R Barda v Mayor of London on behalf of the Greater London Authority
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham |
| Judgment Date | 18 December 2015 |
| Neutral Citation | [2015] EWHC 3584 (Admin) |
| Date | 18 December 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/272/2015 |
[2015] EWHC 3584 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Garnham
Case No: CO/272/2015
Marie Demetriou QC and Malcolm Birdling (instructed by Liberty) for the Claimant
Jonathan Swift QC and Gerard Clarke (instructed by Transport for London) for the Defendant
Hearing dates: 25 th– 26 th November
Introduction
The exercise of the rights set out in Articles 10 and 11 of the ECHR, rights to freedom of expression and of assembly and association, is essential to any healthy democracy. But those rights are not absolute. Like much of the Convention, there is inherent in them a search for a balance between the rights of the individual and the rights of the community. In a democracy, those whose role it is to manage public demonstrations have responsibilities and entitlements, the exercise of which requires respect for the principles of the Convention and for the position of those who wish to demonstrate and protest. Sometimes, those who take part in demonstrations have responsibilities too.
The working out of those rights and responsibilities in the context of a series of demonstrations in Parliament Square Garden (or "PSG") falls for consideration in this case. The Claimant, Mr George Barda, is a member of a movement called "Occupy Democracy". In 2014, a number of those associated with Occupy Democracy, including the Claimant, planned and organised a series of monthly demonstrations in PSG. Mr Barda challenges the decision of the Greater London Authority ("GLA") to erect and maintain fencing on and around PSG which, he says, interfered unjustifiably with those demonstrations and his exercise of his Convention rights.
As with any case about Articles 10 and 11, the detailed factual picture is important and I set it out below, in rather greater detail than is sometimes necessary in judicial review cases. But first I set out the relevant statutory provisions and Byelaws, and the provisions of the Convention. I then summarise the competing arguments of the parties. Finally I turn to discuss the merits of the claim under the following headings; the vires of the Byelaws, the alleged interference with Convention rights, and the justification for the alleged interference.
The Statutes, Byelaws and Convention Provisions
Section 384 of the Greater London Authority Act 1999 ("the GLAA") gives the care and control of PSG to the GLA. It provides, so far as is material as follows:
" 384. (1) The land comprised in the site of the central garden of Parliament Square (which, at the passing of this Act, is vested in the Secretary of State for Culture, Media and Sport) is by this subsection transferred to and vested in Her Majesty as part of the hereditary possessions and revenues of Her Majesty…
(3) The care, control, management and regulation of the central garden of Parliament Square shall be functions of the Authority.
(4) It shall be the duty of the Authority well and sufficiently to light, cleanse, water, pave, repair and keep in good order and condition the central garden of Parliament Square."
Section 385 gives the GLA power to make and enforce Byelaws governing PSG:
" 385. (1) The Authority may make and enforce such Byelaws to be observed by persons using Trafalgar Square or Parliament Square Garden as the Authority considers necessary for securing the proper management of those Squares and the preservation of order and the prevention of abuses there…
(3) A person who contravenes or fails to comply with any byelaw under this section shall be guilty of an offence and liable on summary conviction —
(a) if the byelaw is a trading byelaw, to a fine not exceeding level 3 on the standard scale, or
(b) in any other case, to a fine not exceeding level 1 on the standard scale.
(4) The provision that may be made in Byelaws under this section includes provision for or in connection with —
(b) the seizure, retention or disposal of any property in connection with any contravention of or failure to comply with any byelaw under this section…
(6A) Byelaws under this section may not be made as respects Parliament Square Garden for the purpose of prohibiting a particular activity so far as that activity is a prohibited activity for the purposes of Part 3 of the Police Reform and Social Responsibility Act 2011 (see section 143(2) of that Act).
(7) In this section —
"Parliament Square Garden" means the central garden of Parliament Square, within the meaning of section 384 above."
Pursuant to this power, the GLA has made the Parliament Square Gardens Byelaws 2012. These provide that:
" 3. No person shall within [Parliament Square Gardens] …
fail to comply with a reasonable direction given by an authorise person to leave the Square;…
obstruct an authorised officer in performance of his duties.
5. Unless acting in accordance with permission given in writing by the Mayor…no person shall within the Square…
(g) erect… any structure or means of enclosure on any part of the Square; …
(j) organise or take part in any assembly, display, performance, representation, parade, procession, review or theatrical event."
The Police Reform and Social Responsibility Act 2011 (hereafter the "PRSRA") prohibits certain activities in PSG. Section 143 provides as follows:
" (1) A constable or authorised officer who has reasonable grounds for believing that a person is doing, or is about to do, a prohibited activity may direct the person —
(a) to cease doing that activity, or
(b) (as the case may be) not to start doing that activity.
(2) For the purposes of this Part, a "prohibited activity" is any of the following —
(a) operating any amplified noise equipment in the controlled area of Parliament Square or in the Palace of Westminster controlled area;
(b) erecting or keeping erected in the controlled area of Parliament Square —
(i) any tent, or
(ii) any other structure that is designed, or adapted, (solely or mainly) for the purpose of facilitating sleeping or staying in a place for any period;
(c) using any tent or other such structure in the controlled area of Parliament Square for the purpose of sleeping or staying in that area;
(d) placing or keeping in place in the controlled area of Parliament Square any sleeping equipment with a view to its use (whether or not by the person placing it or keeping it in place) for the purpose of sleeping overnight in that area;
(e) using any sleeping equipment in the controlled area of Parliament Square for the purpose of sleeping overnight in that area…
(7) In this section "sleeping equipment" means any sleeping bag, mattress or other similar item designed, or adapted, (solely or mainly) for the purpose of facilitating sleeping in a place.
(8) A person who fails without reasonable excuse to comply with a direction under subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale."
Section 146 makes additional powers available to a Court on sentencing an individual for a breach of section 143:
" (1) The court may do either or both of the following on the conviction of a person ("P") of an offence under section 143 —
(a) make an order providing for the forfeiture of any item of a kind mentioned in subsection (2) of that section that was used in the commission of the offence;
(b) make such other order as the court considers appropriate for the purpose of preventing P from engaging in any prohibited activity in a relevant area.
(2) An order under subsection (1)(b) may (in particular) require P not to enter a relevant area for such period as may be specified in the order.
(2A) In this section "relevant area" means an area consisting of either or both of the following areas —
(a) the controlled area of Parliament Square, and
(b) the Palace of Westminster controlled area.
(3) Power of the court to make an order under this section is in addition to the court's power to impose a fine under section 143(8)."
Finally, it is necessary to set out the Convention Articles around which most of the argument in this case centred. Articles l0 and 11 of the Convention provide as follows:
" ARTICLE 10
Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
ARTICLE 11
Freedom of assembly and association
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other...
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