Burning down the house: Should ecocide be an international crime?

Posted on Nov 29, 2021 by Lois Lane

Last week on 22^nd November I attended a webinar on ‘The Crime of Ecocide’, as part of Inner Temple’s Social Context of the Law series. For those with eighty minutes or so to spare, the recording is publicly available online and well worth watching in full.

I had encountered the word ‘ecocide’ fairly frequently in activist circles.[1] I was also aware that a campaign exists to make it a criminal offence. However, going into the webinar I realised how little I actually knew about the substance of the campaign, the history of the concept, the individuals responsible for pioneering it, or how it might operate in practice. Happily, the webinar answered many of the questions I had going in, and plenty more besides.

Sir Geoffrey Nice QC, moderating the session, began by reflecting on the frustrations of COP26 and the scale of the climate and biodiversity emergencies, and noted that “the urgency of these matters under consideration no longer allows for the passage of time”. He posed a question which must surely have occurred to every practitioner seeking to use the law as an instrument for progress on environmental issues. Is the law going to be able to work fast enough to deal with these challenges, or do we have to think about alternatives? Dealing with shortness of time and the need for implementable solutions were common themes which came out strongly in the talks of both speakers and in many of the questions posed by the audience at the end of the session.

The first speaker was Professor Philippe Sands QC. He began his talk by explaining that the concept of ecocide has a fairly long history, having first been raised in the late 1960s in the context of the Vietnam War and the use of Agent Orange by the United States military. As an aside, it is surely no coincidence that Vietnam was the first of ten countries around the world which have, to date, adopted ecocide into their domestic criminal law as a specific offence. It is defined in Article 278 of the Vietnam Penal Code 1990 as “destroying the natural environment, whether committed in time of peace or war.” The term itself was coined in 1970 by the American academic Professor Arthur W. Galston, who viewed it as being analogous to genocide, and it gained widespread recognition after Olof Palme, then Prime Minister of Sweden, used it to refer to what was happening in Vietnam at the United Nations Stockholm Conference on the Human Environment in 1972.

However, Prof Sands explained that the concept remained somewhat marginal for several decades after the Stockholm Conference. He recounted a conversation in 1991 with the late great Professor Ian Brownlie about why his Principles of Public International Law contained nothing on environmental law and being told that it was because public international environmental law simply didn’t exist. After the International Court of Justice ruled that that the environmental principle of prevention was part of customary international law in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons in 1996, the subject did appear in the fifth edition of the textbook in 1998, but it was allotted just four pages. In 1998, when the preamble to the Rome Statute of the International Criminal Court was drafted, it was felt to be premature to include specific references to ecocide or to environmental crimes more broadly.

After the Rome Statute was drafted, however, the late Polly Higgins, a pioneering barrister and campaigner, took up the notion of ecocide and began to campaign for its widespread acceptance and adoption by relevant law-making institutions. The campaign is still spearheaded by Stop Ecocide International, the organisation she co-founded along with its current chief executive Jojo Mehta, and its charitable sister-organisation, the Stop Ecocide Foundation. In November 2020, at the request of politicians from Sweden’s governing parties, the Foundation convened an Independent Expert Panel for the Legal Definition of Ecocide, co-chaired by Prof Sands and Senegalese jurist Dior Fall Sow. The purpose of this panel was to draft a proposed definition of ecocide that could be used as the basis for further campaigning efforts to effect its adoption by the International Criminal Court (ICC) and other relevant institutions.

Prof Sands explained that in carrying out this drafting work, the panel were inspired by the work of Hersch Lauterpacht and Raphael Lemkin and the adoption by the international community after World War II of three new international crimes, in addition to the classical ‘war crimes’. These were crimes against humanity, which sought to protect the rights of individuals; genocide, which sought to protect the rights of groups; and the crime of aggression, which sought to curb and penalise the waging of illegal war. To this day, these remain the only international crimes of pertinence to be introduced in the post-war period, and all are codified in the Rome Statute. It is to this list that campaigners now propose the crime of ecocide be added.

The full text of the definition that the Independent Expert Panel proposed can be found at page 5 of its Commentary and Core Text document, published in June 2021, but the core component is this:

For the purpose of this Statute, “ecocide” means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.

Prof Sands highlighted that, despite the similarity in the name, the definition is not based on genocide because the suggested crime of ecocide would not have the same intent. Environmental degradation, while often committed intentionally (or at the very least recklessly), is not an end goal in itself in the way that the systematic destruction of a national, ethnical, racial or religious group is the end goal of a person who commits genocide. Rather, the destruction of the natural environment occurs as a by-product of other choices, usually in the pursuit of specific economic and social ends. Thus, the drafters instead modelled their definition on that of crimes against humanity under Article 7 of the Rome Statute.

The reason for the choice of nomenclature was rather simpler. When the Stop Ecocide Foundation carried out market research on the subject, they found that the public did not respond at all to the concept of ‘environmental crimes against humanity’, but had a much stronger and more instinctive response to the concept of ecocide, which the individuals polled almost universally agreed should be stopped.

Although they borrowed elements from the definition of crimes against humanity, the drafters wanted to come up with a non-anthropocentric definition of ecocide. Prof Sands stressed the legal significance of severing the link with humans in the definition, so that any potential future prosecutions under an amended Statute would not have to prove a causative link with harm to humans. On a more philosophical level, the definition reflects the notion that the natural world has some intrinsic and fundamental value, independent of its value to humanity.

There was a spirited debate about whether the definition should include a list of acts which would qualify as ecocide. In the end, a narrow majority favoured not including one, since lists in such a context tend to imply that anything not included is permissible, and this was not an impression that the drafters wished to create. Moreover, one could not realistically include a list of qualifying acts without including runaway climate change and to do so would be to place a huge political hurdle in the way of states signing up to support the concept, because it would create the impression introducing regulation to control their emissions by the back door. The consequence of adopting a definition without a list is that, were the proposed definition to be adopted by the ICC, it would be up to prosecutors to decide what acts to prosecute and judges to decide whether they qualify for conviction.

Prof Sands ended on a moderately optimistic note by highlighting that the concept of ecocide has been endorsed by the Secretary General of the UN, António Guterres, and Pope Francis. One of the committees in the Belgian Parliament has proposed to adopt a resolution in support of the adoption of the crime of ecocide and the full Parliament is expected to do so in the coming weeks. Prof Sands feels confident that there is momentum behind the concept which means that its adoption by the ICC is a matter of when, rather than if.

The second speaker was James Cameron, founder of FIELD (Foundation for International Environmental Law and Development). His talk moved beyond the text of the new proposed offence and considered its application in a wider context. He began by situating the ecocide campaign within the broader context of the youth climate movement, which has emerged partly in response to younger generations’ sense that current political and legal structures are inadequate to deal with the challenge at hand. He also noted that this movement uses the language of climate justice and made a plea for legal practitioners to think more creatively about how the law can be used to transformative effect.

Reflecting again on the early work of Polly Higgins on the issue of ecocide, he confessed to having been initially sceptical of a strategy which focused primarily on the ICC. He felt that a more productive approach would be to pursue existing rights arguments, especially those which argued environmental issues through the prism of human rights, through national courts and tribunals. Over time, however, he has come to view the concept more sympathetically as one potential way for the legal order to give expression to the most vulnerable pieces of the natural environment. He highlighted the parallel phenomenon of natural capital, more often discussed in the field of economics, as another potential way of giving institutional voice to a somewhat abstract idea, namely the protection of the natural world. He suggested that both natural capital and ecocide are fundamentally about creating rights in and for the environment for its own sake, beyond of its utility to humans.

Even though Mr Cameron has come around on the concept of ecocide as an addition to the ICC Statute, he still made a compelling case, first that radical concepts need to work through familiar structures, and second that ecocide could be more effectively embedded if it was able to operate through national as well international institutions. He suggested that trustees, ombudsmen, and advocates general could all help to ensure that there are people with procedural rights to pursue the issue in various tribunals, and counselled against putting all of the proverbial eggs in the basket of the ICC. He also argued that any campaign to add ecocide to the Statute of the ICC needs to think creatively about access to justice in this context and raised the question of whether there might be any scope for individuals to press charges under such a law.[2] While a new ecocide law would be significant and exciting step, it would still need to be viewed in the context of more general legal and non-legal advocacy on behalf of the environment.

One theme which emerged across the webinar and the Q&A was the extent to which the problems which ecocide is designed to address stretch traditional notions of international law, which are geared towards relations between sovereign states. After all, it is not only, or even primarily, states which are responsible for the most egregious acts of environmental damage and degradation. One questioner asked whether corporations might potentially face prosecution by the ICC, but Prof Sands didn’t really see how corporate criminal responsibility could work in practice. The largest polluters can afford to pay almost any fine levelled at them and one cannot lock up a corporation.

