All England Reporter/2007/August/*Director of Public Prosecutions v Haw - [2007] All ER (D) 29 (Aug)
[2007] All ER (D) 29 (Aug)
*Director of Public Prosecutions v Haw
[2007] EWHC 1931 (Admin)
Queen's Bench Division (Divisional Court)
Lord Phillips CJ and Griffith Williams J
6 August 2007
Public order - Demonstration - Conditions imposed on demonstration - Defendant organising protest in Parliament Square - Failure to comply with conditions - Whether statutory powers available to Commissioner of Police exercisable by subordinate - Whether conditions imposed on defendant's protest unlawful - Serious Organised Crime and Police Act 2005, s 134.
Abstract
Public order - Demonstration. The statutory powers available to the Commissioner of Police under s 134 of the Serious Organised Crime and Police Act 2005 could be exercised by a subordinate on his behalf. The conditions imposed under the Act on the defendant's protest in the instant case (on Parliament Square), however, were unlawful as they were too vague.
Digest
The defendant had been conducting a permanent demonstration in Parliament Square against the government's policy on Iraq since June 2001. At one time he occupied a site opposite the entrance to the House of Commons of some 44m in width. The site was encumbered with placards, tents and other objects. No suggestion had been made at any time that the defendant was any form of security threat. Concerns were raised, however, that his demonstration might be used as some sort of cover for a terrorist attack. In April 2005, the Serious Organised Crime and Police Act 2005 received royal assent. Sections 132 to 138 dealt with demonstrations in the vicinity of Parliament. They provided for a system of notices and authorisation, subject to conditions, for such demonstrations. Where an unauthorised demonstration was carried on or a condition not complied with, an offence was committed. The provisions came into force on 1 July 2005. The defendant brought proceedings for judicial review, in which he submitted that the provisions had no application to his demonstration as it was already in existence when they came into effect. The Court of Appeal rejected that submission (see [2006] All ER (D) 94 (May)). A general challenge to ss 132 to 138 as an infringement of art 11 of the European Convention on Human Rights was also rejected (see [2006] All ER (D) 303 (Dec)). In May 2006, a summons was issued against the defendant for breach of the conditions imposed under the Act, alleging that he had knowingly failed to comply with the conditions contrary to s 134(7)(a). In particular, it was said that he had organised the demonstration on a site which exceeded prescribed size, that he had failed to supervise the site of the demonstration properly, that he had used articles in connection with his demonstration that would allow others to conceal items within them, and that he had failed to maintain his site in a manner that allowed any person present to tell at a glance whether or not suspicious items were present thereon. The judge ruled that there was no case to answer, and the prosecution appealed by way of case stated.
Two issues arose for determination: (i) whether the statutory powers available to the Commissioner of Police under s 134 could be exercised by a subordinate on his behalf; and (ii) whether the conditions imposed upon the defendant were ultra vires, or incompatible with arts 10 and 11 of the European Convention on Human Rights on the grounds that they were unreasonable or insufficiently clear.
The court ruled:
The statutory powers available to the Commissioner of Police under s 134 could be exercised by a subordinate on his behalf.
It was plain that Parliament could not have intended that the Commissioner should determine the conditions himself. Determining the appropriate conditions was a technical matter, depending on the precise location and nature of the demonstration that was planned. The Commissioner could not have been intended himself to determine, for example, the number and size of banners or placards to be used at each demonstration.
The judge's conclusion that the conditions imposed upon the defendant in the instant case were not workable was not unreasonable and could not be interfered with.
The questions posed by the case stated would be answered (i) 'the power could be delegated' and (ii) 'yes, by reason of lack of clarity'.
Harold Keith and Clair Dobbin (instructed by the Crown Prosecution Service) for the prosecution.
Clive Sheldon (instructed by the Attorney-General) appeared as advocate for the court.
The defendant appeared in person.
James Wilson Barrister (NZ).
Judgment
[2007] EWHC 1931 (Admin)
DIVISIONAL COURT
6 AUGUST 2007
LORD PHILLIPS OF WORTH MATRAVERS CJ and MR JUSTICE GRIFFITH WILLIAMS
JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
LORD PHILLIPS CJ:
This is the judgment of the court
Introduction
1. This is an adjourned hearing of an appeal by way of case stated by the Director of Public Prosecutions against a decision of District Judge Purdy in the City of Westminster Magistrates Court on 22 January 2007. The judge ruled that there was no case for the Respondent, Brian Haw, to answer on a charge of knowingly failing to comply with a condition imposed under section 134 of the Serious Organised Crime and Police Act 2005 ('SOCA') in respect of a demonstration in Parliament Square. The hearing before us was adjourned because Mr Haw had not been served with relevant documents in time to give them proper consideration.
2. There had been listed before us at the same time an application by Mr Haw for permission to apply for judicial review to challenge the decision taken by the police to impose those conditions. Initially it was not clear whether Mr Haw wished to pursue that application. His stance was that he wished at least to keep it alive. We directed that, if he wished to pursue, it he should do so after we have dealt with the case stated and on a different occasion.
3. The issues raised by the case stated are as follows:
i) Whether the statutory powers available to the Commissioner of Police under section 134 of SOCA can be exercised by a subordinate on his behalf;
ii) Whether the conditions imposed on Mr Haw were ultra vices, or incompatible with Articles 10 and 11 of the European Convention on Human Rights ('ECHR'), as unreasonable or insufficiently clear.
Background
4. Mr Haw has been conducting a permanent demonstration in Parliament Square against the Government's policy on Iraq since 2 June 2001. At one tin he occupied a site opposite the entrance to the House of Commons of some 44 metres in width. This was encumbered with placards, tents and other objects. Mr Haw is a peaceable man and no one has ever suggested that he himself poses any form of threat to security. The concern is, however, that his demonstration so close to Parliament might be used as cover for some form of terrorist attack.
5. On 7 April 2005 SOCA received royal assent. Sections 132 to 138 deal specifically with demonstrations in the vicinity of Parliament. They provide for a system of notices and authorisation, subject to conditions, for such demonstrations. Where an unauthorised demonstration is carried on or a condition is not complied with an offence is committed. These provisions came into force on 1 July 2005.
6. Mr Haw brought proceedings for judicial review in which he submitted that these provisions had no application to his demonstration as it was already in existence when they came into effect. On May 2006 the Court of Appeal ruled against this submission in R (Haw) v Secretary of State for the Home Department [2006] EWCA Civ 532. A general challenge to sections 132 to 138 of SOCA as an infringement of Article 11 of the ECHR was made in appeals by way of case stated brought by four other demonstrators. This also failed: Blum and others v Secretary of State for the Home Department [2006] EWHC 3209 (Admin).
The statutory provisions:
7. Section 132(1) of SOCA provides:
"'Any person who (a) organises a demonstration in a public place in the designated area or (b) takes part in a demonstration in a public place in the designated area... is guilty of an offence if, when the demonstration starts, authorisation for the demonstration has not been given under s. 134(2).'
Under section 133(1) a person seeking authorisation for a demonstration in the designated area must give written notice to that effect to the Commissioner of Police of the Metropolis ("the Commissioner"). The notice must be given, if reasonably practicable, not less than 6 clear days before the day on which the demonstration is to start or, if that is not reasonably practicable, then as soon as it is, and in any event not less than 24 hours before the time the demonstration is to start: section 133(2).
The notice, which must contain information relating to the date, time, place, duration etc of the demonstration etc, must be given by delivery to a police station in the metropolitan police district or by post by recorded delivery to such a police station: section 133(5)."
8. Section 134 provides, so far as relevant:
"134 Authorisation of demonstrations in designated area
(1) This section applies if a notice complying with the requirements of section 133 is received at a police station in the metropolitan police district by the time specified in section 133(2).
(2) The Commissioner must give authorisation for the demonstration to which the notice relates.
(3) In giving authorisation, the Commissioner may impose on the persons organising or taking part in the demonstration such conditions specified in the authorisation and relating to the demonstration as in the Commissioner's reasonable opinion are necessary for the purpose of preventing any of the following-
(a) hindrance to any person wishing to enter or leave the Palace of Westminster,
(b) hindrance to the proper operation of Parliament,
(c) serious public disorder,
(d) serious damage to property,
(e) disruption to the life of the community,
(f) a security risk in any part of the designated area,
(g) risk to the safety of members of the public (including any taking part it. the demonstration).
(4) The conditions may, in particular, impose requirements as to -
(a) the place where the demonstration may, or may not, be carried on,
(b) the times at which it may be carried on,
(c) the period during which it may be carried on,
(d) the number of persons who may take part in it,
(e) the number and size of banners or placards used,
(f) maximum permissible noise levels.
(5) The authorisation must specify the particulars of the demonstration given in the notice under section 133 pursuant to subsection (4) of that section, with any modifications made necessary by any condition imposed under subsection (3) of this section.
(6) The Commissioner must give notice in writing of -
(a) the authorisation,
(b) any conditions imposed under subsection (3), and
(c) the particulars mentioned in subsection (5), to the person who gave the notice under section 133.
(7) Each person who takes part in or organises a demonstration in the designated area is guilty of an offence if -
(a) he knowingly fails to comply with a condition imposed under subsection (3) which is applicable to him (except where it is varied under section 135), or
(b) he knows or he should have known that the demonstration is carried on otherwise than in accordance with the particulars set out in the authorisation by virtue of subsection (5).
(8) It is a defence for a person accused of an offence under subsection (7) to show-
(a) (in paragraph (a) case) that the failure to comply, or
(b) (in paragraph (b) case) that the divergence from the particulars,
Arose from circumstances beyond his control, or from something done with the agreement, or by the direction of a police officer.
(9) The notice required by subsection (6) may be sent by post to the person who gave the notice under section 133 at the address stated in that notice pursuant to subsection (4)(e) of that section.
(10) If the person to whom the notice required by subsection (6) is to be given has agreed, it may be sent to him by email or by facsimile transmission at the address or number notified by him for the purpose to the Commissioner (and a notice so sent is 'in writing' for the purposes of that subsection). "
9. Section 135 provides:
"135 Supplementary directions
(1) This section applies if the senior police officer reasonably believes that it is necessary, in order to prevent any of the things mentioned in paragraphs (a) to (g) of subsection (3) of section 134-
(a) to impose additional conditions on those taking part in or organising a demonstration authorised under that section, or
(b) to vary any condition imposed under that subsection or under paragraph (a) (including such a condition as varied under subsection (2)).
(2) The senior police office may give directions to those taking in or organising the demonstration imposing such additional conditions or varying any such condition already imposed.
(3) A person taking part in or organising the demonstration who knowingly fails to comply with a condition which is applicable to him and which is imposed or varied by a direction under this section is guilty of an offence.
(4) It is a defence for him to show that the failure to comply arose from circumstances beyond his control.
(5) In this section, 'the senior police officer' means the most senior in rank of the police officers present at the scene (or any one of them if there are more than one of the same rank)."
The Conditions
10. An Order specifying the designated area, including Parliament Square, was made by the Secretary of State on 8 June 2005. It came into force on 1 July 2005.
11. The Commissioner of Metropolitan Police signed an undated document under which he gave notice that he delegated his functions under section 134 of SOCA to an officer of the rank of Superintendent or above.
12. On 8 May 2006 Mr Haw's solicitors wrote to Charing Cross Police Station (for the attention of Superintendent Bonner) seeking authorisation to continue his demonstration, for the most part on his own but stating that from time to time he would be 'joined by others'.
13. On 9 May 2006 Superintendent Peter Terry purported to authorise the demonstration to continue subject to conditions imposed under section 134(3)
14. The conditions were as follows:
"1. The site associated with your demonstration (including banners, placards etc) will not exceed 3 metres in width, 3 metres in height and 1 metre in depth.
2. The site should at no time prevent pedestrian movement along the footway.
3. Your property (including banners, placards etc) must be supervised at all time with diligence and care, in a manner that ensures that nothing can be added to your protest site without your immediate knowledge.
4. You must not use articles in connection with your demonstration that can conceal or contain other items.
5. You must maintain your site in a manner that allows any person present to tell at a glance that no suspicious items are present.
6. If members involved in your demonstration are to exceed 20 in total you must give six clear days notice to the operations officer at Charing Cross Police Station.
7. If requested by a police officer in uniform you must confirm whether persons present are part of your demonstration or not."
15. After representations by Mr Haw's solicitors in relation to these conditions, three of them were varied as follows:
"3. your property (including banners, placards etc) must be supervised at all time with diligence and care, in a manner that ensures that nothing can be added to your protest site without your immediate knowledge, or the immediate knowledge of a person nominated by you to care for your property whilst you are not able to do so.
4. You must not use articles in connection with your demonstration that would allow others to conceal items within them.
6. If the numbers involved in your demonstration are to exceed 20 in total you must, where reasonably practicable, give six clear days notice of this fact to the operations office at Charing Cross Police Station. When it is not reasonably practicable to give six clear days notice, then give notice as soon as it is, and in any event no less than twenty four hours before numbers are to increase to above twenty."
The proceedings
16. On 18 May 2006 a summons was issued against Mr Haw for breach of the conditions imposed under SOCA alleging that he knowingly failed to comply with the conditions contrary to s134(7)(a) in that he:
(a) organised the demonstration on a site which exceeded 3 metres in width, 3 metres in height and 1 metre in depth.
(b) failed to supervise the site of the demonstration and the property thereon at all times with diligence and care, in a manner that ensured that nothing could be added to the site without his immediate knowledge, or in the immediate knowledge of a person nominated by him to care for the property whilst he was unable to do so.
(c) used articles in connection with his demonstration that would allow others to conceal items within them
(d) failed to maintain his site in a manner that allowed any person present to tell at a glance whether or not suspicious items were present thereon.
