Thursday, 28 March 2019

BREXIT – the Final Act?

I did warn you that I might very well return to Brexit before getting back to planning law, and this week I have every excuse for doing so. It is a subject that is too important to ignore.

A number of people, both inside and outside parliament, have asked whether it is right that MPs should wrest control of the proceedings from the government, and have suggested that this breaks the convention that ‘the executive proposes and Parliament disposes’. Abrogating this principle, they say, sets an unhealthy precedent. I respectfully disagree.

The House of Commons has always had complete control of its own procedure, and therefore it was entirely constitutional, and consistent with the House’s own rules, that the House voted by a clear majority on Monday to take control of its Order Paper to the limited extent that it has done this week. There is no constitutional convention that the executive has control of proceedings in parliament (and I speak as someone who, as a law student albeit many years ago now, specialised in constitutional and administrative law, and took a particular interest in parliamentary procedure – an interest that I have maintained ever since). Control of the House of Commons Order Paper by the executive is a practice that has been followed for some years past, not least because successive governments have generally had a good working majority and could therefore maintain complete control of Commons procedure by means of that majority, but it is not a centuries-old practice, and it is certainly not a constitutional convention.

Turning to the proceedings in the Commons yesterday, there seems to be widespread misunderstanding as to the nature and purpose of yesterday’s backbench-led debate. In the case of Tory Brexiteers, this was either wilful or feigned ignorance, as they were present when the House agreed this procedure, and so they have no excuse for pretending that it served no useful purpose or was in some way improper. It is surprising, on the other hand, that large sections of the press seem to have misunderstood the position too.

The important point is that yesterday’s debate was the first part of a two-stage process. Sir Oliver Letwin and his co-sponsors foresaw that it was entirely possible that none of the propositions that were put before the House of Commons yesterday would receive majority support. It was for that very reason that a second day’s debate was provided for in the business motion that was adopted by the House. In the meantime, the voting process yesterday served the useful purpose of testing the relative strength or weakness of support for the various options that were put forward. The second stage of the process, which is due to take place on Monday, will take at least two of the propositions that received the greatest measure of support, and will ask the Commons to vote specifically on those propositions.

Motion J, proposed by (among others) Ken Clarke, Hilary Benn, Sir Oliver Letwin and Yvette Cooper, which was lost by only 8 votes, would instruct the Government to ensure that any Withdrawal Agreement and Political Declaration negotiated with the EU must include, as a minimum, a commitment to negotiate a permanent and comprehensive UK-wide customs union with the EU; and enshrine this objective in primary legislation.

Motion M was proposed by Dame Margaret Beckett and others. It was lost by only 27 votes, and would provide that this House will not allow in this Parliament the implementation and ratification of any withdrawal agreement and any framework for the future relationship unless and until they have been approved by the people of the United Kingdom in a confirmatory public vote.

No other motion came this close to being accepted. The majority against “No Deal” was 240, and against a “managed No Deal” it was 283. The suggestion for a “Common Market 2.0” was defeated by 95 votes, and a proposal for an EEA/EFTA arrangement was rejected by 312 votes. Labour’s alternative Brexit failed to gain support by a margin of 70 votes.

Possibly the most important motion, which had all-party support (with the sole exception of the DUP), was a carefully worded ‘backstop motion’ proposed by Joanna Cherry QC. This would have provided that :

If, on the day before the end of the penultimate House of Commons sitting day before exit day, no Act of Parliament has been passed for the purposes of section 13(1)(d) of the Withdrawal Act, Her Majesty’s Government must immediately put a motion to the House asking it to approve ‘No Deal’ and, if the House does not give its approval, Her Majesty’s Government must ensure that the notice given to the European Council under Article 50, of the United Kingdom’s intention to withdraw from the European Union, is revoked in accordance with United Kingdom and European Union law.

This is a proposition (even though it was rejected by 109 votes) that may well merit much more careful consideration than it received yesterday. The point about this motion (as Dominic Grieve pointed out) is that it is there in extremis. It is not there to summarily revoke Article 50, but only to do it in the event of circumstances where there is no alternative and no ability to get an extension that might deliver a referendum, for example, or some other conclusion.

We shall have to see on Monday what (if anything) emerges from this exercise.

In the meantime, apparently not today but possibly tomorrow, the government may (or may not) attempt to bring back its draft Withdrawal Agreement for ‘Meaningful Vote 3’. Whilst 29 March is no longer Brexit Day, by virtue of the SI approved yesterday in addition to the agreement reached at the European Council last week, it remains the deadline for approving the draft Withdrawal Agreement. Failing such approval by tomorrow at the latest, the 12 April leaving date comes into effect, and this will mean a ‘No-Deal’ Brexit, unless the government puts forward a proposal for a much longer extension (of which more below) or revokes Article 50 altogether.

At present, the chances of the government getting its ‘deal’ approved before this deadline appear to be extremely slim. If the government doesn’t think it will win, then rather than risk another humiliating Commons defeat it may not bring it back to the Commons at all. There is also a risk that the ‘double jeopardy’ rule invoked by the Speaker could prevent the ‘deal’ being brought back for a third vote in any event, and finally there is the distinct possibility of its being defeated if it does come before the House again - The DUP cannot stomach the Irish back-stop, and this combined with the votes of a significant number of Brextremist head-bangers who will never vote for May’s deal will very likely sink it.

