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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  EWCA Civ 28 (29 January 2013)
Cite as:  HRLR 15,  1 WLR 2377,  WLR 2377,  BLGR 337,  2 All ER 579,  EWCA Civ 28,  WLR(D) 45
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ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION and MR JUSTICE SILBER
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PATTEN
LORD JUSTICE TOMLINSON
| THE QUEEN ON THE APPLICATION OF GALLASTEGUI
|- and –
|WESTMINSTER CITY COUNCIL & ORS
- and –
COMMISSIONER OF POLICE FOR THE METROPOLIS
- and –
SECRETARY OF STATE FOR THE HOME DEPARTMENT
First Interested Party
Second Interested Party
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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:
"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
"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."
The facts relating to the claimant
Summary of the claimant's case
Construction of section 143 of the Act: obligation or discretion?
"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  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."
Interference with Article 10 and 11 rights
Prescribed by law
"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."
"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  UKHL 15;  1 AC 100 and Belfast City Council v Miss Behavin Ltd  UKHL 19;  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."
"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  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. "
"[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."
The balancing exercise
"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 http://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&&context=13&crumb-action=replace&docguid=I2055ED01E8BD11E0B267C6FC150056EEsection 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."