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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Tchenguiz v Westminster City Council  EWHC 469 (Admin) (07 March 2022)
Cite as:  EWHC 469 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| ROBERT TCHENGUIZ
|- and -
|WESTMINSTER CITY COUNCIL
Ruth Stockley (instructed by Bi Borough Shared Legal Services) for the Defendant
Hearing dates: 16, 17 & 18 February 2022
Crown Copyright ©
Mrs Justice Lang :
Grounds of challenge
i) The Defendant failed to have regard to the public sector equality duty ("PSED") under section 149 of the Equality Act 2010. Contrary to the Defendant's own policy, the restrictions were imposed without any equalities impact assessment.
ii) The Defendant failed to have regard to the interference with the Claimant's rights under Article 8 and Article 1 of the First Protocol ("A1P1") of the European Convention on Human Rights ("ECHR") and/or reached a decision resulting in a disproportionate interference with those rights.
iii) The Defendant improperly exercised powers under section 22C of the 1984 Act for purposes other than avoiding or reducing dangers connected with terrorism, namely, facilitating a parking area for the RAH, and avoiding the restrictions on preventing vehicular access to premises in section 3 of the 1984 Act.
i) It removes the six pay-by-phone parking bays from KGW;
ii) It shortens the motorcycle parking bay outside No. 26 KGW by 6 metres and relocates it to Kensington Gore South West;
iii) It relocates the two "Blue Badge" disabled persons' parking bays on KGW to Kensington Gore South West;
iv) It replaces the "Blue Badge" disabled parking bay and six pay-by-phone parking bays on the south side of the north-west to south-east arm of Kensington Gore with double yellow line "at any time" waiting and loading restrictions;
v) It introduces double yellow line "at any time" waiting and loading restrictions on the west side of KGW, except for a length outside No. 26 and the Royal College of Art where single yellow line waiting restrictions are to operate between 8.30 a.m. and midnight on Mondays to Saturdays and between 11.30 a.m. and midnight on Sundays, and loading restrictions are to operate between 11.30 a.m. and midnight throughout the week;
vi) It introduces "at any time" loading restrictions at the junctions of Kensington Gore (the eastern and western arms) with Kensington Gore (the northern arm).
i) It prohibits vehicles from entering KGW, adjacent to the RAH, between noon and midnight every day, by means of gates at either end which can only be unlocked by RAH security staff;
ii) It prohibits vehicles and pedestrians from entering KGW and the forecourt on the southeast corner of RAH at such times as considered necessary by and at the discretion of the police as set out in the Explanatory Note;
iii) It prohibits heavy goods vehicles and buses from entering Bremner Road, part of Jay Mews, and part of Kensington Gore.
"16. … The concepts put forward to me at that meeting were starkly different to what has now been designed and implemented under the TMO. The idea that was discussed between Ms Halliday and myself at that meeting was the idea of a pedestrianised area at the southern half of the Royal Albert Hall with the western side of Kensington Gore remaining accessible by vehicles. I had proposed that the road be turned into a cul-de-sac with a turning circle by my house. I was accepting of the prospect of reducing the traffic outside my front door, but that was because I was assured that full time vehicular access to my house would remain in place through gates or bollards, that there would be the same number of car parking spaces available and that my concerns about accessing my house and security would be addressed. This is not what has transpired in the TMO.
17. At that meeting I understand that Ms Halliday noted that I said, "I can walk". That comment was made in respect of walking from the nearest parking place on what I imagined to be a cul-de-sac or turning circle, rather than a statement that I did not require kerbside access for deliveries, pick up and drop off. I did not say that I and others who visit my home could always walk from streets away to access my home, Certainly, it was not an endorsement of the proposals within the traffic orders that have been made."
