The Times

September 09, 2002

Trapped in the immoral maze

Powerful people do not regard themselves as cheats. In the first extract from her new book, Sue Cameron says that anyone trying to right a wrong faces bureaucratic bungling, incompetence and abuse of power by those in authority

Sue Cameron
The Times

The cheating classes are among the most privileged members of society. They are people with clout. Often they are wealthy: lawyers, bankers, politicians, bureaucrats. Few think of themselves as cheats yet rarely a day goes by without some of these influential individuals inflicting injustices, great and small, on ordinary men and women.

More and more people feel excluded from decisions that affect their lives, decisions that are often arbitrary and against which there is no appeal. The voiceless ones. Those whose freedoms are being curtailed, whose demands for decent treatment are being ignored and who find it almost impossible to get redress when they are steamrollered by the big battalions, by Whitehall, by greedy or incompetent professionals or by officialdom in all its forms.

There are mechanisms for ordinary people to achieve justice: the law, Parliament, the Ombudsman and a legion of regulators. Yet those who challenge the System can find that it takes years of fighting through the courts or battling with bureaucracy to have their wrongs righted. Our old institutions are no longer up to the job of protecting the public. Despite piecemeal reform, all too often they fail those who are outside the small, select circle of influence.

The Rich Man’s Tale

MAURICE BALCHIN had it all. Well, most of it. At 52, he had a happy and enduring marriage, two children who were doing well at school, a highly successful building business. And he had Swan’s Harbour.

Swan’s Harbour was the most perfect place on earth in Maurice’s eyes. It was set on the Norfolk Broads with grounds that swept down to the river Bure. He had built the house himself, fulfilling a dream that he had had since he was young. He always said that he would never want to go on holiday as long as he had Swan’s Harbour.

The first sign of a shadow came one morning in 1987. As Maurice was getting into his car to go to work, he saw his neighbour, Liz Holt, walking down his drive. She looked troubled. “Maurice,” she said, “have you heard about plans to build a Wroxham bypass? There’s talk of it going through here.” Maurice smiled. “No, Liz. But I wouldn’t worry about rumours. This is the last place anyone is going to build a bypass.”

When he next spoke to Liz it was to hear that she and her husband were moving. “But why?” asked Maurice. “The bypass,” she said. “I mentioned it to you ages ago. We checked with the council: it’s going ahead, and coming straight through our land. We went to see them and they offered us compensation, so we’re off. I’m amazed that you don’t know about it. Hasn’t the council been in touch?” Maurice felt surprise, fear, bafflement and anger in quick succession. “Well, I’m glad somebody’s bothered to tell me,” he said. “I’d better get in touch with the council right away.” So it was that Maurice fell into the hands of his local bureaucrats.

When the council confirmed to the Balchins that there were plans to build a bypass right beside Swan’s Harbour, Maurice gave full vent to his feelings. He had huge rows with various officials, but no one seemed to be in charge. Realising that he might not be able to stop the building of the bypass, Maurice decided that his first task was to ensure that, if the road went ahead, he and his family would be properly compensated by the local authority compulsorily purchasing his property.

Apart from anything else, Swan’s Harbour had been pledged to the bank as security for the loans that Maurice had taken out to finance his property development business. The work that had been done on the house and grounds meant that it was now a substantial asset. Maurice reckoned it was worth £400,000. The Balchins established that although the bypass would not cross their land, it would be horribly close: it was to rise up on its concrete pillars just 15m (49ft) from their bedroom window. The Balchins faced a serious financial loss. A council planning inspector agreed wholeheartedly when Maurice insisted that “no one in their right mind will want to buy Swan’s Harbour now”. The inspector seemed sympathetic, telling Maurice that the council would look after the Balchins.

Early in 1988, Maurice had a call from the bank. It wanted to know what “Mr Balchin” knew about the bypass. It wanted “Mr Balchin” to come in and have a chat. Maurice had been on first-name terms with most of the area’s senior NatWest managers for years. He did not like this sudden formality.

