Wednesday, 28 September 2011


The attempt to remove travellers from Dale Farm in Essex has been the subject of a series of complicated legal actions, some of which are ongoing. Here is a snapshot of the current state of play.

In the 1990s Dale Farm was owned by a Mr Roy Bocking. Even then it wasn’t a farm - more a scrap-yard made up of a hard surface used for storing cars. The property is within the Green Belt and as early as 1992 it was the subject of no fewer than 42 planning enforcement notices related to the unlawful activity that was taking place on it. Hard surfaces and various fences were required to be removed. When the travellers who are at the centre of today’s dispute purchased the place in 2001 they inherited a large amount of hard-standings and these are very likely to have dated from this time; it would seem that (contrary to what the Council was later to tell itself) these early enforcement notices had not been complied with.

New enforcement notices ensued between 2002 and 2004, requiring removal of hardcore or hard standings and subsequent re-seeding of the land, the cessation of residential use on the plots, and the removal of caravans and vehicles and other mobile and portable structures. Apart from one plot however there was no requirement in any of the notices to demolish or remove buildings. And unlike the 1992 enforcement notices, none of the current notices required the removal of unlawfully erected fences.

The issue that has preoccupied the courts this week has been how far the Basildon Council is entitled to go in executing these new enforcement notices. Everyone initially agreed that they are valid (see R (McCarthy) v Basildon District Council [2009] EWCA Civ 13) and that stuff can be done – the question is how much. As Mr Justice Edwards-Stuart put it in his judgment this Monday ([2011] EWHC 2416 (QB)) ‘the residents contend that a wholesale removal of the hard standings (apart from the excepted plots), removal of fixed caravans and demolition of certain buildings and other fixed structures, such as walls, fences and gates, goes beyond the scope of the steps described in the notices’ whereas the Council submits that ‘these objections are misconceived and that, save for [some very few exceptions], it is entitled to carry out what is, in effect, a wholesale clearance of nearly all of the plots on the site.’

At an earlier hearing the week before this latest judgment, the judge asked for the Council to be much more particular about what it was planning to do. Basildon duly put together a more detailed analysis and presented it to Court on Friday the 23rd. The judge heard evidence from both sides on the Friday and gave written judgment two days ago: this is the judgment of Monday 26th mentioned above.

And what has the judge now decided? Yes you have guessed - that another hearing is necessary! This time it is mainly to work out which buildings, if any, can be demolished and which are to be protected, with everything hinging on when they were constructed. It seems that buildings, walls, fences and gates which predate the second set of enforcement notices but which are nowhere mentioned in them will be now safe from destruction - so long as their age can be established, with the onus being on the residents to show that they were there when the notices (which fatally didn’t mention them) were issued and have not been opportunistically (and illegally) added since. As the judge put it in a neatly understated way the enforcement notices ‘may not have been sufficiently precisely drawn’. He is surely right about that: you can’t issue an enforcement notice to remove a ground surface and then nip in and destroy a house to get at it – the second action is not just an enabler of the first, and so in fairness requires its own enforcement notice.

As though all this were not complicated enough, the day before the hearing on the 23rd the residents started a whole new parallel legal action saying the implementation of the enforcement power was itself unlawful, a much wider attack than they had hitherto contemplated and one that is to be decided upon tomorrow (the 29th).

So there you have it - two proceedings ongoing, each enmeshing the Council’s desire to get rid of these travellers in ever increasing amount of red tape and legalistic confusion. No mention of the Human Rights Act, or of international human rights law, or of the rights of travellers. But out of sight is not out of mind, so far as this judge is concerned, I’d say. Behind the pedantry is a truly ethical position, even if it is unspoken: before you wreck people’s lives make sure you have made your legal authority crystal clear. The judgment reminds me of those cases in apartheid South Africa where brave human rights lawyers and the occasional sympathetic judge cleverly used every loophole they could to reduce or undermine the actions of the state agents with whose immoral conduct they were confronted. A worrying analogy to make of a British court decision.

