On Tuesday and Wednesday (6-7 March 2012), Maria Gallastegui of Peace Strike brought a Judicial Review of Part III of the Police Reform and Social Responsibility Act 2011 as it relates to a blanket ban on protest camps in Parliament Square.

This was a two-day hearing, in which the defending parties were the Home Secretary, Westminster City Council and the Metropolitan Police. Ms Gallastegui sought a declaration of incompatibility of the relevant sections of the Act with the European Convention rights to freedom of expression (Article 10); freedom of assembly and association (Article 11); and the right to a fair trial (Article 6). Counsel for Ms Gallastegui, Ms Seymour (instructed by Paul Ridge of Bindmans solicitors), argued that the language of the Act made clear that it is a blanket prohibition on certain activities.

Counsel for the Home Secretary sought to argue, on the other hand, that despite the unambiguous wording of the statute, it actually conferred a power, subject to the exercise of discretion, rather than an obligation upon the authorities to act in case of any suspected breaches, and that a ‘reasonable excuse' defence could potentially be used in any future legal proceedings to argue that under some circumstances an overnight encampment could amount to a legitimate exercise of one's Article 10 and 11 rights, hence rendering the statute Human Rights compatible. This is in contrast to the judgment in the Court of Appeal in Tabernacle vs Secretary of State for Defence, in which a byelaw introduced by the Secretary of State that amounted to a blanket ban on camping in the controlled area outside the Atomic Weapons Establisment offered no possibility of such an interpretation.

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2009/23.html&query=title+%28+tabernacle+%29&method=boolean

The judges, Sir John Thomas PQBD and Mr Justice Silber, will deliver their judgment in due course. It is important to note, however, that if the Judicial Review is allowed and a declaration of incompatibility is made, this does not render the statute unenforceable: it merely means that the authorities will leave themselves open to litigation in respect of the cases of enforcement that have already occurred, such as against Barbara Tucker and other protesters whose tents were cleared from Parliament Square on 16th January 2012, and in case of future enforcement against Ms Gallastegui or anyone else setting up an overnight protest encampment - for any duration - in Parliament Square.

Meanwhile, Ms Gallastegui, Ms Tucker and others are due to appear in the High Court once again on Friday in respect of long-running attempts by Westminster City Council to clear protesters from the footways of Parliament Square on the grounds that they are causing an obstruction of the public highway. This is in spite of the fact that the late Brian Haw successfully fought off injunction proceedings on similar grounds brought by Westminster City Council in the High Court in 2002.

http://www.freebeagles.org/caselaw/CL_ob_Haw_sum.html

Further background:
https://indymedia.org.uk/en/2012/03/493178.html
http://www.bindmans.com/index.php?id=1125