HIGHWAY INQUIRIES

HL Deb 15 December 1976 vol 378 cc888-903

2.52 p.m.

Lord O'HAGAN rose to call attention to the need to reform highway inquiries; and to move for Papers. The noble Lord said: My Lords, I am surprised but delighted that so many of your Lordships share with me a deep interest in the question of highway inquiries, which I am now inviting the House to examine briefly this afternoon. We have debated this subject twice already this year, and I can reassure the House that I am not inviting your Lordships to go through an action replay of what we have already discussed.

What I hope to do is to give the Government an opportunity to reply to those questions which we have asked before but to which we have not yet been given a satisfactory answer. Earlier in the year my noble friend Lord Molson introduced a debate, and on 2nd July, before the Summer Recess, I introduced a debate on a Statutory Instrument which dealt with this subject. On both those occasions the answer was provided by the noble Baroness, Lady Stedman, and I am delighted that today the Minister herself is to reply to the debate. I hope that we will be able this time to have more information about the Government's attitude towards highway inquiries and the need to reform them.

Your Lordships were told before the Summer Recess that the Government had already set in train an inquiry into highway inquiries, an examination of the way highway inquiries work, which was to be conducted in conjunction with the Council on Tribunals. I wonder whether the noble Baroness will be able to tell us today how far that inquiry has gone. The Government have already recognised that everything is not right with the way that our highway inquiries are conducted, and they have set up this inquiry into the matter themselves. When will it be completed? Will outside bodies be allowed to give evidence? I do not want to bombard the noble Baroness with a whole variety of questions, but I can sum them all up by asking whether she can give us a progress report on this inquiry, tell us when it is likely to come to an end, and whether its results will be published?

The Government themselves, while having set this inquiry in motion, have reorganised part of the Department of the Environment which deals with transport so that the machinery of central Government has undergone an alteration, while the implementation of Government policy as conducted in highways inquiries is itself under inquiry. This is a slightly awkward process, and I wonder whether the noble Baroness can say whether the new Department of Transport will have any effect on the way that highway inquiries are conducted.

I should remind your Lordships that highway inquiries are called for under the Highway Acts when road schemes promoted by the Department of the Environment itself, or by local authorities in certain circumstances, cause anxiety. I wonder whether the introduction of a new Department into this field means that there is now a still more complex situation leading up to the inquiry. How does the Ministry of Transport get involved in the procedures which could lead up to the inquiry?

At the end of September there was an article in The Times which gave one example of how this new Department will affect the procedures in highway inquiries. The Times article said: … the appointment of inspectors to conduct inquiries will be a matter for the joint decision of the two secretaries of state, who will together consider their reports and reach, it is presumed, a mutually acceptable verdict.

Is this the extent to which the reorganisation of central Government will affect these highway inquiries? There is a Statutory Instrument going through Parliament at the moment, against which I was going to pray until I was lucky enough to initiate this debate.

Perhaps the noble Baroness can say whether there are any points in that Statutory Instrument which affect the debate that we are having today, and I should be very grateful to know which of the two Secretaries of State will appoint inspectors holding inquiries under the Highways Act 1959. I may be stupid, or it may be simply the fact that I do not have the legal expertise which so many of the other participants in this debate have, but I have not been able to discover the answer to that question. Is this Statutory Instrument simply a holding operation, or have we now a firm long-term under-standing of the way that the Department of Transport will affect highway inquiries?

At the centre of our debate in July, and so often in comment in the Press and indeed during some of the more difficult moments in individual inquiries, the question of what is and what is not Government policy has arisen. It is sometimes claimed by the Department of the Environment—and different things are claimed at different times and at different inquiries; there is no consistent pattern—that traffic forecasts are a part of Government policy and that a whole variety of matters are, or are not, Government policy. It would be helpful if the noble Baroness could confirm the kind of questions which the Government think proper for raising at highway inquiries. In another place on 15th October the Under-Secretary of State for Transport said during an adjournment debate: I have no doubt that a public inquiry will need to be held into the Department's proposals when they are formally published. This will be before an independent inspector and will give people who object to them a full opportunity to put forward their views and to suggest alternative routes if they wish. It will give an opportunity to question the Department's detailed case for the road."—[Official Report, Commons, 15/10/76, col.913.]

