Saving Friern Barnet Library: More Notes from a McKenzie Friend… (LBB v P. Phoenix, D. Gardner, P. Albert, K. Martin)Posted: December 19, 2012
The hearing of the London Borough of Barnet’s claim for possession commenced on the 17th December at 10.30 and ran for a full day before a packed courtroom. Having put in the initial defence which secured a two-day trial, I remained a McKenzie friend at this hearing for the defendants – taking and drafting up witness statements and working closely with the legal team. Some of the defendants are from the Occupy movement. One defendant was a resident and a long-term community activist and joined his name to the defence – Mr. Keith Martin. The London Borough of Barnet’s legal team opted not to pursue costs against Mr. Martin at the conclusion of this hearing.
This blog post is a short summary of the arguments deployed for those interested residents who were not able to be at the hearing; either because the courtroom was too full, or because they could not attend. It may well also be of interest to lawyers. However, I’d like to stress that whilst this blog posts summarises the main legal issues discussed, it is by no means a case note. Nor is it a description of events on the day – for that, please see Mrs. Angry (Theresa Musgrove)’s excellent blog.
The barrister who very kindly agreed to represent the defendants was Ms. Sarah Sackman of Francis Taylor Building; also a former Barnet resident. The solicitors who were instructed were Leigh Day & Co – with Richard Stein leading. I’d like to take this opportunity to thank both of them on behalf of all supporters and activists for their work.
The Council closed Friern Barnet library on 5th April 2012. The building itself is of significant aesthetic and architectural value, and was purpose built as a library in 1933-34. There was a sit-in on the 5th April, when Save Friern Barnet Library campaigners protested vociferously against the library closure. There had been a significant ‘Save Friern Barnet Library’ campaign which had been running for over a year before then; there was a petition which triggered a Council debate, and from the point of closure onwards, the campaigners set up pop-up libraries on the green beside the library in order to protest against the closed empty Council building. These pop up libraries happened on an almost weekly basis, on Saturdays. It was therefore clear that prior to the occupation, there had been an ongoing protest and campaign against the closure of the library.
On the 15th June 2012, Maria Persak-Enefer, a local architect, had applied to have the building listed as a community asset pursuant to the Localism Act 2011. This application was not accepted by the local authority until 10th December 2012, after Leigh Day & Co wrote a pre-action protocol letter threatening judicial review and listing the failure to determine this application as one of the grounds for judicial review.
On the 4th September 2012, an ex-librarian and a member of the Occupy movement had entered the building through a window which had been left open as a result of the sit-in movement. The only damage to the building had been the removal of a security alarm from the wall, which was immediately attended to overnight by a security officer. Once inside the building, the ex-librarian was joined on the 5th September 2012 by a fellow member of the Occupy movement, Peter Phoenix, who then took over the running of the community library. Phoenix described himself when giving evidence as an experienced occupier, and confirmed that he was known in the Occupy movement for his expertise in facilitating agreements between communities and public bodies (having undertaken such work over a period of 20 years). He confirmed that the purpose of the occupation had been to facilitate such an agreement between the community and public bodies.
He contacted the Council immediately about negotiating as to the provision of a community library in Friern Barnet. The Council wrote back with a view to commencing negotiations – and offered to meet with the occupiers on the occupied library premises. Members of the community were then invited by the occupiers to the negotiations. The claim for possession was issued on the 10th September – the same day as when the Council met with the occupiers and community on the premises; and the same day on which the Deputy Chief Executive of the Council Julie Taylor said that ‘no snap decisions would be made’ in response to Diane Taylor (a freelance journalist) ‘s question as to whether the Council would be taking measures to evict the occupants.
In making their first legal point, the defendants relied upon this statement, the communications between the Council and the occupiers up until this point, and upon the fact that no official had explicitly asked for possession of the premises up until the point of issuing possession proceedings to argue for an implied licence (as opposed to unlawful trespass) on the property. The judge concluded that there was no implied licence; as the failure to ask for vacant possession or to use the term ‘trespasser’ was not in and of itself a grant of a licence. The judge also stated that, as a licence was a contract,this would require the existence of a legal entity, person or groups a licence was granted to, and that upon the face of the minutes it was clear that council officials had no authority to licence the occupiers to remain on the premises. The argument that there was an implied licence therefore failed – it was concluded that the occupiers were on the land unlawfully.
A second point was raised by Ms. Sackman on behalf of the defence. During the course of these negotiations the occupants inside the library had essentially re-opened the library, running it as, naming and labelling it the ‘People’s Library’. The response from the local community was as quick as it was remarkable – over 8000 books were donated, to the effect that the library had more books than the original Council library had. Community members operated a volunteer-run rota, and offered free assistance and community services. As a result numerous classes were run on an almost-daily basis between Tuesdays and Sundays from October up until the hearing. These classes included creative writing, belly-dancing, pilates, yoga, comic book classes, French and chemistry. There had been a Cabaret evening, open mic nights and rock gigs inside the library. There had also been regular community campaign meetings – including meetings of the Save Friern Barnet Library inside the building, and there had been a book signing with renowned author Will Self, as well as a campaign day focusing on highlighting broader cuts to public services including the attendance of the leader of the Green Party and key individuals from UNISON.
