At the trial on Monday 17th December 2012 Fiona Brickwood (supporter of the defendants and community), Peter Phoenix (defendant from the Occupy movement) and Keith Martin (defendant and resident who applied to be joined with the defendants) gave evidence before Barnet County Court and judge Patricia Pearl.
I had the privilege of working with them to put together their written statements. They have kindly given permission for these witness statements to be put on this blog so that residents and fellow community supporters can read these statements of support and so that what they had to say can reach a wider audience.
I’ve posted them up here in order of the giving of evidence.
I, Fiona Brickwood of [address not disclosed for data protection reasons] WILL STATE AS FOLLOWS:
I make this statement in support of the defendants to the possession proceedings brought by the Claimant.
Insofar as the facts in this statement are within my knowledge they are true. Insofar as the facts in this statement are not within my direct knowledge, they are true to the best of my knowledge and belief.
I have been a resident in Friern Barnet for 16 years. I was not actively involved in any political matters until the council planned to dispose of our local library, in 2011.
Losing Friern Barnet library would be very damaging to our community. It is our only public building, so the only place where community activities can take place. A quarter of the children in our ward live in poverty. It is much harder to shift the cycle of deprivation if there is no local library.
In 2011, Barnet Council conducted a major consultation asking all Barnet residents whether they agreed the council’s plans to replace Friern Barnet and North Finchley libraries with a “Landmark Library” to be built in North Finchley. 73% of respondents said they did not agree to this proposal, but the Council decided to disregard the result of their consultation and proceed with their plans to close both libraries.
This created huge public protest, with two petitions presented to Cabinet and many letters to councillors and the press.
The council did not need to cut this service as the £432,000 they budgeted to receive from the sale of the library is only 0.0015% of their annual budget. The social cost to Friern Barnet of losing our library would be high, and the monetary gain to the council from disposing of this asset would be insignificant, so I believe that this plan to dispose of our library is contrary to the public interest.
In July 2011, a group of residents and local businesses, including myself, offered to develop a Neighbourhood Plan, to retain Friern Barnet library, whilst generating money to help the council’s financial problems. In response to my question at a cabinet meeting on 26 July 2011, the council agreed to defer closure of the library to allow us time to develop the proposal, and promised to make their officers and resources available to work with us on this (Exhibit 1.1). Since then, our group (“Friern Barnet Co-Action”), has continued to work with various senior council officers to develop this proposal.
Friern Barnet Co-action has had various meetings with council officers to discuss and develop our proposals. The council’s deadline for community proposals was extended twice, firstly to 31 December 2011 and then to 31 March 2012.
The Cabinet then decided to close the library in April this year, against the advices of its own Scrutiny Committee. However, the council has continued to work with Friern Barnet Co-Action, to develop our proposal for a Community Hub based in Friern Barnet Library.
I have supported the campaign to save Friern Barnet library since it started in the Spring of 2011. After the library was closed – against the wishes of the people and the advice of the council’s Scrutiny Committee – I helped the Save Friern Barnet Library group to organise and run a ‘pop up’ library on the Library Green, (an open space located adjacent to the library building). I stored books, which had been donated to the pop-up library, in my home, delivered and collected them each week, and helped staff the book stalls. This “pop up” library served several purposes: it demonstrated local opposition to the closure of the library and also showed the need for a library service in the local area.
The local community has been very supportive of the campaign, especially the Royal British Legion, who are located next to the Friern Barnet Library site and who have agreed to be part of our Community Hub and Neighbourhood Plan. They supported the Pop Up Libraries by lending us tables, storing some books, providing tea for the library campaign to raise donations.
Having the pop-up library reaffirmed that the library building and the surrounding open space is land which belongs to the community, and it allowed us to assert our right to that. Barnet Council is now seeking a possession order over the open land as well as the land where the library building stands, but it is my belief that the public is entitled to use the open land beside the library building to meet, socialise and demonstrate on, and that we have a right of expression to do so.
