this it may be retorted that the objection is not to the fact that the Ministry of Agriculture were consulted, but to the fact that the advice they gave was not submitted to the objectors for their comments. But all they did was to confirm the advice given in the Ministry of Housing as to what experience suggested would be the result expected from chalk working under proper conditions, and to agree with the appellants that the pit would be a useful contribution to the supply of chalk in the area. That is why my right honourable friend the Minister of Housing and Local Government said in his letter to Major Buxton that the Ministry of Agriculture had not raised any fresh point or consideration. My Lords, I really cannot see that there is any cause for complaint about what was done at this point.

I should like for a moment to comment on certain criticisms made by Major Buxton of the Written Answer I gave to the noble Lord, Lord Silkin. I make no complaint whatever of these criticisms, but I feel that they are misconceived. First of all, Major Buxton complains that my reference to the need for the production of chalk for agriculture was the first intimation that he had had that anybody ever rested the case on production need. My Lords, I find this hard to understand, for one of the two grounds of appeal was the demand for agricultural chalk in Essex, and this was dealt with fully in the inspector's report, although it is true that the inspector thought there was no shortage of chalk in the area. In any case, however, as I said in my earlier Answer, the decision on the appeal did not turn, in the event, on the question of need, but on the question of whether the working of chalk on this particular site would cause more damage than ought reasonably to be accepted.

Then Major Buxton complains that I ignored the decision relating to the nearby sandpit where permission to work the sand was refused. It is true that I made no reference to this in an Answer which was, I fear, already much too long, but this was done with no desire to conceal the point. It was simply because this was not one of the grounds of complaint advanced by the Council on Tribunals in their reference to me. But if I may now give the answer to this point, it is that this other case raised questions of public amenity, such as woodlands and footpaths, which were not present in Heaths' appeal. Moreover, the proposal involved the digging up of farm land to get the sand underneath it, while Heaths' application proposed further operations on a pit, which had already been extensively worked for sand and gravel.

Major Buxton goes on to say that the Minister of Housing and Local Government has always insisted that he never obtained any information from the Ministry of Agriculture. Here again I think that there is a misapprehension. I have already dealt with this point, but I think that I should add this comment. Major Buxton complains that, in spite of a promise by the then Minister of Agriculture before the inquiry that his Land Commissioner would be getting in touch with Major Buxton, the officer never did so. I am informed that this is quite incorrect. In fact, the Land Commissioner called at Major Buxton's house on April 10, 1958, and saw Mrs. Buxton, and that he inspected the property with Major Buxton's agent on May 14.

Finally, Major Buxton says that it was wrong for the Minister to seek to depart from his inspector's recommendations on the around that the inspector had been mistaken in thinking that the chalk would be ground down to powder. It is said that the inspector's report made it quite clear that he knew what the kibbling process was and that he nevertheless thought that it would cause dust. It may well be that the inspector was under no misapprehension as to the use of the kibbling process; but, however this may be, the point which the Minister was concerned to make was that he had consulted his advisers and they had reached a different conclusion from the inspector on the basis of the same evidence; and this is something for which, as I have already said, I do not think there can be any reasonable ground for criticism.

My Lords, I have dealt, at what I fear may be wearisome length, with the Stansted case. It was really essential that I should do so, in order to show that when the facts of that case are fully understood they offer no ground for the criticisms that have been advanced. I should now like to set this particular case against its wider background and turn for a moment to consider where we stand in regard to these planning inquiries.

As your Lordships know, the Government have always attached the greatest importance to the need for devising a procedure in these cases which is fair to all and which strikes a reasonable balance between the need to do justice to the individual concerned—including those who want to make a new use of their own land and those who object to that use—and the need to dispose of the cases without unreasonable delay. I think that it was the noble Lord, Lord Walston, who drew attention to this point.

The fact is that decisions are being issued at the rate of some 7,000 a year and hardly any serious complaints are made of the procedure. One must never be complacent. That is a condition on which one takes Ministerial office to-day—one must never be complacent; but when we consider the vast number of these decisions, I do not think that the procedure has been doing too badly.

Your Lordships will remember that the Franks Committee dealt with the question of disclosure of new factual evidence after an inquiry, in paragraph 350 of their Report. I have already referred to that paragraph, but perhaps I may inflict it on your Lordships once again, because it gives the gist of the matter. The Report said: We think, however, that it is both desirable and possible to draw a distinction at the post-inquiry stage between new factual evidence on the one hand and advice on policy on the other. We recommend that the Minister should be under a statutory obligation to submit to the parties concerned, for their observations, any factual evidence, whether from his own or another Department, or from an outside source, which he obtains after the enquiry. In the definition of factual evidence for the purposes of this recommendation we include expert opinion on matters of fact but not expert assistance in the evaluation of technical evidence given at the enquiry. There may be cases in which it is clearly desirable to give the parties an opportunity to cross-examine on the new evidence. Your Lordships will remember that the Government lost no time in informing Parliament that they were able to accept by far the greater part of the recommendations made by the Franks Com- mittee. We did so in a matter of three months. The Report was published in July, and we gave our decision in October.