The summons was supported by a witness statement of Paul Reilly claiming that Mr Haw was in breach of the width restriction condition 1, and of conditions 4 and 5 in that the area behind the display was covered in disused placards, and sheeting. On 23 May 2006 police attended the site and removed a number of items on the ground that this was necessary to achieve compliance with the conditions.
17. The hearing took place before District Judge Purdy between 11 and 13 December 2006. Evidence for the prosecution was given by Superintendent Terry and Chief Inspector Robinson. Two video tapes were played to the judge and photographs of the site of Mr Haw's demonstration were placed before him. On 2 May 2007 he gave his decision. The summary of his conclusions and the questions that he stated for the decision of this court were as follows:
"3. In short I held that the power to delegate a statutory duty as in Carltona v Commissioner of Works [1943] 2 AER 560 did not apply holding that demonstrations in the 'vicinity of Parliament' cannot be delegated applying inter alia Lord Hailsham, LC, in R v Chief Constable of North Wales ex. P Evans [1982] 1 WLR 155 HL. Additionally R v Constable of Greater Manchester ex. p. Lainton [2000] 1. R. C. 1324 per Laws L.J, at paragraph 28 'regard must be had to the public interest in seeing that the Chief Officer deals with matters of special substance' and R v Chief Constable of the West Midlands ex.p. Birmingham Justices [2002] EWHC 1087 (Admin).
4. In addition, upon the evidence .... I found that the conditions imposed, taken together, as they were intended to be applied in order to regulate a permanent demonstration, lacked clarity such as that they were not workable. I came to that conclusion following the evidence in cross examination of several police officers who had such varying opinions as to the meaning of the conditions that I felt driven to conclude it was therefore impossible to expect Brian Haw to keep within these conditions and held that they were not 'prescribed by law' per Article 11 of the Convention.
5. Questions
(1) Whether the statutory power available to 'the Commissioner of Police of the Metropolis' (per Section 133) to impose conditions on demonstrations, as set out in Section 134 of The Serious Organised Crime and Police Act 2005, can be delegated applying the principles in Carltona v Commissioners of Works [1943] 2 AER 560 or only as permitted by Sections 9A-9F of the Police Act 1996?
(2) Whether the conditions imposed on Brian Haw by letters dated 9th and 15th May 2006 were ultra vires section 134(3) of the Serious Organised Crime and Police Act 2005 and/or incompatible with Articles 10 and 11 of the European Convention on Human Rights as enshrined in Schedule 1 of the Human Rights Act 1998 as they lacked clarity so as not to be 'prescribed by law'?"
Can the Commissioner's powers be exercised by a subordinate?
18. After reviewing authority to which we shall refer the judge reached the following conclusion on this issue:
"The current state of the law on delegation seems to come down to assessing the 'statutory purpose' (supra) and 'the public interest in seeing that the Chief Officer deals with matters of special substance" (supra). Such considerations must come ahead of administrative concerns. These provisions deal not just with demonstrations but those directly related to Parliamentary protest something right at the heart of a democracy. Accordingly, applying those legal principles, I conclude that the Commissioner cannot delegate as he purported to do save within the powers available under The Police Act 1996 i.e. Deputy Commissioner or one of the five Assistant Commissioners. I hold that the submission of no case succeeds on this ground as Supt. Terry had no power to impose any conditions."
19. Mr Keith for the Crown did not challenge the test formulated by the judge. He submitted, however, that the judge failed properly to apply that test. Section 134 did not involve a decision whether to authorise or to refuse to authorise demonstrations. Authorisation was mandatory. The decision related simply to the imposition of appropriate conditions. These were pre-eminently matters that one would expect to be dealt with by subordinates. The judge was wrong to conclude that they were 'matters of special substance'. This was underlined by the fact that section 135(1) expressly provided that the senior police officer present might add to or vary the existing conditions.
20. The issue of law raised is not an easy one and, being aware that Mr Haw had not sought to be represented by a lawyer we asked the Attorney General to nominate an advocate to the court to assist us. In this role, Mr Clive Sheldon made his submissions at the first hearing. They were restricted to the first question.
21. Mr Haw initially took objection to Mr Sheldon's participation, stating that he had not asked for the assistance of an advocate and did not wish to have his interests represented by a man whom he had not even met. We explained, however that Mr Sheldon was present at the request of the Court and was not representing Mr Haw. At the end of Mr Sheldon' submissions Mr Haw appeared grateful for them. He made no relevant submissions in relation to the first question himself. We also are grateful for the submissions of Mr Sheldon.
22. Mr Sheldon submitted that the answer to the first question in the case stated is that delegation is permitted only as provided by sections 9A-F of the Police Act 1996. Those sections, inserted in 1999, give the Commissioner of Police for the Metropolis power to delegate to the Deputy Commissioner of Police for the Metropolis and to an Assistant Commissioner of Police for the Metropolis.
23. The Judge placed some reliance on R (Chief Constable of the West Midlands) v Birmingham Justices. That decision applied the Carltona principle to the powers of a Chief Constable. Mr Sheldon submitted that this case was in conflict with other authority and was wrongly decided.
24. The Carltona principle was enunciated at page 563 of the report of that case:
"In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministries. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament. The whole system departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them."
25. The Carltona principle received consideration from both the Court of Appeal and the House of Lords in R v Secretary of State for Home Affairs, ex parte Oladehinde [1991] 1 AC 254. At issue in that case was whether the Home Secretary had validly authorised immigration officers to exercise his statutory powers in relation to the deportation of aliens who had not complied with the conditions under which they had been permitted to enter the country. The Divisional Court, Woolf LJ and Pill J, held that he had not. The Court of Appeal allowed the Home Secretary's appeal. Giving the judgment of the Court, Lord Donaldson MR made the following observations at p. 282:
"Woolf L.J. held, ante, pp 264H-265A, that the Carltona principle should be regarded 'as an implication which is read into a statute in the absence of any clear contrary indication by Parliament that the implication is not to apply.' In this we think that he must be mistaken, because it applies equally where the minister's powers are derived otherwise than from a statute: e.g. from prerogative powers. We think that the better view is that this is a common law constitutional power, but one which is capable of being negatived or confined by express statutory provisions, as has been achieved in sections 13(5), 14(3) and 15(4) of the Act by the use of the words 'and not by a person acting under his authority' or by clearly necessary implication. However, so far as implication is concerned, we would expect any challenge to be mounted upon the possibly broader basis that the decision to devolve authority was Wednesbury unreasonable with, if appropriate, a submission that it involved a contravention of the rules of natural justice or of fairness. Thus we have no doubt that the courts would strike down a decision to authorise a prison governor to deal, in behalf of the Secretary of State, with petitions by prisoners complaining of the conduct of that governor. We hasten to add that no such decision has ever been taken. Consistently with his approach, we think that the present decision needs to be reviews with the possibility of Wednesbury irrationality clearly in mind."
26. At p. 283 Lord Donaldson added this:
"It is certainly true that the Home Office and Home Office ministers have not used language which was as precise as it might have been. Thus both Mr Renton in his parliamentary answer in the House of Commons on 20 December 1988 and Mr. Mawer, the Principal Private Secretary to the Secretary of State, responding to a request for information from the Immigration Appeal Tribunal, spoke of "delegation" of powers, although it is quite clear that what they were describing was authority to act on behalf of the Secretary of State. This is something different from delegation. The Civil servant concerned acts not as the delegate, but as the alter ego of the Secretary of State. 'Devolution' might be a better word."
27. In the leading speech in the House of Lords, which dismissed an appeal against the decision of the Court of Appeal, Lord Griffiths added little about the Carltona principle, albeit that he adopted the terminology used by Lord Donaldson. Thus he said at p. 300:
"It is obvious that the Secretary of State cannot personally take every decision to deport an immigrant who is in breach of his condition of entry or who is an overstayer. The decision must be taken by a person of suitable seniority in the Home Office for whom the Home Secretary accepts responsibility. The devolution of responsibility was recognised as a practical necessity in the administration of government by the Court of Appeal in Carltona Ltd. v. Commissioners of Works [1943] 2 All E.R. 560 and has come to be known as the Carltona principle."
28. Lord Griffiths added at p. 303:
"It is well recognised that when a statute places a duty on a minister it may generally be exercised by a member of his department for whom he accepts responsibility: this is the Carltona principle. Parliament can of course limit the minister's power to devolve or delegate the decision and require him to exercise it in person."
29. It seems to us that there is scope for further refinement of the Carltona principle. There is a case for saying, as Lord Griffiths observed, that the devolution of a Minister's powers should be subject to a requirement that the seniority of the official exercising a power should be of an appropriate level having regard to the nature of the power in question. No such issue arises in the present case, however. What is in issue is whether the Carltona principle can be applied, not to a Minister, but to the Commissioner of Police for the Metropolis.
30. In R (Lainton) v Chief Constable of the Greater Manchester Police [2000] 1 Pol LR 67 regulations made pursuant to the Police Act 1996 provided that the probationary period of a police constable could be extended by the Chief Constable. An issue arose as to whether this power could be exercised by an Assistant Chief Constable, or whether it could only be exercised by the Chief Constable himself. The Court of Appeal held that this was a power that could validly be delegated to an Assistant Chief Constable. In the leading judgment Laws LJ said this at pp 71-2:
"At first instance, and in this court, both parties accepted the correctness of the following passage, taken from p366 of de Smith, Woolf & Jowell on Judicial Review of Administrative Actions [5th ed, 1995]:
'Where the exercise of a discretionary power is entrusted to a named officer- e.g a chief officer of police, a medical officer of health or an inspector - another officer cannot exercise his powers in his stead unless express statutory provision has been made for the appointment of a deputy or unless in the circumstances the administrative convenience of allowing a deputy or other subordinate to act as an authorised agent very clearly outweighs the desirability of maintaining the principle that the officer designated by statute should act personally'
24. I, too, would accept this as a statement of the law as it currently stands; and as it seems to me broadly to march with what was said by Steyn LJ (as he then was) in Curtin [1994] Admin LR 657 at 666C-E:
'One must not elevate the idea of delectus personae which is sometimes called the presumption of deliberate selection to become an independent normative principle. It is a principle of statutory construction which will readily give way to indications of contrary intent, and here everybody knows, and the legislature must have known, that no all the individuals would necessarily be known to the majority of council members. In these circumstances, the presumption of deliberate selection must give way to a consideration of the practical realities of the exercise of a power to delegate.'
25. It is true that Lord Steyn there, in speaking of the idea or perception of delectus personae, was dealing with a concept somewhat narrower than a general power to delegate, but the reference to practical reality in broad terms supports what is said in de Smith, Woolf & Jowell. Of course, as I understand Mr Hunt to acknowledge, if the language of the provision in question in any particular case demonstrates that no delegation
was intended by the legislator, that would be the end of the matter. Here, it is accepted that there can be delegation of the power to dispense with the services of a probationer constable under reg 15(1). That is the express effect of the decision in their Lordships' House in R v Chief Constable of North Wales Police e.p Evans [1982] 1 WLR 1125. I would refer to but not cite passages from the speech of Lord Hailsham at 1161 F-G and Lord Bridge at 1165C-D. It is true to say that this decision of the House of Lords must be taken to have been in the mind of the legislator when the 1995 regulations were made."
31. In Lainton no mention was made of the Carltona principle. The possibility of delegation appears to have been based upon statutory implication. In the Birmingham Justices case the application of the Carltona principle to a Chief Constable received detailed consideration by Sedley LJ, sitting in the Divisional Court. The issue was the extent of the power of a Chief Constable to delegate his statutory function of making applications for anti-social behaviour orders. Sedley LJ expressed the following views:
"9. Although the Carltona case is frequently cited as a source of the 'alter ego' doctrine, it can be seen that Lord Greene's reasoning is not predicated on this. It is predicated on the proposition that the departmental head is responsible for things done under his authority. The relevance of the alter ego doctrine is that Crown servants were at that time taken in law to hold their positions by grace and not by contact, so that the minister was first among equals, not an employer with servants or a principal with agents. His implied power to delegate functions depended, therefore, on two things: the conferment of a power in terms which implicitly permitted their delegation and the existence of persons to whom he could delegate them without parting with ultimate responsibility.
10. A Chief Constable similarly is not the employer of the officers under his or her command but is legally answerable for them. The Carltona principle appears to apply readily in such a situation, with two well-established qualifications. One is that some functions are such that they cannot, consistently with the statutory purpose, be delegated at all: see R v Chief Constable of Greater Manchester, ex parte Lainton (C.A. 28 March 2000, unreported), paragraph 28. The other is that delegation has to be to somebody suitable. As Carltona demonstrates, who is suitable is primarily for the office-holder to decide. Today, however, it is clear that an improper delegation will be a matter for the courts, at least where the discharge of a statutory office is in issue."
32. Sedley LJ then considered Nelms v Roe [1970] 1 WLR 4. In that case Lord Parker CJ adopted the route of implied delegated authority to hold valid the exercise of a statutory power to sign an information, conferred on the Metropolitan Police Commissioner, by a police inspector who had been authorised by a superintendent. The Court expressly declined to apply the Carltona principle to the Commissioner of the Metropolitan Police. As to this, Sedley LJ commented:
"With all possible respect, I do not consider that we are required to adopt this reasoning. As has been seen, the Carltona principle, which binds this court, does not depend upon on the peculiar status of civil servants as the alter ego of their minister. It is sufficiently ample to allow a Chief Constable to discharge functions of the kind we are concerned with through an officer for whom he or she is answerable. To fall back instead on implied delegation and sub-delegation is capable of appearing to be a ratification by the court of an accomplished fact and to beg the question of power to delegate."
