R v Secretary of State for Transport, ex parte London Borough of Richmond Upon Thames and others
QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)
The Times 11 May 1995, (Transcript: John Larking)
HEARING-DATES: 5 April 1995
5 April 1995
A Maclean for the Applicant; D Rose for the Respondent
PANEL: SEDLEY J
JUDGMENTBY-1: SEDLEY J
SEDLEY J: By this application for leave to apply for judicial review, in its amended form, six local authorities whose inhabitants are affected by aircraft noise associated with Gatwick and Heathrow airports seek as a matter of urgency to contest the basis upon which the Secretary of State for Transport has set about a fresh consultation process to assist him in the exercise of his powers under s 78 of the Civil Aviation Act 1982. This section gives the Secretary of State power to regulate the permitted levels of noise made by aircraft in taking off or landing. It has been the practice of successive Secretaries of State to review these limits on a five-year cycle and to consult more widely than the statute requires, thereby creating a legitimate expectation that the public and interested public authorities will be consulted. With any such expectation goes an expectation that the consultation will be conducted fairly and with an open mind.
In 1988 a ministerial undertaking was given 'not to allow a worsening of noise at night, and ideally to improve it'. In January 1993 the Secretary of State for Transport issued a consultation paper setting out proposals for revised aircraft noise restrictions at Heathrow, Gatwick and Stansted from 24 October 1993, in para 34 of which he repeated the 1988 undertaking and proposed, "in keeping" with it:
"that the quota for the next five years based on the new quota system should be set at a level so as to keep overall noise levels below those in 1988."
A wide-ranging challenge to the announcement by the Secretary of State of his new quota system came before Laws J in September 1993. It succeeded on the single, but fatal, point that the Secretary of State had misdirected himself in law by using total noise levels as the criterion of permissibility instead of setting a permitted number of aircraft movements as required by s 78. The Secretary of State complied with this judgment, reported as R v Secretary of State for Transport ex parte Richmond upon Thames Borough Council  1 All ER 577,  1 WLR 74, and issued a series of further decisions (on 12 October 1993, 1 February 1994 and 6 May 1994) which conformed to the judgment of Laws J but were again attacked in an application for judicial review heard by Latham J and decided by him on 20 December 1994. Latham J proceeded on the footing that he should not preclude the applicants from recanvassing any issues which they had argued before Laws J since, having succeeded on the earlier occasion, they had had no interest in appealing on the points on which they had lost. He would have, however, to be satisfied that Laws J was plainly wrong on any one point before coming to a contrary conclusion. In the event Latham J found for the applicants on two grounds:
(a) The consultation had been unfairly conducted because the consultation document had in para 34 misled consultees as to the true basis of comparison to be applied as between 1988 and 1993 noise levels.
(b) The Secretary of State had failed to appreciate that his proposals would breach his own declared policy.
Accordingly Latham J made a declaration in the following form:
"It is declared that the decisions of the Respondent announced on the 12th day of October 1993, the 1st day of February 1994 and the 6th day of May 1994 and any notams consequent thereon in relation to new night flying restrictions are and were unlawful by reason of:
(a) the failure of the Respondent to provide a full and fair consultation process; and
(b) the failure by the Respondent to take into account the fact that the said decisions would permit movements at Heathrow which would produce greater noise than that which was experienced at Heathrow in Summer 1988 on the basis of his own calculations contrary to his expressed policy."
He gave leave to the respondent to appeal, but no appeal was brought. Instead a fresh consultation exercise was undertaken. On 13 March 1995 a consultation paper bearing the same title as the previous one was issued together with a press notice to which some attention must be given. There was immediate correspondence between the applicants' solicitor and the Treasury solicitor, but in the absence of any agreement the present application for leave was made. Popplewell J on 28 March adjourned the desk application into open court, commenting:
"I have very real doubts about the timing of this application. It clearly requires oral submissions both as to merit and timing."
The leave application has now been admirably argued before me on both sides.
