Tabernacle v Secretary of State for Defence

Byelaws restricting protest on defence land must satisfy common-law certainty and rationality requirements and, where Convention rights are engaged, the requirements of legality and proportionality under Articles 10 and 11.

A prohibition on camping may be proportionate where justified by security, operational and public-order considerations, particularly when it restricts only one form of expression on public-authority land. A contextual reference to causing annoyance can be sufficiently certain if construed as requiring reasonable annoyance. A broad prohibition on placing anything over any man-made structure attached to the land was irrational because it caught innocuous conduct and the identified risks were addressed by other provisions.

The claimant, a member of the Aldermaston Women’s Peace Camp, sought judicial review of Byelaws 7(2)(f), (g) and (j) of the Atomic Weapons Establishment Aldermaston Byelaws 2007. The byelaws regulated public use of controlled areas on defence land.

The challenge relied on common-law uncertainty and irrationality, and on Articles 10 and 11 of the European Convention on Human Rights. The court granted permission and considered whether the prohibitions on camping, attaching or placing things over structures or surfaces, and conduct likely to cause annoyance, nuisance or injury were lawful.

1. General principles. The Secretary of State was a public authority under section 6 of the Human Rights Act 1998, and the byelaws were susceptible to judicial review. A restriction must be formulated with sufficient precision to enable conduct to be regulated foreseeably. Where Articles 10 and 11 are engaged, the court must apply the proportionality questions identified in R (Daly) v Home Secretary [2001] UKHL 26: sufficient importance, rational connection and no more impairment than necessary. Greater justification is required where the essence of the right is restricted.
2. Camping. “Camp” was an everyday and intelligible word. Its contextual application, including marginal cases, could be resolved judicially without violating reasonable certainty. The prohibition was proportionate. The evidence established security, operational, sanitation and nuisance concerns, and the restriction affected only one form of association and expression on the Secretary of State’s land.
3. Annoyance. In context, “annoyance” was sufficiently certain. It was juxtaposed with “nuisance” and “injury” and was construed as requiring reasonable annoyance. Section 3 of the Human Rights Act 1998 would in any event require a Convention-compatible construction. The provision was also proportionate because it regulated the manner of peaceful protest without preventing peaceful protest itself.
4. Attaching or placing objects. The words “other surface” were construed narrowly by reference to “wall”, “fence” and “structure”, so that they concerned man-made structures attached to the land. Even so, the provision imposed an irrationally broad prohibition catching innocuous conduct such as sitting on a bench or placing a rucksack at a monument. The concerns relied on by the Secretary of State were already addressed by other byelaw provisions. Byelaw 7(2)(g) therefore infringed common-law principles and was liable to be quashed.
5. The challenges to Byelaws 7(2)(f) and (j) failed. The challenge to Byelaw 7(2)(g) succeeded to the extent indicated. Consequential orders were left for the parties to agree.