§ 4.7 p.m.
§ LORD SILKIN rose to ask Her Majesty's Government:
- (a) whether they have considered the recent Report by the Council on Tribunals, dated March 30, 1962, and what action they propose taking on this Report;
- (b) whether the "Chalk-pit case" will be reopened to enable the procedure laid down by the Council to be carried out.
§ The noble Lord said: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. This Question, as noble Lords can see, relates to the Chalk-pit case, which has been considered by this House on three occasions and will be well within the memory of most of your Lordships who have been interested in this matter.
§ I do not propose to go into the facts in any detail, but I would just remind your Lordships that the Chalk-pit case was a case where a company proposed to work chalk, to which strong objection was taken by a number of local inhabitants. A public inquiry was held, and as a result of the public inquiry the inspector reported, after having heard expert witnesses and seen the site, that the application ought not to be granted. At a later stage the Minister rejected the recommendation of the inspector and granted the application; and in his letter he stated that since the inquiry he had consulted the Minister of Agriculture, had discussed the matter with a number of experts in his Department and in the Ministry of Agriculture and, as a result, had decided to allow the appeal and grant the application.
§ The point was made very strongly by myself, and by other noble Lords, that 1140 while the Minister was within his rights in not accepting the recommendation of the inspector—the inspector was merely a person who acted on the Minister's behalf in ascertaining the facts—the Minister was, in this case, quite wrong in deciding to allow the appeal on the basis of information which had come to him, or on the basis of evidence or advice which had been given to him and on which the objectors had not had an opportunity of cross-examining. I think that that is putting the position succinctly. I believe that everybody who took part in this matter, including the Press (there were leading articles in a number of newspapers) felt that there was something wrong with a procedure which enabled the Minister, after an inquiry had been concluded, to reject the views of the inspector conducting the inquiry on what virtually amounted to the obtaining of fresh evidence.
At the conclusion of our debate on May 8, 1961, the noble and learned Viscount the Lord Chancellor, who replied for the Government, and who, I may say, has taken a great interest in this matter and has gone into the case in great detail, said this [OFFICIAL REPORT, Vol. 231, col. 72]:
I have already said that I hope that my noble friend Lord Tenby and his Council will consider this problem and will come to me with any ideas or proposals.
The problem was the one to which I have just referred. The noble and learned Viscount went on to say:
…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.
We have now received the result of the consideration of the Council on Tribunals. It was presented on April 2 of this year. The Council on Tribunals have made two recommendations, and I will refer to them briefly.
The first is that:
Where the Minister proposes to disagree with the inspector's recommendation—
I am leaving out the words that are not material to this Question—
because he differs from a finding of fact made by the inspector, he will notify the parties to the appeal of his disagreement and the reasons for it and afford them an opportunity for making comments and representations in writing before finally making his decision.
Certainly the Minister did not do that in the particular case of the Chalk-pit inquiry. The second recommendation is:
Where the Minister proposes to depart from the inspector's recommendation because of … fresh expert evidence (including expert advice) … the inquiry should (if any of the parties so desire) be reopened and the new evidence or issue should be produced at the reopened inquiry.
These are very specific and definite recommendations, and the first part of my Question is directed to asking the Government what action they propose to take on the Report, and particularly on the specific recommendation of the Council on Tribunals.
§ On the second part of my Question, obviously the whole inquiry of the Council on Tribunals was directed to the Chalk-pit case, although it is of general application. The inquiry was held because it was widely recognised that a gross injustice had been done, or appeared to have been done. I would say, in parenthesis, that I am not necessarily saying that the Minister's decision was a wrong decision. What I am saying at this stage is that it was a decision that was wrongly arrived at, on the ground that the Minister had heard evidence without giving the objectors an opportunity of considering that evidence. But I am not saying that in all cases the Minister must agree with the inspector or with the inspector's recommendations.
§ Nevertheless, I feel that in this particular case, which has given rise to this inquiry, an opportunity ought to be given to the objectors to test the fresh evidence upon which the Minister decided the case against them. I am well aware that there are objections to retrospective action of this nature, and I can see the difficulty of reopening a decision which has already been arrived at. I can also see the possibility of repercussions, where objectors in other cases, which have been dealt with in the same way, might also claim to have them reopened. But I submit that this is a very special case. It is the case which gave rise to the whole inquiry, and it is one in which there is a great amount of hardship to the objectors.
