Monday, 29 April 2019

Further changes to Permitted Development

I have not commented recently on the current and future prospects for permitted development. To summarise briefly, in Part 3 of the Second Schedule to the GPDO, the government has announced that it will not now be further extending Class P (residential conversion of storage buildings which have been in B8 use) when it expires in June of this year. Class PA (residential conversion of light industrial buildings which have been in use within Use Class B1(c)) is due to expire next year, and my perception is that this too is unlikely to be extended.

As regards other PD (and related provisions in the Use Classes Order), following a consultation exercise which ended in January, the government proposes to amend Use Class A1 (shops) so as to embrace a wider range of permitted uses and ancillary uses. They also intend to introduce a new permitted development right to allow shops (A1), financial and professional services (A2), hot food takeaways (A5), betting shops, payday loan shops and launderettes to change use to an office (B1) and to allow hot food takeaways (A5) to change to residential use (C3).

The current temporary change of use in Part 4, Class D will be extended from two to three years and its scope will be enlarged to enable more community uses within this Class of PD.

Although it remains controversial, the government intends to press ahead with a permitted development right to allow upward extensions of certain existing buildings in commercial and residential use, although this will not go ahead immediately.

Larger residential extensions under Part 1 are to be made permanent, but they will be subject to a fee increase.

The government appears to be responding to recently expressed concern regarding the size and quality of residential accommodation being created under Class O (and presumably also under Classes M and N), and will now consider these issues, with a view to possible amendments to introduce a greater measure of regulation for these developments. [I will comment below on recently-announced Labour Party policy on this issue.]

The government, however, has not yet given up on its idea of a PD right that would allow commercial buildings to be demolished and replaced with residential development, although it is clear that any such change is not imminent.

Finally, as predicted following recent litigation on the issue, the government intends to remove the permitted development right under Part 16 and associated deemed consent under the Control of Advertisements Regulations in respect of new telephone kiosks.

Those changes that the government has definitely decided to bring forward are promised “in the Spring” (although seasons are a very flexible concept where government is concerned!). The more complex [for which read “controversial/difficult”] matters, including upward extensions, have been pencilled in for the “the Autumn”. [UPDATE: The first tranche of GPDO amendments was made on 1 May, and comes into effect on 25 May. See the blog post above dated 8 May 2019.]

Meanwhile, the Labour Party have announced an intention (if or when they return to power) to put an end to PD under Class O (residential conversion of office buildings which have been in use within Use Class B1(a)). Offhand, I don’t know whether they also intend to bring to an end PD under Class Q, or any other Classes that involve residential conversions, or other changes of use of agricultural buildings, but if a Labour government were to put an end to Class O it is quite likely that they would also cancel Class Q and maybe certain other PD rights.

Before this could happen, of course, there would have to be a General Election (not currently due until 2022, unless the current mess over Brexit results in an earlier election). However, Labour would have to win that election, which is by no means certain; another hung parliament cannot be ruled out.

As with so much else at the moment, much of what is mentioned above will depend on the outcome of the parliamentary battles over Brexit, and any political fall-out that might ensue from events in parliament in the next few weeks and months.

The government has clearly decided not to risk putting “the Deal” before parliament again before this week’s local elections (where the Tory Party is variously predicted to lose 500, 800, or even a thousand councillors, not to mention control of quite a few local authorities).

There appears to be continuing uncertainty over the government’s next move, although introduction of the Withdrawal Agreement Bill in the next week or two seems to be the most likely way forward. But in the absence of agreement with the Labour Party, this remains a risky step to take. If the Bill were to be defeated on Second Reading, the government might be forced to bring the present parliamentary session to an end (which was in any event due to expire in May), and re-introduce the Bill in the next session of parliament, which would then commence more or less immediately. No.10’s hope, however, would appear to be that they could squeak through on Second Reading, in which case they intend to continue the present session of parliament until the Autumn if necessary, while the Bill continues its passage through both houses.

This makes our participation in the elections for the European Parliament on 23 May unavoidable, as there is zero chance of getting the Withdrawal Agreement Bill through all its stages by 22 May (although the government appears then to be thinking of 30 June as a fall-back date, to avoid the new MEPs having to take their seats at the beginning of July). Having got through Second Reading (if they do), the government would no doubt introduce a timetable motion (the “guillotine”) in an attempt to curtail debate on the Bill, but this may well be opposed, and might be defeated, leading to a long parliamentary battle over the detailed provisions of the Bill.