33. As Lord Donaldson pointed out, the Carltona principle can apply to the exercise of prerogative powers that are not conferred by statute. Where powers are conferred on a Minister by statute, the Carltona principle will apply to those powers unless the statute, expressly or by implication, provides to the contrary. Where a statutory power is conferred on an officer who is himself the creature of statute, whether that officer has the power to delegate must depend upon the interpretation of the relevant statute or statutes. Where the responsibilities of the office created by statute are such that delegation is inevitable, there will be an implied power to delegate. In such circumstances there will be a presumption, where additional statutory powers and duties are conferred, that there is a power to delegate unless the statute conferring them, expressly or by implication, provides to the contrary. Such a situation is, in practice, indistinguishable from one in which the Carltona principle applies. Thus whether Sedley LJ was correct as a matter of legal theory would seem to be of only academic significance.
34. Section 9A of the Police Act 1996 provides that the metropolitan police force shall be under the direction and control of the Commissioner of Police of the Metropolis. Section 9C makes provision for the powers and duties of the Commissioner of Police of the Metropolis to be performed, in specified circumstances, by the Deputy Commissioner of Police for the Metropolis. Section 9F provides that an Assistant Commissioner of Police may exercise any of the powers and duties of the Commissioner of Police for the Metropolis with the consent of the Commissioner. These general provisions permit delegation of the powers and duties of the Commissioner in circumstances where, having regard to the nature of those powers and duties, there would not be an implicit power to delegate. They do not, however, exclude the possibility of delegation to persons other than the Deputy or an Assistant Commissioner where, having regard to the nature of the powers and duties, a power to delegate is implicit. On the contrary, having regard to the statutory role of the Commissioner, one would expect Parliament, when conferring powers to be exercised by the Metropolitan Police, to confer them on the Commissioner and to leave him to delegate the exercise of those powers as appropriate.
Conclusions in relation to the first question
35. Whether to authorise a demonstration under section 134 is not discretionary; it is mandatory provided that the requisite notice has been given. The discretion conferred by that section is restricted to determining the conditions to be specified in the authorisation, which must be such as 'in the Commissioner's reasonable opinion' are necessary for the purpose of preventing the matters specified in the section. This sets the standard for any judicial review, a standard which, so it seems to us, equates to that of proportionality when considering the justification for restrictions on freedom of expression and freedom of assembly permitted by Articles 10 and 11 of the ECHR. The question remains as to whether the Commissioner must himself determine the conditions or whether this is something that he is entitled to delegate.
36. When the practicalities are considered it is plain that Parliament cannot have intended that the Commissioner should determine the conditions himself. Evidence was given to the judge that, at the time of the hearing, there were 1200 to 1300 demonstration applications in the vicinity of Charing Cross Station alone. Determining the appropriate conditions is a technical matter, depending on the precise location and nature of the demonstration that is planned. The Commissioner cannot have been intended himself to determine, for instance, the number and size of banners or placards to be used at each demonstration.
37. For these reasons we differ from the conclusion of District Judge Purdy that the subject matter of the conditions was such as to preclude delegation by the Commissioner of their determination.
Were the conditions ultra vires or incompatible with Articles 10 and 11 of the ECHR?
38. District Judge Purdy's findings in relation to this question were as follows:
"I have huge sympathy for Supt. Terry and clearly recall the ill concealed anguish with which he spoke of drafting and redrafting the conditions. Messrs Bindmans for Mr Brian Haw contributed to the process resulting in some amendments. Supt Terry's primary objective public safety concerns at an explosive device I find honest and reasonable. If conditions aimed at securing that aim, proportionate to a balance with the Defendant's right to protest, then that exercise, to my mind, cannot be fairly challenged. However, I fear he was struggling with describing the ever difficult elephant in the room resulting in conditions taken together which are not clear or workable. Mr MacDonald's cross examination of police witnesses was a master in demonstrating the absurdity of some conditions set against another. If Mr Keith, as Treasury Counsel, undoubtedly learned in the law, was forced to effectively abandon conditions 4 & 5 the Defence point is really made. Achieving clear unobjectionable conditions is not easy. When I invited, during submissions, Mr MacDonald to draft such conditions he visibly recoiled from the challenge. That does not, however, for the reasons just given detract from the fact these conditions as visited upon the Defendant, taken together lack clarity and cannot stand."
39. For these reasons the judge held that the conditions did not satisfy the requirements of the ECHR that they should be 'prescribed by law'.
40. Mr Haw had something to say in relation to this question. He submitted that his demonstration was directed against torture, murder and genocide. In these circumstances it was not reasonable to impose any conditions on the ambit of his demonstration. We do not accept that submission. The conditions were imposed, not with the object of frustrating or impeding Mr Haw's demonstration, but of ensuring that others could not use the demonstration as cover for terrorist activities. This was a perfectly reasonable and proportionate justification for imposing appropriate conditions.
41. Mr Haw did not limit his submissions to those that we have just considered. He had taken advantage of the first hearing to rail against a number of injustices that he claimed to have suffered, including the removal by the police of his property and physical violence that he claimed had been inflicted on him and his followers by the police. He returned to these themes on the renewed hearing. We attempted to explain to Mr Haw that these were not issues that arose on the case stated. The two issues that arose were issues on which he had been successful before the District Judge. As to this, Mr Haw replied that he had not had 'a proper trial' before the District Judge because the judge had ruled that there was no case to answer. After listening for at least half an hour to submissions that were irrelevant to the issues before us, despite repeated requests to Mr Haw to confine himself to relevant submissions, we directed him to bring his submissions to a close. He replied that the adjourned hearing had been listed for two hours, indicating that he intended to take full advantage of this. In these circumstances, after making sure that Miss Dobbin for the Crown did not wish to address further submissions, we left the court with Mr Haw still in full flood, reserving our judgment.
42. It is plain from the judgment that Mr MacDonald QC, who represented Mr Haw at the hearing before District Judge Purdy, had something of a field day when examining Superintendent Terry about the conditions. He succeeded in demonstrating to the satisfaction of the District Judge that the conditions were unworkable. If this was correct, the conditions were plainly neither reasonable nor did they satisfy the test of certainty that the Strasbourg Court requires when considering whether restrictions on Convention rights are 'according to law'.
43. Mr Keith sought to persuade us that he could successfully challenge the judge's conclusion in these proceedings, but failed to do so. The judge summarised the evidence given in relation to Mr Haw's demonstration in the course of his ruling, but it is not possible to found a submission that his conclusions were unreasonable on the basis of this summary. We are not in a position to differ from the conclusion of the judge who heard the evidence in relation to the second question in the case stated and, accordingly, must answer that question 'no'.
44. We would add this. The judge recorded that Mr Haw's solicitors had entered into discussions with Superintendent Terry in relation to the conditions, and that alterations were made in the light of these discussions. Mr Terry plainly attempted to accommodate Mr Haw's wishes, in so far as this could be done in a way that satisfied the needs of security. This cannot have been easy. The judge recorded:
"Conditions were imposed because, in the view of the police, Mr Brian Haw would not negotiate in any meaningful negotiations to meet their concerns. Supt. Terry said whenever I do speak to Brian Haw he stands and shouts at me".
45. The challenge made on behalf of Mr Haw to the practicality of the conditions imposed may mean that the police will be driven, in the interest of workability, to impose conditions on him that are simpler and more restrictive. Mr Haw has chosen for his demonstration a site that is particularly sensitive. He would be well advised to co-operate with the police in agreeing the conditions of such demonstration.
46. For the reasons that we have given the first question will be answered 'the power can be delegated' and the second question will be answered 'yes, by reason of lack of clarity'.
All England Official Transcripts (1997-2008)
Butler v Derby City Council
Town and country planning - Advertisement - Display without consent - Protest banner - Freedom of expression - Whether protest banner amounting to advertisement - Whether claimant's freedom of expression violated - Town and Country Planning Act 1990, ss 224, 336 - Town and Country Planning (Control of Advertisements) Regulations 1992, regs 5, 27 - European Convention on Human Rights, art 10
[2005] EWHC 2835 (Admin), CO/6420/2005, (Transcript: Smith Bernal)
QUEEN'S BENCH DIVISION (DIVISIONAL COURT)
COLLINS, SULLIVAN JJ
22 NOVEMBER 2005
22 NOVEMBER 2005
L Kingsland QC, P Petchey and J Pike for the Claimant
The Defendant did not appear and was not represented
Taylor, Simpson & Moseley
SULLIVAN J:
INTRODUCTION
[1] On 26 May 2004 an information was preferred by the Respondent council against the Appellant that on 29 March 2004 he displayed an advertisement on a property known as 7 Kedleston Road, Derby, without the consent of the council or the Secretary of State, contrary to regs 5 and 27 of the Town and Country Planning Act (Control of Advertisements) Regulations 1992 ("the Regulations") and s 224 of the Town and Country Planning Act 1990 ("the Act").
[2] Following a hearing before District Judge Alderson on 10 and 15 November 2004, the Appellant was convicted of that offence and was conditionally discharged and ordered to pay costs of £1,706. He now appeals by way of case stated against that conviction.
THE FACTS
[3] The judge found the following facts in para 2 of the case stated:
"(a) At all material times the Appellant was the owner of 7 Kedleston Road.
(b) On or before 10 March 2004 the Appellant had displayed a banner at 7 Kedleston Road, Derby. The banner was still on display on 29 March 2004.
(c) The banner was approximately two metres by 0.85 metres in size and was tied to the front elevation of the property. It bore the words, 'Save Five Lamps' in red capital letters. Below this was the 'Derby Heart' logo and in blue lower case lettering, 'Tel: 01332 361375' and 'www.derbyheart.org.uk.'
(d) 'Derby Heart' was the name for the Derby Heritage and Environmental Association for Residents and Traders and was a group of people with a common aim of opposing Derby City Council's 'Connecting Derby' road scheme.
(e) The banner was an advertisement as defined by section 336 of the Town and Country Planning Act 1990.
(f) The Appellant had not been given consent to display the advertisement in accordance with the Town and Country Planning (Control of Advertisements) Regulations 1992, nor had he applied for any such consent."
SUBMISSIONS BEFORE THE JUDGE
[4] In paras 3 and 4 the judge referred to the rival contentions as set out in the parties' skeleton arguments and supplementary skeleton arguments. In para 5 she listed the cases to which she had been referred. They included the case of Westminster City Council v Brian Haw [2002] EWHC 2073, a decision of Gray J. In that case the city council had applied for an injunction under s 130 of the Highways Act 1980 and s 222 of the Local Government Act 1972 to restrain Mr Haw from obstructing the pavement in Parliament Square, opposite the House of Commons, by displaying a considerable number of placards and posters. Although we do not know the precise wording on Mr Haw's placards, in para 5 of his judgment Gray J said:
"It is not necessary for me to go into detail; it suffices to say that the placards and posters criticise in trenchant terms the policy adopted by the Government towards the regime in Iraq and the effect of that policy on Iraqi citizens."
[5] In order to succeed in its application the city council had to establish not merely that there had been a physical obstruction of the highway, but also that the obstruction was unlawful and unreasonable. Gray J concluded that although there was a deliberate obstruction it was lawful and reasonable.
[6] During the course of the hearing the city council submitted that Mr Haw's activities amounted to the unlawful display of advertising and so could not be reasonable. Gray J dealt with this point in paras 19 and 20 of his judgment as follows:
"19 . . . I accept that in order to be reasonable, the activities carried out on the highway must be lawful . . . But does setting up political placards in Parliament Square amount to advertising within the meaning of section 224 of the Town and Country Planning Act so as to be unlawful under that section? Mr Powell [counsel instructed on behalf of the city council] relies on the definition of advertising in section 336 of the same Act. 'Advertisement' is there defined as meaning:
'any word, letter, model, sign, placard board, notice, device or representation, whether illuminated or not, in the nature of, and employed wholly or partly for the purposes of advertisement, announcement or direction.'
In its ordinary connotation 'advertisement' applies, in my view, to material which promotes a product or service. Regulation of the display of such material appears to me to be the purpose which underlies section 224 of the Act.
20. I am not persuaded that the Defendant's placards are to be treated as advertisements, on the footing that they are either 'announcements' or 'directions'. It does [not] appear to me that Mr Haw is announcing anything, or that he is directing anyone anywhere, or to do anything. I do not, therefore, accept that the Defendant's activities in Parliament Square are unreasonable because they are unlawful."
THE JUDGE'S OPINION
[7] Returning to the case stated, the judge set out her opinion in para 6:
"In essence, the Appellant made two submissions. First, that the banner did not constitute an advertisement within the context of the Regulations referred to. Second, that if it did constitute an advertisement, then his actions were lawful in the exercise of his rights of freedom of expression under Article 10 in Schedule 1 to the Human Rights Act 1998.
The question as to whether the banner constituted an advertisement was a matter of fact for me to determine. For the purposes of the Town and Country Planning Act 1990, 'advertisement' is defined in section 336 and the relevant part states, 'any word, letter, model, sign, placard, board, notice, device or representation . . . employed wholly, or partly, for the purposes of advertisement, announcement, or direction. . . .'
I was referred to Westminster City Council v Brian Haw. In the context of that case, the court was asked to consider that the placards displayed by Mr Haw were unlawful advertisements under the Town and Country Planning Act 1992. Gray Jstated 'In its ordinary connotation 'advertisement' applies, in my view, to material which promotes a product or service.' In my view, Gray Jwas not intending to provide an exhaustive definition of what was an advertisement. Indeed, he went on to consider whether the placards displayed by Mr Haw were 'announcements' or 'directions'. If he were determining that the legislation should be restricted to the advertising of products or services then deciding whether the placards were announcements or directions was superfluous. Gray Jin his judgement did not attempt to define when he meant by a product or service. In section 224(4) which deals with the statutory defence, there is reference to publicity for 'goods, trade, business or other concerns'. There is no indication from the Act that the phrase 'other concerns' should inevitably be limited to commercial activities and that the Act was aimed at such activities.
