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The Elizabeth Pascoe Case and the Use of Eminent Domain in Britain:

The Spectator, a British conservative magazine, has an interesting article on the use of eminent domain in Britain (HT: VC reader Jonathan Falk). It describes a recent case where some 370 Victorian and Edwardian homes were condemned by the British government in order to promote "social cleansing," as it was called by a government minister. One of the homes in question was owned by Elizabeth Pascoe, a grandmother who successfully challenged the "compulsory purchase order" (the British term for eminent domain) targeting her home in a 2006 court case. The 2006 High Court ruling held that the CPO exceeded the government's statutory authority. A few weeks ago, however, the Court held that CPO is now legal, once the government revised its rationale for the taking. As the Spectator article points out, similar condemnations are becoming common in Britain. Reasonably well-maintained working class and lower-middle class homes and businesses are being condemned on the grounds that they must be removed in order to facilitate urban development.

The pattern is strikingly similar to the use of "blight" takings in the United States. What started out as an effort to condemn severely dilapidated or disease-ridden neighborhoods gradually led to condemnation laws that define "blight" so broadly that virtually any property can be condemned, including in such "blighted" locations as downtown Las Vegas and Times Square, a state of affairs I discussed in this article.

The British law at issue in the Pascoe litigation is very similar to broadly worded American blight condemnation statutes. It allows the government to condemn any land that is "under-used or ineffectively used." Obviously, almost any property can be described as "under-used" relative to some possible alternative. This gives British officials very broad, almost unlimited, authority to condemn any areas they want. Predictably, as the Spectator article suggests, such unconstrained power is often used to condemn the property of the politically weak for the benefit of well-connected interest groups. Once again, the pattern is similar to that of blight takings in the United States, which I discuss in the last Part of this article.

Unlike the United States with its Fifth Amendment Takings Clause and similar state constitutional provisions, Britain does not have a constitutional rule restricting the use of eminent domain to "public uses." Indeed, Britain famously lacks a written constitution of any kind. Under British law, property can be condemned for any purpose authorized by Parliament. For this reason, it's quite possible that the court decision upholding the CPO against Pascoe's home was legally correct. The legislation in question seems broad enough to justify the condemnation of almost any property the government might want. Indeed, Pascoe's latest legal challenge to the CPO apparently did not even try to claim that its purpose was illegal, but merely argued that the government had failed to meet certain procedural requirements.

But even if legally defensible, the Pascoe ruling reminds us that unconstrained condemnation authority is dangerous - on either side of the Atlantic.

REQUEST TO READERS: Can anyone point to a copy of the latest Pascoe decision that is available online? I would like to link to it.

vassil_petrov (mail):
I hope Ms. Pascoe appeal her case all the way through the ECHR in Strassbourg.
4.16.2009 2:02am
Litigator-London:
The original Pascoe decision may be found on-line at:
Pascoe v The First Secretary of State[2006] EWHC 2356 (Admin),[2007] 1 WLR 885

The Edge Lane redevelopment has generated a lot of planning litigation. I think the latest round is this one:-
Derwent Holdings Ltd v Liverpool City Council [2008] EWHC 3023 (Admin) (12 December 2008)

Land is a very scarce resource in the UK - as it is in most of Western Europe - compare the relative population densities of the EU member states to those of the 50 states of the USA.

The right balance between the public interest and the rights of individuals is hard to strike and I would be the last to claim that the UK has yet got the balance right.

Judicial Review is, of course a procedure which comes after lengthy administrative procedure.
4.16.2009 2:42am
Scot Peterson (mail) (www):
A quick, pedantic point, a more general one, and a reponse to your request:
1. Britain's consitution is, in fact, partially written but neither codified nor entrenched; it can be found in a number of statutes including the Magna Carta and even in treaties like the Treaty of Union with Scotland.
2. Property is not protected by the constitution, but there is a strong trend in British legal and political thought, which treats property rights as sacrosanct. That ideological position became the focus of political energy in the last century (taxation of capital gains, nationalization of industry (albeit with ample compensation) etc.). There is a lot of room for pretty dangerous behaviour by the government (from an American point of view). But there's also a really strong tendency to rely on personal restraint, rather than institutional constraints, to protect core values. (Dicey paraphrase: people who want to abolish the Roman Catholic Church aren't the type who become Pope.)
3. The courts keep pretty tight control of their judgments; I can't find the decision online, and I'm betting it may not be. You may have to pay to get a copy.
4.16.2009 2:53am
David Newton:
"Unlike the United States with its Fifth Amendment Takings Clause and similar state constitutional provisions, Britain does not have a constitutional rule restricting the use of eminent domain to "public uses." Indeed, Britain famously lacks a written constitution of any kind."