However, so far as the Committee's recommendation about the disclosure of new factual evidence was concerned, the Government have always taken the view that, as my right honourable friend the Prime Minister said in another place the other day, the expression "factual evidence" does not cover technical or other advice given to a Minister by officials on the issues raised at an inquiry and on the weight to be attached to the evidence which was given there.

The noble Lord, Lord Walston, raised an interesting aspect of that in his speech, and I think that the noble Earl, Lord Huntingdon, had the same thing in mind. The noble Earl will appreciate the difficulty that arises at this point: if we are going to be "more Franksish than the Franks Committee", and not allow officials of the Ministry to assist the Minister with evaluation, unless it is referred back, then, if the Minister does get this assistance from one of his advisers, has it to be referred back? Have we to make the small man incur more costs? These are the problems which have to be considered, all practical problems from the general view of fairness, apart from the other problem, which I do ask your Lordships to remember (I think it goes back to Magna Charta; if it is not expressed, it is implied there): that delay of justice is injustice. If we over-elaborate the procedure to such an extent as to encourage undue delays, then we are doing injustice. That is the point which I think we have to remember.

May I continue from that point? Perhaps it was unfortunate that what I have just said was not specifically brought out in the circular issued by the Ministry of Housing and Local Government in February, 1958, announcing the chances which were to be made in the inquiry procedure following on the Franks Committee's Report. One of the great advantages of our present consideration of this subject is that it gives me an opportunity of making the position clear and of explaining why the Government reached the view they did. In our view, it is, in practice, impossible to distinguish in the way the Franks Committee sought to do between the evaluation of evidence, on the one hand, and the tendering of expert evidence on matters of fact, on the other hand. One cannot evaluate technical evidence on matters of fact without expressing an opinion on those matters which is inevitably based on the adviser's own experience. That is a point that I should like my noble friend Lord Colville of Cuirass to consider; and if I may put it to him on a slightly different analogy he may see what I have in mind.

Consider, for one moment, the position of an Admiralty Judge with vast experience of matters relating to shipping and navigation. He must necessarily bring to his judgment of the weight to be attached to the evidence given before him his own experience of similar cases. To what extent can one say here that he is confining himself to the evaluation of evidence in the strict sense which the Franks Committee apparently intended?

It is a real difficulty. I assure your Lordships that I have given it plenty of thought over the last few weeks—and I invite any of your Lordships to show that I have been dull-witted or making mental or legal mountains out of molehills—but I still find it difficult, and I should like to pursue it a little further. Of course the Government accept the basic distinction, which is, I think, the only true distinction, between evaluation, opinion and advice, on the one hand, and what is plainly new factual evidence, on the other hand. The trouble is that, as this case has shown, it is by no means easy to formulate this distinction precisely, whether for the purposes of a departmental circular or for the new rules of procedure for statutory inquiries which I hope to be able to make before very long. Basically, the difference is between the introduction of new facts and the assessment of existing facts, whether in the light of the adviser's own experience or otherwise—between adding and assessing.

There have been several occasions on which my right honourable friend the Minister of Housing and Local Government has received new factual evidence after an inquiry on which it was plainly right and necessary for him to go back to the parties. There have been cases, for example, in which the Ministry of Transport have represented after an inquiry that the construction of a new access road to a trunk road would be undesirable on traffic grounds. In that case we have the introduction of entirely new facts which have not been considered before, and it is immaterial from what source those facts may come: they plainly ought to be disclosed. Nevertheless, these cases have the traditional resemblance to the elephant: that while it is easy to recognise them when one sets them, it is by no means easy to define them.

I am extremely anxious to do the best I can in this matter, which, as I have said, is one of great public importance. As your Lordships may know, I have already had a full discussion of the general issues raised by the Essex chalk-pit case with my noble friend Lord Tenhy and some other members of the Council on Tribunals; and I am most grateful to them for the assistance they have given me, as well as for the further assistance I hope to receive from them. They have expressed to me their doubts about the proper procedure to follow in cases where evidence has convinced the inspector, who heard the witnesses, of the likelihood of such damage being caused as should in his view forbid the proposed use of the land; yet the Minister takes a different view after consulting others, who are admittedly experienced in the subject under consideration, but who have to depend on the written word. I realise the difficulty felt by some members of the Council, but I also realise the difficulty of the Minister in being in effect required to accept his inspector's recommendations on any points which do not go to policy—because that is really what is put against the present method.

