Memorandum submitted by Friends of the Earth
The purpose of this note is to comment on a number of points made by Ministers in oral evidence to the Public Bill Committee on 10 January 2008. We are providing this note because we are concerned that there is growing tension between the stated desire of Ministers' to enhance public involvement and the detailed impact of the Bill which clearly reduces proper public participation. The contents of this note are extremely important in defining the nature of the reduction in public's rights to participate; a reduction that we feel will inevitably make the Bill illegitimate and unworkable. We are particularly concerned that Ministers' did not always provide a complete description of the impact of the Bill, particularly on rights and accountability. We are copying this note to the Ministers' offices in order that they can comment should they so wish.
The Minister has made clear in the Planning Bill Public Bill Committee that opportunities for public participation are being enhanced. In fact they are being significantly reduced:
· There is no right to be heard in the pre-application consultation process
· There is no right to appear, cross-examine and call witnesses in the new examination regime
· The IPC can allow such practices but this is solely at its discretion
This is a major reduction in the rights which currently exist in many aspects of the process but in particular for those whose homes may be subject to Compulsory Purchase Orders.
Issues for clarification
Effect of the Bill on people's right to be heard
Our previous evidence made clear that a right to be heard is a vital aspect of the current procedures for many major projects and this right is best represented by the 2005 TCPA Major Infrastructure Inquiry rules. The right to be heard allows for cross-examination and crucially is not in the gift of the examining body. There were a number of important Ministerial statements on people's rights which emerged under questioning from the Committee.
Right to be heard in the pre-application process:
'There is a new requirement, as part of the pre-application process that the IPC will oversee, which we have examined with witnesses over the last two days, and which will include rights to consultation and to be heard.'
The Bill does contain provisions on consultation (see Section 42) but absolutely no right for individuals to be heard in the pre-application process - plainly it is an essential criteria of the right to be heard that a person can make oral representations to the decision-maker. Not only is there no right to be heard, there is also no arena for such rights to played out. The obligation for developers to consult the public is contained in the Bill but there are no detailed provisions on how this is to happen. We assume the Minister was simply mistaken on this matter.
Right to be heard at inquiries:
At Q 367 the Minister said:
'To be clear, people who are subject to compulsory purchase orders as a result of this provision will have exactly the same rights that they have at present.'
Under the law as it stands, an owner, occupier or lessee of land to be acquired under a Compulsory Purchase Order has a right to be heard orally before a person appointed by the Minister (in practice a Planning Inspector) (section 13A, and Schedule 1, para 4A Acquisition of Land Act 1981). The acquiring authority and any other person the Minister thinks appropriate will also then have a right to make oral representations.
Under the Bill the default position will be for the examining authority (usually the Commission) to examine the application on the basis of written representations only (Clause 82). The proposed position therefore is - in direct contrast to the current position - that the examination is not to be by way of an oral hearing.
That position is subject to two points:
1) the Commission has the power to allow "oral representations about a particular issue [...] at a hearing in order to ensure that an interested party has a fair chance to put the party's case." (Clause 83); and
2) the requirement for the holding of an open-floor hearing (Clause 84).
The immediate differences therefore are that:
a) A guaranteed right to an examination by way of oral hearing is replaced by a discretion on the part of the Commission with the normal position being that the examination will be by way of written representations only;
b) Even where the Commission exercises its discretion so as to allow an oral hearing that hearing may be limited to oral representations about "a particular issue" rather than an oral hearing into the entire proposal. The point is significant. The effect may well be that issues covered orally will be narrower than the issues that would usually be covered at a Compulsory Purchase Order hearing/inquiry (such as the 'need' for the scheme).
c) The only guaranteed oral hearing is in respect of the ''open-floor" session. Importantly, the Planning White Paper referred to the '"open floor" stage where interested parties could have their say about the application within a defined period of time' (para 5.34).
It was therefore not correct to say that people subject to compulsory purchase "will have exactly the same rights as at present".
Cross-examination and other associated aspects of the right to be heard
The discrepancy between the current position and the proposed position is even more acute in the context of associated aspects of the right to be heard, such as cross-examination.
At Q 371 on the issue of cross-examination the Minister said:
John Healey: ... 'Just to be clear, if I may, this Bill does not abolish the right to cross-examination nor the practice of cross-examination. What it does is to set out a way of proceeding for the IPC that aims to probe, test and assess the evidence through direct questions rather than through cross-examination, particularly the hiring of expensive third hands, as I mentioned earlier. However, exceptionally-where it is necessary-if either the adequate testing of any representations or the representation of interested parties requires that type of cross-examination, there is provision in clause 85 for that to happen, and that can be secured at the discretion and decision of the commission.
There is also scope in the way that the IPC will proceed for any interested party at the point at which they give evidence on a specific issue as part of the proceedings to counter the evidence of other parties by drawing in expert witnesses who can make those points of view.'