Following the pop-up library demonstrations, the library building was occupied on 4 September 2012. At the time council was considering our application for a £40,000 grant to support our proposal. This included library facilities in Friern Barnet Library and a community-run Enterprise Hub to help people into work, funded by the profits from an Apprentice Cafe, which our group will run in a local cafe. (We are currently in discussion with the cafe owners.)
Following the occupation and reopening of the library as a library by volunteers, I attended several meetings between council officers, residents and occupiers to negotiate proposals for a library and community hub provision in Friern Barnet.
The first two meetings (10th and 17th September) were in the Friern Barnet Library building; the third meeting was at the Council’s offices at North London Business Park; the fourth meeting (which I did not attend) was at the Council’s site at South Friern library.
All meetings were with senior council officers. Up to thirty residents attended these meetings, with some of the occupiers including Pete Phoenix, and many long-standing campaigners for the reopening of the library including Keith Martin, Mike Gee and Rosie Canning.
We asked officers repeatedly whether the key decision maker for the libraries (Robert Rams) was available to attend the negotiations. The officers had said that they would ask him, but subsequently informed us that he was too busy to attend.
Throughout all these meetings and negotiations, we discussed our proposals to have a library on the Friern Barnet Library site itself. During our meetings, Bill Murphy stated very explicitly that he was required to produce £400,000 for the library budget, and that if this was not provided from the sale of Friern Barnet Library, that we would need to produce it in some other way. This is inconsistent with the council’s offer in October 2011, where they said they would allow us to run a community-run library in Friern Barnet library, renting the building, provided this was done at ‘little or no cost to the council’.
Pete Phoenix discussed with Bill Murphy being given the time to raise the £400,000 to buy back the Friern Barnet library site.
The council officers repeatedly offered the option of setting up a community-run library in Friary House.
The council have been offering us Friary House for a community-run library since July 2011. We residents have repeatedly told the council that Friary House is unsuitable for a library, because its location in the park is not fully accessible for people with disabilities, and it would be unsafe to access in the late evenings and the nights.
We also asked whether we were negotiating with the right members of staff, ie whether the council officers who were negotiating with us actually had the authority to agree to our retaining Friern Barnet library. It was confirmed to us that these decisions were in fact not in the remit of those library officers any longer as the building had moved to the remit of the property disposals team. It is not clear to me whether the officers who entered into negotiations with us intended to, or were equipped to make the decisions they needed to make to achieve a constructive solution with the community.
We had been under the impression, during our conversations with the council officers, that there would be no attempt to evict the occupiers and the library volunteers while these negotiations were ongoing. We had concluded the second meeting and had made arrangements for the third meeting when the defendants received the notice of possession proceedings. As a result we were in the odd situation of continuing to discuss proposals for the continued use and community provision of the Friern Barnet Library premises whilst they had already issued proceedings against the occupiers.
It remains my belief that as the building and especially the green space around it is land that belongs to the community, the building was given to the council for public health purposes and bought specifically for the purpose of creating a public library, that Barnet Council does not have a right to stop members of the public from using the building for community purposes or from demonstrating inside the building. It is clear that people have donated these books and given their time to the running of the community library because they want this library to remain open. They are protesting against this specific cut in the local area as well as providing a valuable service to community. I believe that it was deeply wrong for the Council to make this cut.
Neither the pop-up libraries on the Library Green nor the volunteer library inside the Friern Barnet Library building has caused any nuisance or disturbance to others. On the contrary it is has provided a valued service to the community in a space specifically adapted to that purpose.
I, Peter Phoenix of [address not disclosed for data protection reasons]
WILL STATE AS FOLLOWS:
I make this statement in support of my defence to the possession proceedings brought by the Claimant.
Insofar as the facts in this statement are within my knowledge they are true. Insofar as the facts in this statement are not within my direct knowledge, they are true to the best of my knowledge and belief.
I am a community activist, and a member of the Occupy movement. I had received a phone call from the Occupy movement who stated that they needed my help in relation to this particular occupation. I am known as a specialist in working with community centres, and I have experience in communicating and facilitating dialogue between owners and occupiers – especially in working out interim use agreements between owners and occupiers where there are large empty buildings. For example, I have worked with the Jewish Community Centre for London and successfully negotiated a deal for the community, and have also worked with Circle Anglia Housing Association in negotiating housing provision for the homeless.
