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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Haw, R (on the application of) v Secretary of State for the Home Department & Anor [2005] EWHC 2061 (Admin) (29 July 2005)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/2061.html
Cite as: [2006] 2 WLR 50, [2006] QB 359, [2005] EWHC 2061 (Admin)

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Neutral Citation Number: [2005] EWHC 2061 (Admin)
CO/4803/2005

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

Royal Courts of Justice
Strand
London WC2
29th July 2005

B e f o r e :

LADY JUSTICE SMITH DBE
MR JUSTICE McCOMBE
MR JUSTICE SIMON

____________________

THE QUEEN ON THE APPLICATION OF BRIAN HAW (CLAIMANT)
-v-
(1) SECRETARY OF STATE FOR THE HOME DEPARTMENT
(2) COMMISSIONER FOR THE METROPOLITAN POLICE SERVICE (DEFENDANTS)

____________________

Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)

____________________

MR RICHARD DRABBLE QC (instructed by Messrs Bindman & Partners) appeared on behalf of the CLAIMANT
MISS NATHALIE LIEVEN (represented by MR TIM MORSHEAD on this occasion) (instructed by the Treasury Solicitor), appeared on behalf of the FIRST DEFENDANT
MR ADAM CLEMENS appeared on behalf of the SECOND DEFENDANT

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Friday, 29th July 2005

  1. LADY JUSTICE SMITH: This is an application for the judicial review of decisions taken by or on behalf of the Secretary of State for the Home Department and the Commissioner of the Metropolitan Police Service under the Serious Organised Crime and Police Act 2005. The application is made by Brian Haw, who, since June 2001, has been conducting a demonstration in Parliament Square, Westminster. He lives on the pavement in the Square and displays a large number of placards. Initially, his intention was to protest about sanctions against Iraq, and latterly it has been to protest against the Government's policy on Iraq.
  2. In 2002 an attempt by Westminster City Council to obtain an injunction requiring him to remove his placards, on the basis that they were an obstruction of the highway, failed when the application was dismissed by Gray J. The Judge found that the claimant's demonstration did not cause an obstruction of the highway and did not give rise to any fear that a breach of peace may arise. Accordingly, the demonstration was lawful and, in the event, it has continued ever since.
  3. In April 2005 Parliament passed the Serious Organised Crime and Police Act 2005 ("the Act") which legislates on a number of different topics. The provisions with which the court is concerned in this case are to be found at sections 132 to 138. These are designed to give the police a measure of control over demonstrations which take place within a designated area in the vicinity of Parliament Square. The Act does not forbid the conduct of demonstrations within the designated area, but it requires any person who intends to organise a demonstration in that area to apply to the police for authorisation to do so. It permits the police to impose conditions on the holding of a demonstration so as to prevent hindrance to any person wishing to enter or leave the Palace of Westminster, hindrance of the proper operation of Parliament, serious public disorder, serious damage to property, disruption to the life of the community, a security risk in any part of the designated area, and risk to safety of members of the public. Any breach of the provisions will be a criminal offence.
  4. The question that arises in this case is whether or not the Act applies to Mr Haw's demonstration. He contends that, as enacted, it does not apply to him because his demonstration started before the Act came into force. He contends that the Commencement Order which purports to alter the Act, as enacted, so as to make it apply to demonstrations which began before the Act came into force and continue after it has come into force is ultra vires and of no effect. He seeks an order quashing those parts of the Commencement Order which purport to make the Act apply to him and, against both defendants, he seeks a declaration that he is not required to seek authorisation for his continuing demonstration.
  5. The Secretary of State and the Commissioner of the Metropolitan Police contend that the Act does apply to Mr Haw's ongoing demonstration and that the Commencement Order which makes that plain was properly made and is intra vires.
  6. At the start of the hearing of this matter, we granted leave to apply for judicial review and the hearing which followed was the substantive hearing.
  7. It is convenient now to set out the provisions of the Act insofar as they are relevant to the issues in this case. Section 132 creates the criminal offence which provides the principal means by which the provisions are to be enforced. Subsection (1) provides:
  8. "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)."
  9. The remaining provisions of section 132 are not germane to this application, save for subsections 7(d) and 7(e). They provide that in this section and in sections 133 to 136(d):
  10. "(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 part in a demonstration (except in subsection (1) of this section) include a person carrying on a demonstration by himself."

  11. Section 133 provides that notice of an intention to hold a demonstration must be given. It sets out what information the notice must contain and when it must be provided. Section 133(2) provides:
  12. "The notice must be given -
    (a) if reasonably practicable, not less than 6 clear days before the day on which the demonstration is 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 time the demonstration is to start."
  13. Section 134 provides for the issue of authorisation by the police. If the notice given is in order, the police must give authorisation, but they can impose such conditions as, in the Commissioner's reasonable opinion, are necessary for any of the purposes to have which I have already referred. The conditions may relate to the place where the demonstration is carried on, the period during which it may be carried on, the number of people who may take part, the number and size of banners or placards to be used, and the maximum permitted noise levels. Taking part or organising a demonstration knowing that a condition is being breached is a criminal offence.
  14. Section 135 permits a police officer to give supplementary directions about the conduct of a demonstration.
  15. Section 136 sets out the penalties for the various offences created. If an organiser is guilty of an offence, he or she is liable to up to 51 weeks' imprisonment and a fine. For a breach by a person who has taken part but not as an organiser, there may be a fine but not imprisonment.
  16. Section 137 controls the use of loudspeakers at demonstrations, and section 138 empowers the Secretary of State to make orders specifying the designated area in which these provisions of the Act are to apply. Since the Act received the Royal Assent on 7th April 2005, an order specifying the designated area has been made, and it includes Parliament Square.
  17. At the time the Act received the Royal Assent, it was not known when sections 132 to 138 were to come into force. Section 178 of the Act itself provided for several parts to come into force at different times. Sections 132 to 138 were not covered.
  18. Section 178(8) provided that provisions not already covered by section 178 would come into force on such day as the Secretary of State may by order appoint.
  19. Subsection (10) provided:
  20. "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."

