R Maria Gallastegui v Westminster City Council The Commissioner for the Metropolis (First Interested Party) The Secretary of State for the Home Department (Second Interested Party)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SILBER |
| Judgment Date | 27 April 2012 |
| Neutral Citation | [2012] EWHC 1123 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 April 2012 |
| Docket Number | Case No: CO/12613/2011 |
[2012] EWHC 1123 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The President of the Queen's Bench Division
and
Mr Justice Silber
Case No: CO/12613/2011
Jessica Simor and Christopher Brown (instructed by Bindmans LLP) for the Claimant
Nathalie Lieven QC and Jacqueline Lean (instructed by Solicitor for Westminster City Council) for the Defendant
Adam Clemens (instructed by The Solicitor for the Metropolitan Police) for the First Interested Party
Jonathan Swift QC and Gerard Clarke (instructed by Treasury Solicitor) for the Second Interested Party
Hearing dates: 6 and 7 March 2012
This is the judgment of the Court.
I. Introduction
Maria Gallastegui ("the claimant") is a peace campaigner and has been conducting a protest from a specific site on the East pavement of Parliament Square in London since 2006. She makes a challenge on various grounds to Part 3 of the Police Reform and Social Responsibility Act 2011 ("the Act"), which confers powers to stop "a prohibited activity". This term covers the erection and use in Parliament Square Gardens or on the pavements surrounding it of "tents" or "other structure that is designed, or adapted… for the purpose of facilitating sleeping or staying in a place for any period" (s143 (1) and (2)). Constables, who are under the control of the Commissioner of the Metropolitan Police ("the Commissioner") and authorised officers of the Greater London Authority ("GLA") and Westminster City Council ("Westminster") are given the power to issue directions to a party to cease carrying out that activity (s 143 (1)) and a person who without "reasonable excuse" fails to comply with a direction commits an offence (s143 (8)). They are also given the power to seize any of the items set out in section 143(1) and to retain it: s145. We set out the provisions of s.143 and 145 at paragraph 32 below.
The claimant contends that these provisions infringe her rights under Articles 10 and 11 of the ECHR as well as potentially those arising under Article 6 and Article 1 of Protocol 1. The claimant's case requires consideration of the extent to which the State can prevent members of the public from erecting or using tents or structures in Parliament Square in which they will sleep as part of a public protest, while at the same time permitting them to demonstrate there in all other ways at all times during the day and night. It is important to emphasise, contrary to the claimant's contention, that these provisions do not, as we shall explain, amount to a prohibition on long term protest or a 24 hour protest. Their scope limits the right to protest of only those who wish to protest by sleeping in Parliament Square, although they can protest at all times of the day and night.
The claimant:
i) Seeks a declaration that these provisions are incompatible with her rights under Articles 10 and 11 of the ECHR as well as potentially those arising under Article 6 and Article 1 of Protocol 1.
ii) Seeks a declaration that the actual decision of Westminster to enforce these provisions in the Act against her in December 2011 infringes those rights.
iii) Claims an entitlement to continue her protest, because pursuant to section 134 of the Serious Organised Crime and Police Act 2005 ("SOCPA"), she had been granted permission on a number of occasions by the Commissioner to conduct a protest from a specified site of the East pavement of Parliament Square since 2006. She says she is entitled under that authorisation to conduct a 24-hour vigil within an authorised site of 3m x 3m x 1m (but not within a specific site) within which she is required to contain her structure ("the authorised site") until April 2015. Her case is that the authorisation means that she can still keep and use a tent in her site in Parliament Square for sleeping in even though section 141 of the Act has repealed sections 132–138 of SOCPA with effect from 31 March 2012.
The case for the claimant is that the enforcement of Part 3 of the Act would compel her to end her protest because she could not afford to travel to Parliament Square from her home in Eastbourne every day to conduct her protest. She therefore needs to sleep at the authorised site. Another protestor Barbara Tucker, who had previously camped in Parliament Square for several years, has remained present in the Square since 16 January 2012 exercising her rights under Articles 10 and 11, but she has not used either a tent or sleeping equipment. This provides an illustration that even those protestors who want to spend all day and night in Parliament Square may still be able to do so.