The Minister was talking about a particular part of the M25 scheme.

My Lords, there is the perennial question as to what members of the public can and cannot raise at these inquiries. I do not want to pursue a logic-chopping line of argument or seem merely to be trying to pose awkward questions. What I would ask the noble Baroness to consider is whether it would not help everyone to know what and what not to raise at these inquiries. Would it not be better if there was a clear, definite statement of what Government transport policy consists, and that, as a result of that, there were guidelines which made it clear which aspects of that pollicy were to be discussed in Parliament and which aspects of that policy were permitted to be raised at inquiries?

My Lords, there is a convenient precedent in Section 3(2) of the Civil Aviation Act 1971. Under that section the Secretary of State has from time to time to give guidance to the Civil Aviation Authority with respect to the performance of its functions, and he has to put these policy guidelines in the form of a document which is laid before both Houses of Parliament. I have here an example of such a document. It is called, Future Aviation Policy; it has six pages of policy guidance, and it is intended that its main provisions: should remain substantially unchanged for a considerable number of years".

So in this sphere of Government activity there is already a mechanism for laying the broad guidelines of policy before Parliament, the appropriate forum for discussing broad policy guidelines; and not only is Parliament given the opportunity to discuss those broad outlines, but members of the public can look to them and get guidance from them as to what the policy of the Government is and what it is likely to be for some years, so that continuity is achieved.

There is nothing of the sort that I have been able to discover in the field of transport policy, particularly as it affects highway inquiries. The precise identity of Government policy, when it is raised at highway inquiries, is nothing like as clear as is set out in Future Aviation Policy, whether or not we like it and whether or not we disagree with it as explained in this Command Paper. I understand that the Government are considering publishing an annual White Paper on transport policy. What I should like to ask the noble Baroness is this. In certain cases at highway inquiries some uncertainty has arisen as to what is and what is not Government policy; and, then, there have been different views taken as to what people with a legitimate ground for participating in those inquiries can or cannot raise. Is the Government's new White Paper going to follow the pattern of the Civil Aviation Act? Is it going to settle this question of policy? Is it going to define what Government policy is or is not? If the Government take this opportunity, part of the trouble which arises at highway inquiries could well be avoided, because Government policy will be clear. It will have been discussed in Parliament, in the national forum; it will have been raised in front of representatives of all constituencies; and it will therefore be much more difficult for those who want to discuss national issues at a highway inquiry to persist in their efforts.

My Lords, I gave the noble Baroness notice that I was going to quote from a document recently published by the Conservative Political Centre called, Another Bill of Rights? I will do so briefly, if I may, because it sums up some of the points that I have raised today and on previous occasions. I think it is important to examine the question of highway inquiries, not simply as part of transport policy but as part of the general discussion that is going on about how the citizen can be protected against what local and central Government wish to do, and how he can be given a forum in which to explain his views before Government action is taken. I think the question of the liberty of the subject is an important one in this field.

This document, in its concluding words entitled, "Ancillary recommendations", says this: First, we believe that where the issue between citizen and Minister turns upon policy rather than law, as in the case of appeals under the Town and Country Planning, and Highways Acts, there is much to be said for the precedent of the Civil Aviation Act 1971 whereby the responsible Minister is required from time to time to issue policy guidelines in the form of a Statutory Instrument. The present situation in which parties to appeals have to rely upon Ministerial speeches in Parliament, Departmental press releases and the like seems to us wholly unsatisfactory, while the rapid changes in policy announced by such methods unnecessarily (in our view) increases uncertainty".

I wonder whether the noble Baroness thinks that what this report calls "an authoritative statement of policy" would deal with some of these uncertainties and make the whole conduct of highway inquiries more acceptable for all concerned.