There are essentially four issues, the first two arising directly from the new consultation document, the other two arising separately. It is necessary to assess not only whether each is arguable but whether now is the time to argue it. There has been as yet no decision, and there can be none until the consultation process is complete. The consultation period runs to 9 May, and it is anticipated that some 3,000 individuals and bodies will receive the consultation paper and be asked for their submissions or views about it. The Secretary of State will in due course announce his decisions, probably by a Parliamentary answer and an associated press release, but in any event by the publication of s 78 notices. The new quotas will be effective from October 1995. Meanwhile, the airlines will meet in June to negotiate, among other things, the distribution of quotas, but the Secretary of State's decision will not necessarily be known by then.
Although therefore it will be possible, if highly inconvenient, for any appropriate challenge to be mounted once the Secretary of State's decisions are known, it is Mr Maclean's contention for the applicants that if the consultation process itself can be argued to be flawed there is no requirement that challenge must wait upon the outcome, since ex hypothesi any outcome may be vitiated. The reason why the applicants make the assumption that the outcome of the consultation is going to be adverse to them emerges from one of the grounds of challenge. These are:
A A failure of the Secretary of State in the new consultation document to recognise and state that he has changed or departed from his announced policy.
B A failure of the Secretary of State to consult again from scratch rather than simply fill the space left by the judgment of Latham J
C Elements of bias which are detectable in the present process, and flaw it irremediably.
D The failure of the Secretary of State to specify the permitted number of aircraft movements per night rather than per season.
In relation to all of these grounds I accept Mr Maclean's submission that the want of an identifiable decision is not fatal to an application for judicial review: see R v Secretary of State for Employment ex parte Equal Opportunities Commission  1 AC 1,  1 All ER 910 at page 26 (per Lord Keith) and 34-36 (per Lord Browne-Wilkinson) of the former report. If it is arguable that the new consultation is proceeding on a false basis which is justiciable in law, there will be every reason to lean in favour of deciding the issue sooner rather than later. As to time, Miss Rose for the Secretary of State submits that to the extent that the present challenges are directed to the proposed quotas, these are the same as were proposed in the 1993 consultation paper, with the result that the application is made more than two years after the date when grounds for the application first arose: cf. RSC Ord 53, r 4. This is true, but whether the particular issues have been allowed to sleep during those two years or are now being canvassed as a legitimate further step in a continuing process of challenge and fresh decision-making will depend upon the subject matter, to which I now turn.
The first two issues which I have identified are described together in the applicant's form 86a as 'The non compliance issue', but I think it is helpful to separate them as Mr Maclean has done in argument. The third ground of challenge he has identified as 'The consultation issue' and the fourth as 'The flight specification issue'.
The first ground on which Latham J intervened and gave declaratory relief was that the consultation paper of January 1993 was 'materially misleading' in, on the one hand, enunciating in para 34 the 1988 policy 'not to allow a worsening of noise at night' and purporting to act 'in keeping with' the policy, and on the other hand in para 36 introducing proposals which on microscopic analysis could be discerned to have an opposite effect. In the applicant's favour it may be said that if Latham J could give effect to this conclusion post hoc by means of declaratory relief, the court might equally have given pre-emptive relief without waiting for the conclusion of the consultation, had the point been spotted and brought to its attention earlier. What is now said is that the same situation has been reached again because the new consultation paper, far from facing up to the conflict between the pre-enunciated policy and the noise quota proposals, fudges the issue again. On the one hand it gives data from which it can be more readily discerned that although the permitted noise levels are to be lower than they were previously, they will be higher than the actual noise levels experienced in the previous five-year period, with the result that noise at night could worsen. On the other hand it repeats the renewal, in para 34 of the 1993 consultation paper, of the undertaking not to allow a worsening of noise at night. Rather than admit that these are entirely discrepant proposals the paper goes on in para 7 to say:
'Paragraphs 34 and 36 [of the 1993 paper] were intended to explain that it was proposed that the noise quotas for the next five years should be set at a level which would permit less noise than was permitted by the movement quotas at Heathrow and Gatwick for summer 1988. The proposal was to impose noise quotas so that the maximum level of noise generated would be less than the level that could have been generated by aircraft operating to the full extent permitted in the summer 1988, assuming the same mix of aircraft types was actually operated at night at those airports in summer 1988.'
Paragraph 10 of the 1995 paper goes on to set out what a comparison of actual rather than permitted movements would have shown. Maintaining the present regime, the paper concludes
"will fulfil the government's intention of keeping noise levels at Heathrow below those permitted in summer 1988 and maintain the essential balance between the interests of the airline industry and local people."
