Haw, R (on the application of) v Secretary of State for the Home Department & Anor

A commencement power authorising transitory, transitional or saving provisions does not permit secondary legislation to amend primary legislation by creating a new criminal offence. Where the enacted words of a penal provision clearly exclude conduct, the court must construe them strictly and resolve genuine ambiguity in favour of liberty. A sensible legislative purpose cannot justify treating clear words as ambiguous or absurd, nor can the court repair an alleged drafting error merely because Parliament may have intended a wider scheme. Parliamentary material may be consulted only where the statutory language is ambiguous, obscure or produces absurdity. The court quashed provisions purporting to extend the statutory demonstration regime to demonstrations already continuing when the legislation commenced.

The claimant had conducted a continuing demonstration in Parliament Square since 2001. The Serious Organised Crime and Police Act 2005 introduced authorisation requirements and criminal offences for demonstrations in a designated area. A commencement order provided that the provisions applied to demonstrations starting or continuing after 1 August 2005.

The claimant sought judicial review, arguing that section 132(1), as enacted, applied only where authorisation was absent when a demonstration started, and that the commencement order unlawfully amended the Act. The central issues were whether the order was authorised by section 178(10), whether the legislation had retrospective effect, and whether a purposive construction or Parliamentary material could extend the criminal regime.

1. Majority outcome. Lady Justice Smith and Mr Justice McCombe allowed the application. Article 4(2), together with the related provisions of Articles 3(1)(p) and 3(5), was ultra vires and was quashed. The claimant was declared not required to seek authorisation for his continuing demonstration under sections 132 to 138.
2. Construction of section 132. Section 132(1), read as enacted, clearly required authorisation to have been given when the demonstration started. It therefore did not create an offence applicable to a demonstration which had begun before the Act came into force and continued thereafter. Extending the provision to such a demonstration required words equivalent to “or continues” or an equivalent amendment.
3. Limits of the commencement power. Section 178(10) authorised provisions appropriate for transitory, transitional or saving purposes connected with commencement. Article 4(2) did more: it criminalised continuing conduct which was not criminal under the primary legislation. That was an amendment, not a transitional provision. The Act contained a separate amendment power in section 173, subject to Parliamentary approval, but the order had not been made under that provision.
4. Penal legislation and purposive construction. The majority held that penal statutes must be strictly construed. If Parliament wishes to criminalise activity, it must do so in clear terms. The fact that applying the regime to existing demonstrations might be sensible did not make their exclusion absurd or demonstrate an inadvertent failure to achieve the Act’s main purpose. The court would not repair the alleged defect by a modern, liberal construction.
5. Parliamentary material and retrospectivity. The majority considered that the statutory language was neither ambiguous nor obscure and did not produce an absurd result, so the conditions for consulting Hansard were absent. The order did not retrospectively criminalise past conduct, but its prospective effect remained unauthorised. Mr Justice Simon dissented, construing section 132 purposively as applying to all demonstrations and refusing the application. Permission to appeal was refused by this court; costs were ordered jointly and severally against the defendants, with the Secretary of State responsible for 80 per cent and the Commissioner for 20 per cent.

This was a first-instance judicial review application. Permission to appeal was refused by the Administrative Court.