How to deal with the Devil’s details, clause by clause – the City of London’s offer to Occupy London

Two giant creatures are battling over hearts, minds, right and wrong. One is the City of London Corporation, the other Occupy London. The former is ancient, profoundly undemocratic, a malevolent and predatory power. The latter represents vast swathes of popular opinion, is a new political force and extremely democratic. The unexpected struggle between these two has turned British politics on its head. Occupy London has revealed the beating heart of the British establishment as a bungling wrong-footed fool. The established church, high representatives of capitalism and the political processes corrupted by corporate power have all come unstuck as a result of Occupy London’s simple act of encampment.

Occupy London has challenged the very methods by which politics is ordinarily done. In a few short weeks, it has become the focal point of progressive debate. The Archbishop of Canterbury and even the Leader of the Opposition have been bounced into making supportive commentary. The forces ranged against Occupy London have focussed on the lifestyles of the Occupationists themselves, rather than their actual complaints. Everywhere the Occupationists go, they receive overwhelming moral encouragement to continue the struggle. Disenchantment with Westminster has reached record proportions. What began with an unpopular and illegal war became entrenched with the perception that every last MP had fiddled their expenses. The Occupationists are give voice to the people shut out from economic power and political expression. The City of London acts for the forces of darkness.

Having finally woken from its slumber, the City of London realised that it had to act differently. It prepared legal proceedings against Occupy London. Then it prepared them again. The redrafting process went on and on. It issued a press release announcing that on Monday 31st October 2011, an eviction notice would be served on the encampment by St Paul’s Cathedral. Various newspapers, led by the Daily Telegraph, revealed that they generally conduct no fact checking by printing the story as a recent historical fact, despite nothing actually having happened. In the evening the City of London announced that it would serve its notice the following day. Then the authorities at St Paul’s Cathedral changed their minds and decided to withdraw from legal action against the people camped on its doorstep. This presented the City of London with a problem. The exact nature of the difficulty presented by not having the Cathedral on the City’s side must remain a matter of some speculation but it seems clear that the City was not prepared to plough ahead without the support of that particular church.

On Wednesday 2nd November 2011, the City met with Occupy London and made them an offer: if the protestors agreed to leave in the New Year, the City would not take any legal action. Simultaneously, the City broadcast this offer to the press and the media reported it as a victory for Occupy London. On Friday 4th November 2011, the City clarified this simple offer by sending through numerous strings to the solicitors acting for Occupy London, Bindmans. These strings were not reported to the press. The City knows that Occupy London makes all its decisions via its general assemblies using consensus to arrive at decision making. The City also knows that this process takes some time and has been reported in the established press as being prepared to wait for some days. This process is completely transparent because anyone can attend and participate. It is a public affair, much unlike the secretive nature of the City’s dealings. Therefore, there could be no legally meaningful reason why the clarified offer came with the words “without prejudice” attached. By attaching those words to the clarified offer, the City demonstrated either that it intended to frustrate the negotiating process or that it had been disingenuous when it declared that it understood the methodology of the general assemblies. Whichever is correct, there are no secrets inside Occupy London (Begging the question as to why undercover police are amongst us; yes, we know you.) and therefore all communications with the Occupation are public.

The current version of the offer from the City of London is convoluted, unnecessarily complicated and includes various issues which are not pertinent to the dispute over who can use the land and in what way. Here are all the clauses of the current offer, emboldened. Plain text is my commentary.

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(1) Acknowledgement that [i] camp is on highway; [ii] the City of London Corporation have title to sue for possession; [iii] agreement is to avoid litigation and potentially enforced eviction; and [iv] the City of London Corporation has acted in an entirely proportionate way concerning regard for protesters human rights.