A sound ‘drubbing’ for the government in both the local elections and the European elections three weeks later could precipitate a political earthquake within the Tory Party, and there is no knowing what might then happen. Labour may be tempted to try their luck with another No Confidence motion in the Commons, and a General Election could not then be ruled out.

So the future of Permitted Development may well be at the mercy of much larger political forces, and I for one am certainly not venturing any predictions as to the eventual outcome.


Thursday, 25 April 2019

Holiday lets revisited

I don’t usually report on planning appeal decisions, but I did prick up my ears at a decision in Cambridge [3196460] which was issued on 4 March. This related to conjoined appeals against a series of enforcement notices which had alleged a change of use of 13 flats from Class C3 dwellinghouse to ‘short-term visitor accommodation’. Each flat was a separate planning unit, and so each of the enforcement notices related to an individual flat. There was no dispute that the lawful use of these flats had originally been as separate private dwellinghouses. The issue before the Inspector was whether the manner in which each of these flats was being used still fell within Use Class C3 or whether the manner in which they were now being used (i.e. to provide short-stay serviced accommodation) amounted to a material change of use in each case.

The flats had been typically let from 3-4 nights per week (as a minimum) up to approximately 10 nights. In some other cases, the flats were let for longer periods. However, the evidence showed that 77% of the lets were for one- and two-night stays. This evidence also indicated that there were over a thousand different bookings for the 13 flats over an 11-month period from March 2017 to January 2018, and that the 13 flats were occupied 80% of the time. Some of these flats had been used as short-stay serviced accommodation since November 2011, whilst others had been similarly let since July 2015. The staff or agents managing the lettings provided a basic ‘welcome pack’ with linen and towels changed on a weekly basis [which was the sole extent of the ‘servicing’ provided] and neither of the two apartment blocks in which these flats were situated had any communal facilities.

It was stressed on behalf of the appellants that the service provided in the flats was very limited and that it was not at the same service level provided for hotel guests or some other serviced apartments in Cambridge. The business was now ‘geared around corporate lets’ and it was the appellants’ intention to have less of a turnover of residents by progressively providing longer lengths of stay. The appellants referred to the differences between the apartments that were the subject of this appeal and other serviced apartments in Cambridge. In particular, they stressed that the serviced apartments (flats) that were the subject of this appeal were indistinguishable from the other ‘conventional’ flats, including other apartments in the same blocks that were the subject of Assured Shorthold Tenancy Agreements. It was therefore contended that all these flats were clearly in Use Class C3. This was on the basis that a spectrum of uses, from Class C1, through a sui generis residential (hybrid) use, to one which is clearly in Class C3 use, all share indistinguishable characteristics as residential dwellings. So the appellants’ contention was that all of the flats the subject of these appeals had remained in Use Class C3 residential use, despite the short-term lettings.

The LPA, on the other hand, contended that, in each case, there had been a material change of use of the flat. The Council acknowledged that the apartments contained all of the facilities to enable a Class C3 use to occur. However, due to the typical rental periods, the frequencies of turn-over of the accommodation and the character of use, the Council contended that the use of the apartments did not fall within Class C3 use, as defined in the Use Classes Order. The Council relied on the judgment in Moore v. SSCLG [2012] EWCA Civ 1202, on which I reported in this blog on 27 October 2012 (“ Holiday lets may be a change of use”). The Council referred to the court’s finding that ‘It was not correct to say either that using a dwelling for commercial holiday lettings would never amount to a material change of use or that it would always amount to a material change of use. Rather in each case, it would be a matter of fact and degree and would depend on the characteristics of the use as holiday accommodation’.. The Council considered that, as a matter of fact and degree, a material change of use of each of the apartments the subject of these appeals had taken place. They accepted that Class C3 dwelling houses can involve occasional changes in occupation, but they argued that there is a fundamental difference between, for example, a tenancy change and the high frequency of change in occupation that occurs with the ‘Airbnb’-type uses which had been carried out in the appeal premises.