"Two temporary security gates will be installed to allow the managed closure of the road, preventing public vehicle access during agreed times (12 pm – 12 am). These would be operated by the RAH and would be managed to allow access for loading, disabled visitors etc."
i) The Claimant met with representatives of the RAH in June 2019 and January 2020. The scheme presented in 2020 included the timed closure of KGW and "at that time, the Claimant appeared to support the proposals to close this length of road (a record of the discussions is available)".
ii) The Defendant and its consultants were fully aware that No. 26 is a residential property. The letter that was sent was using a template which caters for both businesses and private residences.
iii) A road closure that prevents vehicular access is considered to offer a high level of protection against the risks associated with vehicle-borne terrorism at this high-profile venue, and so these measures are in the public interest.
iv) It was not considered possible to provide a workable and secure closure of Kensington Gore East which contains in the region of 120+ residences at Albert Hall Mansions and a high number of residents' parking spaces. Such a closure would necessitate the removal of about 18 residents' parking spaces; impact deliveries; and require a degree of flexible vehicle access control management for exceptions which would effectively nullify the benefits of installing gates. The installation/retention of security barriers on the east side of the RAH formed the most workable form of security. A survey in 2018 showed that traffic flows were approximately 71% higher on Kensington Gore East than KGW.
v) The proposals provide reasonable access to the Claimant's property. Waiting will be permitted between midnight and 8.30 am on Mondays to Saturdays, and between midnight and 11.30 am on Sundays. Loading will be permitted between midnight and 11.30 am on Mondays to Saturdays. At other times, parking, waiting and loading can take place in Kensington Gore South West, subject to restrictions. It is a common requirement for residents living in Westminster and in the vicinity of high profile buildings to have to park in a nearby road.
vi) The duty under section 122 of the 1984 Act, to secure and maintain reasonable access to premises, is exercised "so far as practicable" and the local authority should have regard to other relevant matters. There is no obligation to provide parking outside a resident's property if the safe movement of pedestrians or vehicles could be compromised. The proposals are a proportionate exercise of its duty under section 122 of the 1984 Act.
vii) The provision of additional carriageway space for patrons of the RAH to arrive and disperse after a show is a secondary benefit of the closure of KGW.
"(1) The traffic authority for a road in Greater London may make an order under this section for controlling or regulating vehicular and other traffic (including pedestrians). Provision may, in particular, be made—
(a) for any of the purposes, or with respect to any of the matters, mentioned in Schedule 1 to this Act, and
(b) for any other purpose which is a purpose mentioned in any of paragraphs (a) to (g) of section 1(1) of this Act.
(3) Any order under this section may be made so as to apply—
(a) to the whole area of a local authority, or to particular parts of that area, or to particular places or streets or parts of streets in that area;
(b) throughout the day, or during particular periods;
(c) on special occasions only, or at special times only;
(d) to traffic of any class;
(e) subject to such exceptions as may be specified in the order or determined in a manner provided for by it."
"(1) The traffic authority for a road outside Greater London may make an order under this section (referred to in this Act as a "traffic regulation order") in respect of the road where it appears to the authority making the order that it is expedient to make it—
(a) for avoiding danger to persons or other traffic using the road or any other road or for preventing the likelihood of any such danger arising, or
(b) for preventing damage to the road or to any building on or near the road…"
"(1) … a traffic regulation order shall not be made with respect to any road which would have the effect—
(a) of preventing at any time access for pedestrians, or
(b) of preventing for more than 8 hours in any period of 24 hours access for vehicles of any class,
to any premises situated on or adjacent to the road, or to any other premises accessible for pedestrians, or (as the case may be) for vehicles of that class, from, and only from, the road.
(2) Subsection (1) above, so far as it relates to vehicles, shall not have effect in so far as the authority making the order are satisfied, and it is stated in the order that they are satisfied, that—
(a) for avoiding danger to persons or other traffic using the road to which the order relates or any other road, or
(b) for preventing the likelihood of any such danger arising, or
(c) for preventing damage to the road or buildings on or near it, or
(d) for facilitating the passage of vehicular traffic on the road, or
(e) for preserving or improving the amenities of an area by prohibiting or restricting the use on a road or roads in that area of heavy commercial vehicles,
it is requisite that subsection (1) above should not apply to the order."
