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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 >> Gallastegui, R (on the application of) v Westminster City Council & Ors [2013] EWCA Civ 28 (29 January 2013)
Cite as: [2013] 1 WLR 2377, [2013] EWCA Civ 28, [2013] BLGR 337, [2013] HRLR 15, [2013] 2 All ER 579, [2013] WLR(D) 45, [2013] WLR 2377

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Neutral Citation Number: [2013] EWCA Civ 28
Case No: C1/2012/1055


Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :




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First Interested Party

Second Interested Party


(Transcript of the Handed Down Judgment of
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Ms Jessica Simor and Ms Samantha Knights (instructed by Bindmans LLP) for the Appellant
Ms Nathalie Lieven QC, Ms Jacqueline Lean (instructed by Westminster City Council) for the Respondent
Mr Adam Clemens (instructed by the Directorate of Legal Services) for the First Interested Party
Mr Jonathan Swift QC and Miss Deok-Joo Rhee (instructed by Treasury Solicitors) for the Second Interested Party
Hearing dates: 17 & 18 December 2012



Crown Copyright ©

    Master of the Rolls:


  1. The claimant is a peace campaigner. For the past 6 years she has been carrying out a 24 hour vigil in Parliament Square under authorisations issued pursuant to section 134 of the Serious Organised Crime and Police Act 2005 ("SOCPA"). This appeal concerns the compatibility with articles 6, 10, 11 and article 1 of Protocol No 1 of the European Convention on Human Rights ("the Convention") of Part 3 of the Police Reform and Social Responsibility Act 2011 ("the 2011 Act"), which came into force on 19 December 2011. Section 143(1) of the 2011 Act gives power to a constable or an "authorised officer" who has reasonable grounds for believing that a person is doing, or is about to do, a "prohibited activity" to direct the person to cease doing the activity. A "prohibited activity" is an activity in "the controlled area of Parliament Square" which is defined as the central garden of Parliament Square ("PSG") and the footways that immediately adjoin it. It includes erecting or keeping in the controlled area "any tent" or "any other structure that is designed or adapted (solely or mainly) for the purpose of facilitating sleeping or staying in that area". Section 143(8) provides that a person who "without reasonable excuse" fails to comply with a direction under subsection (1) commits an offence. Section 145 gives power to a constable or authorised officer to seize and retain a prohibited item that is on any land in the controlled area of Parliament Square if it appears that the item is being, or has been, used in connection with the commission of an offence under section 143(8). An "authorised officer" in relation to any land in the controlled area of Parliament Square means a person authorised by the "responsible authority"; and a "responsible authority" means the Greater London Authority ("GLA") for any land comprised in the PSG and Westminster City Council ("Westminster") for any other land.
  2. The Divisional Court (Sir John Thomas, President of the Queen's Bench Division and Silber J) rejected the claimant's central submission that sections 143 and 145 of the 2011 Act are incompatible with the Convention. She appeals against this decision, with the permission of Laws LJ.
  3. It is not in dispute that articles 10 and 11 of the Convention are engaged in this case. These provide:
  4. "Article 10 – Freedom of expression
    1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
    2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
    Article 11 – Freedom of assembly and association
    1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
    2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."

    Background to the 2011 Act

  5. The relevant background is explained by Leith Penny, Strategic Director for City Management employed by Westminster and Simon Grinter, Head of Resilience and Facilities Management employed by the GLA. Mr Penny says that Westminster had for a number of years considered that it was necessary to improve the management of protests in Parliament Square. It had been particularly concerned about the stationing of tents and other structures on the pavement surrounding PSG which it considered had "a disproportionate effect on amenity and the right of the public to the use and enjoyment of the highway". In 2002, Westminster sought an injunction pursuant to section 130 of the Highways Act 1980 ("the 1980 Act") and section 222 of the Local Government Act 1972 ("the 1972 Act") to require Brian Haw (who had been protesting in Parliament Square for about 15 months) to cease obstructing the highway. Westminster is the highway authority in relation to the pavement around PSG and is obliged by section 130 of the 1980 Act to protect the right of the public to use the highway. Section 222 of the 1972 Act gave Westminster the power to commence proceedings in the performance of their functions to prevent the stopping up or obstruction of the highway.
  6. The injunction proceedings were dismissed on the grounds that there was no pressing need to interfere with Mr Haw's article 10 right of freedom of expression.
  7. In 2011, Westminster applied again for an injunction under section 130 of the 1980 Act. These proceedings have not reached court, almost certainly because they have been overtaken by the passing of the 2011 Act with which the present proceedings are concerned.
  8. In the years preceding the issue of the 2011 proceedings, Westminster discussed with the relevant Government ministers the difficulties of managing protests in Parliament Square and the need (as they saw it) for additional statutory powers to deal with them.
  9. Mr Grinter describes the problems created by the occupation of PSG by a group known as "Democracy Village", which began on 1 May 2010. The protest rapidly escalated to become an encampment comprising in excess of 40 tents which occupied approximately 70% of the central grassed space. They were evicted on 22 July 2010, almost three months after the issue by the GLA of possession proceedings. Mr Grinter contrasts this with the regime under the 2011 Act which provides for immediate removal of tents. He explains that PSG is classified as grade 2 on English Heritage's register of parks and gardens of special historic interest and is part of the Westminster Abbey and Parliament Square Conservation Area. The gardens are used extensively by members of the public for a large range of purposes, including protests and assemblies. They are also used by large numbers of tourists wishing to observe the surrounding buildings and the monuments of PSG.
  10. Mr Grinter says that the occupation by the Democracy Village created a public health hazard. There are no public water supply or sewerage facilities at PSG. As a result, make-shift toilet facilities were created. Considerable physical damage was caused by the occupiers. The possession order obtained against the Democracy Village was executed on 22 July 2010. Following their eviction, a number of the protesters simply moved their tents on to the pavement where they continued their protest. Notwithstanding the terms of the injunction prohibiting further trespass on PSG, it was clear that, without a physical barrier, PSG would soon be occupied again, either by Democracy Village or another protest group. Accordingly, fencing was installed and about 20 full time security staff were deployed in PSG to ensure that the security fencing was not breached. This number was gradually reduced to two full-time staff by May 2011.
  11. The Democracy Village occupation of PSG demonstrated the inadequacy of the previous law under which civil proceedings for possession were required with all the attendant delays and costs. Mr Grinter put it this way at para 5 of his statement dated 6 February 2012:
  12. "The GLA considers that this [new and] more robust legal framework is necessary because of the physical impossibility of stopping permanent camping without retaining long term fencing and because the existing civil law remedy is inadequate due to the time scales involved and significant expense of evicting such encampments."
  13. Because of the real likelihood of re-occupation by Democracy Village or some other protest group, it was decided to retain the fencing and security staff within the PSG until Part 3 of the 2011 Act came into force. On 16 January 2012, the protesters' tents on the pavement around PSG (save for the claimant's) were removed by the police under the provisions of the 2011 Act. As a result, the area around PSG became relatively free of tents for the first time since May 2010. The fencing was taken down on 5 February 2012, but 24 hour security staff remain in place.
  14. Mr Grinter says that it is imperative that the provisions of Part 3 of the 2011 Act are "rigorously" enforced to avoid similar occupations to that which occurred in May 2010 which "would cause inevitable damage to PSG, prevent the public and other authorised persons or groups from using it and probably require the area to again be closed and fenced off".
  15. The facts relating to the claimant