What then? Well, a car-crash ‘No Deal’ Brexit on 12 April is still a distinct possibility and, as things stand at the moment, the most likely outcome. If the government really does want to avoid this (and there is considerable uncertainty as to Theresa May’s intentions) then they could ask the EU for a significantly longer extension – at least 9 months, and quite possibly longer. But it is abundantly clear that this would be agreed by the EU only if this delay is for a specific purpose – i.e. either in order to organise a fresh referendum or to hold a General Election. Revocation of Article 50 before 12 April is the only other realistic option.

If it becomes apparent that May is intent on a kamikaze mission to deliver Brexit come what may, and is prepared to drive the bus over the cliff, if this is the only way of delivering her ardently yearned-for political legacy to the British people, then the only way of stopping it would be a full-blown cabinet and parliamentary revolt, aimed at removing her from office. This might necessitate a Commons confidence motion supported by at least a proportion of Tory MPs, followed by the interim appointment of a caretaker prime minister. It is undoubtedly a long shot, so maybe we should start hoarding the bog-rolls after all.


Friday, 22 March 2019

BREXIT – Back from the brink?

Trixie May is still up to her tricks. (Perhaps we shouldn’t be surprised - it’s in the nature of the beast.) MPs should be very wary of what the government is offering in the way of government-sponsored votes in the next week or two; they may not be what they seem to promise .

Next week, the House of Common has one final chance (and perhaps their best chance) to take control of their own Order Paper, so as to ensure that they rather than the Executive, can call the shots over Brexit. .

The ‘meaningful’ vote (MV3) may or not be brought back before the Commons next week. It certainly should be, but don’t be surprised if Trixie May tries to find some excuse for postponing this yet again. My guess is that Mr Speaker will allow the vote this time, because it involves a different end date, and so would arguably be different in substance from ‘MV2’. Present indications, however, are that May’s draft withdrawal agreement could be voted down by an even larger majority than the 149 votes by which it was rejected last time. .

Far more important than MV3, however, is that the Commons now has the chance to take control of the agenda and to assert their will over the government. The EU Council hinted strongly on Thursday night that this is what they would like the House of Commons to do, rather than allowing the PM to pursue her monomaniacal mission to ‘deliver Brexit’ at any cost to the country and its hapless citizens. .

Ministers were suggesting today that the PM would be prepared to allow ‘indicative votes’ to be held on various alternative future relationships with the EU, but it has become clear that this only relates to the nebulous ‘political declaration’ that accompanies the withdrawal agreement; Trixie May is not prepared to allow the Commons to consider an alternative to the withdrawal agreement itself. This would entirely negate the (apparently) promised free vote on a series of indicative votes. .

Members of Parliament must resist ministerial blandishments, and insist on taking over the conduct of Commons business themselves rather than relying on nebulous, and frankly dishonest, government promises to allow the House to discuss alternative forms of Brexit (but entirely on the PM’s own terms). They should not allow themselves to be bamboozled by ministerial assurances that the government will make arrangements themselves to facilitate these discussions. .

It seems to me that several things must happen. First, cabinet ministers who are frankly appalled by the course that the PM is still intent on pursuing must insist on steering a different course. A cabinet revolt involving voting for backbench motions or amendments against the PM’s wishes, daring the PM to sack them, might be tactically better than resigning (constitutionally unorthodox though such conduct on the part of ministers may be). Secondly, the Commons must pass the proposal put forward by Sir Oliver Letwin to ensure that the House does at last take control of the agenda from this very untrustworthy Prime Minister. (I am assuming that in any event the government will lay an SI next week to repeal the provision in the 2018 Act that set the 29th March exit date in stone in that piece of legislation, and that this should be approved by a large majority, being opposed only by a handful of Brextremist head-bangers.) .

Finally, the House should seriously consider the advisability of forcing the government to revoke Article 50, as the only reliable means of stopping the clock and avoiding any further risk of the UK crashing out of the EU with no deal. If the whole Brexit issue is still unresolved as we approach the new 12 April deadline, then it will become absolutely imperative to revoke Article 50, and any squeamishness about defying ‘the will of the people’ or not ‘honouring the result of the referendum’ must be firmly put aside in the national interest. I have signed the petition on the government website calling for the revocation of Article 50, and I would urge as many readers as possible to do likewise (and tell your friends to do so as well). .

As I have said before, even revoking Article 50 cannot be regarded as putting a final end to Brexit. It will require either a General Election or a Referendum to resolve the issue of Brexit once and for all. I favour the latter as a more reliable means of resolving the question of Brexit, but only after a suitable interval to allow tempers to cool and to allow a referendum to be properly and fairly organised. To my frustration, prior personal commitments this weekend will prevent my attending the march for a People’s Vote in London on Saturday, but again I would urge you to attend if you possibly can. It is only by demonstrating to MPs the strength of feeling in the country on these issues that they (and particularly the front benches of the two main parties) will understand the shift away from Brexit among the public and will appreciate the need to change course on Brexit. .


[Next week, for at least the first half of the week, I am going to be fully engaged on other matters, and so I won’t be able to pay the close attention to Brexit that I have done in the past week or two. I will try to catch up with evening news bulletins, but you may be relieved to know that I almost certainly won’t have the time to comment further on Brexit (or anything else) until towards the end of next week at the earliest. It could prove to be an important week in the Commons, and may hold the key to the future of Brexit. I shall just have to catch up with the situation as best I can in the light of developments by the end of what promises to be another eventful week.] .