This banner, quite clearly, by displaying the logo and contact details, was advertising 'Derby Heart', an association which has, as one of its aims, opposition to the City Council's road scheme. It was also a direction in that by using the words 'Save Five Lamps' it was directing people to engage in opposition to the City Council. Indeed, the Appellant stated in evidence that he hoped 'every man, woman, dog and child' seeing the banner would write to the Council in protest. I also found that it was a 'direction' in that it directed people to the telephone number and website of Derby Heart. I was entirely satisfied that this banner was an advertisement for the purposes of the Town and Country Planning Act, 1990.
The Appellant had not applied for, and therefore did not have consent to display the advertisement. The offence under section 224 is one of strict liability. However, the Appellant argued that his actions were lawful in the exercise of his right to freedom of expression under the Human Rights Act.
Quite clearly, in displaying his advertisement, the Appellant was expressing his views concerning the City Council's road scheme. His Article 10 rights were engaged by the Town and Country Planning Act's restrictions in this regard. However, the appropriate course of action was to have applied for consent, arguing not only the merits of being allowed to display the advertisement but also his right to freedom of expression under Article 10. Had he applied for consent, the City Council would have been required to consider his Article 10 rights and would have considered how to interpret the legislation in the context of those rights. Had consent been refused then he could have challenged that in the High Court. In my view his Article 10 rights were not engaged by the commencement of these criminal proceedings."
THE QUESTIONS FOR THE COURT
[8] In para 8 the judge posed two questions for the opinion of the court as follows:
"(a) Whether, on the evidence, I was entitled to find that this banner constituted an advertisement within the meaning of the Town and Country Planning Act 1990 and the Town and Country Planning (Control of Advertisements) Regulations 1992.
(b) Whether, on the basis that the banner did constitute an advertisement, I was correct in determining that the commencement of the criminal proceedings did not engage the Appellant's rights to freedom of expression, since he had neither applied for nor been denied consent to display the banner."
[9] Before turning to the submissions of Lord Kingsland QC, on behalf of the Appellant (the Respondent was not represented before us), it is helpful to set the definition of advertisement in its statutory context.
THE STATUTORY CONTEXT
[10] Section 220(1) of the Act provides that:
"Regulations under this Act shall make provision for restricting or regulating the display of advertisements so far as appears to the Secretary of State to be expedient in the interests of amenity or public safety."
The Regulations were made under this subsection.
[11] Section 221(1) provides:
"Regulations made for the purposes of section 220 may make different provision with respect to different areas, and in particular may make special provision -
(a) with respect to conservation areas. . ."
By virtue of se 223 planning permission is not required for the display of advertisements in accordance with the Regulations even if it involves the development of land.
[12] Section 224 deals with enforcement of advertisement control:
"(1) Regulations under section 220 may make provision for enabling the local planning authority to require -
(a) the removal of any advertisement which is displayed in contravention of the regulations, or
(b) the discontinuance of the use for the display of advertisements of any site which is being so used in contravention of the regulations.
. . .
(3) Without prejudice to any provisions included in such regulations by virtue of subsection (1) or (2), if any person displays an advertisement in contravention of the regulations he shall be guilty of an offence and liable on summary conviction to a fine of such amount as may be prescribed, not exceeding level three on the standard scale and, in the case of a continuing offence, one-tenth of level three on the standard scale for each day during which the offence continues after conviction.
(4) Without prejudice to the generality of subsection (3), a person shall be deemed to display an advertisement for the purposes of that subsection if -
(a) he is the owner or occupier of the land on which the advertisement is displayed; or
(b) the advertisement gives publicity to his goods, trade, business or other concerns.
(5) A person shall not be guilty of an offence under subsection (3) by reason only -
(a) of his being the owner or occupier of the land on which an advertisement is displayed, or
(b) of his goods, trade, business or other concerns being given publicity by the advertisement.
If he proves that it was displayed without his knowledge or consent."
In the present case the Defendant was the owner of the land on which the banner was displayed and it was not suggested that it was being displayed there without his knowledge or consent.
[13] Of critical importance in this appeal, the definition of advertisement in s 336(1) is, so far as relevant:
"'advertisement' means any word, letter, model, sign, placard, board, notice, awning, blind, device or representation, whether illuminated or not, in the nature of, and employed wholly or partly for the purposes of, advertisement, announcement or direction . . . ."
THE APPELLANT'S SUBMISSIONS
[14] Lord Kingsland submitted: (1) that the judge had erred in law in concluding that the banner displayed constituted an advertisement within the meaning of the Act; (2) if, contrary to that submission, the banner was an advertisement, the Appellant was exercising his right to freedom of expression as guaranteed by art 10 of the European Convention on Human Rights and requiring him to apply for advertising consent (and pay a fee, in this case £60) before expressing his point of view was an illegal restriction on his freedom of expression.
GROUND 1
[15] Lord Kingsland submitted that, in substance, the present case was on all fours with the decision in Haw. A banner saying "Save Five Lamps" was no more an advertisement than a banner saying "Stop the War" or "Troops Out of Iraq", or words to that effect. It was expressing opposition to a major development scheme promoted by a political body, the council. The purpose of the banner was to influence political opinion within the council and to persuade the council to change its policy. The references in lower case blue writing to the logo of Derby Heart, its telephone number and website, were all subsidiary to this political message, and were also themselves of an entirely political character. The information in lower case supported the primary message by saying, in effect, that anyone who wanted more information about the political campaign to save Five Lamps should telephone Derby Heart's number or look at its website.
[16] In para 6 of the case stated the judge had erroneously elevated the importance of the supporting information and appeared to have concluded that the primary purpose of the banner was to advertise the existence of the Derby Heart organisation by displaying its logo, telephone number and website. That was not the purpose of the banner. Its purpose was to make a political statement criticising the council's support for the "Connecting Derby" road scheme, and to add that one way of giving support to that cause was to contact Derby Heart. He submitted that the expression "employed wholly or partly for the purposes of, advertisement, announcement or direction . . ." had a limiting effect. Parliament did not intend that the display of every word, letter, sign, placard et cetera should be caught by the Regulations, only those which fell within the words of limitation. Gray J was right to conclude that in its ordinary connotation advertisement "applies . . . to material which promotes a product or service" and that Mr Haw's placards opposing the Iraq war were neither "announcements" nor "directions."
[17] For my part I would accept the submission that Parliament did not intend that the display of every message by any means whatsoever should be subject to the Regulations. The display (to use a convenient shorthand for word, letter, model, sign etc) must be "in the nature of, and employed wholly or partly for the purposes of, advertisement, announcement or direction . . .".
[18] There is a degree of circularity in this definition in s 336(1). If one asks, what is an advertisement, the answer is, at least in part, something that is "in the nature of, and employed wholly or partly for the purposes of, advertisement . . ." In this respect the definition of an advertisement is like the definition of the proverbial elephant. One knows an elephant (or advertisement) when one sees it because it is in the nature of an elephant (or advertisement).
[19] The judge was referred to the following meaning of "advertisement" in the Oxford English Dictionary 1989:
"Advertisement - The turning of the mind to anything, attention, observation, heed; the action of calling the attention of others, admonition, warning, percept, instruction; the action of informing or notifying, information, notification, notice; a (written) statement calling attention to anything, a notification, a 'notice'; a public notice or announcement usually in writing or print, by placard or in a journal, specifically a paid announcement in a newspaper or other print."
The same dictionary gives the following meaning for "announcement":
"The action or process of announcing, public or official notification, intimation, declaration."
And direction:
"An instruction how to proceed or act; an order to be carried out; a percept; instruction how to go to a place."
[20] I respectfully agree with Gray J that "in its ordinary connotation" today the word "advertisement" has acquired a somewhat narrower meaning than any form of public announcement and that it is usually applied to the display of "material which promotes a product or service." I would add the rider that the product or service need not be promoted on a commercial basis, for example charities or other non-commercial organisations may advertise the availability of their services.
[21] This modern usage of "advertise" and "advertisement" is illustrated by the meanings given to those words in the Concise Oxford Dictionary 1990:
"advertise 1 draw attention to or describe favourably (goods or services) in a public medium to promote sales. 2 make generally or publicly known. 3 seek by public notice, esp in a newspaper. . . .
advertisement 1 a public notice or announcement, esp one advertising goods or services in newspapers, on posters, or in broadcasts. 2 the act or process of advertising . . . ."
[22] I have deliberately added the qualification "usually" (or "especially", see the Concise Oxford English Dictionary above), because I do not understand Gray J, in that short passage in para 19 of a judgment which was not principally concerned with the ambit of the Act or the Regulations, to have been deciding that the ordinary meaning of advertisement was limited simply to material which promotes a product or service.
[23] If the word "advertisement" had stood alone in s 336(1) I would not have given it such a narrow meaning. However, the fact that Parliament felt it necessary to add the words "announcement or direction" suggests that it was recognised that advertisement might be given too narrow a meaning which might be harmful to the interests of amenity or public safety. Parliament therefore made it clear beyond any doubt that "advertisement" was to be given a very broad meaning for the purposes of the Act.
[24] To announce something is to make it publicly known. If "announcement" was used in its broadest sense, it might be thought that the words "advertisement" and "direction" would be rendered otiose. In my view it would be a pointless semantic exercise to try to define precisely when an "advertisement" was not an "announcement" and vice versa, and when an "announcement" should more properly be described as a "direction."
[25] Notwithstanding the fact that displaying an advertisement in contravention of the Regulations is a criminal offence so that any ambiguity in the Definition in s 336(1) should be resolved in favour of the Appellant, it is plain that Parliament deliberately extended the meaning of advertisement so as to include announcements and directions which might not have been regarded as advertisements if that word was to be narrowly construed.
[26] Although Lord Kingsland invited us to, in effect, disregard the Derby Heart logo, its telephone number and its website, and to treat them as subsidiary to the political message "Save Five Lamps", I do not think that it would be right to accede to that invitation. The judge had to deal with the banner as described in the case stated, not with some hypothetical banner which simply said "Save Five Lamps". Although we do not have the details of Mr Haw's placards and posters, I am prepared to accept that (apart from a particular political message) they may well have been similar to a banner which simply said "Save Five Lamps". I would wish to reserve for consideration in another case the question whether a banner displaying only such a message, or other "political" messages such as "Save the Whale", "Ban the Bomb", "Stop the War", "Vote Labour", "Vote Conservative", "Vote Liberal Democrat" et cetera, can fairly be described as "announcements" and therefore advertisements for the purposes of s 336(1).
[27] For my part, I would treat Haw as a decision on its own very particular facts. A broader conclusion, that banners carrying political messages such as "Save Five Lamps" or "Stop the War" were not advertisements, could have far-reaching consequences.
[28] The banner, in the present case, was approximately two metres by 0.85 meters and was displayed on the upper part of the front elevation of the Appellant's house. If Lord Kingsland's principal submission, that banners displaying expressions of political views are not advertisements for the purposes of the Act was correct, there would be nothing to prevent the Appellant from covering the front of his house with a much larger banner, or, if he owned land in say a National Park, from unfurling his banner in the midst of remote and beautiful countryside, or in a field beside a motorway if he owned such a field, and wished to express a particular political opinion. The examples could be multiplied, but they are sufficient, to my mind, to demonstrate that resolving the argument in the abstract without regard to the characteristics of this particular banner, would not be appropriate.
[29] The submission that the judge should have had regard to the primary (political) purposes of the banner ignores the terms of s 336(1) which defines a sign, placard et cetera as an advertisement if it is "in the nature of, and employed, wholly or partly for the purposes of, advertisement, announcement or direction . . ." (my emphasis). Whatever may be said about the message "Save Five Lamps" in red letters on the poster, the judge was entitled to conclude that the Derby Heart logo and the blue lower-case lettering giving its telephone number and website, were advertising the existence of Derby Heart. It matters not whether, when combined with the words "Save Five Lamps" the logo and lettering are regarded as being in the nature of (and for the purposes of) an advertisement for Derby Heart and one of its aims, or as an announcement of its existence and one of its aims, or as a direction to those who might wish to support one of its aims. The three words, advertisement, announcement and direction are not necessarily mutually exclusive and an announcement may include a direction and vice versa.
[30] Considering the banner as a whole, the judge was entitled to be satisfied, as a matter of fact, that it fell within the extended definition of advertisement in s 336(1).
[31] Lord Kingsland submitted that if there was any ambiguity in the Act, it should be resolved in favour of the Appellant's arguments in the light of the value that the common law has always placed upon freedom of speech. He cited a number of authorities, including the speech of Lord Bingham in R v Shayler [2003] 1 AC 247 at para 21, and the speech of Lord Steyn in R v Secretary of State for the Home Department ex parte Simms [2000] 2 AC 115, [1999] 3 All ER 400, [1999] 3 WLR 328. He submitted that the well-established common law principle was reinforced by art 10 of the European Convention on Human Rights which provides:
"Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartially of the judiciary."
[32] The principle is not in doubt, but I do not accept that it is of any assistance in interpreting the meaning of "advertisement" in s 336(1) of the Act. As s 220(1) of the Act makes clear, the Regulations are not concerned with the contents of any advertisement. A local planning authority is not entitled to refuse advertisement consent because it disagrees with the content of the message to be displayed. Its powers are limited to regulating displays in the interests of amenity and public safety. These restrictions are repeated in reg 4 of the Regulations:
"4(1) A local planning authority shall exercise their powers under these Regulations only in the interests of amenity and public safety, taking account of any material factors, and in particular -
(a) in the case of amenity, the general characteristics of the locality, including the presence of any feature of historic, architectural, cultural or similar interest, disregarding, if they think fit, any advertisement being displayed there;
(b) in the case of public safety -
(i) the safety of any person who may use any road, railway, waterway, dock, harbour or aerodrome;
(ii) whether any display of advertisements is likely to obscure, or hinder the ready interpretation of, any road traffic sign, railway signal or aid to navigation by water or air.