(1) An order may be made under section 1(1)(a) for the purpose of avoiding or reducing, or reducing the likelihood of, danger connected with terrorism (for which purpose the reference to persons or other traffic using the road shall be treated as including a reference to persons or property on or near the road).
(2) An order may be made under section 1(1)(b) for the purpose of preventing or reducing damage connected with terrorism.
(3) An order under section 6 made for a purpose mentioned in section 1(1)(a) or (b) may be made for that purpose as qualified by subsection (1) or (2) above.
(6) In this section "terrorism" has the meaning given by section 1 of the Terrorism Act 2000."
"(1) In this Act "terrorism" means the use or threat of action where–
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or an international govermental organisation or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.
(2) Action falls within this subsection if it–
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system."
"(1) An order may be made, and a notice may be issued, by virtue of section 22C only on the recommendation of the chief officer of police for the area to which the order or notice relates.
(1A) Any statutory requirement to publish a proposal for, or a notice of, the making of an order does not apply to an order made by virtue of section 22C if the chief officer of police for the area to which the order relates considers that to do so would risk undermining the purpose for which the order is made.
(2) The following shall not apply in relation to an order made, or a notice issued, by virtue of section 22C–
(a) section 3,
(b) section 6(5),
(c) the words in section 14(4) from "but" to the end,
(d) section 121B, and
(e) paragraph 13(1)(a) of Schedule 9.
(3) Sections 92 and 94 shall apply in relation to an order under section 14 made, or a notice under that section issued, by virtue of section 22C as they apply in relation to an order under section 1 or 6.
(4) An order made, or a notice issued, by virtue of section 22C, or an authorisation or requirement by virtue of subsection (3) above, may authorise the undertaking of works for the purpose of, or for a purpose ancillary to, another provision of the order, notice, authorisation or requirement.
(5) An order made, or a notice issued, by virtue of section 22C may–
(a) enable a constable to direct that a provision of the order or notice shall (to such extent as the constable may specify) be commenced, suspended or revived;
(b) confer a discretion on a constable;
(c) make provision conferring a power on a constable in relation to the placing of structures or signs (which may, in particular, apply a provision of this Act with or without modifications);
(d) enable a constable to authorise a person of a description specified in the order or notice to do anything that the constable could do by virtue of this subsection."
"122 Exercise of functions by [strategic highways companies or] local authorities.
(1) It shall be the duty of [every][strategic highways company and] local authority upon whom functions are conferred by or under this Act, so to exercise the functions conferred on them by this Act as (so far as practicable having regard to the matters specified in subsection (2) below) to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) and the provision of suitable and adequate parking facilities on and off [the highway or, in Scotland the road].
(2) The matters referred to in subsection (1) above as being specified in this subsection are—
(a) the desirability of securing and maintaining reasonable access to premises;
(b) the effect on the amenities of any locality affected and (without prejudice to the generality of this paragraph) the importance of regulating and restricting the use of roads by heavy commercial vehicles, so as to preserve or improve the amenities of the areas through which the roads run; [(bb) the strategy prepared under section 80 of the Environment Act 1995 (national air quality strategy);]
(c) the importance of facilitating the passage of public service vehicles and of securing the safety and convenience of persons using or desiring to use such vehicles; and
(d) any other matters appearing to [the strategic highways company or]... the local authority ... to be relevant.
"35. If any person desires to question the validity of, or of any provision contained in, an order to which this Part of this Schedule applies, on the grounds—
(a) that it is not within the relevant powers, or
(b) that any of the relevant requirements has not been complied with in relation to the order,
he may, within 6 weeks from the date on which the order is made, make an application for the purpose to the High Court or, in Scotland, to the Court of Session.
36. (1) On any application under this Part of this Schedule the court—
(a) may, by interim order, suspend the operation of the order to which the application relates, or of any provision of that order, until the final determination of the proceedings; and
(b) if satisfied that the order, or any provision of the order, is not within the relevant powers, or that the interests of the applicant have been substantially prejudiced by failure to comply with any of the relevant requirements, may quash the order or any provision of the order.