Mr Maclean accepts that, however grudgingly, the new paper meets Latham J's first criticism but not his second, which was that the Secretary of State had apparently failed to recognise that he was departing from his own policy in the proposals that he was making. At more than one point the 1995 paper and the associated press release suggest, quite erroneously, that it was only on his first ground that Latham J had found against the respondent. Paragraph 4 of the Notes to Editors at the end of the press release puts it most sharply:
"Following further judicial review proceedings, Mr Justice Latham ruled on 20 December 1994 that the original consultation was defective in respect of Heathrow because para 34 did not express clearly enough that the proposals related to permitted noise levels, as opposed to actual noise levels, in summer 1988. The Department won in respect of the other grounds on which it was challenged."
The new paper, Mr Maclean submits, accordingly contains no recognition whatever on the part of the Secretary of State that he was and still is putting up proposals which fly in the face of his own policy.
Miss Rose submits that the second of Latham J's grounds of intervention had nothing to do with the consultation process. The consultation issue, she submits, was the apparent inconsistency between para 34 of the 1993 paper, and the proposed permitted noise levels. Paragraph 7 of the 1995 paper, she submits, now sets out a new policy, with the consequence that the proposals no longer conflict with it: the new permitted levels will exceed the past actual levels but will be less than the former permitted levels. The policy is now to make a legitimate comparison between one permitted level and another, and the Secretary of State's stance is that to do so is in keeping with the 1988 undertaking. Because the limits are prescribed not night by night but season by season (and this is precisely the subject of Mr Maclean's fourth head of challenge) the actual noise level in any one night can go up to the current maximum as well as down, as the airlines decide.
I have to say that I find the presentation and reasoning of the 1995 consultation paper devious and deeply unattractive. Instead of accepting that the new permitted noise levels, although lower than the previous ones, will actually allow a worsening of noise at night and so directly contravene the policy reiterated in both the 1993 and the 1995 consultation papers, the 1995 paper continues the attempt to pretend that the two are consistent, and Miss Rose in defending the attempt with her usual candour and skill is driven to submit that the comparative permitted levels are themselves the newly articulated policy.
If this court were a court of merits I would have no hesitation whatever in granting leave to challenge this farrago of equivocation. But the purpose of judicial review is to ensure that government is conducted within the law. Whereas a misleading consultation document such as was before Latham J will rightly attract the eye of the law because it subverts the legal purpose of consultation, a consultation document of which the inconsistencies and contradictions are patent, so that they can be readily recognised and commented upon by those consulted, lies properly within the purview of the political process and not of the law. Why it was not possible in formulating the new consultation paper openly to admit that the proposed admitted levels, set as they were season by season rather than night by night, would allow noise levels at night to be greater than those experienced over the last five years, though not as great as they might previously have been, rather than to try to give the impression that the former policy and the new proposals (now dignified as a different policy) are consistent with one another when plainly they are not, I do not know. But Miss Rose is in my judgment right when she submits that any such inconsistency is there for all to see and to point out to the Secretary of State in the course of the consultation process. It cannot be for the courts to stand over Departments of State and to scrutinise the candour and consistency of every green paper or policy document which emanates from them. It is for the courts to ensure that government does not mislead in the process of consulting, and this the court has done. The issue now sought to be canvassed, while important and real, is not in my view justiciable.
Latham J's second ground of intervention was that the Secretary of State had evidently failed to appreciate that his proposals controverted his policy. It is quite true, as Mr Maclean points out, that the 1995 consultation paper and the associated press release suggest that the Secretary of State has shut his eyes to this finding. But it forms part of the declaration granted, and the conflict to which the declaration draws the Secretary of State's and the world's attention is, as I have said, now patent on the face of the new consultation paper. There is no arguable further requirement of law that the Secretary of State should in the new consultation paper have expressly admitted his fault. Again, it is an unhappy fact that the departmental recognition of the true ambit and effect of Latham J's considered judgment is grudging and minimal; but the fact that this is so does not turn what is otherwise a non-justiciable issue into a justiciable one.
