HL Deb 02 July 1976 vol 372 cc984-1014

1.12 p.m.

Lord O'HAGAN rose to move, That a Humble Address be presented to Her Majesty praying that the Highways, (Inquiries Procedure) Rules 1976 (1976, S.I. No. 621) be annulled. The noble Lord said: My Lords, I beg to move the Motion which stands in my name on the Order Paper. First, I should like to explain the importance of a matter which sounds rather unexciting. Those of your Lordships who are interested in matters concerning the protection of the environment, or planning, or what is going on in road development in your locality will know already that in many areas there has been considerable disquiet about the procedures under which certain highways inquiries are conducted.

In The Times of 1st July there was a report, part of which I shall quote in order to give the general background to considerations which I shall be putting before the House. The report starts: Protestors against disrupt inquiry on M3".

It goes on to say: the department's " —

that is, the Department of the Environment highways directorate and its road construction units are in trouble. Their procedures are seen as blinkered, arrogant and undemocratic, made worse by the fact that the inquiry inspectors are appointed by and responsible to the department ".

The Report goes on: The Government has promised to review inquiry procedures, in conjunction with the Council on Tribunals. Unless it is prepared to concede that inspectors should be independently appointed, preferably from the judiciary, the sort of militant tactics employed at Winchester seem certain to become common ".

My Lords, I am not necessarily associating myself with the expression of view in that report about the appointment of inspectors, nor am I associating myself with the guerrilla tactics of those who sought to disrupt the inquiries. All I wish to draw to the attention of your Lordships is the fact that this inquiry has now been adjourned by the inspector, and one of the reasons why I understand that it has been adjourned is that the objectors have now been permitted to raise the wide question of the fundamental need for the whole of the M3 motorway, and I shall wish to refer later to this question of the need for the road scheme which is being inquired into.

The rules of procedure which we are discussing today flow from Schedule to the Highways Act 1959 which lays down the procedure which governs highway inquiries. These inquiries are con-concerned with orders or schemes pro-prose(' by the Secretary of State for the Environment, or made by local highway authorities and submitted to the Secretary of State for confirmation. Until the present rules were laid down there were no statutory rules at all governing the procedure at such inquiries. Instead, the inspectors who conduct the inquiries, and who are appointed by the Department of the Environment, would conduct the inquiries on the lines of statutory rules of procedure laid down for other planning inquiries—the Town and Country Planning (Inquiries Procedure) Rules 1974—and the extent and nature of these rules has been made clear since the Notes for Guidance of Panel Inspectors have at last been published.

Over the past few years the operation of these inquiries has proved unsatisfactory in various respects, some of them quite fundamental, and I have given a recent instance in this regard. In particular the problems have arisen in relation to inquiries into schemes proposed by the Secretary of State himself—motorways or trunk roads.

The first major point I wish to make is that the Highways Act itself places no limits at all on the scope of objections, and this is something which the inspector at the M3 inquiry seems to have recognised, because the Highways Act says: After considering any objections to the proposed scheme which are not withdrawn, and, where a local inquiry is held, the report of the person who held the inquiry, the Minister may make or confirm the scheme …

This wide remit given under the Highways Act has, understandably enough, troubled some inspectors who have not enjoyed hearing objectors criticising the whole scheme on the basis of whether there is any need for it, and at one stage they would permit submissions only as to the line of the proposed road; not as to whether the road was needed, but as to where it should go, presuming that the need was already proved. At the local inquiry into the Denton relief road, the M67, which opened in July 1975, counsel for the Department of the Environment asked the inspector to disregard any evidence or submission with regard to the need for the motorway. That was as recently as July 1975.

There has also been a considerable argument over the right to question traffic forecasts at local inquiries. On this particular point the Government, in their own Consultative Document on Transport, have proposed the setting up of an independent inquiry, and I do not propose to refresh the mind of the noble Baroness about the difficulties of traffic forecasts, but we should be delighted if she is able to give us any report on the progress of that inquiry. Even if the right to question the need were properly established—it seems to me to be recognised but not properly established yet—the present rules that we are discussing today give no guidance whatsoever on this matter. Perhaps I could remind the House that the Expenditure Committee of another place, when examining public expenditure on transport in 1974 at that time recommended at paragraph 59: … that the right to challenge the need for a transport scheme at a public inquiry should be firmly established.

The present rules neither implement that suggestion nor offer any clarification as to what the position actually is, although the inspector at the M3 Inquiry has, as it were, done it off his own bat and postponed the inquiry in order for questions of need to be examined.

I could say a lot about various local inquiries but I will not do so. All I will say is that local inquiries are normally concerned with, at the most, only 20 miles or so of the proposed scheme. The Highways Act does not provide any minimum or maximum limit, and therefore if one 20 mile section has been allowed, and the question of need is not allowed to be raised at a subsequent inquiry for another 20 miles, the second and third inquiries will be fruitless because the first inquiry, if limited to 20 miles or so, might be considered to have prejudged the whole issue.

That is the background. On 20th January the Minister of Planning and Local Government announced in another place that his Department would be making a full review of the procedures in connection with highway schemes, and that this review would be carried out in conjunction with the Council on Tribunals. On the day the present rules were published, 18th May, it was made known to the Friends of the Earth that the Council on the Tribunals had no idea what the review it was meant to be conducting could include because they said: It is not clear to the Council at the present time how the review is to be conducted. So there is considerable uncertainty as to what is actually going on ".

The rules that we are talking about had been published before any review with the Council on Tribunals. Therefore I suggest there are serious objections to the rules themselves. First, they do not alleviate any of the problems which now have arisen at local inquiries. They make no improvements; they simply put into statutory form the principles on which inspectors have already been conducting inquiries, and do not attempt to resolve any of the main issues. Secondly, the laying down of these rules in the form of a Statutory Instrument may give a false sense of confidence that the problems relating to these inquiries have been at least partially solved, whereas these rules are merely fossilising an already unsatisfactory situation.

The fixing of these rules in the form of a Statutory Instrument may affect the review and prejudice its scope. The review may feel itself confined to simple amendments of these rules, while most of the problems in connection with these inquiries cannot be solved by simple amendments. It would be rash to attempt to extend this debate into fields too far outside the scope of the rules themselves; but I suggest to your Lordships that the questions that these rules attempt to deal with are really much more than technical. When a question arises as to where a new road should go, it may well raise more than purely local or regional matters. I feel that there is something to be said for examining the whole procedure in the way we are dealing with these matters. The Joint Committee on Delegated Legislation, when they were considering this type of area in the Session 1972-73, had some proposals put to them by the noble Lord, Lord Molson. I do not saythat what the noble Lord was suggesting at that time—mainly in connection with Bills regarding reservoirs— is wholly relevant to the fundamental questions of the rules which we are talking about today.