(2) An order to which this Part of this Schedule applies, or a provision of any such order, may be suspended or quashed under sub-paragraph (1) above either generally or so far as may be necessary for the protection of the interests of the applicant.
37. Except as provided by this Part of this Schedule, an order to which this Part of this Schedule applies shall not, either before or after it has been made, be questioned in any legal proceedings whatever."
Ground 1: PSED
"A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it."
Subsection (3) goes on to state:
"Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low."
"(1) As stated by Arden LJ in R (Elias) v Secretary of State for Defence  EWCA Civ 1293 at 274,  IRLR 934,  1 WLR 3213, equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation.
(2) An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v Secretary of State for the Home Department  EWCA Civ 1293,  IRLR 934,  1 WLR 3213 (Stanley Burnton J (as he then was)).
(3) The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health  EWCA Civ 154 at 26–27] per Sedley LJ.
(4) A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a "rearguard action", following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing  EWHC 2062 (Admin) at 23–24.
(5) These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions  EWHC 3158 (Admin),  PTSR 1506, as follows:
i) The public authority decision maker must be aware of the duty to have "due regard" to the relevant matters;
ii) The duty must be fulfilled before and at the time when a particular policy is being considered;
iii) The duty must be "exercised in substance, with rigour, and with an open mind". It is not a question of "ticking boxes"; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument;
iv) The duty is non-delegable; and
v) Is a continuing one.
vi) It is good practice for a decision maker to keep records demonstrating consideration of the duty.
(6) "[G]eneral regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria." (per Davis J (as he then was) in R (Meany) v Harlow DC  EWHC 559 (Admin) at 84, approved in this court in R (Bailey) v Brent LBC  EWCA Civ 1586 at 74–75.)
(7) Officials reporting to or advising Ministers/other public authority decision makers, on matters material to the discharge of the duty, must not merely tell the Minister/decision maker what he/she wants to hear but they have to be "rigorous in both enquiring and reporting to them": R (Domb) v Hammersmith & Fulham LBC  EWCA Civ 941 at 79 per Sedley LJ.
(8) Finally, and with respect, it is I think, helpful to recall passages from the judgment of my Lord, Elias LJ, in R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills  EWHC 201 (Admin) (Divisional Court) as follows:
(i) At paragraphs [77–78]
" Contrary to a submission advanced by Ms Mountfield, I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then as Dyson LJ in Baker (para ) made clear, it is for the decision maker to decide how much weight should be given to the various factors informing the decision.
 The concept of 'due regard' requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors. If Ms Mountfield's submissions on this point were correct, it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making."
(ii) At paragraphs [89–90]
" It is also alleged that the PSED in this case involves a duty of inquiry. The submission is that the combination of the principles in Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014 and the duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean than some further consultation with appropriate groups is required. Ms Mountfield referred to the following passage from the judgment of Aikens LJ in Brown (para ):
'….the public authority concerned will, in our view, have to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons' disabilities in the context of the particular function under consideration.'
 I respectfully agree….""
"The Director of Highways, in making the decision to introduce the relevant Anti-Terrorism Traffic Regulation Order dated 14 July 2021, was aware of the specific statutory criteria under s.149 of the Equality Act 2010 and considered each of the specific criteria. The decision was further informed by the Part 2 Cabinet Member report seeking approval to the scheme and the traffic orders dated 7 October 2020 and the equalities impacts were assessed in detail."
After the Claimant criticised the lack of statement of truth, Mr Goad filed a further response with a statement of truth.
Ground 3: Improper motives
"Two temporary security gates will be installed to allow the managed closure of the road, preventing public vehicle access during agreed times (12 pm – 12 am). These would be operated by the RAH and would be managed to allow access for loading, disabled visitors etc."
