4740. I thought you were expert on this.

   (Mr Schabas) I am, but, I am sorry, that is not how I have understood alternatives analysis is normally done and that is not how it is normally done and not what would be considered good practice normally, but if you want to legally define it—

  4741. If that is your understanding of what the Directive means so be it. That is fine.

   (Mr Schabas) To be honest, I guess we are waiting to see how the Directive ends up being interpreted in a judicial review and at some point it will be interpreted, but certainly where alternatives analysis is required in other countries you have to look seriously at alternatives like this. If you did not look at going straight but you did a big hook instead, I think the courts would say, "You have ignored what is a pretty obvious alternative and you should have looked at it", but we will see, I guess, at some point.

  4742. CHAIRMAN: We certainly will.

  4743. MR HORTON: My Lord, I think I have done it in 30 without your gracious addition.

  4744. CHAIRMAN: You are doing very well, but I have got my eye on it.

  4745. MR HORTON: I think that Mr Schabas has said all that I can ask him to say.

  4746. CHAIRMAN: I do not know if Mr Elvin has got any questions for him.

  4747. MR ELVIN: Mr Schabas, as I understand the points you have just made, you said that as a matter of good practice this alternative should have been considered?

   (Mr Schabas) Yes.

  4748. Do you agree that as a matter of fact it was not a main alternative which the Promoter actually studied?

   (Mr Schabas) I think that comes to your definition of a main alternative.

  4749. I am sorry, do you agree it was not a main alternative in your language --- Stop looking at Mr Horton and answer my question. Do you agree with my proposition that so far as you are concerned you seem to think this is a main alternative, but it was not one which, in your view, was studied by the Promoter?

   (Mr Schabas) To me it is a main alternative to go between Whitechapel and Liverpool Street and it was clearly not studied by the Promoter except very superficially in this thing we have before us.

  4750. Your evidence is that, as a matter of fact, it was not a main alternative studied by the developer.

   (Mr Schabas) People keep wanting me to play lawyer. I heard what you said before. I think what you said—if you read literally the instructions, it is not what you define as a main alternative and it was not studied by the Promoters—on that basis, that is an interpretation.

  4751. MR ELVIN: Thank you.

  4752. MR HORTON: I have no re-examination.

  4753. CHAIRMAN: Mr Elvin, do you want to call Mr Berryman on this?

  4754. MR ELVIN: My Lord Chairman, I will advance the case on the basis that the document is already before the Committee. I will be calling Mr Berryman, but on matters such as lorry routing around Hanbury Street and Spitalfields. Because this goes, in my submission, to the merits of the alternatives rather than the legal principle, I am content to rest my legal submissions on the points I have set out in my note and on the documents.

  4755. CHAIRMAN: So you do not wish to call him.

  4756. MR ELVIN: I do not wish to call Mr Berryman.

  4757. CHAIRMAN: In that case, Mr Horton, it is over to you. We want to know in what way does this infringe the principles of the European Community Directive. You may express a view by way of a submission as to what "main alternative" means. I sympathise with Mr Schabas.

  4758. MR HORTON: I have largely made the submission—when addressing you yesterday on behalf of Spitalfields Small Business Association—so I will seek to be selective, so as to avoid needless repetition.

  4759. You looked at the Directive yesterday and you are familiar with its language. In particular, you will recollect: "The information to be provided by the developer in accordance with paragraph 1 shall include at least" and, then, the fourth paragraph, "an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice ... "[14] The Committee already has my submission that the Promoters' case is that, as a matter of fact, which your Petitioners accept, it did not regard Route B on the Spitalfields section as a main alternative within the expression in this Directive.