Select Committee on the Crossrail Bill First Special Report


Ruling given in relation to the Petition of the Spitalfields Society—Thursday 13 March 2008 (paragraphs 4443-4446 of the transcript)

Evidence which Mr Schabas may seek to advance, or might have sought to advance, on behalf of the Spitalfields Society relates to a realignment of the railway's route between Liverpool Street and Whitechapel Station. The proposed route would follow a curve to the south of the route in the Bill. Other Petitioners have sought to persuade the Committee to accept evidence and submissions on this realignment and we have declined to do so. The reason is that such a proposition traverses the principle of the Bill. What is the principle of the Bill? What does it mean? Although it is still a Bill and not an Act, the Committee can obtain much assistance from the rules of statutory construction. These can guide the Committee, as they would a court of law, if the issue were raised before it, and I would refer to Halsbury's Laws, Volume 44(1), paragraph 1399. The most important rule in this context is that the words of the Bill, both clauses and Schedules, explain what the Bill is going to permit and in this case it is quite specific. Clause 1 allows the nominated undertaker to construct and maintain the works specified in Schedule 1. This includes in subsection (1)(b) railways in the London Borough of Tower Hamlets. Clause 1(2) says, "Subject to subsections (3) to (5), the scheduled works shall be constructed (a) in the lines or situations shown on the deposited plans, (b) in accordance with the levels shown on the deposited sections".

Clause 1(3) to (5) allows for deviations to any extent within the limits of deviation, horizontal or vertical, shown on the deposited plans or sections. Subsection (5) is very particular as to the permitted deviation in three of the works by relation to the deposited sections. The route which might be proposed south of Spitalfields does not fall within the lines or limits of deviation in the deposited plans and sections. It could not thus be carried out under the powers of the Bill, but these lines and sections are central to what the Bill would allow is re-enforced by other provisions of the Bill, for instance clause 61 which provides machinery to correct mistakes in the deposited plans or sections by means of an application by the Secretary of State after giving due notice to two magistrates. If they find there is a mistake, they may certify accordingly and say what is the error. Their certificate goes to the Clerk of both Houses and the local authority concerned. Thereafter, matters may proceed on the corrected basis.

Clause 64 says what are the deposited plans and sections. They are those deposited on given dates with replacements and a consolidated replacement sheet. These at the end of the day will go to the Victoria Tower with the signed copy of what might very well be an act and they are all available to the public and you go up the Victoria Tower and get out deposited plans for any railway scheme going back since railways began, and I have done it. The various schedules in addition to that relate particularly to specified works, identified by reference to the deposited plans. For instance, Schedule 3 deals with highway stopping up and also use of subsoil for works even outside the limits of deviation on land set out on a table on pages 92 and 93 of the Bill but basically by relation to the deposited plans. Schedule 6 confines that position of land to sites specified by reference to the deposited plans. This is a large list with different categories of acquisition.

Reading the Bill as a whole, clauses and schedules, is the correct way to interpret a statute, and so we hold is the way in which the Committee ought to interpret the Bill. There is an intimate connection between the powers conferred and the places where they may be exercised, and it does not include Route B. In that case, why can the Committee not recommend an amendment to the Bill to provide for this more southerly route at Spitalfields? There is a very simple reason. The realignment of that route would require the introduction of additional provisions and a further petitioning hearing. This House, as the second House, has no power to obtain additional provisions. Standing Order 73(2) relating to House of Lords private business says that petitions for additional provisions cannot be received in the case of a bill brought from the House of Commons. Standing order 73 reads like this: "(1) a petition for additional provision in a private bill (a) shall be signed by the Petitioner and shall have annexed thereto a printed copy of the provisions proposed to be added and (b) shall require the sanction of the Chairman of Committees before it is deposited in the office of the Clerk of the Parliaments… (2) No such Petition shall be received in the case of a bill brought from the House of Commons". In accordance with this Standing Order, in Erskine May there is a passage which says: "The power of a Committee to admit clauses or amendments, has already been described. It should be noted, however, that additional provisions may not be obtained in the second House. Similarly, and as a consequence of this, it is a well established rule that a clause conferring powers upon the Promoter struck out in one House should not be re-inserted in the other and restricted amendments imposed by one House on the Promoters shall not be reversed by the other". This Committee does not have the power to recommend the Promoters to realign the route between Liverpool Street and Whitechapel Station in so far as that has been requested by various members of the Spitalfields community. I am afraid I think that is definitive.

Ruling given in relation to the Petition of the Spitalfields Small Business Society—Tuesday 18 March 2008 (paragraphs 5552-5565 of the transcript)

However, before that, I promised that I would produce a ruling on the Select Committee's behalf on compliance with the Environmental Impact Directive 85/337/EEC, as amended, and that I will now do.

In the case of the decision-makers for most large projects in England which fall within the scope of the Directive, the process is governed by Regulations which transpose the Directive into domestic law. In the present case, the decision is to be made by Parliament so that it is the terms of the Directive itself which have to be construed. Article 5(1) of the Directive requires developers to provide information covering the matters in Annex IV and then Article 6(2) provides that: "Member States shall ensure that any request for development consent and any information gathered pursuant to Article 5 are made available to the public within a reasonable time in order to give the public concerned the opportunity to express an opinion before development consent is granted". Article 5 requires the developer's Environmental Statement to include an "outline of the main alternatives studied by the developer and an indication of the main reasons for his choice". This means that the developer must set out in the Environmental Statement the main alternatives which he has studied.

