House of Commons
London SW1A 0AA
B. The claimant
John Atwell Moody
12 Armorial Road
Coventry CV3 6GJ
C. Reference details
The Parliamentary Debate upon the proposed Public Bodies Act (2 Feb 2011, 4 PM)
The consultation upon the Public Bodies Act (including the defra publication "The future of the public forests in England, a public consultation")
D. The details of the matter being challenged
I am challenging the loss of ownership rights over public woodlands by a consultation process which aims to push through the Public Bodies bill.
E. The issue
E.1. The public should have property rights to land which they own jointly (not only the land upon which are located their individual homes).
a) Being the only plants, or animals, in natural creation capable of possessing rights, homo-sapiens occupy a unique position in law.
b) In the case of indigenous people, the right of property is the specialization to one species of the need of any other plant or animal not to be separated from all parts of his or her natural habitat.
c) Nomadic people and modern people have more rights than any other type of plant or animal. But they have less rights than indigenous people because nomads and modern people own less property. Nevertheless they have the same needs as a plant or animal of any other species does.
d) Whereas, if they were respected, the property rights of indigenous people would allow their survival, respecting the property rights of nomadic or modern people is comparatively negligible, if no individual is sole owner of a significant part of his habitat, and if properties are considered as if they were isolated from each other.
E.2. The effect of loss of the right to prevent development on public land would be significant.
Since it is evolutionarily unprecedented, the imminent death of nature causes in each of us no greater than the fear of our own death, which is relatively negligible. According to scientists we are approaching the midpoint of the Holocene extinction, estimated to take place at 2100.
E.3. The proposed Public Bodies act intends to rule that ministers need no longer act in the public interest.
The Forestry act (1919, 1967, 1981) states
8A In performing their functions under this Act the Ministers shall have regard to the national interest in maintaining and expanding the forestry resources.
The Public Bodies bill which has entered `consultation' states
17 (2) The Secretary of State may by order amend the Forestry Act 1967 so as to modify the purposes or objective for which, or conditions under which, the Secretary of State exercises a function to which this section applies.
E.4. The public interest was misrepresented or unrepresented in the decision to begin a 'consultation'
The public may decide that they no longer wish to pay tax to manage the woodland estate; then it would remain unmanaged but still biodiverse. In this case there would be no loss of rights.
Also the public may decide in the future that they want the woodland to be developed and do not care about nature in that way, although they represented in Parliament that they do care about it now. In this case also there would be no loss rights. (Though it remains a serious danger which the current application cannot address.)
Because of the complexity of legislation and planning law, and the manner in which they are interlinked, even a very small misrepresentation can lead to eventual loss of rights.
During the Parliamentary debate on Wednesday 2 February 2011 representative Lewis of the Conservative party gave reasons why it is against the public interest to enter a 'consultation' on whether the Public Bodies Bill should be allowed to remove the requirement that ministers should act in the public interest in deciding whether to sell public woodlands in the future. Only a few handfuls of MP's attended the debate or heard the reasons why the constituents (on average 85%) represented that it would be against the public interest to allow the Public Bodies act to rule that in perpetuity land may be sold by Ministers even in cases when it is against the public interest. A Labour member asked to consider the motion, can we "rethink its decision on the sale of England's public forest estate in order to protect it for future generations," and the speaker cleared the house.
Ministers did not attend Parliament to learn such representations as had been made regarding the public's decision whether to enter a 'consultation' on the question of divorcing public interest and public rights from public ownership.
Instead several hundred MP's, knowing in advance what would be the question, but not having been present for the arguments which the public made via representatives of both parties, came in and chatted in groups about other matters, then voted to 'support the consultation proposals.'
Thus the 'consultation' was started with a vote by ministers who were not present and who did not hear the overwhelmingly opposed public representations in the debate.
(added subsequent to service of pre-action):Additionally, the DEFRA consultation process gives no way that the public can answer 'no.' All possible answers to the multiple choice questions assume that the public wish to divest ownership rights. The only possible way to express the wish to retain ownership rights is via essay questions and even these only ask what is the best way of divesting ownership.
E.5. The public had a rational reason not to want a 'consultation' to start.