§ I am told—and I accept the statement that has been made to me—that the loss to the objectors, if this decision 1142 stands, will be of the order of £100,000. That is a very serious matter for them. On the other hand, I understand that very little work has been done as a result of the decision which has been given. Some exploratory borings have taken place, but I have been told that there has been nothing beyond that and that no irreparable damage would be done if the case were reopened and if the decision were reversed. But I am not asking for the decision to be reversed; all I am asking is that the case should be re-heard by the Minister on the basis of the recommendations of this Report. I hope that when he comes to reply the noble and learned Viscount will be able to say that this obviously improper procedure will be rectified, not only in future but also in this particular case.
§ There is one other point, which is not dealt with in the Question, and I wonder whether the noble and learned Viscount could give me an answer to it. In the course of various discussions in this matter the question arose: what are the rights of third parties? And who are third parties? Can anybody anywhere object at an inquiry? Ought one to be able to object, and what are one's remedies? Obviously, it is a very difficult matter, but in the course of our last debate the noble and learned Viscount promised that he would give this question of the rights of third parties close and serious consideration, and that in due course he would be able to tell us what were the Government's intentions in clarifying their position. I hope that he may be able to do it to-day; but, if he cannot, he may come back to this matter at some later date in the near future. I beg to ask the Question standing in my name on the Order Paper.
§ 4.20 p.m.
§ LORD LUCAS OF CHILWORTH
My Lords, I confess that I was considerably surprised when I learned that this Question had been put on the Order Paper by the noble Lord, Lord Silkin, within a few hours of our concluding the debate on the last stage of the Pipe-lines Bill, towards the latter end of which the noble Lord had sought to criticise me in a less than courteous manner—I hope I shall not be guilty of exaggeration when I say in a rather offensive manner—for being such a supporter, an 1143 ardent supporter, of the Franks Committee and its offspring, the Council on Tribunals. Indeed, it would be churlish of me not to give voice to the very fine expression that there must be more "joy in Heaven over one sinner that repenteth," because here I find the noble Lord, Lord Silkin, pressing the noble and learned Viscount to operate upon a recommendation which has been made by the Council on Tribunals for the noble and learned Viscount's consideration, based upon the principal part of the Franks Committee's Report. I welcome the noble Lord, Lord Silkin, as a convert, because, if I may say so, I should rather have suspected for many years, from his Stevenage days until the signing of the Minority Report of the Franks Committee, that he has always erred upon the side of the Establishment and bureaucracy rather than upon the side of the oppressed citizen, whose case he has so well pleaded this afternoon.
I am not going to re-open the debates we have had, but I hope the noble and learned Viscount will this afternoon adopt the same course as he adopted when I raised this same question upon the Report stage of the Pipe-lines Bill, which was not attended by the noble Lord, Lord Silkin. I raised the special question of the issue which the Council on Tribunals raised in this memorandum, which the noble and learned Viscount said was under very careful consideration. I believe the noble and learned Viscount will agree with me that the discussion we had upon statutory inquiry procedure during the Report stage, and also the Committee stage of the Pipe-lines Bill, not only underlines the necessity for the principles which the Council have put forward in this document but also enlarges them.
The noble Lord, Lord Silkin, read out some of this memorandum upon which he wants the noble and learned Viscount to express an opinion. But earlier in this memorandum the Council state quite definitely that the Government policy behind the matter which is being inquired into should be stated and made clear before the inquiry. That is possible on some occasions; it is not possible upon all occasions. I think the noble and learned Viscount must have 1144 in his mind that it must be necessary for the objectors—in this case, the Chalk-pit case, the private citizen—to have a clear statement, either before or at the inquiry, as to what the Government policy is. Only just recently the Minister of Power has issued an edict upon the policy the Government wish to follow on the mining of home-produced ore. Your Lordships will remember that that was an issue upon which the Oxfordshire case was fought.
