R (on the application of Maria Gallastegui) v Westminster City Council  EWHC 1123 (Admin) – Read judgment
On 27 April 2012, Maria Gallastegui, a peace campaigner and resident of the East pavement of Parliament Square since 2006, lost her legal battle to continue her 24 hour, tented vigil in protest against the folly of war and in particular the UK’s involvement in armed conflict.
The Court’s main task was to construe a new law enacted to bolster the legal armoury available to control long-term protests in the Square. Section 143 of the Police Reform and Social Responsibility Act 2011 – which came into force on 19 December 2011 – gives a local authority the power to stop “prescribed activities” such as using tents (and other structures) to sleep. They are also empowered to seize items used for these prescribed purposes ie the tents.
Previous efforts to remove Ms Gallastegui for blocking the highway, had been unsuccessful. Using the new powers, Westminster City Council proposed to remove Ms Gallastegui, but before it could do so she sought judicial review of the decision.
The heart of the Claim was that the provisions of the Act were incompatible with her rights under Article 10 of European Convention on Human Rights (“ECHR”) to freedom of expression and her rights of peaceful assembly under Article 11. The Court rejected an argument that use of section 143 powers was unreasonable and unlawful as Ms Gallastegui had prior authorisation from the Metropolitan Police Commissioner under different legislation (now repealed) to conduct her vigil until April 2015. The purpose of an authorisation from the Commissioner was to prevent a demonstration being a criminal act. This did not prevent a local authority controlling the use of tents.
In dismissing these claims, the Court analysed the scope of Articles 10 and 11. It found that the Claimant’s desire to protest in the way she did in Parliament Square did engage both Article 10 and 11 – rights of fundamental importance in a democratic society. However, the statutory provisions complained of did not prevent the effective exercise of these rights
The reason was as follows: unlike certain absolute rights such as the prohibition against torture, Articles 10 and 11 both were qualified rights which permitted restrictions with a cogent legislative object which did not go any further than necessary to achieve that objective. As the time of the passage of the Bill, the government explained the purpose of the measures as being to preserve the unique character of the Square as a World Heritage Site, visited and enjoyed by many as a cultural experience. Also it noted that it was a busy square and the rights of members of parliament and others had to be considered. In short it considered that “no particular person or group of persons should be permitted to take over the area to the detriment of others”. This, the Court found, was sufficient to justify limiting the Article 10 and 11 rights of others.
The only remaining question was whether the measures adopted were proportionate: ie they restricted the rights no more than necessary to achieve the objective. In finding the measures to be proportionate, the Court distinguished the case of Tabernacle v Secretary of State for Defence in which the Court quashed a byelaw preventing camping next to the Aldermaston nuclear site. In Tabernacle however, notable differences included the fact that the protest occurred on only one weekend a month and no third party rights were interfered with.
The Claimant argued that use of the section 143 powers to prevent her using her tent would force her to end her protest as she could not afford to travel from her home in Eastbourne each day to stage the protest. Giving Judgment, Mr Justice Silber appeared unmoved by this submission: the complaint was based on Ms Gallastegui’s own personal circumstances but the fact that a statute might cause unfairness to one person did not justify declaring legislation to be incompatible with the provisions of the Human Rights Act.
In considering whether the measures went further than necessary, the Court was influenced by the fact that another protestor had remained in the square protesting since January 2012 without a tent or sleeping equipment. It also noted that previous powers had been insufficient for the purpose of preventing protesters from sleeping in parliament Square.
Conducting the all-important balancing exercise, the Court ruled that “the area in which the claimant places her tent and makes her home is a public space which should belong to and be accessible to all. It cannot be appropriated by any single person or group such as the claimant who has no proprietary rights in the area she wishes to have as her home. The rights of the public to enjoy and use a place of such significant historical, political and cultural interest as Parliament square cannot 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”.
The upshot of the decision is to endorse the position that there is no absolute right to protest whenever and wherever a protester wants. Reasonable restrictions will be upheld “provided they leave ample alternative channels for communication of the ideas and information”
These provisions were not found to destroy the right of the claimant to freedom of expression – they imposed limits which were proportionate and lawful.
Given its facts, this decision is not legally very controversial. However, whether the courts would uphold use of these powers to prevent a shorter-term tented protest remains to be seen. It can be expected that use of this legislation where it restricts important constitutional rights will be closely monitored in the months to come.
Marina Wheeler is a barrister at 1 Crown Office Row
Sign up to free human rights updates by email, Facebook, Twitter or RSS