R (on the application of Gallastegui) Westminster City Council

Human rights – Police Reform and Social Responsibility Act 2011 – Protest – Appellant camping in tent in Parliament Square as part of peace protest – Respondents issuing directions under section 143 of 2011 Act requiring cessation of prohibited activity of erection and use of tents – Whether sections 143 and 145 of 2011 Act incompatible with Articles 10 and 11 of European Convention on Human Rights – Appeal dismissed The appellant was a peace campaigner who, since 2006, had been conducting a protest from a site on the east pavement of Parliament Square in London (PSG), where she camped in a tent. In December 2011, the respondents issued directions to the appellant, under section 143(1) of the Police Reform and Social Responsibility Act 2011, requiring her to cease a “prohibited activity” consisting of the erection and use, in PSG or the pavements surrounding it, of tents or other structures designed or adapted for the purpose of facilitating sleeping or staying in a place for any period; the directions also required the appellant to remove any “prohibited items”. The appellant brought judicial review proceedings to challenge the legality of the directions, arguing that their enforcement would compel her to end her protest, since she could not afford to travel to PSG every day from her home in Eastbourne. She sought declarations that: (i) she was entitled to retain her tent and continue a 24-hour vigil on a specific site within the Square until April 2015, by virtue of permissions previously granted to her by the first interested party, the Commissioner for the Metropolis, under section 134 of the Serious Organised Crime and Police Act 2005; (ii) the relevant provisions of Part 3 of the Act, in particular sections 143 and 145, infringed her rights of freedom of expression and of peaceful assembly under Articles 10 and 11 of the European Convention on Human Rights; and (iii) those rights were likewise infringed by the decision of the defendants to enforce the provisions of Part 3. The claim was resisted by the respondents, the Commissioner and the second interested party, the secretary of state for the home department The Divisional Court rejected the appellant’s main contention that section 143 and 145 were incompatible with the European Convention: [2012] EWHC 1123 (Admin); [2012] PLSCS 94. The appellant appealed. Held: The appeal was dismissed. (1) Section 143(1) conferred a power to make a direction in respect of a prohibited activity but did not impose a duty to do so. The use of the term “prohibited activity” did not indicate that Parliament necessarily intended that the power should be used in all cases. The activities were not prohibited in any particular case until and unless a direction was given under section 143(1). The scheme of the section was that a prohibited activity became unlawful if and when a person failed without reasonable excuse to comply with the direction but it did not confer a broad unlimited discretion. The power had to be exercised to further the policy and objects of the 2011 Act. It was clear from the nature of the statutory provisions themselves, as well as the background material, that Parliament intended that the power would usually be exercised. The whole point of Part 3 of the 2011 Act was to put an end to the prohibited activities defined in section 143(2) and, in particular, to stop the use of tents and other structures designed to facilitate sleeping in PSG. If constables and authorised officers routinely refused to exercise the power conferred by section 143(1), they would not be exercising the power in accordance with the intention of Parliament and would be frustrating the policy and objects of the 2011 Act. But by giving a discretion (rather than imposing a duty), Parliament intended that it might be appropriate in certain exceptional circumstances for the power not to be exercised. It was neither possible nor desirable to attempt to define what those might be. (2) The importance of the right to express views publicly and to assemble for the purpose of expressing and discussing those views could extend to the manner in which, and the location where, it was wished to express them. It was common ground that sections 143 and 145 were capable of interfering with a person’s rights under articles 10 and 11 even though the right to protest in PSG would remain substantially unimpaired by a direction to remove a tent or similar structure. The ability to maintain a permanent presence in PSG, 24 hours a day, week after week, was essential to the nature of the protest that they wished to make. But in considering whether section 143 and 145 were compatible with articles 10 and 11, the limited nature of the interference with the rights conferred by those articles was not to be overlooked: Mayor of London v Hall [2010] EWCA Civ 817; [2011] 1 WLR 504 applied. (3) Sections 143 and 145 were “prescribed by law”. The erection of a tent or other structure in PSG was not unlawful in itself but it was unlawful to refuse to comply with a removal direction without reasonable excuse. The giving of a direction introduced the necessary certainty into the statutory scheme. In practice a protester ought to know that the power to require removal would normally be exercised; and that, in practice, even if a tent was permitted to remain, that would only be for a short period, since the intention of the 2011 Act was to ban long term camping in PSG. In any event, the requirement of a direction was sufficient to introduce the necessary degree of certainty. The powers given by sections 143(1) and 145 were in pursuit of the protection of the rights and freedoms of others which were plainly legitimate aims. They included the preservation of the amenity of PSG itself for all members of the public; preserving the availability of PSG for the exercise of article 10 and 11 rights by other members of the public (and not just those who wished to camp there); the prevention of risks to health that could arise from encampment in PSG; and preventing the risk of crime or risk to public safety arising from such encampment. Although it was to be expected that, save in exceptional circumstances, a direction would be given to a protester to cease using a tent or other structure and prohibited items would be seized and retained, the statutory scheme had been carefully drafted so as not to impose an absolute ban in all cases. There was a power and not a duty to direct removal and to seize and retain prohibited items. The balance was in favour of holding that the statutory interference with article 10 and 11 rights was proportionate. (4) The protected rights in play were “civil rights” within the meaning of article 6 but giving a direction under section 143(1) was not a “determination” of any civil rights for the purposes of article 6. It was an interference with an individual’s article 10 and 11 rights. Where article 10 and 11 rights were engaged the direction was the act which was the alleged interference with the rights; the fact that the direction had been given was the source of the dispute as to civil rights for the purposes of article 6; and a person who had been given a direction might seek the resolution or determination of that dispute by access to the court. Jessica Simor and Samantha Knights (instructed by Bindmans LLP) appeared for the appellant; Natalie Lieven QC and Jacqueline Lean (instructed by Westminster City Council) appeared for the respondents; Adam Clemens (instructed by the Directorate of Legal Services) appeared for the first interested party; Jonathan Swift QC and Deok-Joo Rhee (instructed by the Treasury Solicitor) appeared for the second interested party. Eileen O’Grady, barrister