"Recommendation for a Permanent Anti-Terrorism Traffic Regulation Order (ATTRO)
Royal Albert Hall
I have been made aware of plans to redesign the public space in the immediate vicinity of the Royal Albert Hall. Specifically, the desire to incorporate permanent protective security measures into the public realm to provide a safer space for people attending this iconic venue and communities working and living in the locality, from the threat of a vehicle borne terrorist attack.
The use by terrorists of vehicles as a weapon is not a new tactic. Its ease of deployment and low technical threshold for use by threat actors has led to a review of the protective security mitigation for this iconic venue in the context of the ongoing redevelopment and renovation of the building and immediate area.
Having seen and been briefed on the redevelopment proposals I can confirm I am supportive of, and therefore recommend the instigation of a permanent Anti-Terrorism Traffic Regulation Order (ATTRO) in relation to the closure of roads and public rights of way in the environs of the Royal Albert Hall. This will be at specified daily times, or for certain other occasions, for the locations listed below.
Such security measures are often deployed to close roads to vehicles and control access, sometimes supported by physical measures. I consider a permanent ATTRO a precautionary protective security measure for the safety and security of persons in the locality of the Royal Albert Hall, for daily business, significant events, when intelligence dictates; or when the threat level increases. In the context of post COVID19 lockdown restrictions easing, the use of physical measures to protect members of the public attending the location is also considered a sensible approach.
Accordingly, police are recommending the following order for a permanent ATTRO used in a manner pursuant to s6 & s22(C) s22(D) Road Traffic Regulation Act 1984 (RTRA). This is to place measures in the following locations to allow for the closure of the roads to vehicular traffic, passengers of such traffic and pedestrians except those vehicles or pedestrians allowed at the discretion of a Police Constable or appropriately 'designated person' or 'authorise agent' acting on behalf of a constable.
- Kensington Gore (West) at the junction with Kensington Road
- Kensington Gore (West) where two temporary security gates will be installed (at point 2 on the map below)
- Kensington Gore (East) outside the entrance to No. 3 Albert Court (at point 3 on the map below)
Having a permanent ATTRO in place means that the police would rely on the order being available as an operational tool, in operation daily at agreed times but also on a contingency basis that could be activated at any time in response to a threat or intelligence.
The commencement or revival of the order will prohibit all traffic:
1. On a daily basis, In Kensington Gore West from 12pm until 12am daily. This is considered necessary to:
- Avoid or reduce, or reduce the likelihood of, danger connected with terrorism;
- Prevent or reduce damage connected with terrorism as defined by Section 1, Terrorism Act, 2000.
Daily closure times are considered crucial because the Royal Albert Hall holds over 400 events annually, all of which attract large crowds. Having consistent daily closure times will provide consistency to the local community and road users during these hours of operation.
2. For other planned, significant events - At dates and times advertised on site at least seven days in advance when significant events or entertainment take place in/around the Royal Albert Hall under the authority of a police Gold commander who is satisfied the implementation is necessary to:
- Avoid or reduce, or reduce the likelihood of, danger connected with terrorism; and
- Prevent or reduce damage connected with terrorism as defined by Section 1, Terrorism Act, 2000
It is proposed that the Royal Albert Hall's security staff will manage the opening and closing of any measures in Kensington Gore West at 12pm and 12am daily, and for other planned, significant events, as ' designated persons'; a delegated authority granted under Section 22D(5)(d) of the Road Traffic Regulation Act 1984.
3. On receipt of intelligence and/or on in response to an increased threat of danger or damage due to terrorism. In this situation, commencement or revival of the order will be under the authority of a police Gold commander, or, in responding to a spontaneous terrorist attack or believing such an attack is imminent, the appropriate delegated authority will be the 'designated person' under Section 22D(5)(d) of the Road Traffic Regulation Act 1984.
When the order is being activated or resumed for any other planned, significant event or to counter an increased threat, it will remain in operation for an agreed stipulated period, or for a spontaneous incident only for as long as is absolutely necessary to deal with that incident. This will be necessary to prevent access to a defined area by a determined vehicle-borne attacker.
