Wednesday, 8 December 2010

Home Office Screws Up Wanstead Flats Consultation

Remember Nick Clegg's promise back in May to reverse Labour's "obsessive lawmaking" through what he said would involve "the biggest shake-up of our democracy since 1832"? Already, that speech seems like one from a different era, a time when the Deputy Prime Minister wasn't loathed as just another mendacious politician.

If ever there was a law in desperate need of repealing, however, it would be the hugely contentious Legislative and Regulatory Reform Act (LRRA) - a classic piece of New Labour illiberal excess passed in 2006 that was described by Liberal Democrat MP David Howarth as the "Abolition of Parliament Bill" during its passage through the Commons. The LRRA provides government ministers with extremely broad powers to amend, repeal or replace any law that is perceived by bureaucrats to be "outdated, unnecessary or over-complicated", with minimal scrutiny and debate.

Six months ago, this would have seemed like am obvious example of 'obsessive lawmaking', but times have changed and government enthusiasm for a new 'Great Reform Act' has evidently waned. Now Clegg's Cabinet colleague, Home Secretary Theresa May, is perfectly happy to use the LRRA to meddle with legislation - notably, the Victorian law that protects Epping Forest and Wanstead Flats, just so that the Metropolitan police can site an Olympics operational base on the Flats in 2012.

Tomorrow is the deadline for public responses to a Home Office consultation on plans to create a Legislative Reform Order to amend the Epping Forest Act of 1878. If successful, there will be limited discussion on the issue in parliament. But as the lawyers in the Save Wanstead Flats campaign has pointed out in its submission to the Home Secretary (see also this more detailed legal argument), attempts to bypass democratic scrutiny in order to mess around with existing laws can often be fraught with risk - not least because this time, the Home Office has apparently managed to completely screw up.

This is a little complicated, especially for a non-lawyer like myself, but bear with me. Under the terms of the Legislative and Regulatory Reform Act, a minister must identify a 'burden' that requires replacement or removal before an order can be granted. This could be financial, administrative or a criminal offence. The Home Office's entire consultation on Wanstead Flats has been premised on removing the 'burden' of part of the Epping Forest Act that, back in 1878, created a criminal offence of enclosing land in the Forest without authorisation.

However, what the Home Office has failed to realise that the particular 'offence' they want to remove actually lapsed somewhere around 1882. The current offence involving enclosure of land does exist but is instead covered by the bye-laws of the City of London Corporation, who are supposed to act as 'Conservators' for the Forest. As the Corporation can make and amend bye-laws as it sees fit, without needing to refer to parliament, there has never been a need for a Legislative Reform Order and the long period of consultation, started in September, as been based entirely on a failure by Home Office lawyers to understand exactly what they are tinkering with.

Unfortunately, as this involves the Olympics, for which all rules can apparently be broken if necessary, the Home Office may decide to plough ahead anyway, despite the legal muddle it has created for itself. If that happens, there is a real danger that messing around with sections of the Epping Forest Act will change the duties and obligations placed on the Corporation. In effect, the law protecting Wanstead Flats will be gutted completely, creating a dangerous precedent that threatens the long-term future of a vital part of London’s green belt. All this so the Met has somewhere to brief its officers and stable its horses during the Games.

This is what happens when governments try and force through decisions in a hurry - but if the they think they can get away with this, what else do they have in store for us in two year's time?

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