The noble and learned Viscount, in his reply to me on the Report stage, issued what I can only consider to be a policy in reference to the laying of pipe-lines. What was the policy there? What was the Government's policy in this question of the Chalk-Pit case? Nobody knows. We can only think that the policy was whispered behind closed doors. It was never stated in open court in an inquiry, and I hope the noble and learned Viscount who sits on the Woolsack will take note of what the Council say in paragraph 6. This is the last paragraph of their memorandum to which the noble Lord, Lord Silkin, has referred:The Council believe that a solution on these lines can be put into effect without delay and they recommend that in due course the proposed rules should be embodied in the rules of procedure for statutory inquiries.The noble and learned Viscount said on many occasions during the course of the Pipe-lines Bill through your Lordships' House that these rules are being given very serious consideration. They are in transit. After he has considered them, they will be amended if in his view they do not cover the specific points which we have raised in your Lordships' House on the Pipe-lines Bill.
I think the noble Lord, Lord Silkin, has raised a very crucial point here, because the statement must be made at some time in any of these inquiries, or before these inquiries: "What is the public interest?" That is where I think the procedure in the Chalk-pit case went wholly wrong. I hope the noble and learned Viscount will continue to give this consideration, and will see that the rules in future guard against a like happening. I am going to make this suggestion to him; I think I may have made it before. There has been a rule, or a custom, that Government departmental officials do not appear before 1145 statutory inquiries. I think that should be altered. I think that if a departmental official wants to give evidence as to the view of his Department he should give it in open inquiry so that he can be cross-examined by the objectors, and not give it after the inquiry has opened and raise the vital issue which was raised in the Chalk-pit case of fresh evidence or the evaluation of evidence already given. Therefore, I hope the noble and learned Viscount will not give a firm decision upon the first part of the noble Lord's Question. Upon the second part, which is purely administrative, I do not propose to offer any opinion.
§ 4.29 p.m.
§ LORD CHORLEY
My Lords, as one who has taken some part in these discussions, both in the debate on the Franks Report, in the debates that we have had on the Reports of the Council, and, indeed, in the debate we had on the Chalk-pit case, I should like to add a few words in support of what my noble friend, Lord Silkin, has said this afternoon. I was not here, apparently, when the "Waterloo" took place between him and the noble Lord who has just resumed his seat, and I am not in a position to act as arbitrator on that. But I must say that I am flabbergasted at Lord Lucas of Chilworth's suggestion that somehow or another my noble friend, Lord Silkin, has changed his attitude in regard to this matter, because if there is one Member of your Lordships' House who has been sensitive to the whole of this problem from the very start, and has, I think, raised it on the occasions when it has been raised—at any rate, the Chalk-pit case itself—it has been he. If the noble Lord, Lord Lucas of Chilworth, is looking for a stick with which to pursue his vendetta, I must say he must find a stouter one than the one he has brandished this afternoon.
I hope that the noble and learned Viscount on the Woolsack will be able to tell us that he accepts the advice of the Council on Tribunals contained in this short but important Report of March 30. We all, in this House, know how much we owe to the care and attention which he has given to this problem from the very beginning, even before the Franks Report was issued, and in all the discussions which have taken place on it since then. I did not conceal from him or from your Lordships 1146 the fact that I thought he was a little ill at ease in the debate we actually had on the Chalk-pit case. He was batting on a very difficult wicket, and although one cannot but admire the skilful way in which he keeps his bat straight and succeeds in blocking the most difficult bowling, nevertheless, even for him it was not altogether a completely successful effort; and the reason was, I think, that he felt strongly the criticism of the case which came from the Council on Tribunals itself at this earlier stage. That was no doubt why he invited it to make proposals which would enable this difficulty to be overcome in the future, and these are the proposals which are before us this afternoon.
The great difficulty in the Chalk-pit case was to persuade the public that this matter had not been decided against Major Buxton and those who were with him in effect from the start on the basis of Ministerial policy. My recollection is that the noble and learned Viscount said that that had not in fact been the case but that the Minister had been advised by the Ministry of Agriculture, whose opinion on this question on agricultural chalk he had naturally taken, and it was just a question, so to speak, of weighing the evidence from that Department against the evidence which had been heard by the inspector and accepted by him at the inquiry. That really did not, I think, convince any of us—certainly, most of us—and obviously the situation there is an exceedingly difficult one. It seems to me that the Council on Tribunals has found a way out of that, because if the matter is one of policy, the policy must be known to the Minister from the start, and if the policy is made clear at the very beginning then it will be quite impossible for these suspicions to arise in the way that they did at a later stage.
