Written evidence from
Dr M.J. Pelling
Legal Objections
THE INSTRUMENT
1. The Order adds a new Section 52A to the Epping
Forest Act 1878 to allow the Metropolitan Police Authority or
the Commissioner of Police for the Metropolis to construct a Muster
Briefing & Deployment Centre on the part of Epping Forest
known as Wanstead Flats for policing purposes for the 2012 Olympic
and Paralympic Games. The construction and exclusive possession
thereof are allowed only for the period from 23 June 2012 to 20
September 2012. The Order purportedly removes a criminal offence
that would otherwise attach to this construction and exclusive
possession and further enables the Conservators of Epping Forest
to grant permission to the Metropolitan Police Authority or the
Commissioner to construct such a Centre.
OBJECTIONS
2. I do not accept the necessity case made by the
Police that Wanstead Flats is the only possible site for their
MBDC, but due to the flawed nature of the Home Office Consultation
(see further infra) it has not been possible for myself or others
to adequately investigate this. Had Wanstead Flats been built
upon, as one A.Bevan Minister of Health and responsible for housing
policy wanted in 1946 ("The people must have shelter...The
Commoners of Epping Forest must surrender to the overwhelming
needs of the people"), then perforce the Police would have
to look elsewhere. The Police want 3 MBDC's for London but could
easily organise on the basis of 4 and so reduce the size of the
East London one, for example, so that there would then be a number
of suitable sites other than Wanstead Flats. The Police criteria
look suspiciously cooked up so they could claim Wanstead Flats
is absolutely essential as the only site able to provide adequate
security for the Olympic Games.
3. Parliament should pause long before ripping up
a 133 year old Act of Parliament establishing the Forest for the
recreation and enjoyment of the public, and effecting Queen Victoria's
own gracious purpose in giving up the Forestal rights of the Crown
for the benefit of the public. The argument that the Commoners
of Epping Forest and the public should surrender to the overwhelming
needs of the Metropolitan Police and the Olympic Games is spurious,
just as the similar argument was in 1946, and I ask therefore
that Parliament will reject it. But if the argument is accepted
then you can be sure this is but the thin end of a thick wedge
and by and by there will be further encroachments upon the Forest
and the 1878 Act by more claims of convenience and necessity in
the future. Thus the primary purpose of the Act will be endangered.
If the 1878 Act is to be treated in this way then it should be
by primary legislation under full and proper Parliamentary scrutiny,
not by the back door of a sneaky statutory instrument under powers
of an Act, the Legislative & Regulatory Reform Act 2006, which
was never intended to be used in this way. The 2006 Act has not
hitherto been used to tear up the primary purpose, the very heart,
of primary legislation. It is not now being used to "remove
a burden", but to destroy an Act of Parliament.
4. Flawed Consultation I am affected by the
LRO as one of the 31 Respondents to the Home Office Consultation
Document of 16 September 2010, since various objections in my
Response have not been dealt with and as indicated at the end
of that Response I shall therefore proceed to issue Judicial Review
proceedings against the Secretary of State to have his Legislative
Reform Order quashed if Parliament enacts it. I can do no better
than reproduce my Response of 8 December 2010:-
RESPONSE TO HOME OFFICE CONSULTATION ON PROPOSED
USE OF A LEGISLATIVE REFORM ORDER TO AMEND THE EPPING FOREST ACT
1878
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 & Regulatory Reform Act 2006 (c.51),
so that in the absence of a satisfactory consultation the Minister
cannot lawfully proceed to make a Legislative Reform Order ["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.
1. CONSULTATION FUNDAMENTALLY FLAWED 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 & 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.
1. Epping Forest Byelaws §3(1)
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).
2. LRO ILLEGAL UNDER S.13 2006 c.51
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.
3. CONSULTATION ALSO 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.
4. 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.
5. 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.
6. THE "SUPPLEMENTARY PROVISION"
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, 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.
(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.
7. 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.
8. 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.
9. CONCLUSION 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.
10. 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.
[End of Response]
4. To very briefly sum up the preceding legal arguments,
the case is that the proposed Order is legally quite defective
since: (i) the Secretary of State has not consulted in accordance
with s.13 of the 2006 Act, the consultation having been presented
on a false legal basis; (ii) the purported consultation was also
unfair in the circumstances due to insufficient time to adequately
respond; (iii) the LRO is made under s.1 of the 2006 Act but no
burden has been identified under s.1(3) which requires the use
of an LRO in accordance with s.3(2)(a) of the Act (the attempt
via s.1(3)(d) fails and even if the criminal sanction were removed
the activity would not be lawful anyway); (iv) the s.1(8) 2006
Act supplementary provision which appears now as the new s.52A(3)
Epping Forest Act 1878 is in fact the primary provision but cannot
be brought within s.1(3) of the 2006 Act since there is no way
that the fundamental duty of the Conservators under the 1878 Act,
s.7, can be construed as a s.1(3) "burden" - at least,
none was identified at the Consultation stage.
