Examination of Witnesses (Questions 4460
4460. CHAIRMAN: That is the EIA point.
4461. LORD BROOKE OF ALVERTHORPE: My
Lord, may I intervene, as a simple lay Lord.
4462. CHAIRMAN: You may.
4463. LORD BROOKE OF ALVERTHORPE: If
you are correct and that we would be required to instruct that,
in addition to the main alternatives, B should be examined, does
it not follow that anybody can raise anything to be examined?
4464. MR HORTON: No, because I say it
is an objective test and so the Committee would take a view of
it. It can either say because these committees, of course, have
enormous power, being a committee of Parliament, of this House,
can either say, "Well, it's manifest to us that is ridiculous
and, yes, it should have been a main alternative, we just don't
accept it", or you might say, "Well, we would like to
listen to a witness".
4465. LORD BROOKE OF ALVERTHORPE: No,
I am sorry, I use the phrase as a lay lord. If anywhere along
the line somebody comes along and says, "The EIA has only
looked at those and classed those as the main alternative, yet
I believe this is a better alternative that has not been examined
yet", we would be required under what you are saying to take
it to the Chamber.
4466. MR HORTON: No, Mr Elvin, I think,
wants to make the submission for me.
4467. MR ELVIN: He does not.
4468. MR HORTON: Good.
4469. MR ELVIN: I agree with my Lord,
4470. MR HORTON: Perhaps I could make
it without having sotto voce insistence. My submission to your
Lordships is that you should regard the point of whether the Promoter
has failed to consider a main alternative as a very serious point
in the public interest ---
4471. LORD BROOKE OF ALVERTHORPE: Sorry,
failed to consider a main alternative?
4472. MR HORTON: Yes, failed to consider
something which objectively should have been considered as a main
alternative is a very important point in the public interest,
that is the first point. Therefore, my argument does not enable
any petitioner to come along and say, "We think it should
have been considered as a main alternative, therefore you must
require the House to consider it". What I am submitting is
that at this stage in select committee you can look at that and
decide whether you, the Select Committee, consider that objectively
that alternative had, prima facie, such merit because it could
only be prima facie because it has not been considered, that it
should have been considered as a main alternative. Petitioners
can come forward with whatever they like which you would by and
large say, "We just don't agree with you", but occasionally,
and I submit this is one such occasion, it is so manifestly an
alternative, it is straighter, it is shorter, so manifestly an
alternative which should have been considered as a main alternative
that you should consider that the public interest has been damaged
by it not having been considered as a main alternative.
4473. MR ELVIN: I wonder if your Lordships
would hear me on this point before making any further ruling.
There is a complete fallacy that lies at the bottom of all of
this and that is the fallacy that there is a duty to consider
alternatives in an objective sense. There is a question of fact,
and no more than a question of fact, which is was this a main
alternative which was, in fact, studied by the developer, not
whether there should be a main alternative which was not studied
by the developer. Mr Horton accepts we did not regard it as a
main alternative and discarded it at an early stage. The question
of fact as to whether it was a main alternative is only to be
gleaned by looking at the history of Crossrail, not at listening
to expert evidence. You do not need and one would normally, as
indeed your Lordship would know having sat in a judicial capacity,
not call expert evidence to determine questions of fact which
are to be gathered by looking at the history of how the consideration
of Alternative B fitted in within the route consideration as Crossrail
was being developed. My Lords, I wonder if your Lordships ought
not to hear my legal submissions first before you go any further
on this matter because I have addressed it in some detail and
there are very conclusive indications that Mr Horton's submissions,
which are the whole foundation of trying to get in some evidence
on Alternative B, are simply wrong. Indeed, there is a passage
from Mr Justice Ouseley in the Arsenal case which I came across
last night and the French version of the Directive make it perfectly
clear our submissions as to the absence of a duty to consider
alternatives, as opposed to simply giving an account of those
alternatives which were main alternatives which were, in fact,
studied, is absolutely right. I wonder if your Lordships would
hear me on that before going any further.
4474. CHAIRMAN: I should think so, Mr
Elvin, but in the face of this submission we are going to have
to decide whether to advise the House that on the EIA Directive
point where the House is arbiter the mechanisms of the EIA have
been complied with.
4475. MR ELVIN: Yes.
4476. CHAIRMAN: You say evidence is immaterial
for that purpose?
4477. MR ELVIN: You have the only documentation
of Option B already in the material that Mr Horton put forward
yesterday, the report from March 2001 which ruled it out. There
is other documentary material available as to how Crossrail was
defined and how that specific issue fits in with the overall picture.
It is in the Environmental Statement, it is in the Montague report,
it is in the Information Papers. You have all the material you
need to determine the issue as a matter of fact, but your Lordships
at the minute have had no assistance from me, as yet, by reference
to the submissions I spent some considerable time looking at last
night in order to deal with this issue which, in my submission,
establish quite conclusively that Mr Horton's fundamental premise,
which is that there is some objective test to be determined to
consider a main alternative is simply wrong. If Mr Horton is right,
my Lord, Lord Brooke is absolutely correct, all you would ever
have to do to get over the principle of the Bill issue is to say,
"We don't agree with the Environmental Statement. A main
alternative wasn't considered. Here is our evidence on the main
alternative. Consider it". The fundamental difficulty with
Mr Horton's submission is, even if everything he says is right,
there is still no duty on this Committee to consider something
beyond the principle of the Bill. The only thing it goes to is
whether we have to produce another addendum to the Environmental
Statement to give an account of a main alternative. This is a
question of process, not a question of substance. The Environmental
Impact Assessment Directive as the House of Lords Judicial Committee
said in the Berkeley case in 2000 is a process which involves
consultation and the like, it is not something which dictates
the end result. All Mr Horton is arguing about, if he succeeds,
would lead to another supplementary ES of a few pages. It would
not give any basis for traversing the principle of the Bill which
your Lordship has put very clearly this morning. My Lords, I therefore
urge the Committee, at least before proceeding any further, to
hear me on my legal submissions with regard to main alternatives
because I hope you will find them enlightening.
4478. CHAIRMAN: Mr Horton, I think it
may be sensible to do that. You can of course reply.
4479. MR ELVIN: My Lord Chairman, I am
not going to go through the whole of the submission. I am going
to focus on how the question of the main alternative fits into
the duty. Perhaps I could draw your Lordships' attention to page
3 of this note. So far as the issue of southern alignments is
concerned, of which Option B is one ----