Wednesday, 20 March 2019

Class Q - “Last” used for agriculture?

One problem that seems to recur regularly in relation to prior approval applications for the residential conversion of an agricultural building under Class 3, Part Q in the Second Schedule to the GPDO is whether a former agricultural use was the last use of the building, or whether it has been used for other purposes since then.

It is clear from the wording of paragraph Q.1(a) that a non-agricultural use of the building after its agricultural use ceased would disqualify the building from residential conversion under Class Q. However, it should not be assumed that any other use, no matter how minor, would automatically have this effect.

By virtue of section 55(2)(e), the agricultural use of land and of any building occupied together with land so used is not to be taken for the purposes of the 1990 Act to involve development of the land. It follows that if the building is then used in some way that represents a material change of use, then the agricultural use will be at an end, and will have been supplanted by the new use that replaced it. The crucial question, however, is whether such subsequent non-agricultural use did in fact represent a material change in the use of the building, or whether it was of no real significance in planning terms, so as to have been de minimis.

It cannot automatically be assumed that any use of an agricultural or former agricultural building for some non-agricultural purpose would represent a material change of use. This is bound to be a matter of fact and degree in each case, but, a casual, low key or occasional use for other purposes would not normally amount to a material change of use, if this did not result in any significant change in the character of the building’s use, nor a change in its impact in planning terms. Bearing this in mind, it seems clear that the disqualification in paragraph Q.1 would not apply unless the subsequent non-agricultural use of the building did amount to a material change of use. The disqualification in paragraph Q.1 would not therefore be engaged where any such non-agricultural use was, as a matter of fact and degree, de minimis.

A discussion of the materiality of a change of use will be found in my book, The Essential Guide to the Use of Land and Buildings under the Planning Acts (Bath Publishing, ISBN978-0-9935836-5-0) in paragraph 3.8 of Chapter 3 in that book.

I do not usually report inspectors’ planning appeal decisions in this blog, but a practical example of this approach to the issue was provided by an appeal decision at Great Totham, Essex (Maldon DC) in July 2018 [3198348]. The appeal building was part of a long standing and larger farm complex which was subdivided in 1988. The LPA suggested that there had been no agricultural activity since 1988 and that the building had instead been used for both commercial and domestic activities. The appellant himself had never operated an agricultural trade or business from the appeal building and it was no longer part of an established agricultural unit. However, this did not mean it had moved away from its historic and lawful agricultural use, and the Inspector noted that planning permission to use the building for purposes unrelated to agriculture had never been granted. On the balance of probability, he therefore found that the building was probably last in an active agricultural use as part of an agricultural unit in 1988.

At points between 1988 and 2004 the appellant operated a number of heavy goods vehicles (HGVs) from the yard as part of an agricultural haulage business. There was nothing to suggest the material being transported derived from an agricultural unit operated by the appellant. However, the HGV licence only permitted the parking of HGV vehicles in the yard. The HGV vehicles were too large to be parked within the appeal building. There was nothing before the Inspector to suggest the barn formed part of this enterprise. The Inspector therefore concluded that the lawful agricultural use, which had not been active since 1988, would have endured even if the building had been used occasionally to support the unlawful HGV business (which seemed unlikely).

The appeal building itself had been intermittently used to store a tractor and other paraphernalia left over from the historic agricultural use, such as apple crates. The barn had also, at points, been used to kennel dogs, to park vehicles and as a workshop. The barn was described as being used for the storage of the owner’s vehicles and farm equipment, but it was unclear what farm the equipment related to. The storage and workshop use appeared to be domestic in nature given the items on show.

It was unclear whether the non-agricultural uses were for unbroken periods of time, more than intermittent and consistently more than low key. As such, the recorded use of the appeal building as a store and workshop was unlikely to be sufficient evidence to demonstrate that a material change of use of the barn from agriculture to some other use had occurred [my added emphasis]. Thus the historic and long standing use as an agricultural building had endured. This suggested that the barn had had a lawful dormant agricultural use since 1988. The LPA had never previously asserted that a material change of use from agriculture to some other use had occurred.

The Inspector observed that the evidence before him was incomplete and finely balanced but, on the balance of probability [my emphasis again], he found that the appeal building, whilst not in use on the 20 March 2013, was last lawfully used in 1988 and this was solely for agriculture in connection with an established agricultural unit. In this respect, the permitted development rights in Class Q of the GPDO applied to the appeal building. The Inspector therefore found that the proposal was permitted development, and concluded that the appeal should be allowed and approval granted.

An alternative argument on the part of LPAs that has occasionally been encountered is the assertion that casual or occasional storage of domestic items, or of logs as firewood renders the use of the building in question ‘ancillary’ to the residential use of a nearby farmhouse (or former farmhouse). However, it should be borne in mind that the farmhouse is a separate planning unit, and so the use of any of the agricultural buildings cannot be ancillary to the use of that other planning unit. (See Westminster City Council v British Waterways Board [1985] A.C. 676.)

