Mis-Representation of the Epping Forest Act |
This page is part of the campaign to
Save the Epping Forest Act.
The Home Office published a consultation document, to which I also lodged an objection, as did others, including Kevin Blowe on behalf of the Save Wanstead Flats campaign.
Despite our objections, the Minister of State for Policing and Criminal Justice, Nick Herbert, made a Ministerial Statement in the House of Commons on 20 January 2011 saying that he intended to press ahead with this amendment.
The Coalition Government intends to do this by means of an Order under the Legislative and Regulatory Reform Act 2006. This was described at the time as “the Bill to end all Bills” and the “abolition of Parliament” because it gives any Minister the power to change any piece of legislation. In opposition, the Conservative and Liberal Democrat parties voted solidly against it and Nick Herbert himself went through the no lobby. See here for further notes on opposition to this Act and about the twenty or so uses that have been made of it so far.
However, on this occasion it is the central purpose of an Act that is under threat and the “consultation” mis-represented both the Act and what needs to be changed in it.
The main function of the Epping Forest Act was to put the Forest under the care of the Corporation of the City of London, as Conservators. It is not available online in full, but here are the relevant parts.
Most of discussion in the Consultation Document of the actual amendment to the Epping Forest Act that is proposed and the associated legal issues leads the reader to suppose that the change will be to Section 34. This Section of the Act reads as follows:
If any person, except as authorised by this Act, after the expiration of the present session of Parliament, and before the making of the final award of the arbitrator, makes any new inclosure of land in Epping Forest, or commits any waste, injury, or destruction of the herbage, trees, shrubs, or other growing things in or on any land in the Forest, not by or under this Act allowed to remain inclosed, he shall for every such offence be liable to a penalty not exceeding twenty pounds.
The greater part of the Act was intended to allow the Corporation of the City of London to acquire all of the land in Epping Forest. The Corporation had previously undertaken substantial legal action on behalf of those who had Commoners’ rights against the landowners. The latter were trying to inclose the land, in the 18th and 19th century historical sense, i.e. in order to develop it for agriculture and housing. The Arbitrator was a person who was charged with the task of overseeing the compulsory purchase of the remaining land by the Corporation at a fair price. The original Act allowed him two years in which to do this, but an amending Act extended this to four years.
Section 34 therefore became obsolete in about 1882.
Nevertheless, the Consultation Document contains extensive discussion of this Section: On page 9 (Part 2: The Proposal), it says
In particular section 34 of the Act creates a criminal offence of making a new enclosure of land in the Forest without such enclosure being authorised by the Act.
and later on the same page,
Without such specific authorisation, the enclosure and use of part of the Wanstead Flats for a temporary centre cannot be lawfully authorised by the Corporation. We consider that we have only three options in order to remove the burden of the criminal offence in section 34:
- To acquire the land by compulsory purchase (the 1878 Act does not apply to land no longer owned by the Corporation); or
- To remove the criminal offence in its entirety and make consequential provisions enabling the Corporation to authorise enclosures in Epping Forest; or
- To make specific provision removing the criminal offence which would otherwise attach to the enclosure of land necessary for the Centre and enabling the Corporation to authorise the enclosure of land solely for this purpose for the 2012 Games.
On page 12 (in Part 3: Legal Analysis), it says,
We consider that removing the criminal offence in section 34 which would otherwise attach to the enclosure of land necessary for the temporary Centre is removing a burden (a criminal sanction) within the meaning of the 2006 Act. We furthermore consider that enabling the Corporation to grant permission for the construction of a temporary Centre is an appropriate supplemental provision to the removal of the criminal offence.
and this goes on to say on page 13,
NON-LEGISLATIVE SOLUTIONSSection 34 of the Epping Forest Act 1878 creates a criminal offence "if any person, except as authorised by this Act ... makes any new enclosure of land in Epping Forest". As the proposed temporary enclosure is not currently authorised by the Act, the LRO would amend the Act by authorising the temporary enclosure. Without amending the Act, the construction of the temporary enclosure would be a criminal offence. It is only possible to amend the Act by further legislation.
The only other option which would result in the criminal offence not being applicable to the temporary enclosure would be a compulsory purchase of the land in question; this would mean that the land was no longer subject to the Epping Forest Act. However, we consider that this goes far beyond our proposal and would be disproportionate.
A reasonable person would therefore understand that
However, whilst the main idea of the Section is quoted, the words that limited it in time have been left out of the middle of the quotation.
Most of the Act concerned the transfer of land in the 1880s (so these parts of the Act are now obsolete) and the subsequent day-to-day administration of Epping Forest. The only part that has significant force or is relevant to this issue is Section 7, which reads:
- Subject to the provisions of this Act, the Conservators shall at all times keep Epping Forest uninclosed and unbuilt on, as and open space for the recreation and enjoyment of the public; and they shall by all lawful means prevent, resist, and abate all future inclosures, encroachments, and buildings, and all attempts to inclose, encroach, or build on any part thereof, or to appropriate or use the same, or the soil, timber, or road thereof, or any part thereof, for any purpose inconsistent with the objects of this Act.
- Subject to the provisions of this Act, the Conservators shall not sell, demise, or otherwise alienate any part of the Forest, or concur in any sale, demise or other alienation therefor, or of any part thereof.
