English Devolution and Community Empowerment Act 2026 — Third Supplementary European Convention on Human Rights Memorandum from the Ministry of Housing, Communities and Local Government

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ENGLISH DEVOLUTION AND COMMUNITY EMPOWERMENT BILL
European Convention on Human Rights – Lords Supplementary Memorandum
No.3

Introduction
1. This memorandum has been prepared by the Ministry of Housing, Communities
and Local Government and supplements the memorandum published on 27
November 20251 which addressed issues under the European Convention on
Human Rights (“ECHR”) in relation to the English Devolution and Community
Empowerment Bill (“the Bill”) as brought from the House of Commons to the
House of Lords.

2. This supplementary memorandum addresses the issues under the ECHR from
an amendment to the Bill which the Government has supported at Lords Report
Stage.

3. The amendments considered in this memorandum relate to new clause
(Secretary of State to have power to discharge statutory trusts) which engages
the following Convention rights: the right to a fair trial (Article 6), the right to
respect for private and family life (Article 8) and the right to peaceful enjoyment
of property (Article 1 of the First Protocol) . The government regards these
amendments as being compatible with Convention Rights for the reasons
outlined below.
Amendment introducing new clause (Secretary of State to have power to
discharge statutory trusts)
4. This new clause (Secretary of State to have power to discharge statutory trusts)
inserts new provisions into the L ocal Government Act 1972 (LGA 1972) as
sections 128A to 128H.

1 ECHR memorandum published on 27th November 2025 upon the Bill being brought from the House of
Commons to the House of Lords.

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5. The amendment grants a new power to allow the Secretary of State to release
land from a statutory trust held in trust for public enjoyment as an open space,
under section 164 of the Public Health Act 1875 and section 10 of the Open
Spaces Act 1906.

6. The new power is deemed necessary where a Local Authority has failed to
follow the statutory advertisement procedure set out in section 123(2A) of the
LGA 1972, required for disposals of open spaces owned by them. Currently
there is no way of releasing such statutory trusts if the statutory procedure is
not followed, meaning that the land is bound by the trust in perpetuity. This in
turn may hold up important development which may be in the public interest.
The amendment will address this lacuna in the current law.

7. The amendment provides that the Secretary of State is able to make a Statutory
Trust Discharge Order if he is satisfied that that the “Qualifying Conditions” are
met including public interest grounds, having regard to published guidance and
all other relevant matters have been taken into account.

8. The land would be released from the point of a Secretary of State’s Statutory
Trust Discharge Order. The government notes that this would have
retrospective effect in that it would change the previously definite and
predictable consequences of disposals ta king place before commencement in
a way that could not reasonably have been expected by those affected. The
government does not consider that this retrospective effect gives rise to
additional issues under the Convention.

9. It is the government’s position that the new power to discharge a statutory trust
is compliant with A1P1. Whilst the government’s position is that a public trust is
not a “possession”, the property rights of the owner of the land subject to the
statutory trust are clearly a “possession”. These measures are capable of being
operated compatibly with A1P1 (as A1P1 allows interference with property
rights in the public interest, subject to proportionality in any given case). The
government’s position is this po wer is clearly in the public interest and
proportionate to the aim it seeks to achieve. The creation of a statutory

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mechanism for releasing land from a public trust can only benefit the landowner,
as compared with the position that they currently face where no such
mechanism exists.

10. The government’s position is that there may be limited cases where Article 8 is
engaged but it is the government’s position that the new power to discharge a
statutory trust is compliant with Article 8. As above, this new power is in the
public interest and proportionate to the aim it seeks to achieve; the requirement
for the Secretary of State to take into account the public interest provides
sufficient safeguards.

11. There is an argument that a decision about whether to release land from a
statutory trust engages Article 6. The government’s position is the availability of
judicial review as a remedy is sufficient for compliance with Article 6. The
government’s position is the Secretary of State’s decision whether to grant or
refuse an application taken on public interest grounds having regard to any
published policy falls squarely within the category of case explained by Lord
Hoffmann in R (Alconbury Developments and ors) v SSETR [2003] 2 AC 295,
and by the cases which follow (see e.g. R (Adlard) v SSETR [2002] 1 WLR
2515, R (Begum) v Tower Hamlets LBC [2003) 2 AC 430), where a composite
procedure, involving administrative decision making followed by judicial review,
will suffice for Article 6. Provision is also made for the advertising of the
application and the making of representations to inform the a dministrative
decision-making.

Ministry of Housing, Communities and Local Government
14th April 2026