One of my reasons for choosing this particular building is because I believe that there remains a need for libraries as beacons of education and learning, and as institutions that provide free access to knowledge. I wanted to draw attention to the social cost of the cuts to local authority budgets, and the effect that would have on individuals. The original occupier of Friern Barnet library, Dave was once a librarian. He left after the third day of occupation but had initiated this entry into the building as he wished to reopen the library. He knew that there was a large local campaign which had hosted demonstrations outside of the library but felt that this campaign would have a stronger voice if the community could run a community library as a form of protest, and that this occupation would provide the community with a greater platform to express their opposition to this local cut to their local library.
Chronology of Events
I entered the building on the 5th September 2012 after two individuals entered before me from the Occupy movement on the 4th September 2012. I had been let in by them through the back door. The two individuals who entered before me, John and Dave, informed me that on the afternoon of the 4th September 2012 a lady from the Library Services department in Barnet Council called Heather Mills had offered the individuals another building to use. Council officers had visited them and had offered the downstairs room of Friary House, with the potential to use the upstairs rooms for the purposes of establishing and running a community library.
I asked John and Dave to take a note of what had happened. We then emailed the Council to thank them for their kind offer of use of Friary House on 5th September; and asked some questions. These were (1) how many rooms were on offer, and (2) when the move into Friary House could take place. The Council responded by email the day after (6th September 2012) where they clarified that both the upstairs and the downstairs rooms were on offer, and that before a move into the building was effected, a lengthy list of details needed to be supplied.
At this point the Council had at no stage in their discussions with us mentioned anything about our trespassing on Council property, nor did officers ask us to leave. In fact they engaged in extensive negotiations over 4 meetings, discussing financial options to run a community library.
After receiving this email, we called the Council and indicated our interest in the proposal . Heather Mills from the council asked for a meeting with Council officials including Julie Taylor – Assistant Chief Executive , on the following Monday 10th September at 10.00 am on the premises at Friern Barnet Library. Again, at no point at this stage in their discussions did the Council state that we were trespassers.
I then invited members of the community who had been longstanding activists for a community library in the local area to attend this meeting. 28 local residents appeared at this initial meeting, including a number of well-known Barnet bloggers as well as, Keith Martin and Fiona Brickwood, all of whom have also provided their witness statements.
This meeting lasted around an hour, and I undertook to facilitate this meeting between these members of the community and the Council. There was significant anger towards council officials – primarily focused upon the fact that the Council had only agreed to consult and discuss the issue of library provision with members of the community after the occupation had happened, and had failed to enter into constructive negotiations with the community before this event. They had also ignored the response to the Library consultation where 73% of the replies said they wanted to save this library and not have the Arts Depot Landmark Library project, which has since been cancelled.
We had still not been told at this stage that we were trespassing on the property, (in fact at none of the 4 council community liaison meetings were we told that we were trespassing nor were we asked by Barnet Council to leave the building) and the Council agreed to meet with myself, the other occupiers, as well as members of the community a week later on the Friern Barnet Library premises (on 17 September 2012) to discuss proposals for the provision of library services in the local area.
Around this time myself, Mike Gee and Fiona Brickwood were shown around Friary House by Heather Mills (2nd visit of our group). I have attached photos of this extensive guided tour visit where we discussed in detail rooms possible to be used, marked Exhibit 1.1.
There were around 25 members of the community at this second meeting. I continued to facilitate the meeting. At this meeting we agreed to discuss some proposals for library provision which were on the table. We were informed by Mr.Cooper from the property services department that the library was not to be used yet for a period of six to eighteen months.
We discussed with the Council the interim use of Friern Barnet library as a community/council run and volunteer run library at low cost. At the third meeting (24.09.2012) with Council officers which was held at Council offices in North London Business Park, seven or eight members of the community were present.