This forbids the negotiations that the Corporation of London, acting as the Conservators of Epping Forest, have conducted with the Metropolitan Police Authority.
The only way of legitimising these negotiations would be by means of an amendment including the words “Notwithstanding Section 7 of the Epping Forest Act 1878” or similar. There are no technical clauses in the Act that could be changed instead.
Section 7 is the Epping Forest Act. These are the words that protect the Forest from being turned into further urban sprawl.
Changing it is not “removing a regulatory burden”, which was the purpose of the Legislative and Regulatory Reform Act 2006. Nor does the obstacle that it presents to the Police proposals take the form of a criminal offence: it is a statutory duty of the Conservators. (Section 34 didn’t create a criminal offence even when it was in force.)
So this is the Section that would actually need to be amended and careful reading between the lines of the discussion above indicates that this is what the Home Office intends to do. However, Section 7 only receives a single paragraph of discussion in the Consultation Document. The first mention of Section 34 quoted above, on page 9, goes on to say
In particular section 34 of the Act creates a criminal offence of making a new enclosure of land in the Forest without such enclosure being authorised by the Act.This is in line with other provisions in the Act which include:
- that the public has the right to use Epping Forest as an open space for recreation and enjoyment (subject to the Act): section 9;
- an obligation on the Corporation to keep Epping Forest un-enclosed and un-built on (subject to the provisions of the Act): section 7; and
- that existing rights of common of pasture and of common of mast or pannage for swine on or over the Forest (right to turn out pigs on the land during the pannage season (autumn) in order to eat beech mast, acorns and nuts) will continue: section 5.
Notice that the main idea of Section 7 is quoted but the full text is not.
A reasonable person reading this would understand that no change is to be made to Section 7.
I pointed out this error to Paul Thomson, Superintendent of Epping Forest, in an email of 28 November 2010. (I wrote to him because I had already met him at two public meetings about this issue, not because I thought that he personally had been responsible for the error.) He replied by email and letter on 2 December, saying that
During the process of the Home Office’s consultations, we have become aware that the criminal offence which would attach today to any enclosure in Epping Forest would be the offence under byelaw 3(1) of the Epping Forest Byelaws 1980. Breach of byelaw 3(1) is a criminal offence against the Epping Forest Act 1878 in accordance with Section 36 of that Act and attracts a maximum penalty of a 200 pounds fine under byelaw 5.
However, no Legislative Reform Order is needed to amend the Byelaws: the Court of Common Council of the Corporation of the City of London has the power to do this itself.
At this point a reasonable person might still believe that the Consultation Document was simply based on the schoolboy error of failing to read the actual text of the Act. But, however the error was caused, it invalidates the Consultation.
The Home Office has nevertheless decided to press ahead with the proposed Legislative Reform Order, although the actual text of the amendment has still not been published. The Minister, Nick Herbert, admitted to the error in his Ministerial Statement:
One other issue to emerge during the course of the consultation was the proposed use of the Legislative Reform Order temporarily to remove the "burden" of the criminal offence in s34 of the Epping Forest Act. During the consultation it became apparent that s34 of the 1878 Act has in fact lapsed and that the criminal offence relating to enclosure of land on Epping Forest (which needs to be removed on a temporary basis by the proposed Legislative Reform Order) arises under byelaws made under s36 of the Epping Forest Act 1878 rather than s34 of the Act. We consider that the consultation remains valid and the proposed Legislative Reform Order can proceed.
In fact, Section 13(2) of the Legislative and Regulatory Reform Act 2006 is quite clear about what needs to be done in this situation:
If, as a result of any consultation required by subsection (1), it appears to the Minister that it is appropriate to change the whole or any part of his proposals, he must undertake such further consultation with respect to the changes as he considers appropriate.
In other words, they have to go back to square one. Or at least so it would appear to a layman like me trying to read the text.
Documents that were obtained from the Corporation following a request under the Freedom of Information Act throw new light on the error in the Consultation Document.
A report was presented on 8 March 2010 to the Epping Forest and Commons Committee of the Corporation of the City of London by the Director of Open Spaces (Sue Ireland) and the Remembrancer (Paul Double). Item 27 of this report, under the heading “Legal implications”, says
Section 7(1) of the Epping Forest Act 1878 provides that “... the Conservators shall at all times keep Epping Forest uninclosed and unbuilt on, as and open space for the recreation and enjoyment of the public...” and Section 7(2) provides that “... the Conservators shall not sell, demise, or otherwise alienate any part of the Forest.” Section 9 states that “...the public shall have the right to use Epping Forest as an open space for recreation and enjoyment”.
Item 22 of the minutes of this meeting records that
A Member stated that any attempt to tinker with the 1878 Epping Forest Act would generate local hostility.
Section 7 is quoted in other places in the documents that were obtained from the Corporation in this Freedom of Information request, but I could find no mention of Section 34 anywhere in them.
The Conservators were therefore explicitly aware of their statutory obligations under Section 7 of the Act, and that this, and not Section 34, was the obstacle to the Police proposals.
How, then, did this error find its way into the Home Office Consultation Document six months later?
I have invited Paul Thomson and Sue Ireland to comment on this document, but they have not done so.
This document was translated from LATEX by HEVEA.