Besides, international crimes are ultimately not committed by abstract governments or corporations but by individuals. This is as true for ecocide as it is for genocide, or crimes against humanity. Every active decision which results in catastrophic harm was made by someone. Thus, it was suggested by the speakers that the focus would have to be on prosecuting (and, if necessary, imprisoning) chief executives and politicians as individuals. Although the members of the Independent Expert Panel have all studiously avoided naming names, Pilita Clark, writing for the Financial Times, identified Brazilian President, Jair Bolsonaro, and ExxonMobil CEO, Darren Woods, as potential candidates. As outlandish as it might seem now, if the momentum keeps building behind the idea of ecocide, perhaps they might be the first of many.

What I have been watching this week…

After Sam’s lovely tribute to the joys of Advent last week I must admit that I have not been consuming anything nearly as highbrow as César Franck’s violin sonata recently. Instead I have been indulging in a bit of timey-wimey escapism and very much enjoying the current series of Doctor Who, which has been a slightly silly delight for the past few weeks, as the days have grown chillier and the evenings darker.

[1] The word derives from the Greek oikos, meaning home, and the Latin caedere, meaning demolish or kill. Thus, a rough translation (though not technically a correct etymology, since the word was a modern coinage) is “to kill one’s home”.

[2] The webinar did not include a discussion of the Aarhus Convention as a potential model and/or point of comparison for such participation and procedural rights but, as Sam pointed out to me, it certainly seems to offer some interesting parallels.

For the birds? Judicial review challenges to protect hen harriers and other animals

Posted on Nov 22, 2021 by Sam Kharabanda Groom

This week I learned that some 7% of the United Kingdom consists of moorland cultivated for the sport of grouse shooting. The area of land used for grouse shooting within national parks alone is more than twice the size of Greater London. The sport of grouse shooting involves trying to kill red grouse with a shotgun. It is practised in two forms. In a driven grouse shoot, the more common and more prestigious form, beaters sweep across the moor in a line, driving grouse towards a stationary parallel line of shooters, who aim at the oncoming birds. In a walked-up shoot, which provides more physical exercise for the shooters, a line of shooters and beaters walks across the moor, causing the disturbed grouse to fly away from them and be shot at from behind. In both cases, the speed and low flight of a grouse presents a challenge to those wealthy enough to participate.

The shooting of grouse and other birds for sport does not attract the same scale of public condemnation as fox hunting. This could be because mammals earn our compassion more easily than other animals, because shooting a bird is perceived as delivering a quick death not comparable to the suffering of a hunted fox, or because shooters tend to wear less ostentatious costumes than hunters. Nevertheless, grouse shooting is controversial. On the one hand, it involves the annual burning of vegetation on carbon-storing peat bogs, the culling of animals thought to threaten the health of grouse, and, of course, the killing of birds for fun. The Royal Society for the Protection of Birds campaigns, not for the end of grouse shooting, but for more sustainable practices. On the other hand, the British Association for Shooting and Conservation, a membership organisation that lobbies for the “interests of shooting”, claims that grouse shooting delivers local economic benefits and preserves unique moorland habitats at a low cost to the taxpayer.

Gamekeepers are responsible for ensuring that there is sufficient wildlife (or game) on an estate to provide good sport. In the context of grouse shooting, this primarily involves the elimination of animals considered to threaten the population of grouse. One of these animals is the hen harrier. Hen harriers are birds of prey that can be found across Europe and Asia. In the United Kingdom, hen harriers nest in moorland heather and feed grouse chicks to their young. Nesting hen harriers are often killed and their nests destroyed. It is suspected that this is done by gamekeepers, because the presence of this predator is not conducive to the aim of a large population of shootable grouse. Although such treatment of hen harriers is criminal, the law is not well enforced, due in part to the inherent difficulty of monitoring activity on vast expanses of moorland, and also due, it could be thought, to the political power of those running and visiting the estates. But the persecution of hen harriers cannot be allowed to continue without accepting the disappearance of the species from this country, because their numbers are extremely low. Birds of Conservation Concern 4: the Red List for Birds, published in 2015 by the British Trust for Ornithology, lists hen harriers as a species of conservation concern. In 2017, it was reported that only four breeding pairs remained in England. For this reason, it has been considered necessary to find ways of protecting and promoting the propagation of hen harriers while preventing or disincentivising their deliberate destruction on grouse moors.

Natural England, the public body charged with protecting and promoting the natural environment in England, has grappled with this problem. One potential solution has been the licensing of diversionary feeding. Diversionary feeding involves providing hen harriers will food so that they do not need to eat grouse chicks. Although this practice has succeeded in Scotland, landowners in England have not embraced it because it is claimed to be costly, ineffective, and liable to interfere with the suppression of other predator species.

Another potential solution is known by its proponents as brood management and by its detractors as brood meddling. These euphemistic terms refer to the practice of removing hen harrier chicks from their nests, raising them in captivity and releasing them as adults into the wild. BM, as one can neutrally say, is controversial. It is generally supported by those associated with grouse shooting and opposed by conservationists. However, such is the nature of the hen harrier problem that some find it difficult to imagine any successful solution without the buy-in of the landowners and shooters.

We now have to interrupt this narrative for a brief but important exposition of some relevant law.

Section 1(1) of the Wildlife and Countryside Act 1981 makes it a criminal offence to intentionally kill, injure or take any wild bird; to intentionally take, damage or destroy the nest of a wild bird while that nest is in use or being built; or to intentionally take or destroy the egg of any wild bird. Further, in respect of those species of birds listed in schedule 1 of the Act, section 1(5) makes it an offence to disturb a bird while the bird is building a nest or is in, on or near a nest containing eggs or young, or to disturb the bird’s dependent young. Hen harriers are listed in schedule 1.

It can be seen that section 1 of the Wildlife and Countryside Act makes unlawful practices including BM. However, under section 16 of the Act, the Secretary of State (who delegates this power to Natural England) may grant licences to permit an activity that would otherwise fall foul of section 1. In order to be so permitted, an activity must be for one of a fixed list of purposes set out in section 16(1). These include (section 16(1)(a)) “scientific, research, or educational purposes”, and (section 16(1)(c)) “the purpose of conserving wild birds”. Section 16(1A)(a) provides that Natural England may only grant a licence for any of these purposes if “it is satisfied that, as regards that purpose, there is no other satisfactory solution”.

Further to this, hen harriers are listed as a threatened species in annex 1 of the EU Birds Directive (2009/147/EC). This means that EU member states are required to take special conservation measures to ensure the survival and reproduction of hen harriers and to designate “special protection areas” for them. There are two special protection areas in England relevant to hen harriers: the Bowland Fells and the North Pennines Moors. Most hen harrier nesting activity in England takes place in these areas.

Section 8(1)(d) of the Conservation of Habitats and Species Regulations 2017 provides that a special protection area under the Birds Directive is a “European site” for the purposes of those Regulations. Under regulation 63 of the Regulations, if Natural England is considering authorising a plan or project that is likely to have a significant effect on a European site (for example when it is considering an application for a licence under section 16 of the Wildlife and Countryside Act), it must make an assessment of the implications of the plan or project for the site in view of the site’s conservation objectives. Having made that assessment, Natural England can only agree to the plan or project (that is, grant the licence) if it is satisfied that it will not affect the integrity of the European site.

In practical terms, the legal provisions explained above have the following effect. If you want to undertake BM or another conservation practice in England that would involve committing an offence under section 1 of the Act and that is likely to have a significant effect on a special protection area, you must apply to Natural England for a licence. In order for a licence to be granted to you, (a) the practice you wish to undertake must be for a specified purpose, (b) there must be no other satisfactory solution to achieving that purpose, and (c) the practice must not affect the integrity of the special protection area.

Back to our regularly scheduled programming. In 2015, Natural England’s Science Advisory Committee advised the Board of Natural England to initiate a scientific trial of BM in England. The Board accepted the advice and passed it to the Secretary of State for the Environment, Food and Rural Affairs (then Liz Truss MP). published a document called the Joint Action Plan which proposed, among other things, diversionary feeding and a BM trial. Such a trial would, it was proposed, need to be licensed under section 16(1)(a) of the Wildlife and Countryside Act 1981. In 2017, an application was made to Natural England for a licence under that section to carry out activities to obtain evidence of the effectiveness or otherwise of BM. The trial would examine the effect of BM on the moorland community as well as whether released hen harriers would go on to become successful breeding adults in the wild. The licence would cover the first two years of a five-year trial.