Robert Neill: Another point that interests me is what you said about consultation. We discussed that a lot, but will you help me with one issue? In what respect will the rights of people who would be rule 6 parties under the 2005 rules be enhanced or reduced under the new regime of National Policy Statements? How will their rights of consultation change?
The Compulsory Purchase (Inquiries Procedure) Rules 2007 were made by the Lord Chancellor on 15th December 2007 and come into force on 28th January 2008. An owner, occupier or lessee objector is entitled under the rules to be represented by counsel, solicitors or any other person (rule 14(4)), call witnesses and cross-examine (rule 16(3)). The Inspector has a discretion to allow other persons to cross-examine. The Inspector may refuse to allow oral evidence or cross-examination which is irrelevant or repetitious.
A person whose land is to be acquired compulsorily has a right to be heard at an oral hearing and, in an inquiry, a right to (a) call witnesses and (b) cross-examine other parties.
Under the Planning Bill an owner, occupier or lessee subject to compulsory purchase will not be entitled to cross-examine any person (clause 85). Rather, the Panel or Commissioner have a discretion to allow cross-examination but this is subject to the restrictive terms of clause 85(7):
'the Examining authority must apply the principle that any oral questioning ... should be undertaken by the Examining authority except where the Examining authority thinks that, exceptionally, oral questioning by an interested party is necessary in order to ensure-
(a) adequate testing of any representations, or
(b) that an interested party has a fair chance to put the party's case' (emphasis added)'
It does not seem to be envisaged that an open floor session will enable an affected landowner to call expert witnesses and to cross-examination the promoter's witnesses. If that is the Government's intention they should make that clear.
Consequently, the rights of those subject to compulsory purchase to be heard are reduced in this way:
(a) presently they are entitled to be heard and in practice this is in an inquiry
(b) in an inquiry they presently have a right to cross-examine; under the Planning Bill, there will be a tightly restricted discretion to allow cross-examination;
(c) at present, they can cross-examine all the acquiring authority's witnesses on all relevant matters; under the Planning Bill, any cross-examination appears intended to be confined to hearings on particular issues;
(d) at present, they have a right to call witnesses of fact and expert witnesses and to employ advocates; that right is not explicit in the Planning Bill and it appears that the open-floor hearing is not intended to allow interested parties to do so.
The difference on the right to cross-examine is substantial and critical. Ms Kelly's first answer to question 369 was incorrect. Mr Healey's answer to question 371 demonstrated how the right to cross-examine is replaced by tightly confined discretion to allow cross-examination.
Rule 6 Parties
Mr Neill asked whether the rights of rule 6 parties (i.e. under the Town and County Planning (Major Infrastructure Projects Inquiries Procedure) (England) Rules 2005) were affected (Q369 - see above). Ms Kelly replied that their rights were unaffected.
Under rule 6 a person may register their wish to take part in the inquiry. Those entitled to appear include a major participant (that is, a person registering who says he is likely to want to be represented formally and to play a major part in the inquiry), any landowner or agricultural tenant on the application site, and any parish or town council for the area (rule 14). All those persons are entitled to call evidence. Major participants (who are effectively self-selecting) are entitled to cross-examine witnesses (rule 16) and the Inspector has a wide discretion to allow other persons to cross-examine.
Ms Kelly was therefore mistaken on this issue as those persons who have registered as major participants under rule 6 are entitled to cross-examine. Under the Planning Bill they would not have such a right. As a Rule 6 Party they would also have a right to call witnesses. It does not appear that there is any such intention in respect of 'open-floor' hearings. Certainly there is no provision for such a right on the face of the Bill.
Conclusion on right to be heard
The Ministers have stated to the Committee that the rights of Rule 6 parties and the rights of persons whose land will be acquired compulsorily will be the same under the Planning Bill as they currently enjoy. As the legislation is currently framed both of those statements are incorrect and both groups of persons will have their rights significantly eroded - in particular, though not exclusively, by the loss of their right to cross-examine.
If the Government wishes the new system to provide for equivalent rights as currently exist then a number of changes to the legislation are required. In light of the Ministers' statements as to their understanding of the system we are sure that they will raise no objection to such amendments as are necessary to give effect to their understanding of the proposed system.
The role of the Secretary of State - is it quasi-judicial?
At Q326 the Minister, John Healey stated:
'I have been struck by the observations of a number of witnesses whom we have heard over the last couple of days-and it is largely a misapprehension-about the accountability of Ministers in acting in the planning capacity. It has been acknowledged-quite rightly, because this is what happens-that Ministers who take planning decisions do so in a quasi-judicial fashion. Essentially, that means that the basis and the terms on which they do so are tightly prescribed by planning legislation. Ultimately, when one is concerned about accountability, that means that were I as a Minister to take a planning decision, I would not be accountable as a politician to Parliament, and I would not be accountable to Members of this House or this Committee for that decision; I would be accountable and challengeable through the courts to a judge. That is the reality of the decision-taking role of Ministers within the planning system.'