As I have said before, the final decision must be the Minister's, and the inquiry is no more than a part, albeit a most important part (I repeat this to the noble Earl, Lord Huntingdon), of what is essentially one process; that is, the Minister's arriving at his decision. I am sure that what we need to do is to see how far it is practicable to explain more clearly what new factual evidence there is as distinct from policy and advice, perhaps with the assistance of some examples of cases in which disclosure is called for and those in which it is not. I look forward to further help from and discussions with the Council on Tribunals on this point.

This might be a convenient moment to say to my noble friend Lord Colville of Culross that anyone can go to the Council, or the Council can take a matter up on their own. Your Lordships had that inserted in the Bill, and if my noble friend will look at the first section, he will see that that is quite clear. So there is no difficulty: if anyone feels in any trouble about a matter he can write to the Council, and it will then be for the Council to consider it and, if they think fit, to refer it to me. If I were to take no action, the matter would probably be raised in Parliament from one source or another. If, by any chance, it were to go by default, the Council could put it in their Annual Report, and then I am subject to criticism and attack for not acting. So that there is no difficulty for anyone about getting the matter taken up.

The problems presented by the procedures with which we have been dealing this afternoon, whether they relate to planning matters or to some other aspect of the business of government in the modern world, is that the procedure is a hybrid one. Up to a point, one is dealing with something which bears a close resemblance to a proceeding in the courts, and then there comes a stage when the judicial procedure must give way to administrative considerations and judgments. As the Franks Committee pointed out in paragraph 276 of their Report, it is really a question of finding a reasonable balance between two conflicting interests.

On the one hand, there are Ministers and other administrative authorities enjoined by legislation to carry out certain duties; legislation has put this duty on Ministers. On the other hand there are the rights and feelings of individual citizens who find their possessions or plans interfered with by the Administration. There is also the public interest, which requires both that Ministers and other administrative authorities should not be frustrated in carrying out their duties, and also that their decisions should be subject to effective checks or controls.

Of one thing, however, I am quite certain: nothing that we do must undermine the confidence of the public that the procedure devised for these cases is as fair, open and impartial as we can make it. That is the aim I set myself, and I welcome any assistance which can be given to me in attaining it.

The noble Lord, Lord Silkin, in a restrained and, I might even say, a friendly way, raised the position of the Lord Chancellor. Of course, the Lord Chancellor is in a special position, because the Lord Chancellor has for many centuries been responsible for the administration of justice in the sense in which it was then understood—that is, in the ordinary courts of the land. Parliament has now given me a new responsibility with regard to extensions of that system. I am responsible for the tribunals who are within the purview of this Bill, and the fact that the Council on Tribunals have to report to me with regard, not only to tribunals but to these Ministerial procedures of course lays an obligation on me. So far as the actual decision in the case is concerned, my right honourable friend the Minister must bear his responsibility as to whether that decision is right or wrong. But I must face the responsibility, and I must be under fire, if there is a feeling that the procedure is wrong. It is my duty to try to see—if that is the general feeling—that it should be improved.

I hope the noble Lord, Lord Silkin, will think that that is a right and a fair conception of my position. It is not so anomalous, if you accept the basic principle of our Parliamentary system, that there must be some Minister responsible for anything that can be within the Ministerial purview. At any rate, that is the position as I see it. I have tried to explain—and I hope I made it clear to my noble friend Lord Colville of Culross—that there can be no question of my side-stepping or avoiding this responsibility, because even if temporarily I escaped I could be brought up by the Report, and then it is a matter for Parliament to criticise—and that is what I am here for.

I am much more concerned at the moment with the question of how we are going to improve it. I have already said that I hope my noble friend Lord Tenby and his Council will consider this problem and will come to me with any ideas or proposals. Equally, if any occur to us there will be a two-way traffic, and I hope that we shall be able to continue our discussion when the noble Viscount and his colleagues have had the chance of considering what I have said to-day and the other aspects of the problem. I shall be very grateful if they will.

Here is another point in which I think my noble friend Lord Colville of Culross will find some comfort. In the meantime, I am collecting the opinions of professional bodies concerned in the proposed rules of procedure for these inquiries. When I have done that—when I have finished my consultation with the professional bodies—the draft rules will be submitted to the Council on Tribunals. That will give us an opportunity of considering this question. This will also give us an opportunity of considering the position of third parties, like the neighbouring landowners in the chalkpit case, and what their position should be. I am most ready to receive and discuss proposals on all aspects of what I consider to be a difficult and important problem. Your Lordships, as part of Parliament, put me in this position. I am very proud of the position, because I consider that it is a very important matter to see that this extension of procedure, which is half way between the traditional and the administrative, is properly done.