The Council asserted that usage for short-term periods was likely to be by single individuals or couples and that the impacts of usage were both individual to each apartment block and cumulative, due to their location adjacent to each other. In considering the character of usage, the Council felt that this generated an increased likelihood of early and late arrivals; the uncertainties relating to location, uncertainties regarding access and parking; the need for specific instructions; the fact that the flats were not their homes; the fact that they are guests of the appellant company; the fact that the flats were servicing the tourism sector of the market as opposed to serving the residential market of Cambridge and that guests would not typically be invested in the local community.

Overall, the Council had concluded that the short-term letting use was somewhere between a C3 dwellinghouse and a C1 hotel use. As such, they argued, it was a sui generis use. The Council was also concerned about the transitory nature of the letting use and consequently that some visitors could demonstrate less respect and consideration for neighbours than might be the case for permanent residents. In support of this view the Council referred to reviews by some visitors which were evident from the booking website. Some of these included references to surrounding apartments being ‘incredibly noisy’; ‘noisy guests next door all night long’ and noise levels from other guests being ‘unbearable’. (On the other hand, none of the permanent residents in any of the neighbouring flats in either of the two apartment buildings had complained about any impact on their amenities.)

In assessing these appeals, the Inspector observed that the ‘Moore’ case had established the correct approach to be taken when considering whether or not a material change in use from a dwelling house (Use Class C3) to a holiday or commercial residential use (sui generis) has occurred. It was accepted by both parties that these appeals turned on whether or not, as a matter of fact and degree and based on the particular characteristics of the use of the apartments, a material change of use had occurred.

The Inspector in the ‘Moore’ case considered that there were a number of distinct differences between short term holiday accommodation and a Class C3 use. These included the pattern of arrivals and departures; any associated traffic movements; the likely frequency of party-type activities; the potential lack of consideration for neighbours and other factors which differed from a private family use of the property. Although the uses in the instant appeals could not be compared exactly with the situation in the ’Moore’ case, the Inspector considered that the potential for similar impacts on amenity were the same. The Inspector recited his various concerns in this regard.

In summary, therefore, it was the Inspector’s view that, as a matter of fact and degree, the variable nature of the transient uses of the properties had resulted in a distinctly different character of usage from that of a Class C3 use. He acknowledged that the services provided are not anywhere near a full hotel service. Nevertheless, the flats were let as separate suites of accommodation; they were let and advertised as a hotel might be and, most importantly had been let for many 1- or 2-night stays. On the basis of all of the submissions and his site visit, the Inspector concluded that the character of usage relating to all 13 appeal flats had become significantly materially different to the more permanent residential character of neighbouring flats which were subject to the Assured Shorthold Tenancy Agreements. These differences had amounted to a material change in use of each of the flats in question. It followed that in each case there had been a contravention of planning control and all the appeals were, therefore, dismissed on ground (c).

In commenting on this appeal decision, I should stress first that the Inspector was entitled to reach his own conclusions on issues of fact, and he clearly stated that his findings were made ‘as a matter of fact and degree’. The second point is that, as an appeal decision, this is not in any way legally binding, but it is nevertheless an interesting example of the way in which the relevant legal principles may be applied in practice in appeals of this nature.

This appeal raises a number of interesting points, which are not necessarily confined to holiday lets, but may apply to other alleged changes of use. The first point to be borne in mind is that, if a use remains fairly and squarely within one and the same Use Class, no amount of intensification of that use will amount to a material change of use (see, for example, Kensington & Chelsea RLBC v SSE [1981] J.P.L. 50). A problem may arise, however, if the character of the use changes in such a way as to take it outside the scope of the Use Class within which it originally fell. Decided cases include examples of changes in the use which did not alter the character of the use to such an extent as to amount to a material change of use (e.g. R (Manning) v South Lakeland DC [2005] EWHC 242 (Admin), and Herts CC v SSCLG[2012] EWCA Civ 1473) The classic case in which a change of use certainly had taken place was Wallington v SSW [1991] 1 P.L.R. 87, where the keeping of pets (which is usually a legitimate ancillary or incidental use of a single private dwellinghouse) had grown to such a degree, in that case keeping 39 dogs on the premises, as to change the character of the use in way that took it outside the scope of Use Class C3, and made it a mixed (sui generis) use as a dwelling and for the keeping of dogs. The Moore case, cited in this appeal decision, is an example of a holiday let being or becoming so different in character compared with an ordinary residential use within Use Class C3 as to amount to a change of use.

