Objection to Legislative Reform OrderMichael Pelling9 December 2010 |
This page is part of the campaign to
Save the Epping Forest Act.
The following is my response to the Home Office Consultation Document published on 16 September 2010. Unfortunately, I have concluded that the Consultation itself is fundamentally flawed and that it cannot possibly meet the requirements of Section 13 of the Legislative and Regulatory Reform Act 2006 (c.51), so that in the absence of a satisfactory consultation the Minister cannot lawfully proceed to make an LRO, and if he does so then it will be liable to be quashed in Judicial Review proceedings. As you will see from my address I am a local resident living very close to Wanstead Flats.
The Home Office Consultation Document explains the basis for the proposed Legislative Reform Order [LRO] as the need to remove the burden constituted by s.34 Epping Forest Act 1878 which creates a criminal offence of enclosing land in the Forest without authorisation under the Act. This, it is said, prevents the Metropolitan Police constructing their Muster Briefing and Deployment Centre [MBDC] on Wanstead Flats because the Centre would be enclosed and the Police would be committing a criminal offence. The LRO is proposed to be made under s.1 of the Legislative and Regulatory Reform Act 2006 (c.51) of which the relevant subsections read:-
1 Power to remove or reduce burdens(1) A Minister of the Crown may by order under this section make any provision which he considers would serve the purpose in subsection (2).
(2) That purpose is removing or reducing any burden, or the overall burdens, resulting directly or indirectly for any person from any legislation.
(3) In this section burden means any of the following– (a) a financial cost; (b) an administrative inconvenience;
(c) an obstacle to efficiency, productivity or profitability; or
(d) a sanction, criminal or otherwise, which affects the carrying on of any lawful activity. .......
(8) An order under this section may contain such consequential, supplementary, incidental or transitional provision (including provision made by amending or repealing any enactment or other provision) as the Minister making it considers appropriate.
– and the only burden put forward in the Consultation Document to be removed or reduced is the s.1(3)(d) sanction of the criminal offence created by s.34 of the 1878 Act. This is fundamentally misconceived because the offence created by s.34 has long lapsed, from around 1882, and is not current law, so that there does not exist any burden under s.1(3)(d) capable of being removed or reduced. S.34 reads:-
34. 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 offence therefore expired with the final award of the arbitrator. By the 1878 Act Sir Arthur Hobhouse (the arbitrator) had a maximum of 2 years to complete his work, but this was extended to 4 years by the Epping Forest Amendment Act 1880. Thus the offence lapsed on the statute book from some point in 1882. There is no other amendment of the 1878 Act extending the duration of s.34 and making it perpetual.
To be sure, there is an offence of “Enclosing or building or otherwise encroaching upon any part of the Forest”, contained within the current Epping Forest Byelaws §3(1), for which under Byelaws §5 the penalty on summary conviction is a fine of up to £200 with a daily penalty for continuing offences of up to £20. But to remove this “burden” does not require an LRO since the Conservators of Epping Forest make the byelaws and can themselves amend or repeal them without aid of Parliament. The present Conservators evidently are willing to take such steps to further the Metropolitan Police’s objective (see Para.8 infra).
It follows the Consultation is fundamentally flawed since the public are being invited to respond to a straw man, the Document not in fact putting forward any burden that needs to be removed or reduced so as to justify an LRO. No purpose for the LRO within the meaning of s.1(2) of the 2006 Act is presented in the Document. This renders any LRO illegal since the Minister will ipso facto have failed in his mandatory duty under s.13 (“Consultation”) of the 2006 Act to consult before making an LRO. As the next paragraph explains, an LRO will also be illegal as the Consultation is in breach of s.13 by being unfair.
The Consultation Document was published on 16 September 2010. It suggests that the Wanstead Flats site is the only suitable one available to the Police for its MBDC, a premise which I (and many others) reject and would wish to rebut in a substantive response on that issue.
The Document does not contain criteria for site selection by the Police nor details of alternative sites considered, information which obviously the Police and presumably also the Conservators of Epping Forest had before 16 September 2010. Indeed at a Local Residents’ Public Meeting held on 6 October 2010 at which the Conservators and Metropolitan Police were represented, the Police frankly admitted that they had considered a number of alternative sites but expressly refused to disclose any information whatsoever about those sites on grounds of commercial sensitivity.
Objectors were not in a position to respond on the issue of site alternatives until CgMs Consultants published its Report “The Need Case and Site Selection Decision Process” some time in November 2010 (the Report is simply dated November 2010). It appears to have been published around 15 November 2010. On my part I only became aware of and obtained a copy of this crucial Report on 17 November 2010.
Since the issue of site alternatives may ultimately be crucial in whether or not an LRO is made in respect of Wanstead Flats and the 1878 Act, and is highly material to corresponding objections which could be made under s.3(2) of the 2006 Act that conditions in s.3(2) are not satisfied, there is a fundamental unfairness in objectors only being able to respond in a time span of not more than about 3-4 weeks whereas the principal proponents have had at least a further 2 months in which to prepare and make their case to the Minister. In fact 3 weeks is unreasonably short and I, and others, consider we have been prejudiced in the ability to make a fully reasoned and factually researched case in a Consultation response. Obviously, factual research into the various individual sites presented in the Report, including necessary site visits, is not something that working people can carry out in a short time. Local residents like myself do not have the time and resources available to the Metropolitan Police or the Corporation of London as Conservators.