  21. On 8th April 2005, Mr Haw's solicitors wrote to the Home Secretary, asking when sections 132 to 138 would come into force, and expressing the opinion that section 132(1) did not apply to Mr Haw as it only applied to demonstrations which required authorisation at the time they were started. Mr Haw's demonstration had started in 2001. In due course, on 20th June 2005, Mr Haw's solicitors were informed by the Home Office that a commencement order had been made on 10th June, pursuant to section 178. However, the letter of that date did not comment on the suggestion that section 132(1) did not apply to Mr Haw.
  22. The Commencement Order, the full title of which is the Serious Organised Crime and Police Act 2005 (Commencement number 1, Transitional and Transitory Provisions Order 2005 (2005 number 1521C66)) lies at the heart of this application. The preamble states that the order is made under sections 178(8), (9) and (10) of the Act. Article 3, paragraph 1 of the order lists a number of provisions which, subject to paragraphs (4) and (5), were to come into force on 1st July 2005. These include at sub-paragraph (p):
  23. "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." [Emphasis by underlining added by me.]

  24. Then, as if further to underline the point that the provisions of section 133 were to apply to demonstrations that were starting or continuing on or after 1st August 2005, paragraph (5), to which paragraph 2 is subject, states as follows:
  25. "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 starting or continuing on or after 1st August 2005."

  26. Article 4 of the Commencement Order deals with provisions coming into force on 1st August 2005. Sub-paragraph (1) provides as follows:
  27. "Subject to paragraph (2), sections 132 to 137 (demonstrations in the vicinity of Parliament) of the Act shall come into force on 1st August 2005, to the extent that they are not already in force.
    (2) The references in sections 132(1) (demonstrating without authorisation in a designated area) and 133(2) (notice of demonstrations 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."

  28. The claimant's solicitor formed the opinion that this Commencement Order was an attempt to extend the scope of section 132 to encompass a demonstration such as Mr Haw's, which was already continuing at the time the Act came into force. He considered that it was ultra vires the Act. On 11th July 2005 he wrote to the Secretary of State, noting first that no substantive reply had been received to his letter of 8th April. He sought an assurance that Mr Haw would not be expected to seek authorisation for his demonstration in Parliament Square. A similar letter was sent to the Commissioner for the Metropolitan Police. Replies to both letters said that Mr Haw would be required to seek authorisation. These proceedings were begun and battle was joined.
  29. Before this court, Mr Drabble QC, counsel for the claimant, submitted that section 132(1), as enacted by Parliament in April 2005, does not apply to Mr Haw. As it might apply to Mr Haw, the section provides that a person who carries on a demonstration by himself in a public place within the designated area is guilty of an offence if, when the demonstration starts, authorisation has not been given under section 134(2). As Mr Haw's demonstration began in 2001, it was impossible for the section to apply to him because the Act had not been passed at that time. Mr Haw could not now obtain authorisation at the start of his demonstration, so the section did not apply to him. If Mr Haw carried on with his demonstration, he could not be convicted under that section as originally enacted.
  30. Mr Drabble further submitted that, if the words that were sought to be introduced by Article 4(2) of the Commencement Order were inserted into section 132(1), the position would be quite different. The material words of the section would then read:
  31. "Any person who carries on a demonstration by himself in a public place in the designated area is guilty of an offence if the demonstration starts or continues after 1st August 2005."
  32. If Mr Haw carries on with his demonstration and does not apply for authorisation he will be guilty of an offence under section 132.
  33. Mr Drabble's complaint is that this alteration, to use a neutral word, is in fact an amendment of the Act and he submits that the Secretary of State did not have the power to amend the Act in this way under section 178(10). The Secretary of State's powers were limited to the introduction of such provisions as were appropriate for transitory, transitional and saving purposes in connection with the coming into force of the Act. A provision which changes the meaning of the section so as to extend its ambit does not have a transitory, transitional or saving purpose in connection with the coming into force of the Act. Mr Drabble submitted that this alteration was, in truth, an amendment to the Act and the Secretary of State had purported to make the amendment under the guise of the Commencement Order. He had no power to do so and this part of the Commencement Order was, he submitted, ultra vires.
  34. Mr Drabble contrasted the Minister's powers to make secondary legislation under section 178 with his wider powers under section 173. That section provided at subsection (1):
  35. "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)."
  36. Thus section 173 empowers the Secretary of State to amend or modify the Act. Mr Drabble did not concede that the alterations sought to be made by the Commencement Order could, in fact, have the been validly made under section 173, but he was prepared to concede that at least the point was arguable and that the Secretary of State would have been on stronger ground had he sought to use that section. The wider power under section 173 was subject to the Affirmative Resolution Procedure in Parliament. It would not become law unless approved by resolution of both Houses. By contrast, the Commencement Order could be and was made simply at the will of the Secretary of State, without either a positive or negative Parliamentary procedure. Mr Drabble submitted that it was obviously wrong for an alteration having the effect of this one in the Commencement Order to be made by a purely administrative act without any Parliamentary scrutiny.
  37. At one stage, Mr Drabble submitted that section 132(1), as altered, would have retrospective effect, and for that reason was likely to be unlawful. I, for my part, was not convinced by that submission. As Miss Lieven, who appeared for the Secretary of State, pointed out, there was no question of the new provisions making Mr Haw criminally liable for his past actions. At most, he could only be liable if he carried on with his demonstration after 1st August 2005 if he failed to obtain authorisation. I accept Miss Lieven's submission on that point. I do not think the effect of the Commencement Order is to give section 132 retrospective effect.
  38. In his skeleton argument, Mr Drabble had stated the general principle that delegated legislation must be made in pursuance of the power in the enabling Act. Delegated legislation which makes provision which is contrary to or which purports to extend without express authority the provision of the Act by which it is enabled will be ultra vires. He cited a passage from the speech of Lord Morris of Borth-y-Gest in Utah Construction and Engineering Pty Ltd v Pataky [1966] 2 WLR 197 (PC) at page 202, where Lord Morris quoted with approval from the Australian High Court decision of Shanahan v Scott [1956] 96 CLR 245 at page 250, where it was said that power delegated by an enactment:
  39. "... does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends."