You have identified the largest problem in modern British law. The problem is that if we were to get a written constitution, it would not be a document like the US constitution. Rather it would be a document like the recent EU constitution. It would be long, complicated and full of exceptions to "rights", allowing governments to trample all over those supposed rights.

Something that should be said is that whilst the UK lacks a written constitution in the sense of having a single place to go where the constitution can be found, it should not be thought that the British constitution is entirely up in the air. There are fundamental acts of Parliament such as the Act of Settlement, the Parliament Acts, the Human Rights Act 1998 and the Constitutional Reform Act 2005. Those acts of Parliament contain provisions which define the succession of the monarchy, the powers of one chamber of the legislature, the length of a electoral term, the fundamental rights that people in the UK enjoy (although see above about what happens to "fundamental" rights in reality) and the structure of the judiciary.

The the three US amendments which we most urgently need are the first, second and fourth.
4.16.2009 2:59am
Ilya Somin:
whilst the UK lacks a written constitution in the sense of having a single place to go where the constitution can be found, it should not be thought that the British constitution is entirely up in the air. There are fundamental acts of Parliament such as the Act of Settlement, the Parliament Acts, the Human Rights Act 1998 and the Constitutional Reform Act 2005. Those acts of Parliament contain provisions which define the succession of the monarchy, the powers of one chamber of the legislature, the length of a electoral term, the fundamental rights that people in the UK enjoy (although see above about what happens to "fundamental" rights in reality) and the structure of the judiciary.

This is true, of course. But these acts of parliament, like other parliamentary legislation, can be amended by future parliaments at any time, using ordinary legislative processes. By contrast, a written constitution usually requires a constitutional amendment process to be changed, which mandates a supermajority greater than that needed to change ordinary legislation.
4.16.2009 3:27am
vassil_petrov (mail):
A constitution that is not entrenched is not a constitution. Period.
4.16.2009 3:49am
dearieme:
"Britain famously lacks a written constitution of any kind." No, it lacks a written Constitution of the American kind.

"A constitution that is not entrenched is not a constitution." On the contrary, every state has a constitution in the same way that every person has an accent - it's unavoidable.

The interesting question is how large a role the American Constitution plays in the American constitution. "A diminishing one" is a plausible answer.
4.16.2009 7:01am
Richard Aubrey (mail):
"social cleansing"
I suppose one could make the case that there are too many government lawyers in a neighborhood and it needed cleaning bad.
Geez, what a scary, evil phrase.
4.16.2009 8:00am
Lewis Maskell (mail):
Given the lack of protection the US Constitution offers on the issue of compulsory purchase/eminent domain, I have to say I rather suspect we will do better in the long run with a system that is relatively easy to legislatively amend when public anger is of sufficient scope to require change.
4.16.2009 8:23am
Litigator-London:
Those readers who wish to comment on the way we regulate land use could do well be starting with the Town &Country Planning Act 1990 which is a statute consolidating with amendments many statutes notably with the Town &Country Planning Act 1947.

The planning legislation tries to strike a balance between many conflicting needs. There are few in the UK who would argue that the green belts around major conurbations (where development is not permitted) or the planning restrictions on what one may do in an area of outstanding natural beauty, or the restrictions aimed at preserving the character of our cities, towns and villages are not beneficial.

Development planning is always controversial in a densely populated country. Try getting planning consent to build an oil refinery, or a nuclear power station, or a prison, or a young offenders' institution or a mental hospital over here and one will see how powerfully the planning legislation operates in favour of the NIMBY element. I live in a part of London where a major arterial circular road narrows from four lanes to two for a small stretch and which is officially th most dangerous road in the whole country. The authorities have been trying to widen the road since 1947 or thereabouts but have not yet succeeded in getting the plans approved and implemented. That is because of all the checks and balances built into the planning system.

Like all these things, most people are in favour of the system until it impacts on, say, a desire to paint their home shocking pink in a conservation area or to put some development they regard as inappropriate in their locality.
4.16.2009 9:35am
Richard Aubrey (mail):
L-i-L.
I've heard of NIMBY. As in Not In My Back Yard.

Then there's HAYBY. How About Your Back Yard.

Not so much, huh?
4.16.2009 9:53am
dearieme:
"the green belts around major conurbations (where development is not permitted)": pah! You can buy a house in the Green Belt, paying for the advantage to you of there being no development permitted, and then the Powers That Be can change their minds and lumber you with unwanted development. By "you" I mean me, so pah again.
4.16.2009 4:47pm
Randy R. (mail):
"Land is a very scarce resource in the UK"

So are historic homes from the victorian and edwardian period. I say, kick out the undesirables, and put in the gays. They certainly know how to turn a blighted neighborhood into a chic one almost overnight!\

Richard: ""social cleansing"
Geez, what a scary, evil phrase.


Totally agreed.

(And for the record, Borox cleansing is cheaper, and it actually works.)
4.16.2009 9:07pm

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