Philosophy & Public Affairs
BUSINESS & PROFESSIONAL ETHICSJOURNAL, VOL. 6, NO. 2
PUBLISHED BY PRINCETON UNIVERSITY PRESS
The Worm and the Juggernaut: Justice and the Public Interest
J R Lucas
In Britain I have had many occasions to speak at public Inquiries, nearly always against some proposal to build a new road in some locality I live in or like. I have often had thoughts about how very bad the British system is, and how much better these question are considered and decided elsewhere, and in thinking about the matter have been led to ponder the nature of the decision being reached, and the proper principles which ought to govern the decision procedure.
Roads are immensely popular with all those who do not live near them. Motorists want to get from A to B as quickly and conveniently as possible, and are impatient. Twenty seconds at a red light is a vexation, and a minute's delay is intolerable. In a modern car motorists are shielded both from the sound of their engines and from the smell of their exhausts. As I drove along the M25 on my way to Gatwick, I was able to appreciate the rural beauty of Surrey: but I did not smell my own exhaust, and discounted the noise I made. In consequence motorists have little conception of the pollution they cause in their passage from A to B, and for that reason, quite apart from the selfishness that is a pervasive feature of the human condition, little concern for the people who live along their route. Motorists are also the most articulate part of the population, who have much more money and clout than those who are motored against. There is thus strong electoral support for road-building, and the Department of Transport can count on getting Parliament to override even its own enactments designed to protect National Parks if it wants to put a road through them. But roads are equally unpopular locally. Nobody likes having a traffic sewer through his front garden. They are much more disruptive than a real sewage works because they are noisy as well as smelly, and dangerous to children and livestock. They are also more continuously disturbing than a railway, and more obtrusive than a nuclear power station. Only an airport arouses comparable local opposition.
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In each Inquiry I have attended there has been a handful of local opponents, either residents, or farmers whose farms will be sliced in two, or representatives of local amenity societies. They are ardent, but often despondent. They stand to lose an immense amount---sometimes their livelihoods, sometimes their homes, often their way of life, if the scheme goes through. They have researched their case as well as they can and are quite convinced of the rightness of their cause, and are sure that if only reason were to prevail and justice be done they would win. But they fear at the bottom of their hearts that the Inspector was not appointed, and is not there, to listen to reason or to do justice. Against them are arrayed the massed forces of the Department, attorneys, traffic experts, statisticians, and engineers. They are visibly less concerned---often indeed rather bored. They know they are going to win, and that the whole exercise is only a charade. But even if they did not win, it would not affect them personally. Their jobs their houses, their neighbourhoods are not at risk. At the end of the day they will go home unworried at the outcome. If there were a hiccough and the Inspector decided against them, it would be a bore---they would have to endure another Inquiry to get the right decision-but it would be no skin off their noses.
The men from the Department are also unworried because they are sure they are right. They represent the public interest. Of course it is conceivable that they have made some mistake; it could be that their computer simulation of the future growth of traffic has ignored some factor later found to be relevant. But then they will learn from their mistakes, and improve their method of forecasting next time round. They are not infallible, and freely acknowledge tliat: but they know that they are disinterested, doing the best for the public they can, and not like the objectors, merely obstructing the march of progress for purely selfish reasons. Often the Counsel for the Department will make the point explicitly, and tax each one of the objectors with putting his personal interest above the public good. And often the objectors have a suspicion that that may be true, and feel guilty about not offering themselves up on the altar of the public interest. I remember having to give an Archdeacon, who was to represent his diocese at an Inquiry into a third London Airport, a long tutorial on the Christian doctrine of man, before he could feel happy in expressing local interests in the context of a national Inquiry.