In our discussions with council officers Bill Murphy and Mike Fahey from Library Strategy, a number of proposals were considered which involved Friern Barnet Library.
A revenue/rental option
A purchase for £400,000 option
A completely voluntary run library option, with £10,000 and 10,000 books as well as integration into the library computer system.
Mike Fahey mentioned that the council did options appraisals, so we supplied them with our own options document by the next week outlining 9 possible variable proposals.
Bill Murphy (Library Strategy) stated that if the community could raise an estimated £30,000 – £40,000 of revenue for the rental of Friern Barnet library, that would enable the Council to borrow the £400,000 it needed to keep the library open, and to make up for the identified deficit that the sale of the building was intended to solve.
The Council had offered £10,000, along with 10,000 books to fund a volunteer-run community library. We then emailed the Council and asked them whether the £10,000 offered could be subtracted from the £30-40,000 to reduce the sum that needed to be raised to £20,000-30,000. I then estimated on a rough spread sheet how that revenue of £400-600/week could be generated to enable the library to remain open and provided this estimate to council officers.
This offer was again made by the community and by the occupiers to the Council at the fourth meeting at the South Friern Library building on 10th October 2012. The council officer in question responded that he would have to ‘ask whether there is a political will’ to accept the proposal where the community raised between £30,000-40,000 for the library to remain open.
Bill Murphy said that the council was very eager to engage with the New Carnegie Foundation who may have been able to raise significant funds to purchase this building and open other Academy Buildings, as they had the backing of several American millionaires.
Bill Murphy said that the council was most interested in Option 4 – the purchase of the building for £ 400,000 and that if we produced this we could have the building.
We agreed to have a 5th meeting. However, the Council officials noted that meeting the following week would clash with the possession proceedings and the court hearing so they agreed to meet the week after the possession proceedings. Mike Fahey said he would check the availability of the room in South Friern Library for the week after the court case.
This meeting never happened. We feel we were significantly close to finding a mutually beneficial solution for community and council and would like more time to find a resolution. We have made an offer to enter mediation with the help of Berkeley Square professional mediators but this offer was declined.
The Council’s application for a possession order ran completely counter to the fact that the Council had asked us to enter into negotiations about the use of Friern Barnet Library, and had never explicitly told us that we were trespassing on the premises whilst the library was being used and operated as a community library.
In fact, our ability to run the library seemed to form the basis and reason for their ongoing discussions and negotiations with us as they saw that there was an opportunity to work with us to provide volunteer-run services at a low cost in order to meet their statutory obligations.
I believe that not only did Barnet Council grant us an implied licence to be on the property while they were commencing possession proceedings, but also that pursuing a possession order itself interferes with the community’s right to be on the premises in order to effect a strong protest.
I believe that this is the Council’s sole reason for seeking possession and that there is no justification for interfering with this right to community protest and individual expression. The grant of a possession order will interfere with the right to protest.
The level of media coverage and the platform that this occupation has given individuals has meant that the community and community groups have support that they would not otherwise have had.
They have been covered in national media; such as the Guardian, the Independent and the Daily Mirror, BBC,ITV and has received significant attention on television and radio (including German television, and French/Swedish radio).
It has enabled the community to express their support for the library through donating over 8000 books, as well as volunteering to fill in a community librarians rota and through using the library. The location of the occupation of Freirn Barnet Library and the way in which the community has registered its protest against the library closure by operating the library is critical to the message we wish to the send to the Council. There have many very well attended community talks, workshops and discussions in the library building.
It has also enabled the community to provide a library service to themselves – something that is currently not being provided as a consequence of the closure of Friern Barnet Library. The operation of the library is not causing any nuisance or interference to others.
We have also recently heard that the proposals for a substitute library at the Arts Depot in Finchley have been shelved which has implications for the Council’s statutory duty to provide an efficient and comprehensive library service under the Museums and Libraries Act 1964.
We are, in effect, through running a community library – stepping in to make up for the Council’s failure to meet its statutory obligations.
I, Keith Martin of [address not disclosed for data protection reasons] WILL STATE AS FOLLOWS:
I make this statement in support of my defence to the possession proceedings brought by the Claimant.