  40. Miss Lieven, for the Secretary of State, made two main submissions. In relation to section 178(10) she submitted that the Secretary of State's powers were wide enough to permit him to make the changes he had made under the Commencement Order. In her skeleton argument, she had sought to argue that the wider powers of section 173, which include power of amendment and modification, had been available to the Secretary of State. However, she had to accept that the Affirmative Resolution Procedure had not been followed, and wisely, in my view, she abandoned reliance on section 173. However, she contented that section 178 was sufficient for the purpose. She submitted that it was common practice for Parliamentary draftsmen to include in the main Act only those provisions which were to be of permanent effect and to leave for secondary legislation any additional provisions which would be of only temporary effect. She suggested to us that transitory in the context of a statutory instrument had a special meaning different from its ordinary meaning of "temporary" or "passing". She said that she was instructed that a provision with a transitory purpose was one which was designed to cover circumstances which exist when the statute comes into force. However, she was unable to produce any authority or dictionary definition to support this special meaning, and she abandoned the point and submitted that the provisions under discussion in the Commencement Order were properly to be described as transitional provisions.
  41. She referred the court to a passage from the speech of Lord Keith of Kinkel in R v Secretary of State for Social Security ex parte Britnell (1991) 1 WLR page 198, where at page 202 Lord Keith said this:
  42. "As Staughton LJ observed in the Court of Appeal, it is not possible to give a definitive description of what constitutes a transitional provision. In Thornton on Legislative Drafting, 3rd ed. (1987), p.319, it is said:
    'The function of a transitional provision is to make special provision for the application of legislation to the circumstances which exist at the time when that legislation comes into force.'
    One feature of a transitional provision is that its operation is expected to be temporary, in that it becomes spent when all the past circumstances with which is it designated to deal have been dealt with, while the primary legislation continues to deal indefinitely with the new circumstances which arise after its passage."
  43. Miss Lieven submitted that for the legislature to make the kind of changes as have been made here in the Commencement Order was an entirely normal and legitimate function for a commencement order. This Commencement Order had been validly made under section 178 was not ultra vires.
  44. Miss Lieven's second submission was that if the court were to examine the purposes of the Act and the mischief at which these provisions were aimed, it would be obvious that it had been the intention of Parliament that Mr Haw's demonstration should be caught. The purpose were apparent from section 134(3), to which I have already referred.
  45. In summary, the purpose is to regulate demonstrations in the vicinity of Parliament so as to prevent any hindrance of access to Parliament, interference with the operation of Parliament, serious public disorder, serious damage to property, risk of injury to members of the public, and breach of security. It would, she submitted, be absurd and nonsensical to suggest that Parliament intended only to legislate in respect of demonstrations to take place in the future and not in respect of a demonstration that was already taking place and continuing. If Parliament had, in fact, failed to achieve this, it had made a mistake through inadvertence, although she did not for a moment accept that it had. Parliament's intention was clear, she submitted. It was obvious that Mr Haw ought to be caught by the provisions. He must have expected that to happen and there was no reason for him to be excluded. She suggested that the present application was opportunistic in that it sought to take advantage of a drafting error or of an error in the Home Office who had used section 178 instead of 173 for the Commencement Order. As I understand it, Miss Lieven was suggesting that there was no reason of substance why Mr Haw's demonstration should not be included in the operation of the Act and he could quite well submit to it by applying for authorisation. She did not, of course, suggest that there was anything improper in the application before the court.
  46. Miss Lieven invited the court to examine some material from Hansard, which she submitted made it clear that it had been the Government's intention that Mr Haw should be caught by the Act. In fact, she quoted from Hansard in her skeleton argument and the court had read some of the material even before the hearing began. It was, however, by no means clear that the conditions precedent to the proper consideration of Parliamentary material were made out.
  47. In Pepper v Hart [1993] AC 593 at page 640, Lord Browne- Wilkinson said this:
  48. "I therefore reach the conclusion, subject to any question of Parliamentary privilege, that the exclusionary rule should be relaxed so as to permit reference to Parliamentary materials where (a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied upon consists of one or more statements by a Minister or other promoter of the Bill together if necessary with such other Parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied upon are clear.
    Further than this, I would not at present go."
  49. Miss Lieven sought to persuade us to look at the material on the ground that the construction of the Act contended for by the claimant led to absurdity. I, for my part, was not satisfied that the words of section 132 gave rise to any ambiguity, obscurity or absurdity.
  50. Mr Clemens, for the Commissioner of the Metropolitan Police, sought to persuade us that it was, in any event, legitimate to consider material from Hansard, simply to see what the intention of Parliament had been. He relied on a passage from the R v Secretary of State for Environment, Transport and the Regions ex parte Spath Holme Ltd [2001] 2 AC 349 at page 398, where, after referring to the passage from Lord Browne-Wilkinson's speech in Pepper v Hart, Lord Nicholls of Birkenhead said:
  51. "I can see nothing in this formulation or in principle to suggest that the ambiguity or obscurity or absurdity must be of any particular type. The purpose for which a statutory power is conferred is just as much a question of interpretation of the statutory provision as is the meaning of a particular word or phrase. It cannot be right for the courts to look at parliamentary proceedings, if they assist, on the interpretation of a particular word or phrase, but to decline to look at parliamentary proceedings, however much assistance they may give, when deciding, as a matter of interpretation, what was the purpose for which a power was conferred. The point is underlined by noting that, if drawn, this distinction has the consequence that, in the latter type of case, the courts will look at other forms of extraneous material if they assist, such as statements in Government white papers, but not at what was said by Government ministers in Parliament. This would not be a rational distinction."

  52. I, for my part, remained unconvinced that there was any justification for looking at the Parliamentary material. However, we examined it de bene esse. It comprised a short extract from the report stage of the Bill in the House of Commons at which new clauses were being introduced which eventually, without significant amendment, became sections 132 to 138.
  53. In introducing the amendment of the 7th February 2005, as recorded at Hansard page 1291, Ms Caroline Flint, the Home Office Minister, spoke of the way in which the provisions would enable the police to impose conditions on a demonstration. She then said:
  54. "Those conditions are more helpful than the original provisions in the Bill. Hon. Members may not know that officers from Charing Cross police station currently make regular visits to the site in Parliament Square to check behind paraphernalia for devices left not by the people who are protesting, but by people who might use the protest for their own motives to cause a security problem. Some of my hon. Friends laugh at that, but these issues are taken seriously by the police. There are questions about how much police time should be spent unnecessarily checking behind placards, fixed posters and so on. Conditions attached to authorised demonstrations would make matters much easier for the police."

