R v Secretary of State for Transport, ex parte Gwent County Council

This appeal by the Secretary of State for Transport arises out of a decision of Mr. Justice Webster given on 12th December 1985 on an application for judicial review by the Gwent County Council acting on its own behalf and on behalf of the County Councils of South Glamorgan, Mid Glamorgan, West Glamorgan, Dyfed and Avon and it was supported by the Welsh Counties Committee, the Association of District Councils in Wales, the Gwent Association of District Councils, the Trade Union Councils Wales, the Freight Transport Association, the Road Haulage Association, the Automobile Association and the South Glamorgan Chamber of Trade. Mr. Justice Webster decided that in making the order known as the Severn Bridges Tolls Order 1985 the Secretary of State for Transport acted ultra vires his powers under the Severn Bridge Tolls Act 1965 and that the order was null and void and the applicants were entitled to a declaration to this effect.

The appeal raises a question of some importance in relation to local inquiries since Mr. Justice Webster came to his decision on the basis that there was procedural impropriety by the Inspector who conducted the inquiry into the 1985 order as a result of his failure to evaluate and report his conclusions on certain issues which the Secretary of State had argued raised questions of policy on which an inspector was not required to express his views. Mr. Justice Webster also decided that this procedural impropriety by the inspector was not cured by the subsequent decision of the Secretary of State to make the order.

THE LAW

By Section 1 of the Severn Bridge Tolls Act 1965 the Secretary of State is given the power, but is not placed under a duty to levy tolls. The power can be exercised in respect of the whole of the carriageway between the last junction to the east of the River Severn and the last junction to the west of the River Wye with a special road and therefore includes the bridges over both those rivers.

Section 2 gives the Secretary of State power to provide different rates of tolls for different classes of vehicles.

The procedure for making an order is contained in Section 3. This section requires a draft order to be prepared, the draft order to be published, and that there should be a right of objection and if objections are made and not withdrawn, in the case of objections by local authorities and certain other specified bodies, the Secretary of State shall and in the case of other objections the Secretary of State may hold a local inquiry.

Section 3(4) is important and states:

"After considering any objections to the proposed order which are not withdrawn, and where a local inquiry is held, the report of the person who held the inquiry, the Minister may make the order either without modification or subject to such modifications as he thinks fit."

Although Section 3 does not expressly require the Secretary of State to issue a decision letter, Section 12 of the Tribunals and Inquiries Act 1971 requires him to give reasons for his decision and the issue of a decision letter is a convenient way of complying with this obligation.

Pursuant to Section 19 the order is made by Statutory Instrument and is subject to annulment by or a resolution of either House of Parliament.

The amount of toll which the Secretary of State can levy is limited by the provisions of Section 4 and Schedule 2 of the Act. He cannot specify scales of tolls exceeding those which in his opinion would be requisite to secure that taking one year with another the revenue produced by the tolls during the toll period (here 40 years) is sufficient to reimburse with interest the specified expenses incurred in connection with providing the carriageway. It is not necessary to go into detail as to what those expenses are since it is not contended that the Secretary of State in making the 1984 order exceeded the limitations contained in Section 4 and Schedule 2.

The provisions requiring a local inquiry to be held contained in section 3 of the 1955 Act are now a common feature of many statutory procedures governing administrative decisions by Ministers. The purpose of such a local inquiry was clearly spelt out in the speeches of the House of Lords in Bushell v. The Secretary of State for the Environment [1981] A.C. 75. Lord Diplock at page 94 E-G said:

"The essential characteristics of a 'local inquiry', an expression which when appearing in a statute has by now acquired a special meaning as a term of legal art, are that it is held in public in the locality in which the works that are the subject of the proposed scheme are situated by a person appointed by the minister upon whom the statute has conferred the power in his administrative discretion to decide whether to confirm the scheme. The subject matter of the inquiry is the objections to the proposed scheme that have been received by the minister from local authorities and from private persons in the vicinity of the proposed stretch of motorway whose interests may be adversely affected, and in consequence of which he is required by Schedule 1, paragraph 9, to hold the inquiry. The purpose of the inquiry is to provide the minister with as much information about those objections as will ensure that in reaching his decision he will have weighed the harm to local interests and private persons who may be adversely affected by the scheme against the public benefit which the scheme is likely to achieve and will not have failed to take into consideration any matters which he ought to have taken into consideration."

Viscount Dilhorne, referring to the Franks Committee's Report on Administrative Tribunals and Enquiries of 1957, paragraph 269, stated that "the primary purpose of a local inquiry must be 'to ensure that the interests of the citizens closely affected should be protected by the grant to them of a statutory right to be heard in support of their objections, and to ensure that thereby the minister should be better informed of the facts of the case'".

Unlike the inquiry to which Lord Diplock was referring, the inquiry into the 1985 order was conducted by an independent inspector appointed by the Lord Chancellor. Subject to any statutory procedural rules which apply to the inquiry and the requirements in the statute creating the power to hold the inquiry, the inspector has a wide discretion as to the procedure which he follows. But he must not use that discretion to frustrate the purpose of the inquiry and he must therefore give the objectors an adequate opportunity properly to present their objections to the proposal. It has to be remembered that this may be the only opportunity which persons in the locality have of expressing their views about a proposal of central government which can have a very material impact on the area in which they live. However, as well as bearing in mind the importance of a local inquiry to the process of consulting and informing local opinion and gleaning local information the inspector has to take into account the undesirability of a local inquiry being unduly extended. Unnecessary expense and delay can be caused if an inquiry became a forum for the discussion of irrelevant matters. It was for this reason that the House of Lords in the Bushell case upheld the decision of the inspector not to allow cross-examination of the Department's witnesses as to the reliability and statistical validity of the methods for traffic prediction used by the Department in order to assess traffic needs for the purpose of applying the government's policy with regard to the national motorway network. This refusal to allow cross-examination could be justified either on the basis that the local inquiry was not the appropriate forum in which to discuss such policy matters or because the departmental witnesses were just unqualified to answer questions on that subject. Lord Diplock dealt with what is meant by policy for this purpose. At page 98 he said:

"'Policy' as descriptive of departmental decisions to pursue a particular course of conduct is a protean word and much confusion in the instant case has been caused by a failure to define the sense in which it can properly be used to describe a topic which is unsuitable to be the subject of an investigation as to its merits at an inquiry at which only persons with local interests affected by the scheme are entitled to be represented. A decision to construct a nationwide network of motorways is clearly one of government policy in the widest sense of the term. Any proposal to alter it is appropriate to be the subject of debate in Parliament, not of separate investigations in each of the scores of local inquiries before individual inspectors up and down the country upon whatever material happens to be presented to them at the particular inquiry over which they preside. So much the respondents readily concede.

At the other extreme the selection of the exact line to be followed through a particular locality by a motorway designed to carry traffic between the destinations that it is intended to serve would not be described as involving...