One further point, which was only touched on lightly by the LPA in presenting their case, and which does not seem to have been a factor in the Inspector’s decision here, is the possibility that a use (such as a holiday let) may, in principle, fall within the same Use Class as the pre-existing use, and yet have such an impact in planning terms as to give rise to a material change of use, even in the absence of any environmental impact as such. This possibility was first suggested by Lord Denning in Wakelin v SSE [1978] J.P.L.769, but was most clearly demonstrated in the cases of Richmond-upon-Thames LBC v SSETR [2001] J.P.L 84 and R (Kensington and Chelsea RLBC) v SSCLG [2016] EWHC 1785 (Admin). Both of those cases were concerned with the loss of housing units (through the amalgamation of dwellings) in areas where there was high demand for housing, particularly in the form of smaller units. It strikes me that the use of flats and similar residential accommodation as holiday lets, if this were to amount to more than a purely temporary interruption in their normal residential use, might well give rise to precisely the same considerations. There is, of course, legislation on this in Greater London, but LPAs elsewhere, faced with a situation similar to this enforcement case in Cambridge, might well consider the applicability of the principle established in the Richmond and Kensington & Chelsea cases, if the use of flats for holiday letting has the effect of reducing the availability of housing units to meet high demand for housing in their area.

This suggests that the government should perhaps revisit the Use Classes Order, and possibly introduce a separate and carefully defined use class for holiday lettings, so that these could no longer be embraced within Use Class C3. In the meantime, however, further cases such as Moore and this latest enforcement case in Cambridge are likely from time to time to trouble the Planning Inspectorate, and possibly the courts.


Thursday, 4 April 2019

Court of Appeal cuts scope of POCA confiscation orders

[The last few paragraphs of this post were slightly revised on 2 May 2019 in order to make my concluding remarks clearer.]

I have no particular interest in POCA as such, but there have been several important cases relating to planning enforcement prosecutions which have resulted in some spectacularly large confiscation orders. The Court of Appeal, however, seems to think that LPAs have been getting rather over-excited at the prospects of obtaining juicy confiscation orders, and in a couple of cases on which I have previously blogged the Court has cut down on the scope for these orders being made. There is now another Court of Appeal decision in which a confiscation order in the Crown Court has been drastically reduced.

This is the case of R v Panayi [2019] EWCA Crim 413. The appellant was convicted in the Magistrates’ Court in 2016 of failing to comply with an Enforcement Notice (under section 179 of the 1990 Act). He was committed to the Crown Court for sentence and for a confiscation order to be considered under the Proceeds of Crime Act 2002. The Crown Court made a confiscation order in the sum of £95,920 and fined the appellant £25,000.

The breach of planning control (comprising the construction of a mansard roof extension on his property which materially exceeded the dimensions for which planning permission had been given) was the subject of an Enforcement Notice that had been served as long ago as 2003. An appeal against that notice under section 174 was dismissed in 2004, but time for compliance was extended by a year to February 2005.

Correspondence between the LPA and the appellant about his non-compliance with the EN began in 2006, some 21 months after the expiry of the compliance period. However, some five months later, the Council eventually wrote to the appellant stating the Council would not at this time be prosecuting for the non-compliance of the enforcement notices, relating to the construction of the roof extensions at the above addresses, but adding that should there be any further serious breaches of planning process the authority would consider taking legal action. (It appeared from a council report made some years later in 2014 that in 2007 the council had felt that it would not to be in the public interest to prosecute the appellant at that time.)

In view of that letter, the appellant took no steps to comply with the Enforcement Notice. He continued to use the property with the roof extension as built which was let out as two flats on which he received rent. It was accepted on the appellant's behalf that his conduct remained unlawful. There was no planning permission and the Enforcement Notice, although it had not been the subject of a prosecution, had not been withdrawn.

In 2014 the appellant sought to regularise the position by applying for an LDC to establish that the existing use of the roof extension as top floor flats was lawful. That application was rejected by the council and an appeal was unsuccessful (as it was bound to be as an LDC cannot be granted in respect of development that is the subject of an extant enforcement notice).