Then, my Lords, there is another recommendation. I quote again: We also believe that the time has come to reconsider rejection by the Conservative government of the day of the Franks' Committee's recommendation that the Inspectorate (then the Ministry of Housing and Local Government—now of the Department of the Environment) should be transferred to the Lord Chancellor's Department. There are two reasons why we favour such a change. First, it is becoming increasingly clear that Inspectors will have to he granted powers to commit for contempt. So far this need has for the most part been confined to motorway inquiries", and so on. Nevertheless, there is evidence that the tendency to disrupt is extending to other inquiries … Secondly, there are occasions (which are happily relatively rare) where a civil servant appearing at a public inquiry on behalf of his department indulges in vexatious prevarication. An inspector responsible to, or appointed by, the same department (as is generally the case) is in a particularly difficult position in exercising control.

In one of the central recommendations of this report—Recommendation No.6—it is suggested that: … consideration should be given to transferring the Inspectorate … to the Lord Chancellor's Department".

My Lords, I believe that there is an unfortunate category of persons known as vexatious litigants on whom the most terrible things are wreaked by lawyers. I hope that you will not consider that I have been a vexatious Parliamentarian in again bringing this matter before the House. I think it is something that we need to consider because the present procedures are creaking, if not in danger in some cases of ceasing to carry conviction. I hope the noble Baroness will take the opportunity to give us an up-to-date statement of what are the Government's views, how far their own inquiries went, what recent changes in Government machinery mean for the conduct of highway inquiries and whether the Government have the beginnings of a policy for making these necessary inquiries work better and work in a way that seems fair to all those involved in them. My Lords, I beg to move for Papers.

3.11 p.m.

Lord AVEBURY

My Lords, I would not accuse the noble Lord, Lord O'Hagan, of being a vexatious litigant. On the contrary, I should like to congratulate him on raising this matter again within the space of a few months, and on the excellence of his timing in succeeding in initiating this debate only a few days after the appointment of the chairman of the Committee of Inquiry which has just been established by the Government. If I were going to be cynical, I might say that the noble Lord's tabling of this Motion might have accelerated the appointment of the chairman of this Committee; but, of course, I am not cynical and I would not make any such assertion. I am pleased to note that the noble Lord is a convert to the idea of a Bill of Rights. I hope that when my noble friend Lord Wade reintroduces his Bill—as I am told is his intention in the near future —the noble Lord will go into the Lobbies in support of it, particularly as it has recently had the powerful support of Lord Justice Scarman who spoke in support of a Bill of Rights and, in particular, of the method adopted by my noble friend in a lecture given as recently as Friday last.

Obviously, inquiries into motorway and trunk road proposals are not being conducted in such a way as to afford objectors what we should consider adequate opportunities for raising their objections to those proposals. That is the reason why at many of the recent inquiries there have been disturbances which some noble Lords may consider to be regret-table. But when no public debate has ever been allowed on the general policy of working towards a motorway and trunk road system of enormous size, nor has there been any opportunity of questioning the traffic forecasts which are an integral part of the proposals of the Government which are used to justify the road programmes, it is hardly surprising that certain people, when going to these inquiries, go beyond the bounds of the law in making their objections felt.

In recent years, inch by inch, the Department of the Environment and, more recently, the Department of Transport, have made small concessions to the principle of public participation; but they have gone nothing like as far as one would like, nothing like as far as Mr. Wedgwood Benn has gone in the case of energy. He actively encouraged debate both by providing a platform on which interested parties can express opinions and also by taking part himself in debates sponsored by other people: for instance, the debate held this week under the auspices of the Bishop of Kingston which the right honourable gentleman attended in person. I only wish that our transport planners could be persuaded to follow Mr. Benn's example in this respect in holding a proper public debate on a matter of great importance to so many citizens.

Grudgingly, in 1973, the Department of the Environment conceded at the M40 and M42 inquiries that the need for a scheme could be questioned at a line order public inquiry. In 1974, the Select Committee on Expenditure recommended that the right to challenge the need for a transport scheme at a public inquiry should be firmly established. In February 1975, that was accepted by the Government with the proviso that: matters of policy are not called into question". In July 1975, at the M16 inquiry, a Department of the Environment witness admitted under cross-examination by a representative of the Friends of the Earth that the method of estimating the saturation level of car ownership was subject to bias and likely to produce over-estimate. Since then, the Government have insisted that traffic forecasts are included within the definition of design standards and these design standards are, in turn, defined as policy issues for which Ministers are supposed to be directly answerable to Parliament and, therefore, in consequence held to be inappropriate for consideration at public inquiries.