Insofar as the facts in this statement are within my knowledge they are true. Insofar as the facts in this statement are not within my direct knowledge, they are true to the best of my knowledge and belief.
I have been a long-standing campaigner for the reopening of, and against the closure of Friern Barnet Library. I participated in both the pop up demonstrations and in the sit in at the Friern Barnet Library which had been hosted by the local Save Friern Barnet Library Campaign Group. Both the consultation and the wider library strategy showed how unpopular the closure of the local library was – as did the continued campaign against its closure, and the campaign to reopen the library. By protesting on the grass beside the library building, the community continuously demonstrated that it had a point to make and that it would continue to use public land in order to make that point. Furthermore, by protesting inside the building by using what was once an empty disused space to run a community library, the community has also demonstrated that it had a point to make against this cut to the library service. It has done so by contributing, volunteering for, and donating to the on-going running of the library service.
It is my understanding that this library was given to the people of Friern Barnet with the support of the Carnegie Foundation. The Carnegie Foundation donated money for the provision of library services in the local area. I believe that Barnet Council have no right to close the library, and that the people of Friern Barnet have the right for the site to be continued to be used for community purposes and as a library.
I attended three out of the four negotiations which took place. These were mainly chaired by the lead occupant Pete Phoenix. I believe that Pete Phoenix has great ability to enable effective dialogue to take place between the Council and the community. We had asked him if he would be willing to facilitate these discussions and he said he would be happy to do so.
I attended both of the negotiations at Friern Barnet Library itself. I also attended the fourth negotiation at the South Friern Library premises. I can confirm that Rosie Canning, another long-standing activist, was there and took detailed minutes of the first two meetings which are a permanent record of the discussions between Council officers and the team who were negotiating on behalf of the community. Roger Tichborne took minutes of the fourth meeting. These negotiations included myself, Peter Phoenix who is the main occupant of the library, Rosie Canning, Fiona Brickwood, Mike Gee, and some local bloggers – such as Roger Tichborne who runs a blog called ‘The Barnet Eye’, and Theresa Musgrove, who runs a blog under the alias of ‘Mrs Angry’. After the second meeting some of us met with council officers at Friern
Barnet Library and travelled to Friary House for a viewing of the site. This was offered to us in exchange for the occupiers ceasing the occupation. We declined the site for several reasons. One was that it was not accessible as it was in a dark and unlit area. Another was that we knew that it had been intended to be rented to the police and was a building designed for police and not library use. We also knew that there were some South Asian community groups within the building (which is used at an almost maximum capacity) and we were not clear where they would go, or when a library would be available on those premises.
The first meeting at Friern Barnet Library did not rule out the possibility that the community library would continue to run on the premises with the consent of the Council. There were several options that were on the table – and one suggestion provided by Julie Taylor who is the Assistant Chief Executive of Barnet Council, was the site at Friary House. Phoenix accepted that this was a possible option. However, Friern Barnet Library ruled out.
At the first meeting the local blogger Roger Tichborne asked Craig Cooper (a representative from the Property/Estates department at Barnet Council) whether the building remained within the remit of Cllr Robert Rams. He responded that it was ‘no longer a library, it was an asset’. It is my belief that Barnet Council were not genuinely interested in negotiating to keep the library open. When the occupiers learnt that a possession order would be sought and that papers had been filed for eviction, this came as a complete surprise as we had agreed to continue negotiating. This behaviour was completely at odds with the dialogue and mediation which had been taking place between council officers and residents/occupiers at the meetings about the provision of library services. I did not feel that this was the act of an honest negotiator.
I believe also that council officers made statements implying a promise not to issue proceedings. Julie Taylor had promised to convey to councillors the views of those who met that negotiations should be continued between the council and the community. She had said ‘I can guarantee you, that I will put that point of view to the councillors.’ It had also been stated that ‘no snap decisions would be made’, when local blogger Theresa Musgrove asked as to whether the Council would be seeking possession.