  16. The claimant's principal campaign, which started in 2006 and was brought to an end on 3 May 2012, was known as "Peacestrike". Its aim was to support initiatives for peace and raise public awareness. She also maintained vigils for the people of Gaza and the Tamils in Sri Lanka. She always had permission under SOCPA for her protest. There has never been any suggestion that she breached the law. When directed to move on 3 May 2012, she complied with the direction. Parliament Square is a very significant location for political campaigners, situated as it is close to the Houses of Parliament. It was an integral part of her protest that she maintained a presence outside Parliament aimed at providing a constant reminder to those in power of the folly of war and armed conflict, including the UK's participation in such conflict. In her view, the impact of her protest would be significantly diminished if she only carried it out intermittently; its essence lies in its sustained and 24-hour nature. Moreover, in practical terms, it would be impossible for her to carry out a daily protest as a means of ensuring a sustained presence; the current daily cost of commuting between her home and Parliament Square is about £55. For this reason, in order to carry out a sustained protest, she says that it is essential that she use a tent. Westminster and the GLA contrast her position with that of another protester, Barbara Tucker. Ms Tucker had previously camped in Parliament Square for several years. She has continued to protest day and night in the Square, but since 16 January 2012 has done so without using a tent or sleeping equipment.
  17. Summary of the claimant's case

  18. Ms Simor submits as follows. (1) Section 143 imposes an obligation on a constable or authorised officer to issue a direction in the circumstances specified in subsection (1) and no question of discretion arises. (2) Section 143 can interfere with the exercise of article 10 and 11 rights where a person wishes to conduct a protest by his or her presence in a tent or other sleeping structure and this form of protest is essential to the protest that they wish to make. (3) The limitation on a person's article 10 and 11 rights which results from the issue of a direction under section 143(1) is not "prescribed by law", because the circumstances in which it is unlawful to protest with a tent are not sufficiently clear. (4) Sections 143 and 145 do not pursue a legitimate aim or specific pressing need (compatible with democratic values): the need identified is merely the protection of aesthetic values. (5) Even if the measures do meet a legitimate aim, they are not necessary or proportionate. (6) In any event, the measures do not satisfy the State's positive obligation to facilitate the exercise of article 10 and 11 rights. (7) There is no access to courts as required by article 6 in relation to a direction made under section 143(1) or a decision to seize made under section 145.
  19. Construction of section 143 of the Act: obligation or discretion?

