Memorialists against the memorial
Seven years on, the government’s plans face a new hurdle
Parliamentary sketch writers seeking something out of the ordinary will be waiting eagerly in committee room 2 this morning for a hearing that ministers would much rather have avoided. Others will be watching the livestream from 11 o’clock.
At issue is the government’s ill-fated plan, announced by David Cameron more than seven years ago, to build a Holocaust memorial and learning centre in a much-loved public park adjoining the Houses of Parliament and overlooking the River Thames. As I have observed more than once, the memorial would have been opened by now if successive prime ministers had not tried to build it in what many of those with an interest in the project — myself included — regard as an entirely unsuitable location.
A year ago, the High Court overturned a grant of planning permission that had been given by one government minister1 to another government minister2 a year earlier. This year, a third minister3 introduced a bill to get round the court’s ruling. Today, a panel of senior officials known as the examiners of petitions for private bills will begin considering whether Michael Gove’s Holocaust Memorial Bill should be treated as hybrid.
That sounds a bit technical — and indeed it is. A hybrid bill is a public bill with private elements: one that affects a particular private or local interest in a manner different from the private or local interests of others in the same category or class. As I say, it’s a technical legal issue; but all you really need to understand is that the government is arguing against hybridity in this case. A finding that the bill is hybrid would — at the very least — delay its passage through parliament. And work cannot begin on the proposed memorial until Gove’s bill is passed.
However, enacting the legislation is just the starting point. A number of people have asked me whether the government would then have to apply for planning permission, knowing that it will be refused by Westminster City Council. Again, the application would be “called in” for a decision by a junior minister who — utterly implausibly given departmental hierarchies and the doctrine of collective ministerial responsibility — is supposed to be independent of the secretary of state seeking planning permission.
But that’s exactly what we can now expect. We know that the local authority is strongly opposed to the project. As it said last week,
there is a shortage of public open space generally in the City of Westminster and particularly in the area where the gardens are situated. It is difficult to provide new open space.
Accordingly, [the council] has a strong policy to resist the loss of even the smallest open space. The policy is strongly supported by local residents. There were more than 1,000 objections to the planning application for the Holocaust memorial, most if not all of which objected on the grounds of loss of open space.
And we know what the government thinks. In written representations for today’s hearing, Gove’s agent says that
…even if the bill were to be passed and then receive the Royal assent, the ability for the the United Kingdom Holocaust Memorial and Learning Centre to be brought forward would remain subject to the secretary of state obtaining all of the necessary consents and permissions for it to be constructed and operated at Victoria Tower Gardens, not least a planning permission under the Town and Country Planning Act 1990.
For example, it is under that process that the appropriateness of the location, design and other matters relating to the [Holocaust memorial] would be duly examined and determined.
In contrast, the bill simply removes a legislative barrier to the [memorial] being constructed and operated in the event those separate consents and permissions are obtained. The bill itself does not authorise any works, which is of key importance and it is entirely separate from those processes.
But that’s all in the future. The examiners’ job in this case is to decide whether the bill is hybrid — or, to be more accurate, whether the private business standing orders apply to it. These standing orders set out requirements that the promoters of private bills must comply with before a bill is presented to parliament — for example to publish advertisements, give notice to those affected, provide plans for inspection and so on. Those requirements have not been compiled with in this case, presumably because ministers think they don’t apply.
The government’s view
The High Court quashed the grant of planning permission last year because the London County Council (Improvements) Act 1900 requires the Commissioners of Works to maintain Victoria Tower Gardens. That obligation now falls on the secretary of state.4 Private legislation passed 123 years ago is not very easy to track down so I have uploaded a copy of the entire act.5
Gove’s Holocaust Memorial Bill would amend the 1900 act by providing that section 8(1) and (8)6 do not prevent the construction and operation of a Holocaust memorial and learning centre in Victoria Tower Gardens.
In the government’s view, the case for this bill not being hybrid rests on three interlinked points:
the bill does not single out a person or body from a defined class for special treatment;
the “private interests” of such persons or bodies are not affected by the bill; and/or
the bill is implementing public policy.
In short, argues the government, if the memorial is built “it would only impact the provisions securing maintenance of Victoria Tower Gardens as a public garden and therefore access to that garden by the general public”.
Putting it another way, there would be equality of misery: everyone will suffer the loss of amenity but nobody will be worse off than anyone else.
The memorialists’ response
Needless to say, that view has been challenged. A number of written submissions have been received by the examiners, most of them drafted in the archaic style that seems to be expected.