(1)[i] The City of London can prove this in court, if they want. An agreement could be made without the Occupationists agreeing anything of the sort. Including this sub-clause in the negotiations demonstrates that the City is setting up its legal case. These negotiations are a precursor to litigation. The City will doubtless rely on them during litigation. Therefore, they can be seen as part of the litigation process. Occupy London neither needs nor is properly qualified to declare that the encampment is on a highway. If the land in question is a highway, it is not one which ordinarily allowed vehicular access because one end is blocked off with bollards belonging to the City of London. If it is a highway, it is one which is only suitable for pedestrians, bicycles, motorbikes, horses etc., all of which can still pass through the land. However easily observable these facts may be, they do not automatically lead to a pre-trial requirement that Occupy London concedes part of the City’s legal claim. In the language of litigation, Occupy London does not need to admit or deny what is a highway at all but can instead put the City to strict proof, which means that the City of London has to prove it in court if it wishes to base a legal claim on it. Agreements to avoid litigation do not normally include concessions by one side or another to a legal case. Here the City is demanding that Occupy London throws in the towel on a point which, if the City’s case is correct, would be easy for the City to win in court.

(1)[ii] Again, this is a matter for the City of London to prove in court. There is no need whatsoever for the Occupationists to acknowledge it in order to reach an agreement with the City of London and avoid litigation. If the City of London is sure of its title, it ought not need to obtain agreement from anyone as to it. If it wants to prove it publicly, then it must have the means to do so from within its considerable archives. It has not done so. Instead it appears to rely on Occupy London being inexperienced in the process of litigation. There is no need to admit or deny this claim, the City can be put to strict proof.

(1)[iii] This sub-clause may appear to state the obvious but is necessary for the agreement to have clarity. An agreement of this sort, more commonly known as an out of court settlement, is a contract. Contracts require clarity.

(1)[iv] No, the City of London has definitely not acted in a proportionate way to the human rights of the Occupationists. The Occupation began at St Paul’s Cathedral because the City of London police kettled the protestors there and prevented them from leaving. The protestors had been entirely peaceful. There was no need for that kettle whatsoever. During its existence, the police had the affront to use a giant LED sign to inform their captives that they were being “contained to prevent a breach of the peace”. In fact the only violence of the Occupation occurred when the police started to push, punch and kick their way through the peaceful crowd. This was not proportionate to anything at all! It was just plain wrong stuff and its all been captured on video.

The City of London also closed the public toilets nearest to St Paul’s Cathedral before the Occupation and have not fixed them since. This has made it difficult for anyone homeless in the City to relieve themselves without committing an offence. The Occupationists have been living on the streets of the City for some weeks now but have organised their own toilets due to the lack of public facilities.

Occupy London’s attempts to communicate with the City of London were ignored for two weeks. The City of London communicated with third parties rather than make contact with the Occupation, despite there being a publicly advertised email address to make contact with.

Attempting to incorporate human rights issues into an agreement is folly on the City’s part. There may well be a number of human rights issues relating to their conduct but it is certainly worth quoting Article 21 of the Universal Declaration of Human Rights:

Article 21.

  • (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
  • (2) Everyone has the right of equal access to public service in his country.
  • (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Clearly the City of London Corporation plays a major function in the governance of the affairs of this country. Yet its authority is not based on the will of the people expressed in elections by universal and equal suffrage. Corporations get more votes than human beings in elections to the City of London Corporation.

(2) Acknowledgement that Paternoster Square should be re-opened without delay and without threat of unlawful occupation to help restore the ordinary life of the community.

Paternoster Square is not the City of London’s concern – they don’t own it, and the occupation isn’t preventing it from being reopened. It should be reopened without delay. Its owners closed it themselves. They have been assisted by City of London police to staff its barricades. No attempt has actually been made to enter this land. Its closure has nothing to do with Occupy London.

