Haw, R (on the application of) v Secretary of State for the Home Department & Anor

This is the judgment of the court. The respondent in this appeal is Brian Haw, who is a well-known figure in Parliament Square or, if he is not himself well-known, his demonstration is. He has been demonstrating there since June 2001. He lives on the pavement and displays a large number of placards. As Smith LJ put it in the Divisional Court, initially his intention was to protest about sanctions against Iraq but more recently it has been to protest against the Government’s policy in Iraq. In 2002 Westminster City Council sought an injunction requiring him to remove his placards on the basis that they were an obstruction to the highway. The application for an injunction failed. Gray J held that the respondent’s demonstration neither caused an obstruction of the highway nor gave rise to any fear that a breach of the peace might arise. He held that the demonstration was accordingly lawful. The respondent has been there ever since.

On 7 April 2005 the Serious Organised Crime and Police Act 2005 (“the Act”) received the Royal Assent. This appeal is concerned with sections 132 to 138 of the Act. Smith LJ correctly described the object of those provisions as being to give the police a measure of control over demonstrations which take place within a designated area in the vicinity of Parliament. The Act does not forbid demonstrations in that area but, by section 133(1), it requires any person who intends to organise a demonstration in the area to apply to the police for authorisation to do so. By section 134(2), 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 such conditions is a criminal offence.

On 15 July 2005 the respondent issued a claim form in the Administrative Court seeking, among other things, a declaration against the Secretary of State for the Home Department (“the Secretary of State”) and the Commissioner of the Metropolitan Police (“the Commissioner”) that the regime set out in sections 132 to 138 of the Act does not apply to him. On 26 July 2005 the Divisional Court, comprising Smith LJ, McCombe J and Simon J gave him permission to apply for judicial review. On 29 July, by a majority, Simon J dissenting, the court acceded to the respondent’s application and made a declaration that he was not required to seek authorisation “for his continuing protest” under sections 132 to 138 of the Act. It also quashed certain provisions of the Serious Organised Crime and Police Act 2005 (Commencement No 1 Transitional and Transitory Provisions Order 2005 (SI 2005/1521) (“the Commencement Order”). The court awarded the respondent his costs and refused permission to appeal. Permission to appeal was subsequently granted on paper by Mummery LJ.

The essential question before the Divisional Court and before us was whether or not the Act applies to the respondent’s demonstration. The respondent’s case is that on its true construction the Act does not, as enacted, apply to his demonstration because his demonstration started before the Act came into force. We will call this “the construction point”. As to the Secretary of State’s reliance upon the provisions of the Commencement Order, the respondent says that in so far as they purport to alter the provisions of the Act, as enacted, so as to make the Act apply to demonstrations which began before the Act came into force and continue thereafter, they are ultra vires and of no effect. We will call this “the Commencement Order point”. The majority of the Divisional Court decided both points in the respondent’s favour. The Secretary of State says that it was wrong to do so. Simon J would have decided the construction point in favour of the Secretary of State and would thus have refused the respondent’s application but agreed with the majority on the Commencement Order point.

Section 132 provides, so far as relevant:

Section 133 provides, so far as relevant:

Section 134 applies if a notice complying with section 133 is given in time. By subsection (2) the Commissioner must give authorisation for the demonstration but by subsection (3) may impose such conditions as in his reasonable opinion are necessary for the purpose of preventing any of the situations to which we referred in paragraph 2 above. By subsection (4) the conditions may in particular impose requirements as to the place where the demonstration may or may not be carried on, the times at which and the period during which it may be carried on, the number of persons who may take part, the number and size of placards used and the maximum permissible noise levels. Section 134(7) provides:

Section 136 makes provisions for the penalties for the various offences under the Act. In particular, it provides that an organiser guilty of an offence is liable to up to 51 weeks imprisonment and a fine and that a person who takes part but is not an organiser is liable to a fine but not to imprisonment. Section 138 gives the Secretary of State power to make an order specifying the designated area. Such an order has been made and includes Parliament Square.

Section 172 gives the Secretary of State power to make various types of order under the Act. By subsection (1) it provides that any such power is exercisable by statutory instrument. Subsection (3) provides that subject to subsections (4) and (5) orders or regulations made by the Secretary of State are to be subject to annulment in pursuance of a resolution of either House of Parliament. By subsection (4), subsection (3) does not apply to any order under section 178, which by subsection (10) provides:

We note in passing that section 172(5) provides that subsection (3) does not apply (among many other provisions) to any order under section 173 “which amends or repeals any provision of an Act” and further provides that no such order may be made unless a draft of the statutory instrument containing the order has been laid before, and approved by a resolution of, each House of Parliament. Section 173 provides, so far as relevant:

The critical provision of the Act is section 132(1), which is quoted above. It provides that a person who organises, takes part in or carries on a demonstration by himself in a designated area is guilty of an offence if “when the demonstration starts” appropriate authorisation has not been given. The respondent’s short and simple point, which was accepted by the majority of the Divisional Court, is that, as enacted, section 132(1) cannot apply to him or his demonstration because it started in June 2001 long before there was any requirement for authorisation under section 134(2) of the Act, which only received the Royal Assent on 7 April 2005.

On the next day the respondent’s solicitors, