Human rights – Police Reform and Social Responsibility Act 2011 – Protest – Claimant camping in tent in Parliament Square as part of peace protest – Defendants issuing directions under section 143 of 2011 Act requiring cessation of prohibited activity of erection and use of tents in Parliament Square – Whether directions inconsistent with authorisation for protest issued under section 134 of the Serious Organised Crime and Police Act 2005 – Whether sections 143 and 145 of 2011 Act incompatible with Articles 10 and 11 of European Convention on Human Rights – Claim dismissed
The claimant was a peace campaigner who, since 2006, had been conducting a protest from a site on the east pavement of Parliament Square in London, where she camped in a tent. In December 2011, the defendant issued directions to the claimant, 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 Parliament Square Gardens 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 claimant to remove any “prohibited items”.
The claimant brought judicial review proceedings to challenge the legality of the directions, arguing that enforcement of them would compel her to end her protest, since she could not afford to travel to Parliament Square 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 defendants, the Commissioner and the second interested party, the secretary of state for the home department.
Held: The claim was dismissed.
(1) The provisions of sections 132 to 138 of the 2005 Act neither purported to authorise, nor actually authorised, the placing on the footway of a tent or of any other obstruction of the highway. The control of such activities was a matter for the defendants as the highway authority with responsibility for the appropriate area in Parliament Square. Nothing in the 2005 Act transferred to the Commissioner the powers, duties and responsibilities of the defendants, as highways authority, to protect public rights over the highway land vested in them: City of London Corporation v Samede [2012] EWHC 34 (QB); [2012] PLSCS 21; [2012 EWCA Civ 160; [2012] PLSCS 40 considered. The two Acts dealt with different matters: authorisations under the 2005 Act dealt with the way in which the police controlled demonstrations in Parliament Square, while sections 143 and 145 of the 2011 Act were concerned with different issues as to the use of equipment for amplifying noise and the prohibition on erecting and using tents or other structures for the purpose of sleeping overnight in the Square. Accordingly, there was no inconsistency between the provisions in Part 3 of the 2011 Act and the authorisations granted under section 134 of the 2005 Act.
(2) Neither section 143 nor section 145 of the 2011 Act in itself constituted an infringement of the claimant’s rights. Section 143 did not constitute an absolute prohibition against erecting or using a tent but merely contained a power to direct a person to stop doing those things. It conferred a discretion, not a duty, to make a direction. The statutory powers were limited so as not to infringe the Article 10 and 11 rights of those involved in protest. A person who failed to comply with a direction would not commit an offence, under section 143(8), unless they did so “without reasonable excuse”. To determine whether the recipient of a direction had acted without reasonable excuse would require a fact-sensitive decision that might also, depending on the circumstances, entail a consideration of that person’s Article 10 and 11 rights. If a particular person’s Article 10 or 11 rights were breached by an exercise of the section 143 or 145 powers, then that person would be entitled to the remedies of judicial review and a claim in damages, and to avail himself of the “reasonable excuse” defence if prosecuted. Where appropriate remedies were given to the recipient of a direction, then the statutory provisions conferring those powers could not be incompatible with the rights under Articles 10 and 11 of the Convention. Furthermore, the 2011 Act powers related only sleeping items, and did not impede or prevent any other form of demonstration or protest in Parliament Square at any time of day or night, or even prevent the protestors from remaining overnight. Given the limited effects of sections 143 and 145, and balancing the respective interests, there was no positive obligation imposed on the secretary of state to take any further steps to ensure that the claimant’s Article 10 and 11 rights were preserved: Appleby v United Kingdom (2003) 37 EHRR 38 considered.
(3) Sections 143 and 145 of the 2011 Act pursued the legitimate legislative objective of protecting Members of Parliament and others who needed to be able to carry out their daily work or enjoy the space as visitors, and preventing any one particular person or group of persons from taking over the area to the detriment of others. The restrictions they imposed on Article 10 and 11 rights were designed to meet the legislative objectives and were “rationally connected” to them: De Freitas v Ministry of Agriculture, Fisheries, Land and Housing [1999] 1 AC 69 applied. They were proportionate and went no further than was necessary to accomplish the legislative objective, bearing in mind the limited effect of those provisions and, above all the ability and right to protest in Parliament Square, which was unaffected by the Act: Mayor of London v Hall [2010] EWHC 1613 (QB); [2010] EWCA Civ 817; [2011] 1 WLR 504; [2011] EWHC 585 (QB) and Samede applied; Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23 distinguished. The area in which the claimant placed her tent and made her home was a public space that should belong to and be accessible to all. It could not be appropriated by any single person or group, such as the claimant, who had no proprietary rights in the area. The rights of the public to enjoy and use a place of such significant historical, political and cultural interest as Parliament Square could not be overridden by the claimant’s right to take over part of that Square and use it as her home on an indefinite basis, even as part of a protest. So far as sections 143 and 145 interfered with the claimant’s Convention rights, that interference was prescribed by law and was necessary in a democratic society for the protection of the rights and freedoms of others, within Articles 10(2) and 11(2) of the Convention. Accordingly, sections 143 and 145 did not infringe the claimant’s rights under Articles 10 and 11. Nor did the decision of the defendants to enforce those provisions against the claimant. The defendants had taken the claimant’s Convention rights into account and had been entitled to conclude, on the facts of the case, that they were entitled to exercise their Part 3 powers.
Jessica Simor and Christopher Brown (instructed by Bindmans LLP) appeared for the claimant; Nathalie Lieven QC and Jacqueline Lean (instructed by the legal department of Westminster City Council) appeared for the defendant; Adam Clemens (instructed by the legal department of the Metropolitan Police) appeared for the first interested party; Jonathan Swift QC and Gerard Clarke (instructed by the Treasury Solicitor) appeared for the second interested party.
Sally Dobson, barrister
R (on the application of Gallastegui) v Westminster City Council
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Human rights – Police Reform and Social Responsibility Act 2011 – Protest – Claimant camping in tent in Parliament Square as part of peace protest – Defendants issuing directions under section 143 of 2011 Act requiring cessation of prohibited activity of erection and use of tents in Parliament Square – Whether directions inconsistent with authorisation for protest issued under section 134 of the Serious Organised Crime and Police Act 2005 – Whether sections 143 and 145 of 2011 Act incompatible with Articles 10 and 11 of European Convention on Human Rights – Claim dismissedThe claimant was a peace campaigner who, since 2006, had been conducting a protest from a site on the east pavement of Parliament Square in London, where she camped in a tent. In December 2011, the defendant issued directions to the claimant, 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 Parliament Square Gardens 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 claimant to remove any “prohibited items”.The claimant brought judicial review proceedings to challenge the legality of the directions, arguing that enforcement of them would compel her to end her protest, since she could not afford to travel to Parliament Square 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 defendants, the Commissioner and the second interested party, the secretary of state for the home department.Held: The claim was dismissed.(1) The provisions of sections 132 to 138 of the 2005 Act neither purported to authorise, nor actually authorised, the placing on the footway of a tent or of any other obstruction of the highway. The control of such activities was a matter for the defendants as the highway authority with responsibility for the appropriate area in Parliament Square. Nothing in the 2005 Act transferred to the Commissioner the powers, duties and responsibilities of the defendants, as highways authority, to protect public rights over the highway land vested in them: City of London Corporation v Samede [2012] EWHC 34 (QB); [2012] PLSCS 21; [2012 EWCA Civ 160; [2012] PLSCS 40 considered. The two Acts dealt with different matters: authorisations under the 2005 Act dealt with the way in which the police controlled demonstrations in Parliament Square, while sections 143 and 145 of the 2011 Act were concerned with different issues as to the use of equipment for amplifying noise and the prohibition on erecting and using tents or other structures for the purpose of sleeping overnight in the Square. Accordingly, there was no inconsistency between the provisions in Part 3 of the 2011 Act and the authorisations granted under section 134 of the 2005 Act.