It seems that it was the dismissal of the LDC appeal in 2016 that prompted the council to reconsider the question of prosecution. The council decided that it would institute a prosecution and did so by summons issued on 28 June 2016. The offence alleged in the summons was:

"On or about 18 February 2016, you being the owner of 282-284 Caledonian Road, London, N1 1BA breached an Enforcement Notice issued by the London Borough of Islington on 22 August 2003 in respect of unauthorised developments at 282-284 Caledonian Road by failing to comply with the remedial action required in Schedule 4 of the Enforcement Notice, contrary to section 179(1) and (2) of the Town and Country Planning Act 1990”

When the matter came before the Crown Court for sentence, the Council was seeking a confiscation order in the sum of £243,817.98, calculated on the basis of the gross rental income from the two self-contained flats occupying the unauthorised enlargement of the mansard roof space, from the date of non-compliance with the Enforcement Notice (12 February 2005) to the date of conviction (26 September 2016). This figure also included an allowance for inflation. However, by the time of the hearing in the Crown Court, it was common ground that this was not a case of general criminal conduct and therefore the lifestyle presumptions in POCA were not applicable in this case, so that what needed to be assessed was the benefit from the appellant's particular criminal conduct.

The Crown Court judge rejected the appellant’s submission that the only period of time which should be considered was the period between the issue of the summons and the conviction, on the ground that this did not reflect the criminality of the appellant's actions, but the judge accepted that the letter sent by the local authority in March 2007 (when it said that it would not be taking any action at that time) meant that it was asserting that it was not then in the public interest to prosecute and so this also needed to be taken into account. The Crown Court was therefore faced with a difficult balancing act but, taking all the factors into account, the judge assessed the benefit to be £95,920 and ordered that sum to be paid within the next three months, with one year's imprisonment in default.

In the Court of Appeal, various points were canvassed on behalf of the appellant but, in the event, the case turned on a single point, namely the terms of the offence that had been alleged in the Magistrates’ Court summons. The appellant was charged with being in breach of the Enforcement Notice "on or about 18 February 2016". That charge, in their lordships’ judgment, had to be interpreted as relating to a criminal offence committed on a single day. Thus the charge related only to a single day in February 2016, on or about the 18th of that month. That was the only criminal conduct of which the appellant was convicted. It was for the council, as the prosecuting authority, to decide the period over which the conduct charged should extend. Section 179(6) of the 1990 Act states clearly:

"An offence under subsection (2) or (5) may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under the subsection in question by reference to any period of time following the preceding conviction for such an offence."

Here the council chose to charge by reference to a single day. The Court of Appeal therefore addressed the question as to whether the calculation of benefit for the purpose of confiscation proceedings can extend over any greater period; specifically, whether it can extend in respect of the whole period from the expiry of the period for compliance to the date of conviction.

By the time of the hearing before the Crown Court, the prosecution had accepted that this was not a case of general criminal conduct and therefore the point was not pursued in submissions before him. Nevertheless, the Court of Appeal re-considered this point. Section 6 of POCA sets out the conditions for proceeding to the making of a confiscation order. They include that a defendant is convicted of an offence or offences in proceedings before the Crown Court, or that he is committed to the Crown Court for sentence in respect of an offence or offences under various provisions of the Sentencing Act, or that he is committed in respect of an offence under section 70 with a view to confiscation being considered. The court then has to decide whether or not the defendant has a criminal lifestyle, as it was accepted in this case that he did not. Then it has to decide whether he has benefited from his particular criminal conduct and go on to decide the recoverable amount.

These provisions are developed further in section 76. Particular criminal conduct is defined at subsection (3) as “Particular criminal conduct of the defendant is all his criminal conduct which falls within ………….. conduct which constitutes the offence or offences concerned …….". Subsection (4) provides: "A person benefits from conduct if he obtains property as a result of or in connection with the conduct." So it is clear that the benefit which the court needs to identify is the benefit obtained "as a result of or in connection with" the criminal conduct of which the defendant has been convicted, or in respect of which he has pleaded guilty. There is no scope for the court to find that the defendant has committed other or more extensive offences and to go on to identify the benefit which he has received from such further offending. This is apparent from the clear words of the statute but is in any event confirmed by the commentary in Blackstone’s Guide to POCA, at paragraph 2-58, referring to the distinction between general and particular criminal conduct:

"The crucial distinction is that an inquiry into particular criminal conduct is restricted to the offences which are proved or admitted in the current proceedings, including offences taken into consideration (section 76(3)). The prosecution cannot embark on a trawl through the past and the judge cannot apply the assumptions. The benefit resulting from the offences must be proved on the balance of probabilities by evidence and necessary inference from the circumstances."