  20. Ms Simor submits that the constable or authorised officer is obliged to issue a direction under section 143(1) in the specified circumstances, so that no question of discretion arises. She also submits that Parliament's intention in enacting the 2011 Act was to prevent the use of tents and sleeping in Parliament Square. She relies on the principle that powers conferred by a statute must be used to achieve the statutory purpose for which they were conferred: Padfield v MAFF [1968] AC 997. The words and context of section 143 are clear: Parliament has prohibited the activities set out in section 143(2) and conferred a power on the relevant authorities by section 143(1) to prevent or bring an end to those "prohibited activities". She goes so far as to say that a constable or authorised officer who decided not to exercise the power would be acting unlawfully.
  21. She makes the following particular points. First, the activities are described as "prohibited activities". If Parliament had intended that "prohibited activities" were to be permitted in certain circumstances, it would have said so. Secondly, she relies on the heading to section 143 as an aid to construction: see per Lord Hope in R v Montila [2004] 1 WLR 3141 at paras 34 and 36. The heading reads "Prohibited activities in controlled area of Parliament Square". Thirdly, she relies on certain contextual materials including the Explanatory Notes to the Bill, the Home Office Departmental Guidance, the Operational Planning Framework dated 19 November 2011 and the letter dated January 2011 from Nick Herbert, Minister of State for Policing and Criminal Justice, Home Office to the Chair of the Human Rights Joint Committee. All of this material shows that it was the intention of Parliament that the erection of tents or other structures designed to facilitate or enable sleeping and staying in the area should be prohibited.
  22. She further submits that the use of the word "may" in sections 143(1) and 145(1) does not necessarily mean that the provision confers a discretion and does not impose a duty: see, for example, Padfield v MAFF (supra), Credit Suisse v Allerdale Borough Council [1997 QB 306, 333G-334A and Singh v Secretary of State for the Home Department [1992] 1 WLR 1052, 1056F-G.
  23. In my view, section 143(1) confers a power to make a direction in respect of a prohibited activity; it does not impose a duty to do so. Padfield does not support the claimant's case that "may" means "shall" in section 143(1). The question at issue in that case was the proper interpretation of a statutory provision which stated that "a committee of investigation shall.....(b) be charged with the duty, if the Minister in any case so directs, of considering.....any....complaint.". One side argued that this gave the Minister an unfettered discretion to refer or not to refer a complaint to the committee. The other side contended that it imposed on the Minister a duty to refer every genuine and substantial complaint to the committee. The House of Lords rejected both contentions. As Lord Reid said at p 1030C, Parliament conferred a discretion, but did so "with the intention that it should be used to promote the policy and objectives of the Act". In my view, Padfield supports the proposition that the discretion conferred by section 143(1) should be exercised so as to promote the policy and objectives of the 2011 Act. It does not, however, support the submission that section 143(1) confers no discretion at all. If Parliament had intended that a direction should be given in all cases, it would have used the word "shall". That is the obvious way of giving effect to an intention to impose an obligation. As a matter of ordinary language, the word "may" connotes the existence of a discretion.
  24. The use of the term "prohibited activity" does not indicate that Parliament necessarily intended that the power should be used in all cases. The term is shorthand to describe the activities which, if a direction is given, are prohibited. The same applies with regard to the heading to section 143. The activities are not prohibited in any particular case until and unless a direction is given under section 143(1). The scheme of the section is that a prohibited activity becomes unlawful if and when a person fails without reasonable excuse to comply with the direction.
  25. Further support for the view that section 143(1) confers a discretionary power is to be found in section 144(6) which provides that a direction "may be withdrawn or varied by the person who gave it". This power is consistent with the power to give a direction being discretionary; it is not consistent with that power being mandatory. It would be strange if Parliament had intended to confer a discretion to withdraw or vary a direction that had been given, but not to confer a discretion to decide whether to give a direction in the first place.
  26. But I accept that section 143(1) does not confer a broad unlimited discretion. The power must be exercised to further the policy and objects of the 2011 Act. It is clear from the nature of the statutory provisions themselves as well as the background material that Parliament intended that the power would usually be exercised. It is unnecessary to refer to all of the background material on which Ms Simor relies. Some of it is not admissible as an aid to statutory construction. But it is sufficient to refer to parts of the Explanatory Notes on the Bill as introduced on 30 November 2010 and on the Bill as introduced on 1 April 2011. The former states at para 281 that the Government recognises that the provisions in Part 3 and 4 "form part of a careful balancing exercise—balancing the [ECHR] rights of people who wish to demonstrate against the rights of the wider community (as noted in paragraph 48 of the Court of Appeal's judgment in Mayor of London v Rebecca Hall and others [2010] EWCA Civ 817.) The Government considers that it is right for Parliament to take the final decisions as to where the balance ought to be struck". The Notes also include the following:
  27. "286. In terms of the prohibition on tents and sleeping bags, the Government does not consider that this is a disproportionate interference with Article 10 and 11 rights. In coming to this decision, the Government took note of the findings of Mr Justice Williams in Mayor of London v Rebecca Hall and Others [2010] EWHC 1613 in which he held, at paragraph 48, that "I am satisfied that PSG [Parliament Square Garden] is wholly unsuited for camping; there is no sanitation … no running water … no public toilets open 24 hours daily in the immediate area … no safe means or cooking; a camp site is wholly incompatible with the location; it would deprive the public of the use of the total area of well-maintained lawn and gardens at the head of British democracy and government and a world renowned WHS [World Heritage Site]" Mr Justice Williams further noted, in paragraph 133, that he was "satisfied that the GLA and the Mayor are being prevented from exercising their necessary powers of control management and care of PSG and the use of PSG by tourists and visitors, by local workers, by those who want to take advantage of its world renowned setting and by others who want to protest lawfully, is being prevented."
    287. The Government is aware that Mr Justice Williams remarked on the importance of the "protection of the rights and freedoms of others to access PSG [Parliament Square Garden] … but also importantly for the protection of health … and the prevention of crime" in paragraph 133 of the judgment and the Government considers that preventing individuals from erecting or maintaining tents, or using sleeping bags is a proportionate manner in which to pursue these legitimate aims.
    289. Finally, in ensuring that these provisions are proportionate, the Government has expressly included a middle stage, between the undertaking of the prohibited activity and the commission of the offence, which is that a constable or authorised officer of the GLA or WCC must first issue a direction to cease engaging in the prohibited activity. Only if the individual fails, without reasonable excuse, to comply with this direction, does the individual commit the offence."
  28. The whole point of Part 3 of the 2011 Act was to put an end to the prohibited activities defined in section 143(2) and, in particular, to stop the use of tents and other structures designed to facilitate sleeping in Parliament Square. If constables and authorised officers routinely refused to exercise the power conferred by section 143(1), they would not be exercising the power in accordance with the intention of Parliament: they would be frustrating the policy and objects of the 2011 Act. But by giving a discretion (rather than imposing a duty), Parliament intended that it might be appropriate in certain circumstances for the power not to be exercised. The 2011 Act itself does not spell out the nature or extent of the discretion. But since the policy and objects of the legislation are so clear, Parliament must have intended that the discretion not to exercise the power should be exercised only in exceptional circumstances. It is not possible or desirable to attempt to define what these might be. Possible cases were discussed during the course of argument. For example, it might be a legitimate exercise of the discretion to allow a person to keep his tent in place for a short time if he becomes ill whilst protesting, or possibly to accommodate the desire of a disabled person to protest for a short unbroken period of, say, 24 hours. I do not, however, consider that Parliament intended that the circumstances to be taken into account in deciding how to exercise the discretion should include any weighing of the importance or validity of the protest, still less whether the police or Westminster agreed with it. That would be wholly wrong. It would give the State the arbitrary power to censor some protests, but not others. Clear express language would have been necessary if Parliament had intended to confer on constables and authorised officers that surprising power.
  29. I conclude, therefore, that section 143(1) does confer on constables and authorised officers a discretion. But the general expectation is that the power to direct a person to cease doing a prohibited activity will be exercised unless, exceptionally, there are compelling reasons for not doing so.
  30. Interference with Article 10 and 11 rights