(2) In determining an application for consent for the display of advertisements, or considering whether to make an order revoking or modifying a consent, the local planning authority may have regard to any material change in circumstances likely to occur within the period for which the consent is required or granted.
(3) Unless it appears to the local planning authority to be required in the interests of amenity or public safety, an express consent for the display of advertisements shall not contain any limitation or restriction relating to the subject matter, content or design of what is to be displayed."
[33] The Regulations do not prevent members of the public from holding opinions and receiving and imparting information. Information may be imparted (or received) in a wide variety of ways and the Regulations interfere (to use the words of art 10(1)) with one particular method of imparting and receiving information which may have adverse effects in terms of amenity and public safety. They do so only to the extent that it is expedient in the interests of amenity and public safety.
[34] Lord Kingsland accepted that freedom of speech, whether under the common law or art 10 of the Convention, was not an unqualified right. He further accepted that it was legitimate to control the display of banners carrying political messages in the interests of public safety; one of the considerations specifically mentioned in art 10(2). Thus, he conceded that it would be legitimate to refuse consent in order to prevent such a banner from obscuring a road traffic sign or hindering the interpretation of a railway signal (see reg 4(1)(b) (ii)).
[35] The Appellant's skeleton argument before the judge had made the point that the council's objection to the banner was simply on amenity grounds: because it considered that the banner was "highly detrimental to the character and appearance of the conservation area". It was submitted on behalf of the Appellant before the judge that:
"No suggestion is made that there were public safety grounds to be considered in relation to the banner. There being no restrictions in relation to the exercise of freedom on expression on amenity grounds, it would have been unlawful for Derby City Council, on an application being made, to have refused advertisement consent for the banner." (See para 3.4 of the Appellant's skeleton argument annexed to the case stated.)
[36] Before us, that submission was repeated by Lord Kingsland. I do not accept it. Among the list of considerations in art 10(2) which may justify the imposition of restrictions upon the exercise in a democratic society of the right conferred by art 10(1), one finds not merely public safety but also "the protection of the reputation or rights of others." (my emphasis)
[37] In Chapman v United Kingdom [2001] 33 EHRR 18 the European Court of Human Rights accepted that the imposition of planning controls which interfered with the Claimant's right to respect for her private and family life under art 8(1) "pursued the legitimate aim of protecting the 'rights of others' through preservation of the environment" (see para 82). Although Chapman was an art 8 case, I can see no reason why the "rights of others" in Article 10 should be more narrowly construed. Given the wide variety of means by which a person wishing to impart information may choose to adopt, I can see nothing disproportionate in principle in regulations which impose restrictions upon one particular means of imparting information which has the potential to have adverse effects upon amenity.
[38] Freedom of speech is undoubtedly important (see s 12 of the Human Rights Act 1998 which requires the court to have "particular regard to the importance of the Convention right to freedom of expression"), but why should a person who feels strongly about a political issue have an absolute right to impart his views in a particular manner that may be highly damaging to the amenities of his fellow citizens. There is no absolute right to impart one's views, political or otherwise, in such a way as to amount, for example, to a noise nuisance. Visual intrusion may, in certain circumstances, be no less harmful to the rights of others.
[39] The Regulations do not prevent a person who particularly wishes to impart information by way of displaying an advertisement from doing so. They merely require him to obtain consent from the local planning authority if he does not wish to display the advertisement on a hoarding that is already approved under the Regulations, or does not wish (or is unable) to take advantage of the various classes of exempt advertisements in Sch 2 to the Regulations or the list of deemed consents in Sch 3 to the Regulations.
[40] When the statutory scheme established by the Act and the Regulations is considered as a whole, there is simply no warrant for the bare assertion made on behalf of the Appellant that the need to obtain consent for the display of banners, placards, et cetera, bearing political messages, would be an unwarranted interference with the right to freedom of expression so that s 336(1) should be interpreted in such a manner as to exclude them from the definition of an advertisement. For these reasons I would answer the first question posed by the judge in the affirmative.
GROUND 2
[41] Against this background I can deal quite shortly with ground 2 and with the judge's second question. For the reasons set out above I do not accept that the statutory controls on the display of advertisements are, in principle, an unlawful interference with the right to freedom of speech. Although Lord Kingsland in his submission sought to criticise the balancing exercise carried out by the Respondent council in this case and the judge's failure to carry out a balancing exercise herself, weighing the importance of free speech against the amenity objections, there is no indication in the case stated that either the council or the judge was being asked to carry out any such exercise.
[42] Nor was there any need for such an exercise since, for the reasons set out above, the Act and the Regulations provide a framework within which a reasonable balance can be struck between an individual's right to impart information and the rights of those to whom the information is to be imparted; a balance which was singularly lacking in the Appellant's case. As mentioned above, it was being submitted on behalf of the Appellant, before the judge, that there could be "no restrictions in relation to the exercise of freedom on expression on amenity grounds", not that some balancing exercise under Article 10 should have been carried out. Chapman was not cited before the judge, nor was it cited in the Appellant's lengthy skeleton argument before us.
[43] In its skeleton argument before the judge the council said under the heading, "Is the interference proportionate to the circumstances of this case?":
"o Defendant failed to comply with several written requests to remove the banner and would not remove the banner voluntarily.
o Defendant could legally express his opinion in other ways - advertisements in newspaper, handing out flyers, displaying an advertisement on an approved hoarding etc.
o premises are in a conservation area and as such special considerations apply (Policy E35 of the City of Derby Local Plan). The location, size, colour and material make the banner dominant in the street scene and it's presence was highly detrimental to the character and appearance of the conservation area.
o the premises are a residential dwelling and are located in a predominantly residential area.
o the banner seeks to protest against the Connecting Derby Road Scheme. There is a proper legal avenue to object to the Scheme.
o both the prosecuting Council and the court, as public authorities have to balance the rights of the Defendant to express his opinion and preserve and protect the rights and freedoms of others."
[44] Although Lord Kingsland submitted that the council's road proposals would have an adverse effect on the conservation area and that this was a change of circumstances which should have been taken into consideration under reg 4(3) (above), there is no suggestion in the case stated that this argument was addressed to the judge or that she was provided with any evidence which might have gainsaid the various factors referred to by the council (above).
[45] I would, in any event, question the appropriateness of a district judge, in a criminal prosecution, attempting to conduct such a balancing exercise in order to determine whether a prosecution under the Regulations was proportionate. Whether a particular advertisement adversely affects amenity and/or public safety, and if so to what extent, are very much matters of judgment for the local planning authority, as is the question whether any material change in circumstances is likely to occur within a particular timescale. While the Appellant is entitled to his view that the road scheme proposed by the council will have an adverse effect on the conservation area, it is by no means clear that the council shares that view. Since the council is promoting the scheme it presumably considers that it will be beneficial in planning terms, but there is simply no evidence about that matter in the case stated. Even if there was, it is difficult to see how a district judge could reasonably be expected to resolve differing points of view as to the effects of a development proposal on the character and appearance of a conservation area.
[46] Insofar as it is submitted that the council should have carried out a balancing exercise and failed to do so (about which there is no evidence in the statement of case), I would sound a note of caution. Of course the council had a discretion as to whether to prosecute, and that discretion was not fettered by the terms in reg 4 (see Kingsley and Anr v Hammersmith and Fulham London Borough Council, The Times, 30 April 1991). That does not mean that it would be appropriate for a local planning authority to consider the "merits" of the message which was being displayed without consent, whether it was commercial, whether it was political, et cetera. That would be the first step towards censorship; a local planning authority could then choose not to prosecute in those cases where it agreed with the political message that was being displayed without consent and to prosecute where it disagreed with the message. Insofar as it was being submitted that the fact that this advertisement was an expression of a political rather than a commercial point of view was relevant for the purposes of deciding whether or not a prosecution was justified, I would emphatically reject that submission.
[47] The judge was responding to the submissions made before her that the council could not lawfully rely on amenity considerations to refuse consent for display of the Appellant's banner. In those circumstances her response was eminently reasonable: that the Appellant's art 10 rights were engaged, but that he could and should have made an application for consent under the Regulations. For the reasons set out above the requirement to apply for advertisement consent was not a disproportionate interference with the Appellant's right to freedom of expression, either as a matter of principle, or on the facts (in so far as they appear in the case stated) of this particular case.
[48] I would therefore answer the judge's second question in this way: while the Appellant's art 10 rights were engaged, they were not breached by the criminal proceedings since, if for no other reason, he had neither applied for, nor been denied, consent to display the banner. For these reasons I, for my part, would dismiss the appeal.
COLLINS J:
[49] I agree. Like my Lord I do not believe that the case of Westminster Council v Haw has the wide effect for which Lord Kingsland contended. It is not necessary for us to consider in any detail what the proper ambit is of that case, but for my part I would doubt that the purpose behind s 224 of the Act is limited to the display of material which promotes a product or service. It seems to me that, as one is dealing with regulation in a planning context, it more properly relates to display generally. Like, my Lord, I believe that the definition which extends to announcements or directions as well as advertisement is intended to give a wide meaning.
[50] But for the reasons that my Lord has given, I entirely agree with the answers to the questions which he proposes. It follows that the appeal must be dismissed.
Appeal dismissed.
All England Official Transcripts (1997-2008)
R (on the application of Haw) v Secretary of State for the Home Department and another
Statute - Commencement - Act coming into force on date subsequent to its enactment Commencement order made under power in Act to make transitional provisions - Order altering terms of criminal offence - Whether Order ultra vires power conferred by Act - Serious Organised Crime and Police Act 2005, s 132(1) - Serious Organised Crime and Police Act 2005 (Commencement No 1, Transitional and Transitory Provisions) Order 2005, SI 2005/1521, art 4(2)
[2005] EWHC 2061 (Admin), CO/4803/2005, (Transcript: Smith Bernal Wordwave)
QUEEN'S BENCH DIVISION (DIVISIONAL COURT)
SMITH DBE LJ, MCCOMBE, SIMON JJ
29 JULY 2005
29 JULY 2005
R Drabble QC and Z Leventhal for the Claimant
N Lieven for the First Defendant
A Clemens for the Second Defendant
Bindman & Partners; Treasury Solicitor; Force Solicitor
SMITH DBE LJ:
[1] This is an application for the judicial review of decisions taken by or on behalf of the Secretary of State for the Home Department and the Commissioner of the Metropolitan Police Service under the Serious Organised Crime and Police Act 2005. The application is made by Brian Haw, who, since June 2001, has been conducting a demonstration in Parliament Square, Westminster. He lives on the pavement in the Square and displays a large number of placards. Initially, his intention was to protest about sanctions against Iraq, and latterly it has been to protest against the Government's policy on Iraq.
[2] In 2002 an attempt by Westminster City Council to obtain an injunction requiring him to remove his placards, on the basis that they were an obstruction of the highway, failed when the application was dismissed by Gray J. The Judge found that the Claimant's demonstration did not cause an obstruction of the highway and did not give rise to any fear that a breach of peace may arise. Accordingly, the demonstration was lawful and, in the event, it has continued ever since.
[3] In April 2005 Parliament passed the Serious Organised Crime and Police Act 2005 ("the Act") which legislates on a number of different topics. The provisions with which the court is concerned in this case are to be found at ss 132 to 138. These are designed to give the police a measure of control over demonstrations which take place within a designated area in the vicinity of Parliament Square. The Act does not forbid the conduct of demonstrations within the designated area, but it requires any person who intends to organise a demonstration in that area to apply to the police for authorisation to do so. It permits the police to impose conditions on the holding of a demonstration so as to prevent hindrance to any person wishing to enter or leave the Palace of Westminster, hindrance of the proper operation of Parliament, serious public disorder, serious damage to property, disruption to the life of the community, a security risk in any part of the designated area, and risk to safety of members of the public. Any breach of the provisions will be a criminal offence.
[4] The question that arises in this case is whether or not the Act applies to Mr Haw's demonstration. He contends that, as enacted, it does not apply to him because his demonstration started before the Act came into force. He contends that the Commencement Order which purports to alter the Act, as enacted, so as to make it apply to demonstrations which began before the Act came into force and continue after it has come into force is ultra vires and of no effect. He seeks an order quashing those parts of the Commencement Order which purport to make the Act apply to him and, against both Defendants, he seeks a declaration that he is not required to seek authorisation for his continuing demonstration.
[5] The Secretary of State and the Commissioner of the Metropolitan Police contend that the Act does apply to Mr Haw's ongoing demonstration and that the Commencement Order which makes that plain was properly made and is intra vires.
[6] At the start of the hearing of this matter, we granted leave to apply for judicial review and the hearing which followed was the substantive hearing.
[7] It is convenient now to set out the provisions of the Act insofar as they are relevant to the issues in this case. Section 132 creates the criminal offence which provides the principal means by which the provisions are to be enforced. Subsection (1) provides:
"Any person who -
(a) organises a demonstration in a public place in the designated area, or
(b) takes part in a demonstration in a public place in the designated area, or
(c) carries on a demonstration by himself in a public place in the designated area,
is guilty of an offence if, when the demonstration starts, authorisation for the demonstration has not been given under section 134(2)."
[8] The remaining provisions of s 132 are not germane to this application, save for sub-ss 7(d) and 7(e). They provide that in this section and in ss 133 to 136(d):
"(d) references to any person organising a demonstration do not include a person carrying on a demonstration by himself.
(e) references to any person or persons taking part in a demonstration (except in subsection (1) of this section) include a person carrying on a demonstration by himself."
[9] Section 133 provides that notice of an intention to hold a demonstration must be given. It sets out what information the notice must contain and when it must be provided. Section 133(2) provides:
"The notice must be given -
(a) if reasonably practicable, not less than 6 clear days before the day on which the demonstration is to start, or
(b) if that is not reasonably practicable, then as soon as it is, and in any event not less than 24 hours before the time the demonstration is to start."