The argument on behalf of the LPA was that t the words "in connection with" in section 76(4) are wide words which are capable of extending the scope of the relevant benefit, and did so in this case, with the effect that the benefit received by the appellant over the whole period since 2007 was obtained in connection with the conduct of which he was convicted, that is to say in connection with the offence committed on or about 18 February 2016. They pointed out that the offence of failing to comply with the Enforcement Notice was a continuing offence which occurred at any time after the end of the period for compliance (see the terms of section 179(1) and (2) of the 1990 Act). It had been determined by a planning inspector on appeal that there had been no compliance with the enforcement notice since 18 February 2005 The date by which the appellant had been required to comply with the Enforcement Notice). The council’s contention, therefore, was that this was a case where there was clear and uncontested evidence of criminal conduct over a lengthy period from 2005.

The Court of Appeal’s attention was drawn to R v Sangha [2008] EWCA Crim 2562, but there is nothing there, in their lordships’ judgment, which entitles a court to extend the meaning of particular criminal conduct beyond the conduct of which a defendant has been convicted or in respect of which he has pleaded guilty. The benefit obtained as a result of or in connection with such conduct must be referable to the offence with which the defendant is charged and of which he is convicted. It is not open to a court in confiscation proceedings to find that benefits obtained over an extended period were obtained in connection with the commission of an offence on a single day - at any rate on the facts of this case. The rent obtained by the appellant letting out the flats in question from 2005 or 2007 onwards could not be regarded as having been obtained in connection with the criminal conduct of which he was convicted, which consisted only of being in breach of the Enforcement Notice on a day on or about 18 February 2016.

The appeal against the confiscation order was therefore allowed. The benefit which the appellant obtained was limited to a single day's rent which, the Court was informed, amounted to £58. Accordingly, the Court of Appeal quashed the confiscation order made by the Crown Court and substituted an order in the sum of £58. (The £25,000 fine was nevertheless upheld.)

Local planning authorities should derive two points from this judgment. First, care must be taken over the drafting of the summons or indictment. If the offence is one that has continued over a lengthy period, then the charge should relate to the whole (or substantially the whole) of that period. The second point is slightly more difficult. It seems that the Court of Appeal accepted in Panayi that the type of conduct involved in this case did not amount to a criminal lifestyle in accordance with the presumptions laid down in POCA. If that is to be taken at face value, then it would appear to cut down the potential extent of confiscation orders under POCA in planning cases.

The point is a ‘difficult’ one because it had previously been my understanding that a defendant has a 'criminal lifestyle' if one of the offences of which he is convicted falls within the statutory catalogue in Section 75 of POCA. The list includes “an offence committed over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence", although this provision is not satisfied unless the defendant obtains relevant benefit of not less than £5,000. [Section 76 of POCA provides that “criminal conduct” is conduct which constitutes an offence in England and Wales. “General criminal conduct” of the defendant is all his criminal conduct, and it is immaterial whether that conduct occurred before or after the passing of the 2002 Act, or whether property constituting a benefit from that conduct was obtained before or after the passing of this Act. A person “benefits” from conduct if he obtains property as a result of or in connection with the conduct. If a person benefits from criminal conduct his benefit is the value of the property obtained.]

It was on this basis that the Court of Appeal upheld a substantial compensation order in Basso & anor v. R. [2010] EWCA Crim 1119. However, there appears now, as a result of Panayi, to be some uncertainty as to whether a Crown Court can calculate the amount of a confiscation order under POCA on the basis of ‘general criminal conduct’ (so as to mulct the entirety of the proceeds from the date when compliance was required to the date of conviction), or whether the continuation of the offence over more than six months cannot, in itself, be taken to be “general criminal conduct” or to amount to a “criminal lifestyle” (notwithstanding the actual wording of section 75), so that in a planning enforcement case the confiscation order may be calculated only in respect of the defendant’s particular criminal conduct, i.e. restricted to the period covered by the offence that has actually been charged.

I confess that I am somewhat confused by the apparent inconsistency between Basso (and other similar cases in the past few years) and the decision now reached by the Court of Appeal in Panayi. This apparent discrepancy does perhaps suggest that this is an issue that may perhaps have to be reviewed, either by a differently constituted Court of Appeal in a future case, or by the Supreme Court.