Pedestrians, both resident and working within the closure area will continue to be facilitated access on discretion of a constable or designated person.
When the ATTRO is activated, the Metropolitan Police, Westminster City Council, TfL and the Royal Albert Hall will work together to ensure that measures are deployed appropriates. Specific training and awareness will be provided to police officers and Royal Albert Hall security staff.
These measures are considered precautionary, proportionate and necessary for the safety and security plan in place for this nationally iconic site and I regard these restrictions as an important part of our plan to avoid, or reduce the likelihood of, danger connected with terrorism.
"The second tranche of measures would see a number of hostile vehicle mitigation (HVM) measures and associated parking amendments introduced in the roads on the east and west sides of the Royal Albert Hall. The HVM measures have been endorsed by the Assistant Commissioner of Specialist Operations for the Metropolitan Police Service who has recommended the City Council make an Anti-Terrorism Traffic Regulation Order under section 22C of the Road Traffic Regulation Order for this purpose."
"Statement of Reasons
The Royal Albert Hall Protective Security and Public Realm Improvement scheme includes the introduction of road closures (by means of security gates and vehicle barriers) and bus and heavy goods vehicle prohibitions around this venue in order to improve the safety and comfort of residents, visitors and workers.
The introduction of daily road closures between noon and midnight in the western arm of Kensington Gore is considered necessary because the Royal Albert Hall holds over 400 events annually, all of which attract large crowds. Having regular closure times will provide consistency to the local community and road users during these hours of operation. This length of road may also be closed at the direction of the Metropolitan Police for other planned events or as circumstances dictate in order to mitigate the effects of and reduce the likelihood of danger connected with terrorism.
The removal or relocation of certain parking places from the eastern and western arms of Kensington Gore and the introduction of double yellow line "at any time" waiting and loading restrictions are necessary to ensure these lengths of road are free of parked vehicles for the purposes of enhanced security for residents and the Royal Albert Hall."
"Before we decide how we are going to respond to the objection I would be interested to understand the justification from the MPS as to why there was a recommendation for a timed road closure on Kensington Gore West while the road remains open to vehicles on Kensington Gore East."
"….it was not a usual ATTRO application – i.e. it was not the MPS approaching the authority with a police-led recommendation. Instead, the MPS was informed of the intention to redesign the highway and deploy HVM measures under an ATTRO by the RAH project team and WCC and based on the briefing provided to AC Basu, he supported the ATTRO recommendation – and that was reflected in the content of the letter."
"So in essence the rationale for the position of the deployment of the measures been made through a series of consultation processes with the local community who in the main showed support for the scheme. The final positioning of the measures was after the initial consultation had taken place and feedback had been provided. It was felt the most proportionate outcome.
The one premises to which you refer is inside the area defined by the ATTRO by some 20 metres. However this has absolutely no impact on pedestrian movement (save for in extremis).
The issue regarding vehicle movement is one which may be managed through the use of discretion being applied and by this I mean that there could be scope for agreement between the RAH staff and the affected resident that with x minutes notice passage will be facilitated on production of a vehicle index, name of a driver and even a 'password'. These are just examples of how the resident can be facilitated if there were need for a delivery of a large item. In cases of emergency access being required, then again, access can be provided at the discretion of the operator…."
Ground 2: Human Rights Act 1998
"Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, 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."
"Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
"Their effect can be sufficiently summarised for present purposes by saying that the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them."
"18.004.1 Intensity of review. In adjudicating on Convention rights under the HRA, the Courts recognise the importance of their role as guardians of human rights. In relation to judicial review, the HRA requires a greater intensity of review than that under the doctrine of Wednesbury unreasonableness. The nature of this new standard of review was explained by Lord Bingham of Cornhill in R. (Daly) v Secretary of State for the Home Department:
"Now, following the incorporation of the Convention by the Human Rights Act 1998 and the bringing of that Act fully into force, domestic courts must themselves form a judgment whether a Convention right has been breached (conducting such inquiry as is necessary to form that judgment) and, so far as permissible under the Act, grant an effective remedy."
