Trying to evict OccupyLSX

The court battle begins to clear St Paul’s Churchyard.

At 10.30 this morning at Court 25 in the Royal Courts of Justice, there will be a "case management conference" for the case formally known as Mayor, Commonalty & Citizens of the City of London v Persons Unknown (being persons taking part in a protest camp at St Paul's Churchyard, London EC4).

This is the start of an attempt by the Corporation of London to use legal means to evict the "Occupy LSX" protestors. No judicial decision on the eviction will be made today. The hearing is essentially for setting out a timetable for the litigation process. There is a good chance the hearing will be adjourned, given it is clear the Corporation has been planning this move for at least a couple of weeks, whilst the protesters have had only a few days to consider the complex legal case against them.

In a move exceptional for a normally opaque public body, the Corporation have published links to the relevant legal materials and have even uploaded their 88 page "proceedings bundle". This sudden effort at transparency is probably more for the tactical reason of allowing the Corporation to say that the protesters have access to the case against them than any Pauline conversion to freedom of information.

The Corporation's bundle makes interesting reading. Superficially it appears formidable, a combination of complicated statements of case, detailed plans, and various supporting witness statements and letters. However, a close reading indicates that the Corporation's position is not as strong as they would hope.

Many experienced litigators -- the lawyers who specialise in disputes -- would say that the shorter the claim form, the stronger the case. Indeed, if the Corporation thought it had an overwhelming case, it would need a proceedings bundle of only about ten pages: establishing title and powers under the applicable legislation, and perhaps the bare observation that the trespassers should get "orf the land" and clear the highway.

However, the Corporation has found that this matter is going to be a little more complicated than that: it has conceded that this is a Human Rights Act matter. Accordingly, as well as the mundane documentation of applicable legislation and of the property and allied rights that can be asserted, the bundle contains evidence seeking to show that there is a "pressing social need" behind its decision which means that clearing the tents is proportionate and legitimate interference with the protesters' rights of free expression and assembly. However, one may doubt that the undemocratic Corporation -- which makes its key decisions in closed meetings -- is actually well placed to make a good determination of the public interest in this (or any other) case. As a public body, the Corporation sorely lacks legitimacy in respect of public interest matters.

All the Corporation's evidence can, of course, be contested by the protesters. The Corporation cannot get their case through just on the nod. Each paragraph in the bundle can be controverted by evidence in the form of witness statements and other evidence. By going with an 88 page bundle, the Corporation opened itself to the potential of a complex and equally lengthy response which, if anything, will slow the litigation down. And this may be possible as the protesters are currently represented (without charge) by the outstanding lawyers John Cooper QC and Karen Todner.

Of particular interest in the bundle (pages 39 and 40) is a rather curious letter from St Paul's Cathedral, dated 11 November 2011, which contains some serious though unsubstantiated allegations. What makes this letter particularly odd is that the Cathedral itself is not taking any action at all against the protesters on the Cathedral's land. Therefore, one interpretation which can be placed on this letter is that the Cathedral is seeking to get the Corporation to do its work for it; that the Cathedral can get the benefit of legal action against the protesters whilst continuing to pose publicly as seeking reconciliation with the protesters. If so, then the Cathedral can be reasonably criticised as being rather two-faced in this matter. If the Cathedral actually believes what it says in that letter then there can be no good reason why it is not seeking to evict the protesters itself.

Any eviction is now not likely to occur until the new year. But it is not inevitable. The Corporation may fail to show that its intended action is a proportionate interference with the rights of the protesters. It may even fail to establish title to the relevant property, or that it has the powers and rights it purports to have under the applicable legislation. There is even the chance that this litigation may backfire on the Corporation, opening the institution to more unwelcome scrutiny. So a lot may be at stake in this legal case which starts today in the Royal Courts of Justice.

 

Update

The High Court hearing of the full case will start on 19 December 2011. OccupyLSX will need to submit their case by 12 December 2011. The judgment is likely to be reserved to the new year.

 

 

David Allen Green is legal correspondent of the New Statesman

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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How Theresa May laid a trap for herself on the immigration target

When Home Secretary, she insisted on keeping foreign students in the figures – causing a headache for herself today.

When Home Secretary, Theresa May insisted that foreign students should continue to be counted in the overall immigration figures. Some cabinet colleagues, including then Business Secretary Vince Cable and Chancellor George Osborne wanted to reverse this. It was economically illiterate. Current ministers, like the Foreign Secretary Boris Johnson, Chancellor Philip Hammond and Home Secretary Amber Rudd, also want foreign students exempted from the total.

David Cameron’s government aimed to cut immigration figures – including overseas students in that aim meant trying to limit one of the UK’s crucial financial resources. They are worth £25bn to the UK economy, and their fees make up 14 per cent of total university income. And the impact is not just financial – welcoming foreign students is diplomatically and culturally key to Britain’s reputation and its relationship with the rest of the world too. Even more important now Brexit is on its way.

But they stayed in the figures – a situation that, along with counterproductive visa restrictions also introduced by May’s old department, put a lot of foreign students off studying here. For example, there has been a 44 per cent decrease in the number of Indian students coming to Britain to study in the last five years.

Now May’s stubbornness on the migration figures appears to have caught up with her. The Times has revealed that the Prime Minister is ready to “soften her longstanding opposition to taking foreign students out of immigration totals”. It reports that she will offer to change the way the numbers are calculated.

Why the u-turn? No 10 says the concession is to ensure the Higher and Research Bill, key university legislation, can pass due to a Lords amendment urging the government not to count students as “long-term migrants” for “public policy purposes”.

But it will also be a factor in May’s manifesto pledge (and continuation of Cameron’s promise) to cut immigration to the “tens of thousands”. Until today, ministers had been unclear about whether this would be in the manifesto.

Now her u-turn on student figures is being seized upon by opposition parties as “massaging” the migration figures to meet her target. An accusation for which May only has herself, and her steadfast politicising of immigration, to blame.

Anoosh Chakelian is senior writer at the New Statesman.

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