There was therefore an implication here that the Council would not torpedo negotiations by applying for a possession order or eviction proceedings, especially as the main occupant (Pete Phoenix) was by this point recognized as essential to facilitating the negotiations by both sides. The council then continued to offer to meet with the community group and with the occupants including myself to negotiate for the provision of library services after the papers for possession had been issued. Negotiations have now ceased.
I am, as well as a witness, a defendant. I wanted to add my name to the list of defendants as I wished Barnet Council to know that their action was not simply against non-residents of Barnet but also against long standing residents and the council taxpayer. I have supported this occupation and have joined my name as a co-defendant to this action because I wish to refute any suggestion that the defendants comprise of non-residents only, to refute the suggestion that the Council is merely taking action against individuals, rather than the community. I join my name to the defendants on behalf of the local community as a long standing activist.
The local community want this library to be reopened, and have continuously been protesting against its closure through the act of using the library itself, donating to the library and volunteering to run the community library.
All of the witness statements above were signed and dated 14th November 2012.
Thanks go to an immense campaign and to other activists who were integral to the campaign and to the case. We wouldn’t be here without the ongoing campaigning and support of the Save Friern Barnet Library Group. A special shout goes out to Rosie Canning, responsible for taking many of the minutes in the interactions between the Council and occupiers/residents and for so much of the hard work and co-ordination behind the campaign’s scenes, to Mike Gee for so much of his practical dedication and perseverance – and for putting his back out in looking after the building!
Thanks goes out also to Cllrs Barry Rawlings and Pauline Coakley-Webb for their support of the community in this campaign.
A special thanks also goes out to Rabbi Jeffrey Newman who worked so hard to facilitate mediation between the parties.
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.
Just a checklist to muse over when you get around to your mulled wine and mince pies in your local library, or the next Council room you decide to take over. How not to run a Council:
1) Have no direction
One Barnet DRS. A joint venture? A strategic partnership? A joint venture. That may *possibly* but possibly not be implemented. Who knows. We’re staring down at a black box for the vast majority of what One Barnet is. Notwithstanding the fact that we don’t even know if it is still on the table. Richard Cornelius seemed oddly ambiguous about this in his Sunday Politics Show session.
2) Have no clue
Not have read the 8000 page contract that the outsourcing of £300m+ of your council services deals with – for 10 years with an option to extend for 15 years; and to delegate the decision making all to your own ‘specialist solicitors’.
Because a solicitor’s area of expertise is policy-formulation and local government decision making. Not to mention their sole democratic and elected duty. Of course.
3) Ignore everybody who doesn’t agree with you
Stick your fingers in your ears, head in the sand and go something along the lines of ‘la-la-la-la-la’ (i.e; no consultation, no straightforward answers at public questions to meetings, dictatorial top-down anti-democratic behaviour that downright refuses to listen) until, rather inevitably, you get two big fat letters telling you that you’re going to be judicially reviewed. On One Barnet, and on Friern Barnet Library.
In the same week. Oh Dear.
4) Make dodgy analogies
See Cllr. Richard Cornelius’s answer to my email here;
‘We have employed specialist solicitors to develop the contract and they have brought factors within the contract to our attention. Most people who buy a house do not read the contract themselves but rely on expert advice. Its why we pay for it.’
I suppose if the house was built on shifting sand, you couldn’t see what it was made of, affected thousands of local residents rather than just a private contract entered into between A, B, with a bank and solicitor; and was sold on your bog-standard services contract that analogy might work. Unfortunately there are a few loose beams in this particular analogy.
5) Turn a blind eye to alleged criminality whilst claiming to act in the interests of justice
Oversee one of your local and most prominent councillors allegedly assault a local campaigner in a car park. And not do anything about it – stating that it is in the interest of justice (conveniently deployed for the first time in the lives of the Barnet Tories) for a decision to be pending until the outcome of a trial. Thus prompting the national Conservatives to come in over your head and suspend aforementioned councillor on your behalf.
6) Care not a hoot about resident needs
Giggle visibly, go completely red, and be captured on camera as your allegedly assault-happy councillor refers to members of the public gallery as the ‘mad, the bad, and two old hags’. That’s going to go down well with the disabled and/or female residents and employees you’re responsible for, isn’t it?!