As the Courts have noted, it is a misnomer to describe ministers' roles as quasi-judicial. In reality ministers make administrative decisions, in which they are politically accountable and in respect of which they have to act lawfully (including fairly). It is in respect of the latter constraint that they are accountable to the Courts. In respect of the former they are accountable to Parliament and to the public.
The House of Lords has considered this question on more than one occasion. For example, in Bushell, Lord Diplock stated:
"My Lords, in the analysis of Lord Greene MR in B Johnson & Co v Minister of Health  2 All ER 395 at 399-400 of the common case in which a minister's functions are to confirm, modify or reject a scheme prepared and promoted by a local authority, it is pointed out that the minister's ultimate decision is a purely administrative one. It is only at one stage in the course of arriving at his decision that there is imposed on his administrative character a character loosely described as being quasi-judicial, and that is when he is considering the respective representations of the promoting authority and of the objections made at the local inquiry and the report of the inspector on them. In doing this he must act fairly as between the promoting authority and the objectors; after the inquiry has closed he must not hear one side without letting the other know; he must not accept front third parties fresh evidence which supports one side's case without giving the other side an opportunity to answer it. But when he comes to reach his decision, what he does bears little resemblance to adjudicating on a list between the parties represented at the inquiry. On the substantive matter, viz whether the order should be confirmed or not, there is a third party who was not represented at the inquiry, the general public as a whole whose interests it is the minister's duty to treat as paramount."
In the more recent well known case of Alconbury, Lord Nolan made clear the Court's view as to the importance of democratic accountability in planning decisions in the following terms which provide an eloquent warning for the Government as it proceeds with this Bill:
60. The first, which reflects the obvious unsuitability of the courts as the arbiters in planning and related matters, is that the decision to be made, as explained by Lord Greene M R in B Johnson & Co (Builders) Ltd v Minister of Health  2 All ER 395, 399 is an administrative and not a judicial decision. In the relatively small and populous island which we occupy, the decisions made by the Secretary of State will often have acute social, economic and environmental implications. A degree of central control is essential to the orderly use and development of town and country. Parliament has entrusted the requisite degree of control to the Secretary of State, and it is to Parliament which he must account for his exercise of it. To substitute for the Secretary of State an independent and impartial body with no central electoral accountability would not only be a recipe for chaos: it would be profoundly undemocratic.
It is also important to note that the Planning Acts (principally 1990, 1991 and 2004) do not bind Ministers to act in a non-political role. In fact it is clear from a wealth of planning literature that 'The planning process is of an essentially political nature' (Cullingworth 'An Introduction to town and Country Planning' Unwin 1988). The practice of planning seeks to combine technical information on impacts and benefits and measure these impacts against policy frameworks. The final decision is always value driven as well as bounded by public law principles.
Mike Ash who until 2006 was the Department of Communities and Local Governments' most senior planner made the issue clear in his response to the Planning White Paper:
'Despite delegation to officers or inspectors, judgement has until now been exercised by or in the name of accountable ministers and councillors. While this accountability may be at several removes, it is still vital. Accountability for underlying policy is not enough. Major infrastructure projects affect many and deciding between conflicting interests is rarely just a technical exercise. We should only give up on the principle of democratic accountability if there is overwhelming evidence of the need to do so. Despite the Eddington and Barker reviews, the evidence for the proposed changes is weak...'
Inquisitorial vs. adversarial decision making
Ministers have placed great emphasis on moving from an adversarial system to an inquisitorial system of testing evidence. They have used this move to justify the removal of cross-examination rights and to create a system in which applications are normally examined through written representations (Section 82).
For the reasons set out in our previous evidence we believe cross-examination to be the only effective way to test highly technical and often disputed information. However, it is also important to add that current inquires are often a balance between both approaches with inspectors able to question in detail when they think necessary.
Finally, it is very hard indeed to see how the system advocated in the Bill that is based on written representation can be inquisitorial. The European model of inquisitorial examination of civil and criminal cases is based universally around hearings. It would be almost impossible to conceive how an inquisitorial system could be effectively carried out in writing without taking an inordinate amount of time in the exchange of written submissions.
 Under section 5 of the Acquisition of Land Act 1981 the minister has a power to hold a public inquiry before making or confirming a CPO. As a matter of practice inquiries are held, rather than hearings (both are oral), and the likelihood is that the Courts would insist on an inquiry to enable the evidence to be tested by cross-examination (Richmond- upon-Thames London Borough Council v Secretary of State for Communities and Local Government  EWHC 3324 (Admin).)
 Bushell and another v Secretary of State for the Environment  2 All ER 608
 R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions and other cases  UKHL 23