In some cases, the mistaken view as to the agricultural building’s ancillary status is based on the assumption that the building is within the curtilage of the farmhouse. But a nearby barn or other agricultural building is very unlikely to be within the domestic curtilage of the farmhouse, because in most cases the agricultural building does not meet the essential functional test in Sinclair-Lockhart’s Trustees v Central Land Board (1950) 1 P. & C.R. 195. Furthermore, in most cases it would not meet the requirement laid down in Dyer v Dorset CC [1989] 1 Q.B. 346 of forming one enclosure with the farmhouse. (See also Burford v SSCLG [2017] EWHC 1493 (Admin).) Any doubt on this score was entirely dispelled by the High Court judgment in R (Egerton) v Taunton Deane BC [2008] EWHC 2752 (Admin), which established that nearby farm buildings are very unlikely to be within the curtilage of the farmhouse. [This point has previously been discussed in this blog, on Friday, 15 March 2013 - "Barns near listed farmhouses" - when I analysed the Egerton judgment in some detail.]


Tuesday, 19 March 2019

No surprise

If the government, and No.10 in particular, were taken by surprise by the Speaker’s statement in the Commons yesterday afternoon, then they simply haven’t been paying attention. As the Speaker explained, the issue was raised in a Point of Order by Angela Eagle last week, and several other members (notably Chris Bryant) drew attention to the well-established parliamentary rule that it is not permissible for bills or motions that have been decided upon by the House to be brought back before the House in the same parliamentary session.

Reporting of the Speaker’s statement has been very sketchy, and almost all the reports have omitted the careful explanation he gave for the opinion he has reached. The Speaker’s statement was prompted by Angela Eagle's Point of Order, and he also drew attention to the frequent application of the rule over the years (examples of which were given last week by Chris Bryant). As the Speaker observed, Members on both sides of the House, have expressed their concerns about the House being repeatedly asked to pronounce on the same fundamental proposition. An indication from the Speaker on the lines of yesterday’s statement was therefore a distinct possibility, and really ought to have caused no surprise.

Erskine May (the parliamentary bible) is absolutely clear about this: “A motion or an amendment which is the same, in substance, as a question which has been decided during a session may not be brought forward again during that same session.” It goes on to explain: “Attempts have been made to evade this rule by raising again, with verbal alterations, the essential portions of motions which have been negatived. Whether the second motion is substantially the same as the first is finally a matter for the judgment of the Chair.”

Although this rule dates back to 1604, it has been repeatedly invoked in the ensuing four centuries, and whilst a formal Speaker’s ruling has not been required for many years now, the rule is frequently applied on a day-to-day basis by the refusal of the Commons’ clerks to accept repetitive motions or Bills.

The Speaker reminded the House of the conduct of the government in this matter over the past three months. The first scheduled debate on the PM’s “deal” was due to take place on 11 December. However, on 10 December the vote was postponed after 164 speeches had already been made over three of the five days allotted for debate. That postponement was caused not by the Speaker or by the House, but by the Government. Indeed, the Speaker pointedout at the time that this was deeply discourteous to the House and he suggested that the permission of the House for that postponement should be sought. Regrettably, it was not.

After the first “meaningful vote” was lost on 15 January, by a margin of 230 votes (the largest in parliamentary history), a second meaningful vote was expected to take place in February, but once again there was a postponement. It finally happened only last Tuesday, 12 March, and the Government’s motion on the deal was again very heavily defeated. In the Speakers’ judgement, that second motion did not fall foul of the convention about matters already having been decided during the same Session, because it could be credibly argued that it was a different proposition from that already rejected by the House on 15 January. It contained a number of legal changes which the Government considered to be binding and which had been agreed with the European Union after intensive discussions. Moreover, the Government’s second meaningful vote motion was accompanied by the publication of three new documents—two issued jointly with the EU and a unilateral declaration from the UK not objected to by the EU. In procedural terms, it was therefore quite proper that the debate and the second vote took place last week. The Government responded to its defeat, as they had promised to do, by scheduling debates about a no-deal Brexit and an extension of Article 50 on 13 and 14 March respectively.

There have been rumours (so far unconfirmed) that a third, and even possibly a fourth, meaningful vote motion would be attempted. Hence the Speaker’s statement yesterday. The Speaker’s conclusion is this: If the Government wish to bring forward a new proposition that is neither the same nor substantially the same as that disposed of by the House on 12 March, that would be entirely in order. What the Government cannot legitimately do is to resubmit to the House the same proposition or substantially the same proposition as that of last week, which was rejected by 149 votes. This is the test which the Government must meet in order for the Speaker to rule that a third meaningful vote can legitimately be held in this parliamentary Session.

To suggest, as the Solicitor General did yesterday, that the Speaker’s stated opinion has caused a “constitutional crisis” is nonsense. The referee has simply blown the whistle on a professional foul. (As a senior and experienced lawyer, who is surely well-versed in parliamentary procedure, the Solicitor General really ought to know better than to make wild statements like this.)

The anger that has been expressed in some quarters (mainly from within government) is somewhat exaggerated, even perhaps synthetic, as it was becoming clear by yesterday afternoon that the government is unlikely to be able to get its ‘deal’ through the Commons even at the third attempt, and it appeared that in those circumstances the PM would not risk another humiliating defeat, and so would not bring her deal back to the Commons for a third time this week. Last week’s decision regarding a delay to Brexit did not depend on a further vote being held; it simply authorises the government, in the event of the deal not being passed by this Wednesday (for whatever reason), to seek an extension of the Article 50 process.