The rules that we are talking about today concern the wide ranging matters he dealt with and there is a respectable parallel. I will quote from three parts of paragraphs in the Report of the Joint Committee on Delegated Legislation. At paragraph 60 the Committe said: Lord Molson raised a matter of importance which concerns both Ministerial orders and Private Bills. He argued that during the last few years the requirements of public authorities for land have enormously increased, in response to the growing demand by the public for the provision of services such as housing, water, gas, electricity and roads; and at the same time there has been a growth in public concern to protect the environment, which is often adversely affected by the works necessary for the provision of these services. This conflict of public interest raises the question whether Parliament should devise new procedures to resolve issues of general public importance which arise as a result of this conflict, while at the same time reconciling public demand and needs fairly with the private rights of individuals.

I submit that is very much what we are talking about when looking at these rules. It went on to say : Lord Molson contends that there should be a procedure for Parliamentary control over projects which are carried out by local orders or administrative decisions... neither of which are at present subject to any procedure of Parliamentary scrutiny or control.

The third quotation is from the Committee's conclusions: Your Committee are of the opinion that the matters raised by Lord Molson are sufficiently important to establish the need for a review of the procedure for objecting to legislation and delegated legislation of a Private Bill nature.

It may be that in the two Committees that I hope will be set up to look into the procedure and practice of Parliament that such matters can be examined. I will not trespass on that ground today. I will ask the noble Baroness whether she will give us some form of undertaking that in the Government's consideration of these matters they will not rule out at least the possibility of evolving some new Parliamentary procedure for dealing with what has become a wholly unsatisfactory state of affairs.

I want to put some detailed questions to the noble Baroness of which I have given her Department—if not herself—some notice. Before I do so, I want to attempt to put my finger on the point of principle. To me, the point of principle is: Are people in the sort of situations to which these inquiries are addressed to be governed by bureaucrats, appointed by themselves and accountable only to the Minister, or is some more open, fair and new procedure, preferably involving Parliament itself in the form of a Select Committee, to be evolved? I submit to your Lordships that it is quite wrong for environmental pressure groups to attempt to decide all these matters themselves, and I would not he wanting to suggest that they should; but I submit to your lordships that it is equally wrong, if not more so, that questions of enormous consequence to people living in an area, which may raise more general and wider issues, should be decided in the manner in which they are decided today.

I should like to ask the noble Baroness to give us some information about the attempts that the Government are making to resolve the present muddle. I would ask: On what date will the review which has been announced begin? When is it expected to report? Could the noble Baroness give us some idea of the terms of reference of the review; and will those terms of reference include the possibility of completely redrafting the rules that we have been discussing today, and even the possibility of redrafting the Highways Acts themselves, or will such possibilities be excluded? Will the review consider the situation at trunk road inquiries where the authority promoting the scheme is also its final judge ? Will the review examine the question of the removal of control of inspectors from the Department of the Environment to the Lord Chancellor's Office, as was recommended by the Franks Report on Tribunals and Inquiries ? I hope the noble Lord, Lord Foot, will have a little to say on that subject. What will be the composition of the review body? In what form will the review make known its recommendations ? Finally, what arrangements have the Government made for representations from non-Government bodies to be made to the review?

We cannot settle all these questions today, especially because this review has not yet started work; but I would suggest to your Lordships that we are looking at something of more than mere technical interest, and that the Department will find that Parliament, at both ends of the Palace of Westminster will take a continuing interest in ensuring that the procedures whose rules we are examining today are radically reformed to make them fairer to those whom they affect. My Lords, I beg to move.

Moved, That a Humble Address be presented to Her Majesty praying that the Highways (Inquiries Procedure) Rules 1976 (1976, S.I. No. 721) be annulled.—(Lord O'Hagan.)

1.33 p.m.


My Lords, as my noble friend Lord O'Hagan said in his well-reasoned speech in support of his Prayer, the present procedure for highway inquiries derives essentially from Schedule 1 to the 1959 Highways Act, which was itself a consolidation of earlier legislation. The Statutory Instrument on Tribunals and Inquiries, which came into force on the 10th June, adds nothing new to the law on highway tribunals, but simply codifies existing practice based on the principles laid down in the 1959 Act. Indeed, my Lords, if we were to annul this Instrument, our so doing would have no effect whatsoever on the law of the land or on the future conduct of highway inquiries. In order to do that, it would be necessary to modify the 1959 Act itself. It is true that, after the disruption of the Airedale Inquiry at Shipley, the Government decided to undertake a fundamental review of the highway inquiry procedure. No doubt at some future date the results of that review will be laid before Parliament. But, my Lords, a law does not cease to exist, nor is its status in any way diminished, merely because its operation is under review by civil servants. It is possible that Parliament might decide, after considering the results of the review, to make certain changes in the law, but that is wholly hypothetical; it in no way weakens the force of the law as it now stands.

Why, then, one might ask, publish an Instrument in the first place? Until recently it was possible for such inquiries to be conducted in a spirit of discretionary latitude. But when we consider the way in which recent inquiries have developed, we might well suggest to the Government that it would have been more relevant to circularise chief constables on policing arrangements than to publish new regulations. What we have witnessed at Shipley and Hornchurch, and what we have been witnessing at Winchester, cannot be dealt with merely by defining procedures which have hitherto been left to the inspectors' discretion. Those who have disrupted recent road inquiries are not trying to reform road inquiry procedure; they are, quite simply, bent on making it impossible to hold road inquiries at all.

