Sunday, 4 December 2011

Wanstead Flats: When Is An Undertaking Not An Undertaking?

Tomorrow morning, at 10.30am in court 19 at the Royal Courts of Justice, Mrs Justice Dobbs will preside over the the final hearing of a judicial review on the Metropolitan police's Olympic operations base on Wanstead Flats. The court case continues to be a real David versus Goliath affair, with Forest Gate resident Dr Michael Pelling acting as a 'litigant in person' against the expensive legal teams for the Home Office and the police.

Those who have been following this case will know that the Home Office used a Legislative Reform Order (LRO) under the provisions of the Legislative and Regulatory Reform Act (LRRA) to override the specific legal protection afforded to Wanstead Flats by an act of parliament back in 1876. At the time of its introduction in 2006, the LRRA was fiercely criticised for giving arbitrary 'modernising' powers without the proper scrutiny of parliament. The Telegraph reported that even Clifford Chance, the world's largest corporate law firm, briefed its clients that the only red tape the LRRA would remove is "the red tape of Parliamentary scrutiny for primary legislation".

The government, however, gave 'clear undertakings' that the powers of the LRRA would not be used to force through controversial measures - not once but on three separate occasions:

Jim Murphy, Cabinet Office Parliamentary Secretary
(Commons Hansard 9 February 2006: columns 1058-1059)

I am giving a clear undertaking today that orders will not be used to implement highly controversial reforms, that they will not be forced through in the face of opposition from the Committees of this House and that the Committees’ views of what is appropriate for delivery by order will be final.

Pat McFadden, Cabinet Office Parliamentary Secretary
(Commons Hansard 15 May 2006: column 795)

The Government have also given an undertaking that they will not do anything highly controversial using an order and that an order will not be forced through despite opposition from the relevant parliamentary Committees. (..) the Government have placed on a statutory footing a veto for relevant Committees of either House. That will provide further assurance for those concerned that an order will proceed only if the informed view of the House and another place is satisfied that its outcome is desirable.

Lord Bassam of Brighton
(Lords Hansard 13 June 2006: column 125)

I can reiterate two key Government undertakings: that the Government will not deliver highly controversial measures by order and that we will not force through orders in the face of opposition from the parliamentary Committees.

However, the skeleton argument put forward by the lawyers for the Met Commissioner makes an astonishing suggestion - that these undertakings were made only to parliament, not to the public, and therefore are really none of our concern. In section 104 it says:

"The undertakings provided to Parliament are not undertakings to the world at large; rather they are undertakings to Parliament and intended to be enforceable only within Parliamentary processes".

Their skeleton argument goes on to suggest that "the mere fact that objections have been raised does not mean that an LRO is highly controversial. There must be something of significance constitutionally regarding the reform proposed".

So what, you may ask, is Parliament if not the elected representatives of the world at large? I know that much of the time, the massive disconnection between parliamentarians and the public makes it seem like MPs and Lords are living in a different world, but in theory they still represent us. Right?

And when, you may also wonder, is a 'clear undertaking' by the government to resist using powers in controversial circumstances not really an undertaking? As far as the Metropolitan police's lawyers are concerned, when an issue is challenged by members of the public. So much for the government's "localism" rhetoric about local people having a say in decision-making that affects us. As for second statement by the Met's lawyers, it's simply : the LRRA was allegedly designed to 'remove or reduce burdens' - but there is absolutely nothing in it about these burdens needing any constitutional significance.

Key to this case is the requirement that Ministers consult widely before making an LRO - and Dr Pelling and the Save Wanstead Flats Campaign argues that the consultation was based misleading, based upon a reading of the Epping Forest Act that even the Home Office admits was flawed. What this case has shown is the real dangers of using powerful draconian legislation like the Legislative and Regulatory Reform Act to drive though decisions simply for the sake of convenience - especially when it involves a prestige government project like the staging of the Olympics.

If the Met police's arguments are accepted and the state wins this case tomorrow, another precedent may well be set - not only over future misuse of Wanstead Flats, but also that 'clear undertakings' by government are demonstrably no longer worth the paper they are printed on.

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