The nature, manner, and form of this protest – namely, the running of the occupied library itself – as a library – was eloquently argued by Ms. Sackman to be the exercise of the right to protest against the cut to that specific library. It was argued that this right was interfered with, and therefore engaged.
That is to say – the very act of taking over an empty building which once was formerly a library in order to run it as a library – to show that there was still a need for the community library – was the exercise of the community’s right to freedom of expression, and of its right to assemble and associate in a protest against the closure of that library. These two rights are enshrined in the Human Rights Act 1998 (Article 10, and Article 11).
This argument was accepted by the judge – who accepted that both the rights to freedom of expression, and the right to assemble and associate had been interfered with by the Council. She recognised that the occupation formed a part of a pattern of protests long before the occupation of the library itself, including the pop up libraries situated on the green beside the library. She also recognised the significant publicity that the campaign had gained both nationally and internationally.
The judge recognised that the defendants had not, as was ruled in the case relating to the occupation of St. Paul’s churchyard (City of London v Samede, 2012), stopped individuals from worshipping. Neither had they breached the peace. They had in fact been a welcome addition to the local community, and had gained the trust of local businesses. There had been no complaints made about the restriction of local trade – and indeed had engaged in positive activity with the local community and business.
This meant that the Council had to demonstrate that this interference was necessary, proportionate and the least restrictive measure available in the circumstances) in order to justify its decision to seek that possession order.
Ms. Sackman had argued that the Council was required to seek the least restrictive measures of interfering with the Art 10 and Art 11 rights which had been engaged. She argued that the least restrictive measures would have been granting a licence to the occupiers to remain on the premises until the building had been sold at the end of the 18 month period provided for by the Localism Act 2011; as opposed to pursuing a possession order.
The community had heard on the 10th December 2012 that the application for local listing of the community library had been finally determined – and that the Council building had been listed as a community asset under the Localism Act 2011. This essentially meant that when the Council marketed the building a community group could put in an expression of interest for a bid, and then use a period of six months to formulate and submit a bid. Under the present regulations, the Council would be prohibited from selling the building for 18 months from the point at which that expression of interest had been put in.Ms. Sackman therefore argued that the least restrictive measures would have been granting a licence to the occupiers to remain on the premises until the building had been sold at the end of the 18 month period provided for by the Localism Act 2011 legislation; and not pursuing a possession order. It had already been adduced in evidence that the occupiers would be willing to leave the premises once they had been allowed to exercise their right to protest during the 18 month period, and once the community bid under the Localism Act 2011 had been considered.
Ms. Sackman also argued that the Council had not provided any substantial reasons for why the Council’s interference with these rights to lawful assembly and freedom of expression was proportionate. In this case, the Council had only argued that there would be an infringement of planning and building safety regulations as the occupiers had, by sleeping in the building, turned non-residential premises into residential premises.
However, the judge decided that, upon the facts, the Council’s decision to pursue a possession order was a proportionate means of achieving a legitimate aim; on the basis that allowing the occupiers to remain in the building during the 18 month period would be prejudicial to any other alternative community bidders who wished to put in a competitive bid for the asset under the Localism Act 2011. She held that the Council would be exposed to ‘justified claims of bias’, would render the Council to challenge by judicial review, would put off other community groups if there was no guarantee of vacant possession, and that allowing the occupation to continue would constitute an interference with the lawful right to the application to participate in bidding under the Localism Act 2011. She held also, that once the London Borough of Barnet had obtained vacant possession, it would be easier to allow potential bidders to enter the library.
Finally, the judge concluded that a licence could not have been granted by the London Borough of Barnet to the individuals on the premises as a less restrictive interference with these human rights as (i) at no stage had the defendants made an offer to enter into a legal licence with the claimants, and (ii) the defendants had not identified who the legal persons to be granted that licence were. Furthermore, at no stage the defendants had named a person who was willing to sign a licence.
It was concluded that
– entry onto the premises, notwithstanding negotiations and the conduct of the council was unlawful and was trespass (and not an implied licence);
– the individuals on the premises’ human rights to lawful assembly and association; and to freedom of expression were interfered with by the Council (these rights were ‘engaged’);
– this interference was proportionate and the least restrictive measure available to the Council in light of the need to maintain an impartial, non-prejudicial sale process for diverse community groups to have an opportunity to bid for the recently listed local community library.
Ms. Sackman’s application for permission to appeal was rejected; although there remains the recourse to apply to the Court of Appeal.
In terms of legal outcomes – a possession order was granted to the Council, but this will not be enforced until February 2013 – and the Council provided a legal undertaking to that effect. Furthermore, the community has an opportunity to engage again in discussions with the local authority about the running of a community library under a contractual licence. Finally, the community will now, upon the listing of the library as a community asset, be able to put together a bid for the library during a period in which the Council will not be able to sell the property.