The review of highway inquiry procedure raises important questions. Hitherto, highway inquiries have been concerned primarily with the interests of statutory objectors; that is, local authorities and those whose property is directly affected. I submit that this is as it should be. It has been suggested that future highway inquiries should be turned into debates on transport policy, that Ministry officials should be cross-examined on the world's supply of fossil fuels in the 21st century, and other such fascinating questions. No one can deny the importance of these topics, nor the need for an extensive public debate on them; but if we are to take democratic decisions about national transport issues and policy, then this must be done in Parliament. Furthermore, in a sense, local highway inquiries have more important matters to consider. If everyone is side-tracked into arguing about car ownership forecasts for the 1990s, then the vital interests of those whose homes and livelihood are directly affected will not receive adequate attention ; and it would be unfortunate if, in their considerations of future procedure, those reviewing the present position devoted all their energies to the relevance of national policy matters in future inquiries, because there are undoubtedly ways in which future highway inquiries could be conducted to give even more rights to those who are directly affected by proposed new schemes.

Disquiet has been expressed in the past that local objectors have little chance against the full resources of the Department of the Environment. It has indeed been suggested that Ministry officials have at times in the past been adopting an arrogant attitude, and have treated the inquiry procedure as a trifling ritual preliminary to the serious business of actually doing what they had always intended to do. Of course, as we have discovered in our relations with Iceland, it is not always an advantage to be obviously the larger or more powerful of two contending parties. There is no doubt that in recent years the techniques of pressure group politics have been developed to a fine art, and the publics natural, healthy sympathy for the underdog. mingled with a certain understandable pleasure in seeing bureaucrats discomfited, is a major advantage which almost all pressure groups enjoy automatically. But if your Lordships will forgive me a hackneyed phrase, justice must not only be done, it must be seen to be done. It is very important that local interests be given ample notice of forthcoming inquiries, and also all the information they could possibly require. Also, it is no reflection on the competence or probity of previous inquiry chairmen to say that public confidence in them would be even higher if they were appointed, not by the Department of the Environment but from a list controlled by the Lord Chancellor's Office. It is to be hoped that full consideration is given to all these matters in the present review.

Considerable public disquiet has been aroused this week by the course of the M3 inquiry held at Winchester, and I feel it is only right that we should touch upon this matter in our discussions today. Not the least extraordinary of the scenes which have unfolded for the benefit of television cameras was the spectacle of Winchester Lower boys apparently rioting in the very presence of their headmaster; and the hiring of itinerant protestors who travel from one motorway inquiry to another. What the great William of Wykeham and other past Wykehamists must think of the level the college has descended to in order to make their point makes the mind boggle.

These protestors clearly carry a duplicating machine in their luggage, however, because at Winchester those whom they considered sympathetic were given a large quantity of documentation, including several pages of procedural points. Early on page 1, there is a very useful instruction to demonstrators: When people are making the same points, say Hear, Hear! ' or give three cheers ". One must pay tribute to the writer's concern that his fellow protestors should not be at a loss for something to say.

The document also refers frequently to the ideas of a Mr. John Tyme who is, I believe, a lecturer at Sheffield University and has a deep personal knowledge of the people of Winchester and a close involvement with their traffic problems. Mr. Tyme has, no doubt, made considerable personal sacrifices for his cause, and not the least of these is his modesty and reticence; because if he is willing to have his name mentioned as frequently as he is referred to in this document he must otherwise be a person of quite extraordinary vanity. But it must be very useful if in a protest like this all the demonstrators are of one mind—very convenient for rehearsals.

The document indeed goes so far as to claim that the whole inquiry is illegal; but if Mr. Tyme and his supporters really believe that, then all they need to do is to seek redress in the courts. They have made great play with the cost of legal actions, but I would like to know how much the daily bill from " Rentacrowd " amounts to, and I strongly suspect that counsel would come cheaper. But it is not only " ideas ", if one can call them that, that these thoughtful organisers have provided for their followers. Under the heading " A few useful phrases " we find: " Rubbish ", " Go home young man ", " We don't trust the DoE ", " Rhubarb ", and " General Who ? ". In a sense all this is very amusing. It has the charming ingenuity of an undergraduate prank, and would appear at first sight to have about as much importance.

But, my Lords, three successive motorway inquiries have been broken up by these methods. Not only that, but when the resources of chanting and catcalling are exhausted, there are always uglier tactics. I am sure that it is unnecessary to remind noble Lords of the disorder and violence at the Airedale inquiry at Shipley; and, this week at Winchester, observers from the British Road Federation have been spat upon, jostled and assaulted—although those doing so were always careful to present a charming face to the television cameras. I am afraid that all this seems to me to have very little to do with local people and local interests. In its mindless, stereotyped orchestration it reminds me of nothing so much as the chorus of sheep in Animal Farm.

My Lords, I do not wish to express any view as to whether the new road which the Winchester inquiry is considering should or should not be constructed. Any proposal which might in the slightest degree impair the timeless and tranquil beauty of one of the loveliest of our cities, with its ancient foundations devoted to learning and to religion, with its fine old English houses set in perfect English countryside: anything which might prevent our descendants from enjoying what we now enjoy, must be examined with minute and exacting care, and all its implications considered. A properly conducted public inquiry with full opportunity for discussion, is of the highest importance: there can indeed have been few road inquiries of comparable importance.

But, my Lords, the beauty of Winchester is not the only issue involved in this inquiry; because what we are witnessing in the disruption of the Winchester inquiry is nothing less than an attack on the rule of law. A properly constituted, legal, orderly inquiry procedure is being reduced to a shambles by a small group of mobile, determined and highly-organised wreckers. This is another symptom, albeit small, of declining respect for the authority of Parliament—which is, after all, democracy—and for the due processes of law.

1.44 p.m.


My Lords, the noble Lord, Lord Mowbray and Stourton, has used this occasion to make a strong attack on the behaviour of people who have been involved as objectors in the Winchester inquiry and has made some fun of the behaviour of the scholars of Winchester College, I think. But I cannot help thinking that the noble Lord is doing some disservice to the House because I should have thought that it was not in dispute that the procedure under which we conduct highway inquiries in this country has given rise to grave and serious dissatisfaction in many quarters, and in many quarters of authority, over a long period. Anybody who has been engaged as I have from time to time, in acting for people in the conduct of an inquiry, in acting for an objector or for others in, inquiries of this kind, must be aware of the fact that at almost every inquiry of this kind the gravest doubt is being expressed by the people taking part in it as to the impartiality of the procedure. If it be a fact, as it is a fact, that we have had these scenes of violence in parts of the country and protests against the inquiry itself, then I suggest the lesson we should learn is not to read lectures to people about behaviour in public but to inquire whether there is indeed any basis for the complaints these people make.