With the inclusion of this clause, the City waves the Stock Exchange’s flag. The Stock Exchange is housed in Paternoster Square, as is Goldman Sachs. These monstrous beings are perfectly capable of taking their own decisions. The City of London should assess the facts on the ground. The key fact is that there has been no attempt to breach the barricades placed around Paternoster Square. Even on the first day of the Occupation, when people circled Paternoster Square twice and their numbers would have made it easy to enter, no entry was attempted. Therefore, there is no justification for the City’s police force to be manning the barricades. The City can simply withdraw this police presence, if it is concerned about the expense. They have been heavily policing an empty square but only leaving a token uniformed presence at the encampment outside.

In every other local authority area in the land, the local authority would simply say that private land was a matter for the private land owner. In the City of London, the local authority fights the private land owner’s battle for them.

(3) Restoration without delay of appropriate London Fire Brigade access over St Paul’s Churchyard.

The Occupation has worked with the fire brigade to provide access where necessary and has been addressing any concerns they may have had on a swift time frame. Access for vehicles is only blocked by City of London’s removable bollards.

(4) Reduction in footprint of camp to permit (3) above and to facilitate greater pedestrian use of this busy thoroughfare such that no greater area has tents and ancillary structures and equipment than as shown on the attached plan, which shall also be delineated by tape on the ground.

Any reduction to permit point (3) can be discussed with the fire brigade and will likely be facilitated. Tape has delineated the current size of the Occupation and has been respected by campers.

Occupy London is not yet in receipt of the “attached plan”! However, it was indicated by a City of London representative that this would be half way between the edge of the raised area (St Paul’s land) and the pillars outside the commercial premises (i.e. M&S, Starbucks and NatWest). The City of London should publish this plan for all to see. That would assist the decision making process because people gathered in general assembly would be able to see the plan.

(5) Agreed all tents structures and equipment shall be removed voluntarily and peaceably on or before the 31st December 2011.

This is the only clause which the City of London has been happy to discuss in public with the media. If this is all they want to discuss, why have they attached all these other clauses to their offer?

It seems to me that it is a little harsh to allow the Occupationists to celebrate Christmas in camp but not New Year. New Year is traditionally a time when people do gather on the streets. Excluding New Year from the agreement appears designed to provoke a flash point between an inevitable gathering of people at a conspicuous location and the police. It would be more sensible to shift the date for departure by a couple of days, say to 2nd January 2012.

(6) All occupiers and owners of the tents, structures and other equipment agree via their Assembly, and their lawyers acting for them, that they understand they are bound by this Agreement and acknowledge it can be referred to and relied on in any court proceedings.

There’s nothing of significance in this clause. Its inclusion is a good idea. Perhaps it would be churlish to point out that it should really include the City of London as being bound by the agreement.

(7) Acknowledgement by the protesters that the City of London has fully vindicated their right to engage in lawful protest.

What on earth is the point of this clause? It is completely separate from an agreement required to head off litigation. How on earth could anyone agree to it, when they have been kettled, slurred in the media at the City’s behest and threatened with litigation? Whichever City solicitor drafted this obviously doesn’t get out much! Only a robot programmed for subservience would agree to this sort of nonsense. Including this red rag attempts to trip up a possible agreement.

(8) Acknowledgement that the protesters will maintain the tents etc in a manner which will not give rise to any environmental and/or health nuisance and they will take immediate steps to remove all posters etc exhibited on other peoples’ property and buildings.

Posters that may be attached to other buildings and property should be dealt with by their owners, who can make their own complaints. The Occupation has been working from the beginning to avoid environment, health and other nuisance issues and should be happy to continue to do. The City of London should only speak for the land it owns, and should state publicly precisely what land this is.

(9) The protesters agree they will not erect any other tents etc or camp elsewhere in the area of the City of London.

Some of the protestors have given up their homes in order to live at the Occupation. The City of London does not object to people sleeping rough on its streets. People have done this for many many years. Why shouldn’t they use a tent to protect themselves from the elements? Why should there be a distinction between one set of homeless people and another? This clause suffers from ambiguity. Does it mean that a protestor cannot set up a tent in a privately owned space with the landowner’s permission? Were the City of London to precisely state which land it owns, the ambiguity could be extinguished.