As I explained last month, submissions such as these are known as “memorials” — a term that could not be more confusing in the current context. Those who submit memorials are known as “memorialists”. In all, six groups of memorialists have filed memorials objecting to the memorial.7
Who are they and what do they say?
In the local authority’s view,
it is not correct to say, as the secretary of state does, that “no person’s private rights or local interests (including any special interest groups and local residents) would be ‘specially’ affected” by the bill.
Westminster Council says its interests are affected in four different ways. It says the culture secretary’s interests are also affected. So are the interests of people who live and work near the gardens. The council’s interests are not affected in the same way as those of any other local authority.
Local people’s interests are “plainly affected in a way that the interests of those in Cornwall are not”, the council adds. It makes no difference that they are not singled out by name or description.
The Thorney Island Society is a local amenity society established in 1985. Its area of interest is what it calls the old Westminster village, a historic area that includes Victoria Tower Gardens and the Palace of Westminster. The 16 individual memorialists all live within a few minutes’ walk of Victoria Tower Gardens. They regard it as an important green space and use it regularly for recreation.
In their view,
the bill has been drafted in in such a way that it might lead the reader to conclude that it implements or deals with public policy, when in reality it does not.
Clause 1 would provide for the secretary of state to incur expenditure in relation to the construction, use, maintenance, improvement or operation of a new national Holocaust Memorial and Learning Centre. There is no need for this provision.
Government expenditure on this project could be authorised through the usual ways and means procedures in parliament. Had the High Court not quashed the planning permission for the [memorial], it is inconceivable that a single-purpose bill would have been required to authorise expenditure on [it].
Clause 1 is only in the bill… to provide a hook on which to hang an argument that the bill is a matter of public policy. Without it, the only substantive provision of the bill would be clause 2, which lifts the restrictions on the use of Victoria Tower Gardens.
In that form, your memorialists submit that the bill would amount, to an even greater extent than it already does, to a local measure — not a bill dealing with public policy.
The London Gardens Trust exists to preserve, enhance and re-create for the education and enjoyment of the public whatever historic garden land may exist or have existed in and around London.
It says its interests are affected by the bill in a different way from other amenity societies in the same class simply because Victoria Tower Gardens is within the relatively small area in which it has an interest.
Ruth Deech is a direct descendant of Holocaust victims and a leading Jewish community activist and campaigner who speaks on the prevention of antisemitism and the Holocaust. Her submissions are supported by five Holocaust survivors: Dr Michael Stern MBE, Anita Lasker-Wallfisch, Henri Obstfeld, Steven Frank BEM and Joanna Millan BEM. “Although we are not formally associated other than by cultural background,” she writes, “we consider ourselves a specific class of private interest in the bill.”
Why, though, do they say their interests different from others?
Because the bill’s purpose is to deliver Holocaust education based on the experiences of survivors and their descendants. As such, survivors and descendants of both victims and survivors should be entitled to make petitions to parliament, given that it is their experiences specifically that will be encapsulated for future generations.
Richard Buxton, a Cambridge solicitor who speaks for himself and other members of his family, is a great-great-great grandson of Sir Thomas Fowell Buxton MP. So too are James Buxton and Joseph Buxton. Sir Crispin Buxton, the eighth baronet, is the senior great-great-great-great grandson of Thomas Buxton. All four have signed a memorial.
Their ancestor, together with Wilberforce, Clarkson, Macaulay, Brougham and Lushington, campaigned to abolish slavery in the British Empire. Thomas Buxton successfully promoted the Slavery Abolition Act 1833. In his memory, an ornate drinking fountain was commissioned by one of his sons and given to the nation.
The memorial fountain — which is grade II* listed — was first erected in Parliament Square in 1866. It had to be moved in 1949 and was re-erected in 1957. The memorial was positioned in Victoria Tower Gardens at the visual transect between Lambeth Bridge and the Houses of Parliament on one axis; and between St John’s Smith Square and the river at the other.
Members of the Buxton family meet annually at the Buxton memorial fountain and then attend a service in Westminster Abbey to commemorate their ancestor. Joseph Buxton is in touch with over 300 members of his family and has found widespread concern about proposed memorial.
The Thomas Fowell Buxton Society educates the public in Buxton’s achievements in abolishing slavery thoughout the empire. Members also attend the annual commemorative meetings.
Members of the family and their supporters argue that the Holocaust memorial would have a direct impact on them by harming the setting of the Buxton memorial fountain. That harm is undeniable; the planning inspector characterised it as being of “great importance”.