I would suggest that there is very ample ground for objections to the way in which we conduct these highway inquiries today. I think that that dissatisfaction derives from two factors. These have already been referred to by the noble Lord, Lord O'Hagan, but I beg leave of the House to refer to them again. The first factor is this. All too often, the matter which is being investigated at these highway inquiries, the proposal they have before them, is a proposal made by the Department of the Environment itself. In other cases, the Department of the Environment appears in support of a scheme or a plan proposed by a local highway authority. On those occasions the Department of the Environment instruct their own counsel and solicitor, they call their own witnesses in support of the proposal and they present their case to an inspector who has been appointed by the Secretary of State for the Environment.

Is it really unreasonable that objectors to that scheme should think they are in front of a " set up " court, that they are not going to have a fair hearing? If the promoters of the scheme, the judge or inspector who is going to make his report to the Secretary of State for the Environment, the counsel, the solicitor who presents the case and the witnesses called all come from the Department of the Environment and, eventually, when the inspector reports he reports to the Secretary of State for the Environment on his own scheme, is it in any way surprising that people should regard that as a " fixed " court and feel that they are not going to get a impartial hearing for their case?

The second thing that is discovered by the people who seek to object to proposals of this kind at highway inquiries, is this; they are not allowed, first, to challenge what are called the general Government principles. I will revert to that in a moment. The second thing they find out—this is what the noble Lord, Lord O'Hagan, said earlier—is that they are obliged to confine their attention to a short strip of road between two fixed points A and B determined in advance and they are precluded officially from making any inquiry into the need for that road in the wider context of the Government transport policy.

The third thing that they find out is that, under present procedures, objectors on amenity grounds, objectors who are not statutory objectors, can be heard at all by the inspector only at his discretion. Is it surprising that people take a rather adverse view of inquiries of that kind? As to the limitation that they are only allowed to look at a few miles of road between A and B, I was engaged on an inquiry in the earlier part of 1974 and the report on this from the inspector of the inquiry was produced only very recently. That planning inquiry concerned a proposal by the Department of the Environment to run a dual carriageway road virtually up to motorway standard through the heart of the City of Plymouth. This inquiry, I may say, as might be expected, lasted for no less than about 34 working days. As your Lordships may suppose, there were forceful objections against the policy of the Department of the Environment in driving a dual carriageway road right through the heart of the city, when the general policy of the Government throughout the country is to by-pass cities and villages by means of motorways and the like.

We were not allowed to investigate the general policy under which that proposal was being made. Strictly speaking, we were not entitled to inquire as to what else the Department of the Environment was going to do in the counties of Devon and Cornwall in order to meet transport needs. But what did emerge—and it is not uninteresting in this connection—was that this building of what was virtually a motorway road through Plymouth and joining up with the Tamar Bridge was part of a general trunk road running from London to Penzance. The road, when it met the Tamar Bridge, would be carried on right down to Bodmin and eventually to Land's End.

We sought to challenge the need for this road, and the answer we got from the Department of the Environment was that this was tied up with a proposal of the Department to build a similar dual carriageway road between the same two points; that is Exeter and Bodmin. Therefore, under their plan there would be eventually two roads of dual carriageway width, one running to the North of Dartmoor through Launceston to Bodmin, and the other one going through the heart of Plymouth and the Tamar Bridge and down to Bodmin: in other words, to the same two points.

We sought to argue that this was a most prodigal waste of resources—to build two roads between the same two points—and that the Government ought to make up their minds whether they were definitely going to go for the Northern route, in which case the Southern route would not be necessary at all. But we were told that we could not examine at such an inquiry the propriety and wisdom of building two such roads between the same two points. We were not allowed to challenge that in any way: its wisdom had to be accepted.

So these are now the serious limitations imposed on inquiries of this kind. As has been rightly pointed out, what is proposed here in these rules is to give statutory form to what have been the procedures in the past. What is disturbing to me and to others holding these views is that these rules, far from mitigating the faults of the present situation, far from extending the opportunity for objectors to make their case known and far from seeking to give a greater appearance of impartiality to inquiries of this kind, give the imprimatur of statutory sanction to the existing procedures which are so unsatisfactory.

The noble Baroness will forgive me if I have got it wrong, but, as I understand these rules, they represent merely the reproduction of existing practices and offer no mitigation of the faults of those practices as they stand today. Under these rules, the inspectors will continue to be the appointed persons of the Secretary of State. The Secretary of State will continue to be represented at the inquiry by counsel and solicitor. The Department of the Environment will continue to present the case through its witness or witnesses in favour of the scheme which the Department is itself promoting, and the only persons who will be allowed to appear at these inquiries as objectors are statutory objectors. Those objectors who object upon general grounds of amenity will he allowed to appear and be heard only at the discretion of the inspector. Finally, if objectors seek to cross-examine witnesses for the Department of the Environment, they will be allowed to do so only if they confine themselves to matters other than matters of Government policy.

As the noble Baroness will know, there is no definition in these rules as to what is meant by " public policy ". The matter is dealt with in section 6(2), where it says: The Secretary of State shall make a representative available at the inquiry to give evidence in elucidation of the statement referred to in rule 5"— that is the preliminary statement they have to give out before the inquiry starts … and such representative shall be subject to cross-examination to the same extent as other witnesses, so, however, that the appointed person shall disallow any question which in his opinion is directed to the merits of government policy ". If you want to know about " Government policy " you will not find any help from those rules. You have to look at the document to which the noble Lord, Lord O'Hagan, referred earlier: that is the Notes for the Guidance of Panel Inspectors, issued by the Department of the Environment in 1974. I should like to read, if I may, from paragraph 1.24 of those notes of guidance, because they are still valid and operative. What has happened is that these rules have been superimposed upon those notes of guidance. That paragraph reads: The policy statement circulated to objectors 28 days before the opening of the inquiry defines as follows the policy issues for which Ministers are directly answerable to Parliament and which, in consequence, are inappropriate for consideration at local inquiries ". They then went on to say that these matters of public policy included four categories. Before going on to read out those four categories—because I shall criticise one of them but not the other three—may I concede at once that of course it would be intolerable if, at every local inquiry into a proposed highway, it was open to objectors to raise overall matters of transport policy. I would concede at once that it would be intolerable if these inquiries were to be extended into eternity; but my interpretation of the limitation put upon objectors by these notes of guidance is that they include one factor that on no account should be excluded from such examination.