Monday, 1 April 2019

BREXIT – the Final Act (Scene Two)

[I had intended that my next blog post would be on a planning law topic, as there has been another Court of Appeal decision on confiscation orders under POCA, which seems on the face of it to cut down the potential size of such orders. However, I have not yet had time to get my head around this judgment, and so it will have to wait a few days. So I’m afraid that, today at least, it’s Brexit yet again.]

It seems the Brexiteers are getting desperate, and are casting about for various legal devices by which they could ensure that, despite current parliamentary obstacles being put in its way, Brexit will actually occur, either on 12 April or (at the latest) on 22 May. However, the ideas they have been coming up with are both legally and constitutionally dubious, notwithstanding the apparent support expressed for such devices by certain right-wing academics. It is much the same right-wingers who have been muttering about the constitutional propriety of the current efforts to find some acceptable compromise that might gain majority support in the House of Commons.

Among the suggestions that the Brexiteers have made is that the Queen could or should withhold Royal Assent to any legislation passed against the wishes of the government (!), for example if it were to require a confirmatory referendum before Brexit could become effective. Another possible ruse is that parliament might be prorogued as a device to ensure that a ‘no deal’ Brexit occurs by default on 12 April.

One only has to state these possibilities to appreciate the enormity of such proposals. Both ideas involve the use of the Royal Prerogative, but it is a fundamnetal principle of the constitution that the Royal Prerogative can be exercised only in a constitutional manner, and not arbitrarily. Since 1688, our monarchy has been a ‘constitutional monarchy’, in the sense that the monarch can rule only with the consent of parliament, and the scope for the exercise of the monarch’s own political will has, by convention, become ever more constrained, so that it is now firmly established that the monarch must not descend into the political arena, either in terms of expressed opinions or in the exercise of the Royal Prerogative. There are, of course, instances in which the government (the Executive, to use the language of constitutional law) exercises the prerogative on behalf of the Crown, but even this has been increasingly constrained by convention, and even by law, as we saw in the case of R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.

Let us look first at Royal Assent to parliamentary Bills. This is the last step in passing a Bill, which then becomes an Act of Parliament. There are two points that should be made. First, it is “the Queen in Parliament” in her capacity as a component part of the Legislature, who gives the Royal Assent, and by convention this is never withheld. The second point is that a Bill presented for Royal Assent is parliament’s Bill. It may (or may not) have been proposed by the government, but it is Parliament, and Parliament alone, who owns the Bill. It is nonsense, therefore, to suggest (as some legal and political commentators who should have known better have done recently) that Royal Assent might be withheld in respect of a Bill that has been passed by the Lords and Commons against the wishes of the government. The Executive has no power, and no right, to demand that the monarch should withhold her Royal Assent to a Bill that has been duly passed by both Houses of parliament. Subject to today’s Business Motion, it is possible that a Bill may be introduced by back-benchers on Wednesday of this week which would have the effect of changing the basis on which Brexit is concluded and implemented. If such a Bill were to be passed (and I make absolutely no predictions on that score) then, irrespective of the views of the government, there is absolutely no legal or constitutional basis on which Royal Assent to this Bill could be withheld.

It is possibly because they are well aware of this that certain Brextremists are proposing, as an alternative, that parliament should be prorogued long enough for a ‘no-deal’ Brexit to occur by default on 12 April, without parliament having any opportunity to prevent it. In this case, it is the government that proposes the prorogation of parliament but, here again, the power of prorogation must be exercised constitutionally. It would be grossly improper for the government (any government) to ask the monarch to prorogue parliament with the express intention of frustrating the apparent will of parliament, and in particular of the House of Commons. My impression is that this kite is not being flown by No.10 or by the Cabinet Office, but comes solely from the ‘Brextremists’ (which may or may not include a handful of cabinet ministers). In practice, I would hope that the Cabinet Secretary would make it abundantly clear to the PM and her advisers that prorogation for this purpose would be a wholly unacceptable exercise of the Royal Prerogative, and would drag the Queen into the political arena in a completely unconstitutional way. The Palace would no doubt make it clear to the Cabinet Secretary in any event that the Queen would strongly deprecate being involved in political controversy, and that the suggested prorogation of parliament for such an improper purpose would be constitutionally unacceptable.

