The Mayor of London v. Brian Haw & others  EWHC 585 (QB) - read judgment.
The High Court has ruled that it would not be a breach of Articles 10 (freedom of expression) and 11 (freedom of assembly and association) to grant a possession order in respect of Parliament Square Gardens (“PSG”) and an injunction compelling protesters to dismantle and remove all tents and other structures erected on PSG. The potential effect of this might be to remove Brian Haw, the peace campaigner who has been protesting almost non-stop outside Parliament for the best part of a decade.
This is the latest in a long-running series of cases exploring the extent of the freedom to protest. We have analysed the previous court decisions about the Parliament Square protesters here and here. The issue of restrictions on freedom of assembly and freedom of expression has been a hot topic in recent months more generally, having also come up recently in the contexts of the student protests last year, political asylum seekers and hate speech.
Brian Haw began his protest on a pavement opposite the Houses of Parliament in June 2001, initially to voice his disapproval of the effect that sanctions on Iraq were having on Iraqi citizens. From the beginning, his protest was continuous, with him staying on the pavement at all times and sleeping there, only leaving to go to the toilet. In 2002 Westminster City Council tried and failed to remove him for obstructing the highway.
Brian Haw has remained on PSG almost non-stop until very recently, when he developed lung cancer and had to seek treatment. Along with Barbara Tucker (who joined him in 2005) and various other protesters he has pitched tents and erected placards and banners. Over time his protest has evolved – it became a protest against the war in Afghanistan, then the Iraq War, now it is a vigil against the illegality and brutality of war more generally.
In July 2005 Part 4 of the Serious Organised Crime and Police Act 2005 came into force, s.132 of which made it a criminal offence to demonstrate near Parliament without authorisation from the Metropolitan Police Commissioner. Brian Haw obtained authorisation for his protest, on condition that the protest site was not more than 3 metres wide, 3 metres high and 1 metre deep. In fact, as the High Court pointed out, it has been considerably larger than this for some time.
In 2010 Brian Haw was joined by an entire camp of protesters calling themselves the “democracy village” (although he attempted to distance himself from these other protesters and accused the main organiser of being an ‘agent provocateur’, an assertion the High Court did not accept). These protesters were eventually removed following a Court of Appeal ruling in favour of the Mayor of London (who has responsibility for PSG). However, Lord Neuberger MR found that Griffith Williams J in the High Court had not made any findings of fact as to the effect that making an order for possession or granting an injunction would have on Brian Haw and Barbara Tucker’s Article 10 and Article 11 rights. Therefore “with considerable hesitation” he concluded that the question of whether it was a proportionate interference with those rights should be remitted for reconsideration by the High Court.
It fell to Wyn Williams J to consider whether or not forcing Brian Haw and Barbara Tucker to move their tents off PSG itself and onto the pavement would be a disproportionate interference with their freedom of expression and assembly.
The Mayor had given nine separate reasons for seeking a possession order and injunction, the most important of which were as follows:
…(2) PSG is open space available for public use, surrounded by iconic listed buildings and adjoining a World Heritage site and is a patently unsuitable location for camping (particularly long term camping) whether as part of a protest or otherwise. The Mayor considers that camping here is incompatible with the function, lawful use and character of this important space and thereby causes substantial harm to the public interest;…
(5) the public are effectively excluded from that (albeit small) area for use of it for their lawful activities indefinitely. The Mayor considers that this is a disbenefit of the proposed indefinite camp. He does not consider that he use his powers to permit one or two people to take possession indefinitely of a part of this important public space;…
Brian Haw argued that the possession order and injunction would be a disproportionate interference with his rights because either: (i) if the orders were granted there was a substantial risk that his protest would come to an end; or (ii) even if his protest continued there was insufficient justification for the interference as no pressing social need had been identified.
The reason why Mr Haw argued that there was a substantial risk his protest would come to an end if the orders were granted was that he ran the risk of serious injury if he was forced to stay on the pavement rather than the grass, either from the increased risk of traffic, from attacks by members of the public antagonistic to him, or because he had a bad back which would be made worse by sleeping on a hard surface. The reason why Mr Haw argued that there was no pressing social need was that he had pitched his tents on PSG for a significant period of time and only occupied a very small part of it, so that the effect upon the rights of other members of the public was very small.
The medical argument about Mr Haw’s bad back did not go very far, since the orthopaedic surgeon’s opinion was that whilst sleeping on a softer surface might be more comfortable for him there was no compelling medical reason why he could not sleep on a hard surface.
A tent too far?
Lord Neuberger MR in the Court of Appeal had, in the course of finding that the case should be remitted to the High Court, held as follows:
I entertain very significant doubts about whether Mr Haw would be able to persuade a judge that he should be able to maintain a tent on the grassed area of PSG, even if he establishes that, for medical or other reasons, his being prevented from doing so would render it significantly harder for him to maintain his demonstration…However, I think he is entitled to have his case decided on the basis of the medical and other evidence…
With the medical argument rendered ineffective, it was therefore unsurprising that Wyn Williams J held that it was a proportionate interference with Brian Haw and Barbara Tucker’s rights to grant both the possession order and the injunction. He found that the Mayor had established that Haw and Tucker’s campsite interfered with the rights of others to access PSG and that there was a pressing social need which justified the interference. In particular, he highlighted the following points:
First, the Defendants seek to exercise their Convention rights indefinitely in a manner and at a location of their choosing…Second, PSG is not a suitable location for prolonged camping…Third, members of the public have been and would be precluded from using the area occupied; the area in question is the are nearest to an important entrance to the Houses of Parliament…Fourth, the Defendants have exercised their Convention rights from this location since September 2009 and for a significant period of time in 2006/7. That, on any view, amounts to a very substantial period of time during which the Defendants have exercised their rights entirely as they would wish…
It is difficult to see how the judge could have reached any other conclusion. Both Article 10 and Article 11 are qualified rights, and it would have increased the scope of their exercise immensely (and reduced the scope of permissible interferences dramatically) if it had been held necessary to allow Brian Haw et al to protest in exactly the manner they wish, in exactly the location they wish, indefinitely.
Eviction or restriction?
The media – of all political hues – have largely presented this decision as if Brian Haw was now going to be summarily evicted from his protest site. In fact Wyn Williams J was careful to point out that the issue of whether the protesters could encamp on the pavement was not being decided, since the Mayor does not control the pavement, only the grass. Therefore Brian Haw and Barbara Tucker are merely restricted from camping on PSG itself as a result of this ruling, not on the pavement beside it.
That said, Westminster City Council (who do control the pavement) are currently seeking an injunction against the protests continuing on the pavement, so a complete end to Mr Haw’s admirably persistent efforts may be just around the corner. The story of the Parliament Square protesters is not quite over yet.
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