(10) The protesters acknowledge the right of City of London to seek quia timet injunctive relief in respect of any other areas of highway in the City or that are owned by City of London and this agreement is entirely without prejudice to such rights.

Despite latin being banned from civil proceedings in 1999, the City of London still communicates with it in pre-litigation negotiations. Anybody, corporeal or corporate already has the right to go to court over land that they own. This is a pointless clause.

(11) The protesters acknowledge the camp, each individual tent and the related equipment are unauthorised development under the Planning Acts and would not get planning permission if applied for.

The encampment has proved itself to be a valuable vehicle for public protest. It was never intended to be a permanent development. The rights to assemble and to free speech are not normally subject to planning laws.

(12) The protesters agree to any court order which would give effect to the terms of this agreement particularly with regard to (but not limited to) obtaining possession of the highway.

Another meaningless clause. Agreement is not required for a court order to have the force of law.

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These clauses contain much that is not in the spirit of negotiation but in the spirit of getting ready for litigation. The actual offer on the table is not the offer publicised to the media. At best, this approach is disingenuous. At worst, it is a completely cynical exercise. Reading through all the clauses in the knowledge of the method by which the Occupation makes its decisions – agreement by everyone – it is clearly designed to fail.

Occupy London has shone brightly in its short life so far. I hope it continues to shine and that its light will change the way we do politics and economics. I hope the Occupationists seize the chance to talk to the City of London, even it appears as the Devil incarnate. Everybody should talk to everybody. As the powers that be at St Paul’s Cathedral have said, jaw jaw is better than law law.

The Occupation probably can’t sustain itself through a British winter. Leaving this particular encampment in the New Year would be a good strategic move. Since the City of London appears to be ready to negotiate over our immediate departure, the Occupation should teach the City of London how sensible and reasonable people negotiate. We can simplify the issues to those which are necessary for agreement and leave the rest out. The current offer is an unreasonable offer prepared by an undemocratic institution seeking to only benefit the corporations within its area rather than the public.

I propose Occupy London makes a proper offer, which can be agreed and honoured for both sides, without conceding any of its fundamental arguments with the City of London. How about the following:

  1. Occupy London agrees, via its general assembly, to vacate its encampment at St Paul’s Cathedral on 2nd January 2012.
  2. The City of London Corporation agrees not to seek any form of court order for the removal of the encampment at St Paul’s Cathedral until 2nd January 2012.

Is there anything else that needs to be said? Both sides need to act with dignity. The alternative is a mêlée of police violence on the steps of one of Christendom’s iconic cathedrals, which neither side wants to see. The only violence that has occurred to date has been visited on people by the police. If there is anything else that needs to be added, the burden is on the City of London. It is the body that asserts its power over others. It is undemocratic. It has much to justify and explain about its overly secretive nature.

16 Responses to How to deal with the Devil’s details, clause by clause – the City of London’s offer to Occupy London

  1. Good article. Personally, I don’t feel there is a need to set a date for leaving. Only when goals are achieved should the occupation cease.
    Being at St. Pauls is symbolic in many ways and translates well for the Global movement.

    • Scrapper Duncan

      I agree in principle. I just suggested that most of us are not prepared for a British winter. We’d need expedition grade equipment. We don’t even have braziers to keep warm. Having been homeless myself and sometimes a rough sleeper in the winter of 1998, I know that there is only one reason people stay on the streets: having nowhere else to go. If we could organise our camp differently, we could move. If we don’t negotiate with the City of London Corporation, they will evict us and the police will be violent.

  2. David Allen Green

    I agree – nothing more needs to be said.

  3. The City of London Corporation have showed themselves to be:
    1. Fiercely secretive
    2. Undemocratic
    3. Not open to having meetings in public
    4. Acting on behalf of companies and appear to be using public money to do this.
    Looking the the clauses above, it is quite clear that their legal challenge is full of holes, otherwise why would they be asking for Occupy London’s help!? Your proposal seems pragmatic and straightforward, and the COLC would be foolish not to allow a democratic citizens protest to continue in these terms.