Considering the application, Natural England completed two assessments. One, the Technical Assessment, assessed the merits of the proposed trial generally. The other, the Habitats Regulations Assessment, assessed the implications of the proposed trial in view of the conservation objectives of the two relevant special protection areas (the Bowland Fells and the North Pennines Moors), as required by regulation 63 of the Conservation of Habitats and Species Regulations. In 2018, the Chief Operating Officer of Natural England accepted the application and approved the grant of a licence.

Natural England’s decision to grant this licence was met with disagreement by those who consider that brood management is an ineffective way to protect hen harriers that prioritises the concerns of the shooting lobby. Both the RSPB and Dr Mark Avery applied for permission to apply for judicial review the grant of the licence. Dr Avery is a scientist, a conservation activist and a former International Director of the RSPB. Permission was granted and the applications were heard together in the High Court by Mrs Justice Lang in December 2018 and January 2019. In March 2019, judgment was handed down dismissing the applications: R (RSPB) v Natural England; R (Mark Avery) v Natural England [2019] EWHC 585 (Admin). In October 2019, Lord Justice Newey granted both claimants permission to appeal to the Court of Appeal. The appeals began to be heard together in March 2020, but the hearings were interrupted by the illness of one of the judges. In May 2020, Natural England granted a second licence, in similar but not identical terms to those of the first licence, to enable the BM trial to continue until 30 September 2021. The appeals were re-listed and finally fully heard by Lords Justices Underhill (VP), Newey and Phillips in January 2021. Now, the parties made arguments about the second licence, and not the first licence, which had expired but which remained technically the subject of the legal challenge. Judgment was handed down dismissing the appeals on 9 November 2021: R (RSPB) v Natural England; R (Mark Avery) v Natural England [2021] EWCA Civ 1637.

There was no point in my creating suspense about the outcome of these proceedings. Judicial review challenges concerning animals tend to fail. It is more interesting to try to ask why this might be.

There were eight separate grounds of challenge before Lang J. They were clearly set out and dealt with at paragraphs [52] to [124] of the High Court judgment. The most interesting are the two in respect of which permission to appeal was granted. They are, first, that Natural England misapplied section 16(1) of the Wildlife and Countryside Act 1981, and, second, that it was unlawful to permit BM in the two special protection areas.

The claimants’ primary argument on the first issue was that it was a mistake to characterise the relevant purpose as that under section 16(1)(a), a “scientific, research, or educational” purpose. What had to be assessed was not the direct purpose of the proposed trial but the ultimate purpose of the activity, which was conservation (section 16(1)(c)). Once this was understood, it was clearly not the case that there was no other satisfactory solution to achieving the relevant purpose. Namely, either diversionary feeding or the effective enforcement of the offences under section 1 would be a satisfactory solution in respect of conservation. As such, if Natural England had identified the correct purpose, it should not have granted the licence. The Court of Appeal disagreed about the identification of the purpose. The appropriate purpose is the specific purpose for which the licence is sought. If it were necessary or possible to identify a higher-level purpose, which could often be conservation, the extended list in section 16(1) would be pointless. Natural England was right to consider that this trial had a research purpose, namely to gather evidence about the conservation and social science impacts of BM in England, and as such that there was no other satisfactory solution to achieving this purpose.

On the second issue, the claimants argued that the concept of BM was fundamentally incompatible with the integrity of the special protection areas. Even if the displacement of hen harriers took place within a single area, the birds were still removed from their habitat. The Court of Appeal considered that both the trial and BM more generally should be seen in the long term. On this view, any displacement was temporary, while the real purpose of the activity was the preservation and promotion of the hen harrier population in the area.

These issues, and those dispensed with in the High Court, are relatively pedestrian public-law issues. Can the fact that they were relied upon, and the fact that they failed, tell us anything about the use of the judicial review procedure to challenge decisions affecting the welfare of animals?

First, judicial review generally attacks procedural defects. Unless a decision is vitiated because it is ultra vires (outside the powers of) the public body altogether, or so unreasonable that no reasonable decision-maker could have made it, both of which are rare, an application for judicial review will usually have to identify a material consideration that was not taken into account, or a consultation requirement that was not met, or a principle of natural justice that was neglected (we have all heard enough about that recently). It is really only in the realms of fundamental rights that substantive review grows any teeth by way of proportionality analysis. And, as we all know, animals have no fundamental rights. If a public body makes a decision that is harmful to animals, the law is such that that in itself will usually provide no basis for a judicial review. If the decision is vulnerable, it will be by accident, because there happens to have been a legally significant error besides the contended moral wrongness of the decision. Until animals are granted or recognised as having meaningful rights in public law, or until more weighty duties are placed on the public bodies charged with making decisions affecting them, judicial review will be an unreliable technique for animal activists.

Second, judicial review is a powerful but blunt instrument. It can nullify a decision whatever the consequences if that decision is vitiated by a legal error. This is because the courts, in this field at least, are concerned with absolute rights and wrongs. A public body may never act contrary to procedural fairness or beyond its legal powers, regardless of any countervailing reasons for doing so in a particular case. In the same way, if a public body is within its rights to act in a certain way, a court will not weigh that against any reasons why it should not do so. The law’s dealing in such absolute terms is to be contrasted with politics and the balancing-acts and trade-offs between incommensurable interests that are conducted in that field. (These are the two moralities described by John Laws in The Constitutional Balance.) This situation puts animals at a disadvantage under the law because the law, like our society, generally takes the view described by Robert Nozick as utilitarianism for animals and Kantianism for people (by which he meant humans). This means that, while humans are recognised as possessing some absolute rights that can never be overridden, animal interests are only relative, always susceptible to submission to another goal. To succeed in a judicial review, you need a trump card, and animals have no trump cards.

These two considerations do not mean that animal activists cannot usefully use the judicial review procedure. There will be times when an unpopular decision is vitiated by a procedural error unrelated to the merits of the decision, and a campaigning organisation could legitimately challenge that decision. The rule of law requires that unlawfully-made decisions be open to challenge regardless of litigants’ motivation. There will also be times when, even under the current law, a decision is unlawful for reasons genuinely related to the consideration of or impact on animal interests. The Humane League’s litigation about inherently unhealthy breeds of chicken could be one such case. Finally, the common law develops through litigation, and each application for judicial review presents the court with an opportunity, of varying significance, to do things differently.

These potential benefits have to be balanced against the significant financial cost of taking cases like this to court. Money is sometimes raised from individuals who have not been presented with a sober and objective assessments of the legal merits of the case. Might animal activists not do better to bring fewer speculative judicial review challenges, and spend the time and money building up their own voices on the political field, so that they do not have to complain after every decision that the shooting lobby, the farming lobby, or the development lobby has captured the public institutions? That way, they could set their sights higher than the dozens of UK-resident hen harriers, and aim to protect the thousands of red grouse that are killed for fun every year. If it could be done for foxes through political means, why not for birds?

This intersects with a further issue for animal activists. Should the guiding principle be conservation, that is the protection and promotion of species, or animal rights or welfare, where the focus is on individual living beings? My background, as can probably be seen by reading this post, is in the latter approach. I have not rehearsed the arguments here. It is fundamentally a moral question, not a legal or a tactical one. However, it is interesting to wonder whether one approach lends itself more readily than the other to legal enforceability against the state. If the aim is to lift certain debates outside the realm of politics and situate them in the courtroom, a campaigning organisation, or the movement in favour of animals generally, could cynically adopt the moral position that would most readily achieve this. Whether there is indeed a difference here, and if so in whose favour, is a question for another day.

What I’ve been listening to this week…

It is so nearly Advent. I have been sustaining myself with this incredible recording of César Franck’s Violin Sonata, performed live in Moscow by David Oistrakh and Sviatoslav Richter in 1968. I don’t think I am projecting an Advent feeling onto it: The first three movements have searching qualities, sometimes lost, sometimes frenzied and sometimes in deep despair. The final movement feels like Christmas.

Photo by Mark Hamblin.

Planning to Level Up

Posted on Nov 15, 2021 by Lois Lane

Last month Tewkesbury Borough Council lost their challenge against the decision by a planning inspector to grant permission for 50 homes at Gotherington, after an appeal by developers JJ Gallagher and Richard Cook against the local authority’s initial refusal of permission. Under paragraph 74 of the National Planning Policy Framework (July 2021 version), a local planning authority is required to maintain a five-year supply of deliverable housing sites, designed to meet its local housing requirement calculations. Paragraph 11 establishes that, where a local authority has failed to maintain such a land supply, the so-called “presumption in favour of sustainable development” applies and planning permission should usually be granted.