  31. No person who simply wishes to protest in Parliament Square is prevented from doing so by a prohibition on tents and the other structures described in the section. Anyone who wishes to express his or her views and to assemble for that purpose in PSG is free to do so. But section 143 can interfere with the exercise of the rights to free expression and assembly where a person wishes to conduct a protest by his or her presence in a tent or other structures and this form and manner of conducting the protest are part and parcel of the protest that they wish to make. The importance of the right of assembly and freedom of expression in a democratic society has been emphasised many times by the ECtHR and our own courts: see, for example, the authorities referred to by Lord Bingham in R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55, [2007] 2 AC 105 at para 36.
  32. As Laws LJ said in Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23 at para 35, the supposed distinction between the essence of a protest and the manner and form of its exercise has to be treated with considerable care. In some cases, it will be real, in others insubstantial: all depends on the particular facts. The manner and form of a protest may constitute the actual nature and quality of the protest. It may have acquired a symbolic force inseparable from the protesters' message. The court held that the form and manner of the protest had acquired such a force in that case. The case concerned the protest by the Aldermaston Women's Peace Camp in the vicinity of the Atomic Weapons Establishment at Aldermaston. The camp had been established for 23 years. Some of those involved had been participants the whole time. The camp had "borne consistent, long-standing, and peaceful witness to the convictions of the women who belonged to it. To them, and (it may fairly be assumed) to many who support them, and indeed to others who disapprove and oppose them, the 'manner and form' is the protest itself". In these circumstances, the court held that it was for the Secretary of State to demonstrate a substantial objective justification for the bye-law which prohibited the camp.
  33. I accept that the importance of the right to express views publicly and to assemble for the purpose of expressing and discussing those views can extend to the manner in which it is wished to express the views and the location where they wish to express them: see Mayor of London v Hall [2010] EWCA Civ 817, [2011] 1 WLR 504 at para 37. As Lord Neuberger MR said, if it were otherwise, these fundamental human rights would be at risk of emasculation. In that case, the mayor applied for possession of Parliament Square against the Democracy Village who were encamped there. It will be necessary to revert to this decision in relation to the question of justification.
  34. It is common ground that sections 143 and 145 are capable of interfering with a person's rights under articles 10 and 11 even though the right to protest in PSG would remain substantially unimpaired by a direction to remove a tent or similar structure. That is because for some protesters, the ability to maintain a permanent presence in the Square, 24 hours a day, week after week, is essential to the nature of the protest that they wish to make. But in considering whether section 143 and 145 are compatible with articles 10 and 11, the limited nature of the interference with the rights conferred by those articles should not be overlooked.
  35. Justification

  36. The correct general approach to the question of whether an interference with a Convention right is justified is not in doubt. First, the limitation on the right must be "prescribed by law". Secondly, it must have one or more of the legitimate aims set out in articles 10(2) and 11(2). Thirdly, the limitation must be "necessary in a democratic society". This requires that the limitation must meet a pressing social need and satisfy the principle of proportionality. The ECtHR has frequently stated that, in view of the importance of the right to freedom of expression, restrictions on it have to be "established convincingly": see, for example, Bergens Tidende v Norway (2001) 31 EHRR 16 at para 48.
  37. Prescribed by law

  38. Ms Simor submits that the circumstances in which it is unlawful to protest with a tent or other structure are not sufficiently clear to satisfy the requirement that the interference is "prescribed by law". She makes the point that no example has been given by the Secretary of State for the Home Department of a circumstance in which the use of a tent would be permitted. To the extent that sections 143 and 145 confer a discretion, the law is unclear and liable to permit arbitrary decision-making. She relies on De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69. That case concerned a statutory provision which (with certain exceptions) prohibited civil servants from communicating to any other person information or expressions of opinion "on matters of national or international political controversy". It was held by the Judicial Committee of the Privy Council that this blanket restraint, which imposed the same restrictions on the most junior civil servant as on the most senior, was disproportionate and in breach of the Constitution of Antigua and Barbuda. But the passage which is of immediate relevance is at p 78F:
  39. "The rule applies to all civil servants without distinction so that it is left to the individual in any given circumstances to decide whether he is or is not complying with the rule. Their Lordships are not persuaded that the guidance given is sufficiently precise to secure the validity of the provision. It is to be noticed that the provision is fenced with a possible criminal sanction in section 32 of the Act and it is necessary that in that context a degree of precision is required so that the individual will be able to know with some confidence where the boundaries of legality may lie. It cannot be that all expressions critical of the conduct of a politician are to be forbidden. It is a fundamental principle of a democratic society that citizens should be entitled to express their views about politicians, and while there may be legitimate restraints upon that freedom in the case of some civil servants, that restraint cannot be made absolute and universal. But where the line is to be drawn is a matter which cannot in fairness be left to the hazard of individual decision. Even under the formulation suggested by the Court of Appeal the civil servant is left with no clear guidance as to the exercise of his constitutional rights."
  40. In my judgment, sections 143 and 145 of the 2011 Act are "prescribed by law". The vice of the statutory scheme under consideration in De Freitas was that it did not specify what was forbidden, save by reference to the vague concept of "matters of national or international controversy". The civil servant could not know with confidence where the boundaries of legality lay; and this was particularly important in view of the existence of criminal sanctions for breach. There is no such problem with sections 143 and 145. As I have already said, the erection of a tent or other structure in PSG is not unlawful in itself. It is, however, unlawful to refuse to comply with a removal direction without reasonable excuse. It is the giving of a direction that introduces the necessary certainty into the statutory scheme. It may be said that a protester who erects a tent or other structure cannot be certain that a direction will be given in any particular case. There are two answers to this. First, in practice a protester knows or ought to know that the power to require removal will normally be exercised (see para 22 above) and that, in practice, even if a tent is permitted to remain, this will only be for a short period, since the intention of the 2011 Act is to ban long term camping in PSG. Secondly, even if long term camping might be allowed, the requirement of a direction is sufficient to introduce the necessary degree of certainty.
  41. Legitimate aim

  42. I have already referred to this at paras 8 and 21 above. In short, the powers given by sections 143(1) and 145 of the 2011 Act are in pursuit of the protection of the rights and freedoms of others. These are plainly legitimate aims. They include the preservation of the amenity of Parliament Square itself for all members of the public; preserving the availability of Parliament Square for the exercise of article 10 and 11 rights by other members of the public (and not just those who wish to camp there); the prevention of risks to health that could arise from encampment in Parliament Square; and preventing the risk of crime or risk to public safety arising from such encampment. I reject the suggestion that the legitimate aim is no more than the protection of aesthetic values or the aesthetic sensibilities of others.
  43. Proportionality

    Blanket ban?