7) Indiscriminately slash the front-line of services
This isn’t just about One Barnet.
Shut down a local library. Ignore public protest and opposition. And then – wait for it – leave the keys in the lock for just anybody to walk in! (according to aforementioned suspended councillor). Issue possession proceedings – so incompetently you can’t obtain summary judgement from a legal system that’s desperate to give you summary judgement.
8) Perform magic tricks – badly
Say you’re going to build a new Landmark Library. Decide you can’t be bothered with all that after all. And then move the Landmark Library (that invisible, ethereal thing) into a library that already exists. Hmm.
9) Find yourself in confrontation with your community
Have a Cabinet meeting where you are jeered, kicked out into a side room for your own Tory Group meeting, police officers grin at the campaigners opposing you, and people stand on chairs. You’ve done a fabulous job of representing your local community, haven’t you, when that happens?
For a video of this, see this. Courtesy of Revel:
I’ve left number 10 deliberately empty because I’m certain at this rate it will be filled before this year is out.
It’s a bonkers time to be a Barnet resident.
A few months down the line, I’m still campaigning and I’m still writing letters. Here’s the latest one, off the back of the BBC Sunday Politics Show which Richard Cornelius, Leader of Barnet Council appeared on to defend the One Barnet Programme. He must be the only one, after Cllr Brian Coleman (yes, that colourful personality)’s hatchet job of it in various places – including on the Sunday Politics Show itself.
If you’d like to hear what Cllr Cornelius had to say on the contract please see the following short clip;
My response to Richard Cornelius’ remarks are copied in below. I’ve emailed them to Richard Cornelius and copied in his deputy Dan Thomas, Cllr Robert Rams and Theresa Villiers, my local MP.
Dear Cllr. Cornelius,
Thanks for your appearance on the BBC Sunday Politics Show this morning. It is kind of you to finally (try to) justify One Barnet. There are, however, a few discrepancies between some of your statements and the factual reality of One Barnet which I would like to raise. And I do have a few follow-up queries with some of your statements on behalf of the residents of Barnet. I have included this letter in my publicly available blog.
(1) Firstly, you state in this interview that it is only back office services that are being outsourced, not those that affect those on the front line. I am afraid that this puts the Barnet Conservative Party in a rather difficult position.
– the Conservative Party has been responsible for the expenditure of £1bn+ on exclusively back office functions – from which you expect to obtain a saving of £120m; which really would be financial imprudence – in which case the Barnet Council Conservative Party do not deserve re-election.
Or (and in light of recent events this is much more likely)
– the Barnet Conservative Party are not being entirely truthful.
In fact, the list of services transferred to the private sector as helpfully listed by Mrs. Angry in her latest blog includes;
Residential/ Supporting Living/ Day care services for adults with disabilities; Council Housing Services; Hendon Cemetery & Crematoria; Music Service; Public Health Service; Environmental Health.
If yourself and your colleagues are of the opinion that health, the environment, care for the elderly and disabled, bereavement and education services are merely back-office functions then that, unfortunately, says a lot about your attitudes to public service in Barnet.
Moreover you had the absolute gall to try to justify the One Barnet programme by saying that it was not ideological because, in fact – recycling services were being brought back in-house! You did not mention that this was because outsourcing those services had proved to be such a disaster that councillors wanted them back in house.
That was a single service contracted out.
One Barnet is significantly bigger than that – it is a political gamble of £1bn+ of our taxpayers’ money. We are entitled to ask what makes your administration any more likely to succeed on this contract than on the numerous contractual failures it has presided over up until now. And you are required to, as our political representative, answer that question properly. Considering that you do not feel it is necessary to read the 8000 page contract you are signing up to; I would like to ask who in the local authority is going to read the contract, and are they in a position to be held democratically accountable to the electorate?
I would like to remind you that it might well be irrational, and therefore judically reviewable, to enter into a contract without taking the time to read and understand it. Would a reasonable local authority put their pen to a contract they hadn’t read, and then publicly state that this is what they will do? I think not.