The first of the four categories is: the allocation of resources between different transport modes ". By that, I take it, is meant roads, railways and so on. I accept that that, as a principle, is obviously right. The next one is the objectives of the programme: … to develop and maintain a national network of motorways and other trunk roads between the major centres of population ", and so on. In other words, you cannot challenge the general network policy which has now been part of the Government's programme for 15 or 20 years, and I accept that that is a reasonable limitation. If I may, I will now quote the fourth, because this is acceptable. It states: … the design standards which are appropriate to various ranges of traffic volumes and speeds ". What that means is that the Ministry of Transport, or the Department of the Environment, have laid down certain standards for motorways, dual carriageways and so on, and they rightly insist that any road should he up to the standard which is applicable. I think that those are all reasonable matters which can be reserved to Parliament and to the Department.

The one which I criticise is the third, which states that you cannot cross-examine upon: the general assumptions made by the Government about the availability and price of fuel and the broad effects which these factors will have on traffic growth ". I suggest that this raises matters of an entirely different character from matters of policy. When you attend an inquiry of this kind, you are confronted with all kinds of extrapolations, forecasts and projections by the Department of the Environment as to what the fuel situation will be in the year 1980 and what the growth in the traffic flow in different places is likely to be. What you are confronted with is not a declaration of policy; you are confronted with the Government's guess as to what will be the facts in 10, 12 or 15 years' time. That is a consideration of an entirely different character from a matter of Government policy.

I suggest to the House that the comment which was made by the House of Commons Expenditure Committee in its 1974 Report on Public Expenditure on Transport was right. What they said was this: … the right to challenge the need for a transport scheme at a public inquiry should be firmly established. It should allow consideration … of the traffic forecasts which underline proposals ". So there you have a direct conflict between the Select Committee considering this matter, and what these rules are now trying to impose upon us.

If I may revert to my experience at that road inquiry in Plymouth two years' ago, we were presented with a multiplicity of forecasts and extrapolations as to what would be the traffic flows in the years 1980 and 2000, coming from all kinds of different sources. Plymouth City Council had their own extrapolation which differed fundamentally from those of the Department of the Environment; and, indeed, one witness from the Department of the Environment was in favour of one extrapolation, while another was in favour of a different one. It is absolutely intolerable that objectors to a scheme who say, " There is no need for this " should not be allowed to challenge not the policy, but the assumptions of fact which the Department of the Environment choose to make.

I am sorry to go on so long, but in my view the noble Lord, Lord O'Hagan, has today, at the fag-end of the week, raised a matter of considerable public importance. I conclude by making three suggestions. I fully support what has been said—and this is, indeed, the nub of the matter—by the Franks Committee and by the noble Lord, Lord O'Hagan, that the only way in which one can make it clear to the ordinary objector that he is not appearing before a court which has been fixed, the only way he will feel that he is getting an impartial hearing, is by transferring the making of rules of this kind and the whole control of the procedure at highway inquiries to the Department of the Lord Chancellor.

This was specifically considered by the Franks Committee and I should like to quote to the House what they said, which was: Some may say that (transfer of control of inspectors to the Lord Chancellor) would be a change in name only, but we feel no need to argue the point because we are convinced that here the appearance is what matters. This change, by no longer identifying the inspector in the minds of the objectors with the Department of the deciding Minister, would emphasise impartiality at an important stage of the adjudication and thus do much to allay public misgiving. We see in this no obstacle to the inspectors being kept in close contact with developments of policy in the Departments responsible for the subject-matter of the enquiries ". So the Franks Committee fully considered the matter and came to the conclusion that there was no objection to transferring it to the Lord Chancellor, and much would be gained. That recommendation is wholly ignored in the rules which we now have in front of us.

Secondly, it must be established, in my submission, that serious objectors upon amenity grounds who do not happen to be statutory objectors—and I shall not weary the House with the distinction between the two—must be allowed to appear before these tribunals and inquiries as of right, and not at the discretion of the inspector. The third requirement is that there should be a new definition of what is Government policy and what is excluded from consideration at such inquiries; those matters upon which objectors have no right to cross-examine the representatives of the Ministry. Those are three ways in which I suggest that we can achieve a substantial improvement in our present procedures, and get rid of many of the dissatisfactions, and much of the disapproval, which have been expressed at inquiries of this kind.

I cannot understand why, when this review of these procedures is to take place, the Government should have thought it necessary to bring forward these regulations at this stage. They do not add anything to the present situation. They merely prejudice the situation by preempting the decision of the review committee. There was no need to produce these regulations in order to bring some kind of order out of chaos. The chaos is there already and these rules merely confirm it. I cannot understand why the Government should have taken it into their heads, unless there is a plot in the Department of the Environment to try to get these rules given statutory force before the review can take place. The noble Baroness, Lady Stedman, shakes her head at that, and of course I would not expect her to admit it. But, for the life of me, I cannot understand why it was necessary to produce rules which are merely a reproduction of the procedures which exist today, unless there was some other and more sinister purpose in the minds of those who did it.

I hope that the noble Baroness will give full consideration to this proposal for the annulment of this order, and I respectfully say to her that if it were annulled nothing would be lost. We should just be where we were before, only the review committee would have an opportunity of considering the matter without prejudice, and without their decision having been pre-empted in advance.

2.9 p.m.


My Lords, this is a most important subject. We should be grateful to the noble Lord, Lord O'Hagan, for having given us the opportunity of discussing it even if, as the noble Lord, Lord Foot, said a moment ago, it is at the fag-end of a very heavy week's work. I think it is a scandal that a matter of this intense importance should be dealt with in this way.

The noble Lord, Lord O'Hagan, quoted a number of pertinent remarks from a speech of the noble Lord, Lord Molson, who has given a great deal of attention to problems of this kind over the last few years and who has also given much valuable advice to your Lordships' House. The noble Lord, Lord Molson, is President of the Council for the Protection of Rural England which is particularly concerned with this matter and has already indicated to the Department of the Environment that it is very worried by some of the proposals.

I am afraid that the noble Lord, Lord Foot, is quite right in saying that an attempt is now being made to give statutory effect to a set of rules which apply only to one type of inquiry when they are not in a state in which statutory effect ought to be given to them. Your Lordships ought to throw out this set of rules until the Government have thoroughly looked at the matter and established the situation in which rules should be put upon the Statute Book.