The central issue in Tewkesbury Borough Council v Secretary of State for Housing Communities And Local Government [2021] EWHC 2782 (Admin) was whether a local authority which had previously delivered more homes than its own average annual delivery target suggested were needed during the earlier part of its Local Plan period was: a) entitled; and b) required to factor that past oversupply into its future housing land supply calculations. The council claimed that, when past delivery across the plan period was taken into account, they had a land supply of 4.37 years, but the inspector disagreed, estimating that the local authority had just 1.82 years’ supply and consequently applying the presumption in favour of sustainable development and approving the Gotherington application.

The council appealed, and the High Court was therefore required to consider a question upon which the NPPF and Planning Practice Guidance on Housing Supply and Delivery are both silent, namely how authorities should treat past oversupply. The Court upheld the inspector’s decision in this instance, but before hard-pressed local planning authorities throw up their hands in despair, they should turn to the judgment of Mr Justice Dove. Although Dove J was clear in his rejection of the claimant local authority’s contention that they were required by law to factor past oversupply into their future housing land supply calculations [42], he did not go so far as to state that it could never be a relevant consideration. Rather, he held that “the question of whether or not to take into account past oversupply in the circumstances of the present case is, like the question of how it is to be taken into account, a question of planning judgment which is not addressed by the Framework or the PPG and for which therefore there is no policy” [47]. It will therefore be for local authorities and inspectors to consider the relevance of previous housing delivery levels to current local planning policies, applications and appeals on a case by case basis, doubtless creating plenty of work for planning barristers in the process.

This judgment does result in considerable ongoing uncertainty. However, one can see why Dove J declined to offer a rigid legal precedent on this issue, holding that it would be inappropriate “to introduce, by way of inference, text into the policy of the Framework which does not exist” [45]. The interpretation of planning policy will always be contingent upon local circumstances and the application of an overly legalistic blanket approach to decision-making will rarely be appropriate. Moreover, the imposition by the Court of a mandatory rule one way or the other on this issue might have had a deleterious effect on the ability of local authorities to meet housing need in their area. If councils were never allowed to factor any past delivery into their future housing land supply calculations, it might create a perverse incentive for some authorities which would otherwise be proactive about promoting development to meet local need, to delay the allocation of land for housing, the granting of planning permission, and potentially the supply of social housing until later in the plan period, to maintain their rolling housing land supply. Conversely, if authorities were always required to take past oversupply into account, this could potentially put an unnecessary constraint on their delivery ambitions. In either case, it would be deeply unfortunate if an overly prescriptive approach to paragraph 73 of the NPPF were to prevent local authorities from housing people on their waiting lists.

Also raising important questions about the relationship between past delivery and future housing need in the last couple of weeks was the first report of the Building Back Britain Commission, entitled ‘Levelling up and the housing challenge‘. Established by six commissioners from organisations across the housing and construction sectors, this Commission has suggested that the Government’s methodology for calculating housing need requires a radical overhaul if the levelling up agenda is to be achieved.

The standard methodology for calculating “objectively assessed need” (OAN) for housing, as set out in the PPG on Housing and Economic Needs Assessment has four stages:

First, local planning authorities are required to set a baseline figure according to household growth projections for their area.
Second, they adjust that figure according to the local housing affordability ratio, so that areas with the biggest gap between earnings and house prices are required to deliver the most homes.
Third, an authority may cap the upwards adjustment of its housing need figure, provided that it has up to date strategic policies in place, including any relevant policies contained in a spatial development strategy.
Fourth and finally, in the twenty most populated urban centres in England a further 35% uplift is applied after the cap in Stage 3.

This methodology was first introduced in the 2018 revision of the NPPF, at which point it comprised only stages 1–3. The Government has since attempted to tweak the method to bring it into line with its national ambition to deliver 300,000 homes per year. (One might question whether a methodology designed to result in a predetermined figure can really be said to be measuring housing need at all, but that is an argument for another post!) The first proposal from what is now called the Department for Levelling Up, Housing and Communities (formerly MHCLG) was to place an even greater emphasis on local affordability indices to determine the uplift required after initial household projections were calculated, but this was extremely controversial and faced a great deal of backlash, including from Conservative backbenchers. Eventually the Government abandoned this approach and adopted the new “top ups” for large urban centres instead, fixing on the 35% level to bring the overall figure into line with the 300,000 homes per year goal.

This adjustment brought the numbers up on a national level but did nothing to address one of the underlying issues with the current methodology, namely that it produces local housing need calculations which are higher in areas where the market is already overheated and lower in areas where it is depressed. Planning policies based on these calculations will inherently reinforce market forces rather than doing anything to proactively shape the housing market or rebalance the economy away from the South East and from major urban centres and towards other regions of England and smaller cities and towns. At present, for example, the OAN standard methodology leaves councils in the London commuter belt attempting to meet ever more ambitious housing targets, within the constraints imposed by Green Belt and AONB designations, while many post-industrial towns in other parts of the country are deemed to need far fewer new homes, despite having a good deal of brownfield land which would be ripe for redevelopment.

Planning policy could be a powerful tool in the Government’s armoury as it pursues its levelling up agenda. The opportunity is there, especially with regards to brownfield sites. In the latest of its series of reports on the subject, published in October of last year, CPRE calculated that there are currently enough sites on local authority brownfield registers to build 1.3 million new homes, of which 53% already have planning permission. A large proportion of these sites are in the North and Midlands, and in smaller urban centres as well as major cities. The Building Back Britain report recognised this opportunity and called for a new national housing strategy, which would be explicitly aligned to the levelling up agenda. Rather than calculating housing need on the basis of historic growth, this strategy would proactively identify more deprived areas of the country which would benefit most from future investment in housing. It would also involve explicit targets for the delivery of affordable homes and the greater implementation of ‘Modern Methods of Construction’ (MMC), to speed up housing delivery and reduce its environmental impact relative to traditional construction.

A post-Covid world seems like an ideal time to put some of these ideas into practice. As Sam highlighted in his post last week, more of us than ever before are now working from home on a full- or part-time basis, and with the increased possibilities allowed by remote working, smaller towns in less well-connected areas of the country might seem like increasingly attractive places to live. The Government should seize this moment, while the agglomerative forces binding large portions of the workforce to major cities and to London in particular are at their weakest in a generation, to promote a truly transformative planning agenda, which directs investment to where it is most needed rather than following the market.

There have been some signs that developments on this front might be in the pipeline. Appearing on the 2^nd November before the House of Lords’ Built Environment Committee, Housing Minister Christopher Pincher told members of the committee to “watch this space” on the possibility of the Government introducing new methods of land value capture to encourage and support local authorities to start building homes again [p. 18]. Meanwhile, Planning Resource magazine ran an article on 5^th November reporting that the Building Back Britain Commission proposals for a national housing strategy has been backed by Secretary of State Michael Gove.

It is always as well with proposed planning changes not to get ahead of oneself. The last few years have seen a wide variety of proposed alterations and overhauls to the NPPF make it to the consultation stage only to be abandoned. But right now there does seem to be a window of opportunity for the government to introduce a more equitable method of calculating housing need, which would help direct public and private investment towards areas which are most in need of it. As the Tewkesbury judgment shows, it is not enough to rely on past delivery statistics. There is now authority for the fact that these cannot serve as an excuse for future under-delivery on a local level. Neither should they be used to predict and direct future policy for housing delivery on a national scale. As we emerge from the pandemic, it is time for a more interventionist approach to planning, informed by a genuine levelling up agenda. The Government should remember the old adage and know that if they build it, we will come.

What I’ve been up to recently…

I was very happy to have the opportunity be one of the judges for the first round of the City Law School GDL moot recently. A year ago, the first round of the 2020/21 competition was my first ever experience of mooting and an excellent way to get more comfortable with the process before tackling any external competitions. So it was really nice to come full circle and have the chance to offer some advice to students just starting out on their GDL adventures.

Not remotely fair: When you need planning permission to work from home

Posted on Nov 8, 2021 by Sam Kharabanda Groom

The pandemic revealed that many jobs could be done more or less effectively from home. Inevitably, the phenomenon has become controversial on a number of fronts. Does working from home improve quality of life by cutting out commuting, or does it erode the boundary between work and leisure to the detriment of the latter? Are home-workers environmentally responsible, or are they reckless towards the livelihoods and institutions that rely on their presence in an office? Is it only the insufferable hipster laptop class that can enjoy the new possibilities, or only an older generation that luxuriates in large studies? Does working from home improve accessibility to certain jobs, or does it rob junior workers of opportunities to learn from their peers and their seniors? What kind of TW&T are you?