Obviously, in the relatively early stages there will be great differences of opinion as to whether it is done properly or not. The noble Lord, Lord Salter, will remember that we had a good-tempered difference of opinion as to how far the matter should be considered analogous with the sub judice rule and how far not. There are obviously going to be many points, and I am deeply conscious that I have many faults and imperfections. But I think your Lordships, who have now seen me for seven years, know that, among these many faults, reluctance or impatience with criticism is not one of them. I am always ready to take from the House any views and to try to apply them. It is because I am so ready to receive and discuss proposals, as I have said, that I believe the present discussion has served an extremely useful purpose. I am most grateful to the noble Lord, Lord Silkin, for initiating it, and all I can say is that I am sorry I have imposed myself for such a long time on your Lordships. I hope your Lordships will take it in mitigation that I, too, consider the subject of great importance.

6.18 p.m.

LORD SILKIN

My Lords, I should like first of all to thank those who have taken part in the discussion, whatever view they may have taken, and to thank the noble and learned Viscount for his reply. I had hoped that we might have heard from some of the noble and learned Lords in this House, and had their views on the matter, because I am sure that would have been of great value to us. But I imagine their views are reserved for criminal justice, and not for mundane matters of this kind.

I cannot pretend that I am altogether satisfied with the reply of the noble and learned Viscount. I gathered that what comes out of it is that he is going to look at the rules of procedure for the conduct of inquiries to see whether they require any amendment.

THE LORD CHANCELLOR

May I interrupt the noble Lord? There are really two things. The first is that I have had a first discussion with my noble friend Lord Tenby and the Council on Tribunals. They are considering the special point which we have been discussing to-day. They will put before me any proposals they have, and we will discuss them. Then there is the second point; that before the rules of procedure are brought into being we shall consider them as rules of procedure; and this point will, of course, come up again. I am sorry to interrupt the noble Lord.

LORD SILKIN

I am obliged. So far as the proposed rules of procedure are concerned, apart from the point about the rights of third parties, I am not aware that the actual conduct of proceedings has been under any criticism at all. I think that the conduct of every inquiry of which I have had experience—and I have had experience of a great many—has been perfectly fair and proper. By all means let the noble and learned Viscount see if they can be improved. But that has not been the subject of criticism to-day. The point about the position of third parties has been raised and I am very glad the noble and learned Viscount will look at that.

But the real crux of the case I have tried to make, and which other noble Lords have raised, was the question of the so-called evidence that was given to the Minister after the closing of the inquiry. I agree that it is a difficult matter. The noble and learned Viscount himself in referring to it used three different expressions. He said that the Minister was entitled to get advice as to the weight to be attached to the evidence. He said in another sentence that he was entitled to get advice as to the proper conclusions to be drawn from the evidence; and thirdly he used the expression "advice as to the evaluation of the evidence". I think that they are three different things; I do not think that the three are synonymous at all. But I will not elaborate that point.

Perhaps the House will allow me to say what I think is the correct position—I tried to explain it in my opening remarks. I think that the experts, whichever Department they come from, have a duty to advise the Minister as to the meaning of the evidence given. After all, technical evidence is something very difficult to follow. One uses the expression "kibble" in relation to chalk. Nowhere have I seen any explanation of it—at least, not a clear explanation. The Minister is perfectly entitled to ask his experts what "kibbled" means and what is the effect of "kibbling". Once the Minister has had an explanation of the evidence, it is for him to make up his mind as to the evaluation of it; it is not for the expert. That is my view. If an expert evaluates evidence he is, in effect, giving evidence himself. In evaluating it he says, "Yes, it is all very well for this well-known analytical chemist to say that dust will be produced, but my opinion is that no dust will be produced. My opinion as an expert is that dust will not be produced". When he says that, he is giving evidence, and that should be as much tested and as much capable of cross-examination as the evidence of the expert who attended at the inquiry. That is the case I am making.

He is perfectly entitled to inform the Minister what the evidence means, and to explain it and make it quite clear to the Minister. But if the expert is going to impose his opinion, is it not really the opinion of the expert that is deciding the matter and not that of the Minister? What we want is the Minister's view of the problem, once he has properly understood the case. I am really addressing my observations to the noble Viscount, the Chairman of the Council on Tribunals, and I hope that that is something he will consider as an amendment, if necessary, of the present practice. It may well be that confusion has arisen because of the language of the Franks Committee itself. They have not given a clear view as to what "evaluation of evidence" means. It is quite possible to have different views on that. Having said that, I would only add that I am grateful to the noble and learned Viscount for agreeing that this debate has been of value. I think it has, and, at any rate, the whole House is in agreement that what we have to achieve is the restoration of public confidence in these inquiries. I beg leave to withdraw the Motion.

Motion for Papers, by leave, withdrawn.