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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Haw, R (on the application of) v Secretary of State for the Home Department & Anor  EWCA Civ 532 (08 May 2006)
Cite as:  3 WLR 40,  EWCA Civ 532,  QB 780
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DIVISIONAL COURT
The Rt Hon Lady Justice Smith, the Hon Mr Justice McCombe
and the Hon Mr Justice Simon
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LADY JUSTICE HALLETT
| THE QUEEN ON THE APPLICATION OF HAW
|- and -
|(1) SECRETARY OF STATE FOR THE HOME DEPARTMENT
- and –
(2) COMMISSIONER OF THE METROPOLITAN POLICE SERVICE
Mr David Pannick QC and Mr David Pievsky (instructed by the Treasury Solicitor) for the First Defendant
Mr Adam Clemens (instructed by the Metropolitan Police) for the Second Defendant
Hearing date: 03 April 2006
Crown Copyright ©
Sir Anthony Clarke MR:
"(1) Any person who –
(a) organises a demonstration in a public place in the designated area, or
(b) takes part in a demonstration in a public place in the designated area, or
(c) carries on a demonstration by himself in a public place in the designated area
is guilty of an offence if, when the demonstration starts, authorisation for the demonstration has not been given under section 134(2).
(6) Section 14 of the Public Order Act 1986 (imposition of conditions on public assemblies) does not apply in relation to a public assembly which is also a demonstration in a public place in the designated area.
(7) In this section and in sections 133 to 136 –
(a) "the designated area" means the area specified in an order under section 138,
(d) references to any person organising a demonstration do not include a person carrying on a demonstration by himself,
(e) references to any person or persons taking a part in a demonstration (except in subsection (1) of this section) include a person carrying on a demonstration by himself."
"(1) A person seeking authorisation for a demonstration in the designated area must give written notice to the Commissioner …
(2) The notice must be given –
(a) if reasonably practicable, not less than 6 clear days before the day on which the demonstration is due to start, or
(b) if that is not reasonably practicable, then as soon as it is, and in any event not less than 24 hours before the demonstration is due to start.
(3) The notice must state -
(a) the date and time when the demonstration is to start,
(b) the place where it is to be carried on,
(c) how long it is to last,
(d) whether it is to be carried on by a person by himself or not,
(e) the name and address of the person giving the notice.
"Each person who takes part in or organises a demonstration in the designated area is guilty of an offence if –
(a) he knowingly fails to comply with a condition imposed under subsection (3) which is applicable to him …
(b) he knows or should have known that the demonstration is carried on otherwise than in accordance with the particulars set out in the authorisation … "
Subsection (8) provides for certain defences and subsections (9) and (10) are not relevant for present purposes.
"The Secretary of State may by order make such provision as he considers appropriate for transitory, transitional or saving purposes in connection with the coming into force of any provision of this Act."
The Commencement Order was made under section 178, which provides by subsection (8) that sections 132 to 138 will come into force on such day as the Secretary of State may by order appoint. It follows from the above that the Commencement Order was not subject to the Parliamentary annulment procedure.
"(1) The Secretary of State may by order make –
(a) such supplementary, incidental or consequential provision, or
(b) such transitory, transitional or saving provision,
as he considers appropriate for the general purposes, or any particular purpose, of this Act, or in consequence of, or for giving full effect to, any provision made by this Act.
(2) An order under subsection (1) may amend, repeal, revoke or otherwise modify any enactment, (including this Act).
The Commencement Order
"3(1) Subject to paragraphs (4) and (5), the following provisions of the Act shall come into force on 1st July 2005 –
(o) section 132(7) (demonstrating without authorisation in designated area);
(p) section 133 (notice of demonstrations in designated area) for the purpose of giving notice of a demonstration in the designated area which is due to start or continue on or after 1st August 2005;
(q) section 134(1) to (6), (9) and (10) (authorisation of demonstrations in designated area);
(r) section 138 (the designated area);
(5) The references in section 133(2) (notice of demonstrations in designated area) of the Act to a demonstration starting are to take effect as if they were references to demonstrations staring or continuing on or after 1st August 2005.
4(1) Subject to paragraph (2), sections 132 to 137 (demonstrations in the vicinity of Parliament) of the Act shall com into force on 1st August 2005, to the extent that they are not already in force.
(2) The references in section 132(1) (demonstrating without authorisation in a designated area) of the Act to a demonstration starting are to take effect as if they were references to demonstrations starting or continuing on or after 1st August 2005."
The construction point
i) The respondent's demonstration did not start after the Act received the Royal Assent or after the Act came into force because it had already started in June 2001.
ii) The language of section 132(1) of the Act is clear and unambiguous. It provides that any person who organises, takes part in or carries out a demonstration is guilty of an offence if "when the demonstration starts" authorisation has not been given under section 134(2).
iii) That the Act applies only to demonstrations which start after it came into force is underlined by section 133(2), which provides for a notice to be given not less than six days before the day on which or the time when the demonstration "is to start".
iv) A distinction is drawn in section 133(2), (3) and (4) between the day and time when the demonstration is "to start" and by whom and where it is to be "carried on".
v) Thus, the first step to be taken by a person who requires authorisation for a demonstration in a designated area is to serve a notice under section 133(2) which must state when the demonstration is to start. Section 134 applies if a notice complying with section 133(2) is received in time. In such a case the Commissioner must give his authorisation under section 134(2) but may impose conditions under section 134(3) and (4). It follows that authorisation is required in a case in which a notice under section 133 is necessary.