I would not go as far as the noble Lord, Lord Lucas of Chilworth, and say that a civil servant should go down to an inquiry and subject himself to cross-examination on policy. Surely it would be impossible for the Government to accept a view of that kind. National policy clearly is not a subject on which civil servants should be cross-examined. There is no doubt a shading-off between national policy and agricultural advice which may be on the borderline of policy; and no doubt on some point of 1147 that kind it is feasible for a civil servant to be cross-examined by counsel in the light of expert evidence which he himself is calling and the advice which he has received in his brief. But I would suggest that it is not possible to go beyond that. But if the policy is made perfectly clear at that stage it cannot afterwards be said that, after all the evidence has been given, the speeches have been made and the inspector has drawn up his report, then, in some hole-and-corner way, policy is brought in and the inspector's report to the Minister is overridden.
On the other hand, if it is a question of the experts in some other Ministry being brought in to give their opinion, which may obviously be a very valuable one, then, as the noble Lord, Lord Silkin, said, it is only right that that opinion should be subjected to cross-examination, and that should be done in the light of day. The noble and learned Viscount on the Woolsack has himself, in his very distinguished career at the Bar, on numerous occasions seen expert witnesses in the box, men of the highest position in their professions, advancing views with the greatest confidence, and everybody who had been in court, without the knowledge which the cross-examining counsel had at his disposal, would have said: "That is the end of this case; that man is ' top of the tree ' in his own particular line of country and the other side are not going to be able to stand up to it." Yet, the noble and learned Viscount himself has then got up to cross-examine, and in half-an-hour or three-quarters of an hour that witness has been demolished.
So, however expert the evidence may be which comes from the Ministry of Agriculture or from the Board of Trade, or, as it may be, one of the other Departments, one cannot be certain that it is going to carry the day until it has been subjected to the searching type of cross-examination which is at the disposal of those who themselves have consulted their own experts and have had the assistance of able and distinguished counsel. That is why it seems to me that the Council on Tribunals has put forward in this suggestion a very practicable and sensible way of getting over this difficulty.
1148 If the agricultural expert from the Ministry had gone into the witness box at the inquiry and expressed this opinion and had been able to stand up to the cross-examination of the distinguished counsel who were representing Major Buxton on that occasion, and had remained unshaken, then there would not have been any question about it, and all this trouble would have been stopped at that stage. It seems to me, therefore, that here we have an eminently practicable and reasonable suggestion for getting over that difficulty. I hope the noble and learned Viscount will be able to tell your Lordships that he accepts it, and, in the light of that, that Major Buxton's grievance will be looked at again. If he has been wronged, even if it costs some tens of thousands of pounds to put it right, obviously that ought to be done. If, in the end, after a full inquiry has been made, it appears he has not been wronged, then that is obviously all to the good, and I am quite sure Major Buxton himself would accept the decision in the gallant way one would expect from a distinguished member of that very honourable family.
§ 4.40 p.m.
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, may I first thank the noble Lord, Lord Chorley, for his very kindly references to two qualities of mine. The first was my keeping a straight bat in the course of the debate. I may tell him that one of the few things about which I boast is that I am the only Lord Chancellor of Great Britain who in the course of the last 1,367 years has, when in office, hit an England bowler for four. The noble Viscount, Lord Tenby, saw me do it. Therefore the cricketing background of that compliment recalled one happy event. I shall say nothing about his other compliment about my cross-examination, except to thank him for paying it.
I am grateful to the noble Lord, Lord Silkin, for giving me this opportunity of stating the Government's views on the recent Report of the Council on Tribunals in handling new factual evidence which comes to light after an inquiry. As I said in answer to my noble friend Lord Lucas of Chilworth when he mentioned this matter during our consideration of the Pipe-lines Bill, we owe a debt of gratitude to the 1149 Council for all the work they have done in studying this important and difficult problem.