More attention has been paid to whether we should work from home than to whether we may work from home. This was understandable in March 2020, when there seemed to be little choice. But now we can reflect. Planning law regulates the use of land, including the use of one’s home. The change in the use of land since this time two years ago has been enormous. It would be odd if the law had nothing to say about this.

The issue arose in a recent High Court case, Sage v Secretary of State for Housing, Local Government and Communities (sic) [2021] EWHC 2885 (Admin). Before we look at the case, it is helpful to set out some of the relevant law and policy provisions. There is nothing very complicated.

Section 57(1) of the Town and Country Planning Act 1990 sets out the general rule that “planning permission is required for the carrying out of any development of land.” Section 55(1) gives the general definition of “development”: “the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.” It is the last part that is relevant to us. So our starting-point is that, if you want to make a material change in the use of a building or land, you need planning permission.

Section 55(2) provides exceptions to the definition of development. One of these is as follows, in section 55(2)(d):

the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such

So, if you want to make a change to the use of your home, there are two questions. First: Is the change material? Second: Is the new use incidental to the enjoyment of your home as a home? If the change is material, and the new use is not incidental, you need planning permission. If the change is not material, or the new use is incidental, you do not need planning permission.

In order to answer these questions in the context of a particular case, we need to flesh out the two rather obscure terms, material and incidental. Judges have opined on the meaning of each of these terms and others that are of importance in planning law. However, this is not very helpful to laypeople, who need practical advice in an accessible form. To this end, the government publishes Planning Practice Guidance online alongside the National Planning Policy Framework, which is the government’s planning policies for England.

Each piece of Planning Practice Guidance addresses a different issue. One piece of the Guidance is entitled When is permission required? This contains two passages that are helpful in our context. First, there is a passage entitled When does a change of use require planning permission? The passage is as follows:

A change of use of land or buildings requires planning permission if it constitutes a material change of use. There is no statutory definition of ‘material change of use’; however, it is linked to the significance of a change and the resulting impact on the use of land and buildings. Whether a material change of use has taken place is a matter of fact and degree and this will be determined on the individual merits of a case.

This gives us limited guidance about what material means.

Second, there is a passage entitled Do I need planning permission to home work or run a business from home? The passage is as follows:

Planning permission will not normally be required to home work or run a business from home, provided that a dwelling house remains a private residence first and business second (or in planning terms, provided that a business does not result in a material change of use of a property so that it is no longer a single dwelling house). A local planning authority is responsible for deciding whether planning permission is required and will determine this on the basis of individual facts. Issues which they may consider include whether home working or a business leads to notable increases in traffic, disturbance to neighbours, abnormal noise or smells or the need for any major structural changes or major renovations.

This first sentence of this paragraph appears to address the term incidental, while the phrase in brackets describes the term material. The second and third sentences appear to be of general application. The overall impression that this paragraph makes is that the two questions whether a new use of land is incidental to the use of a home as a home and whether a change of use is material are two ways of looking at the same question, and that the kinds of factors relevant to answering that question have to do the impact of the change of use on others in the area. Based on this paragraph, you could assume that planning permission to work from home would not be required if the change did not disturb the neighbours.

Finally, if you want to confirm that how you are using your home is lawful, you can apply to your local planning authority for a certificate of lawful use under section 191 of the Town and Country Planning Act 1990. If the authority refuses the application, you can appeal under section 195 to the Secretary of State (for Levelling Up, Housing and Communities). The appeal would be considered by an Inspector on behalf of the Secretary of State. If the Inspector dismisses your appeal, you can make a further appeal to the High Court under section 288. An application to appeal in this way requires permission from a judge to proceed to a full hearing, based on the merits and importance of the appeal.

That is the background. On with our case.

Ricki Sage is a personal trainer who lives in Beckenham. He has a shed in his garden that contains, among other things, gym equipment. Starting in 2016, Mr Sage’s clients would come to his home and use the shed and the equipment in it. Clients would access the garden and the shed from a passage between the house and the neighbouring house. Mr Sage did not apply for planning permission to use his home in this way, presumably because he did not think he needed it. Instead, he applied to his local planning authority, the London Borough of Bromley, for a certificate of lawful use to confirm that his use of his property was lawful. Bromley rejected the application. Mr Sage appealed to the Secretary of State.

The Inspector described the issue that he had to decide as follows:

whether the appellant has shown that use of a residential outbuilding as a one-to-one personal training studio is ancillary to the residential use of the dwelling and has not amounted to a material change of use requiring planning permission.

We can see here the two issues we identified earlier, although the statutory term incidental has been replaced with the word ancillary.

The Inspector referred to the passage of Planning Practice Guidance entitled Do I need planning permission to home work or run a business from home? and focussed on the issue of noise highlighted in that passage. The Inspector considered that there was no or negligible noise resulting from the use of the property for personal training. The Inspector was more concerned by the clients’ comings and goings, using the passageway between the properties and arriving and leaving by car. He said the following about this:

Given the residential setting, this is likely to have caused a noticeable increase in general noise and disturbance in and around the property. Consequently having regard to the number, frequency and duration of the training sessions the studio use is materially different in character to use as a home gym by occupiers of the dwelling and it has appreciably changed the manner in which the property is being used.

The Inspector’s conclusion was that using the shed and garden for personal training sessions did constitute a material change of use of Mr Sage’s home. His appeal was dismissed.

Mr Sage responded to this decision by making a second application to Bromley for a certificate of lawful use. In this application, Mr Sage intended to address the deficiencies of his first application, which he considered had been rejected solely because of the disturbance caused by the comings and goings of his clients. He provided the hours in which his property was accessed by clients, the means of transportation that his clients used, letters from neighbours stating that they were not disturbed by any noise from his clients, and a report by an acoustics expert stated that the clients’ arrival and departure created no discernible noise or disturbance.

Bromley rejected Mr Sage’s second application. Having asked local residents, it found that the opinion that Mr Sage’s clients’ comings and goings caused no disturbance was not universally shared. Based on the information it had gathered and that provided by Mr Sage, Bromley considered that the use of the shed and garden for personal training had “the potential to have a negative impact on existing residents.” As such, that use was sufficiently different in character from the use of Mr Sage’s home as a home to change the character of the use of the land.

The Inspector who considered Mr Sage’s appeal against the refusal of his second application said that the issue was whether Mr Sage’s use of his shed and garden was “incidental to the residential use of the dwelling or represents a material change in that use, that requires planning permission.” The Inspector accepted that the impact of the personal training in terms of noise was negligible. However, this was not the only issue. In her decision letter, the Inspector said as follows:

18. I acknowledge that the training sessions themselves appear to be well controlled, and this is a view supported by the acoustic report and evidence provided by local residents about the lack of noise. Nonetheless to my mind, noise is not the only factor to consider. The comings and goings that arise from at least 4 to 5 clients a day, in addition to those individuals who would usually be expected to visit a dwelling, can also cause disturbance to neighbours. Any disturbance is exacerbated by the tight knit design of the properties and need for callers to use the narrow access and small rear garden, which is clearly visible [from] the rear windows and gardens of the neighbouring dwellings.

19. For the above reasons, in this compact residential setting, I do not consider that the scale of the business related training sessions, both at the time of the application, and at the reduced level, can reasonably be considered to be either de minimis or incidental to the enjoyment of the dwelling house. Accordingly, a mixed use has occurred. I am satisfied that this finding accords with the advice found on the Planning Portal and referred to in the appellant’s statement.

20. Consequently, in the particular circumstances of this case, I find that as a matter of fact and degree, the use of the outbuilding for business related training sessions on this scale, is not incidental to the use of the dwelling and results in an overall change in the character of the property.

In summary, the Inspector decided that the level of disturbance other than noise created by the personal training, primarily the visible passage of clients into and out of Mr Sage’s property, means that the use of the property for this purpose was a material change of use and was not incidental to Mr Sage’s use of his home as a home. It followed that Mr Sage’s appeal was dismissed.

Mr Sage appealed against this decision to the High Court. He was granted permission to proceed to a full hearing by Timothy Mould QC, sitting as a Deputy High Court Judge. Mr Mould said as follows:

This claim raises an arguable issue about the materiality of environmental and amenity considerations to the question whether the use of a building within the curtilage of a dwelling house is for a purpose incidental to the enjoyment of the dwellinghouse as such, within the terms of section 55(2)(d) of the Town and Country Planning Act 1990.The issue is of some importance given the increasing use of the home as a place of work and business. The court will be assisted by the parties’ submissions on the correctness in law of the current Planning Practice Guidance on that question.

