Tabernacle v Secretary of State for Defence

A restriction upon the manner or form of political expression may interfere with the substance of the right. Its significance depends upon the facts. Where a long-standing, peaceful protest camp has acquired symbolic force inseparable from its message, prohibiting the camp requires substantial objective justification amounting to an undoubted pressing social need.

The fact that protest takes place on government land, to which the government has granted public access, does not reduce the protection afforded by articles 10 and 11 of the European Convention on Human Rights. Ordinary inconvenience, sanitation, traffic and generalised security concerns will not establish proportionality without substantial supporting evidence.

A member of the Aldermaston Women’s Peace Camp sought judicial review of Paragraph 7(2)(f) of the Atomic Weapons Establishment (AWE) Aldermaston Byelaws 2007. The provision prohibited camping within publicly accessible Controlled Areas belonging to the Secretary of State for Defence. The camp had conducted peaceful monthly protests against nuclear weapons near the Atomic Weapons Establishment for about 23 years.

The Divisional Court upheld a challenge to a separate prohibition but dismissed the challenge to the camping prohibition. The appellant appealed. It was common ground that the camping prohibition interfered with freedom of expression under article 10 of the European Convention on Human Rights. The central issue was whether that interference was justified and proportionate under article 10(2), read in the context of the associated article 11 rights of peaceful assembly and association.

1. Appeal allowed. Paragraph 7(2)(f) of the Atomic Weapons Establishment (AWE) Aldermaston Byelaws 2007 violated the appellant’s rights under articles 10 and 11 of the European Convention on Human Rights. Laws LJ delivered the leading judgment. Wall and Stanley Burnton LJJ agreed.

2. A distinction between the essence of expression and the manner or form of its exercise must be treated with considerable care. Its significance is fact-sensitive. A protest’s manner and form may constitute its actual nature and quality, acquire symbolic force inseparable from its message, and become the very witness of the protesters’ beliefs. The camp’s long-standing and consistently peaceful presence had acquired that character. Describing camping merely as the mode of protest therefore carried little weight.

3. The Secretary of State’s ownership of the Controlled Areas, and his position as the source of the public’s permission to enter them, carried no weight in reducing the protesters’ Convention rights. Government property is held for the public good. The case was not analogous to a private landowner reserving rights in furtherance of private interests.

4. Because the interference was substantial, the Secretary of State had to demonstrate a substantial objective justification amounting to an undoubted pressing social need. The prohibition had to pursue a legitimate aim and bear a proportionate relationship to that aim. The strength of the justification had to be assessed alongside the particular nature and quality of the expression affected.

5. The asserted justifications were insubstantial. The authorities had tolerated the camp for about 23 years. The evidence did not demonstrate that it had impeded the establishment’s operational requirements. The identified concerns about security, traffic, sanitation and the conduct of other members of the public were, objectively, nuisance considerations. Peaceful political protest may be inconvenient or tiresome, but those features alone do not justify its suppression. The earlier cases involving high-profile public concerns, threatened disorder or defiance of general law were materially different.

6. Wall LJ added that the evidence came nowhere near establishing a pressing social need. He also rejected the proposed translation of the discretionary latitude allowed in an article 8 planning case to the present context of expression, assembly and association.

1. Court of Appeal (Civil Division): The appeal was allowed. The court held that Paragraph 7(2)(f) of the Atomic Weapons Establishment (AWE) Aldermaston Byelaws 2007 violated articles 10 and 11 of the European Convention on Human Rights.

2. Divisional Court: Maurice Kay LJ and Walker J dismissed the judicial review challenge to the prohibition on camping in Paragraph 7(2)(f), although they upheld the challenge to a separate prohibition in Paragraph 7(2)(g). No neutral citation for that decision is stated in the judgment.