The strange Royal arrangement that keeps Bibby Stockholm afloat

Whenever you read about the Bibby Stockholm asylum barge, its location is given as Portland, Dorset. But the barge actually sits in the curious legal grey zone of crown land - and the chair of Portland Town Council is taking the government to court over mooring the barge in her town without bothering to ask the residents or local council. 

At the end of February, lawyers representing Parkes presented their arguments in an application for trial against Dorset council over the Bibby Stockholm. Against her, lawyers for the Home Office, Department for Levelling Up and Port Authority argue that she cannot take Dorset Council to court, because local planning laws do not extend to a barge moored on land owned by the Crown Estate. The complication here is that the land under the sea all around the UK does, indeed, belong to the Crown. But the Bibby Stockholm is not anchored in the seabed, but floats above it while tied - moored - to dry land. 

This is Parkes’ second legal challenge against the Home Office. Her previous claim was thrown out in a preliminary hearing in October last year, when she was told that questions over planning jurisdiction should be taken up with the local authority rather than the Home Office. 

Simultaneously, government lawyers argued that planning permission from the local authority was not actually required. Parkes’ lawyers argue that there is a ‘lacuna’ (gap) between the planning regime of the onshore local council and that of the Marine Management Organisation, and that the local authority planning regime should be extended to cover barges not tied to the seabed.

In a related case, on 27 February a High Court judge granted four asylum seekers permission to advance to trial in a judicial review against the Home Secretary over the use of RAF Wethersfield airbase to accommodate asylum seekers.  Like the Bibby Stockholm, RAF Wethersfield is on Crown Estate land, but not in the sea. 

To explain why Crown land was exempt from normal planning laws, the “doctrine of the King’s two bodies, the body politic and the body natural” was invoked, arguing that while the King’s ‘natural’ body may die, his “dignity is eternal”. 

According to Parkes’ barristers, DPG Law, “There is a planning challenge in relation to RAF Wethersfield but the situation is different – the Home Office there accepts that the local authority has planning jurisdiction but has used an exemption power via a Special Development Order, claiming that due to the asylum accommodation ‘emergency’ or ‘crisis’ they do not need to apply for planning permission through normal processes. That challenge is currently in the Court of Appeal.”

The engineless boat has been heavily criticised by NGOs and human rights organisations; on its first day housing asylum seekers, legionella bacteria was discovered in the water. In December 2023, Leonard Farruku, an Albanian national, died in a suspected suicide case on the Bibby Stockholm while waiting for his claim to be processed.

While the government’s reasoning for the boat being used to house asylum seekers is on the grounds of saving money for taxpayers, a Guardian Report from July last year cites analysis from NGOs Reclaim the Seas and One Life to Live which says that the most generous saving the Home Office can make by substituting hotels for barges is £9.28 per person per day, or £4,694 if the barge is at full capacity. The Home Office claimed in January that it is £20 cheaper per day (£120 compared to £140) than hotel accommodation.

The legal ambiguity of Crown Estate land

A surprising amount of the Bibby Stockholm legal challenge has revolved around the nature of land rights. The owner of most of the seabed around the UK to a 12 nautical mile radius is the Crown Estate, an ambiguous legal entity that is technically owned by whoever is the current Monarch, but whose aim is to make money for the UK Treasury.

The body dates from 1760 when King George III no longer wanted to pay for Parliament’s running costs, so he offered to put a large amount of private royal land into an independent body whose profits would mostly go to the Treasury. The Crown Estate describes itself today as “an independent commercial business, created by an Act of Parliament”. It owns over 650,000 acres of land in the UK, and around 15-25% of its profits are used to pay the Sovereign Grant Fund - a subsidy to the monarchy which amounts to £86.3m for 2023-24.

In March 2023, with the numbers of asylum seekers arriving by small boat increasing, The Home Office scrambled to find places to accommodate new arrivals. The Times reported that “Home Office officials have been ordered to find accommodation for at least 25,000 migrants from a list of disused crown properties… on an internal government portal that lists available sites.”

