Examination of Witnesses (Questions 4420
4420. CHAIRMAN: Well, what is he going
4421. MR HORTON: He is not in a position
to say that, he has not done enough work. He is going to say,
with his experience, that the reasons given in 2001 for not even
ranking it as a main alternative were simply not proper reasons
and that, looking at it with his experience, it plainly should
have been considered as a main alternative, judging it objectively.
He cannot go further, and your Lordships, on the case which I
am presenting, would not need to go further and say that Route
B should be preferred. What I am inviting your Lordships to say
is that, as a matter of law, the EIA does not appear to have been
properly done and to give an instruction that Route B should be
4422. CHAIRMAN: Well, I am going to give
a ruling on that on Monday after I have heard this. I am still
concerned about what it is that Mr Schabas is going to say.
4423. MR HORTON: Well, perhaps I can
try to illustrate it in this way: that you have available to you,
and I do not know whether you have read it, but I can refer you
to it, the evidence that he gave for the Mayfair Society in relation
to the alignment through that part of London. He indicated there
that he had a lot of experience with the Channel Tunnel Rail Link,
and you will recollect that these Promoters claim, claim, to have
used the experience on the Channel Tunnel Rail Link to have guided
them when considering how to select the route and any examination
of alternatives for Crossrail. In relation to the Channel Tunnel
Rail Link, Mr Schabas, with his skills, said to the Lords Committee,
"You should not be putting the terminus at King's Cross.
You should be putting it at St Pancras", without having done
a huge study of it, but that was a judgment that he could make
as an expert. The Lords Committee would have none of it, but in
due course, as you know, that is what has happened, so I am presenting
him as a man who has the technical training and the very ----
4424. CHAIRMAN: I do not think anybody
doubts that. Are you promoting Route B? Are you saying that it
is within our powers to suggest to the House, on recommitment,
that Route B ought to be chosen?
4425. MR HORTON: Well ----
4426. CHAIRMAN: Are you or are you not?
4427. MR HORTON: My Lord, yes, but ----
4428. CHAIRMAN: You are?
4429. MR HORTON: Yes, I am, but that
is because, with great respect, if I have understood the approach
this Committee so far has taken to what is called the `principle'
of the Bill, the case I have to put is that the principle established
of having a route on this section that runs between Liverpool
Street and Whitechapel Station, which I am not instructed to dispute,
as end points on this section, that principle, which, as I understand
it, the Committee takes the view was established on Second Reading,
does not prevent you from looking at precisely how to get from
Liverpool Street to Whitechapel.
4430. CHAIRMAN: Yes, it does. I am going
to rule on this.
4431. MR HORTON: My Lord, forgive me,
I am sure it is my fault and I may be confusing your Lordship,
but, because I was aware or thought the Committee had already
made it clear that, whether Petitioners like it or not, that principle
is decided, you recall that yesterday the way I put it to you
by reference to the EIA argument was that you may consider Route
B in a different context, so not by reference to the principle.
I simply on the record make it clear, in case it should be important
in the future, that I respectfully, of course, submit that your
Lordships are wrong as to what has been established by the principle,
but, as I understand it, you have formed a view and I must accept
4432. CHAIRMAN: Wrong or not, that is
4433. MR HORTON: Exactly, precisely so.
Your Lordship knows that I know my job to that extent. I am putting
it to you a different way, namely that, if my submission was right
yesterday, which your Lordship, I appreciate, has not ruled on
yet and all you have done is to be kind enough not yet to tell
me that you reject it, as I understand, if my submission yesterday
was correct that, properly construing the European Directive on
Environmental Assessment, the test of whether a promoter should
have considered a particular alignment as a main alternative should
be an objective test for the reason that, if it is not an objective
test, it gives an opportunity, with great respect, for abuse because
promoters can just, for reasons of their own, and I do not suggest
it in this case because I know nothing of the underlying reasoning
in this case, but there may be cases where promoters, for commercial
reasons of their own which are not in the public interest, do
not want to consider a particular alternative, although they can
see that, in the public interest, it might be a good alternative,
if they are allowed simply to say, "Well, we never selected
that as a main alternative and didn't consider it, so it doesn't
arise and we don't have to put it into the Environmental Statement",
there is a risk, which is contrary to the public interest, that
perfectly proper, important and objectively viewed main alternatives
will never get proper examination. Therefore, in my submission
to you, the test is objective and you, nonetheless, in reporting
to Parliament, would need to have enough information to enable
you to report to Parliament whether, in your judgment, it does
appear to you objectively that it is a main alternative which
should have been considered. Therefore, my only purpose in wishing
to call Mr Schabas is to assist you on that point, unless of course
your Lordships already have a view on that.
4434. CHAIRMAN: We do have a view on
it. I have explained this several times. The question of whether
the route from Liverpool Street to Whitechapel does or does not
follow Route B is not something upon which we can make recommendations
to the House. What we can do is we can say to the House that we
have considered a submission about whether the EIA process was
adequate and, as Parliament is the only judge of whether it is
or not, Parliament will be invited to do so, but that is a separate
point about whether we can make representations about Route B
between Liverpool Street and Whitechapel.
4435. MR HORTON: Well, my Lord, if your
Lordship is saying to me that, in reporting to Parliament, the
furthest you can go, supposing you were to support my legal submission,
is to say to Parliament, "We consider that the test should
be objective. You, Parliament, therefore, should consider whether
Route B should have been considered as a main alternative",
then I have to accept that would be the end of it.
4436. CHAIRMAN: That is what we are going
4437. MR HORTON: Yes.
4438. CHAIRMAN: I am not going to do
it today, I am going to do it on Monday. Today I want to deal
with Route B and I want to deal definitively with Route B.
4439. MR HORTON: I understand that and
it may be my fault, but it is not clear to me whether you want
more information about Route B.