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While researching our 150-year history, I have been struck repeatedly by the number of times we have taken or backed court action. So writes our general secretary, Kate Ashbrook, in her Opinion in the latest edition of our magazine Open Space.
Indeed, had we not gone to the courts to assert the rights of commoners and to prevent enclosures, few of London’s commons would now survive. Later we used the courts to reopen public paths. More recently we have taken action against the Department for Environment, Food and Rural Affairs at Wisley Common in Surrey (2004), and backed cases to establish the law on village greens at the turn of this century.
The society has relied on the courts to make and assert the law; we threaten legal action to get results, whether to remove unlawful fencing from a common or illegal obstruction from a path.
Now this kind of activity becomes much harder. The Criminal Justice and Courts Act, which received royal assent in February, makes it more difficult and expensive for charities to seek judicial review in order to challenge a public body’s decision. The act limits our ability to seek a protective costs order which caps costs for litigants. It will also be more difficult to act as an intervener, something we have done in the past because we have expertise to offer in another’s case and the outcome is important to us.
The government is deliberately gagging voluntary bodies. It started with a rant by Justice Secretary Chris Grayling in the Daily Mail in September 2013.
He said: ‘The professional campaigners of Britain are growing in number, taking over charities, dominating BBC programmes and swarming around Westminster.’ He accused campaigners of being left wing and claimed that judicial review ‘is used by campaign groups as a legal delaying tactic for something they oppose’ such as ‘an innovation that would bring economic benefit and jobs.’
We’ve heard that before of course, when government was changing the law on village greens in the Growth and Infrastructure Act 2013 and claiming, without evidence, that people were abusing greens registration to prevent building. Ministers are so closely in league with developers that they will do anything to clear the way for the bulldozers.
If there is a change of regime after the election we shall call for reversal of these pernicious measures, as the shadow civil society minister has already promised.
It is sadly ironic that in this 800th anniversary year of Magna Carta the executive should weaken the public’s power of challenge. For the last 150 years this society has confronted overweening authorities and individuals who threatened our commons, open spaces and paths—and we shall go on doing so as best we may.