The standard for determining proportionality under the HRA was established in R. (Daly) v Secretary of State for the Home Department, in which Lord Steyn stated:
"First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck. not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R. v Ministry of Defence Ex p. Smith, is not necessarily appropriate to the protection of human rights."
Depending on the nature of the case, the courts may afford a degree of latitude, known as "deference" or the "margin of discretion" to the legislature or executive in the protection of the Convention rights. In R. v Lambert (Steven) Lord Woolf noted that when considering the compatibility of legislation with Convention rights the courts should take into account its democratic origins:
"Legislation is passed by a democratically elected Parliament and therefore the courts under the Convention are entitled to and should, as a matter of constitutional principle, pay a degree of deference to the view of Parliament as to what is in the interest of the public generally when upholding the rights of the individual under the Convention."
Such deference is not unlimited, however, since an independent judiciary is itself fundamental to democracy, and since the Human Rights Act accords the judiciary a democratic mandate to adjudicate on the Convention rights.
The degree of deference shown will depend on the subject-matter, and on the relative institutional competence of parliament, the executive or the courts in relation to it. It will also depend on the nature of the right concerned and the degree to which it is intruded upon.
"I recall speaking with AC Basu when the recommendation letter was ready for sign off and asking him if he required a briefing from WCC on the public realm scheme. This was because [of] the way in which he was making the recommendation, it appeared retrospective in nature. He advised that this was not necessary as he was more than content in making the recommendation for the order to be made."
"6. The RAH security team are permitted to allow access and egress to the security areas for vehicles with a genuine business need and in accordance with the OMP and strictly on a prearranged basis. This can include vehicles relating to shows or events held at the venue and for contractors conducting maintenance or repairs to the building. In both examples it is necessary for the company to demonstrate the necessity for the vehicle to be present in advance, to provide details of the vehicle, times of entry and therefore be permitted access.
7. There is clearly a significant and ongoing servicing and maintenance requirement at this venue which will necessitate the need for vehicles to be close by and therefore this will result in both vehicle presence and vehicle movements in the security zone. The purpose of the physical security measures and ATTRO are to reduce the risk of a terrorist attack from a hostile vehicle. In managing any vehicle access point, there should be assurance that the vehicle is there for a legitimate purpose, for example, a preregistered vehicle from known a contractor. The extent of search and screening arrangements will be determined by the risk and threat to a particular site and/or event.
8. RAH operate a scheme whereby parking identifier permits are issued to vehicles approved to enter the security zones and need to park on the public highway. These parking identifier permits will only be issued to vehicles where there is a genuine business need for that vehicle to be close to the venue, identifier permits will not be issued simply for convenience, the operator has 10 identifier permits to use for this purpose. This scheme is approved by the City Council and has been in operation for a number of years. The display of a validated permit on a vehicle will inform marshals responsible for enforcing parking regulations on the public highway that the vehicle has permission to be there.
9. Within the security areas the land comprises public highway and RAH private land and RAH manage access to both. RAH utilise areas of their private land to accommodate vehicles required for servicing and maintenance and also operate an accessible parking scheme whereby patrons with a disability or mobility impairment, who are attending events at RAH, are able to pre book a parking space in the accessible parking area located on RAH private land in the north-west quadrant of the venue. In both situations access is managed on the same basis as for vehicles requiring access to areas of the public highway located within the security areas. Vehicles parked on RAH private land are not required to display an identifier permit, this requirement only applies to vehicles parked on an area of public highway.
10. The City Council may also grant direct permission or dispensation for vehicles to park on the public highway where there is a genuine business need to do so, this will generally be for servicing or maintenance reasons and can include areas of public highway located in the security areas in proximity of RAH. Where a vehicle has been granted permission by the City Council, and access is required to the security zone, the company or driver of the vehicle is still required to arrange access with RAH in accordance with the OMP. A record of vehicles granted direct permission by the City Council will be notified to a parking marshals hand held device."