Draft Legislative Reform (Epping Forest) Order 2011 - Regulatory Reform Committee Contents


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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