The public wishes which were stated on 2 February and which were not heard by the ministers, and which are held by 85% of the public, are of a long-term and permanent nature and would not be mitigated by consultation and compromise.
The concerns of the public are permanent and long-term concerns: preserving nature, preserving biodiversity and protecting the few remaining woodlands from development. There will be an eventual irreversible loss of biodiversity and the death of nature if individual commercial decisions and planning decisions would in the future be allowed to influence ministers regardless of the wishes of the current public who own the woodlands.
The corruption between planning decisions and government power is well understood in every country. A 'consulatation' is well known to be a method of attaining a majority vote through compromise. The consultation is saying in effect 'What deals do we need to make to get a winning vote.' Yet the public may wish their woodland to be a home for 'nest eggs' in the literal sense of nesting birds forever, rather than 'nest eggs' for government ministers and their associates, once the concessions agreed in the 'consultation' have run their course.
E.6. The consultation and risk of passage of the bill does not constitute due process of democratic law.
Due process of democratic government is a process of ministers voting according to either the immediate or the long term interests of the electorate.
Certainly at various times a democratically elected government might vote to allow itself permission to act against what may be the perceived interests of the electorate, under the belief that there is a more wise deeper or misunderstood interest.
But it is not due process of law for a democratically elected government to explicitly vote to allow itself permission to act against the interests of the electorate in the deepest and truest sense in which they interpret them.
It would be proven contrary to due process of law for a democratically elected government to vote to give itself explicit permission to disregard the true future long-term interests of the electorate, if those wishes could be omnisciently known.
Sometimes conflicting interests, or corruption, can be masked under the pretense of misunderstanding the truest wishes of the public.
In contrast to this, in the bill which is under consultation there is no scope for any such misunderstanding. The bill is not only against immediate public interest and immediate public wishes. The bill explicitly states, and is intended to be used, to overrule the Forestry Act provision which states that the Ministers shall have regard to the national interest.
It is, therefore, an act to specifically redefine democratic government in regards to its effect on the woodlands, as not any longer representing the public interest.
The intention, meaning, and explicit statement of the Public Bodies bill is that the public interest, whatever it may be, can be disregarded in the future in favour of other interests.
The act directly says then that due process under a democracy is not the principle under which the public shall have lost any future right to save the woodland from development.
E.7. Statement of Violation of Rights
The current consultation is a compromise with the intention of voting for a bill which is in violation of the first protocol rights of P1-1.
It removes public property ownership rights in a manner which will cause hardship and even death and extinction.
The public currently owns the woodland. The public now wish to retain the right not to sell it for development.
The public did not wish a 'consultation' on the public bodies bill which will remove that right, and they do not want the 'public bodies' bill.
The 'consultation' was started with a vote by ministers who were not present and who did not hear the overwhelmingly opposed public representations in the debate, which were carefully analyzed and explained by the elected representatives who brought their arguments to the debate.
The 'consulatation' is a method of attaining a majority vote through compromise. The consultation is saying in effect `What deals do we need to make to get a winning vote.'
f.2) (added subsequent to service of pre-action protocol) The consultation document makes it impossible to express the public wish not to divest the right of ownership. The only question which asks about the loss of rights to prevent sale is question 2. Question 2a. has three true/false questions about whether charities should or should not be encouraged to bid, and 2b. asks a question which cannot be answered without the assumption that public ownership will cease: "Are there other models of ownership or management that could achieve the Government's ambition to reduce state ownership without undermining its key principles?"
The only way an act againt the public wishes could constitute due process is if it were justified on the basis of a deeper wisdom or deeper understanding of public interest. However its explicit statement and intent is that it allows ministers to act opposed whatever may be the future long term interest of the public.
It is an act saying in effect 'our role as democratically elected leaders is not to respect the electorate's rights over the woodland even in future cases when it would be in the truest and deepest interest of the electorate for those rights to have been respected.'
In this rare situation where the underlying intentions are provably not only against the current wishes of the public woodland owners but against their long-term future wishes and explicitly stated to be against their long-term wishes whatever they may be, the removal of rights is not under due process of democratic law.