Reports suggest that Baldrick and the No.10 team have been racking their brains in an effort to dream up all sorts of cunning plans to circumvent the Speaker’s statement, but the obvious key to the situation is to change significantly the substance of the proposition that they wish to put before the Commons. The PM will have to go to Brussels on Thursday to seek a delay to Brexit, which will almost certainly have to be a long one, and a motion could be brought before the Commons next week that proposes a way forward in light of her discussions with the Council of Ministers. (I have previously pointed out that the EU will have to be convinced that there is a tangible reason for the delay – just wanting more time to continue an endless debate in parliament would not be a good enough reason.)

The options, however, in the extremely limited time that is now left before the 29 March deadline, are very limited. In the absence of an agreed postponement, revocation of the UK’s Article 50 notification will be the only means of stopping the clock if a car crash ‘no deal’ Brexit is to be avoided on 29 March.

UPDATE – 20 March (a.m.): If I were a cartoonist, I would be penning a cartoon this morning, showing Theresa May with her hand on the handle of a gaming machine labelled "MV3", staring at it and shouting “I WILL win this time! I WILL!” (and perhaps there might be a caption below the cartoon - "Problem Gambler") I won’t bother to enumerate all of the many obstacles she would have to overcome to win by this means, but the first is actually persuading the EU tomorrow that she can win in this way. Otherwise, even a short delay would serve no purpose whatsoever. Then (assuming the EU does agree to a short extension of time) next week she would have to persuade the Speaker that there really is some significant change in the proposition she wants to put back before the Commons. (Really???). Or she would have to persuade parliament to suspend the rule against repeated votes on the same proposal, which they might not be prepared to do. This really is a cunning plan that could only have been dreamed up by Baldrick. And so the pantomime drags on.


[My wife thinks there is too much about Brexit in this blog (although she strongly agrees with my views on Brexit). But Brexit really is far too important to ignore, and it is now taking up so much governmental and parliamentary attention that not much else is going on at the moment. This will obviously change if or when things become a bit clearer, and ministers can once again pay attention to other pressing matters. You may rest assured that I will certainly cover any new developments in planning law that occur in the meantime, but I make no apology for the amount of attention I am giving to Brexit at the moment, and especially this week, and probably (I expect) next week.]


Monday, 11 March 2019

Brexit – the End-game continues

(The horror film with endless dreadful sequels)

Plus ça change……… Cloud-cuckoo Land proves to have been just as inhospitable an environment for Theresa May as the real world. If the second “meaningful vote” goes ahead tomorrow [but see below], there would appear to be no good reason for those MPs who voted against the PM’s draft withdrawal agreement last time to vote for the unamended agreement this time.

Having repeatedly funked the chance to take control of the process away from this disastrously incompetent government, the House of Commons must vote to take over control of their Order Paper, so that in the perilously short time left before 29 March, the urgent steps needed to prevent the country crashing out of the EU without any deal on that date can be voted through. Merely passing another non-binding motion expressing their opposition to a ‘no-deal’ Brexit simply won’t cut the mustard. What is needed is an emergency Bill, which will have to be rushed through both Houses of Parliament, to cancel the 29 March leaving date and to instruct ministers either to seek a substantial delay to the Article 50 process or to revoke the Article 50 notice to the EU altogether, so that we simply stop the clock. Participation in the elections for the European Parliament in May will be a necessary part of this, and should not be resisted by any of our political parties. It is in the UK’s national interest to be fully represented in the European Parliament until we leave the EU (if we eventually do).

I have already explained in previous posts that merely requesting an extension of Article 50, especially if it is only a short one, will not solve the problem. There is in any case considerable doubt as to whether the EU would agree to only a brief delay, and they may not agree to an extension at all unless they are convinced that there is a good reason for it. Asking for a few weeks’ delay simply in order to continue arguing among ourselves about Brexit would clearly be a totally inadequate excuse for seeking an extension to Article 50. A long delay, perhaps for 21 months to the end of December 2020 (as Olly Robbins was famously overheard to say several weeks ago) is the only viable option. Frankly, a delay to enable a referendum or a General Election to be held are the only two scenarios that would provide a realistic basis for seeking an extension of Article 50. Failing that, formally ending the Article 50 process (which would not require the consent of the EU) is the only alternative.

The main fly in the ointment is the suggestion this morning that Theresa May might after all pull the three votes that were promised for Tuesday, Wednesday and Thursday, replacing the “meaningful” vote tomorrow with only a meaningless “provisional” vote. In view of the complete lack of progress achieved by ‘the Rumpole of Brussels’ (Geoffrey ‘Codpiece’ Cox) last week, and the reported deadlock reached in continuing ‘technical discussions’ over the week-end, it is perhaps understandable that No.10 is unclear as to what purpose would be served by putting May’s unamended deal back to the Commons tomorrow. However, a failure to do so, and to follow it up with the other promised votes (on the principle of ‘no deal’ and a delay to Article 50) would be an unpardonable breach of faith with the House of Commons, and could quite properly be categorised as a contempt of the House, bearing in mind that they were formally announced by the PM at the dispatch box. MPs’ collective patience has already been stretched almost to breaking point, and this might finally prompt a full-blown parliamentary revolt. It has even been suggested that in these circumstances the government could not be sure of surviving another vote of confidence in the Commons. In fact, now is the time for those ministers who forced the PM to promise this week’s series of votes to assert themselves to ensure that they still happen, instead of wimping out as they are all too prone to do.