These claims are resisted by the Secretary of State for the Home Department ("the Secretary of State"), by the Commissioner and by Westminster. This is a rolled-up hearing and so if permission is granted, the Court will then proceed to hear the substantive application.
II. The Parties and the Procedural Background
There is no dispute that the claimant holds genuine anti-war beliefs and has campaigned peacefully. She wishes to maintain a constant reminder of what she considers to be the folly of war and armed conflict including the participation of the UK in it through her campaign known as "Peace strike". A 24-hour vigil in a position facing the Houses of Parliament is in her view crucial to the effectiveness of that aim. In any event, significantly she claims she could not afford to commute daily from her home in Eastbourne and such a trip would involve her carrying all her placards. The claimant's campaign is located on the East pavement of Parliament Square Gardens on St Margaret's Street which is used as a pedestrian footway. Since 2007, the claimant has been in receipt of specific authorisation, but only from the Commissioner for her permanent campaign under section 134 of SOCPA, which regulates demonstrations outside Parliament. We will return to consider the precise terms and effect of it in paragraphs 19 to 29 below when we consider Ground 1.
Westminster is the relevant Highways Authority under the Highways Act 1980 ("the Highways Act") for the pavement on which the authorised site used by the claimant is located. It has sought to remove the claimant from her authorised site by invoking two different forms of action.
i) The first was taken on 15 February 2011 by commencing proceedings for an injunction to remove the claimant (and at least 12 other persons) based on its powers under section 130 of the Highways Act and section 222 of the Local Government Act 1972. In order to obtain an injunction in those proceedings ("the Highway Act Proceedings"), it had to be established that the defendants to that action were blocking the pavement without reasonable cause contrary to section 137 of the Highways Act: Westminster City Council v Haw [2002] EWHC 2073 [10]. It should be added that the proceedings are very different from the claim for possession made in the civil proceedings in the very recent "Occupy" campaign at St Paul's Cathedral ( The Mayor, Commonalty and Citizens of London v Samede and Others [2012] EWCA Civ. 160) or the "Democracy Village protest" on Parliament Square ( Mayor of London v Hall and others [2010] EWHC 1613 (QB), on appeal [2011] 1 WLR 504 and on remission [2011] EWHC 585 (QB)). Those proceedings involved a judicial determination of the issue as to whether the individuals could be evicted having regard to all the facts. They did not involve, unlike the Highways Act Proceedings, the need to establish that the defendants in that action were blocking the pavements without lawful excuse or authority. The Highways Act Proceedings against the claimant and others have not been pursued with any sense of urgency. Orders for expedition were not sought. They have now been adjourned generally.
ii) The second was taken by seeking to remove the claimant from the authorised site by using its powers under section 143 of the Act which came into force on 19 December 2011: Police Reform and Social Responsibility Act (Commencement No 2) Order 2011 SI2834/2011.
On 16 December 2011, the claimant heard that section 143 was going to come into effect. She contacted her solicitors, who wrote to Westminster asking it to undertake not to remove the claimant over Christmas. Westminster refused to do so. By a letter dated 19 December 2011, it stated that it was its:—
"intention to seek to enforce these provisions [and that] the Council is not prepared to delay the enforcement of these provisions before the New Year to enable you to take legal action. Neither does the council consider that there is any requirement to give such a guarantee… I would invite [the claimant] to comply with the provisions of [Part 3 of the Act] forthwith by:
(a) ceasing all prohibited activities which she may be doing and
(b) removing any prohibited item from the area covered by this legislation".
The claimant did not remove her tent. She continued to sleep in Parliament Square. After further correspondence, urgent judicial review proceedings and an application for an injunction were issued on behalf of the claimant on 22 December 2011. On that day, Blake J granted the injunction "until an oral hearing… for interim relief" could be fixed. It remains in force.
At an interim relief hearing before Lang J, Westminster and the Commissioner conceded that...
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