  55. Miss Lieven submitted that it is clear from that passage that Ms Flint was there referring to Mr Haw's demonstration. I, for my part, accept that part of her submission.
  56. Miss Lieven submitted that, if the court were minded to accept that the purpose of the Act was clear and that Parliament had intended that the provision should apply to Mr Haw, we should not construe the Act literally, but should apply a modern, liberal, purposive construction. She referred us to a passage from Bennion on Statutory Interpretation, page 810, section 304, entitled, "Nature of purposive construction". That begins with the following words:
  57. "A purposive construction of an enactment is one which gives effect to the legislative purpose by -
    (a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive-and-literal construction), or
    (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction)."
  58. On the following page, Miss Lieven referred us to a passage headed, "Contrast with literal construction", which referred to the words of Lord Diplock in Carter v Bradbeer [1975] 1 WLR 1204 at 1206-7, where he said:
  59. "Although the term 'purposive construction' is not new, its entry into fashion betokens a swing by the appellate courts away from literal construction. Lord Diplock said in 1975: 'If one looks back to the actual decisions of [the House of Lords] on questions of statutory construction over the last 30 years one cannot fail to be struck by the evidence of a trend away from the purely literal towards the purposive construction of statutory provisions."

  60. The passage from Bennion continues:
  61. "The matter was summed up by Lord Diplock in this way -
    '... I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction, even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed." (See Jones v Wrotham Park Settled Estates [1980] AC 74 at 105.)

  62. The passage from Bennion continues:
  63. "Lord Diplock's third point is, with respect, erroneous. The argument that in Jones v Wrotham Park Settled Estates Lord Diplock was mistaken in saying that for a rectifying construction to be effected it must be possible to state with certainty what the missing words are, has been endorsed by the House of Lords. Lord Nicholls of Birkenhead said that they court must be sure of 'the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used'." (See Inco Europe Ltd and others v First Choice Distribution [2000] 1 WLR 586 (HL).
  64. That passage from Bennion, submitted Miss Lieven, showed the right approach to this case. The intention of Parliament was clear; Mr Haw and any other demonstrators who were demonstrating when the Act came into force were intended to be caught. If the words had failed to achieve the intended purpose, it must have been as a result of inadvertence and it was easy to see how the statute could be amended so as to achieve the desired effect. In other words, the three conditions to which I have just referred were made out. She submitted that the omission of the words "when the demonstration starts" from section 132(1) would achieve the desired end.
  65. My Lord, Simon J, asked her at that stage whether she was aware of any case in which such a liberal, modern approach had been applied to the construction of a penal statute. She could not think of one, but undertook research the point. The following day, she sent the court a most helpful note. She had found one case of some relevance. It did not assist her but, in the best tradition of the Bar, she referred us to it. It was the case to which I have just referred, Inco Europe Ltd and others v First Choice Distribution. As she pointed out, it was not itself a criminal case. The court had concluded that the draftsman had made an error and had failed to achieve what had clearly been the intention of Parliament. After referring to the Jones v Wrotham Park Settled Estates case and the three conditions that must be satisfied before Parliament will undertake such a liberal construction, Lord Nicholls of Birkenhead said:
  66. "Sometimes even when these conditions are met, the court may find itself inhibited from interpreting the statutory provision in accordance with what it is satisfied was the underlying intention. The alteration in the language may be too far reaching. In Western Bank v Schindler [1977] 1 Ch 18 Scarman LJ observed that the insertion must not be too big, or too much at variance with the language used by the legislature. Or the subject matter may call for a strict interpretation of the statutory language, as in penal legislation. None of these considerations apply in the present case."

    In my judgment, that citation from the Inco Europe case provides something of an answer to Simon J's question. It suggests a modern, liberal construction would not be appropriate in relation to a penal statute, which must be strictly construed.

  67. In summary, Miss Lieven's submission was that section 132(1), read together with Article 4(2) of the Commencement Order, applied to Mr Haw. The Commencement Order was validly made under section 178 and no question of ultra vires arose. If the court did not accept that submission and concluded that Parliament had failed to achieve that which she submitted it plainly intended to achieve, she invited us to apply a modern, purposive construction and, in effect, to alter the wording of the statute to achieve what Parliament had intended.
  68. Mr Clemens adopted almost all of Miss Lieven's submission. He did, however, accept that, when read alone, section 132(1) did not apply to Mr Haw. He adopted Miss Lieven's submission that the Commencement Order was validly made under section 178 and that the purpose of the Act was such that Parliament must have and, in fact, did intend that the Act should apply to Mr Haw.
  69. Mr Clemens also gave the court a little further background information. He told us, for example, that there was one other ongoing demonstration in Parliament Square, besides that of Mr Haw. He told us that the police had no concerns about Mr Haw as a security risk. He had been generally co-operative with the need for the police to make security checks. The police concern was that others would take advantage of the presence of the placards in the Square. He told us that the police would always enforce whatever law was passed by Parliament, but they supported Miss Lieven's submissions because they had concerns about the situation that would arise if this court were to hold that Mr Haw was not caught by the Act. The police would have two different regimes in operation at the same time.
  70. In reply, Mr Drabble submitted that Miss Lieven's argument that we should make a modern, purposive construction of the statute did not get off the ground. The words of section 132(1) were clear. As Mr Clemens had just accepted, they did not apply to a demonstration that had started before the Act came into force. If the Commencement Order was validly made, the meaning of the altered section 132 was also clear. The section would apply to Mr Haw. There was no ambiguity or obscurity in the words. Nor, he submitted, was there any inherent absurdity in the idea that Parliament would legislate to control future demonstrations, but not existing ones. If one looked at Hansard, one might be persuaded that Parliament had intended to include ongoing demonstrations, but the court should not look at Hansard unless and until there was a need to do so caused by ambiguity, obscurity or absurdity. We should not have regard to the Parliamentary material, even though we had looked it de bene esse. We had no need of it and no justification for looking at it. In any event, he submitted, the material did not help with the statutory construction. It did not help with the meaning of any words or phrases. It did not address the question of what was meant by the words of section 178(10).
  71. As for the submission that we should apply a modern, purposive construction and go through the process permitted in Jones v Wrotham Park, Mr Drabble submitted that that would be quite inappropriate in a penal statute. As Simon Brown LJ had said in R v Bristol Magistrates' Court ex parte E [1998] 3 All ER 798 at page 804:
  72. "It is a principle of legal policy that a person should not be penalised except under clear law."