In both this House and another place we have been arguing for weeks about the Police Bill because the community as a whole realise that the Bill is needed to prevent the police from being judges in their own affairs. The situation here is exactly parallel. The inspectors are appointed by the Secretary of State for the Environment and have the power to tell counsel that they must not cross-examine witnesses along certain lines because it would be contrary to the policy of their chief. Your Lordships are aware that the citizens of this community are beginnng to get fed up to the teeth, to use a colloquialism, with this kind of conduct. Why do you stop a man from cross-examining a witness? That is how the cross-examiner shows the inherent weakness and folly of the matter which is being examined by the tribunal.

Time after time the noble Lord, Lord Foot, gave us examples. There is the particularly famous or, if you like, infamous case of the A606 inquiry in the Lake District which lasted for well over a month. The proposal was that the A606 trunk road should be expanded. Now it is in the process of being expanded, and some of the most beautiful scenery in the British Isles is being ruined before people's eyes as they go along those roads. This was Ministry policy. Distinguished Queen's Counsel were at the Penrith inquiry and put forward the view which amenity societies were saying was wrong and which afterwards an important Commission under the noble Lord, Lord Sandford, proved conclusively to have been wrong all the way through. By that time, however, the rocks were being blasted and the new road was in the process of being made.

I do not believe that this kind of situation ought to be allowed to develop and the best way for your Lordships to prevent it developing is to say, " We are not going to give the effect of Statute to these rough and tumble rules which have been worked out in a hit and miss kind of way over the years". Then the Government would have to go back and start again.

Would not it be a good idea to ask the noble Lord, Lord Franks, who has just retired from his Oxford college and who looked at this matter in the most valuable way quite a long time ago now, to look at it again and examine the whole situation? It is well over 10 years since this happened and to a large extent it happened because I well remember the Lord Chancellor of the day telling me that some of the proposals that I was making, which the Franks Committee afterwards thoroughly endorsed. were not administratively practicable. That is the kind of way in which Whitehall evades these essential and sensitive problems which it ought to be tackling in a much more effective way.

The Council on Tribunals has been referred to and a very pertinent observation was made about it by the noble Lord, Lord O'Hagan. However, it does not appear, although I hope it will appear in the Government's speech at the end, but I shall be surprised if it is a satisfactory appearance, that the Council on Tribunals has ever been given the opportunity to look at this question. How can we possibly allow these rules to become part of the Statute Law of the country when a committee which has been given the job of reporting on these kind of problems has never had the matter properly put before it ? Enough has been said this afternoon to blow these rules out of your Lordships' Chamber and I hope that that line can be followed.

2.16 p.m.

Baroness STEDMAN

My Lords, first of all I want to express, on behalf of my noble and learned friend the Lord Chancellor, who made these rules of procedure, his regrets that he is unable to be here today to address you on this Motion and to say that, for my part as representative of perhaps the major user interest in the Rules. I am grateful to the noble Lord, Lord O'Hagan, for drawing attention to them, and to the Lord Chancellor for this opportunity to explain to you something of the history and background which led to the making of these formal rules of procedure, since I think that it might be helpful to your Lordships. I have a feeling, though, that I am batting on a somewhat sticky wicket.

The Rules prescribed the procedures to be followed at local inquiries into schemes and orders under the Highways Acts 1959 to 1971 relating to the construction or improvement of motorways and other trunk roads or classified roads, including the construction of road bridges over, or tunnels under, navigable water courses. The noble Lord, Lord O'Hagan, has pointed to some respects in which he considers the Rules to be deficient and I will come to these later on.

As your Lordships know, we are now reviewing the procedures generally in connection with these inquiries, in consultation with the Council on Tribunals, and I expect that we shall find some scope for improvement notwithstanding that the present procedures are well established and have been reasonably successful over a good number of years. But I do not think that we should undervalue the basic strength of the present arrangements simply because we can see room for improvement. I would suggest to your Lordships that it would be in nobody's interest to discard the present rules in a desire for perfection, and with them the very important safeguards which they offer as of right to the ordinary objector in putting forward the arguments which he feels the Secretary of State for the Environment ought to take into account in reaching his decisions on particular proposals under inquiry.

I have gained the impression that some of the criticisms which have been made today, and on some other recent occasions in the media and elsewhere, seem to be based on a misunderstanding of the intended purposes of highways inquiries. Under the provisions of Section 7 of the Highways Act 1959, the Secretary of State is given the responsiblility for keeping the national system of trunk roads under review and, for extending, improving and reorganising it as he considers necessary, taking into consideration the requirements of local and national planning, including the requirements of agriculture. This is a responsibility which he must exercise himself. He is certainly not authorised to delegate it to any inspector he appoints to hold a local inquiry.

Contrary to views which appear to be fairly widely held, these Highways Act inquiries are essentially a part of a progressive administrative process by which the Secretary of State becomes fully informed on all the considerations which he should take into account in reaching his decision. He takes into account the requirements of local and national planning, and of agriculture and navigation, by direct consultations with the other Government Departments, local authorities and other statutory bodies concerned, and other organisations with an important general public interest in his proposals, before he publishes the proposals in the form of draft schemes or orders and lays them open to objection by the public at large.

The purpose of the local inquiry is to consider all the objections which are not withdrawn, to provide objectors with a reasonable opportunity to put forward their views and to establish the facts about the more local considerations which, within the framework of national transport policy, the Secretary of State should take into account. The Secretary of State has discretion to dispense with an inquiry where there are no unwithdrawn objections from persons specified in the First Schedule to the Highways Act 1959 where he is satisfied that in the circumstances of the case the holding of such an inquiry is unnecessary. After considering any objections to the proposed order which are not withdrawn and, where a local inquiry is held, the report of the person who held the inquiry, the Secretary of State may make or confirm the order either without modification or subject to such modifications as he thinks fit.

The noble Lord, Lord O'Hagan, and other noble Lords who have spoken have referred to the possibility of the appointment of inspectors by the Lord Chancellor. At present the position is that the inspectors for the trunk road inquiries are selected from a fee paid panel by the Secretary of State with the concurrence of the Lord Chancellor. The suggestion that inspectors who conduct these inquiries should be under the control of the Lord Chancellor's Office has been considered from time to time and when the matter was last reviewed in 1972 the present arrangements were endorsed by the Council on Tribunals. There would be practical difficulties in transferring the panel as suggested. It might, for example, foster the impression that the process is judicial when in fact the inspector's task is to report to the Secretary of State, who must take the final decision, and if the report is to be useful to the Secretary of State in arriving at the right decision the inspector must be aware of, and take into account, the Secretary of State's overall policies. This would still require frequent contact between those responsible for the panel and the Department of the Environment, and for this reason it might not be accepted for any length of time that the change, if we were to make it, was more than just one of name.