That was at the beginning of the week; on Friday morning, when he went to his bank, he was told that he would not be able to draw out any money that day. Every one of his accounts — his business account, his personal account, his wife’s account, the account for his employees’ wages — had been stopped. Moreover, the bank recalled all the money it had lent Maurice. The manager seemed unimpressed by his assurances that Norfolk County Council would compensate him. Did he have proof, in writing, that the council would pay? Maurice did not. That day he had to draw cash for their food from his building society account.

He rang the council. He was put through to a Mr MacLeod. The council had discussed the matter. It had no plans to pay Maurice compensation. Norfolk council was able to set its face against what was right because of an omission in the law. English law lays down that authorities can make a compulsory purchase of land when this is deemed to be for the public good — such as to build a new road. Any questions as to whether they are offering a fair price, can be taken to an independent adjudicator. But the law does not force the authorities to pay when a property will be blighted by a motorway that is going to run right beside someone’s land but not on it. The road would go very near Maurice and Audrey’s bedroom window, but not actually cross their grounds. The council, therefore, was not required to purchase their land.

Maurice and Audrey found themselves living an increasingly hand-to-mouth existence. Not that they were thrown into penury on day one; Maurice was a wealthy man. He had other property that he rented out and he had his business. But he was having to draw on his own savings and assets to pay wages and meet household bills. The properties were sold off, then Audrey’s sports car, then the boat. The cash shortage started to affect the business. Maurice grew worried about whether he could pay his employees’ wages at the end of each week. Eventually the day came when he knew that he could not. That year, 1990, his business folded.

Audrey’s health began to suffer. The doctor gave her medication but that did not stop her worrying about being evicted. In the end the doctor told Maurice that the best thing would be to have done with it and to move out of Swan’s Harbour. In 1991 Maurice and Audrey left their idyllic home for the last time. They moved to a little cottage in the Norfolk village of Broome. They eventually sold Swan’s Harbour for £220,000, about half the price it would have fetched had there been no bypass proposal. The money went to pay off borrowings; even then they were still in debt.

Despite everything, the Balchins had not given up all hope of justice. Norfolk council needed approval from the Transport Secretary before it could go ahead with the bypass. The Balchins thought they might have made a breakthrough when they received a copy of the report by the Department of Transport’s inspector. He expressed his concern at what had happened to the Balchins, and stressed that if approval for the bypass was granted, “adequate compensation arrangements should be made urgently in respect of Swan’s Harbour”.

The Balchins’ hopes were raised. It looked as if the Government would force the council to behave honourably. They should have read the small print. At the end of a letter from the Transport Minister to the council came this catch: “Details of the compensation arising in consequence of the confirmation of these orders are for negotiation with the acquiring authority, not with the Secretary of State.”

What that meant was that ministers, for all their avowed sympathy for the Balchins, would not lift a finger to help them. They were going to leave it up to Norfolk councillors, the very people who had behaved so shabbily towards the Balchins in the first place, to decide whether to pay them compensation. Unsurprisingly, they decided not to. Maurice and Audrey were back where they started. It is one of the oldest tricks in the book, but it is no less effective for that: one group of bureaucrats and/or politicians sloughs off responsibility to another set of bureaucrats and/or politicians. The Balchins’ MP, Michael (now Sir Michael) Lord, said there might be another avenue they could pursue. He was a member of the Commons Select Committee on the Parliamentary Commissioner for Administration — the Ombudsman, whose job is to investigate cases of maladministration.

It took the Ombudsman almost a year to investigate the Balchins’ case and deliver his findings. Why it should have taken him so long is not clear. He did not question the facts put before him. He accepted that Maurice and Audrey had suffered great harm. But he found in favour of the Department of Transport and against the Balchins. In his view, the department had not been guilty of maladministration.