    It would be quite inappropriate, submitted Mr Drabble, for this court to construe the Act so as to provide for continuing demonstrations to be included. Parliament could quite easily have done that, had it chosen to do so. If wanted to do so in future, it could amend the Act, but it was not for this court to construe these provisions other than in accordance with their clear meanings.

  73. Finally, he submitted that the only real question for the court was whether the attempt to alter section 132 was ultra vires. There was no power in section 178 to make provisions which amended or modified the Act. Miss Lieven's reliance on dicta in Britnell was not helpful because the Order making power under discussion in that case contained a power to modify the Act as well as to make transitional provisions. The court had held there that the secondary legislation was validly made, but only because the power to modify was available. That power was not available in the present case.
  74. In my view, section 132(1), read alone as enacted, clearly does not create a criminal offence such as would apply to Mr Haw's continuing demonstration. As altered by the Commencement Order, it does so apply. Can an order made under section 178(10) which is limited to the making of provisions appropriate for transitory, transitional or saving purposes, have so radical an effect that it can criminalise conduct which would not otherwise be criminal? I find the suggestion surprising. I confess that I have found difficulty in understanding or defining the scope of, or envisaging the permissible boundaries of an Order made under powers such as those contained in section 178(10). However, I do think that I can recognise on which side of the boundary this particular provision falls.
  75. In my judgment, Article 4(2) of this Order, which alters the effect of section 132(1), so as to make a person conducting a demonstration which began before 1st August 2005 and continues after it criminally liable for conduct which, but for that alteration, would not be criminal cannot be described as a provision made for a transitional purpose in connection with the coming into force of the Act. In plain language, a provision which has that effect is, in my judgment, an amendment. Section 178 does not carry a power to amend and I am satisfied, therefore, that Article 4(2) is ultra vires.
  76. That is enough to dispose of the application. However, I must deal with the arguments so attractively and persuasively advanced by Miss Lieven. She would have the courts say that the purpose of the Act is clear. It is clear that it was the intention of Parliament to include continuing demonstrations and that if Parliament has failed by inadvertence to give effect to its clear intention, we should construe the statute so as to put right the effect of that inadvertence. I accept that the purposes of the Act are clear; they are to regulate demonstrations in the vicinity of Parliament for the prevention of the various ills set out in section 134(2). As Parliament has decided that measures are necessary to regulate such demonstrations, it would be sensible to apply the measures to current demonstrations as well as to those that will take pace in future. However, the fact that it might be sensible to do so does not, in my judgment, mean that Parliament necessarily intended to do so; nor does it mean that it would be absurd or nonsensical not to do so. I accept that there is no reason why Mr Haw's continuing demonstration should not be caught by the Act; indeed it is no part of his case to say that it should not be. He only says that the words of the statute are clear and do not include his ongoing demonstration.
  77. In my judgment, the main purpose of these provisions is clear and is carried into effect. This is not a case in which the legislature has, by inadvertence, failed to carry into effect the main purposes of the legislation. I am not in a position to say whether it was also the intention of Parliament to include ongoing demonstrations which began before 1st August. I do not consider that the conditions precedent for the examination of Parliamentary material were made out because I do not think that there was any ambiguity or obscurity in the words of the section. Nor do I think that, literally construed, they lead to an absurd result. So I do not have regard to Ms Flint's words. Without those words, I cannot say that Parliament intended to include ongoing demonstrations. Indeed, I would infer from the words of section 132 itself that they did not so intend. Only when the Commencement Order was passed was such an intention evinced.
  78. If I were wrong to exclude Ms Flint's words from consideration, I would say that they show that the Government expected that Mr Haw's demonstration would be caught by the Act. But even if I were satisfied that the Government intended that the Act should apply to Mr Haw and that the draftsman had made an error, I would not be prepared to make good the defect. In my judgment, even if this were not a penal statute, there is no room for a modern, liberal, purposive construction. The words of section 132 are clear and they give effect to a perfectly sensible purpose, even though demonstrations which began before 1st August are not caught. The fact that this is a penal statute makes the position even clearer. In my view, penal statutes should be strictly construed and, if there is any ambiguity, it should be resolved in favour of the liberty of the subject. If Parliament wishes to criminalise any particular activity, it must do so in clear terms. If it wishes to do so, Parliament can amend this Act. Whether it can do so by order under section 173 is not for this court to say, at least on this occasion. I, for my part, would grant this application and make the declarations sought.
  79. MR JUSTICE McCOMBE: The factor that weighs with me in this case is that section 132 creates a criminal offence. It is necessary to enquire what facts have to be proved to render a person guilty of that offence. It seems to me to be clear that, on the express wording of the Act, an offence can only be committed if authorisation has not been given when a relevant demonstration starts. It is enacted from the commencement of the Act such an offence is committed where a person organises, takes part or carries on a demonstration, if, when the demonstration starts, authorisation for it has not been given. To my mind, it is entirely clear that the present claimant could not be found guilty of the offence under section 132, in its present form, merely because he does not have the statutory authorisation at the date on which the section comes into force. On its own, the section of the Act would, in my view, not be infringed by the continuation of the claimant's demonstration. The second defendant so concedes, but the first defendant does not.
  80. In my judgment it requires insertion into the Act of words such as "or continues" after the words "when the demonstration starts" to reach that result. No doubt it is for that reason that the first defendant made the statutory instrument and seeks to uphold it. Why bother to do so if the offence is created by the section in its existing form?
  81. The argument of Miss Lieven suggested that this natural construction of section 132 should somehow be affected by the power to makes transitional or "transitory" (sic) provisions in section 178(10). I cannot agree. The question is whether the legislation permits this result to be achieved by the mechanism employed in his case. Does the Act permit the first defendant to create the wider offence not created by the primary legislation in a manner now attempted? To do this, I consider it is necessary to amend section 132. An express power of amendment, no doubt itself having limited bounds, is created by section 173 of the Act. However, the order now relied upon was not made under that section, but under sections 178(7) to (10) of the Act and, for present purposes, especially subsection 10, which enables the making of "transitional" or "transitory" provisions.
  82. I am unable to accept that the Act should be construed to permit what is, in truth, an amendment to section 132 under the guise of transitional or transitory provisions, especially when there is specific power in a different section to make such amendments as may be permissible. The problem, however, is that the express power to amend by instrument is subject to approval by resolution of each House of Parliament. That is not the procedure adopted in this case. Therefore, the defendants cannot rely upon section 173, but only on section 178.
  83. For my own part, I would decline to hold that the mechanism of the transitional or transitory provision is apt to create an extension of the ambit of an enactment imposing criminal liability. However wide the principle of purposive construction of statutes may be, it is, to my mind, undesirable to strain the natural words of an enactment so as to impose criminal liability where none would otherwise exist. It is to be remembered that no-one contends that the claimant's present demonstration is otherwise than lawful. By the order now under challenge he would render himself liable to penalty if he continues to demonstrate without the police authorisation required by the Act. If Parliament wishes to require formal authorisation of lawful activity, which otherwise might be seen as no more than merely embarrassing to Government, it should say so expressly. This is no less so when our society might seem to be under threat. There were times in argument when counsel for the defendants made reference to the security concerns facing the country generally.
  84. I am reminded of the words of Lord Atkin in Liversidge v Anderson [1942] AC 206 at page 204 in a passage, albeit in a dissenting judgment, representing the cornerstone of our Common Law relating to the function of judges when faced with claims involving the liberty of a subject. Lord Atkin said:
  85. "Their function is to give the words [of the Act] their natural meaning, but not perhaps in wartime leaning towards liberty, but following the dictum of Pollock CB in Bowditch v Balchin [1855] Exch R at page 378, cited with approval by my noble and learned friend, Lord Wright, in Barnard v Gorman [1941] AC 378 at page 393:

