The Mayor of London (Greater London Authority) v Haw & Ors

In determining whether possession and injunctive relief would disproportionately restrict Articles 10 and 11 rights, the court must assess the present facts and the reasons for the interference. The decision-maker’s view receives due weight, but proportionality remains a matter for the court. The interference must pursue a legitimate aim, meet a pressing social need, be the least intrusive means available, and strike a fair balance.

Indefinite occupation of public open space for prolonged camping may justify relief where it is incompatible with the space’s lawful use and management, excludes the public, causes harm, and exceeds the limits of any demonstration authorisation. Relief should nevertheless be tailored: an area forming part of an established pavement protest was excluded where its continued use did not form part of the identified mischief.

The Greater London Authority sought possession of Parliament Square Gardens and injunctions requiring Brian Haw and Barbara Tucker to remove tents and other structures and preventing their return with such structures. Griffith Williams J granted relief. The Court of Appeal allowed the relevant appeals and remitted the proportionality issue for reconsideration, because the first-instance judge had not assessed the effect of the orders on the defendants’ Articles 10 and 11 rights.

The issue before Wyn Williams J was whether, on the evidence then available, possession and injunctive relief were proportionate, including in light of Mr Haw’s health, the alleged risks of protesting from the pavement, the public use and management of the Gardens, and the possibility of separate proceedings concerning the pavement.

1. Proportionality. The court applied the agreed Article 10 and 11 principles. Political expression and peaceful assembly receive strong protection. An interference must be connected to a legitimate aim, meet a convincingly established pressing social need, use the least intrusive means necessary, and maintain a fair balance without imposing an excessive burden. The court must decide proportionality itself, while giving due weight to the balance struck by the Mayor. The assessment was made on the current facts and with close attention to the reasons advanced for restricting the protest (paras [26]-[33]).
2. The medical evidence did not show any medical reason why Mr Haw could not sleep on a mattress or camp bed on the pavement. The asserted increased risks from traffic, fumes, noise and public attacks were rejected or treated as insufficiently established. Mrs Tucker had advanced no comparable medical justification (paras [50]-[53]).
3. The defendants’ occupation of the Gardens interfered with the rights of others and the claimant established a pressing social need. Prolonged camping was incompatible with the function, lawful use, character and proper management of the Gardens. It excluded members of the public from an important area, had continued for substantial periods, and exceeded the area permitted by the relevant demonstration authorisation. Popular support for the protest did not alter that conclusion (paras [54]-[59]).
4. The possibility that Westminster City Council might obtain relief affecting the pavement protest did not prevent relief in these proceedings. The claimant’s reasons remained cogent even though it was no longer safe to assume that the pavement protest could continue unaffected (paras [55], [57]).
5. The orders were proportionate and were granted substantially as sought. They were not, however, to extend to the kerb area forming part of the established pavement protest. The claimant retained permission to apply if later events created a pressing social need for orders concerning that area (paras [60], [65]).
6. The Equality Act 2010 argument failed. No provision, criterion or practice had been identified which placed a disabled person at a substantial disadvantage in relation to a relevant matter compared with non-disabled persons. The duty to make reasonable adjustments therefore did not require the claimant to permit camping in the Gardens (paras [61]-[63]).
7. The application to strike out the remitted proceedings as an abuse of process was refused. The Court of Appeal had remitted proportionality for determination, and no subsequent circumstance justified treating continuation of the proceedings as abusive (para [64]).

1. Court of Appeal allowed the relevant appeals and remitted the proportionality issue for reconsideration by the High Court.
2. High Court (Queen's Bench Division) determined the remitted issue and granted possession and injunctive relief substantially as sought, subject to the kerb-area qualification.