The important considerations are the calibre, the competence and the professional integrity of the individual inspectors, and it is difficult to see how this would be affected by altering the arrangements for appointing them. Nevertheless, it is one of the points that we shall be looking at again in consultation with the Council on Tribunals, as part of the review procedures, and I can assure your Lordships that it will be given careful consideration.


My Lords, before the noble Baroness leaves that point, I have lost my copy of the rules because they have gone up to the Hansard Office, but my recollection is that in the definition clause, which I think is clause 2, in the definition of terms it is said at the very beginning—I think it is on the right-hand side: The ' appointed person ' means a person appointed by the Secretary of State ".

Baroness STEDMAN

Yes, my Lords.


My Lords, if it is correct that those persons for the future—and, indeed, I gather in the past—have in fact been selected by the Secretary of State from a panel produced by the Lord Chancellor, would it not be proper to put it in the definition clause? According to these rules as they stand the Secretary of State has not got to consult with the Lord Chancellor at all. That is what the rules say. It means he can appoint anybody he likes.

Baroness STEDMAN

My Lords, I take the noble Lord's point but I am sure the appointments that are going on under these rules that are before us now are going to be made in the same way as they have been hitherto, with the concurrence of the Lord Chancellor. We have no desire to depart from that and I will draw the point to the attention of my right honourable friend.


Too late, my Lords.

Baroness STEDMAN

My Lords, we are going to have some reviews and it can be taken into account when the review is made.

Successive Ministers of Transport have taken the view that the intended purpose of the inquiry would be most likely to be achieved in a relaxed atmosphere which would encourage the ordinary objector, whose property was likely to be affected by the road proposals but who did not know much about the technicalities of road construction or design, to present his arguments in his own way without having to comply with any formalised procedures. The Ministry of Transport, now part of the Department of the Environment, in carrying out the pre-inquiry and post-inquiry procedures, and the inspector in conducting the inquiry, observed the spirit of the rules of procedure which had been made by the Lord Chancellor for other administrative inquiries, notably the Planning and Compulsory Purchase Order inquiries which are sometimes taken concurrently with Highways Act inquiries. These arrangements worked satisfactorily for many years, although the absence of formal rules was the subject of complaints from time to time to the Lord Chancellor's Office and the Council on Tribunals.

As I have explained, the Secretary of State's resistance to the adoption of formal rules was conditioned by a desire, in the interests of the objectors, not to encourage the development of these administrative inquiries on legalistic lines. But with the increasing complexity and length of major motorway inquiries in the late 1960s and early 1970s, and an increasing disposition for the employment of Counsel, the proceedings inevitably became more formal and in May 1975 the Secretary of State came to the conclusion that the balance of advantage lay in having formal rules for these classes of inquiries. After consultations with other Government Departments and the associations of local authorities with responsibilities for similar inquiries, and also the Law Societies and Council on Tribunals, the Lord Chancellor was invited to exercise his discretionary powers under Section 11 of the Tribunals and Inquiries Act 1971 to make statutory rules of procedure for these inquiries.

These are the Highways (Inquiries Procedure) Rules which are embodied in the Statutory Instrument 1976 No. 721 which has been lying in both Houses since 18 May and came into operation on 10 June. They are based on the same principles as the formal rules which have been made for other administrative inquiries, and in consequence largely formalise existing procedures. Where changes have been made, these have been in the interest of the objectors; for example, in the obligations of Government Departments to make witnesses available to attend the inquiry and in giving rights to objectors, after the inquiry, to inspect any documents, photographs or plans appended to the Inspector's report.

The particular points which the noble Lord, Lord O'Hagan, has given as his reasons for this Motion do not involve any change in established practice. In making his first point, which is essentially about the extent to which the need for a road is debatable at a local inquiry, he no doubt had in mind the provision in Rule 6 sub-paragraph 2 of the Rules that the inspector shall disallow any question at the inquiry which, in his opinion, is directed to the merits of Government's policy. I went into this matter at considerable length in this House in response to a Question by the noble Lord, Lord Molson, on 25 February, and I do not think that I can usefully add to what I said on that occasion except to point out that this is a provision which is well established and appears in the Rules of Procedure which have been made for all other forms of administrative inquiry.

I think that no one would dispute that fairness requires that those whose individual rights and interests are likely to be affected by particular road scheme should know in good time before the local inquiry, the case which they will have to meet; and, as the final decision is that of the Secretary of State who must take into account considerations of public policy, some statement indicating the policy relevant to the particular case should also be available to objectors. This was the view expressed by the Franks Committee on Administrative Tribunals and Inquiries in 1957, and endorsed by the Council on Tribunals on several subsequent occasions.

It is argued that objectors so informed would be able to direct their arguments not only to the merits or demerits of the particular case, but also to other considerations likely to weigh with the Secretary of State. On the other hand, as the Franks Committee and Council on Tribunals also recognised, broad policy is something over which Ministers are answerable to Parliament and it is not helpful to objectors, inspectors or the Secretary of State that the whole spectrum of national policy should be automatically open to debate in the restricted forum of a local inquiry. Within this constraint, the Secretary of State does his best to satisfy the legitimate needs of objectors by circulating with the detailed statement of case required under the Rules, a separate explanation of his trunk road policy.

Departmental witnesses are available at the local inquiry to explain the background of this national policy and to discuss its application to the particular scheme, but not to enter into debate about the merits of the national policy itself. But while this conditions the contribution which the Departmental witnesses can make at the inquiry, it does not restrict the nature of objections that may be made by objectors to the proposals. It remains at the discretion of the inspector as provided for in the Rules, to hear any argument he thinks fit.

On the other hand, the detailed statement of case required to be served on objectors under Rule 5 of the Rules of Procedure, embraces all the considerations which the Secretary of State wishes to put forward at the inquiry, and this includes the traffic and other local considerations relevant to the need for the road. These matters are certainly debateable at the local inquiry and the Departmental witnesses are available for cross-examination on them. I hope that this will reassure the noble Lord on this particular point he has made.