The objectors are, with a few exceptions, unorganized. They come, and speak their piece, usually reading from a written document, and the
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spokesman for the Department questions them, and then usually puts forward a rebuttal which they are free to question. The procedure is like, although not quite as formal as, that of a court of law, with the Department in the role of the prosecution and the objector as the accused, except that the burden of proof is reversed, and more than reversed. At the end of the Inquiry the Inspector goes away and writes his report, and submits it to the Minister. The report is not a judgement. It has no independent standing. If the Department does not like it, they will send it back to the Inspector, criticizing it in detail, and telling him to rewrite it. I am told that Inspector Edge, who conducted the M3 Inquiry on the proposal to route the M3 through Winchester, was told to go away and think again twice before his report was finally delivered to the Minister. When it is finally submitted, it is informative and advisory only. It tells the Minister what the objections to the proposal are, and makes some recommendations which the Minister is free to reject, and sometimes does. Not that he often does, for it is rare for the Inspector to come down substantially against the proposals. On the Civil Service view, that just reflects the fact that the proposals were well thought out and serve the public interest effectively and economically. But there is room for doubt. The conceptual assumptions do not stand serious scrutiny, and the constitutional assumptions are unappealing. During the years the Departments have been active, the volume of protest has increased dramatically; and it is clear that it is not only a concern for particular interests or for the environment generally that has fuelled the protests, but a strong sense of injustice. I remember the scene in the Guildhall in Winchester on June 29, 1976, when the citizens of the staidest locality in Britain disrupted the Public Inquiry and shouted down their MP because they felt that the whole process was just a charade. Over the years the Departments have been made to concede a number of important changes in an attempt to restore public confidence. But they have not accepted the underlying rationale of the changes, or taken them to their logical conclusion, and this because of an underlying myth of the public interest which holds the British Constitution, as well as many political thinkers elsewhere, in its thrall.
Since the time of Plato we have been inclined to think the pursuit of selfinterest as bad, and to suppose that the public interest is opposed to it, is good, and can be discovered by dedicated public servants who are intellectually competent and committed to the public service. This is particularly so in Britain, with its monarchical constitution and an administrative elite, reared on Plato's Republic and selected by public examination; but in other
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countries too it is noteworthy how much the executive arm of government has grown, with its trained bureaucracy in comparison with the legislative and judicial arms. There has been considerable criticism of the authority of civil servants to reach decisions in the public interest, but little examination of the concept itself. Popular election is regarded as the ultimate legitimator, but it is evident that most decisions taken in the name of the public or a Minister of the Crown are ones in which popular election has played only a very tenuous part.
It was only gradually that I myself came to see that the public interest was not the monolithic uniform entity that it was taken to be by most thinkers about public affairs. The symbolism of the crown in British history---a circle in which all the points on the circumference are gathered together---can be understood in two ways: it can be taken to mean that the public interest is what we all really want, so that no conflict of interest is really possible; but it has also expressed the thought that each individual point is an essential component of the whole. In the development of our criminal law this latter interpretation has led to a bifurcation in the role of the crown: on the one hand Regina is a party to the trial, with counsel pressing the prosecution case; on the other the Queen's Justices are there to see justice done, and to protect the rights of the accused and to ensure that due process of law is observed, and he is deprived of his life, liberty, property, or good name, only if an unquestionable case has been made out. There is an undoubted public interest in having criminals locked up or otherwise duly penalised: but there is also a public interest in maintaining the rights of the subject inviolate. The public interest is not a simple thing of which any expert can confidently speak, but a multi-faceted concept, in which there is always a likelihood of a non as well as a sic, which needs to be sensitively balanced, not just calculated.
If the public interest has this nature, it needs to be brought into the debate in a different way. The experts should not just present their findings, but should expose their reasoning to critical and informed scrutiny: the objections are not just nuisances to be corralled off in the most effective way, but both are performing a valuable function in questioning the proposals, and represent an important and ineliminable part of the public interest itselc
Once we abandon the errors of Platonism and Utilitarianism we no longer think of the public interest as something that can be seen by the eye of the mind or calculated by a cost-benefit analysis, but regard it as being inherently open to question, in which we are always having to weigh one consideration
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against another: my love of my favourite beauty spot against the Government's desire to dump nuclear waste there. The structure of the argument is what I term dialectical. And for this sort of argument to proceed, it is essential that the opposite case be fully and effectively put. And if it is put well, many bad decisions will be avoided. I cannot speak for the United States, but in Great Britain one chief cause of economic decline has been bad decision-making on the grand scale by the Central Government---Concord, the Humber Bridge, the Kielder and Cow Green reservoirs. Nor is this surprising. Although Civil Servants and Ministers think of themselves as disinterested Platonic guardians, they are subject to the same temptations of self-aggrandise'ment, both individual and corporate, as the rest of us. They like to feel that they have made their mark on the world, and are naturally drawn to the big project, and less sensitive to the value of the widows back yard. This is not to accuse the officials of wickedness or to deny that they sometimes try to consider all sides of the case. But they do not, and cannot, always succeed. The very zeal they bring to one part of their duties prevents them being able adequately to discharge this function for much the same reason as the zeal of the police in catching malefactors disqualifies them from reaching a just verdict or imposing a fair punishment.