(2) Secondly, you state in your interview that back office functions ‘such as human resources’ do not need to be under full democratic control. In fact, I quote, ‘wherever the human resources service is, it doesn’t matter’. I am afraid that this betrays the way in which you have been drawn into the officer-led managerialism that characterises decision making at Barnet Council. In case nobody pointed this out, ‘Human resources’ really means employee wellbeing, and employee engagement. To hear you dismiss the question of employee wellbeing in this way and then to state that these matters aren’t priorities because –
‘I mean we do have to look after people’ is shocking and betrays a lack of knowledge of organisational change.
(3) Thirdly, I was intrigued to hear a note of ambivalence as to whether the outsourcing of the development and regulatory service wing (DRS) of the One Barnet contract would go ahead – you did not say that it would. You will remember that I wrote to you about this earlier, highlighting the very shaky legal ground it was on. However, if there is still a possibility that this contract is going ahead, the resident is still entitled to know under what arrangements it will. The fact that it exists as a ‘black box’ with just a ‘One Barnet’ label upon it is untenable. I, and other residents are still no clearer now than before then on whether these services are going to be outsourced under a joint venture or a strategic partnership model; or now whether they are going to be outsourced at all. Yourself and your deputy Cllr Thomas still seem to have very different views on what should happen to DRS.
(4) Fourthly, I am pleased to finally note that you made a public remark about the importance of providing library services by saying that ‘it is very difficult to shut a library – we don’t want to do it.’
If you are really serious about this statement I would like to urge you to reconsider the closure of Friern Barnet Library, especially after a recent announcement by Cllr Robert Rams that there will be no Landmark Library provided in the Arts Depot as planned – which was supposed to mitigate the impact of this cut to the community. If you really wish to keep libraries open, and if you consider yourself to be a truly democratic leader of the Council then you will listen to a strengthening local community campaign and commit to the reopening of the Council library. It is much more than a library as recent events have shown; it is a vital community resource – the only one in the local area. It is, as I am sure you are aware, in one of the most deprived parts of the borough, and has – and will continue to make a huge difference to the educational opportunities of young people, and in particular young disabled people. Furthermore, it is currently being run for free as a community resource out of an empty public building – even as representatives of the campaign groups have entered into negotiations with the Council about how best to provide the service at a low cost. This is the sort of proposal that your administration should be snatching up and accepting. Instead, we have seen a persistent refusal to enter into further discussions, and a persistent refusal to arrive at a confidential, community-based mediated solution between campaigners and the Council. This refusal has been characterised by nothing other than pig-headed stubbornness and the sort of behaviour one would expect from school yard bullies – not upstanding councillors who genuinely seek to represent and speak for the local community.
The community is committed to keeping the library open. If, as you imply, you would like to maintain library services, the door to mediation/negotiation remains open in order to find a mutual agreement. This mutual agreement would involve the provision of library and community services from the Friern Barnet building using alternative cost structures.
I look forward to hearing from you soon on these matters.
As a community activist in an area like many others where residents are seeing the impact of national cuts trickle down to local decision making, the words ‘judicial review’ seem to be the most frequent ones I hear. I don’t know what that says about me, or where I live, but there we are.
The first point I wish to make may seem obvious but it is worth making – judicial review is a way residents and interested persons can question the way in which the decision has been made, rather than the merits of the decision itself. The latter, quite rightly, is the preserve of politicians. The former, rightly, is part of a wider system where the judiciary, Parliament and the Cabinet hold each other to account.
The conference opened with a gutsy and uplifting speech by Barbara Follett, who urged us all to ‘get on with it’, not to give up in the face of structures and aggression which was designed to put us as women off from political life, to use the game in order to change the game, and to in general, be persistent. At some point during this speech, Kirsty McNeill tweeted something along the lines of ‘There is a baby crawling along the back of the hall. This, my friends, is what a feminist space looks like.’ It got 20 retweets and summarised the uplifting and positive mood of the day Read the rest of this entry »