The election of the Secretary of State to consult again, as he has done, only on the issue of permitted and actual noise levels is not, in my view, a matter on which the court would be entitled to intervene. Nothing in the judgment of Latham J or in the declaration granted by him calls upon the Secretary of State to repair his omission by consulting again at large rather than on the particular matter as to which he had been found at fault.
The new consultation paper makes it clear that it is associated with the earlier consultation papers and gives information about obtaining copies of these. The prolonged consultation process remains a single process, and the judgment of Latham J does not arguably require it to be recommenced.
Mr Maclean accepts that his contentions under this head and the next one will merit the grant of leave only as ancillaries of his principal grounds. Nevertheless, it may be helpful to record that the submission of the applicants is that the proposed respondent has
(a) taken into account immaterial considerations, namely investment decisions made by the airlines and the possibility that the airlines will sue him if he moves away from his unlawfully-decided proposals;
(b) unfairly had prior consultations with airlines and Members of Parliament; and
(c) prejudged the outcome of the consultation.
The first of these points is based on a quotation in the recent press notice from the Secretary of State:
"I recognise that the airlines have made investment decisions on this basis"-
that is to say, on the basis that the restrictions current in 1993 would last for five years. To this is added an unattributed news item from the Richmond and Twickenham Times that the Secretary of State
"was forced into the decision [to stick to his guns] by lawyers who advised him that if he reduced the number of night flights into and out of Heathrow airport, the airlines could take legal action against him, and win."
It does not take private consultation with the airlines to enable a Minister to recognise that they will have made investment decisions on the basis of proposals or decisions extant in 1993. And while one's curiosity is whetted by a news item suggesting that lawyers have advised that a lawsuit can be won on the basis of a decision which the courts have declared to have been unlawfully arrived at, the unattributed report is no basis for the grant of leave.
The press notice goes on to say that the Secretary of State has taken careful note of representations made to him by MPs who are concerned about aircraft noise at night. Apart from the fact that such representations will have gone in a direction favoured by the present applicants, it is the normal expectation that Secretaries of State will take note of MPs' representations: the process is not a form of clandestine lobbying or a surrogate for public consultation.
As to pre-judgment, it is sufficient to say that none of the material relied on begins to afford evidence of this. At its very highest it suggests that MPs are looking to the end rather than the beginning of the new five year period and are therefore not sanguine about achieving any change in the meantime. This may well indicate that they share the applicants' scepticism about the consultation process, but it comes nowhere near establishing that the process is a sham. I do not say that the constitutional and legal propriety of the private lobbying of ministers in the discharge of their statutory functions cannot be a proper subject of judicial review; but the evidence before me does not show this arguably to be such a case.
Latham J had before him a submission that s 78, properly construed, required the Secretary of State to set noise level limits for each night of the year, so that it was impermissible for him to use simply the summer and winter seasons as the unit of calculation. Latham J rejected this argument, holding:
"It seems to me that s 78 permits the respondent complete discretion to determine what the 'periods' of limitation are to be".
For obvious and understandable reasons, no attempt was made by the successful applicants to appeal against the adverse finding on this point. It is not res judicata; nor is it, what Miss Rose was initially disposed to argue, an abuse of process to seek to reopen the point. The fact that Latham J has found against it does not mean that the point is unarguable. But what does, in my judgment, count decisively against granting leave to argue it at the present stage is that within the four corners of Latham J's construction of the section it is open to the Secretary of State, at the conclusion of this consultation, to use the night rather than the season as the unit of calculation. Moreover, if he declines to do so, but only then, it may become arguable that his ostensibly free choice of period is constrained either by the policy of the statute or by the matters he is seeking to regulate or by both so as to compel the setting of night-by-night rather than season-by-season noise level limits. Whether or not this comes about, and whether in the exercise of its discretion the court were ultimately disposed to allow the point decided by Latham J to be recanvassed, there is no tangible benefit in canvassing it now and a perceptible potential benefit in reconsidering the whole issue after the Secretary of State has considered submissions that he should exercise what Latham J has held is his discretion so as to govern permitted noise levels night by night.
For these reasons, and without seeking to preclude or pre-empt issues which may arise in the wake of the Secretary of State's eventual decision, I do not consider that on any of the grounds advanced the present is a proper case for the grant of leave.