Gallastegui, R (on the application of) v Westminster City Council & Ors

Statutory powers to direct the cessation of sleeping-related activities and to seize items in Parliament Square were discretionary powers, not automatic prohibitions. Their exercise had to remain compatible with Convention rights and could be challenged by judicial review, interim relief, damages or the statutory reasonable-excuse defence.

Although sleeping in a tent formed part of the claimant’s protest, the restrictions did not prevent effective protest by other means, at other times or elsewhere in the Square. The restrictions pursued legitimate aims, were rationally connected to them and went no further than necessary. They were therefore proportionate and compatible with Articles 6, 10 and 11.

The claimant was a peace campaigner who had maintained a long-term protest and slept in a tent on the pavement beside Parliament Square. She held authorisations under section 134 of the Serious Organised Crime and Police Act 2005 for an ongoing demonstration.

After Part 3 of the Police Reform and Social Responsibility Act 2011 came into force, Westminster directed her to cease prohibited activities and remove prohibited items. She sought judicial review, declarations of incompatibility under section 4 of the Human Rights Act 1998, and a declaration that Westminster’s enforcement decision breached Articles 6, 10 and 11. The central issues were whether the earlier authorisations protected the tent, whether the statutory powers were Convention-compatible, and whether Westminster had acted unlawfully.

1. Ground 1. The section 134 authorisations did not authorise the erection or use of a tent or other obstruction of the highway. The statutory scheme regulated police control of demonstrations; it did not transfer Westminster’s highway powers or prevent the operation of Part 3 of the Police Reform and Social Responsibility Act 2011. The challenge was dismissed on the substantive hearing.
2. Nature of the powers. Sections 143 and 145 conferred discretionary powers. The use of “may” meant that an activity or item became legally prohibited only when a constable or authorised officer exercised the relevant power. The headings and defined expressions did not alter that construction. A direction under section 143 could be contested through judicial review, interim relief, damages and the reasonable-excuse defence under section 143(8).
3. Articles 10 and 11. The claimant’s protest engaged freedom of expression and assembly, but the statutory provisions did not prevent effective protest in Parliament Square at any time of day or night, or by other means. No additional positive obligation required the State to guarantee the claimant’s preferred method of protest.
4. Proportionality. Applying the three-stage approach in De Freitas v Ministry of Agriculture [1999] 1 AC 69, the legislative objectives were sufficiently important. They included protecting public access, preserving the Square for other demonstrators and visitors, protecting health, and preventing disorder and crime. The restrictions were rationally connected to those objectives. Existing byelaws and other powers had not prevented encampments, and the restrictions did not go further than necessary.
5. Article 6. A direction or seizure was not itself a determination of civil rights. Legal determination could occur through proceedings concerning failure to comply with a direction, judicial review or a reasonable-excuse defence. The position was materially different from R (Wright) v Secretary of State for Health [2009] 1 AC 739, because there was no comparable stigma or irreversible harm.
6. Ground 3. Westminster had been entitled to balance the claimant’s Convention rights against the public’s rights of access and enjoyment and to exercise its Part 3 powers. All applications were dismissed, although permission was granted because the issues were novel.

First-instance judicial review and human-rights claim. The court granted permission on the principal challenges but dismissed the substantive claim.