Mr Sage appealed against the second Inspector’s decision on three grounds. First, he argued (or his barrister, Kate Olley, argued on his behalf) that visual disturbance was an immaterial consideration in this case, and that the Inspector had erred by basing her decision on this. Second, he argued that the Inspector’s reasoning was legally inadequate: in particular, she had not explained why it was more visually disturbing for a client to visit Mr Sage’s home than for a friend to do so. Third, he argued that the Inspector’s decision on disturbance was irrational because the evidence was not capable of supporting a conclusion that Mr Sage’s use of his land disturbed anyone, either aurally or visually.

The judge who heard the appeal was Sir Duncan Ouseley, a retired High Court judge with experience in planning law who stills hears cases occasionally. He rejected Mr Sage’s first ground of appeal. It is true that the passage of Planning Practice Guidance entitled Do I need planning permission to home work or run a business from home? does not list visual disturbance as a relevant issue. However, the list is non-exhaustive. Visual disturbance was not immaterial. The judge also rejected Mr Sage’s second ground of appeal. In the context of the decision letter as a whole, the nature and extent of the visual disturbance caused by Mr Sage’s clients was perfectly well explained. Finally, the judge rejected Mr Sage’s third ground of appeal. The Inspector’s treatment of the issue of visual and aural disturbance was well within the scope of permissible planning judgment. If she erred, it was in favour of Mr Sage. It followed that Mr Sage’s appeal was dismissed.

Having dispensed with the appeal, the judge dealt with two remaining matters. First, he addressed serious deficiencies in Mr Sage’s application form for a certificate of lawful use, which could have resulted in his case failing even if one of his legal arguments had succeeded.

Second, and it appears that this is why Mr Mould granted permission to appeal, the judge addressed the passage of Planning Practice Guidance entitled Do I need planning permission to home work or run a business from home? The passage (again) states as follows:

Two things about this passage concerned the judge. First, the first sentence is a confusing statement of the law. Just because a property is “a private residence first and business second” does not mean that the business use will be “incidental” to the use of the home as a home. And the two distinct questions, of material change and incidental use, are blurred. Second, the third sentence suggests that the focus of these questions is on environmental impact such as might affect neighbours. This is misleading. Environmental impact may be one of many factors. As the judge said at paragraph 82: “The crucial test is whether there has been change in the character of the use.” This may be measured by having regard to disturbance produced, but no disturbance is required is order for land to be used differently from before.

This is important for any home-workers whose conventional place of work would be an office. Such work, in general, would create significantly less disturbance than personal training, and would not tick any of the boxes in the guidance. A computer-based home-worker could easily infer from the guidance that they would never require planning permission to work from home. Following this High Court decision, that is in doubt.

The guidance, as criticised by the judge, gives the impression that the threshold for requiring planning permission in these cases is higher than it is. Your home can be a home first and a place of work second, where the work is imperceptible by neighbours, and still undergo a material change of use from being purely a home and the business use not be incidental to the home use. Of course, if disturbance is not the only or even the primary factor, the question is: what are the factors to be taken into account? Does the number of monitors I set up in my home office determine whether my move to working from home is a material change of use? Or the number of days each week that I work from home? Does the size of my home office affect whether my use of part of my home as an office is incidental to the use of my home as a home? Is it about space, or time? If neither, what can we go by?

These are exactly the questions that judges in planning cases regularly decide and that planning professionals answer. We could conduct a review of the case-law to anticipate what the answers might be. But, as the judge pointed out, what is considered a normal use of a home has changed a great deal recently. Principles from the past may not be directly applicable to today’s cases. The millions of people who now work from home at least some of the time require practical, accurate and up-to-date guidance from the government so that they do not have to pay lawyers or involve themselves in litigation like Mr Sage did to ensure that they are in a legally sound position. Hopefully, the DLUHC will update its guidance so that it accurately reflects the law as it applies today and so that we can all know whether we need to ask the council’s permission to sound-proof the spare bedroom.

Finally, we have to recognise a further set of questions. If the factors determining how I can use my land go beyond the use’s effect on others, what is the justification for that limitation of my property rights? What business does the state have controlling what I do quietly within my four walls? Balancing the interests of the individual proprietor with the interests of the community is the classic rationale for planning law. The answer to the question is that the community to whose interests my rights must sometimes submit is broader that the immediate geographic area around my home. My choice to work from home affects the cafés and the air quality around my now-quiet office. It can contribute to changes in house prices; it could influence investment in infrastructure. If the government wants to put its thumb on the scales of the debate alluded to in my opening paragraph – is working from home to be encouraged or discouraged, and under what circumstances? – one of the easiest ways it can do so is by simply making it unlawful for me to work from home. Whether this would be an abuse of state power or an appropriate displacement of the market from its decision-making role is a debate for another time. But we can probably all agree that it would be best if planning policy at least knew what it was doing.

What I’ve been listening to this week…

After the clocks go back, it suddenly feels like Advent, but it is three weeks until I can put on those albums. So I have been looking for other warming, comforting music. This week, it has been Fauré’s Cantique de Jean Racine, which may as well be Advent music to me. Who knows why, but Bruce Springsteen has been really hitting the spot too.

And I finally saw No Time To Die, but I can’t talk about that.

1066 and All That: The role of bishops in the courts after the Norman Conquest

Posted on Nov 1, 2021 by Lois Lane

The decades after the Norman Conquest of England in 1066 were a time of tremendous political and administrative upheaval, which saw the transformation of many Anglo-Saxon institutions, including the church and, to a lesser extent, the courts. In consolidating his rule over an unfamiliar kingdom, whose language he did not speak, William the Conqueror relied heavily on his bishops. Initially content to allow incumbent bishops to continue in post, in 1070 William changed strategy and deposed five bishops who had especially close ties to powerful pre-Conquest families. These he replaced with men from the continent, several of whom had already served as chaplains in the royal chapel. During the rest of his reign, William continued to appoint bishops who had been educated at prestigious cathedral schools on the continent before serving for a period in the royal chapel.

By the time of his death in 1087, the king had assembled an impressive episcopal bench in England, full of men of proven loyalty and exceptional administrative abilities. The Conqueror’s bishops played a crucial role in the establishment of the new Anglo-Norman regime, as did two bishops of Norman dioceses — the king’s half-brother Odo of Bayeux (at least until his imprisonment in 1082 or 1083) and Geoffrey, bishop of Coutances. They served the king as royal justices and administrators, tutored his children, led military expeditions on his behalf, and played an important part both in the coordination of the Domesday survey of 1086 and in the effective functioning of the legal system of the day, through their role presiding over meetings of the shire court. It is this last responsibility which forms the main subject of this piece.[1]

Scene from the Bayeux Tapestry in which Bishop Odo blesses the first meal that William the Conqueror and the Norman barons ate on English soil

William I inherited a kingdom in which the shire was already established as the standard territorial subdivision for administrative and fiscal purposes, except in the far North. Its court was of fundamental importance in local government. The principle that the shire court should meet twice a year was enshrined in the mid-tenth century in the Andover law code of King Edgar, which also specified that the bishop and the ealdorman of the shire should preside over the assembly, as representatives of sacred and secular law respectively. This code also decreed that no one should take a plea to the king unless his own lord had refused, or been unable, to do right by him. This provision was expanded during the reign of King Cnut, whose surviving law code stipulated that a man might not take his plea to the shire court until he had demanded justice three times in the hundred court, and must never take any dispute to the king’s court which could be resolved in a lower court. Even in the tenth and eleventh centuries it would seem that there were concerns about the higher courts being overwhelmed by frivolous challenges.

Although pre-Conquest law codes suggest that an apparent hierarchy of courts already existed in England by the mid-eleventh century, in practice it might not always have been readily apparent where a case ought to be resolved. This potential ambiguity can be observed in legal historian Patrick Wormald’s discussion of a dispute in 990 between a nobleman, Leofwine, and a noblewoman, Wynflæd, over lands in Berkshire.[2] In this instance, Wynflæd wished to take her case directly to the king but Leofwine insisted upon it being heard in the shire court of Berkshire. Eventually the shire court was convened to hear the plea, Bishops Æthelsige of Sherborne and Æscwig of Dorchester presided, the king sent his seal with the abbot of Bath, and Wynflæd ultimately won. The case illustrates the successful functioning of an Anglo-Saxon shire court, but also how, despite the promulgation of royal law codes, there might still be some confusion as to whether it was the correct forum for certain disputes to be aired. It is also striking that the account of this plea records two bishops presiding alone, without a secular lord alongside them.