vi) Since notice under section 133 is only necessary where a demonstration is to start and not when such a demonstration is to continue or be carried on, it follows that the respondent was not required to serve a notice in order to continue or carry on his demonstration.
vii) It further follows that the respondent could not be guilty of an offence under section 132(1) because no authorisation was required in respect of a demonstration which had already started. As Mr Drabble put it, on ordinary principles of construction, an offence could not be committed if the moment by which authorisation was to be obtained, viz the start of the demonstration, occurred before the authorisation was required.
viii) Since section 132(1) of the Act is both clear and unambiguous and (in particular) clearly identified its purpose and, if construed in the way proposed, does not lead to any absurdity, let alone manifest absurdity, there is no room for any alternative purposive construction.
ix) McCombe J stressed the principle that in a case in which the liberty of the subject is concerned the court should give the words of the statute their natural meaning. He referred to the famous speech of Lord Atkin, albeit a dissenting speech, in Liversidge v Anderson  AC 206, where at page 244, he quoted with approval this dictum of Pollock CB in Barnard v Gorman (1850) 5 Ex 378:
"In a case in which the liberty of the subject is concerned we cannot go beyond the natural construction of the statute".
x) For the same reason it is not permissible to have regard to Hansard in order to ascertain the intention of Parliament as an aid to construction of the Act.
xi) Alternatively, if recourse is had to Hansard, the statement of the relevant Minister is not sufficiently clear and unequivocal to assist in construing the Act, especially having regard to the principle which was described in argument as the principle against penalisation under doubtful law. As Simon Brown LJ put it in R v Bristol Magistrates Court ex parte E  3 All ER 798 at 804:
"It is a principle of legal policy that a person should not be penalised except under clear law."
i) The statutory purpose of sections 132 to 138 of the Act was to regulate demonstrations in the vicinity of Parliament.
ii) The provisions of the Act were intended to control and regulate (a) the organisation of such demonstrations, (b) the taking part in such demonstrations and (c) the carrying on of such demonstrations in the designated area. The purpose of such control and regulation was not to suppress legitimate extra-Parliamentary opposition but because of Parliament's concern that the unrestricted exercise of freedom of expression so close to Parliament posed a threat to democratic freedom.
iii) The construction of the Act favoured by the majority (and summarised above) is contrary to the legislative purpose of sections 132 to 138, namely to regulate, not just some, but all demonstrations in the designated area.
iv) No rational basis has been suggested as to why Parliament should have intended entirely to exclude demonstrations which had begun before the commencement date of the relevant provisions of the Act. In the words of Ms Lieven's skeleton argument on behalf of the Secretary of State before the Divisional Court,
"It is simply nonsensical to suggest that Parliament would have brought in provisions to deal with [security problems caused by demonstrations] in the future but would have been content to allow an existing security concern to continue."
v) The language of section 132(1) was designed to focus on the time of authorisation. The words "when the demonstration starts" were inserted to make it clear that authorisation must be sought and given in advance, in contradistinction to during the course of a demonstration or retrospectively.
vi) In applying section 132(1) to a demonstration which started before the relevant part of the Act came into force, the Act (in the words of paragraph 13 of Mr Pannick's skeleton argument) effectively deems such a demonstration to start no earlier than the date of commencement. This was the argument accepted by Simon J in paragraph 76.
vii) The construction favoured by the majority leads to manifest absurdity. The mischief of the Act is shown by section 134(3) and the matters which the Commissioner can take steps to prevent by imposing conditions. There is no sensible purpose in being able only to regulate demonstrations which commenced after the Act came into force but not those which began before it came into force but continued thereafter.
viii) In any event the principle stated by Lord Browne-Wilkinson in Pepper v Hart  AC 593 at 640B-C, with which the majority of the House agreed, is satisfied here. That principle is that reference to Parliamentary material should be permitted " as an aid to construction of legislation which is ambiguous or obscure or the literal meaning of which leads to absurdity."
ix) The statements of the relevant Minister showed that Parliament intended that the authorisation of demonstrations in the designated area was to apply to existing demonstrations, including the respondent's demonstration.
x) As to the doubtful penalisation point, there is no reason in principle why, if Lord Browne-Wilkinson's other criteria are satisfied, the court should not look at Parliamentary material because the statutory provisions may have penal consequences, at least in a case where a literal construction may lead to absurdity.
xi) On this basis, the Commencement Order does not extend the scope of the Act but makes the position clear.
"(1) If the senior police officer, having regard to the time or place at which and the circumstances in which any public assembly is being held or is intended to be held, reasonably believes that –
(a) it may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or
(b) the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do,
he may give directions imposing on the persons organising or taking part in the assembly such conditions as to the place at which the assembly may be (or continue to be) held, its maximum duration, or the maximum number of persons who may constitute it, as appear to him to be necessary to prevent such disorder, damage, disruption or intimidation.
(4) A person who organises a public assembly and knowingly fails to comply with a condition imposed under this section is guilty of an offence, but it is a defence for him to prove that the failure arose from circumstances beyond his control.
(5) A person who takes part in a public assembly and knowingly fails to comply with a condition imposed under this section is guilty of an offence, but it is a defence for him to prove that the failure arose from circumstances beyond his control."
"Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context. The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful so long as it is remembered that the "intention of Parliament" is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is the subjective intention of the draftsman, or of individual members or even a majority of individual members of either House. These individuals will often have widely varying intentions. Their understanding of the legislation and of the words used may be impressively complete or woefully inadequate. Thus, when the courts say that such-and-such a meaning "cannot be what Parliament intended", they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning."