Secretary of State appointing inspector to conduct inquiry into order for Railtrack’s Thameslink 2000 proposal – Applicants unable to obtain legal representation for inquiry – Applicants seeking judicial review of inspector’s pre-inquiry decisions – Whether forthcoming inquiry would breach requirement to provide a fair hearing – European Convention on Human Rights Article 6(1) – Human Rights Act 1998 section 6(1) – Application dismissed
The Railtrack (Thameslink 2000) (Consolidated) Order 2000 concerned Railtrack’s Thameslink 2000 proposal to enable new cross-London services. The project involved significant works, including new tracks and platforms at London Bridge and a new viaduct at Borough Market. The first applicant was a resident of Borough Market and was a statutory objector. He also brought an action on behalf of the Cathedral Area Residents Association, who sought to put forward an alternative proposal (the Herne Hill alternative). An inspector was appointed to hold an inquiry into the Order. At a pre-inquiry hearing, the inspector decided that although the applicants were unable to obtain representation for the forthcoming inquiry, due to lack of financial resources, the tribunal would go out of its way to assist them. He found that there would be equality of arms between the parties at the inquiry. He also decided that the environmental statement provided by Railtrack complied with the Transport and Works (Application and Objections) Rules 1992. The applicants sought permission to apply for judicial review of the inspector’s decisions. The court found that permission should be granted and as the inquiry was due to start on 27 June 2000, the hearing was treated as the substantive hearing of the matter.
The applicants sought declarations that: (1) in respect of the forthcoming inquiry, there would be a breach of the requirement to provide a fair hearing, contained in Article 6(1) of the European Convention on Human Rights (ECHR) and section 6(1) of the Human Rights Act 1998, when that Act comes into force; and (2) the environmental statement did not comply with the 1992 Rules. First, the applicants submitted that the issues in deciding whether to confirm the order were substantial, complex and highly technical, and unless they were given assistance in presenting their case, particularly in respect of the Herne Hill alternative, there would not be equality of arms between the parties. The central provisions of the 1998 Act would be brought into force in October 2000 and the applicants submitted that the Act, which gave effect to Article 6 of the ECHR, should be regarded as being effective for the purposes of the instant application. The applicants submitted that it was known what the law would be when the Act did come into force and, if the court were to conclude that there would be a prospective breach, it ought to grant declaratory relief at this stage. Second, the applicants submitted that the information included in Railtrack’s environmental statement was contained in a 1997 report, and was perfunctory and out of date. They submitted that it failed to comply with the requirement to provide further information in para 2(d) of Schedule 1 to the 1992 Rules.
Held: The application was dismissed.
Even if the court found that there would be a breach of law in the failure to provide a fair hearing, it was not something for which the court could grant declaratory relief at this stage, when the 1998 Act had not yet come into force. By virtue of section 22(4) of the Act, a person seeking to rely on a Convention right could use the Convention as a shield during the transitional period, before the central provisions of the Act came into force, but it could not be used as a sword. Furthermore, the application required it to be assumed that there would be no material change of circumstances between the present time and the time when the Act came into force. Such an assumption could not be made: R v Director of Public Prosecutions, ex parte Kebilene (1999) 3 WLR 972 considered. Had it been necessary to consider the merits of the application, it would have failed in any event.
The environmental statement did not fail to comply with para 2(d) of Schedule 1 to the 1992 Rules. It gave outline information of the Herne Hill alternative and gave the main reasons for choosing the proposal. While the applicants would have liked more information than was given, it was not strictly required by the Rules.
John Hobson QC (instructed by Steel & Shamash) appeared for the applicants; David Elvin QC (instructed by the Treasury Solicitor) appeared for the respondent; Timothy Comyn (instructed by Rees & Freers) respresented Railtrack.
Sarah Addenbrooke, barrister