The PM has chosen very unwisely to engage in a high stakes poker game with parliament and even with her own ministers over Brexit, and she has frankly forfeited any claim to loyalty that she might reasonably have expected from her ministers and from MPs. The time has come to set aside political calculations and to vote solely in the national interest, irrespective of the political consequences of doing so, either for their party or for their own political careers. If they fail to do so, any party or parties that are seen to have brought about or facilitated what promises to be a disastrous Brexit (if it is allowed to go ahead on 29 March) will face a terrible judgement by voters at the next General Election.

UPDATE 12.3.19: ………………plus c’est la même chose. Despite Theresa May’s last-minute dash to Strasbourg last night, “nothing has changed”, to use her own favourite phrase. The draft withdrawal agreement remains unamended. All that has happened is that the assurances that were contained in the letters of comfort that were published by the EU in January have been dressed up to look like something more formal, which the government claims makes them “legally binding”. But, as Keir Starmer pointed out on the Commons yesterday evening, they have no greater legal effect than the original letters of comfort.

So, when the Commons votes on the withdrawal agreement later today, they will be considering an unchanged document that still contains the Irish back-stop, and this will not be time-limited, nor will there be any mechanism that would allow the UK unilaterally to bring it to an end. Since it is very likely to take a good few years (maybe five, seven or even ten years) to conclude a final agreement on trade and other matters that will govern our future dealings with the EU, the Irish back-stop will take effect, and it will continue to operate potentially for an indefinite period, even though this is intended only to be ‘temporary’. I find it difficult to see how Geoffrey Cox can in all conscience change his previous legal advice in this regard.

I frankly have no problem with the back-stop, because it is clearly vital to preserve the Good Friday agreement. However, the withdrawal agreement will still make us rule-takers, rather than rule-makers. The political statement that accompanies the agreement gives only very vague indications of the aspirations of the parties as to the negotiation of the UK’s future relationship with the EU, and leaves us in a very weak negotiating position. There seems to be no logical reason why those MPs who voted against the draft agreement in January should vote any differently this evening. Realistically, however, the numbers voting against it today are likely to be reduced, and I don’t think anyone can predict whether the Commons will now vote the draft agreement through or not. The vote may prove to be quite tight. Watch this space!

UPDATE 11.30 a.m.: The bottom line (literally) of the Attorney General’s updated legal advice is that the legal risk is unchanged. He argues that there is a ‘reduced’ chance of the UK being held in the back-stop indefinitely and involuntarily but, in its essentials, what he is saying is that “Nothing has changed”. It seems highly unlikely that the DUP will be prepared to swallow this, nor is the joint ERG/DUP ‘Star Chamber’ of eight lawyers likely to find this situation acceptable. In the event, the chances of a government defeat this evening now seem to be somewhat greater than the glib assurances from the PM and her deputy appeared to suggest late last night.

UPDATE 13.3.19: By the time Geoffrey Cox’s legal opinion had been digested by everyone yesterday, it had become clear that Theresa May’s latest attempt to re-heat her failed withdrawal agreement was doomed to failure. But despite another crushing defeat in the Commons, it seems that the PM remains defiant. She is clearly the wrong person to be leading or managing this business, but at the time of writing there is no sign that she is prepared to step aside.

Today’s vote on “Deal or No Deal” will probably be passed by a huge majority, but it is clear from the ambiguous wording of the motion which the government tabled yesterday evening that merely voting against ‘No deal’ will not in fact prevent a car crash Brexit occurring on 29 March, even if the actual wording of the motion is amended in today’s debate. Simply passing motions in the Commons is not enough. Positive action will be needed to halt the Article 50 process, and to amend the 2018 Act in which the 29 March exit date is enshrined.

Both today’s debate and the debate promised for tomorrow on the possibility of seeking an extension to Article 50 are completely irrelevant. I don’t need to rehearse again the difficulties that may be encountered in negotiating an agreed extension – I have set them out in previous blog posts. Meanwhile the clock continues to tick down inexorably. .

I have become increasingly convinced that the only way to ensure that a disastrous ‘no deal’ Brexit is avoided on 29 March is to revoke the UK’s Article 50 notice altogether. This does not require the agreement of the EU (as explained in my brief article in this blog on the CJEU’s December judgment), and it would have the advantage of stopping the clock altogether, rather than temporarily postponing a problem that is unlikely to be solved within the limited timeframe that a postponement could offer. I have also previously discussed here the legal requirements for a valid revocation of the UK’s Article 50 letter of 29 March 2017, so these points do not need to be repeated.

After nearly three years, it is no longer sensible to regard the result of the referendum on 23 June 2016 as a current or valid expression of "the will of the people". Assertions that "the people have spoken" and that we must "honour the result of the referendum" are clearly nonsense in light of all that has come to light in the intervening period. So much has changed in the intervening period that the whole question of Brexit needs to be re-assessed in a calm and unpressured way. No doubt there will be some who will shout and holler about it, but when the fuss has died down, we can then get on with a more mature national debate about the whole issue. Another referendum will probably be needed finally to settle the matter, but to suggest that giving people a chance to vote on the issue in the very different circumstances that apply today is in some way ‘undemocratic’ is bizarre. Successive General Elections have been held at shorter intervals than this.

UPDATE 14.3.19 (A.M.): Trixie May was up to her tricks again yesterday, but through her manoeuvrings she only succeeded in turning what should have been a large majority for a government motion to take ‘No Deal’ off the table into another major government defeat. The problem was that the motion she had laid before the Commons involved a double negative that would effectively have nullified the effect of the motion. Unsurprisingly, back-bench MPs of both main parties combined to table amendments to convert the motion into the straightforward proposition that should have been tabled in the first place. One of these amendments, proposed by (among others) Tory MPs Caroline Spelman and Oliver Letwin and Labour MPs Jack Dromey, Yvette Cooper and Hilary Benn, stated simply that the House “rejects the United Kingdom leaving the European Union without a Withdrawal Agreement and a Framework for the Future Relationship” (i.e. on any date).

The Tory whips persuaded Caroline Spelman that her amendment would be ‘unhelpful’, and having had considerable pressure put on her by the whips, she informed the House of her intention to withdraw her amendment, only to be told by the Speaker that she could not do that; she could simply refrain from moving the amendment at the conclusion of the debate, but it would be open to any of the other MPs who were co-sponsors of the amendment to move it in her stead. In the event, the amendment was moved by Yvette Cooper and, although the government whipped their MPs furiously to vote against the amendment, it was passed by 4 votes.

In the face of this amendment the government then turned what had been promised on their side of the House as a free vote on the main motion into a whipped vote against their own motion (as now amended), with the bizarre result that Trixie May was now voting against the substantive motion that had been tabled in her name! Four cabinet ministers and a number of junior ministers abstained, rather than voting against the amended motion, and it was passed (against the government’s wishes) by 43 votes, thus piling yet one more humiliation on the unfortunate Trixie. But even the most sympathetic observer would have to admit that this really was a self-inflicted injury.

In the meantime, the Commons had decisively rejected the so-called ‘Malthouse Compromise’, which would have proposed a ‘managed No Deal Brexit’ (an idea which had already been summarily dismissed by the EU as unworkable).

But Trixie May still wasn’t giving up. She now tabled the motion for today’s debate, seeking the views of the Commons on a possible postponement of Article 50. This motion (no doubt drafted as a cunning plan by her chief political adviser, one Baldrick) was so convoluted as to be virtually unintelligible on first reading. Here again, though, the motion contains self-contradictory wording which suggests that Trixie May intends to have a THIRD go at getting her failed deal through the Commons next week. Several amendments have already been tabled, and we shall have to see which of these is selected by the Speaker. (One of them, supported by a large number of Brexiteers, seeks to rule out a second referendum. But what are they afraid of? Is it that the result of such a referendum might be to put an end to Brexit? If so, this shows a remarkable lack of faith in the project they hold so dear.)

UPDATE 15.3.19: The PM had a good day yesterday – she didn’t actually suffer any Commons defeats. But on the most critical vote she squeaked home by only the tiniest margin – a majority of just 2. This was on a cross-party amendment that would have allowed backbenchers to take over control of the agenda, and so prevent the government driving the bus over the cliff. The failure of this amendment is disappointing, but it may be re-introduced if the situation gets any worse in the next couple of weeks.

On a free vote, a delay to Brexit was then approved by a large majority. This was on the government’s unamended motion, which envisages a third vote on May’s deal next week. It is a measure of the chaos within the government and the Tory party that more than half of all Tory MPs, including eight cabinet ministers, voted against this government motion. One of these was the Brexit Secretary (Steve Barclay) who had only just wound up the debate for the government, strongly commending the motion to the House (!)

If by next Wednesday (20 March) May’s deal has not been passed, at the third time of asking, yesterday’s motion authorises May to seek an extension to Brexit. If May does succeed in getting her deal passed next week, she will need a short ‘technical’ extension to 30 June in any event, in order to get the necessary legislation through both houses of parliament. The motion recognises, however, that in the event of May’s deal not being passed, a significantly longer delay will be required, and that the UK may then have to participate in the elections for the European Parliament in May.

The attitude of the EU to a delay, beyond a brief ‘technical’ delay, is far from clear, and a wide range of contradictory views has been expressed by European leaders. The issue will no doubt be raised at the EU summit next Thursday and Friday (21 and 22 March) where it should, if possible, be settled. However, it requires unanimity on the part of the 27. Failing an agreed extension, the 29 March deadline for Brexit still applies, and in that case the government really would have to bite the bullet, and unilaterally revoke the UK’s Article 50 notice, as the only way to stop the clock, and prevent a disastrous car crash Brexit at the end of this month.

[Don’t miss next week’s exciting episode!]


Tuesday, 5 March 2019

LPAs mustn’t ‘play’ POCA

In a post on 18 December last year on ‘Eye-watering confiscation orders’, I also drew attention, by contrast, to an example of an LPA failing to obtain a confiscation order under the Proceeds of Crime Act, when the Court of Appeal in R. v Knightland Foundation [2018] EWCA Crim 1860 dismissed an appeal by Islington LBC against the refusal of the Crown Court to make a confiscation order in that case. The Crown Court judge had concluded that the basis of the decision-making process, including the refusal of a retrospective planning application (which had been recommended by the development management team for approval) was the enforcement team’s determination to press on with a prosecution for non-compliance and to press for a confiscation order under POCA. The prosecution had as its focus maximising the returns to the authority from a POCA order. This amounted to an abuse of process.

Another case in which the LPA was clearly aiming at obtaining a confiscation order under POCA has recently come before the Court of Appeal. This was an application by the LPA for leave to appeal in Wokingham BC v Scott [2019] EWCA Crim 205, following an order of the Crown Court that a prosecution by the LPA for non-compliance with an enforcement notice should be stayed on the grounds that it amounted to an abuse of process. Leave was refused by the Court of Appeal on 16 January.