    'In a case in which the liberty of a subject is concerned we cannot go beyond the natural construction of the statute.'.

    In this country, amid the clash of arms, the laws are not silent. They may be changed but they speak the same language in war as in peace. It has always been one of the pillars of freedom and one of the principles of liberty for which, on recent authority, we are now fighting that judges are no respecters of persons and stand between the liberty of the subject and any attempted encroachments on his liberty by the executive alert to see that any coercive action is justified by law."

  86. I am encouraged that this is the correct approach to the present problem by a passage in the speech of Lord Reid in R v Warner [1969] 2 AC 256 at page 279, reference to which, in one of the cases cited to us, was noted by my Lord, Simon J, in the course of argument. In that case, their Lordships were concerned with the construction of an Act of Parliament which, according to its natural language, imposed strict liability for a criminal offence. Lord Reid was prepared to contemplate for the future an exception to the then general rule that the courts would not go behind the natural wording of an enactment. The exception envisaged was to enable courts to go behind the wording of the legislation to see whether Parliament had been informed that the intention of the drafting was to negative the usual principle that mens rea, or a guilty mind, is a necessary element in every criminal offence. Lord Reid said:
  87. "Members of both Houses are particularly interested in the liberty of the subject and, if it were intended by those promoting a Bill to extend the old but limited class of cases in which absence of mens rea is no defence, I would certainly expect Parliament to be so informed. Then, if Parliament acquiesced, those who dislike such legislation would know whom to blame. But if the words of the Act are not crystal clear and Parliament had not been told of this intention, I would hold without hesitation that it would be wrong to impute to Parliament an intention to depart from its known desire to prevent innocent persons from being convicted."

  88. Again, Lord Reid was concerned to avoid saddling individuals with criminal liability on the basis of possibly doubtful words in an Act of Parliament.
  89. We were referred to certain passages in the debates in Parliament on the Bill, which became the 2005 Act. It was suggested that those passages made it clear that these provisions were intended to "catch" the claimant's demonstration. Certainly, the Minister referred to experience derived from the then current demonstration site in Parliament Square, presumably that of the claimant, but there is nothing in those passages to indicate that section 132 would, without more, cover this claimant's demonstration, or that any particular statutory mechanism under the Act would be used to address continuing demonstrations or this demonstration in particular. It would be entirely consistent with any of those passages and the passing of the Bill in its final form that intention was, for example, to introduce an amendment order under section 173, upon which a further resolution of each House would be required. In the light of what I regard as the clear wording of section 132, that would have been a perfectly reasonable understanding of this statute as enacted.
  90. Further, a limited reference to Parliamentary debates of the type now permitted by our laws as an aid to construction is not called for in this case. The wording of section 132 is not ambiguous and the Act in its present form does not of itself cause an absurd result. Before any question of reference to Parliamentary debates arises, the ambiguity or absurdity must appear from the statute when construed on traditional principles. It is the reverse of that process to refer first to the debates and to argue from them that the literal meaning of the Act does not accord with the expressed intention of the Bill's promoters and is therefore absurd.
  91. For these reasons and for those given by my Lady, I do not consider that the power conferred by section 178(10) is sufficient to enable the creation by amendment of a wider offence, not created by the primary legislation itself. I, too, would allow this application.
  92. MR JUSTICE SIMON: I accept that the exercise of statutory construction starts with a presumption in favour of the exercise of freedom of speech and expression and against criminalising conduct where the intention to do so is doubtful.
  93. However, in my view, the first question for determination in this case is, what is the statutory purpose of section 132 to 138 of the Serious Organised Crime and Police Act 2005? It seems to me that the answer to this question is that Parliament plainly intended to regulate demonstrations in the vicinity of Parliament. The statutory provisions are designed to control and regulate (a) the organisation of such demonstrations, (b) the taking part in such demonstrations, and (c) the carrying-on of demonstrations in the designated area. I shall refer to these as the "relevant acts". This control and relation was not intended for aesthetic reasons or to suppress legitimate extra-Parliamentary opposition, but because of Parliament's concern that the unrestricted exercise of freedom of expression close to the centre of Government and Parliament posed a threat to democratic freedom.
  94. The way in which the relevant acts are to be regulated in sections 132 to 138 is by requiring authorisation in advance. It is accepted by Mr Clemens, who appeared on behalf of the Commissioner for the Metropolitan Police, that the decision of the Commissioner to give or withheld authorisation under section 134 would be subject to judicial review. If authorisation is not given, a person who carries out the relevant act may, subject to various statutory defences, be guilty of an offence.
  95. The claimant's argument is that he is outside this authorisation process because his demonstration started before the Act came into force. He relies on the words "when the demonstration starts" in the expression "is guilty of an offence if, when the demonstration starts, authorisation for the demonstration has not been given."
  96. In my judgment, there are a number of objections to this argument. First, it is a basic rule of statutory construction that the aim in construing any statute is to give a construction which gives effect to the statutory purpose. The legislative purpose of sections 132 to 138 is clear: it is to regulate demonstrations in the designated area, not just some demonstrations, all demonstrations.
  97. Secondly, I can see no rational reason, and none has been advanced, why Parliament should have intended entirely to exclude from this regulation one or more demonstrations which began before the commencement date. As Miss Lieven put in her skeleton argument:
  98. "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."