  44. Ms Simor submits that, in effect, sections 143 and 145 amount to a blanket ban on tents and on that account alone cannot be a proportionate interference with a person's rights under article 10 and 11. There is no doubt that the ECtHR has frequently expressed its disapproval of blanket bans as being disproportionate. In Laporte at para 37, Lord Bingham referred to Strasbourg jurisprudence to support the view that any prior restraint of the right to exercise freedom of expression and assembly calls for "the most careful scrutiny" that a state has exercised its discretion "reasonably, carefully and in good faith" and that it has based its decisions "on an acceptable assessment of the relevant facts". In Stankov v Bulgaria (App No 29221/95), 2 October 2001, the ECtHR said at para 97 that "sweeping measures of a preventive nature to suppress freedom of assembly and expression other than in cases of incitement to violence or rejection of democratic a disservice to democracy and often even endanger it". But the context in which this was said is important. The case concerned a blanket ban on the holding of meetings by an association whose object was to unite all Macedonians in Bulgaria and to achieve the recognition of the Macedonian minority in Bulgaria.
  45. Another prior restraint case is Ekin v France (App No 39288/98), 17 October 2001. The applicant association alleged a violation of article 10 under which the sale of one of its publications was prohibited throughout France for a period of more than 9 years. The ECtHR said at para 56 of its judgment that article 10 does not prohibit prior restraints as such. But the dangers inherent in prior restraints are such that they call for the most careful scrutiny by the court. This is particularly important so far as the press is concerned, since news is a perishable commodity and delay to its publication, even for a short period, may well deprive it of all its value and interest. At para 58, the court repeated that prior restraints are not necessarily incompatible with the Convention as a matter of principle. But "a legal framework is required, ensuring both tight control over the scope of bans and effective judicial review to prevent any abuse of power".
  46. Lord Neuberger MR made much the same point in the Mayor of London v Hall at para 43:
  47. "Given, therefore, that articles 10 and 11 are in play, it seems to me that the decision on the balancing, or proportionality, issue is ultimately one for the court, not the Mayor: see R(SB) v Governors of Denbigh High School [2006] UKHL 15; [2007] 1 AC 100 and Belfast City Council v Miss Behavin Ltd [2007] UKHL 19; [2007] 1 WLR 1420. Further, when carrying out that balancing exercise, the court must consider the facts, and, particularly when it comes to article 10 (and article 11), focus very sharply and critically on the reasons put forward for curtailing anyone's desire to express their beliefs – above all their political beliefs – in public."
  48. Assuming that sections 143(1) and 145 do impose a blanket ban on protesting with tents, a question arises as to what weight should be given by the court to the fact that the balance between the article 10 and 11 rights and the rights of others has been struck by Parliament. In R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15, [2008] 1 AC 1312 the issue was whether a statutory prohibition on political advertising was incompatible with article 10. The House of Lords held that it was not. They held that the rights of others which a restriction on the right to freedom of expression might properly be designed to protect included a right to be protected against the potential mischief of partial political advertising, which Parliament was entitled to regard as a real danger; and that there was a pressing social need for a blanket prohibition on political advertising on television and radio by reason of the immediacy and impact of such advertising and because Parliament had judged that it was not possible to devise a more limited restriction which was fair and workable. At para 33, Lord Bingham said:
  49. "The weight to be accorded to the judgment of Parliament depends on the circumstances and the subject matter. In the present context it should in my opinion be given great weight, for three main reasons. First, it is reasonable to expect that our democratically-elected politicians will be peculiarly sensitive to the measures necessary to safeguard the integrity of our democracy. It cannot be supposed that others, including judges, will be more so. Secondly, Parliament has resolved, uniquely since the 1998 Act came into force in October 2000, that the prohibition of political advertising on television and radio may possibly, although improbably, infringe article 10 but has none the less resolved to proceed under section 19(1)(b) of the Act. It has done so, while properly recognising the interpretative supremacy of the European court, because of the importance which it attaches to maintenance of this prohibition. The judgment of Parliament on such an issue should not be lightly overridden. Thirdly, legislation cannot be framed so as to address particular cases. It must lay down general rules: James v United Kingdom (1986) 8 EHRR 123, para 68; Mellacher v Austria (1989) 12 EHRR 391, paras 52 – 53; R (Pretty) v Director of Public Prosecutions (Secretary of State for the Home Department intervening) 1 AC 816, paras 72 – 74; R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173, paras 41, 91. A general rule means that a line must be drawn, and it is for Parliament to decide where. The drawing of a line inevitably means that hard cases will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round, it is beneficial. "
  50. Ms Simor submits that we should view this approach with caution in the light of relevant Strasbourg jurisprudence. In Hirst v United Kingdom (No 2) (2006) 42 EHRR 41, the ECtHR had to consider amongst other things the proportionality of the blanket ban on the right of convicted prisoners to vote. The UK Government argued that a wide margin of appreciation should be accorded by the ECtHR to the UK legislature. The court noted (para 79) that there was no evidence that Parliament had ever sought to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote. There had been no substantive debate by members of the legislature on the continued justification, in the light of modern day penal policy and current human rights standards, of such a general restriction on the right of prisoners to vote. Moreover, the national court did not undertake any assessment of the proportionality of the measure itself. At para 82, the court reiterated that the margin of appreciation was "wide", but it was not "all-embracing". The measure was a "general, automatic and indiscriminate restriction on a vitally important Convention right" which fell outside "any acceptable margin of appreciation, however wide that margin might be".
  51. In TV Vest AS v Norway (App No 211132/05), 11 March 2009, the First Section of the ECtHR was concerned with a statutory prohibition on political advertising on television. It was a blanket ban. The Norwegian Government argued that, as the national elected representative body, it was better equipped than the national court and even better equipped than an international court to evaluate the relevant pressing social needs, particularly as the aim of the prohibition was to secure the integrity of the national democratic process. The prohibition had been assessed on several occasions by the Government and by Parliament, which had found it to be a necessary measure for preserving central elements of Norwegian democracy.
  52. The court recognised (para 58) that the national authorities enjoyed a certain margin of appreciation, but it was not "unlimited". It noted (para 59) that there was "little scope" under article 10 for restrictions on political speech or on debate on questions of public interest. At para 66, the court noted that the advertising ban was "absolute and permanent" and did not apply specifically to elections. In these circumstances, the court did not attach much weight to the various justifications for allowing states a wide margin of appreciation with reference to article 3 of Protocol No 1. Otherwise, the application of this provision would be left to the discretion of the Contracting States "to a degree that might lead to results incompatible with the privileged position of free political speech under article 10 of the Convention". The court then went on to consider the various points advanced in justification of the ban and concluded that they were not sufficient to justify the interference complained of.
  53. A single judgment by one Section of the ECtHR is not a secure basis for concluding that only limited weight should be accorded to the fact that Parliament has struck the balance in enacting sections 143(1) and 145 of the 2011 Act. Ms Simor confidently predicts that the decision in the Animal Defenders case (which is under appeal to Strasbourg) will be overturned. I am far from sure that she is right.
  54. The following points relevant to the present case emerge from this jurisprudence. First, the ECtHR does allow a margin of appreciation to the legislature of Member States, even in relation to blanket bans on freedom of speech, but it scrutinises them with great care. Secondly, although the fact that Parliament had assessed the proportionality of the ban did not carry much weight in the eyes of the ECtHR in TV Vest, the fact that there had been no consideration of the issue by the UK Parliament was seen as important by the ECtHR in Hirst. In my judgment, the fact that Parliament has been made aware of the proportionality issue in relation to proposed legislation, conducted the balancing exercise and conscientiously concluded that a blanket ban is justified is a point to which significant weight should usually be given. If it is not, then no distinction will be made between those cases, such as Hirst, where little or no consideration has been given by the legislature of the Member State and a case, such as the present, where careful consideration has been given. The two cases should be distinguished.
  55. Thirdly, the nature and extent of the blanket ban is relevant. A total ban on freedom of speech (such as in Stankos) should be distinguished from a limited ban which leaves the freedom to protest substantially intact, although it may interfere with the ability of a relatively small number of would-be protesters to conduct their protests in the manner and form that they wish. None of the Strasbourg cases to which our attention has been drawn deals with this distinction, let alone its significance. I do not consider that the decision in Tabernacle requires us to ignore the fact that the ban on tents does not substantially impair the ability to protest in PSG. At para 35 of his judgment, Laws LJ merely said that the "form and manner" of a protest may constitute the actual nature and quality of the protest. Each case turns on its own facts. The facts relating to the Aldermaston protest that was being considered in that case were very different from those relating to protesters who wish to set up camp in PSG; they were also very different from those relating to the protesters in St Paul's Cathedral churchyard, as Lord Neuberger MR explained in the Mayor of London v Samede [2012] EWCA Civ 160 at para 45. Indeed, in Tabernacle at para 19, Laws LJ cited with approval the statement of Professor Barendt Freedom of Speech 2nd ed p 281:
  56. "[R]easonable time, manner, and place restrictions have been upheld, provided at any rate that they leave ample alternative channels for communication of ideas of the ideas and information."
  57. Fourthly, Ms Simor submits that, even if some protesters are unable to show that protesting 24 hours a day with a tent is essential to the protest that they wish to make, there will be some for whom such a protest is essential. For some, such manner and form of protesting is of the essence of the protest. I accept that there may be such cases, although they must form a very small percentage of the total number of persons who wish to protest in PSG. But the answer to this point was given by Lord Bingham in R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2009] UKHL 15, [2008] 1 AC 1312 in the last two sentences of para 33 which I have set out at para 35 above.
  58. For all these reasons, if sections 143(1) and 145 are to be regarded as imposing a blanket ban, I reject Ms Simor's submission that they are disproportionate on that account.
  59. For the reasons that I have given at paras 15 to 23 above, however, I do not accept that these statutory provisions are to be regarded as imposing a blanket ban. It is true that it is to be expected that, save in exceptional circumstances, a direction will be given to a protester to cease using a tent or other structure and prohibited items will be seized and retained. But the statutory scheme is carefully drafted so as not to impose an absolute ban in all cases. That is why there is a power and not a duty to direct removal and a power and not a duty to seize and retain prohibited items.
  60. The balancing exercise

