Examination of Witnesses (Questions 4440
4440. CHAIRMAN: No, we do not. We know
all about Route B.
4441. MR HORTON: You have information
about it, but whether it is information which, because much of
it is from the Promoters, is entirely complete or accurate is
another matter, with respect, and that is why I would ask you
to listen to Mr Schabas.
4442. CHAIRMAN: I am going to deal with
Route B, as such, first because we are not going to listen to
Mr Schabas if he is going to try and promote Route B as part of
this Petition. Shall I tell you why?
4443. MR HORTON: Please, that would help
me very much.
4444. CHAIRMAN: 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 that 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.
4445. 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 by then will be an Act and they are all available to the
public and you can 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 the acquisition of land to sites specified
by reference to the deposited plans. This is a large list with
different categories of acquisition.
4446. Reading the Bill as a whole, clauses and
schedules, which is the correct way to interpret a statute and
so we hold 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 period. 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(1) and
(2) 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 restrictive 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.
4447. MR HORTON: It is, my Lord, and
I am very grateful to you for having taken the trouble to set
that out so fully because obviously it helps the Petitioners,
but it is precisely because of that I had sought to take a different
approach, as you know I am repeating myself.
4448. CHAIRMAN: Yes, I am perfectly prepared
to deal with your additional approach that the EIA has not been
complied with, but it is no use arguing for Route B at the moment.
The only way in which that could be done is that the House as
a whole comes to the conclusion that the EIA Directive has not
been properly complied with and what it does then I simply would
not know, but it would have to do something about it. It would
have, no doubt, to consider the main alternatives. That is not
the point about Route B at the moment.
4449. MR HORTON: It is to this extent.
I am sorry to press it, my Lord, because I am risking repetition.
If the proper test for the compliance with the Directive is whether
an alternative is of such quality as to rank as a main alternative
is objective, then obviously the House in due course, as your
Lordship tells me that is a decision for the House, needs material
to make that judgment. It is one thing for it to say it is an
objective test, but it then has to ask itself whether there is
a particular alignment which was not but should have been considered
as a main alternative because we know Route B was not considered
as the main alternative.
4450. CHAIRMAN: No, we do not.
4451. MR HORTON: Yes, we do.
4452. CHAIRMAN: It was considered.
4453. MR HORTON: Not as a main alternative.
That is the whole case.
4454. MR ELVIN: In that case, your case
disappears if it was a main alternative.
4455. MR HORTON: It does not, Mr Elvin,
that is the whole point. Previously, and I think the petitions
tend to be worded in this way before I came into this matter,
what Petitioners have said is it was a main alternative but was
not referred to in the ES and, therefore, the Directive was breached.
My case and, Mr Elvin, I challenge him, if that is not too confrontational,
to deny this, the Promoter's case is it was never regarded as
a main alternative, that is why it is not in the ES. I accept
that, I accept that the Promoters never treated it as a main alternative,
therefore did not refer to it in the ES, therefore did not give
main reasons for rejecting it. I am riding in on the back of that
and saying objectively it plainly should have been. All I am seeking
to do at this stage, if your Lordships feel you need it, and your
Lordship just having said to me that you thought it had been considered
a main alternative, it may be that your Lordships already see
that it plainly ranks and has the attraction of a main alternative
in which case I am pushing ---
4456. CHAIRMAN: Plainly what?
4457. MR HORTON: I do not know obviously
whether your Lordshipsbecause your Lordship just indicated
to me that you understood the Promoters had regarded it as a main
4458. CHAIRMAN: I think I may have been
wrong in that.
4459. MR HORTON: With the deepest respect,
I do not want to go to the Tower for it, but your Lordship was
wrong on that and I think Mr Elvin would accept that. Their case
has always been we never selected it as a main alternative. I
say objectively the Promoters should have done so. You might feel
two things. You might feel, as a committee, that it is not for
you to tell the House whether something objectively should be
considered as a main alternative, it is for the House in due course
to consider it and all you can do is report to the House that
is a question they need to consider. Or you may feel that you
can simply assist the House by saying, "We heard some evidenceit
was not in great detailbut sufficient to satisfy us",
although clearly the House could disagree with you, "as the
Committee that objectively it should have been considered as a