R Gallastegui (Appellant) Westminster City Council and Others (Respondent) Commissioner of Police for the Metropolis (First Interested Party) Secretary of State for the Home Department (Second Interested Party)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeThe Master of the Rolls,Lord Justice Patten,Lord Justice Tomlinson
Judgment Date2013
Neutral Citation[2013] EWCA Civ 28
Docket NumberCase No: C1/2012/1055

[2013] EWCA Civ 28

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT

THE PRESIDENT OF THE QUEEN'S BENCH DIVISION and MR JUSTICE SILBER

CO/12613/2011

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Master of the Rolls

and

Lord Justice Patten

Lord Justice Tomlinson

Case No: C1/2012/1055

Between:
The Queen on the Application of Gallastegui
Appellant
and
Westminster City Council & Ors
Respondent
and
Commissioner of Police for the Metropolis
First Interested Party

and

Secretary of State for the Home Department
Second Interested Party
Hearing dates17 & 18 December 2012
Approved Judgment
Master of the Rolls
Introduction
1

The claimant is a peace campaigner. For the past 6 years she has been carrying out a 24 hour vigil in Parliament Square under authorisations issued pursuant to section 134 of the Serious Organised Crime and Police Act 2005 ("SOCPA"). This appeal concerns the compatibility with articles 6, 10, 11 and article 1 of Protocol No 1 of the European Convention on Human Rights ("the Convention") of Part 3 of the Police Reform and Social Responsibility Act 2011 ("the 2011 Act"), which came into force on 19 December 201Section 143(1) of the 2011 Act gives power to a constable or an "authorised officer" who has reasonable grounds for believing that a person is doing, or is about to do, a "prohibited activity" to direct the person to cease doing the activity. A "prohibited activity" is an activity in "the controlled area of Parliament Square" which is defined as the central garden of Parliament Square ("PSG") and the footways that immediately adjoin it. It includes erecting or keeping in the controlled area "any tent" or "any other structure that is designed or adapted (solely or mainly) for the purpose of facilitating sleeping or staying in that area". Section 143(8) provides that a person who "without reasonable excuse" fails to comply with a direction under subsection (1) commits an offence. Section 145 gives power to a constable or authorised officer to seize and retain a prohibited item that is on any land in the controlled area of Parliament Square if it appears that the item is being, or has been, used in connection with the commission of an offence under section 143(8). An "authorised officer" in relation to any land in the controlled area of Parliament Square means a person authorised by the "responsible authority"; and a "responsible authority" means the Greater London Authority ("GLA") for any land comprised in the PSG and Westminster City Council ("Westminster") for any other land.

2

The Divisional Court (Sir John Thomas, President of the Queen's Bench Division and Silber J) rejected the claimant's central submission that sections 143 and 145 of the 2011 Act are incompatible with the Convention. She appeals against this decision, with the permission of Laws LJ.

3

It is not in dispute that articles 10 and 11 of the Convention are engaged in this case. These provide:

"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 ormorals, 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 than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, 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. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."

Background to the 2011 Act
4

The relevant background is explained by Leith Penny, Strategic Director for City Management employed by Westminster and Simon Grinter, Head of Resilience and Facilities Management employed by the GLA. Mr Penny says that Westminster had for a number of years considered that it was necessary to improve the management of protests in Parliament Square. It had been particularly concerned about the stationing of tents and other structures on the pavement surrounding PSG which it considered had "a disproportionate effect on amenity and the right of the public to the use and enjoyment of the highway". In 2002, Westminster sought an injunction pursuant to section 130 of the Highways Act 1980 ("the 1980 Act") and section 222 of the Local Government Act 1972 ("the 1972 Act") to require Brian Haw (who had been protesting in Parliament Square for about 15 months) to cease obstructing the highway. Westminster is the highway authority in relation to the pavement around PSG and is obliged by section 130 of the 1980 Act to protect the right of the public to use the highway. Section 222 of the 1972 Act gave Westminster the power to commence proceedings in the performance of their functions to prevent the stopping up or obstruction of the highway.

5

The injunction proceedings were dismissed on the grounds that there was no pressing need to interfere with Mr Haw's article 10 right of freedom of expression.

6

In 2011, Westminster applied again for an injunction under section 130 of the 1980 Act. These proceedings have not reached court, almost certainly because they have been overtaken by the passing of the 2011 Act with which the present proceedings are concerned.

7

In the years preceding the issue of the 2011 proceedings, Westminster discussed with the relevant Government ministers the difficulties of managing protests in Parliament Square and the need (as they saw it) for additional statutory powers to deal with them.

8

Mr Grinter describes the problems created by the occupation of PSG by a group known as "Democracy Village", which began on 1 May 2010. The protest rapidly escalated to become an encampment comprising in excess of 40 tents which occupied approximately 70% of the central grassed space. They were evicted on 22 July 2010, almost three months after the issue by the GLA of possession proceedings. Mr Grinter contrasts this with the regime under the 2011 Act which provides for immediate removal of tents. He explains that PSG is classified as grade 2 on English Heritage's register of parks and gardens of special historic interest and is part of the Westminster Abbey and Parliament Square Conservation Area. The gardens are used extensively by members of the public for a large range of purposes, including protests and assemblies. They are also used by large numbers of tourists wishing to observe the surrounding buildings and the monuments of PSG.

9

Mr Grinter says that the occupation by the Democracy Village created a public health hazard. There are no public water supply or sewerage facilities at PSG. As a result, make-shift toilet facilities were created. Considerable physical damage was caused by the occupiers. The possession order obtained against the Democracy Village was executed on 22 July 2010. Following their eviction, a number of the protesters simply moved their tents on to the pavement where they continued their protest. Notwithstanding the terms of the injunction prohibiting further trespass on PSG, it was clear that, without a physical barrier, PSG would soon be occupied again, either by Democracy Village or another protest group. Accordingly, fencing was installed and about 20 full time security staff were deployed in PSG to ensure that the security fencing was not breached. This number was gradually reduced to two full-time staff by May 2011.

10

The Democracy Village occupation of PSG demonstrated the inadequacy of the previous law under which civil proceedings for possession were required with all the attendant delays and costs. Mr Grinter put it this way at para 5 of his statement dated 6 February 2012:

"The GLA considers that this [new and] more robust legal framework is necessary because of the physical impossibility of stopping permanent camping without retaining long term fencing and because the existing civil law remedy is inadequate due to the time scales involved and significant expense of evicting such encampments."

11

Because of the real likelihood of re-occupation by Democracy Village or some other protest group, it was decided to retain the fencing and security staff within the PSG until Part 3 of the 2011 Act came into force. On 16 January 2012, the protesters' tents on the pavement around PSG (save for the claimant's) were removed by the police under the provisions of the 2011 Act. As a result, the area around PSG became relatively free of tents for the first time since May 2010. The fencing was taken down on 5 February 2012, but 24 hour security staff remain in place.

12

Mr Grinter says that it is imperative that the provisions of Part 3 of the 2011 Act are "rigorously" enforced to avoid similar occupations to...

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