This is the point which the noble Lord, Lord O'Hagan, was emphasising: that it is not absolutely clear to members of the public just what is legitimate in the case of questions to be raised by objectors at these public inquiries. Whatever the inspector may think—and he is. of course, supposed to be independent; that is the theory—in the rules which have been published this year (1976, Statutory Instrument No.721) he is obliged only to disallow any question which in his opinion is directed to the merits of Government policy. The notes for guidance of inspectors, which the noble Lord, Lord O'Hagan, mentioned, make it quite clear that the word "policy" is given a very elastic meaning. The forecasts are to he treated as policy, as are the assumptions made by the Government about the availability and price of fuel. At the public inquiry into the Chelmsford bypass, a Departmental witness claimed that he was not competent to answer questions on the traffic forecast although they had been submitted in writing in advance. The inspector commented: It is … unsatisfactory if a body of informed opinion challenges something as basic as the Department's methods of predicted traffic flows, and if it considers it necessary to do so at a series of local inquiries in the absence of any provision for these matters to be debated, and, if possible, resolved at national level. Then, in relation to the Department's inability to cross-examine an agricultural witness—but the general principle would apply the other way round—he said: While I fully appreciate the difficulties, I would make the general point that it is a pity if expert evidence of any kind is not subjected to cross-examination by someone who is, at least, advised by experts. At least the expert giving evidence in such a case may feel less need to verify his references or substantiate his assertions. In the orange paper published earlier this year, these criticisms of COBA (the computer programme for the economic appraisal of highway schemes) and, indeed, the whole system of appraisal, were noted. Without going into all the defects of this programme, COBA, I should like to point out to the noble Baroness that the only benefits it considers are savings of time, vehicle operating costs and accidents, and the only cost that it considers is the cost of building the road. Apart from the disbenefits which may accrue to those who live along the line of the road and in the roads giving access to it, there are many others that one might think of. One was quoted in The Times of August 12th 1976, where the police in Yorkshire claimed that the construction of the M62 had widened the scope for criminal activities. The head of the regional crime squad is quoted as saying: Suddenly Lancashire criminals are committing serious crimes in Yorkshire, Humberside and Lincolnshire The M62 gives criminals quick access and a fast getaway from an area that was previously too far away from them. That is what is meant by the economic benefits of a motorway.

One other general argument by Mr. Adams of University College, is that he pointed out that a scheme which reduced the risk of cancer per cigarette smoked by 25 per cent., while at the same time promoting a doubling in the number of cigarettes smoked by making them cheaper and more accessible, is not a scheme which can be credited with the benefit of reducing cancer. Therefore, if we are saying that motorways reduce the number of accidents per vehicle kilometre but at the same time promote an increase in traffic so that accidents are restored to the level which they were at before the construction of the motorway, it is wrong to claim that this motorway results in any saving in life or serious injuries.

In the orange paper which I mentioned, the Government announced that an independent assessment would therefore be sought to comment on and, if necessary, make recommendations for changes in the Department's appraisal of road schemes, including traffic forecasts and the weight given to economic and environmental factors. I do not think that the Government would have gone so far as that if they had not been convinced that there was some validity in the criticisms which had been levelled at the methods which they had adopted in the past. Yet, as I mentioned, it was only the other day, 10th December, that the chairman of this inquiry was named and the terms of reference were given. I should like to ask the noble Baroness to say why it has taken so long to set the inquiry in motion. It is not starting yet because it is only the chairman who has been appointed and not his colleagues.

Suppose that this inquiry finds that serious errors have been built into the methodology of conducting these inquiries and into the traffic forecasts themselves, and that therefore hundreds of millions of pounds would be spent if these methodologies were continued on the traffic schemes that might turn out to he unnecessary. When public spending generally is having to be cut severely—and we shall no doubt hear some news about this later this afternoon—it would be utterly scandalous if wasteful and unnecessary expenditure on trunk roads and motor-ways were allowed to he continued. Therefore, I propose to the noble Baroness —and I should like her comments on this —that until Sir George Leitch has made his report, all public inquiries into motor-ways and trunk road schemes should be adjourned, and that they should not be reconvened until the Government have had the benefit of his advice.