  99. I would approach the question of construction with these points in mind. In my view, the language of section 132(1), although not as precise as it might have been, was designed to focus on the time of authorisation. The words "when the demonstration starts" were inserted to make it clear that the Commissioner's authorisation under section 134(2) must be sought and given in advance, in contradistinction to during the course of the demonstration or retrospectively. This is a convenient method of regulating demonstrations, but does not lead, in my view, to the conclusion that the demonstrations which are in existence before the commencement date are outside the regime of regulation.
  100. I do not accept that Parliament failed to deal with the case of a continuing demonstration. However, if I had come to that conclusion, I would have been prepared to construe the statute by omitting the words "when the demonstration starts" from section 132(1) in the case of a demonstration which had stared prior to the commencement date. Such a construction would give effect to the clear intention of Parliament and it would correct what would otherwise be an absurdity.
  101. An objection might be taken to both these constructions on the basis that a demonstration which had began prior to the commencement date could never be authorised. However, that objection is, in my view, covered by terms of the Commencement Order, to which I will come later.
  102. Onc of the objections raised against this construction by Mr Drabble QC, counsel for the claimant, is that it gives section 132 retrospective effect. He referred us to the effect of Plewa v Chief Adjudication Officer [1995] 1 AC 249 (HL) at 256 where Lord Woolf quoted with approval the advice from the Privy Council in Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 to 558:
  103. "... there is at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used. A statute is retrospective if it takes away or impairs a vested right acquired under existing laws or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past."

  104. Mr Drabble accepted that the claimant had no vested right to demonstrate; but nor, in my view, do sections 132 to 138 create any new obligation, duty or disability in regard to events past. They only create obligations, duties or disabilities in relation to the future. There is no objectionable retrospective effect because the need for authorisation and the lack of authorisation which may give rise to criminal sanctions only arises once the Act takes effect on its commencement.
  105. Another objection raised by Mr Drabble is that such a construction offends against an important canon statutory construction, the principle against penalisation under doubtful law.
  106. Like the other members of the court, I accept the principle; but this is not the usual case. In many cases that come before the court, the court will be looking at conduct and deciding whether such conduct was penalised under (ex hypothesi) doubtful statutory provision.
  107. In the present case, the claimant has brought proceedings which have the effect of determining the lawfulness of his actions. This enables the court to declare what the correct construction of the statute is before the claimant acts to his detriment. Furthermore, I do not accept that the presumption against criminalisation should always be viewed as the over-riding consideration. In an era of heavy statutory programmes, demands on Parliamentary time and Parliamentary draftsmen in the consideration and drafting of primary and secondary legislation, it is likely that mistakes will occur. A Consolidation Act may not accurately reflect the statutory provision it replaces. A transitional provision in a schedule may have introduced a double negative in the course of an elaborate piece of drafting. In such cases, it seems to me that the courts should be prepared to construe a penal provision so as to give effect to what must have been the clear will of Parliament and to correct what would otherwise be an absurdity.
  108. The conclusion contended for by the claimant, that a demonstration begun on or before 31st July is, by reason of that fact alone, outside the ambit of section 132 would, to my mind, be surprising to a very high degree.
  109. In Pepper v Hart [1993] AC 593 the House of Lords decided that it was permissible to look at Parliamentary material as an aid to construction of legislation. At page 634D Lord Browne-Wilkinson set out the principle in a passage with which the majority of the House agreed:
  110. "In my judgment, subject to the questions of the privileges of the House of Commons, reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity."

  111. The passages relied on by the Secretary of State meet the criteria set out by Lord Browne-Wilkinson at page 640B to C. First, the statements relied on consist of one or more statements by a Minister or other promoter of the Bill. Secondly, the statements are clear.
  112. In addition to the passage cited by Smith LJ, Miss Lieven relied on another statement of the Minister:
  113. "Those who organise demonstrations around Parliament should notify the Metropolitan police in advance, and the police should impose conditions in advance depending on the circumstances of each demonstration. That is the most effective way of achieving what we want, and of resolving the problem that has emerged. The issue is not just about one individual: it is about the fact that the problems of the last few years could be taken on by other individuals as well, and we need to deal with that ..."

  114. In my view, Miss Lieven, who appeared for the Secretary of State, was correct in summarising the Parliamentary material as follows:
  115. 1. Parliament intended that the authorisation of relevant acts was to apply to existing demonstrations.

