What Is Really Going On At Dale Farm?

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 judgement 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 judgement, 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 judgement two days ago: this is the judgement 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 judgement 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.

A Tale Of Two Spoilt Kids

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?

Cameron & The Human Rights Act

The Human Rights Act has become for David Cameron what the fox-hunting ban was for Tony Blair: when in a spot of bother with your own support, wheel out something bound to please them.

In his article in the Sunday Express today the prime minister is quite right to note that “[t]here are deep problems in our society that have been growing for a long time: a decline in responsibility, a rise in selfishness, a growing sense that individual rights come before anything else.” He might even be right to say that we “need a concerted fightback against the wrong-headed ideas, bureaucratic nonsense and destructive culture that have led us to this” situation.

So is there to be a renewed effort to tackle corporate lawlessness, or the mindless consumerism that has created a 24 hour, seven-day capitalism so destructive of family life? (It seems “family is back at the top of the agenda.”) Are we to begin this reclaiming of the better parts of our past by returning to Sunday trading laws for example, or by instituting a guaranteed living wage so as to give all workers the means to live decently and be better fathers and mothers as a result?

No it’s none of these, or anything like it. It’s those old Tory favourites, welfare spongers and human rights ‘abusers’: the fightback “means rebuilding the sense of personal responsibility that has been eroded over the years by many things, from the welfare system where work doesn’t pay to the twisting and misrepresenting of human rights.” And “though it won’t be easy, though it will mean taking on parts of the establishment, I am determined we get a grip on the misrepresentation of human rights….. We are going to fight in Europe for changes to the way the European Court works and we will fight to ensure people understand the real scope of these rights and do not use them as cover for rules or excuses that fly in the face of common sense.”

The prime minister is right that it “won’t be easy” – this is because it is impossible. The days are long gone (if they ever existed) when continental Europe listened carefully to their English masters and did what they were told. The Prime Minister knows this, just as he knows that British bill of rights or no British bill of rights, the UK is not about to withdraw from the Council of Europe (home to the European Convention on Human Rights and the maladjusted court about which he affects to obsess so much) anytime soon. Even he must be aware how utterly foolish he looks when his foreign minister wanders the world preaching human rights like some latter day ethical colonialist while he continues to thrash human rights at home. Maybe the Iranians are right and we need their human rights monitors?

In truth this is just noise, a way of getting the old Europhobes excited, pleasing his geriatric xenophobes and annoying the Lib Dems: a silly season story by pseudo-silly people hoping the nonsense they peddle will divert attention from what they are not doing.

Stark Raving Starkey

I first encountered David Starkey in the late 1980s. We were debating freedom and civil liberties together in a BBC2 programme chaired by Jonathan Dimbleby. It was the first time I had ever been on TV as I recall, but even then my opponent seemed to be a seasoned media performer, holding forth to all and sundry before the show, assuming (as he always seems to) that everybody would want to hear him speak for as long as he felt like talking.

The debate involved me taking a civil libertarian line critical of the Thatcher government and Starkey saying things weren’t at all bad. Then an incredible thing happened. Starkey came out on TV – declared himself Gay but unpersecuted. Dimbleby turned delighted to me, ‘so what do you make of that then Dr Gearty, ah ha’ (or words to this effect). I sort of said ‘okay, good’… Clearly they all knew it was coming, a fab scoop on as live TV.

Then another amazing thing – Starkey didn’t know me, had never met me but had listened to enough of what I had said to detect an Irish accent, a sort of proper country accent not West Brit or even Dublin. ‘Now Conor like me comes from a poor background…’ he began to proclaim, on no basis other than how I spoke.

So there you have it: an obsessive self-publicist and casual maker of racist assumptions, even then over twenty years ago.

A New Book-as-a-Blog

I am launching a new book on the web, on 6 October 2010, The RIghts’ Future. The idea is to write regularly about freedom and human rights, inviting comments on the work as I go along. Then when I have all the comments in the material will be revised and published as a book early next year (2011) at LSE’s third annual literary festival. More details to follow. What do you make of the idea?

Should Academic Lawyers Want To Be Understood By The General Public?

There was a dispiriting moment in the Q and A session after Professor William Twining’s excellent address to the Society of Legal Scholars last Thursday, on the need to foster the public understanding of law. An academic colleague described how the business of writing his academic treatise meant he had little time for other, non university stuff, dealing with the media for example, or making submissions to a parliamentary body on a matter on which he is expert. But how many people will read your book, was Professor Twining’s reply – and it was left rather hanging in the air.

At a time when the public purse is being so closely scrutinised, do those of us who make a living off the taxpayer in the higher education field not have some sort of obligation to explain what we do? After all I get a lot more money than an MP, and it strikes me that my accounting for it should include learned books maybe, but well-prepared teaching and efforts at public engagement for certain. Surely there are enough hours around to be able to teach say an average of four or so hours a week (over the year) and write a few words a day for the tiny circle of readers of the specialist stuff, while also being able to help colleagues run the Department and still having enough time left over to be able to engage with the general public as and when the opportunity arises?

Gaza

Israel’s attack on Gaza is its consolation prize for not being allowed bomb Iran: like a school bully denied the chance to attack another Form, it has picked on some small kids in the playground so as to satiate its anger. Is there any way that, out of the suffering of the inhabitants of Gaza, something positive can be forged? The key is President Obama, the new head teacher at whom the bully’s message is also aimed: will he cower like the vast majority of his predecessors, more concerned with lobby popularity than with moral purpose, or is there more to him than this? Let us assume Obama knows full well both how shameful is America’s association with Israel and how senseless is his nation’s collusion in such vast criminality. There are ways of marking this without making it explicit and thereby unleashing the pro-Israeli forces against him at too early a stage.

It is already clear that the new Administration desires to re-engage with the global community and to revive its commitment to international law: the ‘war on terror’ will be reconfigured and Guantanamo closed. A rededication of the US to law should also involve a more consensual approach to the UN in general and to Security Council business in particular, and this should include (for example) support for UN investigative missions to regions where egregious violations of human rights and breaches of the UN charter need to be investigated. It should entail signing up to the International Criminal Court – and urging its closest allies to do likewise. Done in this way, US engagement in the international human rights agenda would quickly lead to a re-empowerment of the various forces for good, the rapporteurs, special representatives, committees of experts and so on, that have languished on the margins for so long.

All of this reformist energy would then need to be backed by mechanisms linking US financial and military aid to the newly emerging international legal order, a fresh set of McBride principles of the sort that eventually forced South Africa racism to its knees. And economic and intellectual boycotts would also need to be framed so as to lie in wait for the worst offenders against the new dispensation. Since its application would be general, Obama could do all this without ever mentioning Israel, leaving the consequences to be worked through by various bureaucracies while the ‘phone calls and special pleas of Netanyahu or Livni or Barak or whoever it is go either unreturned or politely fended off with an easy ‘it is out of my hands’. When the screams of the special interests reach dangerous levels, the president may then judge it to be necessary to take the issue to the American people, to discuss openly whether Israel should have a special exemption from the civilised values to which every other true ally and the US itself will by then have signed up. That is not likely to be a debate which the Israeli leadership will especially want.

Dreadful though they are, it is just possible the killings in Gaza may prove to be the beginning of the death rattle of Israel’s disastrous plunge into militant Zionism.