  61. I have described the legitimate aim at para 31 above. The interference with the article 10 and 11 rights of those who wish to protest in PSG is targeted, limited and does not deprive them of the essence of those rights. The discretionary element of the statutory scheme permits account to be taken of special circumstances and, where they exist, to allow protesters to erect and keep tents in place. For the reasons given earlier, however, the expectation is that this would only be in exceptional circumstances and then only for a short period of time. In my view, the balance comes down firmly in favour of holding that the statutory interference with article 10 and 11 rights is proportionate. I would have reached this conclusion even without taking into account the fact that the balance has been struck by Parliament with knowledge of the article 10 and 11 issues in play. But that fact reinforces my conclusion.
  62. I should deal with two further points made by Ms Simor. First, she submits that it has not been convincingly shown by the Secretary of State for the Home Department that this legislation is necessary and that a less intrusive means of keeping PSG clear of encampments would not be effective. The answer to this is provided by the history to which I have referred earlier. As Mr Grinter explains, the use of civil proceedings prior to the coming into force of Part 3 of the 2011 Act had been slow and expensive. It had also been ineffective, since success against one protester or group of protesters would not prevent the arrival of others. The only effective solution was a more summary process. In my view, it lay well within the area of discretionary judgment of Parliament to decide that a faster and less expensive process was required.
  63. Secondly, she submits that sections 143 and 145 of the 2011 Act have a chilling effect on individuals wishing to exercise their article 10 and 11 rights by means of "prohibited activities". No individual or organisation can safely consider that they will not be directed to remove their tent or other structure from PSG. Advance authorisation to carry out such a protest is not possible, since neither the police nor an authorised officer is empowered to authorise prohibited activities. I agree that there is this chilling effect. That is the intention of the statute. But it does not seem to me that this adds anything to the argument. Either sections 143 and 145 amount to justified interferences with article 10 and 11 rights or they do not. For the reasons that I have given, these statutory interferences are justified.
  64. Positive obligation