And what next?

I’ll return to this when we have the ruling tomorrow on the validity of the enforcement notice and then (if that goes well for the Council) the final ruling on what exactly they will be able to do at Dale Farm.


Sunday, 11 September 2011


On this day ten years ago, 11 September 2001, we were not to know that the perpetrators of the attacks on New York and Washington had played their best card right at the start of their game. Nothing illustrates the weakness of terrorism more clearly than do the hijackings of that day: spectacular, attention-grabbing, grandly cruel – but from any kind of strategic point of view useless. No troops followed up the attacks. No guerrilla activity was launched anywhere to drive home their advantage. Not even a single decently destructive sleeper group was mobilised to cause further anxious mayhem on America’s home front. Instead a pleased and smug Osama Bin Laden sat back and waited for America to run scared. Like many privileged people before and after him, he mistook wealth for intelligence: the Americas had been cowards before (in Beirut in 1983; in Somali under Clinton) so he knew they would be again. No one seems to have told him that history did not start only when he became an adult. New York and Washington were closer to Pearl Harbour in 1941 than anything in the Middle-East and the Horn of Africa.

Bin Laden had to acknowledge responsibility or the point of his attacks would have been lost: they were communicative not military acts and communication eventually requires talk. But in doing so he was also signing his organisation’s suicide note: once the US stood round to fight he was bound to fail. And when the counter-attack began no action on his part could ever repeat the glory of 11 September. A terrorist campaign is not like a military one, victories being ground out slowly but surely in unglamorous campaigns of fighting. After 11 September, Bin Laden had nothing left to say of sufficient significance to help realise his own self-declared goals. Sure there was an embassy bomb here, a terrible Bali attack there, the London and Madrid attacks, and much else that was awful. But they had no military purpose while also failing to ratchet up the violence in any kind of strategically coherent way. Al Qaida became the bully in the playground pushing the other kids around but not doing much of any real significance or importance to change the way the teachers behaved, an irritant (a made-made Tsunami; a human-induced earthquake) but not a history-changer.

Without the Iraqi invasion and occupation, Al Qaida would have faded sooner from our consciousness. Not even injustice in Palestine (upon which Bin Laden with increasing desperation relied) would have been enough in itself. But Bush’s ‘crusade’ to overthrow Saddam Hussein was the lifeline that kept Bin Laden centre-stage far longer than his capacities or strategic intelligence warranted.

Not for the first time an act of terrorism is more important for what it provoked than for what it was: for a little while it really did seem that the US was going to be able to turn the events on 11 September into a world-changing moment in favour of the Bush-Cheney vision of what America should be - an exceptional nation, dominant abroad and with a supra-constitutional executive branch at home, a country in which human rights, the rule of law and democratic accountability played permanent second fiddle to an endless and endlessly useful ‘war on terror.’ This Orwellian dystopia was not far away. But then came Iraq, the open pleasure taken in torture, the unembarrassed reliance on Guantanamo Bay.

Maybe we should be grateful for Bush’s strategic stupidity: a rich kid like Osama he too thought he could get what he wanted quickly and without opposition. But his actions were so extreme they alienated even his own Republican Supreme Court justices and informed American opinion as well (not to mention the rest of the world).

Liberal values have been recovering from the excesses of the Bush decade but the authoritarian roots put down in that time have been hard to eradicate completely. It is too early to tell but it may be that Bin Laden’s lasting legacy will have been to make democratic authoritarianism seem somehow normal, the burden of proof being placed on those who desire freedom rather than those who care more about what they get away with calling security.

Meanwhile if you want to reflect on somebody who really knew where violence fitted, skip all this weekend’s reflections on Osama Bin Laden and read instead about General Giap, the celebrated Vietnamese fighter, and victor over the French and Americans - still going strong at 100. Now there is the kind of guy whom you would not want to take on. I wonder what he made of Osama and George Junior?