Lawyers for the defendants argued that Crown Estate land should not be subject to the Town and Country Planning Act, which defines ‘land’ as “any corporeal hereditament”, meaning anything that can be inherited. They argued that the Crown Estate is not inherited in the normal sense of the word, since it is always owned by ‘The Crown’ in its metaphorical sense as a symbol of the state. The “doctrine of the King’s two bodies, the body politic and the body natural” was invoked to explain that while the King’s ‘natural’ body may die, his “dignity is eternal”. 

“I really hope that the Bibby Stockholm experience has shown that using barges is good for no one: the asylum seekers themselves, the local community and also the public purse.”

The UK government has ‘permitted development rights’ to make changes to Crown land without obtaining planning permission from the Local Planning Authority, and awarded themselves further powers over Crown land in the Levelling Up and Regeneration Act 2023, which gives government departments the ability to seek planning permission from the Minister rather than a local planning authority if the development is of ‘national importance’. Marcus Jones MP suggested that these powers could be used “for development needed on Crown land to accommodate an influx of refugees” during the passage of the bill.

Since then, a number of local authorities have sought to block the use of hotels as asylum accommodation. In 2022, East Riding of Yorkshire Council, Ipswich Council, Stoke-on-Trent City Council and Great Yarmouth Borough Council, all secured temporary injunctions against housing asylum seekers in hotels. Putting an asylum barge on Crown-owned seabed therefore starts to look like a legal trick to avoid such challenges.

“Not a priority”

However, legal challenges like the ones brought by Parkes and her solicitors are leading to mounting costs and delays, and in January the Independent reported that the Home Office had “shelved plans to procure more barges to hold asylum seekers as the Bibby Stockholm has been beset by problems, delays and disputes.”  iNews also reported that an unnamed source at the department said the barge policy was “not a priority anymore.”

When asked if the Home Office were indeed rethinking their plans to house migrants on barges, a spokesperson said, “We have been clear that the use of hotels to house asylum seekers is unacceptable, and we are making significant progress with moving asylum seekers out of hotels, which cost UK taxpayers £8.2million a day. We continue to look at a range of alternative accommodation sites to house asylum seekers, including vessels which have been used safely and successfully by Scottish and Dutch Governments, and former military sites.”

Meanwhile, the Crown Estate insisted that the dispute was nothing to do with them. Refusing to provide a quote, the organisation noted as background information that the case was a matter for Portland Port and the Home Office, adding that the port did not require consent from the Crown Estate to be berthed on its property. Parkes’ lawyers revealed that there is no lease between Portland Port and the Crown covering the use of the Bibby Stockholm.

It is clear that the Crown Estate has granted Portland Port certain rights to construct new berths such as the berth where the Bibby Stockholm is moored. However it does seem that if the Crown Estate was not happy with how these powers were being used by Portland Port, it could object as the landowner, or seek to end the grant of those powers to the company.

Helen C Baron, a solicitor at DPJ Law who is working on the case told The Lead that “we agree that the approach of putting barges in the sea is so far allowing the Home Office to avoid planning controls, which would apply if the barge was almost anywhere else, including in a lake, river, canal or on land.” 

Baron says: “I really hope that the Bibby Stockholm experience has shown that using barges is good for no one: the asylum seekers themselves, the local community and also the public purse, given how expensive it has turned out to be.” She notes that the government has tried to find other locations to moor barges, which “seems to often also depend on the harbour authority themselves and whether or not they will back the local authority’s position and turn away the Home Office’s ‘business’ due to concerns raised.”

Baron points to the example of plans to moor another barge in the Royal Docks in East London which was successfully opposed by Mayor Sadiq Khan. The docks are on GLA land, over which he has authority. 

But the macabre approach of using undersea Crown land to detain asylum seekers - most of them survivors of harrowing overseas journeys to the UK - remains untested by courts, at least for the time being. As of the time of writing, the judge is yet to rule on whether Parke’s current case can go ahead.

The case brought by Parkes could result in a legal challenge that would stop the Home Office from housing around 300 asylum seekers on a barge in the harbour of Portland, a small promontory off the Dorset coast. If the legal challenges are unsuccessful, it could give the green light to the Home Office to construct more migrant barges on Crown Estate seabed, where they are not subject to planning restrictions. Incidentally, the Bibby Stockholm occupies the same spot as the former prison ship HMP Weare which was in Portland harbour from 1997 to 2006.