  65. Ms Simor submits that it is well established that the State is under an obligation to facilitate and enable the right to freedom of expression and protest. She relies, in particular, on Baczowski v Poland (App No 1543/06), 24 September 2007. In that case, the applicants were refused permission for a march. Nevertheless, the march went ahead. They complained that there was no procedure in the domestic law which would have allowed them to obtain a final decision authorising the march before the date on which it was planned to take place. At para 64 of their judgment, the ECtHR said that effective respect for freedom of association and assembly could not be reduced to a mere duty on the part of the State not to interfere. There may be positive obligations to secure the effective enjoyment of these freedoms. At para 67, the court acknowledged that the assemblies were eventually held on the planned dates. They said: "However, the applicants took a risk in holding them given the official ban in force at that time. The assemblies were held without a presumption of legality, such a presumption constituting a vital aspect of effective and unhindered exercise of freedom of assembly and freedom of expression."
  66. The Divisional Court dealt with Ms Simor's argument in the following way:
  67. "53. Ms Simor contends that there is a positive obligation imposed on the State to ensure that the Article 10 and Article 11 rights of its citizens are protected. The circumstances in which such an obligation was required was considered by the Strasbourg Court in Appelby v United Kingdom (2003) 37 EHRR 38 in which the Court concluded that:— "
    "40. In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which is inherent throughout the Convention. The scope of this obligation will inevitably vary, having regard to the diversity of situations obtaining in Contracting States and the choices which must be made in terms of priorities and resources. Nor must such an obligation be interpreted in such a way as to impose an impossible or disproportionate burden on the authorities."
    54. In that case, the owners of a shopping mall prevented those campaigning against a plan to build on a playing field from protesting in the mall. The protesters complained that their rights under Articles 10 and 11 had thereby been infringed. The Strasbourg Court concluded that even though the freedom of expression was an important right, it was not unlimited. There were conflicting rights, namely those of the property rights of the owner of the shopping centre under Article 1 Protocol 1. The court concluded that there had been no failure on the part of the United Kingdom Government to protect the rights of the applicants under Article 10 and Article 11 and no positive obligation was found to exist. The decision in that case shows that it is only when a restriction imposed by the State has the effect of preventing any effective exercise of freedom of expression that a positive obligation might arise.
    55. In our judgment, balancing the respective interests, no additional positive obligation is required of the State because of the limited effects of sections 143 and 145 of the Act. As we have already emphasised, the Act confers powers which, if exercised constitute a restriction which only relates to sleeping items. It is of crucial importance that these provisions do not prevent any effective exercise of Article 10 and 11 rights at any other time or at any place or in any other way. They do not impede, let alone prevent, any other form of demonstration or protest in Parliament Square at any time of day or night. Indeed they do not prevent the protestors remaining overnight as is shown by the case of Barbara Tucker to whom we referred at paragraph 4 above. She has not been prevented from exercising her Article 10 and 11 rights by section 143. Two matters are noteworthy. First that it has not been suggested by the claimant that there is any particular need for her to remain overnight in the Square other than on account of the cost of travelling to and from her home which happens to be in Eastbourne. Second no other protestor has come forward to state that 143 has impeded his or her Article 10 and 11 rights. Indeed the only basis for determining that there was a positive duty on the State to take further steps to ensure that the claimant's Article 10 and 11 rights were preserved would be that the claimant had a right to protest whenever and wherever she liked. Nothing has been put forward to show that this is required.
    56. We therefore conclude that there is no positive obligation imposed on the Secretary of State to take any further steps to ensure that the claimant's Article 10 and 11 rights are preserved."
  68. I agree. In substance, Ms Simor's submission depends on the correctness of her case that the essence of the article 10 and 11 rights that she seeks to protect is the right to protest with a tent or other structure. But if that is the protected right, it makes no difference whether the State's duty is described as a duty not to interfere with it (by giving directions under section 143(1) or exercising the section 145 power) or a positive duty to facilitate the exercise of the right. Either way, the claimant should succeed. But if she does not succeed in her argument that sections 143(1) and 145 are an unjustified interference with her article 10 and 11 rights, she cannot succeed by putting her case on the basis of a breach of a positive obligation to secure the enjoyment of those rights. Ms Simor also makes the point that any attempt to protest by means of a tent or other structure in PSG would necessarily take place without the "presumption of legality", since it would be a prohibited activity. This too does not add anything to the case already considered. A "prohibited activity" only becomes unlawful when a direction to remove is given and the protester fails to comply with the direction without reasonable excuse.
  69. Article 6