When they are resumed, will the Government also give an assurance—and this is a relatively minor point—that the assignment procedures will remain a proper subject for questioning in accordance with the assurance that the noble Baroness gave to the noble Lord, Lord O'Hagan, on 26th July, even after the regional highway traffic models have been completed and are produced as evidence? These assignment procedures, by the way, are the calculations that are followed in distributing a given overall traffic growth between the various roads within a region. It is the suspicion of some people that once computer forecasts have been introduced in this field, they will be treated as sacrosanct in the same way as the forecasts of national traffic growth produced by the Transport and Road Research Laboratory are treated as sacrosanct by the Department of the Environment.

Another point on which I should he grateful for the comments of the noble Baroness is whether the Government will eliminate the bias in the so-called system of consultation which, in my opinion, is as about as democratic as the system of elections in a one-Party State. If one looks at documents such as the one I have in my hand issued in respect of the Stoke/Derby Link, it says on the front of it "Your views are needed", but then if you look on the inside the whole document is a justification for the construction of this link. The whole of the second page is an argument in favour of it. If one then examines the questionnaire, it does not ask the people who are invited to fill it in whether they think that the road is necessary at all; it only asks them to say which of various routes they think are the best. I do not call that consultation.

I ask the noble Baroness to give an assurance that, in revising these procedures, people are asked to say whether or not they think that a road is necessary. Frequently it may happen that even people living in streets that are severely affected by existing traffic would prefer a new road not to be constructed. As evidence of that, I have a letter from the Department of the Environment dated 26th May 1976 referring to the M.25 South orbital route, Micklefield Green to South Mimms. In that case, the writer of the letter, the official in the Department of the Environment who was addressing the Friends of the Earth (Watford Action Group) gave an analysis of the preferences expressed by members of the public. The largest number of replies which they received by far was from people who favoured postponement of the scheme altogether. They were not actually asked whether they wanted postponement. In terms of an American election, this is what is called a "write-in" vote. They were asking for the scheme to be postponed, although what the Department put for them was which of a number of alternatives did they prefer.

I should like to ask whether the Minister will consider a proposal which has been made by the M.23 Motorway Action Group. I had some corresponddence with the noble Baroness on this point regarding the M.23 motorway. I wonder whether a time limit should be placed on the permission which is obtained by the Department of Transport as a result of such public inquiries. There is at the moment no time limit on these powers to build a road. That is not in accordance with the provisions of planning, where once you have obtained permission you must implement the permission within a fixed space of time or you automatically forfeit it.

I remember that when I was representing a constituency in South London we found that a route which had been agreed prior to the war was still sterilised and it was revived for the purpose of an intended South orbital road, and people who lived along the line of that route suddenly found that the value of their properties sank by 20 per cent. or 30 per cent.

This can easily happen with people who live along the line of a route. If the Government did not proceed with their plans within the space of, let us say, five years, they would not have a sword of Damocles hanging over their heads for an indefinite length of time. How one would do this in statutory form I should not like to say. It would be a severe disincentive to the Government if they had to begin the statutory procedures all over again, if such a road were not started within five years.

My Lords, I should like to conclude by congratulating the noble Lord, Lord O'Hagan, on giving us the opportunity of raising this matter once again. I hope that we shall have some constructive answers from the noble Baroness this afternoon.

3.30 p.m.

Lord CHESHAM

My Lords, that there is considerable concern about these matters both inside your Lordships' House and outside it, is evidenced and admitted. I, too, join in praising the noble Lord, Lord O'Hagan, for having brought the matter up, which can only do some good. I regret—not very sincerely—that I should have heard what I did, and cannot agree with the noble Lord, Lord Avebury, and his implication that he considers that the kind of disruptive practice that is being employed at public inquiries at the moment is at least deserving of sympathy.

