Barda, R (on the application of) v Mayor of London on Behalf of the Greater London Authority

The management of a public demonstration may engage Articles 10 and 11 where restrictions substantially affect its place, manner or form. Any interference must be prescribed by law, pursue a legitimate aim, meet a pressing social need and be proportionate.

Prior authorisation requirements do not ordinarily destroy the essence of the right, and failure to obtain authorisation does not remove Convention protection. It is, however, relevant to proportionality. A public authority responsible for a public square may adopt graduated measures, including fencing, to prevent occupation, disorder, breaches of applicable byelaws and interference with others’ rights, provided its response reflects the information reasonably available at the time.

The claimant was a member of Occupy Democracy, which organised repeated demonstrations in Parliament Square Gardens between October 2014 and May 2015. The Greater London Authority erected different forms of fencing and barriers around parts of the Gardens after protesters entered closed areas, used sleeping equipment and committed, or appeared likely to commit, breaches of the Parliament Square Gardens Byelaws 2012 and Part 3 of the Police Reform and Social Responsibility Act 2011.

The claimant sought judicial review of the decision to erect and maintain fencing from 21 October 2014. He argued that the decision was ultra vires, interfered with Articles 10 and 11, and was disproportionate. The central issue was whether the fencing constituted a justified interference with his Convention rights.

1. The claim was dismissed. The GLA’s powers under sections 384 and 385 of the Greater London Authority Act 1999 included managing and regulating access to Parliament Square Gardens, maintaining security and controlling its use. They were not limited to maintaining the physical condition of the Gardens (paras 82–84).
2. The fencing interfered with Articles 10 and 11. Place, manner and form may form an important part of a protest, although a protester’s preferred location and form need not always be accommodated. The extent of the interference was substantial but partial: demonstrations continued in restricted areas and their programme of events was maintained (paras 87–92, 101–103).
3. The applicable justification test required the restriction to be prescribed by law, pursue one or more legitimate aims, meet a pressing social need and satisfy proportionality. The GLA bore the burden of justification. The court had to assess proportionality by reference to what the GLA knew at each material time, without relying on later-acquired information (paras 94–99).
4. The legitimate aims included protecting the Gardens, preventing disorder and breaches of the Byelaws and the Police Reform and Social Responsibility Act 2011, and protecting the rights of other users. Prior authorisation was lawful in principle. Failure to obtain it did not extinguish Convention rights, but it was relevant to proportionality. The statutory sanctions in the 2011 Act were not an exclusive code and did not prevent other proportionate management measures (paras 104–114).
5. The GLA adopted a measured and graduated response. It initially used rope and posts, then fencing when protesters repeatedly crossed the barriers, used sleeping equipment and threatened occupation. Fencing was reduced or removed when the perceived threat diminished. In the circumstances, the response was proportionate and lawful (paras 115–124).