The shire court in this period performed a wide variety of judicial and social functions. It was a forum for litigation, certainly, but also a place where arrangements were made for the collection of taxes, where men might be outlawed, where business transactions might occur, or marriages be arranged. It was thus in the interests of every landholder, great or small, to be in attendance at the court, or at least to make sure he (or more infrequently she) was represented there.

Despite the centrality of the shire court to Anglo-Saxon and Anglo-Norman government in the localities, however, it is difficult to obtain a complete picture of how the institution functioned in practice during the turbulent years after 1066. Two possible facets of its operation are presented in contrasting, but not incompatible, reconstructions by Richard Sharpe and Nicholas Karn. In his pioneering 2003 article on ‘The Use of Writs in the Eleventh Century’, Sharpe gave a clear account of how a type of document known as a writ-charter might have been requested and obtained by a beneficiary, delivered to the shire court and there read aloud to the assembled company, before being returned to the beneficiary, who could choose whether to retain the document.[3] The process Sharpe envisaged was a sophisticated and systematic one, initiated at the request of beneficiaries but firmly controlled and directed by royal government at the centre. Karn, by contrast, presented shire courts as potentially chaotic forums which ‘were not designed for the efficient processing of business sent to them from on high, but rather seem often to have found decision-making difficult. Their importance does not derive from their usefulness to kings, as a means of imposing policy and decisions, but from their usefulness in debate.’^[4]

It is possible to reconcile these interpretations to some extent. We may accept that kings had a sophisticated administrative mechanism at their disposal, in the shape of writs and writ-charters, while also recognising that the institutions to which documents were directed might sometimes have operated in a rather unruly fashion. It is also probable that a good deal of routine business was carried out smoothly and uneventfully in local assemblies but has left no trace in narrative accounts and documentary archives concerned with recording and preserving the exceptional. Nevertheless, the tension between the two readings may reflect an actual tension in the shire courts of the eleventh century, between the governmental objectives of the king on the one hand and political circumstances on the ground in the localities on the other.

The Conqueror’s reign was an important period in the development of the shire court, with the loss of many of the earldoms which had characterised the political geography of pre-Conquest England. From the middle of the tenth century until the reign of Edward the Confessor, bishops and ealdormen or earls had habitually presided over the court together. The old Anglo-Saxon earldoms did not disappear entirely after the Conquest, nor were all of their English incumbents immediately removed. Nevertheless, English earldoms diminished in number and altered in nature over the ensuing decades. No longer was every county and every shire court necessarily presided over by an earl, as they had been during Edward the Confessor’s reign.

Where earls vanished, however, bishops continued to appear, presiding over meetings of the shire court long after their secular counterparts had ceased to do so. They occur occasionally in narrative accounts of shire court proceedings but most of the evidence for their involvement comes from contemporary royal writs. These were short documents in epistolary form, authenticated by the king’s seal and usually contained some kind of notification or injunction for the recipient. Or they might be writ-charters, which took a similar form but conferred land or rights on their beneficiary. Because these documents took the form of letters, and most historians agree they were intended to be read out in the shire court, their address clauses provide useful clues as to which officials usually presided over meetings of the court.

The origins of the writ in England may lie as far back as the ninth century. They were certainly in habitual use by Anglo-Saxon kings by the late tenth century, alongside longer and more formal documents known as ‘diplomas’, although the earliest surviving examples date from the reign of Cnut in the early eleventh century. The reign of Edward the Confessor saw the proliferation of writs, which quickly supplanted the more unwieldy diplomas. After 1066 diplomas to English beneficiaries all but disappeared. By contrast, the writ flourished and performed an increasing range of functions. A number of supposed writs of William I are in fact forgeries dating from the mid twelfth century onwards, mostly from the abbeys of Westminster and Battle. The eagerness of twelfth-century forgers to produce counterfeit royal writs, as well as spurious diplomas, demonstrates that writs were considered important enough to be worth forging.

David Bates’ edition of the charters of William I, Regesta Regum Anglo-Normannorum, contains 171 writs or writ-charters, of which thirty-one are outright forgeries.[5] During my PhD research I analysed these writs for the individuals or groups to whom they were addressed and their language of composition. The main impression which emerged was one of variation, with practices far from standardised. Groups and individuals in late-eleventh-century landed society appear in a wide variety of combinations and sometimes it is difficult to identify for certain the office which a particular addressee held. For example, Gamel, son of Osbeorht, appears alongside Earl Morcar in a writ of 1067 × 1069 granting land to Beverley Minster in Yorkshire. His appearance in this context suggests that Gamel was probably the sheriff of Yorkshire at this date but this writ is the only evidence that he ever occupied the office.

Variation and occasional uncertainty notwithstanding, it is possible to gain a general sense of what proportion of the surviving writs of William the Conqueror featured different kinds of people. Of all the office holders addressed in these documents, bishops appear in the greatest numbers. Ninety of the 140 writs which are certainly or potentially authentic include a bishop or bishops among their addressees, a proportion of 64.3% or a little under two-thirds. Sheriffs are the second most prolific group, with eighty-four appearances. Earls appear thirty-seven times, and two early writs, in favour of the abbeys of Bath and Westminster, include a type of Anglo-Saxon official known as a ‘staller’ among their addressees, apparently taking the place of the earl.

Bishops, then, appear in a majority of extant writs of William I, though by no means in all. Several factors may have affected the likelihood of a bishop being among the addressees of any given writ. In some cases, he may have been omitted from a document because it detailed a grant, or the outcome of a plea, which ran contrary to episcopal interests and which the bishop in question might therefore have wished to obstruct. Such may be the case in a writ of 1081, addressed to Roger Bigod, the sheriff of Norfolk, notifying him of the resolution of the long running dispute between the local bishop, Herfast of Thetford, and the abbot of Bury St Edmunds. The king informed the sheriff that he and his leading magnates had heard the case and decided in favour of Abbot Baldwin, and ordered that the bishop should make no further claims upon the church of St Edmund. Bishop Herfast must have been informed of the outcome of this plea, if indeed he was not present when the decision was made, but in the context of a protracted and acrimonious dispute such as this one, it makes sense that the sheriff alone should be addressed and that the king should charge him, as a neutral party and royal representative, with enforcing the outcome.

On the other hand, there are those documents where the bishop himself, or his cathedral church, was the beneficiary. This did not necessarily preclude him from also being an addressee, but it did make it less likely. Forty authentic or potentially authentic writs in favour of episcopal beneficiaries survive, of which just over half include a bishop among their addressees (lower than the two-thirds figure for the total corpus). Of the twenty-one writs where bishops do appear, six are addressed to the beneficiary bishop, seven more generally to ‘episcopis’ or ‘archiepiscopis’, four to the bishop of the diocese where the land being granted was located, and a final four to a named bishop who is neither the beneficiary nor the diocesan for the shire in which the grant was made.

Of these categories it is perhaps the last group which is most interesting, demonstrating as it does the part that might be played by bishops in the local politics and administration of areas beyond the boundaries of their own dioceses. Two of these writs are addressed to Archbishop Lanfranc and indeed it makes sense that a writ might be directed to the archdiocesan bishop in cases where the diocesan bishop was either the beneficiary of a grant or involved in a dispute in need of resolution. However, two other writs demonstrate that, in exceptional circumstances, ordinary diocesan bishops might be addressed about business which had nothing to do with their own dioceses. Both are connected with that most extraordinary of events: the Domesday survey.

One is a writ issued by Bishop Geoffrey of Coutances, acting in a vice-regal capacity, and addressed to Remigius, bishop of Lincoln, and several other nobles, informing them of the outcome of a dispute between the bishop of Worcester and the abbot of Evesham. This writ is undoubtedly connected with the role of these men as Domesday commissioners in the West Midlands, which is recorded in a late-eleventh century account of a Worcestershire Domesday session by a monk from Worcester cathedral named Hemming. The function of this document was not to effect a grant or settlement in itself, but to provide the commissioners with information which was of use to them in the performance of their commission. Hemming makes it clear that it was not directed to a routine meeting of the shire court but to an extraordinary assembly which occurred at the time ‘when the king ordered the whole of England to be described’.

A second writ dealing with the grant of Bishop’s Stortford castle to Bishop Maurice of London is addressed to Bishop Osmund of Salisbury and the sheriffs of Oxfordshire and Essex. This grant must have been made after Maurice’s appointment as bishop at Christmas 1085 and presumably before King William’s departure for France in the autumn of 1086. Great Domesday Book tells us that Maurice held land at Stortford but makes no mention of the castle. It is therefore possible that the grant was made some time during 1086, after the first stage of the survey was completed. Unlike the Worcestershire example, it does not seem to be explicitly connected with the Domesday survey.