If there was any doubt about that implication, he then went on to prove his views by certain of the arguments he subsequently used. I simply cannot go with the noble Lord in that kind of opinion. I think we must look really properly at the situation. How long has this concern and dissatisfaction about these matters gone on?—not very long in fact: and, after all, the procedures do stem from the Highways Act 1969. They were codified—no more—in the Statutory Instrument of this year, and it is only within comparatively recent periods—I have to be very careful about using the word "time" in this context—that there has been this dissatisfaction.

Very well. my Lords: if there is reason in the procedure and the rules of procedure and the way things work, I for one and. I am sure, a good many of your Lordships. have reasonable confidence that the measures at present being taken by the Government and in particular the Review being carried out under the august chairmanship of the noble and learned Lord who sits on the Woolsack will sort things out in the way they need to be sorted. Therefore what is the source of the concern? I think it stems from a relatively small but extremely militant body of persons and organisations who have done their best, and a very capable best, to use the procedural rules as a means of extending their own self-appointed—perhaps some people would say self-opinionated—objections to road schemes in general. I do not think anyone can be left in much doubt that the practice we are seeing is a deliberate and sustained effort to delay new highway schemes on a matter of so called principle, rather than any expression of concern for democracy; and if anybody tries to tell me that by disrupting, by halting, by stamping and heating up inquiries you are giving any kind of chance or show of concern for democracy or for people who may well have legitimate objections to express clearly their views and discuss them, then somebody else's idea of democracy is very different from mine.

If there be any doubt left from what I have said, if we consider the disruptive practices and the antics which have been going on, which have been frequently, and indeed usually, carefully orchestrated by people who probably do not live within two or three hundred miles of the area affected by the inquiry—and, curiously, usually in front of all the television camera crews and of many other represent-tatives of the different forms of the Press, because I have always thought it is a strange coincidence that they should be there—these activities can be seen for what they are. We should not get into a panic about the unsatisfactory nature of the procedures.

What we are concerned about will be put right, but we are hack to a problem of a little hit of enforcement of law and order, a bit of public discipline and a bit of good behaviour in these matters, which is what is required. I believe that if any capitulation, which is a slightly different thing from "reasonable review", on any of the procedures were to take place it would not put an end to this kind of opposition.

Lord MOWBRAY and STOURTON

My Lords, would the noble Lord not agree that it is the sustained argument against any form of planning for roads which is causing what the noble Lord, Lord Avebury, was complaining about; that is, the road blight on values as well?

Lord CHESHAM

That is true, my Lords, but I think it is a slightly different point from the one I was making, if my noble friend does not mind my saying so. What I was trying to say was that even if there is some form of considerable "giving", we will call it, on the question of procedures, that would not put any kind of end to the opposition because, as I understand it, Mr. Tyme and some of his followers have already publicised their intention to disrupt work on construction sites in any way they can, including endeavours to make contractors bankrupt.

Lord BRAYE

My Lords, would the noble Lord tell me whether he includes the Council for the Protection of Rural England among these people?

Lord CHESHAM

My Lords, if the Council for the Protection of Rural England supports Mr. Tyme and his followers, and supports and takes part in disruptive practices at public inquiries, then I most certainly would include them.

Lord HENLEY

My Lords, I hope the noble Lord will allow me to intervene for one moment to say unequivocally that the Council for the Protection of Rural England has condemned these disruptive practices.

Several noble Lords

Hear, hear!

Lord CHESHAM

My Lords, I must thank the noble Lord, Lord Henley, for jumping ahead of his turn and answering so clearly for me the question put by my noble friend. Sometimes I feel that people consider, quite wrongly, that the purpose of an inquiry is to make a decision. Of course, it is not. Everybody knows that. All your Lordships know that, I am sure. It has already been pointed out; but people still behave as though it was. I think the point needs to be made very strongly that an inquiry cannot be decision-making. There is no way, short of legislation, that you can make them decision-making. If you are ramming home these tactics, it is not the only way—it has been said that it is not—that the inquiry should be respected, in exactly the same way as any other legal process which we have. The decision conies from a Minister and if he considers, as we do, all the social, industrial and economic necessities for a full and properly planned road system. then "time"—however you like to spell that word—is not on our side.