  70. Ms Simor submits that there is no access to courts as required by article 6 of the Convention in relation to a direction given under section 143(1) or a decision to seize made under section 145. Article 6 provides that "in the determination of civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".
  71. Her argument is as follows. It is well established that the rights protected by articles 10, 11 and article 1 of Protocol No 1 of the Convention are "civil rights" within the meaning of article 6: see R (McCann) v Manchester Crown Court [2003] 1 AC 787 para 79 and Ekin v France para 67. There are two potential routes by which the civil rights of an individual are "determined" without it being possible for the individual to dispute the determination before an independent court or tribunal. The first is the giving of a direction under section 143(1) which amounts to a prior restraint on freedom of expression and protest. The second is (i) the criminalisation of an individual following a failure to comply with a direction under section 143(1) and (ii) the consequent temporary seizure or risk of seizure of property under section 145.
  72. In both cases, Ms Simor submits, the individual is deprived of the possibility of challenging the legality of the interference with his civil rights prior to suffering severe and irreparable damage to the exercise of those rights: see R (Wright) v Secretary of State for Health [2009] 1 AC 739 para 25. In order to avoid this, the individual could in theory seek urgent advance declaratory/injunctive relief to enable him to protest without the risk of being directed to stop. But a court would be unlikely to grant such relief and it is unrealistic to expect a protester to seek it. Alternatively, he has to take the risk of being directed to end the protest. If a removal direction is given, no subsequent judicial proceedings can cure the interference with his article 10 and 11 rights. That is why prior judicial pronouncement is so important. Ms Simor submits that Parliament has entirely removed the role of the court in determining disputes as to freedom of expression and assembly involving long term protests at PSG. This ousting of the role of the court in dealing with protests is in breach of article 6: it removes effective access to court. Any right that does exist is merely theoretical and illusory in practice.
  73. I accept that the protected rights that are in play here are "civil rights" within the meaning of article 6. The contrary has not been argued. But I do not accept that giving a direction under section 143(1) of the 2011 Act is a "determination" of any civil rights for the purposes of article 6. To the extent that I have indicated, it is an interference with an individual's article 10 and 11 rights. But it is not a determination of the legality of the interference. The correct analysis is, as Mr Swift submits, that where article 10 and 11 rights are engaged (i) the direction is the act which is the alleged interference with the rights; (ii) the fact that the direction has been given is the source of the dispute as to civil rights for the purposes of article 6; and (iii) a person who has been given a direction may seek the resolution or determination of that dispute by access to the court. The most obvious way to do this is to raise a defence to proceedings for an offence under section 143(8). By these means, the court will decide whether the individual has reasonable excuse for not complying with the direction. If the court holds that there is reasonable excuse, then the direction ceases to have any practical effect and the dispute is resolved. Mr Swift also suggests that the dispute can be resolved by civil proceedings under section 7(1) of the Human Rights Act 1998 for breach of articles 10 and/or 11 and/or article 1 of Protocol No 1 of the Convention. Ms Simor submits that the ECtHR would not consider this to be an effective means of access to the court.
  74. Like the Divisional Court (para 97), I would reject the submission that Ekin v France supports the proposition that the effect of article 6 is to prohibit any interference with the exercise of article 10 and 11 rights without prior judicial authorisation. That case was concerned with a ban imposed by Ministerial Decree on the publication of a foreign book. The ECtHR said (para 58) that prior restraints are not necessarily incompatible with the Convention as a matter of principle. But "a legal framework is required, ensuring both tight control over the scope of bans and effective judicial review to prevent any abuse of power". At para 61, the court considered the form and extent of the judicial review of administrative bans and noted that the review was conducted ex post facto. It then proceeded to give a number of reasons why "the judicial-review procedures in place concerning administrative bans on publications provide insufficient guarantees against abuse".
  75. If the fact that the judicial review was ex post facto had been decisive, the court would surely have said so. Instead, they had regard to a number of different features of the French system, including the fact that the applicant had had to wait more than nine years before obtaining a final judicial decision. In other words, the court looked at all the circumstances of the case in order to decide whether the judicial review procedures were sufficient to provide a sufficient safeguard against abuse. This is the same fact-sensitive approach that the court applies to the question whether a prior restraint is incompatible with the Convention.
  76. Nor do I consider that the decision in Wright is of relevance here. That case concerned a statute which made provision for keeping a list of people considered unsuitable for work with vulnerable adults. Pending the determination of each reference, the Secretary of State provisionally included the claimants' names in a list without first according them a hearing. It was held that the provisional listing of a care worker could result in irreparable damage to the person's employment or prospects of employment in the care sector, although it was only an interim measure and the decision could be the subject of judicial review proceedings. It was because the detrimental effect of provisional listing "was often irreversible and incurable" (para 25) that provisional listing amounted to a determination of a civil right within the meaning of article 6.
  77. I agree with the Divisional Court (para 96) that Wright is readily distinguishable from the present case. In Wright, there was no access to the court before provisional listing took place. There could have been no basis on which an individual could issue proceedings to seek to stop the provisional listing taking place, since such listing was an integral part of the statutory scheme. Once an individual was placed on the provisional list, there was a real risk of irreparable damage.
  78. The present situation is quite different. A person liable to receive a direction can issue proceedings to restrain the making of a direction if there are arguable grounds for doing so. He can refuse to comply with a direction and wait for proceedings in the magistrates' court and raise a defence of reasonable excuse for failing to comply with a direction. In my view, the ECtHR would consider that this amounts to effective access to a court for the determination of the legality of a direction. No separate article 6 issue arises in relation to article 1 of Protocol No 1. That is because the power to seize property under section 145 of the 2011 Act may only be exercised if it appears that property is being or has been used "in connection with the commission of an offence under section 143".
  79. Overall conclusion

  80. For all these reasons (which in substance are the same as those given by the Divisional Court), I would dismiss this appeal. It is salutary to stand back from the detail of the argument. The importance of the freedom to protest in Parliament Square is not in doubt. But the rights of others to use Parliament Square (for protesting as well as simply enjoying the space) are also important. If the effect of the 2011 Act had been to give the police and/or Westminster and the GLA the power significantly, to emasculate the freedom to protest then it might have been necessary to declare that the statute was incompatible with articles 10 and 11 of the Convention. But the statute is carefully targeted only at protests by those few who wish to set up camp in Parliament Square. The freedom to protest generally is not impaired at all. As the case of Ms Tucker demonstrates, it is possible to maintain a protest day and night without the use of a tent or similar equipment. For the reasons that I have given, the balance between the rights of the few protesters adversely affected by this legislation and the rights of others was struck by Parliament in a way which fell within the area of its discretionary judgment. For the same reasons, I believe that the ECtHR would hold that this exercise of judgment fell within the margin of appreciation of the UK. This is not a case for the grant of a declaration of incompatibility.

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