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.

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[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.]

© MARTIN H GOODALL

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!]

© MARTIN H GOODALL

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.

© MARTIN H GOODALL

Telephone kiosks - the scope of PD under Part 16

Many readers will have become aware of the recent High Court judgment in Westminster City Council v SSCHLG [2019] EWHC 176 (Admin), in which judgment was given by Ouseley J on 5 February. Most commentary on this case has focused on its effect in relation to the use of telephone kiosks for the display of advertising, but the case raises a wider issue relating to the scope of the development permitted by particular parts and classes in the Second Schedule to the GPDO, and the inter-relationship between this and the determination of a prior approval application in respect of such development.

The Westminster case was a challenge by the LPA to an appeal decision in which an inspector had granted prior approval for a telephone kiosk. The Secretary of State and the telecoms operator both sought to defend the Inspector’s decision.

The key to the issue that was before the court is the actual wording of Part 16 of the Second Schedule to the GPDO. This issue applies, in fact, to permitted development under other parts of the Second Schedule. Whether a particular development is permitted by the GPDO is a two-part question. First, the proposed development must qualify as permitted development under the criteria laid down in the particular Part and Class by which it is governed, and secondly (in many, but not all, cases) a prior approval application must be made, and is to be determined under the relevant criteria that apply to the prescribed application.

The development under consideration in the Westminster case was the erection of a telephone kiosk under Part 16, Class A - Development by or on behalf of an electronic communications code operator for the purpose of the operator’s electronic communications network in, on, over or under land controlled by that operator or in accordance with the electronic communications code, consisting of [in this case] the installation, alteration or replacement of any electronic communications apparatus (viz. the proposed telephone kiosk). The relevant qualifying criterion in this case, therefore, is that the development is for the purpose of the operator’s electronic communications network.

In the Westminster case, the LPA attempted to argue that the developer must also demonstrate a “need” for the development. This was by analogy with the condition in Part 16 requiring the removal of the apparatus when it is no longer required. They also sought to rely on Paragraph 45 of the NPPF that applications related to telecommunications, including applications for prior approval under the GPDO, "should be supported by the necessary evidence to justify the proposed development", although Paragraph 46 states that applications should be determined on planning grounds, and authorities should not question the need for the telecommunications system or seek to prevent competition between operators. In the event, this “need” argument was not accepted by the court, and does not therefore require any further consideration.

The second stage (the prior approval application required under paragraph A.3(3)) enables the LPA to determine whether the prior approval of the authority will be required as to the siting and appearance of the development. In the Westminster case, the LPA did not seek to question the Inspector’s planning judgment as to the acceptability of the siting and design of the relevant kiosk.

The LPA’s fundamental objection was that the design and construction of the kiosk incorporated a substantial illuminated panel that was intended for the display of advertisements. The actual display of such advertisements would require advertisement control consent, but it was clear that the design (and arguably the purpose) of the kiosk included, and was perhaps primarily intended to facilitate, the display of advertisements, and in fact the size and design of the kiosk was significantly influenced by that requirement.

The LPA therefore argued, both before the Inspector and in the High Court, that the telephone kiosk was not "for the purpose" of the operator's electronic communications network, but instead was primarily for the purpose of advertising via the illuminated panel. The proposed kiosk was much larger than required to accommodate the proposed telephone; its size was dictated by the desire to provide advertising space.

In defending the Inspector’s decision, the Secretary of State submitted that the developer was an electronic communications operator, and its kiosks, with landline and internet access, were the reason it was an operator at all. The proposed kiosk was obviously "for the purpose of [its] network" within Class A GPDO. "Purpose" had the ordinary meaning of "the reason for which something is done" (as the LPA had themselves submitted). The Secretary of State also argued that the definition of Class A, merely required that the kiosk be "for the purpose of" the network; it contained no "dominant" or "primary" purpose test. The definition of class A did not include any requirement that the kiosk be "needed" or "required", and it should not be altered to "required for the network" or "required for the purpose of the network".

In the end, this case turned on this issue of “purpose” (but not of any requirement for “need”). As Ouseley J put it in his judgment, what the grant of permission for a Class of development subject to prior approval does is to limit the scope of the relevant issues remaining for decision. But the concept of the principle of a development being established, on that basis, means that the development which is being considered for permission under the GPDO must all fall within the Class in question otherwise its "principle" cannot be taken to have been established. A development therefore falls outside the scope of Class A Part 16 if it is not "for the purpose" of the operator's network. That means, at least in the specific context of a GPDO permission, that a proposed development falls outside it, if part of it falls outside it. It cannot be said that the whole falls within the GPDO. A development which is partly "for the purpose" of the operator's network, and partly for some other purpose, is not a development "for the purpose" of the operator's network, precisely because it is for something else as well. The single dual purpose development must be judged as a whole.

His Lordship did not consider that the evidence here could permit of any conclusion other than that the kiosk served a dual purpose. Part of its purpose was for the operator's network, as a telephone kiosk. Part of it was to be the electrified advertising panel. The panel was for the purpose of displaying advertisements. It was not ancillary or incidental to the kiosk, nor legally insignificant. It does not matter whether it would have been lit if no advertisements were displayed. No relative significance has to be attributed to either part of the dual purpose; it is sufficient if the two purposes exist without the advertising use being ancillary or incidental or of no legal significance.

The essential point of this judgment, is that the question of whether a development proposed comes within the scope of and particular Part and Class in the Second Schedule to the GPDO, and can therefore go forward for consideration of prior approval, is not to be determined by the outcome of the prior approval process. It is to be determined first by reference to the essential qualifying criteria set out in the GPDO. The proposed development in the Westminster case was for the purpose of the operator's telecommunications network and for the purpose of advertising, because part of what was needed for the advertising role was performed by the structure and features of the telephone kiosk, to be dealt with under the electronic communications prior approval. The kiosk could not be brought within the scope of prior approval under Class A of Part 16 merely because it would be acceptable in the street scene. The kiosk would fall outside the scope of Class A if advertising consent were granted, since its dual purpose would be apparent daily. The judgement as to whether the kiosk, as applied for, came within the scope of Class A had to be made before siting and appearance were considered. It was for this reason that the Inspector’s appeal decision had to be quashed.

I would not seek to criticise this judgment, but it appears to me from the arguments put forward on behalf of the developer, and also the Secretary of State, that it would be possible to reach a different conclusion on the issue of “purpose” in relation to Part 16, Class A. I have no idea (at the time of writing) whether the developer has sought to take this case on to the Court of Appeal, but it would not be entirely surprising if they were to do so. This is not to say that the Court of Appeal would necessarily reach a different conclusion. It is entirely possible that the first instance decision would be upheld, but this does not appear to me to be ‘an open and shut’ case. However, in the absence of a successful appeal, Ouseley J’s judgment will clearly stand as binding judicial authority on the interpretation of “purpose” in Part 16 of the Second Schedule to the GPDO, until or unless the GPDO is amended.

© MARTIN H GOODALL

Brexit – the endgame [?]

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

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

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

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

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

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

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

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

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

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

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

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

© MARTIN H GOODALL

Planning law reform - Wales shows the way.

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

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

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

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

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

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

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

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

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

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

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

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

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

© MARTIN H GOODALL

An even more interesting New Year

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

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

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

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

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

© MARTIN H GOODALL