My noble friend Lord Lucas of Chilworth and the noble Lord, Lord Chorley, have spoken of the sphere of policy. I want to say a word about that, and I think it would be clearer, since that matter has been raised, if I reminded your Lordships once again how the Council on Tribunals under my noble friend Lord Tenby put this matter. They made two recommendations, as the noble Lord, Lord Silkin, indicated in his speech. The first is that where the Minister proposes to disagree with the inspector's recommendation, either because of some factor not considered at the inquiry or because he differs from a finding of fact made by the inspector, he will notify the parties to the appeal of his disagreement and the reasons for it and afford them an opportunity for making comments and representations in writing before finally making his decision. The second is that where the Minister proposes to depart from the inspector's recommendations, because of (a) fresh evidence on a question of fact, or (b) fresh expert evidence (including expert advice), or (c) the introduction of a fresh issue, the inquiry should (if any of the parties so desires) be reopened and the new evidence or issue should be produced at the reopened inquiry.
I want to say at once that the Government accept the justice of these recommendations, and I am at present studying with the Council the best method of giving effect to them in the draft Rules of Procedure for Statutory Inquiries, which were submitted to the Council some time ago. As your Lordships know, I am given a very wide power to make rules of procedure for statutory inquiries, but it is plainly necessary to start with the most important. The rules at present in draft therefore deal first with inquiries into proposals for the compulsory acquisition of land by local authorities and, second, with inquiries held by the Minister of Housing and Local Government in connection with appeals to him under Section 16 of the Town and Country Planning Act, 1947. These inquiries cover the greater part of the field, and when rules have been made 1150 for them I shall be in a position to consider what rules are needed for other types of inquiry.
All these rules of procedure have to be laid before Parliament, and when I have settled with the Council the best form of words to give effect to the recommendations in their recent Report your Lordships will, of course, have an opportunity of considering them when the rules are laid. The form of the rules at present under consideration will, of course, be a guide for the further sets of rules for other types of inquiry which I shall have to make in the future. I have dealt with that matter in some detail, because I wanted my noble friend Lord Lucas of Chilworth to appreciate that I was not resiling in any way from what I said to him in the course of the debates on the Pipe-line Bill.
I just want to say a word about policy. I agree with the noble Lord, Lord Chorley, that it is very important that the parties at an inquiry should know as fully as it is possible to let them know what the Minister's policy is. Otherwise—for example, on issues of amenity, or on issues of traffic, to take two very practical examples—they might let a point go which, if they had known the full policy, they would have developed at the inquiry; and it is in that sense that one wants the policy to be known. May I remind your Lordships how Lord Tenby's Council put it in the Report? They say that:…. complaint understandably arises where a Minister rejects the recommendation of an inspector who has both heard the evidence and seen the site … if the rejection is based on Ministerial policy which could and should have been made clear before the inquiry….I think that, on reflection, my noble friend Lord Lucas of Chilworth will agree that, in the way I have put it today, it is desirable that, to use the Council's words, it "should have been made clear before the inquiry" because then the parties to the inquiry know exactly to what to direct their minds and arguments.
I turn to the second part of the noble Lord's Question, in which he asks whether the Chalk-pit case can be reopened in the light of the recommendations now made by the Council. Here I should like to remind your Lordships of what I have said on previous occasions about this case. In answer to 1151 a Question of the noble Lord, Lord Silkin, in April, 1961, I explained the change which had been made in the procedure, following the Franks Report, in relation to new factual evidence. The Minister had undertaken, in his Circular No. 9/58, that if such evidence was brought to his notice from any source after an inquiry, and in his view it might be a material factor in the decision, he would give the parties an opportunity of commenting upon it. I went on to explain that the Franks Committee had recommended that "factual evidence" should include "expert opinion on matters of fact", but not "expert assistance in the evaluation of technical evidence given at the inquiry", but that the Government had been unable to accept this distinction, and were clear that both technical and other advice given by Government officials about the issues raised at the inquiry ought not to be disclosed. The Minister had acted in accordance with this view.