(2) Neither section 143 nor section 145 of the 2011 Act in itself constituted an infringement of the claimant’s rights. Section 143 did not constitute an absolute prohibition against erecting or using a tent but merely contained a power to direct a person to stop doing those things. It conferred a discretion, not a duty, to make a direction. The statutory powers were limited so as not to infringe the Article 10 and 11 rights of those involved in protest. A person who failed to comply with a direction would not commit an offence, under section 143(8), unless they did so “without reasonable excuse”. To determine whether the recipient of a direction had acted without reasonable excuse would require a fact-sensitive decision that might also, depending on the circumstances, entail a consideration of that person’s Article 10 and 11 rights. If a particular person’s Article 10 or 11 rights were breached by an exercise of the section 143 or 145 powers, then that person would be entitled to the remedies of judicial review and a claim in damages, and to avail himself of the “reasonable excuse” defence if prosecuted. Where appropriate remedies were given to the recipient of a direction, then the statutory provisions conferring those powers could not be incompatible with the rights under Articles 10 and 11 of the Convention. Furthermore, the 2011 Act powers related only sleeping items, and did not impede or prevent any other form of demonstration or protest in Parliament Square at any time of day or night, or even prevent the protestors from remaining overnight. Given the limited effects of sections 143 and 145, and balancing the respective interests, there was no positive obligation imposed on the secretary of state to take any further steps to ensure that the claimant’s Article 10 and 11 rights were preserved: Appleby v United Kingdom (2003) 37 EHRR 38 considered.(3) Sections 143 and 145 of the 2011 Act pursued the legitimate legislative objective of protecting Members of Parliament and others who needed to be able to carry out their daily work or enjoy the space as visitors, and preventing any one particular person or group of persons from taking over the area to the detriment of others. The restrictions they imposed on Article 10 and 11 rights were designed to meet the legislative objectives and were “rationally connected” to them: De Freitas v Ministry of Agriculture, Fisheries, Land and Housing [1999] 1 AC 69 applied. They were proportionate and went no further than was necessary to accomplish the legislative objective, bearing in mind the limited effect of those provisions and, above all the ability and right to protest in Parliament Square, which was unaffected by the Act: Mayor of London v Hall [2010] EWHC 1613 (QB); [2010] EWCA Civ 817; [2011] 1 WLR 504; [2011] EWHC 585 (QB) and Samede applied; Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23 distinguished. The area in which the claimant placed her tent and made her home was a public space that should belong to and be accessible to all. It could not be appropriated by any single person or group, such as the claimant, who had no proprietary rights in the area. The rights of the public to enjoy and use a place of such significant historical, political and cultural interest as Parliament Square could not be overridden by the claimant’s right to take over part of that Square and use it as her home on an indefinite basis, even as part of a protest. So far as sections 143 and 145 interfered with the claimant’s Convention rights, that interference was prescribed by law and was necessary in a democratic society for the protection of the rights and freedoms of others, within Articles 10(2) and 11(2) of the Convention. Accordingly, sections 143 and 145 did not infringe the claimant’s rights under Articles 10 and 11. Nor did the decision of the defendants to enforce those provisions against the claimant. The defendants had taken the claimant’s Convention rights into account and had been entitled to conclude, on the facts of the case, that they were entitled to exercise their Part 3 powers.Jessica Simor and Christopher Brown (instructed by Bindmans LLP) appeared for the claimant; Nathalie Lieven QC and Jacqueline Lean (instructed by the legal department of Westminster City Council) appeared for the defendant; Adam Clemens (instructed by the legal department of the Metropolitan Police) appeared for the first interested party; Jonathan Swift QC and Gerard Clarke (instructed by the Treasury Solicitor) appeared for the second interested party.Sally Dobson, barrister