According to the explicit statement of the act itself, it says, we are taking away these rights not because we are acting as democratically elected representatives in the deeper interest of the electorate, but for other unspecified reasons. That from now on, the question of the public rights to withhold the woodland from sale and save it for the sake of nature and the environment will no longer fall under due process of a democracy, but will be decided in some other unspecified way.
The documentation surrounding the Public Bodies bill includes Lord Taylor's of Holbeach statement that in his view the provisions of the Public Bodies Bill are compatible with the Convention rights.
Respectfully, the arguments in sections 1-7 above show that this is not the case. If we interpret the electorate as a conscious being, who might intentionally dispense their rights, the mechanism for announcing their decision would not be debate where they said they do not want to dispense their rights, and no one was there to listen. The mechanism would not be a consultation process of deals, compromises and compensation within Parliament. Individuals in power want 'growth' not of the woodland estate, but 'growth' of the complement of the woodland estate which means death of the woodland estate. They refer to a woodland as a 'ruined' plantation if it is overrun by thistles and teasles, nettles and daisies, clover, hares and rabbits, red squirrels, clover, hedgehogs and foxes. Among the representations which voting Parliamentarians did not attend Parliament to hear were the public's concern about children and education. It is a primary component of childrens' education to see and learn about these things. Is this because we want them to learn about English history, about things which are no more, which have become extinct? Did Parliament, in their greater wisdom, decline to attend the debate, choosing instead to force through a 'consultation', because Parliament better understand that it is in the greater public interest than the public themselves know? No, it cannot be in the public interest to force through a bill which will allow sale of the woodlands in future perpetuity against the public interest whatever the future public interest may be.
A parliamentary democracy is charged with taking greater care than this, if it explicitly asserts that the public is deciding to disepense one of the Protocol rights in perpetuity. It cannot support that assertion in an unwanted consultation process of deals within parliament. The principle of Democracy is that members of the public have wisdom. In this case the wisdom to choose whether to permanently dispense a public right protected under the European Convention.
In this situation where 85% of the public do not wish to dispense the right, and where Parliament has declined to attend the debate where their argument is presented, one must ask is the consultation or is it not a legitimate democratic action. That question hinges on whether -- while against what the public perceives to be the public interest -- it is in the public interest in a deeper or more wise way. Yet the unwanted consultation is to push through a bill, which will rule that from now on the public interest will not matter whatever it may be, now or in the future. There can be no defense on the grounds of democratic principles for any deeper wisdom which explicitly aims to act against the public interest whatever it may be, in favour of other unspecified interests whatever they may be.
F.The details of the action that the defendant is expected to take
The questions under consultation are day-to-day questions about access permissions or use of the woodlands. A deeper question of rights cannot be decided in this manner. The Public Bodies bill needs to be amended not to remove the public right to preserve biodiversity and nature.
G. The details of the legal advisers, if any, dealing with this claim
H. The details of any interested parties
I am one of the half million signatories of the petition opposing the bill, and one of all but 15% of the population opposing the bill. I am required to send them a copy and have made this letter available through the world court of human rights http://www.worldcourtofhumanrights.org/case99834.html
I. The details of any information sought
J. The details of any documents that are considered relevant and necessary
We are not requesting copies but relevant existing documents are
The European Convention, protocol P1-1
Hansard, the 2 February debate at 4 PM
The proposed Public Bodies bill
The Forestry act 1967 and 1981 amendments
K. The address for reply and service of court documents
John Atwell Moody
12 Armorial Road
Coventry CV3 6GJ
L. Proposed reply date
25 February 2011
M .Further Notes
Locus Standi. The applicant lives in a city and does not personally visit any woodlands and does not have any personal interest in the existing Forestry Commission management or any management. The journalist Max Hastings wrote, "The Forestry Commission strives to justify its own existence by littering its properties with signposted woodland trails and mountain bike paths, picnic tables, benches and public lavatories." Although the applicant lacks locus standi related to amenities, the application is based on a shared public interest in the preservation of nature. As Lord Diplock once wrote, "It would...be a grave lacuna in our system of public law if a pressure group...or even a single public spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court...."
Order Sought. The order sought would likely be a prohibiting order.