e-mancipation

In any age the enactments and decisions as to what constituted appropriate legislative content have been very much conditioned by the preferences of those in power, each time conceding just sufficient to gain the praise often of those who knew no better. 185 years after the Levellers' Putney debates where universal suffrage was proposed, what was referred to as the Great Reform Act of 1832 added just 7% of the adult male population to the electorate on the basis of a property ownership qualification. Step by step the country edged towards universal suffrage taking another 86 years for women, 50% of the population, to obtain the vote in 1918.

Thus it is of value to review what is contained in the proposals of the past and which aspects were made use of in legislation so as to identify what was ignored. One of the seminal documents in English constitutional history is the document "An Agreement of the Free People of England of 1649". This was an innovative Constitution written in a prison¹. John Lilburne, William Walwyn, Thomas Prince and Richard Overton, all of whom were Levellers, had been imprisoned in the Tower of London by Oliver Cromwell. While there, in May of 1649, they penned out a proposal called "An Agreement of the Free People of England". This document was a proposal for a written constitution for England. 40 years later parts were used in the English Bill of Rights of 1689 and the American Bill of Rights in the American Constitution of March 1789, some 140 years later.

They proposed that the purpose of the any parliament was:

(a) to conserve peace and commerce with other nations;

(b) to secure safeguards and security for the lives and persons of all people, their liberties, properties and estates as well as safeguards contained in the Petition of Right and,

(c) to raise revenue in support of these ends, these being expanding freedoms, redressing grievances and promoting prosperity.

They suggested revenue should be raised on the basis of a flat rate tax applied to estates. Current relevance of these considerations In terms of the current interests of freeholders within the statutory planning regime, two points stand out. One is from the "Agreement of the Free People of England of 1649":

"Parliament was to secure safeguards and security for the lives and persons of all people, their liberties, properties and estates as well as safeguards contained in the Petition of Right."

The other comes from the Petition of Right of 1628, that:

"No differential privileges according to status under the law."

Part of the problem is that at the time of the Bill of Rights in 1689, the relevant sections of the responsibilities of parliament with respect to properties and estates in the Agreement of the Free People of England of 1649, were dropped, probably with intent as opposed to oversight because of the then intense feeling with respect to the rivalry of Protestant and Catholic estate owners. Thus parliamentary abuse of the property rights of citizens could continue in various modes. However, these modes are in contravention of English Law and, in particular the Petition of Right clause that " No differential privileges according to status under the law". This would suggest that the Planning Statutes are interpreted and applied by local councils as well as imposed by central government in ways that are in contravention to the sense of the Petition of Right.

We can therefore observe that in 2010 (361 years after the writing of the "Agreement of the Free people...") under the Planning Statutes there is a continuing failure of parliament to secure safeguards for peoples' properties and estates because the Statutes uphold a range of procedures, applied by local authorities, that introduce differential privileges according to status under the law. This arbitrary practice contravenes the Petition of Right. Thus the interests of someone, or an association, presenting a planning application can receive privileged treatment while the interests of the owners of existing estates and properties can be ignored. One can extend this consideration by comparing it to criminal law and the act of robbery. Thus if something of value belonging to someone is taken, against their will, this is a criminal act. Part of the effect of such a criminal act is the impoverishment of the person who has lost the item of value. Similarly, decisions can be taken that have the same effect as such a criminal act in that the value of a possession can be reduced so as to impoverish the owner. Thus the denial of the means whereby freeholders can protect the value of their estates from the outcomes of harmful decisions based upon procedures of current legislation is a negation of the parliamentary responsibility to uphold the principle of:

"No differential privileges according to status under the law."

This has the effect of not safeguarding the properties and estates of the people.

The way in which the Planning Statutes are applied represents a defacto imposition of differential privileges under the law according to an unwritten code of status. A code of status simply indicates that the views of certain stakeholders will be taken into account whereas the views of other stakeholders are ignored. The most injurious element of planning legislation is the ability of local authorities to proactively reject the raising of objections to a planning application based upon the potential impact of a plan on house values. Thus the Planning Statutes underwrite the ability of Planning Committees to take decisions in the full knowledge that these are likely to be prejudicial to identifiable freeholders; they can take decisions, which under other circumstances would have outcomes that would be considered to be the result of criminal act, and not be required to provide restitution through compensation or through tort litigation. The pernicious aspect of this process of decision-making is that being void of any notion of community conscience and norms of social expectations, each decision is taken in the face of objections and, therefore, the likely impact of the decision is known and therefore the act of decision-making is pre-meditated

This discriminatory treatment of the expressed concerns and preferences of stakeholders distorts the overall balance of consideration and therefore corrupts the decision-making process.

Parliament's responsibilities

In order to be transparent as to the limits of parliamentary action and to prevent the continuation of the sort of abuse practiced today it would appear that it should be an expectation of freeholders that safeguarding property and estates should be a duty of parliament. Whereas one might argue that it is not the role of parliament to takes decisions that improve the value of estates it is clearly the case that it is not the role of parliament or local authorities to take decisions that erode or even destroy the value of estates. However, the whole system of macroeconomic management in the fiscal and monetary policy domains is geared to securing the value of economic variables such as levels of employment, aggregate demand, inflation and investment. It is paradoxical that the largest single economic variable, freeholder assets, of current value L4 trillion remains outside the consideration of parliament or the responsibility of government.

The Bank of England is rightfully championing the identification of sound macro prudential instruments to secure ways and means of avoiding the types of instability leading to the latest financial crisis. A fundamental aspect of securing a comprehensive range of macro prudential instruments, that can help secure improved levels of economic and financial stability, is the provision of due consideration and analysis of the role of stability in value of freeholder assets in our economy and to identify means of preventing erosion in that value.

In 2010 it is time to acknowledge that the Planning Statutes do not apply any relevant economic and financial criteria in the decision analysis of planning applications. They uphold decision-making based upon "procedures" that are so inequitable and arbitrary, that the Bank of England's quest for macro prudential instruments is doomed to failure until this source of abuse of the economics, finance and wealth of households is terminated. Beyond the monetary policy domain, the impact of fiscal policy that can exacerbate the circumstances of households suffering erosion in house values resulting from inappropriate planning decisions, can only be removed by bringing the Planning Statutes into line with the concept of English Law.

Planning Statutes consist of codified law, rules and procedures and they are alien to English Law. We have observed how such procedures can be interpreted "by the book" by officials and councillors who, it would seem, know no better. Indeed, they attempt to qualify themselves as good public servants and faithful representatives, not in terms of their ability to protect freeholders interests but rather, by justifying the prejudice they wreak on freeholders being the result of their following "procedural due process" within the terms of the Planning Statutes. Such procedures allow no degrees of freedom for interpreting the relevance of the law to any particular circumstance through a thoughtful and responsible process of assessment of any possible relative harm, if any, that decisions might impose. The community conscience, as in the jury in the case of general legislation, has an essential role to play in the very specific circumstances surrounding any particular planning application.

With 80% of the British electorate being made up of freeholders, it is time that parliaments and governments in the United Kingdom approach decision-making in a more responsible fashion, that is, in a way that represents the will of the people.