Wednesday, 16 January 2019

Brexit – the endgame [?]

Readers will not be surprised that I am returning today to the subject of Brexit. There is currently no subject that is more important than this. It requires our urgent attention.

As the dust settles following the catastrophic scale of the defeat inflicted on the government on Tuesday evening (the largest suffered by any government in parliament’s history), and the somewhat irrelevant distraction of today’s No Confidence motion, we need to reflect calmly on the situation. Unfortunately, it was clear from Theresa May’s statement to the Commons immediately following the vote on Tuesday (when she said that the government had ‘heard’ the House of Commons’ view) that she intends to take no notice of that opinion, but will press on instead with her mission to force her deal through. She offered talks with other parties, but the implication was that any such talks would be solely directed to gaining acceptance of that deal, or something very close to it. It is clear that she would not be prepared to consider any other options. Her attitude is, frankly, defiant. This does not bode well for the resolution of the current impasse.

There seems to be widespread misunderstanding in parliament (and even on the part of some cabinet ministers including, apparently, the Prime Minister) as to the position of the European Commission in relation to the draft withdrawal agreement that has been negotiated between the EU and the UK government. It has been clear for some time that there is no scope for re-negotiation of that draft agreement, and very little scope for ‘re-assurances’ or ‘clarifications’ of the agreement (particularly as regards the Irish backstop), and this was repeated from various European sources within the past 24 hours. The letters that were sent to the PM from Brussels a short time ago could not give any guarantees, still less any ‘legally binding’ assurances on this or any other issue. Furthermore, it has become clear that the European Commission has now concluded, in view of the size of the government’s defeat on the draft agreement (by 230 votes), that there is really no scope for any adjustment of the draft agreement that would stand any realistic chance of being accepted by the House of Commons, and so they see little point in entering into further discussions.

It is therefore entirely unrealistic for anyone, whether it be Theresa May, ardent Tory Brexiteers, or even the current leadership of the Labour Party, to talk in terms of seeking to re-negotiate the withdrawal agreement. What the Brexiteers in particular do not appear to have understood is that the stated position of the European Commission is not a bluff, nor is it a negotiating ploy; it is a settled position based on the fundamental principles on which the European Union is founded. There will be no ‘last-minute’ concessions or climb-down. It would be futile for British negotiators to go to Brussels and ‘thump the table’ to demand a better deal, as some Brextremists suggest we should. It is equally unrealistic to talk in terms of other alternatives to the current draft agreement (such as so-called ‘Canada-Plus’, ‘Norway-for-Now’ or any other fantasy deals that they might like to dream up).

With barely 10 weeks to go to the 29 March deadline, which is imposed both by Article 50 of the Lisbon Treaty and by section 20 of European Union (Withdrawal) Act 2018, we are rapidly running out of time to resolve matters, irrespective of the course that either the government or parliament chooses to take with regard to Brexit. Postponement of the exit date is now therefore unavoidable, even if the government were to opt for a ‘No Deal’ Brexit. But that poses a problem. Postponement (as distinct from revoking the UK’s Article 50 notice, so as to halt Brexit, which could be done unilaterally by the UK) would require the agreement of the 27 other EU member nations, and if the UK government were to seek such a postponement, perhaps for three months, the EU would be bound to ask – “For what purpose?”. If this postponement was simply to enable us to go on arguing among ourselves as to what sort of Brexit we really want, or to try to re-negotiate the previous draft of the withdrawal agreement, such a postponement is likely to be refused by the EU. In any event, even if consent to a short postponement were to be forthcoming, it is extremely unlikely that we would be any nearer resolving matters by the end of June, and that we would simply find ourselves in exactly the same position by that time as we are in now.

The time has come to be brutally realistic about the practical options that now face the country. Theresa May’s deal is irretrievably dead. (One is inevitably reminded of the Dead Parrot sketch, with Theresa May playing the part of the shopkeeper.) As explained above, alternative deals are equally unachievable. In the 10 weeks before 29 March there are only two stark alternatives left – a ‘No Deal’ car crash Brexit, or No Brexit (at least for the time being). Majority opinion in the House of Commons seems to be firmly set against a disastrous ‘No Deal’ Brexit, and if (as appears to be the case) the PM absolutely refuses to introduce emergency legislation in the next week or two to revoke the UK’s Article 50 notice and repeal the European Union (Withdrawal) Act 2018 (and to make various consequential amendments to other primary and subordinate legislation), the House of Commons must take control, by amending its Standing Orders to enable this, and bring in the necessary Bill themselves.

As I have said before, I do not pretend that this would be a final end to the Brexit debate, but with the pressure of time removed following the cessation of the Article 50 process, there would then be time for mature reflection and calm discussion of our future relationship with the EU, and (maybe in a year or two’s time) a fresh properly informed referendum on our membership of the EU, following a series of citizen’s assemblies which would be held first.