[10] Section 134 provides for the issue of authorisation by the police. If the notice given is in order, the police must give authorisation, but they can impose such conditions as, in the Commissioner's reasonable opinion, are necessary for any of the purposes to have which I have already referred. The conditions may relate to the place where the demonstration is carried on, the period during which it may be carried on, the number of people who may take part, the number and size of banners or placards to be used, and the maximum permitted noise levels. Taking part or organising a demonstration knowing that a condition is being breached is a criminal offence.
[11] Section 135 permits a police officer to give supplementary directions about the conduct of a demonstration.
[12] Section 136 sets out the penalties for the various offences created. If an organiser is guilty of an offence, he or she is liable to up to 51 weeks' imprisonment and a fine. For a breach by a person who has taken part but not as an organiser, there may be a fine but not imprisonment.
[13] Section 137 controls the use of loudspeakers at demonstrations, and s 138 empowers the Secretary of State to make orders specifying the designated area in which these provisions of the Act are to apply. Since the Act received the Royal Assent on 7 April 2005, an order specifying the designated area has been made, and it includes Parliament Square.
[14] At the time the Act received the Royal Assent, it was not known when ss 132 to 138 were to come into force. Section 178 of the Act itself provided for several parts to come into force at different times. Sections 132 to 138 were not covered.
[15] Section 178(8) provided that provisions not already covered by s 178 would come into force on such day as the Secretary of State may by order appoint.
[16] Subsection (10) provided:
"The Secretary of State may by order make such provision as he considers appropriate for transitory, transitional or saving purposes in connection with the coming into force of any provision of this Act."
[17] On 8 April 2005, Mr Haw's solicitors wrote to the Home Secretary, asking when ss 132 to 138 would come into force, and expressing the opinion that s 132(1) did not apply to Mr Haw as it only applied to demonstrations which required authorisation at the time they were started. Mr Haw's demonstration had started in 2001. In due course, on 20 June 2005, Mr Haw's solicitors were informed by the Home Office that a commencement order had been made on 10 June, pursuant to s 178. However, the letter of that date did not comment on the suggestion that s 132(1) did not apply to Mr Haw.
[18] The Commencement Order, the full title of which is the Serious Organised Crime and Police Act 2005 (Commencement number 1, Transitional and Transitory Provisions Order 2005 (2005 number 1521C66)) lies at the heart of this application. The preamble states that the order is made under ss 178(8), (9) and (10) of the Act. Article 3, para 1 of the order lists a number of provisions which, subject to paras (4) and (5), were to come into force on 1 July 2005. These include at sub-paragraph (p):
"section 133 (notice of demonstrations in designated area) for the purpose of giving notice of a demonstration in the designated area which is due to start or continue on or after 1 August 2005." [Emphasis by underlining added by me.]
[19] Then, as if further to underline the point that the provisions of s 133 were to apply to demonstrations that were starting or continuing on or after 1 August 2005, para (5), to which para 2 is subject, states as follows:
"The references in section 133(2 (notice of demonstrations in designated area) of the Act to a demonstration starting are to take effect as if they were references to demonstrations starting or continuing on or after 1 August 2005."
[20] Article 4 of the Commencement Order deals with provisions coming into force on 1 August 2005. Sub-paragraph (1) provides as follows:
"Subject to paragraph (2), sections 132 to 137 (demonstrations in the vicinity of Parliament) of the Act shall come into force on 1 August 2005, to the extent that they are not already in force.
(2) The references in sections 132(1) (demonstrating without authorisation in a designated area) and 133(2) (notice of demonstrations in a designated area) of the Act to a demonstration starting are to take effect as if they were references to demonstrations starting or continuing on or after 1 August 2005."
[21] The Claimant's solicitor formed the opinion that this Commencement Order was an attempt to extend the scope of s 132 to encompass a demonstration such as Mr Haw's, which was already continuing at the time the Act came into force. He considered that it was ultra vires the Act. On 11 July 2005 he wrote to the Secretary of State, noting first that no substantive reply had been received to his letter of 8 April. He sought an assurance that Mr Haw would not be expected to seek authorisation for his demonstration in Parliament Square. A similar letter was sent to the Commissioner for the Metropolitan Police. Replies to both letters said that Mr Haw would be required to seek authorisation. These proceedings were begun and battle was joined.
[22] Before this court, Mr Drabble QC, counsel for the Claimant, submitted that s 132(1), as enacted by Parliament in April 2005, does not apply to Mr Haw. As it might apply to Mr Haw, the section provides that a person who carries on a demonstration by himself in a public place within the designated area is guilty of an offence if, when the demonstration starts, authorisation has not been given under s 134(2). As Mr Haw's demonstration began in 2001, it was impossible for the section to apply to him because the Act had not been passed at that time. Mr Haw could not now obtain authorisation at the start of his demonstration, so the section did not apply to him. If Mr Haw carried on with his demonstration, he could not be convicted under that section as originally enacted.
[23] Mr Drabble further submitted that, if the words that were sought to be introduced by art 4(2) of the Commencement Order were inserted into s 132(1), the position would be quite different. The material words of the section would then read:
"Any person who carries on a demonstration by himself in a public place in the designated area is guilty of an offence if the demonstration starts or continues after 1 August 2005."
[24] If Mr Haw carries on with his demonstration and does not apply for authorisation he will be guilty of an offence under s 132.
[25] Mr Drabble's complaint is that this alteration, to use a neutral word, is in fact an amendment of the Act and he submits that the Secretary of State did not have the power to amend the Act in this way under s 178(10). The Secretary of State's powers were limited to the introduction of such provisions as were appropriate for transitory, transitional and saving purposes in connection with the coming into force of the Act. A provision which changes the meaning of the section so as to extend its ambit does not have a transitory, transitional or saving purpose in connection with the coming into force of the Act. Mr Drabble submitted that this alteration was, in truth, an amendment to the Act and the Secretary of State had purported to make the amendment under the guise of the Commencement Order. He had no power to do so and this part of the Commencement Order was, he submitted, ultra vires.
[26] Mr Drabble contrasted the Minister's powers to make secondary legislation under s 178 with his wider powers under s 173. That section provided at sub-s (1):
"The Secretary of State may by order make -
(a) such supplementary, incidental or consequential provision, or
(b) such transitory, transitional or saving provision,
as he considers appropriate for the general purposes, or any particular purpose, of this Act, or in consequence of, or for giving full effect to, any provision made by this Act.
(2) An order under subsection (1) may amend, repeal, revoke or otherwise modify any enactment (including this Act)."
[27] Thus s 173 empowers the Secretary of State to amend or modify the Act. Mr Drabble did not concede that the alterations sought to be made by the Commencement Order could, in fact, have the been validly made under s 173, but he was prepared to concede that at least the point was arguable and that the Secretary of State would have been on stronger ground had he sought to use that section. The wider power under s 173 was subject to the Affirmative Resolution Procedure in Parliament. It would not become law unless approved by resolution of both Houses. By contrast, the Commencement Order could be and was made simply at the will of the Secretary of State, without either a positive or negative Parliamentary procedure. Mr Drabble submitted that it was obviously wrong for an alteration having the effect of this one in the Commencement Order to be made by a purely administrative act without any Parliamentary scrutiny.
[28] At one stage, Mr Drabble submitted that s 132(1), as altered, would have retrospective effect, and for that reason was likely to be unlawful. I, for my part, was not convinced by that submission. As Miss Lieven, who appeared for the Secretary of State, pointed out, there was no question of the new provisions making Mr Haw criminally liable for his past actions. At most, he could only be liable if he carried on with his demonstration after 1 August 2005 if he failed to obtain authorisation. I accept Miss Lieven's submission on that point. I do not think the effect of the Commencement Order is to give s 132 retrospective effect.
[29] In his skeleton argument, Mr Drabble had stated the general principle that delegated legislation must be made in pursuance of the power in the enabling Act. Delegated legislation which makes provision which is contrary to or which purports to extend without express authority the provision of the Act by which it is enabled will be ultra vires. He cited a passage from the speech of Lord Morris of Borth-y-Gest in Utah Construction and Engineering Pty Ltd v Pataky [1966] AC 629, [1965] 3 All ER 650, [1966] 2 WLR 197 (PC) at p 202, where Lord Morris quoted with approval from the Australian High Court decision of Shanahan v Scott (1957) 96 CLR 245 at p 250, [1957] ALR 171, 31 ALJ 94, where it was said that power delegated by an enactment:
". . . does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends."
[30] Miss Lieven, for the Secretary of State, made two main submissions. In relation to s 178(10) she submitted that the Secretary of State's powers were wide enough to permit him to make the changes he had made under the Commencement Order. In her skeleton argument, she had sought to argue that the wider powers of s 173, which include power of amendment and modification, had been available to the Secretary of State. However, she had to accept that the Affirmative Resolution Procedure had not been followed, and wisely, in my view, she abandoned reliance on s 173. However, she contented that s 178 was sufficient for the purpose. She submitted that it was common practice for Parliamentary draftsmen to include in the main Act only those provisions which were to be of permanent effect and to leave for secondary legislation any additional provisions which would be of only temporary effect. She suggested to us that transitory in the context of a statutory instrument had a special meaning different from its ordinary meaning of "temporary" or "passing". She said that she was instructed that a provision with a transitory purpose was one which was designed to cover circumstances which exist when the statute comes into force. However, she was unable to produce any authority or dictionary definition to support this special meaning, and she abandoned the point and submitted that the provisions under discussion in the Commencement Order were properly to be described as transitional provisions.
[31] She referred the court to a passage from the speech of Lord Keith of Kinkel in R v Secretary of State for Social Security ex parte Britnell [1991] 2 All ER 726, [1991] 1 WLR 198, where at p 202 Lord Keith said this:
"As Staughton LJ observed in the Court of Appeal, it is not possible to give a definitive description of what constitutes a transitional provision. In Thornton on Legislative Drafting, 3rd ed (1987), p 319, it is said:
'The function of a transitional provision is to make special provision for the application of legislation to the circumstances which exist at the time when that legislation comes into force.'
One feature of a transitional provision is that its operation is expected to be temporary, in that it becomes spent when all the past circumstances with which is it designated to deal have been dealt with, while the primary legislation continues to deal indefinitely with the new circumstances which arise after its passage."
[32] Miss Lieven submitted that for the legislature to make the kind of changes as have been made here in the Commencement Order was an entirely normal and legitimate function for a commencement order. This Commencement Order had been validly made under s 178 was not ultra vires.
[33] Miss Lieven's second submission was that if the court were to examine the purposes of the Act and the mischief at which these provisions were aimed, it would be obvious that it had been the intention of Parliament that Mr Haw's demonstration should be caught. The purpose were apparent from s 134(3), to which I have already referred.
[34] In summary, the purpose is to regulate demonstrations in the vicinity of Parliament so as to prevent any hindrance of access to Parliament, interference with the operation of Parliament, serious public disorder, serious damage to property, risk of injury to members of the public, and breach of security. It would, she submitted, be absurd and nonsensical to suggest that Parliament intended only to legislate in respect of demonstrations to take place in the future and not in respect of a demonstration that was already taking place and continuing. If Parliament had, in fact, failed to achieve this, it had made a mistake through inadvertence, although she did not for a moment accept that it had. Parliament's intention was clear, she submitted. It was obvious that Mr Haw ought to be caught by the provisions. He must have expected that to happen and there was no reason for him to be excluded. She suggested that the present application was opportunistic in that it sought to take advantage of a drafting error or of an error in the Home Office who had used s 178 instead of 173 for the Commencement Order. As I understand it, Miss Lieven was suggesting that there was no reason of substance why Mr Haw's demonstration should not be included in the operation of the Act and he could quite well submit to it by applying for authorisation. She did not, of course, suggest that there was anything improper in the application before the court.
[35] Miss Lieven invited the court to examine some material from Hansard, which she submitted made it clear that it had been the Government's intention that Mr Haw should be caught by the Act. In fact, she quoted from Hansard in her skeleton argument and the court had read some of the material even before the hearing began. It was, however, by no means clear that the conditions precedent to the proper consideration of Parliamentary material were made out.
[36] In Pepper v Hart [1993] AC 593 at p 640, [1993] 1 All ER 42, [1992] 3 WLR 1032, Lord Browne-Wilkinson said this:
"I therefore reach the conclusion, subject to any question of Parliamentary privilege, that the exclusionary rule should be relaxed so as to permit reference to Parliamentary materials where (a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied upon consists of one or more statements by a Minister or other promoter of the Bill together if necessary with such other Parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied upon are clear.
Further than this, I would not at present go."
[37] Miss Lieven sought to persuade us to look at the material on the ground that the construction of the Act contended for by the Claimant led to absurdity. I, for my part, was not satisfied that the words of s 132 gave rise to any ambiguity, obscurity or absurdity.
[38] Mr Clemens, for the Commissioner of the Metropolitan Police, sought to persuade us that it was, in any event, legitimate to consider material from Hansard, simply to see what the intention of Parliament had been. He relied on a passage from the R v Secretary of State for Environment, Transport and the Regions ex parte Spath Holme Ltd [2001] 2 AC 349 at p 398, [2001] 1 All ER 195, [2001] 2 WLR 15, where, after referring to the passage from Lord Browne-Wilkinson's speech in Pepper v Hart, Lord Nicholls of Birkenhead said:
"I can see nothing in this formulation or in principle to suggest that the ambiguity or obscurity or absurdity must be of any particular type. The purpose for which a statutory power is conferred is just as much a question of interpretation of the statutory provision as is the meaning of a particular word or phrase. It cannot be right for the courts to look at parliamentary proceedings, if they assist, on the interpretation of a particular word or phrase, but to decline to look at parliamentary proceedings, however much assistance they may give, when deciding, as a matter of interpretation, what was the purpose for which a power was conferred. The point is underlined by noting that, if drawn, this distinction has the consequence that, in the latter type of case, the courts will look at other forms of extraneous material if they assist, such as statements in Government white papers, but not at what was said by Government ministers in Parliament. This would not be a rational distinction."
