Where in London can you find a memorial to campaigners who persuaded parliament to pass the Slavery Abolition Act 1833? Look no further than Victoria Tower Gardens, a delightful public park adjoining the House of Lords and overlooking the Thames. You might have thought the government would have commended it to protesters who recently defaced Sir Winston Churchill’s statue at the other end of the parliamentary estate. Instead, ministers want to belittle this charmingly eccentric monument (pictured) to Sir Thomas Fowell Buxton, who led the abolitionist movement in parliament, by building a much larger memorial in front of it.
This would be dedicated to the memory of those killed in the Holocaust. Perhaps I should declare an interest: my father’s parents and most of his family were murdered by the Nazis. I fully support the idea of a new Holocaust memorial and learning centre in London. But, in my view, this is not the right location.
‘Right idea, wrong place’ is also the view of the London Parks and Gardens Trust, which works to preserve and enhance the capital’s green spaces. The trust has now begun legal proceedings against the government. A ‘rolled-up’ hearing has been ordered, which means that if the trust is granted permission to apply for judicial review at an oral hearing then the judges will immediately consider its substantive claim.
Building a memorial in a park requires planning permission. An application was made to the local authority, Westminster City Council, by the secretary of state for housing, communities and local government. Earlier this year, Westminster council turned it down. By then, though, its ruling had become academic. Last November, the application was ‘called in’ for a decision by the secretary of state. Which one? The same secretary of state for housing, communities and local government, currently Robert Jenrick MP.
The secretary of state has not yet justified his contention that the same legal personality can appear both as a defendant to the claim and as an interested party
Of course, said Jenrick, he would not take the decision personally. He could hardly decide whether to grant himself planning permission. Instead, he would hand the decision over to someone who could act fairly and lawfully – Christopher Pincher MP, one of his junior ministers. Pincher would have an entirely separate team of officials. They would presumably be expected to put out of their minds the fact that the memorial had the ‘complete and unshakeable support’ not only of their secretary of state but also of the prime minister, who had made it a manifesto commitment.
Will that do? No, says the parks and gardens trust. There is an EU directive on environmental impact assessment. Where the decision-maker is also the developer, it says, there must be ‘an appropriate separation between conflicting functions’ so that decision-makers ‘do not find themselves in a situation giving rise to a conflict of interest’.
This directive was implemented in England by regulations requiring ‘a functional separation… between the persons bringing forward a proposal for development and the persons responsible for determining that proposal’. That is simply not good enough, says the trust. The government has failed to transpose the directive properly in accordance with EU law – which remains in force because of the UK’s withdrawal legislation. Separation, the trust argues, should have been enforced by rules. Is it really to be supposed that a minister of state and his officials will not feel under pressure from those who can influence their promotion prospects?
The government disagrees; and it will be for the court to decide who’s right. But the case recently took on a somewhat surreal aspect. Even if Pincher makes the decision on planning permission in the light of a local inquiry to be held in the autumn, he will do so on behalf of his secretary of state. Jenrick, as the formal decision-maker and defendant to the judicial review claim, is represented by the Government Legal Department. But last month the law firm Pinsent Masons were instructed to represent Jenrick in his capacity as the applicant for planning permission. They wanted their client to be made an interested party so that he could file evidence.
Mr Justice Holgate, the judge who ordered the rolled-up hearing, was understandably bemused. ‘The secretary of state has not yet justified his contention that the same legal personality can appear both as a defendant to the claim and as an interested party,’ he observed on 1 July. Holgate also wondered how Jenrick, in his capacity as applicant for planning permission, could give evidence on the EU directive. Pinsents then withdrew their request for interested party status – but they still want to file evidence.
The claimant’s solicitor is Richard Buxton, who has more than 30 years’ experience in environmental law. While laughing off any suggestion of nimbyism, he just happens to be a great-great-great grandson of the MP in whose honour the Buxton memorial was built. If he wins this case, perhaps Westminster should add a plaque to the family monument.