Ministers thwarted over memorial

Court of Appeal refuses government permission to appeal against quashing of planning permission

The government has again been thwarted in its attempts to build a controversial memorial to the Holocaust in a public park adjoining the House of Lords.

In April, a High Court judge overturned an earlier grant of planning permission. As I reported at the time, Mrs Justice Thornton refused the government permission to appeal against her ruling.

The government then asked the Court of Appeal for permission to appeal. Applications such as these are dealt with in writing by an appeal judge sitting alone. There is no hearing and, at the end of the process, the court does not issue a full, detailed judgment.

But late last night I was sent a copy of the court’s order, issued yesterday. It says that applications for permission to appeal by the secretary of state and a minister at what is now the Department for Levelling Up, Housing and Communities have been refused by Lady Justice Andrews.

In summary, the appeal judge ruled that Thornton was right when she held that a private act of parliament, passed 122 years ago and still in force, “imposes an enduring obligation to lay out and retain the… land for use as a public garden and integral part of the existing Victoria Tower Gardens”. I explained in April how that provision was first identified.

The planned memorial would comprise 23 bronze fins

The London Historic Parks and Gardens Trust, a small charity that works to enhance the capital’s green spaces, had argued that that the minister who granted planning permission had failed to address the London County Council (Improvements) Act 1900, which says the land chosen for the memorial “shall be laid out and maintained in manner hereinafter provided as a garden [which is] open to the public”.

Referring to ground 1 of the secretary of state’s application and ground 3 of the minister’s application, Andrews says:

There is no real prospect of successfully arguing that the judge’s construction of the 1900 Act was wrong, nor that she erred in her application of the appropriate legal principles to its construction. On the contrary, it was plainly correct.

She adds:

Once it is established that the judge was right about the statute, the other proposed grounds of appeal are fatally undermined. As the [London Gardens Trust] has put it in [its] brief statement of objection to permission, “the 1900 Act represents an obstacle to delivery which has not been addressed… It cannot be ‘wished away’.”

At the end of her two-page ruling, Andrews considers whether there might be other compelling reasons for granting ministers permission to appeal. She concludes:

I am acutely aware of the sensitivities around the judge’s decision but the high-profile nature of this project and the importance of building this memorial (accepted by all parties) are not, in themselves, a justification for allowing an appeal to proceed which I regard as having insufficient prospect of success.

I am not persuaded that this case raises important issues concerning the application of established legal principles, and the minister has not identified what those issues are. As the judge was at great pains to make clear in her judgment, this case was highly fact-specific. The issue of construction of a provision of an Act which relates solely to this particular land is unlikely to arise in any other context; and, as the claimant says, if the construction adopted by the judge is correct, (which it plainly is) the proposals cannot proceed regardless of whether planning permission is granted.

Opinion divided

The long running attempt to build this memorial has led to a strongly expressed difference of opinion among members of the UK’s Jewish community. As Andrews acknowledges, everyone supports the idea of a public memorial in London to the six million Jews who were murdered by the Nazis and their supporters during the Second World War. The only question is where that memorial should be.

Most leading figures in the Jewish community support the government’s choice of a highly prominent location, symbolically positioned next to parliament. Others with a personal connection to the Holocaust, including me, believe that the disadvantages of Victoria Tower Gardens outweigh the advantages. I have argued for the grounds of the Imperial War Museum, one of three locations considered by the government in 2015.

The London Gardens Trust simply wants to keep the park as it is for the enjoyment of the public.

But these were not issues for the two judges. As Thornton said in April,

all parties before the court support the principle of a compelling memorial to the victims of the Holocaust and all those persecuted by the Nazis during those years when “humanity was tipped into the abyss of evil and depravity”…

The role of the court in judicial review is concerned with resolving questions of law and ensuring that public bodies act within the limits of their legal powers.

Background

New readers may be mystified by the involvement of two ministers.

As you might expect, planning permission is needed before a memorial can be built in in a public park.

An application was made in January 2019 to the local authority, Westminster City Council, by the secretary of state for housing, communities and local government, then Robert Jenrick MP. In 2020, Westminster council turned the application down. By then, though, its decision had become academic. Late the previous year, 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.

Of course, Jenrick could not take the decision personally. He could hardly decide whether to grant himself planning permission. Instead, he would hand the decision over to someone he said could act fairly and lawfully. That would be one of his junior ministers.

After a public inquiry, an inspector recommended that the application should be approved. The minister of state for housing at the Ministry of Housing, Communities and Local Government who granted planning permission in July last year was Christopher Pincher MP. His decision was challenged by the London Gardens Trust at the High Court in February.

Shortly before the hearing, Pincher became the government’s deputy chief whip. He resigned from that post at the end of last month, precipitating the crisis that led to Boris Johnson’s resignation.

What happens next?

The government could ask parliament to repeal section 8 of the 1900 act — though that could be tricky and might require hybrid legislation. A new planning inquiry might then be needed.

Or the incoming prime minister could just stop and think again. If the government had chosen in 2015 to build the memorial and learning centre at the Imperial War Museum, it would have been open by now.

Update 3pm

The Conservative MP Sir Peter Bottomley, father of the house, kindly quoted my comment in the Commons this morning. He did so because research by the UK Holocaust Memorial Foundation had revealed that over a hundred of his grandfather’s cousins had died in the concentration camps:

In Bottomley’s view, it was time to think again about where the memorial should be placed.

Responding on behalf of the government, Paul Scully MP said the loss of planning consent in April was

a disappointment, especially to those Holocaust survivors who place such high value on sharing their testimony and who want to be confident that their message will continue to be heard. It was a further disappointment that the Court of Appeal decided yesterday that an appeal against the High Court decision would not be heard.

Asked what the government intended to do next, Scully, who was appointed a minister of state at the Department for Levelling Up, Housing and Communities just two weeks ago, said:

In terms of legislation, it will clearly be for the next prime minister to direct that, but we will look at the court case and consider all options available to us.

In response to MPs who called for the repeal of section 8 of the 1900 act, Scully said:

I agree that we need a response and a sign and memorial right at the heart of our democracy. I cannot personally commit to legislation, but certainly we will look at that. It will be a decision for the next prime minister, but we will have a robust response as best we can.

Which is rather what I thought.

Update 23 February 2023: the government has published a bill that would amend section 8 of the 1900 act and allow the memorial to be built at Victoria Tower Gardens:

Italics are used in provisions of a bill that authorise public spending.

It will be for the Commons public bill office to decide whether this is a hybrid bill. That would delay its progress through parliament.

If the bill is passed, there will have to be a new application for planning consent. In a circular to fellow MPs today, the housing minister Felicity Buchan says:

Subject to approval of the bill, and to obtaining planning consent when the designated minister re-takes the decision, we aim to commence construction as soon as possible after Royal Assent and to open in 2027.