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

Statutory controls on tents and sleeping structures in Parliament Square were compatible with articles 10 and 11 of the Convention. The power to direct removal was discretionary, not mandatory, but Parliament intended it normally to be used. Departure was confined to exceptional compelling circumstances and could not depend on the merits of a protest. The scheme was prescribed by law because the activity became unlawful only after a direction and non-compliance without reasonable excuse. It pursued legitimate aims including protecting others’ use of the Square, public health and safety. The restriction was targeted and proportionate, leaving other forms of protest available and giving significant weight to Parliament’s informed balancing exercise. No additional positive obligation arose, and article 6 was satisfied by effective access to court.

The claimant was a peace campaigner who had maintained a 24-hour vigil in Parliament Square under authorisations issued pursuant to section 134 of the Serious Organised Crime and Police Act 2005. Her protest depended on maintaining a tent or similar sleeping structure.

After Part 3 of the Police Reform and Social Responsibility Act 2011 came into force, the Divisional Court rejected her challenge to sections 143 and 145. She appealed, arguing that the provisions unjustifiably interfered with articles 10 and 11 and article 1 of Protocol No 1, were not prescribed by law, imposed inadequate access to court under article 6, and breached the State’s positive obligations. The central issues were whether the statutory powers were discretionary, proportionate and compatible with the Convention.

1. Disposition. The appeal was dismissed. Sections 143 and 145 of the Police Reform and Social Responsibility Act 2011 were compatible with the Convention. No declaration of incompatibility was warranted.
2. Construction. Section 143(1) conferred a power, not a duty, to direct removal. The word may ordinarily indicated discretion. Padfield v MAFF [1968] AC 997 required that discretion to promote the policy and objects of the Act, but did not convert it into an obligation to direct removal in every case. The discretion was narrow: a direction would normally be given unless exceptional compelling circumstances existed. Decision-makers could not assess the importance or validity of a protest, or whether they agreed with it.
3. Interference and justification. A prohibition on tents could engage articles 10 and 11 where the manner and form of protest, including a permanent presence, formed part of its message. The principles in Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23 and Mayor of London v Rebecca Hall and others [2010] EWCA Civ 817 required attention to the particular facts. The scheme was prescribed by law because the activity was not unlawful until a direction was given and disobeyed without reasonable excuse. Its legitimate aims included protecting the rights and freedoms of others, public amenity, health, public safety and the prevention of crime.
4. The interference was proportionate. It was targeted and limited, did not prevent other forms of protest, and retained flexibility for exceptional cases. Parliament’s informed balancing exercise deserved significant weight, consistent with R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15. The restrictions were also justified by the slowness, expense and ineffectiveness of earlier civil possession proceedings.
5. Positive obligations and article 6. Because effective expression and assembly remained possible, no additional positive obligation arose. A direction was an interference with civil rights, not their determination. Effective access to court was available through proceedings to restrain a direction, a defence of reasonable excuse in criminal proceedings, or proceedings under section 7(1) of the Human Rights Act 1998. Wright v Secretary of State for Health [2009] 1 AC 739 was distinguishable because provisional listing there caused potentially irreversible harm without prior access to court.

• Court of Appeal (Civil Division): [2013] EWCA Civ 28 — dismissed the appeal.
• Divisional Court, Administrative Court: rejected the claimant’s challenge to sections 143 and 145 of the Police Reform and Social Responsibility Act 2011.