    • Scrapper Duncan

      I’m off site at the moment. Roger, perhaps you could put my proposal to the general assembly. If we are to negotiate with the City of London, which seems sensible to me, we must make them an offer.

  4. I like your version more than theirs but I think you need a bit more:
    Quickly
    1. Some kind of recitals as a preamble that says what this is all about. eg “Whereas Occupy London is a broad movement some of whose members are camping outside St Pauls and the Corporation of London is the local authority and Highway Authority, and they each wish to (a) respect the right for lawful protest (b) provide for that protest to come to an end in due course in an orderly fashion without the need for litigation or physical enforcement (c) set out the conditions on which it has been agreed the occupation will continue in the meantime.”

    2. I don’t think it’s unreasonable that some kind of conditions be recorded. The main ones seem to be the size of the camp and the need for reasonable response to fire brigade requests. The Corp can quite reasonably say it isn’t enough to say you’ve acted ok so far, it needs to be part of the agreement for the future if you are making one.

    4. I think you’re wrong about the quia timet point (not legal latin, though I think it has its place). What they’re worried about is argument this will allow you to camp anywhere in the city, that they’ve given general licence. It’s a bit remote but there could be some risk there. What they’re getting at can be met by simply saying “This agreement concerns only the camp at St Pauls and not any other camp or occupation that Occupy London members or similar groups have set up or may set up anywhere within the City of London”.

    • Scrapper Duncan

      I understand your point about a preamble but then again what is the point of it? The terms of any contract must be certain and clear to be enforceable. There’s no issue about some kind of conditions being recorded but Occupy London hasn’t been sent any plan by the City of London. The Occupationists can’t agree to unknown conditions!

      I don’t see any need for obfuscatory latin and the risk that an agreement will create a general licence is far too remote. Whosoever might be included on the side of Occupy London can hardly speak for all other groups in the City of London. If, as seems likely, the City of London do not go to court seeking possession of land which it has title for and refuses to say precisely which land it owns in the City, it is difficult to see how anyone could agree not to camp on their land.

      • Richard Masters

        Point about a preamble is to provide context: if this document were to end up being argued about in court then it’s sensible to try and avoid arguments along the lines of “well that was agreed on the understanding that x, because the situation was y, what this was all about was z, so you have to interpret it in the light of that”. Construction in the light of the matrix of fact is the rule, and the more clearly the fundamental, basic facts are spelled out in the agreement the better. I think some kind of short and clear preamble could work to your advantage, particularly getting something about respecting your right to protest in there.

  5. Thank you very much for this it has been really helpful in understanding what it is the City of London has actually offered. It does seem to me though that two issues are getting rolled into one here. One is the response to the CoLs offer and the other is the strategy of the occupation. You may well be right about the ability to sustain the occupation through the winter but isn’t that a decision to be made by the GA at a point when people feel they have had enough? It just seems to me that if you define the strategy in response to the CoLs offer then you are playing the game on their terms.

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  7. Excellent blog Duncan.
    Helped to sort out my questions about the legal issues. I am prepared for winter, but I do only manage about 50% occupation. Planning to be on site full time from 18 Dec to 4 Jan.

  8. Totally agree with Dan B – but Scrapper – hey thanks for filling us in with intelligent pragmatism…. on the issue of “can we make it through the winter” – my 93 yr old gran is presently knitting woollen hats for ppl @ Occupy LSX – she normally knits for African kids but saw u all on TV and reckons “by gad – they must be getting a chill” – I think u underestimate the potential support u would get as it gets colder… look @ OWS – extreme temperature drop n they still managed to keep going – also excellent way to to bring in the OAPs who are part of the 99% dontcha think? :)))

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