The language of the writ is Old English rather than Latin, even some fifteen years after King William had adopted Latin as the normal language of written communication with his key officials. However, there is considerable evidence that the shire courts were still operating in English some forty years after the Conquest. This may, therefore, be a rare surviving example of a once numerous body of Old English writs, which continued to be issued to shire courts after the apparent 1070 transition to Latin as the language of central government.

If this is to be interpreted as a writ designed to be read in the shire court, however, it raises questions about which shire is being addressed, and why Bishop Osmund should appear to have presided over an assembly which must have occurred outside his own diocese and was not explicitly part of the Domesday survey. Is it possible that, as a consequence of the unavoidable upheaval that the survey must have caused, and the forced itinerancy of some of the most important men in the country, shire court meetings during the first half of 1086 might have been presided over by whichever ecclesiastical or secular magnates happened to be on hand, so as to avoid an eleventh-century court backlog?

This flexibility regarding who William entrusted to preside over local courts is further reflected in the number of his surviving writs which are addressed to some combination of Archbishop Lanfranc, Geoffrey of Coutances and, less frequently, Odo of Bayeux and Robert, count of Mortain. This select group of men were William’s closest advisors and most capable administrators. At least until the disgrace and imprisonment of Odo in 1082 or 1083, each of them stood right at the heart of the king’s council. Two, Odo and Robert, were his half-brothers. Three were bishops, though only one presided over an English diocese. At different times both Odo and Geoffrey issued writs on behalf of the king, acting in an effectively vice-regal capacity.

William seems to have employed this ‘task force’ of powerful and experienced men in situations which were too urgent, complex or delicate to be resolved through the usual channels of local government. Such is the case in a series of writs in favour of the abbey of Ely, addressed variously to Lanfranc, Geoffrey of Coutances and Robert of Mortain and datable to 1081 × 1087, during which period the abbey was in a customs dispute with Bishop Remigius of Lincoln. Sometimes members of the ‘task force’ were explicitly charged with resolving disputes over jurisdiction between bishops and neighbouring abbeys, as in a Worcester writ of 1078 × 1085 demanding that Lanfranc and Geoffrey settle a disagreement between Bishop Wulfstan of Worcester and Abbot Walter of Evesham and specifying that Geoffrey should preside in place of the king. In other cases, there are writs which do not directly address a dispute but still refer to circumstances which have arisen because of it, such as an instruction that the abbey of Ely should be allowed to take repossession of various lands in Cambridgeshire, Suffolk and Essex.

William issued an increasing number of these ‘task force’ writs during the later years of his reign, a fact which might seem to support Nicholas Karn’s suggestion that the shire court was rather an unwieldy forum for resolving disputes, structured as it was to facilitate debate more than decision. It may have become increasingly apparent to the king that the shire courts, so well adapted to the routine business of eleventh-century government, were not fully equipped to deal with some of the more protracted and complex disputes which arose in the turbulent years after the Conquest. It is a testament both to William’s political judgement and to the flexibility and utility of the writ as an instrument of royal government, that he was able to counter extraordinary circumstances with specific instructions to some of his most powerful and competent men.

Does it necessarily follow that the individuals addressed in a writ were actually present at the shire court to hear it read out? It is true that bishops are the most frequently addressed group of people in the surviving writs of William I. Yet even in cases where the subject of a writ was a straightforward grant of property or privileges, the addressees did not always include the bishop/s for the shire, or shires, where the property was situated.

Sometimes, for example, when the beneficiary institution and the property being granted were in separate shires, writs seem to have been addressed to the relevant archbishop, as though the matter had been referred higher up the ecclesiastical hierarchy. A general confirmation of all the lands and customs of St Mary’s of Abingdon, probably issued shortly after the accession of Abbot Adelelm in 1071, was addressed to Archbishop Lanfranc and the relevant sheriffs for the shires where the abbey held land – that is Berkshire, Oxfordshire, Warwickshire and Gloucestershire. At this time Berkshire was part of the diocese of Salisbury, Oxfordshire part of the diocese of Lincoln, Gloucestershire split between the dioceses of Worcester and Hereford (though mostly in Worcester), and Warwickshire between the dioceses of Worcester and Lichfield. The abbey, then, held land in many different dioceses and it makes sense that this confirmation of its possessions should be addressed to the archdiocesan, rather than to each of the diocesan bishops in question.

However, the anonymous author of the abbey chronicle provided an account of this writ being read out in the shire court of Berkshire and this raises questions about the purpose of the writ and the reasons for the identity of the addressees. Was this a routine or an extraordinary meeting of the shire court of Berkshire, and did Archbishop Lanfranc actually preside over it in person? Was the writ also read in other shire courts? If so, why did the Abingdon chronicler only mention Berkshire? Lanfranc himself was also omitted from the account of the writ being read at the shire court. These questions remain unanswered, and perhaps unanswerable in this instance, but they are a salutary reminder that the presence of an individual in the address clause of a writ is not a guarantee of his presence in the shire court at its reading.

Bishops were busy men, with many competing demands on their time. It is highly likely that, the address clauses of writs notwithstanding, they were sometimes unable to attend meetings of the shire court and that their places were taken by deputies. This was also the period during which archdeaconries began to be established on a significant scale, including the earliest territorial archdeaconries, with archdeacons assisting bishops in a variety of spiritual and pastoral duties. By the time of Bishop Remigius’ death in 1092, the vast diocese of Lincoln had seven territorial archdeaconries, each of which corresponded with a particular shire: Lincoln, Huntingdon, Northampton, Leicester, Oxford, Buckingham and Bedford. While I was able to find no specific references in contemporary sources to an archdeacon presiding over the shire court in place of a bishop, it seems highly likely that they did sometimes deputise for bishops in secular as well as ecclesiastical affairs, especially in cases where the boundaries of an archdeaconry corresponded with the boundaries of a shire. It is possible therefore that some of the surviving writs addressed to diocesan bishops were actually delivered to assemblies at which they were not present, and where their place was taken by a deputy, perhaps an archdeacon.

Nevertheless, the different types of writ that continued to coexist throughout the Conqueror’s reign indicate a legal and administrative system built on solid and lasting foundations, but which was also responsive to the political needs of the moment. Traditional practices obviously continued, and probably more widely than surviving documents would suggest. The Old English writ concerning the grant of Stortford castle to Maurice of London was clearly directed towards some kind of assembly operating in the vernacular, despite the fact that the three named addressees were all Normans. It seems almost certain that more vernacular documents like the Stortford writ have been lost and that the surviving impression of Anglo-Norman administration is therefore skewed towards new and innovative forms and practices, at the expense of older and more conservative ones.

The Conqueror, meanwhile, seems to have been prepared to rely on existing structures where they were useful to him, and to devise alternative systems where traditional ones failed. The shire court system, and the simplicity and flexibility of the royal writ as an instrument of government, offered the English king a direct channel of communication with the localities, of a kind which was unparalleled in contemporary Europe, while his network of trusted bishops provided him with a competent and well-educated civil service of sorts. Moreover, unlike secular magnates, bishops left no legitimate heirs and had no independent power base derived from hereditary lands, and the king could ultimately appoint their successors to further cement his power in the provinces. More than any of his continental contemporaries, King William looked to his bishops to help him navigate the political and administrative challenges of consolidating his rule over a foreign and sometimes hostile kingdom. The Conqueror’s bishops played a profound role in almost every aspect of the law and government of England.

[1] A more detailed and fully-referenced discussion of this subject can be found in Chapter 2 of my PhD thesis, Clerks and Commissioners: The Role of Bishops in the Government of England, c.1050–1087 (Unpublished PhD Thesis, King’s College London, December 2017).

[2] Patrick Wormald, The Making of English Law: King Alfred to the Twelfth Century, Volume I: Legislation and its Limits (Oxford: Blackwell, 1999), pp. 151–2.

[3] Richard Sharpe, ‘The use of writs in the eleventh century’, Anglo-Saxon England, 32 (2003), 247–91, pp. 251–3.

[4] Nicholas Karn, ‘Centralism and local government in medieval England: constitutional history and assembly politics, 950-1300’, History Compass, 10 (2012), 742–51, p. 747.

[5] David Bates, ed., ‘Regesta Regum Anglo-Normannorum’: The Acta of William I (1066–1087) (Oxford: Oxford University Press, 1998).

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