    2. Parliament was expressing genuine security concerns about the claimant's demonstration.

  116. Furthermore, I can see no reason of principle why, if the other criteria set out in Lord Browne-Wilkinson's speech are met, 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.
  117. I would conclude on this point that the clear intention of Parliament was to bring all demonstrations within the regulatory framework; and that, to give effect to that intention, it is necessary to read the words in section 132, "when the demonstration starts", as limited to a demonstration which has a starting point after the commencement of the Act.
  118. It follows from this analysis that I do not accept that the Commencement Order extends the scope of section 132 of the Act. The Serious Organised Crime and Police Act 2005 Commencement No 1 Transitional and Transitory Provisions (Order) 2005 No 1521 set out the Secretary of State's exercise of powers under section 178 of the Act. Article 4(1) of the Order brings section 132 into effect on 1st August. From that time, any person will have a choice as whether they wish to carry out the relevant acts within the designated area; but, if they wish to do so, they will have to seek authorisation which must precede the demonstration.
  119. Article 4(2) deals with an argument that might be made against a continuing demonstration, such as the claimant's: namely, that no authorisation could ever be sought or granted for a demonstration which has already begun because there is no clear starting point for it. Article 4(2) provides that applications can be made and authorisations granted as if the demonstration had begun on 1st August 2005. Thus, the claimant can give notice seeking authorisation under section 133(2) either seven days or 24 hours before 1st August, but not afterwards.
  120. If I am wrong thus far, I would not have accepted Miss Lieven's argument that the matter could be corrected by the use of a commencement order for the reasons indicated by my Lady and my Lord. However, for the reasons I have indicated, I would refuse the application.
  121. LADY JUSTICE SMITH: Mr Drabble, the application succeeds and you will have the declarations as sought.
  122. MR DRABBLE: My Lady, the form of relief we have asked for is an order quashing the relevant parts of Articles 3(1)(p), 3(5) and 4(2). I am perfectly content with a simple declaration for those parts ultra vires, but I mind not. The second declaration is the one that matters.
  123. LADY JUSTICE SMITH: Exactly. You may certainly have your second one. (Pause). Mr Drabble, we think that, as two of us have found that those parts of the order are ultra vires, you should have your quashing order. So there will be an order quashing those parts of the Commencement Order which purport to extend the scope of the 2005 Act to continuing demonstrations, that is in Articles 3(1)(p), 3(5) and 4(2). You will also have your declaration that the claimant is not required to seek authorisation for the continuing protest, pursuant to sections 132 to 138.
  124. MR DRABBLE: My Lady, I also apply for my costs. I will make my application against both defendants. They may wish to sort it out between themselves. Also, a Legal Aid assessment.
  125. LADY JUSTICE SMITH: Yes. Mr Morshead?
  126. MR MORSHEAD: My Lady, we cannot resist the claim for relief, nor can we resist an order for costs, nor do we seek to do so.
  127. MR CLEMENS: My Lady, nor can I. I have an eye to the clock now. I do not wish to waste the court's time, but there is an issue between the respondents as to the proportion of the costs. It was hoped that agreement would be reached, which would have been infinitely preferable in this case, as to where the costs burden should lie because, of course, in principle, Mr Drabble must have his costs. My Lady, I do not think it would take very long to argue. I would be very brief. You will understand the Commissioner's position.
  128. LADY JUSTICE SMITH: What proportion do you say you should pay?
  129. MR CLEMENS: My Lady, I would put it as something like 20%. It cannot be issue-based. It has to be a percentage.
  130. LADY JUSTICE SMITH: It has to be a broad brush approach.
  131. MR CLEMENS: It does, my Lady. May I take you through the arguments very briefly.
  132. LADY JUSTICE SMITH: I think probably we are very conscious of matters, having been concentrating on this case in the last day or two. I am not sure it is necessary. What do say about this, Mr Morshead?
  133. MR MORSHEAD: We are content for that, my Lady.
  134. LADY JUSTICE SMITH: There you are, Mr Clemens. There will be an order for costs. The claimant will have his costs, jointly and severally, I think, against the respondents, although I am sure there will not be a difficulty about that. The Secretary of State is to pay 80% and the Metropolitan Police 20%, and the claimant to have detailed assessment.
  135. MR MORSHEAD: My Lady, I have a further application. It follows from the view taken by your Lordships, especially in the line of remarks by my Lord, Simon J, but the construction your Lordships favour produces this result, that the Secretary of State could not have given effect to Parliament's intention to regulate future demonstrations in relation to demonstrations arising between the giving of Royal Assent on 7th April and the making of the Commencement Order without, at least, on Mr Drabble's partial concession, using the special Parliamentary procedure by section 173. So, respectfully, we would add to the observations made by the minority in this case, but the effect of your Lordship's interpretation is to put beyond the power of the Secretary of State the ability to give effect to Parliament's intention to regulate future demonstrations.
  136. LADY JUSTICE SMITH: No, no.
  137. MR MORSHEAD: In relation to those demonstrations which started between the giving of Royal Assent on 7th April --
  138. LADY JUSTICE SMITH: It depends how quickly Parliament can bring in an amendment.
  139. MR MORSHEAD: My Lady, what we suggest is that this feature of the case be combined with those expressed by the minority view in this court and are a sufficient basis for granting permission to appeal. There are two limbs on which permission may be granted. First of all, it is a case that would have a real prospect of succeeding, and secondly, it would provide a wider issue that arises both in relation to the particular interest in this case, but also, my Lady, because of the possible implications for the use of transitional powers in the future. We suggest that it is appropriate for the Court of Appeal to be seized of this matter. We would be grateful for permission.
  140. LADY JUSTICE SMITH: I think we had better retire to consider that. Do any of you want to say anything about it?
  141. MR CLEMENS: My Lady, no.
  142. LADY JUSTICE SMITH: Mr Drabble?
  143. MR DRABBLE: My Lady, no, we resist it on the basis that if permission is given at all, it should be given by the Court of Appeal, and we would only repeat our submissions that the construction is in place.
  144. LADY JUSTICE SMITH: We will retire for a moment.
  145. (Brief adjournment)
  146. LADY JUSTICE SMITH: I am sorry, Mr Morshead. We consider that you will have to persuade the Court of Appeal and permission is not going to be granted by this court. Thank you very much.
  147. You want an extension of time. How long are you asking for?
  148. MR MORSHEAD: 28 days, my Lady.
  149. LADY JUSTICE SMITH: Yes, we agree that.


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