Given their connection to the memorial since it was erected in the 1860s, the Buxton family submit that their interests are “well within the scope of private interests required for the present purposes of considering hybridity”. The society argues that it has a right to petition based on its educational aims.
The Conservative politician, currently the longest-serving MP, says he has enjoyed Victoria Tower Gardens for 70 years, living close by for half that time:
Using and enjoying the… park is a private interest. A resident local to the park has an interest different from other London residents; so does a local worker including staff in the palace of Westminster and members of the houses of parliament.
Any other developer would consult neighbours, users and the known relations of those involved with the gift of parts of the park and of the interesting memorials in Victoria Tower Gardens.
Other than the invitation to give a preference for one design or another, none of us with affected private interests have had the opportunity or the right to be heard by a decision-making body.
Such a person would expect a consultation on the site. There was no consultation.
Such a person would expect to respond to Westminster City Council when that planning body considers an application. The secretary of state removed that opportunity.
Such a person now asks the parliamentary decision-makers to classify this Holocaust Memorial Bill as having elements of hybridity, thus allowing interests adversely affected to be put for consideration by a select committee after the expected second reading.
Bottomley revealed last year that more than a hundred of his grandfather’s cousins had died in Nazi concentration camps.
The hearing that begins today will be in two parts. First, the examiners will consider the issue of hybridity. If they decide that the bill is hybrid, they will hear further argument on whether there was a breach of standing orders.
They will then certify whether private business standing orders are applicable — in other words, whether the bill is hybrid. This will be in a written report to both houses of parliament.
If the examiners find that the bill is not hybrid, it may be tabled for second reading and it will proceed as a public bill.
If they find it is hybrid and that standing orders have not been complied with, the bill will then be referred to the standing orders committees of both houses for consideration of whether these standing orders should be dispensed with.
Watch this space for further developments.
Update 11am: here’s a comment from a member of Westminster City Council:
Update 20 April: transcripts of the hearings have now been published.
The morning session included arguments from Robbie Owen on behalf of the secretary of state; and Alastair Lewis on behalf of the London Historic Parks and Gardens Trust
The afternoon session included arguments from Baroness Deech and Dr Martin Stern on behalf of Holocaust survivors; Richard Buxton on behalf of the Buxton family and Mustafa Latif-Aramesh on behalf of Westminster City Council. Robbie Owen then responded.
Non-lawyers will find the submissions of Deech and Stern the most accessible.
It’s now clear that I misunderstood the secretary of state’s reference to planning permission. The issue will not go back to Westminster City Council for a decision after all. Instead, it will be decided by one of Give’s junior ministers.
This is how Owen described the process (paragraphs 195 to 197):
Following the quashing of the planning permission by the High Court last year, and permission to appeal was not given, the matter falls back to the secretary of state for levelling up, communities and housing to redetermine the application — that is the correct phraseology — and it is down to the determining minister concerned, who is acting in the name of the secretary of state, to decide, on advice from their officials, what the process should be.
It is possible that there may be a reopening of the inquiry. Equally, it is possible that the determining minister may decide, given what has happened, that further representations will be invited. That could be done in writing or through reopening the inquiry.
There are all sorts of options, and that is a careful judgment, obviously not for the promoter of this bill but, under the handling arrangements, for another part of the department to consider. There is a strict information barrier, as you would expect, and I and those instructing me have no idea precisely what will be proposed and when, because that is down to the deciding minister. So a number of options are possible.
Update 18 May: The examiners have found that the bill is hybrid. Their written reasons will be published later.
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Christopher Pincher, then minister of state for housing and planning. Allegations against him led to the collapse of Boris Johnson’s government last year.
Robert Jenrick, then secretary of state for housing.
Michael Gove, secretary of state for communities.
As a matter of law, any secretary of state will do. Under the Interpretation Act 1978, “Secretary of State” means “one of His Majesty’s Principal Secretaries of State”. The government maintains that the statutory successor to the commissioners is the secretary of state for culture, media and sport, currently Lucy Frazer KC. Yesterday, The Sunday Times tipped her and Victoria Atkins as possible candidates to succeed Dominic Raab if he is forced to resign as justice secretary.
Its 58 pages are recommended for those interested in old road-widening schemes.
The government’s submissions contain an unfortunate error, referring in paragraph 3.5 to “sections 8(1) and (8) of the 1900 act”. Making “section” plural suggests the bill is amending the whole of section 8 of the 1900 act. In fact, the bill refers to two subsections of section 8, which require the gardens to be laid out and maintained.
Perhaps we should call them “anti-memorialists”.