Crossrail is a linear project, but, although an integral scheme, it has been, for convenience, divided into three parts. The central section includes the tunnel which would take the tracks from Liverpool Street Station to Whitechapel Station; on the alignment in the Bill, this section passes underneath the Spitalfields area.

It has long been the ambition of the Petitioners from this area to divert the alignment so that it goes somewhere else. Whilst such a diversion might have been achieved in the House of Commons by way of an Additional Provision (although it was not), in this House, for reasons set out in the Committee's ruling last week, Standing Orders preclude any such suggestion. What the Spitalfields Petitioners want is the adoption of what is called 'Route B' which runs to the south of their properties. The proposition put forward by Mr Horton is that this Committee should rule that Route B should have been a 'main alternative' and should treat it as such, opening it up to comment by the public and study by the House of Lords. Mr Horton argues that a failure to do this would render the Environmental Statement deficient and the process non-compliant with the Directive and thus unlawful.

It would not be feasible to challenge the matter at this stage, but, when and if the Bill receives Royal Assent, a domestic court or the European Court of Justice could address the matter. It is not inconceivable that a domestic court might be prepared to adjudicate on the validity of primary legislation where an EIA was required but was not provided for; the Court of Appeal in Regina v Durham County Council ex parte Huddleston, and I give the reference (2000/WLR 1484), held that the provisions in the Planning and Compensation Act 1991, which allowed the revival of an ancient planning permission for mineral workings in circumstances which fell within the requirements of the Regulations implementing the EIA Directive, but made no statutory provision for such an appraisal, was ineffectual. Whether a domestic court would be so robust as to strike down the entire Crossrail Act on the grounds now in issue is a matter for speculation, but the European Court of Justice could do so.

Many of the issues now raised by the Petitioners were considered in the House of Commons. It is not for this House to comment on proceedings there, but it should be noted that under Private Business Standing Order 27A (and there is a 27A for both Houses), when a Bill authorising the carrying out of works is submitted for approval, it shall be accompanied by an Environmental Statement containing the information referred to in Part II of Schedule 4 to the EIA Regulations, which is Statutory Instrument 1999/293, and so much of the information referred to in Part I of that Schedule as is reasonably required to assess the environmental effect of the works and as the Promoters can be reasonably expected to compile. It must be assumed that this Standing Order was complied with in the House of Commons, and we see no evidence to suggest that it was not.

The Woodseer and Hanbury Street Residents' Association (sic) say in a submission that the Select Committee in the House of Commons did not, during the consideration of Additional Provision 3, address Route B. There may have been reasons concerning the principle of the Bill and the Committee may have declined to hear argument on Route B because they did not consider that it was covered by Additional Provision 3. Anyway, the matter must now be confronted afresh in this Committee.

If Route B is a legitimate matter for the House of Lords at a later stage of the Bill, and for this Committee it is not on the grounds mentioned above, one thing should be said: that the Directive requires Member States to ensure that information about the proposed project is made available to the public so that they may have an opportunity to express an opinion before development consent has been granted, and that is Article 6(2) which I have already referred to.

This committee hearing is not a meeting in a public hall, but part of a parliamentary procedure. To be heard, a person or group have to present a Petition and they must have locus standi (the right to be heard) to present a Petition. The Promoters have raised no objection on these grounds and the Committee have been anxious to allow the presentation of relevant evidence and submissions.

Much discussion of Route B has been available for a substantial period. It is common ground that London Underground Limited produced a report in 2001 concerning the Crossrail Eastern Portal. Three alignments had been considered, including Route B. Even at that stage, Route B was not thought to be a viable option because of the proposed development east of Liverpool Street. The Promoters abandoned further consideration of Route B[37].

Undoubtedly, Route B has never been presented as a main alternative and has never been considered as such by the Promoters. There is, therefore, no requirement on them under the Directive to write it up in the Environmental Statement, as such.

We are satisfied that the Promoters have fulfilled the requirement in House of Lords Standing Order 27A, including the provisions of an Environmental Statement which did contain an outline of the main alternatives studied and an indication of the main reasons for the choice of route set out in the Bill before us now. There is no indication that Route B was ever a main alternative and it certainly is not considered a main alternative now.

We are further satisfied that the Promoters have complied with Statutory Instrument 1999/293 and there is nothing in the amending Statutory Instrument 2000/2867 which requires any attention in accordance with Standing Order 27A(6) since the amendments are not material to the Promoters' Bill. I should just add that the only reference in the Regulations to main alternatives is in exactly the same terms as it is in the Directive.

So, in conclusion, we have decided that there is no flaw in the Promoters' compliance with the requirements of the EIA Directive which would lead us to recommend to the House that there are faults in the procedural requirements concerning this sort of legislation or that the House should postpone further consideration of the Bill.

37   A factual correction was made to this paragraph by the Chairman-see the transcript from 20 March 2008, paragraph 6543. Back

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