The history of the matter is somewhat complex, but to put it at its simplest, following the service of two enforcement notices (both of which were the subject of appeals under section174, which were due to be heard at a public inquiry), there were discussions between the developer and the LPA as to the possibility of resolving the matter with a CLEUD (under section 191). In the course of these negotiations, the developer was persuaded by the LPA to withdraw one of the appeals. However, the application for a CLEUD was refused, because the enforcement notice had now taken effect as a result of the withdrawal of the appeal against it, and this prevented the issue of a CLEUD. The LPA then demanded compliance with the enforcement notice.

Legal proceedings were then started by the LPA, both for an injunction (which was granted) and somewhat later a prosecution was launched for non-compliance with the enforcement notice. An application by the defence to stay this prosecution was granted by the Crown Court. Whilst the judge concluded that that the defendants could have a fair trial, she was nevertheless very critical of the conduct of the LPA, which had made the proceedings manifestly unfair, and for this reason she granted the stay sought by the defence.

To start with, the LPA had induced the defendant to act to his prejudice (by persuading him to withdraw his enforcement appeal). He had therefore been denied the opportunity to have the matter tested in the appropriate planning forum and, most importantly, the LPA had then sought to take advantage of the situation to prosecute him for alleged transgression of the enforcement notice without recourse to the appeal process. Second, there was what the judge called the “inordinate delay between the preparation of the original Prosecution Report in May 2015 and the Expediency Report for Prosecution dated 6 March 2017”. The delay was due in part, to the determination of the injunction proceedings in the High Court. But whatever the reason and despite the voluminous correspondence between the LPA and the defendant throughout, the judge found that at no time did the LPA notify him or any of the other defendants that they would put themselves at risk of prosecution from 18 May 2015 onwards. He was told that such prosecution would be put in abeyance provided he supplied a timetable for compliance with the notice. But the fact remained that the defendant had been left in ignorance for the best part of two years of the fact that he was not only at risk of prosecution but that a decision had, in fact, been made on 18 May 2015 to prosecute him. The judge found this “a most unsatisfactory state of affairs”, particularly where there were proceedings continuing elsewhere. In her view, the effect of the failure to tell the defendant of that decision denied him the opportunity properly to consider the implications of his actions.

A third and very significant area of the judge’s concern was the fact that the possibility of an order being made under POCA was one of the principal factors in the decision to prosecute. (This was made abundantly clear in the 2017 “Expediency Report”.) If the prosecution resulted in a conviction and a POCA order being made, the LPA would have received 37½% of the fruits of the order. In the judge’s view, this lent support to the defence submission that the LPA was seeking to prosecute the defendants in order to claw back public money already expended on the case. She observed that the POCA provisions apply only after conviction, and she made it clear that the possibility of an order should never form any part of the prosecutorial decision-making process, particularly where the prosecutor and the beneficiary are one and the same. To take into account the possibility of a financial benefit, in her view, ran contrary to an objective analysis of the merits of the case as required under the Code for Crown Prosecutors.

In reviewing the matter, the Court of Appeal referred to their decision in R v The Knightland Foundation (cited above) based on similar facts. Although the respondents in Knightland did not have a legitimate expectation that their planning application would be granted, they did have a legitimate expectation that it would be decided on its merits, but the authority’s decision was based on other considerations, including the prosecution of the respondents and associated POCA proceedings. The evidence in Knightland pointed directly to improper influence having been brought to bear on the planning team to refuse the application. The Court of Appeal endorsed and repeated their observations in Knightland.

The decision to prosecute is a serious step and one that must be taken with the utmost care. Where there is a potential conflict of interest, namely a financial interest in the outcome of the prosecution, set against the objectivity required of a prosecutor, the prosecutor must be scrupulous in avoiding any perception of bias. The possibility of a POCA order being made in the prosecutor’s favour should play no part in the determination of the evidential and public interest test within the Code for Crown Prosecutors. The Court expressed the hope that this message will be relayed to all those making charging recommendations and decisions as soon as possible.

Accordingly, the LPA’s application for leave to appeal the Crown Court’s decision was refused, and the Court of Appeal ordered that all the Respondents be acquitted of the offences which were the subject of these proceedings.

There are one or two obvious comments that may be made in light of this case, but in fact the Court of Appeal made these themselves at the end of their judgment, and I gratefully adopt them. First, the self-contained code in Part VII of the Town and Country Planning Act 1990 confers on local planning authorities a wide range of powers for the enforcement of planning control. It is left to their judgment which power or powers it is appropriate to use in the particular circumstances of the case in hand. But it should go without saying that in deciding which power or powers will best deal with a particular breach of planning control, having regard to the public interest, an authority should always act with fairness and realism.

The second point is that nothing in this judgment should be seen as casting doubt on the value of informal discussions between officers of an LPA and an applicant for planning permission or a landowner who appears to be responsible for a breach of planning control. It is (as the Court of Appeal observed) trite that discussions between planning officers and an applicant or landowner do not ultimately bind a local planning authority to a particular position or a particular course of action (as confirmed by the House of Lords in Reprotech). But such discussions have, and will always have, an important role to play in the planning system – so long as they are conducted in good faith and with good sense on either side. The need for fair dealing on the part of the planning authority, in particular, will always be of paramount importance.