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

Sections 132 to 138 of the Serious Organised Crime and Police Act 2005 apply to demonstrations in the designated area whether they began before or after those provisions came into force. The words referring to when a demonstration starts must, for an existing demonstration, be understood by reference to commencement. This follows from the statutory language and context, particularly the disapplication of section 14 of the Public Order Act 1986. A literal reading would leave pre-existing demonstrations wholly unregulated. Penal consequences do not prevent a construction which gives effect to the statute’s true and sufficiently clear meaning.

The claimant had demonstrated in Parliament Square since June 2001. After the Serious Organised Crime and Police Act 2005 received Royal Assent, he sought judicial review of the Secretary of State’s position that the statutory authorisation regime applied to his continuing demonstration.

The Divisional Court, by a majority, declared that he did not require authorisation for his continuing protest and quashed parts of the commencement order. Simon J dissented on the construction point but agreed that the commencement order was ultra vires. The Secretary of State appealed. The central issues were whether the Act applied to a demonstration begun before commencement and whether the commencement order unlawfully extended the Act.

1. Appeal allowed. The orders of the Divisional Court were set aside.
2. The court construed sections 132 to 138 of the Serious Organised Crime and Police Act 2005 as applying to all demonstrations in the designated area, whenever they started. For a continuing demonstration begun earlier, section 132(1) was read as treating it as starting at commencement for authorisation purposes.
3. The decisive contextual feature was section 132(6), which disapplied section 14 of the Public Order Act 1986 to demonstrations in the designated area without limiting that disapplication to demonstrations begun after commencement. The new provisions were intended to replace the section 14 regime in that area. It would be irrational, and manifestly absurd, to leave earlier demonstrations without statutory regulation.
4. Statutory intention was an objective concept. The court had to identify the meaning borne by the statutory language in its context, applying the approach stated in R v Secretary of State for the Environment, Transport and the Regions ex parte Spath Home [2001] 2 AC 349.
5. The principle that a person should not be penalised except under clear law remained applicable. Whether the law was clear depended on the statute’s true construction, not necessarily its literal meaning. The court therefore did not need to determine the admissibility of Parliamentary material under Pepper v Hart [1993] AC 593.
6. On the proper construction, the Commencement Order did not contradict or amend the Act. The separate challenge to it therefore did not arise.

• Court of Appeal (Civil Division) — Appeal allowed and the Divisional Court’s orders set aside.
• Divisional Court — In [2005] EWHC 2061 (Admin), by a majority, declared that the claimant was not required to seek authorisation for his continuing protest and quashed specified provisions of the Commencement Order. Simon J dissented on the construction point but agreed on the Commencement Order point.