[39] I, for my part, remained unconvinced that there was any justification for looking at the Parliamentary material. However, we examined it de bene esse. It comprised a short extract from the report stage of the Bill in the House of Commons at which new clauses were being introduced which eventually, without significant amendment, became ss 132 to 138.
[40] In introducing the amendment of 7 February 2005, as recorded at Hansard p 1291, Ms Caroline Flint, the Home Office Minister, spoke of the way in which the provisions would enable the police to impose conditions on a demonstration. She then said:
"Those conditions are more helpful than the original provisions in the Bill. Hon Members may not know that officers from Charing Cross police station currently make regular visits to the site in Parliament Square to check behind paraphernalia for devices left not by the people who are protesting, but by people who might use the protest for their own motives to cause a security problem. Some of my hon. Friends laugh at that, but these issues are taken seriously by the police. There are questions about how much police time should be spent unnecessarily checking behind placards, fixed posters and so on. Conditions attached to authorised demonstrations would make matters much easier for the police."
[41] Miss Lieven submitted that it is clear from that passage that Ms Flint was there referring to Mr Haw's demonstration. I, for my part, accept that part of her submission.
[42] Miss Lieven submitted that, if the court were minded to accept that the purpose of the Act was clear and that Parliament had intended that the provision should apply to Mr Haw, we should not construe the Act literally, but should apply a modern, liberal, purposive construction. She referred us to a passage from Bennion on Statutory Interpretation, p 810, s 304, entitled, "Nature of purposive construction". That begins with the following words:
"A purposive construction of an enactment is one which gives effect to the legislative purpose by -
(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive-and-literal construction), or
(b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction)."
[43] On the following page, Miss Lieven referred us to a passage headed, "Contrast with literal construction", which referred to the words of Lord Diplock in Carter v Bradbeer [1975] 3 All ER 158, [1975] 1 WLR 1204 at 1206-7, 61 Cr App Rep 275, where he said:
"l though the term 'purposive construction' is not new, its entry into fashion betokens a swing by the appellate courts away from literal construction. Lord Diplock said in 1975:
'If one looks back to the actual decisions of [the House of Lords] on questions of statutory construction over the last 30 years one cannot fail to be struck by the evidence of a trend away from the purely literal towards the purposive construction of statutory provisions.'"
[44] The passage from Bennion continues:
"The matter was summed up by Lord Diplock in this way -
'. . . I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction, even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed.'" (See Jones v Wrotham Park Settled Estates [1980] AC 74 at 105.)
[45] The passage from Bennion continues:
"Lord Diplock's third point is, with respect, erroneous. The argument that in Jones v Wrotham Park Settled Estates Lord Diplock was mistaken in saying that for a rectifying construction to be effected it must be possible to state with certainty what the missing words are, has been endorsed by the House of Lords. Lord Nicholls of Birkenhead said that they court must be sure of 'the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used'." (See Inco Europe Ltd and others v First Choice Distribution [2000] 1 WLR 586 (HL).
[46] That passage from Bennion, submitted Miss Lieven, showed the right approach to this case. The intention of Parliament was clear; Mr Haw and any other demonstrators who were demonstrating when the Act came into force were intended to be caught. If the words had failed to achieve the intended purpose, it must have been as a result of inadvertence and it was easy to see how the statute could be amended so as to achieve the desired effect. In other words, the three conditions to which I have just referred were made out. She submitted that the omission of the words "when the demonstration starts" from s 132(1) would achieve the desired end.
[47] My Lord, Simon J, asked her at that stage whether she was aware of any case in which such a liberal, modern approach had been applied to the construction of a penal statute. She could not think of one, but undertook research the point. The following day, she sent the court a most helpful note. She had found one case of some relevance. It did not assist her but, in the best tradition of the Bar, she referred us to it. It was the case to which I have just referred, Inco Europe Ltd and others v First Choice Distribution. As she pointed out, it was not itself a criminal case. The court had concluded that the draftsman had made an error and had failed to achieve what had clearly been the intention of Parliament. After referring to the Jones v Wrotham Park Settled Estates case and the three conditions that must be satisfied before Parliament will undertake such a liberal construction, Lord Nicholls of Birkenhead said:
"Sometimes even when these conditions are met, the court may find itself inhibited from interpreting the statutory provision in accordance with what it is satisfied was the underlying intention. The alteration in the language may be too far reaching. In Western Bank v Schindler [1977] 1 Ch 18 Scarman LJ observed that the insertion must not be too big, or too much at variance with the language used by the legislature. Or the subject matter may call for a strict interpretation of the statutory language, as in penal legislation. None of these considerations apply in the present case."
In my judgment, that citation from the Inco Europe case provides something of an answer to Simon J's question. It suggests a modern, liberal construction would not be appropriate in relation to a penal statute, which must be strictly construed.
[48] In summary, Miss Lieven's submission was that s 132(1), read together with art 4(2) of the Commencement Order, applied to Mr Haw. The Commencement Order was validly made under s 178 and no question of ultra vires arose. If the court did not accept that submission and concluded that Parliament had failed to achieve that which she submitted it plainly intended to achieve, she invited us to apply a modern, purposive construction and, in effect, to alter the wording of the statute to achieve what Parliament had intended.
[49] Mr Clemens adopted almost all of Miss Lieven's submission. He did, however, accept that, when read alone, s 132(1) did not apply to Mr Haw. He adopted Miss Lieven's submission that the Commencement Order was validly made under s 178 and that the purpose of the Act was such that Parliament must have and, in fact, did intend that the Act should apply to Mr Haw.
[50] Mr Clemens also gave the court a little further background information. He told us, for example, that there was one other ongoing demonstration in Parliament Square, besides that of Mr Haw. He told us that the police had no concerns about Mr Haw as a security risk. He had been generally co-operative with the need for the police to make security checks. The police concern was that others would take advantage of the presence of the placards in the Square. He told us that the police would always enforce whatever law was passed by Parliament, but they supported Miss Lieven's submissions because they had concerns about the situation that would arise if this court were to hold that Mr Haw was not caught by the Act. The police would have two different regimes in operation at the same time.
[51] In reply, Mr Drabble submitted that Miss Lieven's argument that we should make a modern, purposive construction of the statute did not get off the ground. The words of s 132(1) were clear. As Mr Clemens had just accepted, they did not apply to a demonstration that had started before the Act came into force. If the Commencement Order was validly made, the meaning of the altered s 132 was also clear. The section would apply to Mr Haw. There was no ambiguity or obscurity in the words. Nor, he submitted, was there any inherent absurdity in the idea that Parliament would legislate to control future demonstrations, but not existing ones. If one looked at Hansard, one might be persuaded that Parliament had intended to include ongoing demonstrations, but the court should not look at Hansard unless and until there was a need to do so caused by ambiguity, obscurity or absurdity. We should not have regard to the Parliamentary material, even though we had looked it de bene esse. We had no need of it and no justification for looking at it. In any event, he submitted, the material did not help with the statutory construction. It did not help with the meaning of any words or phrases. It did not address the question of what was meant by the words of s 178(10).
[52] As for the submission that we should apply a modern, purposive construction and go through the process permitted in Jones v Wrotham Park, Mr Drabble submitted that that would be quite inappropriate in a penal statute. As Simon Brown LJ had said in R v Bristol Magistrates' Court ex parte E [1998] 3 All ER 798 at p 804, [1999] 1 WLR 390, [1999] 1 Cr App Rep 144 "It is a principle of legal policy that a person should not be penalised except under clear law." It would be quite inappropriate, submitted Mr Drabble, for this court to construe the Act so as to provide for continuing demonstrations to be included. Parliament could quite easily have done that, had it chosen to do so. If wanted to do so in future, it could amend the Act, but it was not for this court to construe these provisions other than in accordance with their clear meanings.
[53] Finally, he submitted that the only real question for the court was whether the attempt to alter s 132 was ultra vires. There was no power in s 178 to make provisions which amended or modified the Act. Miss Lieven's reliance on dicta in Britnell was not helpful because the Order making power under discussion in that case contained a power to modify the Act as well as to make transitional provisions. The court had held there that the secondary legislation was validly made, but only because the power to modify was available. That power was not available in the present case.
[54] In my view, s 132(1), read alone as enacted, clearly does not create a criminal offence such as would apply to Mr Haw's continuing demonstration. As altered by the Commencement Order, it does so apply. Can an order made under s 178(10) which is limited to the making of provisions appropriate for transitory, transitional or saving purposes, have so radical an effect that it can criminalise conduct which would not otherwise be criminal? I find the suggestion surprising. I confess that I have found difficulty in understanding or defining the scope of, or envisaging the permissible boundaries of an Order made under powers such as those contained in s 178(10). However, I do think that I can recognise on which side of the boundary this particular provision falls.
[55] In my judgment, art 4(2) of this Order, which alters the effect of s 132(1), so as to make a person conducting a demonstration which began before 1 August 2005 and continues after it criminally liable for conduct which, but for that alteration, would not be criminal cannot be described as a provision made for a transitional purpose in connection with the coming into force of the Act. In plain language, a provision which has that effect is, in my judgment, an amendment. Section 178 does not carry a power to amend and I am satisfied, therefore, that art 4(2) is ultra vires.
[56] That is enough to dispose of the application. However, I must deal with the arguments so attractively and persuasively advanced by Miss Lieven. She would have the courts say that the purpose of the Act is clear. It is clear that it was the intention of Parliament to include continuing demonstrations and that if Parliament has failed by inadvertence to give effect to its clear intention, we should construe the statute so as to put right the effect of that inadvertence. I accept that the purposes of the Act are clear; they are to regulate demonstrations in the vicinity of Parliament for the prevention of the various ills set out in s 134(2). As Parliament has decided that measures are necessary to regulate such demonstrations, it would be sensible to apply the measures to current demonstrations as well as to those that will take pace in future. However, the fact that it might be sensible to do so does not, in my judgment, mean that Parliament necessarily intended to do so; nor does it mean that it would be absurd or nonsensical not to do so. I accept that there is no reason why Mr Haw's continuing demonstration should not be caught by the Act; indeed it is no part of his case to say that it should not be. He only says that the words of the statute are clear and do not include his ongoing demonstration.
[57] In my judgment, the main purpose of these provisions is clear and is carried into effect. This is not a case in which the legislature has, by inadvertence, failed to carry into effect the main purposes of the legislation. I am not in a position to say whether it was also the intention of Parliament to include ongoing demonstrations which began before 1 August. I do not consider that the conditions precedent for the examination of Parliamentary material were made out because I do not think that there was any ambiguity or obscurity in the words of the section. Nor do I think that, literally construed, they lead to an absurd result. So I do not have regard to Ms Flint's words. Without those words, I cannot say that Parliament intended to include ongoing demonstrations. Indeed, I would infer from the words of s 132 itself that they did not so intend. Only when the Commencement Order was passed was such an intention evinced.
[58] If I were wrong to exclude Ms Flint's words from consideration, I would say that they show that the Government expected that Mr Haw's demonstration would be caught by the Act. But even if I were satisfied that the Government intended that the Act should apply to Mr Haw and that the draftsman had made an error, I would not be prepared to make good the defect. In my judgment, even if this were not a penal statute, there is no room for a modern, liberal, purposive construction. The words of s 132 are clear and they give effect to a perfectly sensible purpose, even though demonstrations which began before 1 August are not caught. The fact that this is a penal statute makes the position even clearer. In my view, penal statutes should be strictly construed and, if there is any ambiguity, it should be resolved in favour of the liberty of the subject. If Parliament wishes to criminalise any particular activity, it must do so in clear terms. If it wishes to do so, Parliament can amend this Act. Whether it can do so by order under s 173 is not for this court to say, at least on this occasion. I, for my part, would grant this application and make the declarations sought.
MCCOMBE J:
[59] The factor that weighs with me in this case is that s 132 creates a criminal offence. It is necessary to enquire what facts have to be proved to render a person guilty of that offence. It seems to me to be clear that, on the express wording of the Act, an offence can only be committed if authorisation has not been given when a relevant demonstration starts. It is enacted from the commencement of the Act such an offence is committed where a person organises, takes part or carries on a demonstration, if, when the demonstration starts, authorisation for it has not been given. To my mind, it is entirely clear that the present Claimant could not be found guilty of the offence under s 132, in its present form, merely because he does not have the statutory authorisation at the date on which the section comes into force. On its own, the section of the Act would, in my view, not be infringed by the continuation of the Claimant's demonstration. The second Defendant so concedes, but the first Defendant does not.
[60] In my judgment it requires insertion into the Act of words such as "or continues" after the words "when the demonstration starts" to reach that result. No doubt it is for that reason that the first Defendant made the statutory instrument and seeks to uphold it. Why bother to do so if the offence is created by the section in its existing form?
[61] The argument of Miss Lieven suggested that this natural construction of s 132 should somehow be affected by the power to makes transitional or "transitory" (sic) provisions in s 178(10). I cannot agree. The question is whether the legislation permits this result to be achieved by the mechanism employed in his case. Does the Act permit the first Defendant to create the wider offence not created by the primary legislation in a manner now attempted? To do this, I consider it is necessary to amend s 132. An express power of amendment, no doubt itself having limited bounds, is created by s 173 of the Act. However, the order now relied upon was not made under that section, but under ss 178(7) to (10) of the Act and, for present purposes, especially sub-s 10, which enables the making of "transitional" or "transitory" provisions.
[62] I am unable to accept that the Act should be construed to permit what is, in truth, an amendment to s 132 under the guise of transitional or transitory provisions, especially when there is specific power in a different section to make such amendments as may be permissible. The problem, however, is that the express power to amend by instrument is subject to approval by resolution of each House of Parliament. That is not the procedure adopted in this case. Therefore, the Defendants cannot rely upon s 173, but only on s 178.
