Select Committee on the Crossrail Bill Minutes of Evidence

Examination of Witnesses (Questions 4460 - 4479)

  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, Lord Brooke.

  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 ----

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