Several consequences follow from this principle of good decision-making. Objections should be welcomed, not wished away; they should be made effective, not ineffective; the Department's facts and figures should be made completely available; secret communications between Department and Inspector should be forbidden by statute. The first of these points has been conceded in part over recent years. In law no private individual has a right to object unless he has land that would be compulsorily purchased. This made it possible for the Counsel for the Department to employ its Catch 22 question "What locus standi do you have?" If the objector did not have a clear financial interest, he was a mere public busybody who did not deserve to have any notice taken of him; if he did, he was a selfish individual setting private interest above the public good. Such an approach, although often effective in silencing an objector, has been found to be counter-productive: although the English language has almost lost the word "disinterested", the concept remains, and the most vocal and most effective objectors have been those moved by a manifestly disinterested interest in the environment, who could not really be silenced. And now almost any objector is given a hearing, de facts and not de jure.
Objections should not only be welcomed, but made effective. Again, there
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has been some shift. When I first appeared at an Inquiry, in 1972, the objectors did not even know who the other objectors were, and had no chance of coordinating their efforts. Later, at a Public Inquiry into a structure plan, there was a preliminary meeting for just this purpose, and the practice has spread. But much more could be done. Again, an analogy with the criminal law is pertinent. We provide, out of public funds, legal aid for the accused, because it is in the public interest that his case should be put properly, and the prosecution's case properly tested. The effectiveness of the objector's case depends very much on presentation. The few occasions in Britain where the objectors have been successful have almost all been ones where their case was put by someone---usually John Tyme or Mark Sullivan---who had mastered the intricacies of the procedure, the policies ostensibly pursued by the Department, and the minutiae of cost-benerit analysis. People jib at their being paid out of public funds. I do not. Quite apart from that, I should like to put forward two other suggestions, which could be seen as following on the line of advance laid out by Programming Officers. The Programming Officer arranges the order of business so as to minimise inconvenience to objectors. If an objector can only be present on certain days, he arranges the timetable to suit. This is a great improvement on the Courts of Law which attach zero value to witness's time, and often fail to do justice in consequence. The friendly and co-operative attitude of Programming Officers has done much to reduce the temperature at Public Inquiries in Britain recently. Two other officials could do more to help, One would be an amicus curiae, whose duty would be to ensure that the Inquiry was apprised of the full force of an objector's case by asking further questions either of the objector or of the Department, so that lack of forensic skill did not result in some considerations being overlooked. The other official (perhaps combined in the same man) would be more of a solicitor than a barrister, who again would help objectors to put their case properly. I myself have been greatly helped by being told which motorways have four lanes, which have no hard shoulder, on what page of Hansard the Minister stated the Department's policy, etc.
Access to information is also important. The Department's experts have mounted long research programmes, funded by the public, which cannot possibly be matched by an individual objector. The individual objector, although a member of the public, and paying for the Department's research has no access to their fmdings apart from what the Department chooses to reveal. Just as in the Criminal Law the brief of the prosecution is not to win at all costs, but to enable the court to do justice, so the Department's
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research should not be seen solely as furthering the Department's proposals, but as available for informed public decision-making.
The requirements of good decision-making also rule out secret communications between Department and Inspector, since if they are secret, they are unchecked and prone to error, but the chief ground for this as well as some other safeguards is not so much to prevent bad decisions being made but to ensure that due weight be given to private interests. Civil Servants, and opinion formers generally, tend to discount private interests, and make out that they should be discounted because each person wants the horror not to be in his own back yard, we all want the horror to be located somewhere else. But that is' to mis-put the issue. We need to universalise, and ask each motorist anxious to have another bit of motorway built whether he assents to its being built through his back yard, rather than somebody else's. Instead of a crude utilitarian cost-benefit analysis we need to weight the interests of the losers, because although they are few, their loss is great and may be catastrophic. This is what it is to be guided by justice, rather than utility, treating people not merely as units but as individuals, each with his own life to live and his own set of values to be respected.