This is unfair and a further violation of s.13 of the 2006 Act since plainly it is implied in s.13 that the required consultation must be fair. I note that Annex B of the Consultation Document sets forth a Code of Practice on Consultation which includes as Criterion 2, Duration of Consultation Exercises, the statement that, “Consultations should normally last for at least 12 weeks with consideration given to longer timescales where feasible and sensible”. The public therefore should have had at the very least 12 weeks from the publication of the CgMs Report, and that key Report should itself have been included as an Annex to the Consultation Document or at least a clear reference for it should have been given in the Document.
The Consultation Document appreciates that removing the burden of the alleged criminal offence is not in itself sufficient to ensure that the Police can enclose part of Wanstead Flats, since it acknowledges that the Conservators of Epping Forest (the Corporation of London) are required by the 1878 Act to keep the Forest unenclosed and unbuilt upon. S.7 of the 1878 Act says:-
7 Preservation of Open Space(1) Subject to the provisions of this Act, the Conservators shall at all times keep Epping Forest uninclosed and unbuilt on, as an open space for the recreation and enjoyment of the public; and they shall by all lawful means prevent, resist, and abate all future inclosures, encroach-ments, 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.
(2) 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 thereof, or of
any part thereof. (3) The Conservators shall at all times as far as possible preserve the natural aspect of the Forest, .... .
The Consultation Document goes on to say that:
The proposed LRO would remove the burden of the criminal offence which would currently attach to the proposed enclosure of land and enable the Corporation to grant permission to the MPS to construct and use a temporary Centre. This would be a supplemental provision to the removal of the criminal offence.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.
It appears therefore that the LRO will amend Section 7 of the Epping Forest Act 1878, as a supplementary provision under s.1(8) of the 2006 Act to the removal of the supposed criminal offence under s.34 of the 1878 Act. This “supplementary provision” will repeal the Conservators’ fundamental duty under s.7(1) Epping Forest Act to keep the Forest unenclosed and unbuilt on as an open space for the recreation and enjoyment of the public, and would also have to repeal the Conservators’ duty under s.7(2) not to alienate any part of the Forest (so they can lease the Wanstead Flats site to the Police for £170000), and also their duty under s.7(3) to at all times as far as possible preserve the natural aspect of the Forest — at least in relation to that part of Wanstead Flats in issue.
However, since there is no criminal offence to be removed, this again is quite misconceived and the required repeal of s.7 Epping Forest Act 1878 cannot be a supplementary provision of the proposed LRO under s.1(8) of the 2006 Act. It would in fact have to be the primary provision of the LRO, but then the prerequisite burden under s.1(1)(2) that is being removed or reduced is not stated and it is impossible for the public to sensibly respond to the Consultation Document. For this reason also the Consultation is fundamentally flawed and does not satisfy s.13 of the 2006 Act.
I add in parenthesis that I consider that the Corporation of London is already in gross breach of its duties as Conservators under s.7 of the 1878 Act since it is already actively conniving in the Police attempts to enclose and build on the Forest and concurring in its alienation, contrary to s.7(1)(2). They have even agreed to take the Police “30 pieces of silver” in the form of an agreed sum of £170000. As such any submission by the Corporation to the Home Office supporting an LRO is in my view ultra vires, liable to quashed by the High Court, and should be disregarded by the Minister. I ask for an assurance accordingly from the Minister.
It is clear from the above that the Minister’s purported Consultation under s.13 of the Legislative and Regulatory Reform Act 2006 is fundamentally flawed on a number of grounds and cannot satisfy the legal requirements of s.13 express or implied. Further, it is not the duty of the public, or myself, to attempt to rectify the flaws in the Consultation Document and respond to some speculative rewrite of it, and I shall not do so.
Once the “burden” of the fictitious criminal offence under s.1(3)(d) of the 2006 Act is gone, it is not for me or others to second-guess the Minister and substitute some other speculative burden under s.1(3)(a) or (b) or (c). The Minister needs to say exactly what he wants to do and why, in proposing an LRO, so that the public can sensibly and cogently respond. And he needs to give adequate time to all parties to respond, starting from a date when all parties can reasonably said to be on an equal footing.
The Minister is warned however that if he goes ahead and makes an LRO on the basis of his manifestly flawed Consultation then I am likely to apply to the High Court for an Order of Certiorari to quash it on the grounds of non-compliance with s.13. Had the Consultation not been flawed for the reasons given above, then I should have made extensive submissions based not only on s.1 of the 2006 Act but also on the key s.3(2): such submissions must now await the occasion of a genuine, well-founded, clear, and legally sound Consultation.
This document was translated from LATEX by HEVEA.