[63] For my own part, I would decline to hold that the mechanism of the transitional or transitory provision is apt to create an extension of the ambit of an enactment imposing criminal liability. However wide the principle of purposive construction of statutes may be, it is, to my mind, undesirable to strain the natural words of an enactment so as to impose criminal liability where none would otherwise exist. It is to be remembered that no-one contends that the Claimant's present demonstration is otherwise than lawful. By the order now under challenge he would render himself liable to penalty if he continues to demonstrate without the police authorisation required by the Act. If Parliament wishes to require formal authorisation of lawful activity, which otherwise might be seen as no more than merely embarrassing to Government, it should say so expressly. This is no less so when our society might seem to be under threat. There were times in argument when counsel for the Defendants made reference to the security concerns facing the country generally.
[64] I am reminded of the words of Lord Atkin in Liversidge v Anderson [1942] AC 206 at p 204, [1941] 3 All ER 338, 110 LJKB 724 in a passage, albeit in a dissenting judgment, representing the cornerstone of our Common Law relating to the function of judges when faced with claims involving the liberty of a subject. Lord Atkin said:
"Their function is to give the words [of the Act] their natural meaning, but not perhaps in wartime leaning towards liberty, but following the dictum of Pollock CB in Bowditch v Balchin [1855] Exch R at p 378, cited with approval by my noble and learned friend, Lord Wright, in Barnard v Gorman [1941] AC 378 at p 393:
'In a case in which the liberty of a subject is concerned we cannot go beyond the natural construction of the statute.'
In this country, amid the clash of arms, the laws are not silent. They may be changed but they speak the same language in war as in peace. It has always been one of the pillars of freedom and one of the principles of liberty for which, on recent authority, we are now fighting that judges are no respecters of persons and stand between the liberty of the subject and any attempted encroachments on his liberty by the executive alert to see that any coercive action is justified by law."
[65] I am encouraged that this is the correct approach to the present problem by a passage in the speech of Lord Reid in R v Warner [1969] 2 AC 256 at p 279, [1968] 2 All ER 356, [1968] 2 WLR 1303, reference to which, in one of the cases cited to us, was noted by my Lord, Simon J, in the course of argument. In that case, their Lordships were concerned with the construction of an Act of Parliament which, according to its natural language, imposed strict liability for a criminal offence. Lord Reid was prepared to contemplate for the future an exception to the then general rule that the courts would not go behind the natural wording of an enactment. The exception envisaged was to enable courts to go behind the wording of the legislation to see whether Parliament had been informed that the intention of the drafting was to negative the usual principle that mens rea, or a guilty mind, is a necessary element in every criminal offence. Lord Reid said:
"Members of both Houses are particularly interested in the liberty of the subject and, if it were intended by those promoting a Bill to extend the old but limited class of cases in which absence of mens rea is no defence, I would certainly expect Parliament to be so informed. Then, if Parliament acquiesced, those who dislike such legislation would know whom to blame. But if the words of the Act are not crystal clear and Parliament had not been told of this intention, I would hold without hesitation that it would be wrong to impute to Parliament an intention to depart from its known desire to prevent innocent persons from being convicted."
[66] Again, Lord Reid was concerned to avoid saddling individuals with criminal liability on the basis of possibly doubtful words in an Act of Parliament.
[67] We were referred to certain passages in the debates in Parliament on the Bill, which became the 2005 Act. It was suggested that those passages made it clear that these provisions were intended to "catch" the Claimant's demonstration. Certainly, the Minister referred to experience derived from the then current demonstration site in Parliament Square, presumably that of the Claimant, but there is nothing in those passages to indicate that s 132 would, without more, cover this Claimant's demonstration, or that any particular statutory mechanism under the Act would be used to address continuing demonstrations or this demonstration in particular. It would be entirely consistent with any of those passages and the passing of the Bill in its final form that intention was, for example, to introduce an amendment order under s 173, upon which a further resolution of each House would be required. In the light of what I regard as the clear wording of s 132, that would have been a perfectly reasonable understanding of this statute as enacted.
[68] Further, a limited reference to Parliamentary debates of the type now permitted by our laws as an aid to construction is not called for in this case. The wording of s 132 is not ambiguous and the Act in its present form does not of itself cause an absurd result. Before any question of reference to Parliamentary debates arises, the ambiguity or absurdity must appear from the statute when construed on traditional principles. It is the reverse of that process to refer first to the debates and to argue from them that the literal meaning of the Act does not accord with the expressed intention of the Bill's promoters and is therefore absurd.
[69] For these reasons and for those given by my Lady, I do not consider that the power conferred by s 178(10) is sufficient to enable the creation by amendment of a wider offence, not created by the primary legislation itself. I, too, would allow this application.
SIMON J:
[70] I accept that the exercise of statutory construction starts with a presumption in favour of the exercise of freedom of speech and expression and against criminalising conduct where the intention to do so is doubtful.
[71] However, in my view, the first question for determination in this case is, what is the statutory purpose of s 132 to 138 of the Serious Organised Crime and Police Act 2005? It seems to me that the answer to this question is that Parliament plainly intended to regulate demonstrations in the vicinity of Parliament. The statutory provisions are designed to control and regulate (a) the organisation of such demonstrations, (b) the taking part in such demonstrations, and (c) the carrying-on of demonstrations in the designated area. I shall refer to these as the "relevant acts". This control and relation was not intended for aesthetic reasons or to suppress legitimate extra-Parliamentary opposition, but because of Parliament's concern that the unrestricted exercise of freedom of expression close to the centre of Government and Parliament posed a threat to democratic freedom.
[72] The way in which the relevant acts are to be regulated in ss 132 to 138 is by requiring authorisation in advance. It is accepted by Mr Clemens, who appeared on behalf of the Commissioner for the Metropolitan Police, that the decision of the Commissioner to give or withheld authorisation under s 134 would be subject to judicial review. If authorisation is not given, a person who carries out the relevant act may, subject to various statutory defences, be guilty of an offence.
[73] The Claimant's argument is that he is outside this authorisation process because his demonstration started before the Act came into force. He relies on the words "when the demonstration starts" in the expression "is guilty of an offence if, when the demonstration starts, authorisation for the demonstration has not been given".
[74] In my judgment, there are a number of objections to this argument. First, it is a basic rule of statutory construction that the aim in construing any statute is to give a construction which gives effect to the statutory purpose. The legislative purpose of ss 132 to 138 is clear: it is to regulate demonstrations in the designated area, not just some demonstrations, all demonstrations.
[75] Secondly, I can see no rational reason, and none has been advanced, why Parliament should have intended entirely to exclude from this regulation one or more demonstrations which began before the commencement date. As Miss Lieven put in her skeleton argument:
"It is simply nonsensical to suggest that Parliament would have brought in provisions to deal with [security problems caused by demonstrations] in the future but would have been content to allow an existing security concern to continue."
[76] I would approach the question of construction with these points in mind. In my view, the language of s 132(1), although not as precise as it might have been, was designed to focus on the time of authorisation. The words "when the demonstration starts" were inserted to make it clear that the Commissioner's authorisation under s 134(2) must be sought and given in advance, in contradistinction to during the course of the demonstration or retrospectively. This is a convenient method of regulating demonstrations, but does not lead, in my view, to the conclusion that the demonstrations which are in existence before the commencement date are outside the regime of regulation.
[77] I do not accept that Parliament failed to deal with the case of a continuing demonstration. However, if I had come to that conclusion, I would have been prepared to construe the statute by omitting the words "when the demonstration starts" from s 132(1) in the case of a demonstration which had stared prior to the commencement date. Such a construction would give effect to the clear intention of Parliament and it would correct what would otherwise be an absurdity.
[78] An objection might be taken to both these constructions on the basis that a demonstration which had began prior to the commencement date could never be authorised. However, that objection is, in my view, covered by terms of the Commencement Order, to which I will come later.
[79] Onc of the objections raised against this construction by Mr Drabble QC, counsel for the Claimant, is that it gives s 132 retrospective effect. He referred us to the effect of Plewa v Chief Adjudication Officer [1995] 1 AC 249 (HL) at 256, [1994] 3 All ER 323, [1994] 3 WLR 317 where Lord Woolf quoted with approval the advice from the Privy Council in Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 to 558, [1982] 3 All ER 833, [1982] 3 WLR 1026:
". . . there is at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used. A statute is retrospective if it takes away or impairs a vested right acquired under existing laws or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past."
[80] Mr Drabble accepted that the Claimant had no vested right to demonstrate; but nor, in my view, do ss 132 to 138 create any new obligation, duty or disability in regard to events past. They only create obligations, duties or disabilities in relation to the future. There is no objectionable retrospective effect because the need for authorisation and the lack of authorisation which may give rise to criminal sanctions only arises once the Act takes effect on its commencement.
[81] Another objection raised by Mr Drabble is that such a construction offends against an important canon statutory construction, the principle against penalisation under doubtful law.
[82] Like the other members of the court, I accept the principle; but this is not the usual case. In many cases that come before the court, the court will be looking at conduct and deciding whether such conduct was penalised under (ex hypothesi) doubtful statutory provision.
[83] In the present case, the Claimant has brought proceedings which have the effect of determining the lawfulness of his actions. This enables the court to declare what the correct construction of the statute is before the Claimant acts to his detriment. Furthermore, I do not accept that the presumption against criminalisation should always be viewed as the over-riding consideration. In an era of heavy statutory programmes, demands on Parliamentary time and Parliamentary draftsmen in the consideration and drafting of primary and secondary legislation, it is likely that mistakes will occur. A Consolidation Act may not accurately reflect the statutory provision it replaces. A transitional provision in a schedule may have introduced a double negative in the course of an elaborate piece of drafting. In such cases, it seems to me that the courts should be prepared to construe a penal provision so as to give effect to what must have been the clear will of Parliament and to correct what would otherwise be an absurdity.
[84] The conclusion contended for by the Claimant, that a demonstration begun on or before 31 July is, by reason of that fact alone, outside the ambit of s 132 would, to my mind, be surprising to a very high degree.
[85] In Pepper v Hart [1993] AC 593 the House of Lords decided that it was permissible to look at Parliamentary material as an aid to construction of legislation. At p 634D Lord Browne-Wilkinson set out the principle in a passage with which the majority of the House agreed:
"In my judgment, subject to the questions of the privileges of the House of Commons, reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity."
[86] The passages relied on by the Secretary of State meet the criteria set out by Lord Browne-Wilkinson at p 640B to C. First, the statements relied on consist of one or more statements by a Minister or other promoter of the Bill. Secondly, the statements are clear.
[87] In addition to the passage cited by Smith LJ, Miss Lieven relied on another statement of the Minister:
"Those who organise demonstrations around Parliament should notify the Metropolitan police in advance, and the police should impose conditions in advance depending on the circumstances of each demonstration. That is the most effective way of achieving what we want, and of resolving the problem that has emerged. The issue is not just about one individual: it is about the fact that the problems of the last few years could be taken on by other individuals as well, and we need to deal with that . . ."
[88] In my view, Miss Lieven, who appeared for the Secretary of State, was correct in summarising the Parliamentary material as follows:
1. Parliament intended that the authorisation of relevant acts was to apply to existing demonstrations.
2. Parliament was expressing genuine security concerns about the Claimant's demonstration.
[89] Furthermore, I can see no reason of principle why, if the other criteria set out in Lord Browne-Wilkinson's speech are met, the court should not look at Parliamentary material because the statutory provisions may have penal consequences, at least in a case where a literal construction may lead to absurdity.
[90] I would conclude on this point that the clear intention of Parliament was to bring all demonstrations within the regulatory framework; and that, to give effect to that intention, it is necessary to read the words in s 132, "when the demonstration starts", as limited to a demonstration which has a starting point after the commencement of the Act.
[91] It follows from this analysis that I do not accept that the Commencement Order extends the scope of s 132 of the Act. The Serious Organised Crime and Police Act 2005 Commencement No 1 Transitional and Transitory Provisions (Order) 2005 No 1521 set out the Secretary of State's exercise of powers under s 178 of the Act. Article 4(1) of the Order brings s 132 into effect on 1 August. From that time, any person will have a choice as whether they wish to carry out the relevant acts within the designated area; but, if they wish to do so, they will have to seek authorisation which must precede the demonstration.
[92] Article 4(2) deals with an argument that might be made against a continuing demonstration, such as the Claimant's: namely, that no authorisation could ever be sought or granted for a demonstration which has already begun because there is no clear starting point for it. Article 4(2) provides that applications can be made and authorisations granted as if the demonstration had begun on 1 August 2005. Thus, the Claimant can give notice seeking authorisation under s 133(2) either seven days or 24 hours before 1 August, but not afterwards.
[93] If I am wrong thus far, I would not have accepted Miss Lieven's argument that the matter could be corrected by the use of a commencement order for the reasons indicated by my Lady and my Lord. However, for the reasons I have indicated, I would refuse the application.
SMITH DBE LJ: [94] Mr Drabble, the application succeeds and you will have the declarations as sought.
MR DRABBLE: [95] My Lady, the form of relief we have asked for is an order quashing the relevant parts of arts 3(1)(p), 3(5) and 4(2). I am perfectly content with a simple declaration for those parts ultra vires, but I mind not. The second declaration is the one that matters.
SMITH DBE LJ: [96] Exactly. You may certainly have your second one. (Pause). Mr Drabble, we think that, as two of us have found that those parts of the order are ultra vires, you should have your quashing order. So there will be an order quashing those parts of the Commencement Order which purport to extend the scope of the 2005 Act to continuing demonstrations, that is in arts 3(1)(p), 3(5) and 4(2). You will also have your declaration that the Claimant is not required to seek authorisation for the continuing protest, pursuant to ss 132 to 138.
Judgment accordingly.