The recent Report by the Council on Tribunals recommends a change in this practice, and its effect will be that in future, where the Minister is disposed to disagree with his inspector because of, inter alia, fresh evidence on a question of fact, or fresh expert evidence (including expert advice) the parties will be given the opportunity of commenting on this evidence and, if they so request, of being able to test it at a reopened inquiry. If therefore the Chalk-pit case had occurred with such a rule in force, the Minister would have been obliged to disclose the expert advice which he received from his alkali inspectors about the likely effects of chalk dust. But even if the rule had been in force, Major Buxton would not have been a "party" to whom the advice would have been directly disclosed, as he was not a party to the appeal. The disclosure would have been to the appellant and to the local planning authority only, though no doubt—I make no sort of point, except for what I say now—the planning authority could, if it wished, have informed Major Buxton, and probably would have done; and if the inquiry had been reopened he would have been able to appear there, as he did at the original inquiry, as an interested third party.
1152 I think that, in that sense, in this situation where the person in the position of Major Buxton is taking the same view as the planning authority, then of course they would inform him and he would be able to appear at the reopened inquiry. If, on the other hand, it is the appellant who wishes to have the inquiry reopened, then of course he will hear about it as the appellant. I should have thought that would have covered the position in view of the change in the rules. The noble Lord, Lord Silkin, was good enough to say that that was not part of his Question and that it may be that I could only go some length. I can go that length to-day, but if he would like to discuss it again I think it is a subject well worth discussing and we might profitably occupy a portion of a day like this at work on it, if he would be kind enough to give me his views.
I come back to the point as to whether the Chalk-pit case should be reopened. The Chalk-pit appeal decision was given on September 17, 1959, over two and a half years ago. Having given the decision, the Minister is functus officio and cannot reopen it. It is true that it is in theory possible for him to obtain the effect of a reopening by invoking the powers of the Town and Country Planning Act, 1947, enabling planning permissions to be revoked. The local planning authority may revoke by order, subject to confirmation by the Minister under Section 21 of the Act, and the Minister has power under Section 100 to direct them to make such an order, or to make one himself. As a matter of policy, revocation is rarely resorted to: once a developer has received his permission he ought to be allowed to exercise it unless the circumstances are quite exceptional.
It might be justifiable to consider it in certain cases where procedural improprieties have been found, but, for the reasons which I have given more than once, in the Chalk-pit case there were, on the basis of the rules then obtaining, no procedural improprieties. As the noble Lord himself said, retrospective legislation is generally abhorrent, and the same philosophy must apply to administrative procedures. If changes are made they should not disturb proceedings carried out in accordance with the rules in force 1153 at the time. It would be grossly unfair to place Messrs. Heath, or anybody else who has already received a planning permission, at risk of losing it because of an ex post facto change in the rules.
In a letter dated July 12, 1961, sent by the then Minister, my right honourable friend Mr. Henry Brooke, to Major Buxton, and released to the Press, Mr. Brooke said:The Lord Chancellor has told me that he had a long discussion with you recently, and I do not think that a further personal discussion would be likely to serve any helpful purpose.May I explain? I did ask Major Buxton to come to see me, and in fact we discussed this matter for some two and a half hours. Then, continuing Mr. Brooke's words:I shall not be persuaded to revoke the planning permission which I gave in 1959, subject to strict conditions, to work chalk out of that large sand and gravel pit near your property in Essex. As to my powers of revocation in Section 100 of the Town and Country Planning Act, 1947, I very occasionally have to use them to revoke a planning permission granted by a local authority, but there would be absolutely no justification for using them to revoke my own decision in this case.Lord Silkin, I know, had this point in mind. It is a difficult one, but I submit to your Lordships that it would be impossible to single out one case for exceptional retrospective treatment in the light of the introduction of 1154 new rules. It is a common practice for new rules to be introduced at a current date without retrospection. One example is the introduction of the practice to publish inspectors' reports which, in spite of representations to make it retrospective, was applied from a current date. If the Chalk-pit case were thus treated, it would in equity be necessary to do the same for others, and it would in practice be impossible to draw a line as to where retrospection should cease.
My Lords, I have tried to deal fully, and I hope clearly, with both points raised by the noble Lord, Lord Silkin. I am sorry, from his point of view, that he has been only 50 per cent. successful. But he has often said that long political experience has made him reconciled to a 50 per cent. success. I want him to know that both points have been considered. I have intruded for rather a long time on your Lordships in order to make clear that we had. May I conclude by again thanking him for raising these points?