5. I cannot emphasise too strongly what an abuse
of power and of the Legislative and Regulatory Reform Act 2006
this proposed Order is, in that it seeks to destroy the primary
and fundamental purpose of the Epping Forest Act 1878 and the
corresponding duty of the Conservators to uphold that purpose,
by sneakily pretending that there is a criminal sanction which
needs removal as the burden or alternatively, which is nearer
the truth, regarding the Conservators' own duty to uphold the
1878 Act as the burden. The latter could only fit into the scheme
of s.1(3) of the 2006 Act if one regarded [s.1(3)(b)] the primary
object of the 1878 Act as a mere "administrative inconvenience.
Or perhaps [s.1(3)(a)(c)] as a "financial cost" or "an
obstacle to efficiency, productivity or profitability". But
then the Secretary of State could amend or destroy virtually any
primary legislation by the device of an LRO, by simply treating
the provisions of such legislation as administrative inconveniences
etc.
6. Explanatory Document I consider the
Secretary of State's Explanatory Document accompanying the draft
LRO and in which a quite different case is presented from that
in the Consultation Document. It is now frankly admitted that
the real burden is s.7 Epping Forest Act 1878 which is regarded
[s.1(3)(c) LRRA 2006] as "an obstacle to efficiency, productivity
or profitability", with the emphasis on "efficiency",
but the claim of an additional s.1(3)(d) burden is retained, only
now taking the criminal sanction as the offence under the Epping
Forest Byelaws §3.1 of "Enclosing or building or otherwise
encroaching upon any part of the Forest". Since this byelaw
could easily be amended or repealed by the Conservators of Epping
Forest without need of Parliamentary intervention, it is plain
that the LRO is primarily directed at s.7 of the Epping Forest
Act 1878. That Section is the very heart of this Act. In fact
the claimed s.1(3)(d) burden is in any event misconceived because
s.1(3)(d) refers to "a sanction, criminal or otherwise, which
affects the carrying on of any lawful activity", and enclosing
or building or otherwise encroaching upon any part of the Forest
is not a lawful activity even apart from the criminal sanction.
It is not lawful because of ss.7,9 Epping Forest Act 1878 and
it is not lawful at Common Law as interfering with the Commoners'
rights (I deal with the Common Law aspect further below).
7. I do not concede that s.7 of the 1878 Act is
in fact an obstacle to efficiency, but the fundamental objection
is that Parliament in enacting the 2006 Act never intended that
it should be used to interfere with and abrogate key sections
of primary legislation going to the very heart and essence of
such legislation. That should only be done by other primary legislation
under full Parliamentary scrutiny and process, not by the back-door
of secondary legislation. The danger of such abuse of the 2006
Act was a real concern at the time of its passage through Parliament.
The 2006 Act was described in the Press at the time as "the
Bill to end all Bills" and the "Abolition of Parliament".
It was compared to the actions of King Henry VIII and Adolf
Hitler. The entire Conservative and Liberal Democrat parties opposed
it, along with six Labour rebels. The Coalition Government promised
to sweep away anti-democratic legislation of this kind. The purported
purpose of the 2006 Act was to remove regulatory burdens and simplify
legislation. It has been used about twenty times to make uncontroversial
technical adjustments of this kind, but never before to remove
or abrogate the principal function of a whole Act of Parliament.
The official Explanatory Notes to the LRRA 2006 give no indication
of such a use of the Act and the examples actually given of removing
or reducing burdens indicate the very opposite.
8. Protection against abuse of the Act was said
by the Government to be provided by s.3 LRRA 2006 ("Preconditions").
A Minister cannot make provision by an LRO of the instant kind
unless he considers that the conditions in s.3(2) of the Act,
where relevant, are satisfied in relation to that provision. I
consider these conditions next but note first that the Government
in 2006 also gave an undertaking not to use LROs to implement
highly controversial reforms. The proposed interference with the
Epping Forest Act 1878 is highly controversial. Once again we
see the 19th century arrogance of the lords of the manor who thought
they could get away with enclosing the Forest, only to be defeated
in the Courts after a lengthy legal battle. This led directly
to the passing of the Epping Forest Act 1878 to preserve the Forest
open and uninclosed for public use and recreation in perpetuity.
Further evidence can be provided.
9. Section 3(2)(a) The flawed nature of
the Consultation made it impossible to properly respond to the
Metropolitan Police's case that their policy objective required
use of Wanstead Flats for an MBDC and nothing else would do. The
Minister has swallowed the Police line but has satisfied himself
without full evidence. Doubtless he can nearly always do that,
by being selective with the evidence. This condition does not
provide adequate protection against abuse of the 2006 Act and
indeed most abuses will of necessity and in their nature be ones
secured by legislative means. The worst tyrannies are impeccably
legal.
10. Section 3(2)(b) Proportionality is
very much in the eye of the Minister. This condition provides
little protection against abuse of the 2006 Act. I submit destroying
the primary purpose of an Act like the Epping Forest Act 1878
with an important history still highly relevant today is totally
disproportionate to the need to provide Olympic security when
that can be done in a different and far less destructive way.
11. Section 3(2)(c) Fair balance is again
the subjective view of the Minister and again provides no protection
against abuse of the 2006 Act. Doubtless those who believe in
the totalitarian state consider that they are striking a fair
balance between the public interest and the interests of those
persons adversely affected by it. I submit that the proposed provision
does not strike a fair balance at all, the interests of a large
number of people being sacrificed to Police convenience.