The Balchins were shattered. Lord was outraged. In July 1995 he gave a blow-by-blow account of the whole saga on the floor of the Commons. It was an eloquent and moving plea for justice. Yet it brought no solution to the Balchins’ plight. Why was the Commons incapable of making things happen, of forcing ministers, officials and the Ombudsman to act? After all, Parliament is sovereign. What is more, the Balchins’ case was not a party political matter. Yet in the past 20 years or so ministers — and, even more, prime ministers — have done their best to neuter the Commons. Backbench MPs are treated by both main parties as cheerleaders who should accept the party line unquestioningly. Democracy is the poorer. So, too, are ordinary members of the public who have, in effect, been robbed of one avenue for having their wrongs righted.

Yet Lord’s plea on the Balchins’ behalf did not go entirely unanswered. When Stephen Norris, then a junior Transport Minister, rose to speak he said he might have something useful for Mr Lord. He explained that all highways authorities had recently acquired the right to make discretionary payments to anyone who would be badly affected by a new road; the payments could be made before building work began. Norris hoped that by raising the issue, he had given Lord a realistic prospect of pursuing the Balchins’ case further, adding: “No member of this House, certainly not my right honourable friend the Secretary of State, would wish to stand by and see an injustice occur where it is within our power to correct it.”

This pious remark sums up much of what is wrong with the System. It was in the power of ministers to correct the injustice suffered by the Balchins if they had had the political will. Ministers and civil servants could have leant on Norfolk council or could have changed the law and forced them to comply.

Norris clearly believed that he had given the Balchins fresh ammunition to attack Norfolk council. In the event, Maurice and Audrey used it against Norris’s own Department of Transport. They went to court to challenge the Ombudsman’s finding that they had not suffered from maladministration.

Their case was heard by Mr Justice Sedley. Norfolk council claimed that it would be “setting a dangerous precedent” if it used its discretionary powers to help the Balchins. Mr Justice Sedley dismissed this argument, saying it made a nonsense of the word “discretion”. The whole point of discretionary powers was that they should not be governed by precedents or hard-and-fast rules. This was a “textbook example” of what he called “a fettered discretion”.

But it was not just Norfolk council’s conduct that raised doubts in Mr Justice Sedley’s mind. What Norris had not perhaps foreseen was that the judge was not satisfied with the way that Department of Transport officials had behaved, and was particularly unhappy that they had given the minister a background note on the Balchins’ case that made no mention of the new law specifically stating that councils had discretionary powers to buy properties suffering from planning blight. Mr Justice Sedley described the department’s conduct as “on the face of it, highly questionable”.

In 1996 Mr Justice Sedley found in favour of the Balchins, almost ten years after they had started the battle. So great had been the delays in the System and the procrastination by the authorities that the final, surreal touch, when it came, should have been no surprise. In the middle of their High Court battle, Norfolk council decided that the Wroxham bypass would not be built. No one at the council wrote to Maurice to tell him. He read it in the local paper.

Not that it made much difference to the Balchins; they had long since lost Swan’s Harbour and would not benefit when the property rose in value, as it would now do. They would still be ruined unless they could force the authorities to admit that they had been wrong and should pay compensation.

The Balchins went back to the High Court. This time the case was heard by Mr Justice Dyson, who criticised senior civil servants at the Department of Transport, and found for the Balchins. The Ombudsman must think again. Maurice did not allow himself to be too optimistic, and rightly so. After months of consideration, the Ombudsman admitted that there had been maladministration, but said it made no difference because Norfolk council would still have refused to help Maurice. He found against the Balchins.

Disheartened but unbowed, they returned to the High Court. In August 2001, Mr Justice Moses, describing the case as “a disgrace”, gave them leave to go for another judicial review. In July this year Maurice went back to the High Court yet again. He listened as the court heard about the “collective amnesia” of transport officials and the Ombudsman’s refusal to let the Balchins’ lawyers see all the documents relevant to the case. Once again the court found in the Balchins’ favour. All that means is that the case goes back to the Ombudsman. The Balchins, who are on legal aid, reckon the “debate” between the judges and Ombudsman has so far cost taxpayers £2 million.

This is a tale where all of of us are cheated, and still the Balchins wait. Maurice, now 67, says: “We’re innocent people, yet we have had a 15-year sentence. We’ve lost the best working years of our lives.”

© Sue Cameron 2002