My Lords, in response to the noble Lord's further point about the definition of statutory objector, for the purposes of these Rules of Procedure, and the relationship with the Highways Act 1959, perhaps I should explain that this definition of " statutory objector " lists, in effect, the statutory bodies and persons (that is to say, persons with an identifiable property interest in the proposals) who are referred to in the First Schedule to the Highways Act 1959 as having the right to be served with documents and to be heard at the inquiry; and in addition, the definition endeavours to give some precision to the reference in the Schedule to any other person appearing to the Minister (now the Secretary of State) to be affected by the proposals.

This precision is given by listing in the statutory definition, owners, lessees and occupiers of land likely to be required for the execution of the highways works and persons who, in the judgment of the Secretary of State, are likely to be entitled to compensation under Part I of the Land Compensation Act 1973 in respect of the use of any of the highway works. It is true that organisations or parties without an identifiable direct interest in the proposals are not included in this definition. If we were to depart from this legal line of demarcation it is difficult to know at which point we should stop. I can assure your Lordships that this is no impediment to objectors at large since it is the established practice that all persons who duly object to the proposals, whether or not statutory, and who appear to have an interest in the matter, are able to make their objections.

Representations have already been made on the question of the review to the Lord Chancellor's Office and the Council on Tribunals. They included over 40 suggestions for improving procedures. Obviously, these need to be very carefully considered. We have received representations from the Council for the Protection of Rural England, the Conservation Society, the Civic Trust, the Friends of the Earth, Transport 2000 in the North West, the Greater Manchester Transport Action Group, the Cambridge Civic Trust, the Aire Valley Preservation Society, among many others. I would hope that the noble Lord, Lord Foot, will not feel at all inhibited, and that he will also make the very thorough representations he has made in this House today so that they can be considered at the same time.

My Lords, those are areas following from the internal review we have started following the Statement of my honourable and learned friend the Minister for Planning and Local Government. He made his announcement, following criticisms of the information and facilities provided to objectors at these inquiries. He said then that in consultation with the Council on Tribunals he would see what could be done to improve the intelligibility of the information, and to make the arrangements more generally acceptable to all concerned. The provision of the present Rules of Procedure is the first important step in this direction, and other ways of improving the arrangements are also being explored. I cannot give your Lordships any firm indication of when the review will be completed, or what the outcome might be. That will depend on the consultations with the Council on Tribunals and any other consultative arrangements which might be agreed. But it is always possible that a review of this sort will throw up some matters which have a bearing on the present rules, and the Lord Chancellor has made it clear that he will amend the rules as necessary when the review has been completed.

So the position today is that there are now well-precedented statutory Rules of Procedure in operation for inquiries into schemes and orders made under the Highways Acts. These meet requests which have been made to the Council on Tribunals over a number of years by organisations closely involved in the inquiry system. They bring the highways inquiries into line with other major administrative inquiries, by providing a uniform framework for dealing with matters in connection with them, and I would suggest to your Lordships that this is manifestly in the interest of all concerned. Furthermore, the arrangements are flexible. As the Lord Chancellor has made clear, the rules will be adjusted as necessary in the light of experience.

It is inevitable that we have to have these public inquiries. Like the noble Lord, Lord Mowbray and Stourton, I very much regret the way in which the inspectors at some of the recent inquiries have been hampered in doing their job. But it is necessary that we have the widest possible consultation. It is necessary that all those who want to object legitimately have the right to object. On those grounds, I would ask the House, in the light of my assurance that the rules will be amended as the review proceeds, not to accede to the Motion standing in the name of the noble Lord, Lord O'Hagan.

2.38 p.m.


My Lords, I should like to thank those noble Lords who have spoken in this debate, and in particular, if I may do so without impertinence, I should like to thank the noble Baroness who has just replied for the Government for dealing with this question at such short notice. I found what she had to say in reply to the various questions put by other noble Lords and myself interesting but I can hardly say that I found her reply very satisfactory because—and perhaps this was understandable—the noble Baroness did not address herself to the basic point. The basic point is that we have a clash here between justice and the interests of the administrative convenience within Government Departments.

The noble Baroness illustrated this very aptly, because she said that before these rules were introduced, consultations had taken place as to whether they were necessary. The noble Baroness listed people who had been consulted: other Government Departments, local authorities—but did the list go on? Did the list include amenity bodies, or the National Trust? Did it include the Council for the Preservation of Rural England? Of course not.

The rules of the inquiries and tribunals which we are discussing today obviously raise points of both local and national importance. It is manifestly absurd for every local tribunal or inquiry to raise matters of Government policy, whether or not the definition of " Government policy could be altered to make it more sensible as proposed by the noble Lord, Lord Foot. But the justification that the noble Baroness gave for maintaining the status quo was not that the procedure itself needed looking at, but that it was impossible, however you amended the the procedure to make it sensible, for those who are objecting to some local proposal to raise questions of national importance. That is what is wrong: that the procedure which these rules are now fossilising is itself wrong, and what is wrong cannot be resolved merely by putting rules on the Statute Book.

If, as is likely from time to time, major questions of national and even international interest are likely to crop up at local inquiries of various sorts—and this is bound to go on happening; however many policemen are brought into these inquiries, people will want to go on raising these questions and feel dissatisfied when they cannot—it is not enough to say that the rules are flexible, that they can be looked at from time to time and we have set up an inquiry to make sure this is done. What is necessary—and the Department must surely take this on board—is that people concerned with the implications of national transport policy for areas of special beauty or with particular concerns about the effects on their own particular environment must be able to object at a stage at which their objections can be taken into account, before the juggernaut of the national transport policy crushes them and their views without any consideration being given.

My Lords, I do not intend to press this Motion today because it would really do little good to do so; the rules would continue to be applied whether or not these were rejected by your Lordships. But I suggest, in withdrawing my Motion, that your Lordships continue to press the various empires within the Department of the Environment to examine what they are doing between themselves, to make sure that in the evolution of national transport policy they are not merely consulting with other Departments, not merely consulting with the local authorities; that they seek to devise, and make sure it is implemented, some form of inquiry that enables the concerns that motivate people who have been protesting, perhaps too violently, at recent inquiries to be expressed in a reasonable way, and with time for those expressions of view to be considered seriously. May I conclude by again thanking everybody who has taken part in this debate, and warning them that I may call on them to take part in others. I beg leave to withdraw the Motion.

Motion, by leave, withdrawn.