UPDATE (1 February): “Onward and upward - to the land where the Cloud-Cuckoos dwell!” After Theresa May’s stunning parliamentary triumph earlier this week, she is now deploying her unparalleled diplomatic skills, well, just re-read the blog post above. After all, nothing has changed.

There are still only two practical choices - (1) crash out of the EU on 29 March with no deal, or (2) revoke the UK’s Article 50 notice to bring the current abortive attempt to leave the EU to an end (and never mind all the guff about “the will of the people” or the mindless mantra that “the people have spoken” – that was over 30 months ago, and is well past its ‘sell-by’ date). After that, there can then be a proper ‘grown-up’ discussion on Britain’s future relationship with the EU.

Some people are inclined to say “Just get on with it.” But at least half the cabinet and a majority of MPs on all sides of the House of Commons appreciate that this is likely to be a costly mistake, even on the basis of the draft withdrawal agreement that was so decisively rejected by the Commons a couple of weeks ago, and will be an utter catastrophe in the absence of any agreement at all. So what we should be telling MPs and ministers is - “Pull the plug! And do it now, before it’s too late.”

UPDATE (15 February): Tick, tock. Theresa May's deal is just not going to be re-negotiated by the EU, and a disastrous 'car crash' Brexit, with no concluded withdrawal agreement, becomes ever more likely. The more the government runs the clock down, the more urgent it becomes to stop the clock before the time fuse detonates the Brexit bomb on 29 March. Simply 'extending' Article 50 is unlikely to resolve the situation, and will simply kick the can down the road yet again for a few more months at most. The Article 50 process needs to be stopped altogether, as the Father of the House, Ken Clarke, observed in yesterday's debate. Others, such as Sir John Major, have made the same suggestion. Unfortunately, most of the talk about Article 50 in the House of Commons is still focused on temporary postponement.

A final decision must be reached on Wednesday, 27 February, and the House of Commons must at last take back control and put in train the necessary legislation to halt Brexit for an indefinite period. Events on that date, and leading up to it, may prove to be quite dramatic, including possible resignations from both front benches. If MPs funk the essential decision on 27 February, then it may well be that all is lost.


Wednesday, 9 January 2019

Planning law reform - Wales shows the way.

As I have explained before, I have given up trying to keep up with the increasing divergence of Welsh planning law from the law in England, but an important project to reform planning law has been under way in Wales throughout the past year, conducted on behalf of the Law Commission by a team under the leadership of Dr Charles Mynors. The final report was published in November, and contains some extremely interesting proposals for planning reform in Wales. The report became available online last month [], and hard copies have recently been distributed.

So why am I so interested in proposed changes to planning legislation which will apply only in Wales? The reason for my enthusiasm is that the issues with which the report deals are common to both Wales and England, and the need for reform is just as pressing on this side of the Severn. So the changes which the report proposes could equally well be introduced in England. The authoritative analysis of these issues in this report could well be a precedent for a similar exercise in England, which could lead (I hope) to a long overdue consolidation and codification of both our primary and secondary legislation relating to or affecting town and country planning in this country.

As the original consultation document pointed out, an extensive system of primary and secondary legislation has grown up, much altered by successive governments of differing political persuasions in response to new political pressures and priorities. This legislation is supplemented by a mass of policy guidance of various kinds, both national and local. As a result of this evolutionary process, the law that governs our planning system – contained in Acts, Regulations, Orders, Rules and directions – is now excessively complex. We currently have no fewer than 30 Acts of Parliament in England alone, all or part of which contain provisions relating to town and country planning, and around 150 pieces of secondary legislation that determine how the planning system operates in detail, as well as national and local policy documents.

The resulting mass of primary and secondary legislation has grown inexorably and to no particularly obvious pattern. Following the first comprehensive Town and Country Planning Act in 1947, the relevant law and Government policy could be contained, along with commentary, within a single loose-leaf volume (originally entitled the Encyclopaedia of Planning, Compulsory Purchase and Compensation). Seventy years later, the “planning” element of that work has now grown to ten volumes.

Many of these Acts and regulations have been the subject of judicial interpretation in the courts over the last 70 years. And the whole system has been the subject of numerous pieces of guidance, produced either by central government departments and other public bodies or by relevant professionals or others. The law is difficult enough to navigate for specialist professionals, who also have available online resources. For non-specialists, let alone members of the public, the law – albeit simple enough in principle – is now almost impenetrably complex in practice.

The body of judicial authorities is now formidable, and significant judgments badly need to be codified (i.e. taken on board in primary legislation). I have in mind, examples such as the concept of the planning unit, and the rule in Burdle; there are a good many others, such as a statutory definition of “curtilage”, and consistent definitions of “agriculture”, “agricultural land” and “agricultural unit”. As a law student, I recall studying the Sale of Goods Act 1893, which was the result of just such an exercise of codification. If it could be done in the 1890s, it can certainly be done in the 21st century!