12. Section 3(2)(d) What protection is
necessary is again the subjective view of the Minister and this
condition provides little protection against abuse of the 2006
Act. In the context of necessary protection and s.7 of the Epping
Forest Act 1878 one must look at the history of the 1878 Act.
The City of London Corporation website states:
"In the second half of the 19th century,
large areas of the Forest were being enclosed for development,
with scant regard for commoners rights or general recreational
needs. Such was the City of London's concern over this that it
joined forces with the commoners who had the right to graze their
animals on the Forest and cut wood, and fought a legal battle
against the inclosures, culminating in two ground-breaking Acts
of Parliament passed in 1878. One of these entrusted the ownership
and care of Epping Forest to the City, with the second making
similar provision for other open spaces under similar threat.
The Epping Forest Act of 1878 appointed the City of London as
the Conservator of Epping Forest and its strictures still govern
how the Forest is managed today. Epping Forest now combines the
roles of scenic open space, important wildlife habitat and recreational
opportunities".
Section 7 of the 1878 Act now protects the Commoner's
rights and the Forest's rôles of "scenic open space,
important wildlife habitat and recreational opportunities".
I would contend that by suspending s.7, a necessary protection
would be removed. By erecting an MBDC, the Secretary of State
would be interfering with the Commoners' rights, rights of way,
and also with a scenic open space (the MBDC will be an eyesore),
an important wildlife habitat (the MBDC is immediately adjacent
to a Site of Special Scientific Interest) and recreational opportunities
(within Epping Forest, it is Wanstead Flats that is most extensively
used for sport, kite-flying, running and model aircraft flying,
especially during the summer months). If the current protection
is not "necessary" then I am not sure what would be,
and removal of part of it, for Wanstead Flats, is in my view still
removal of necessary protection. One cannot say the Forest and
its use as a whole needs protection but that individual parts
do not.
13. Section 3(2)(e) Again it is the subjective
view of the Minister as to what rights and freedoms people might
reasonably expect to enjoy. It will nearly always be easy to find
arguments that someone's expectation was unreasonable and there
is thus little protection against abuse of the 2006 Act. I certainly
regards my and others' right and freedom to enjoy Wanstead Flats
as one which we might reasonably expect to continue to exercise.
The fact that we are used to occasional interruptions of those
rights through, for example, fairs or pipes being laid, does not
entail that we regard in the same light the interruption on a
completely different scale of inclosure, building, and purpose,
that is constituted by the proposed MBDC.
14. Section 3(2)(f) The provision here
is of constitutional significance in that it sets a precedent
for abuse of the 2006 Act by destroying the main purpose of a
piece of primary legislation without proper Parliamentary scrutiny
and debate. That ought only to be done by other primary legislation
and it undermines democratic principle. Arguably, the Act itself
is being used in an unconstitutional manner.
15. Common Law The Department for
Business Enterprise and Regulatory Reform Guidance for Officials
on LRO making powers states that: "LROs may not remove burdens
arising solely by common law. Common law elements can only be
dealt with to the extent of tidying up the boundary of a statutory
scheme". Section 5 of the Epping Forest Act 1878 says:-
5. All rights of common pasture and of common
of mast or pannage for swine on or over Epping Forest, as they
exist at the passing of this Act, shall continue, without prejudice,
nevertheless, to the provisions of this Act (which rights are
in this Act comprised under rights of common).
Thus the Act preserved the Commoners' Common Law
rights of pasturage etc and these remain Common Law rights albeit
subject to some statutory limitation or regulation by the Epping
Forest Act. The rights arise solely by Common Law. The draft LRO
does not purport to interfere with them, nor can it. So while
the LRO can prevent the Act making it unlawful for the Police
to erect their MBDC or for the Conservators to permit this, it
cannot prevent the Commoners exercising their rights of pasturage
etc on the proposed MBDC site nor from exercising their Common
Law right of abatement of nuisance to pull down the fences and
buildings the Police erect. In fact at Common Law the Police will
be acting unlawfully, just as the 19th century lords of the manor
did when they enclosed parts of the Forest. After the historic
Judgment of the Master of the Rolls in 1874 upholding the Commoners'
rights, one Mr Burney, a Commoner, "took upon himself to
bring down a large party of workmen, and demolished the fences
of some of the grantees [those who had bought land shown to be
illegally enclosed]", and he was acting lawfully. Since the
LRO cannot abrogate the Common Law rights of abatement I see no
reason why similarly in 2012 some large parties of workmen cannot
lawfully break down any constructions of the Metropolitan Police
on the Flats. So the LRO will be ineffective anyway to achieve
its objective. The only way that the Common Law remedy of abatement
could be extinguished or suspended would be by a new Act of Parliament.
16. CONCLUSION Accordingly I ask
that the House of Lords Delegated Powers & Regulatory Reform
Committee and the House of Commons Regulatory Reform Committee
both do reject the Instrument as legally flawed and an abuse of
power.
5 April 2011
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