Turning to today’s proceedings in the Commons, it is entirely proper for the House to take control of its own agenda, even to the extent of proposing and passing legislation. Suggestions to the contrary are based on a wholly exaggerated, and incorrect, view of the role of the Executive in relation to the legislative process. As I explained last week, the practices that have usually obtained by reason of most governments having a working majority in the Commons cannot thereby be elevated to the status of a constitutional convention. The present government does not have a working majority, and has hitherto been forced to rely on a ‘Confidence and Supply’ arrangement with the DUP. This, however, does not guarantee that the government will always get its way in parliament, and it certainly does not entitle the government to expect that it will. One of the problems that the May government seems to have had since June 2017 is that it has attempted to proceed as if it had won an overall majority in the last General Election. But the limits to its power are now being demonstrated on a weekly, almost daily, basis.

I don’t propose to discuss what may emerge from today’s Commons sitting. I discussed it generally in my last blog post, and it is still not clear how the government might proceed in the light of any motion or motions that might be passed today. Once again, as so often in recent months, we shall just have to wait and see. But that wait may not be long; the government may make its intentions known at the end of today's debate, or tomorrow, and there are quite likely to be further developments this week.

UPDATE 2 April: The headlines are screaming this morning that the Commons again failed to support any of the options placed before them yesterday, but what all the commentaries seem to miss is that in three of the votes up to 100 Members of Parliament failed to vote at all, and on the most sensible proposal of all, a fall-back position providing for the revocation of Article 50, but only if at the last minute this is the only way of preventing a disastrous No-deal Brexit, more than 150 members abstained.

With the exception of this last vote, the abstainers overwhelmingly comprised members of the Cabinet, other ministers and ministerial aides (PPSs). It is therefore the Government which is responsible for the current impasse. On such an important issue as Brexit, on which even the government is divided, ministers should have had a free vote, as they should in any further votes on Wednesday. It is quite clear that they were instructed to abstain yesterday, and this instruction should now be rescinded. Otherwise, the blame for any continuing impasse will lie solely at the door of Theresa May. (Perhaps we should start calling her Pontius Pilate, or perhaps the Emperor Nero.)

As for the final vote, on Article 50, which is an essential insurance policy to prevent the UK crashing out of the EU on 12 April ‘by mistake’ (or by default), the Labour front bench also failed to support this motion, so that the total number of votes cast on both sides in that division fell to only 483. So the Labour leadership must bear part of the blame for the failure of this final motion.

If a No-Deal car-crash Brexit is to be avoided and if, as seems likely, there is no realistic prospect of May’s draft Withdrawal Agreement being approved by the Commons, then a lengthy extension of Article 50 (which must be for a specific purpose – either a General Election or a Confirmatory Referendum) or the revocation of Article 50 altogether are the only other possibilities, and in the end one of these two alternatives will have to be the course that the UK follows.

UPDATE 8 April: It just gets worse and worse. Trixie May has less than 48 hours now to pull Brexit out of the fire. She ain't gonna do it. If she gets no joy from the EU at Wednesday's summit (and this is looking increasingly likely), the only option that will then be left, in order to avoid a car crash No-deal Brexit on Friday night, will be to revoke the UK's Article 50 notice. This needs to be put to parliament on Thursday, and communicated to the EU during Friday at the very latest. I don't pretend that this will put a final end to Brexit; but it will stop the clock, and give us breathing space (without the pressure of any deadline) to have a thorough rethink of the whole Brexit issue. And in the meantime I shall look forward to voting in the elections for the European Parliament in May, to ensure proper representation of the UK in Europe for as long as our membership of the EU continues.

UPDATE 12 April: Well, I suppose we can allow ourselves a modest sigh of relief. We will not be crashing out of the EU tonight. The government will continue to negotiate with the Labour front bench, although the prospects of reaching an agreement that would enable May's deal finally to be passed by the Commons still don't look good. When the Commons gets back after its Easter hols, there will be barely 4 weeks left before 22 May within which to push May's draft withdrawal agreement over the line (with or without Labour support), failing which the European parliamentary elections will have to held on 23 May. Personally, I am looking forward to voting in that election and securing proper representation for the UK in Europe for the foreseeable future.

As to the period between 23 May and 31 October, it is impossible to make any predictions, but don't be surprised if the deadlock continues. My guess is that Theresa May stands a better than 50:50 chance of remaining PM for several more months, whether the head-bangers on the right wing of her party like it or not.