One of the problems, even within the primary legislation, is that some provisions are in the four main 1990 Acts; others are in amendments to those Acts; others are in new provisions inserted into the Acts; yet others are in freestanding statutes outside the 1990 legislation altogether. So, for example, the duty to make planning decisions in accordance with the development plan – which is a fundamental principle of the system – is in section 38(6) of the Planning and Compulsory Purchase Act 2004, and not in the 1990 Act. Indeed, it is noteworthy that of the numerous duties laid upon planning authorities when determining planning applications, only two are in the 1990 Act itself.

I cannot summarise a 455-page report in a single blog post, or even in a series of posts, but it has prompted the following further thoughts. In Part III of the principal Act, there is a need to tidy up the three types of planning application that can now be made – for (1) permission in principle [PiP], (2) outline planning permission (followed by approval of reserved matters) and (3) full planning permission. I remain sceptical of the practical value of PiP, which was only introduced due to the over-complication of the rules relating to outline planning applications, which used to be much simpler than they are now. We need a simple and straightforward choice between making an uncomplicated application for outline PP (with some or all matters reserved) or making an application for full PP.

Also in Part III, there is a need to consolidate section 70(2) of the principal Act with section 38(6) of the 2004 Act. My own view is that section 70(2) should be sufficient by itself, and that the introduction in 1991 of what is now section 38(6) of the 2004 Act was entirely unnecessary, and has been a complicating factor that has impacted adversely on the plan-making system. (The process of formulating and adopting the Development Plan needs to be streamlined and simplified in any event.)

The provisions under which an LPA may decline to entertain a planning application (see sections 70A, 70B and 70C) are open to abuse by LPAs, and are unnecessary and unduly restrictive. The perceived problems that these provisions were designed to address were largely imaginary, and these three sections should be scrapped or closely regulated.

There is also a need for better regulation of the use of planning conditions when PP is granted. The new provisions governing pre-commencement conditions only partially address this issue, and are in any event somewhat deficient in resolving the problems posed by pre-commencement conditions. As noted in the Welsh report, there is also a need for clarifying how the approval of matters required by conditions should properly be dealt with. The scope and methodology for amending planning permissions, particularly under section 73 should be clarified.

As regards the lawfulness of development, the provisions governing applications for Lawful Development Certificates would sit better in Part III of the principal Act, rather than being subsumed within Part VII (enforcement). I also suggest that the legislation should be amended to make it clear that the lawfulness of development does not depend on the issue of an LDC (as already confirmed by judicial authority).

There are a good many other useful proposals for planning reform in the Welsh report, and I would very much hope that a similar exercise will be put in hand in England as soon as possible.


Wednesday, 2 January 2019

An even more interesting New Year

I hesitate to wish readers a ‘Happy’ New Year, because if Brexit actually happens, it is not going to be at all happy. But I have a sneaking feeling (or is it just hopeless optimism?) that the UK will not in fact leave the EU on 29 March. 2019 might, just might, be the year in which Brexit gets buried once and for all. There’s certainly going to be a lot of political excitement in the next three months, and I suspect the Brexit debate will go on and on, long after that.

It is now clear that all government departments have effectively put most other work on the back burner, and have been ordered by 10, Downing Street to concentrate exclusively on Brexit for the next few months. In the meantime, however, MHCLG will still have to make an amendment order to the GPDO in time to make Class P (residential conversion from B8) in Part 3 of the Second Schedule permanent before the present time limit for that Class of PD runs out.

Apart from that, the major priority will no doubt be to conduct an urgent audit of paper clips and teaspoons throughout the Ministry, and to stock up with teabags and sugar in good time before D-Day (Disaster-Day). There is also the minor consideration of having to deal with all the planning issues that arise from the construction of massive lorry parks, new port facilities, massively expanded warehouse accommodation and other infrastructure required in order to prepare for a No-Deal Brexit – hardly any of which will in fact be ready in time. In practice, the threat of a No-deal ‘car crash’ Brexit lacks any credibility, and nobody (apart from a few head-bangers on the far right of the Tory Party) takes it at all seriously. It is simply a rather hopeless ploy on the part of the Prime Minister to try to scare back-benchers into voting for her botched ‘deal’ when (or if) it comes back to the Commons this month. A much more likely scenario, after the inevitable rejection of the draft withdrawal agreement by MPs, is the revocation of our Article 50 notification, in order to stop the clock, and so avoid a disastrous high jump from Beachy Head on 29 March.

[In the meantime, there has been some loose talk of ‘postponing’ Article 50. This (as opposed to outright revocation of the Article 50 letter) would require the agreement of the EU, and there are already indications that they would only be prepared to allow an extension of time if it were required in order to hold a Referendum or a General Election. A bid simply to gain two or three months for further political in-fighting is not going to be agreed by the EU, and will not in any event solve the political impasse in the Commons.]

So whatever else might happen on the planning front this year will, I fear, depend on how the Brexit process plays out. In the meantime, those who are thoroughly fed up with the whole subject will simply have to grit their teeth, and wait for it to blow over. At least by the end of March we should have some idea of where we might then be heading.