It follows that it must be possible, and manifestly possible, for an Inspector to turn down a Department's proposals. The null alternative must be taken seriously. I have often been taxed with this, and asked whether I have considered what it would be like for the inhabitants of Exeter, Winchester, Banbury or Okehampton if no road were built. And when I say that I have, and that we ought certainly to consider it, I am met with gasps of dismay and accusations of being unrealistic. The Department of Transport says further that it is to question policy, and that is something an Inspector may not do. But I am impenitent. Although British law says the only way I may argue that it should not be in my, your, or his, back yard is to pick on someone else and suggest it should be in his back yard, justice and logic alike point to another alternative being considered, namely that it should not be in anybody's back yard at all, because we just do without it. As far as roads are concerned, one point I often make is that although those living in the town are complaining very loudly, they have mostly chosen to live along an urban road, and enjoy urban advantages and have paid a lower price on account of traffic nuisance, whereas those who are living in the country are having something thrust upon them, which they very much had not chosen, and will not be adequately compensated for. Of course, from a utilitarian point of view this is no argument at all, but that is because utilitarianism, like all
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forms of consequentialism, takes no account of the past, and so cannot reach a reasonable view of the matter. The other point I make when arguing against a bypass is that roads generate traffic, and as fast as congestion is removed from a town of more than 20,000 inhabitants, people abandon buses and bicycles and take to cars instead. The last state is no better than the first, and the countryside has been ruined. What has cleared traffic out of Oxford is not new roads but the closure of old roads, pedestrian streets and a Park-and-Ride System.
The point is provocative, and needs to be generalised. Many of the facilities we use---road space, water, electricity-are not properly costed. Haulage operators do not pay their neighbourhood costs, nor does Didcot power station. So long as they do not, the cost benefit analysis is bound to come out wrong. The Roskill Commission valued a Norman Church at £2,000: a Department of Transport study on pedestrian crossings valued the life of an old age pensioner at £0. Costs are under-considered, benefits overestimated, so that almost any government project---the only exception is Concord-can be justified by a suitably massaged edition of COBA. This is not to suggest that we should never calculate costs and benefits--although shortly I shall suggest an alternative approach which is often more appropriate--but that we should be wary about calculating costs, and should accept that instead of dumping a facility in somebody's back yard, we should price it more realistically, and thus bring demand into balance with supply. "No" should be a possible outcome of an Inquiry.
Even if important costs were not discounted or ignored, cost-benefit analysis is often largely a matter of guestimates, and where important interests of individuals are at stake, it shows lamentable lack of concern to decide questions by looking into a crystal ball. Other questions are less speculative and more germane. In particular we should often concentrate on what would go wrong if certain assumptions proved false. At present the Inspector is presented with figures about future growth, sometimes economic growth, sometimes traffic growth, which are alleged to prove the need for a new road, but which are in the nature of the case fallible, and admitted to be so. Still, in the absence of a scheme for evaluation, they are readily taken as absolutely authoritative. What we really should do is not to consider just the experts' best guess, or even a range of guestimates, but first identify the conditions under which they may prove true or false, and then try to Assess the Cost of their being Erroneous-ACE. If a water authority underestimates future demand by 10%, nobody is going to die, although some cars
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may go unwashed. Electric supplies are more sensitive. A slight underprovision will result in load shedding, and many essential services depend on the availability of the mains supply. In Britain roads are built to cater for peak demand-a road counts as congested if there are thirty hours in a year in which traffic cannot travel at full speed. But there is no need to insure against congestion, as there arguably is a need to insure against a shortfall of electricity. This method would not only reduce the tendency to public extravagance and make it easier to adopt the null alternative, but would ensure that when the answer was not No, and a course of action was being recommended which would bear hardly on some individual's back yard, it would be done so for good and compelling reason whose cogency even the individual affected would accept and endorse.
Although "No" should be a possible outcome of an Inquiry, it should not be the only possible one. Sometimes the Department is right, and objections should be overruled. But if so, the decision needs to be reached reluctantly, and for manifest good reason. It was for this reason in time past that judges were made independent of the crown, even though dispensing justice in the crown's name, and it is for this reason, now, that we are demanding that Inspectors be really and visibly independent of the executive. Once again, under the pressure of public opinion the Departments have conceded one point, without taking in its full implications. Inspectors are now appointed by the Lord Chancellor, and no longer by the Department concerned. But much more is needed to protect their independence. They need to be given statutory protection from secret pressure from the Department, and to be of an intellectual calibre to understand the issues involved and moral calibre to stand up to the Department throughout the whole business. I remember the frustration and sense of injustice I experienced when addressing arguments of a general social and environmental kind to an Inspector who seemed to understand only radii of curvature and stresses in concrete. Once again there has been some change. Nobody could complain, on the score of intellect or of independence, about Air-Vice Marshall Sir Michael Giddings, to name one particular inspector who has been much in the public eye recently, but not every inspector is of his calibre, and a public recognition of their independence will only come from a series of decisions that are evidently not what the government wanted.
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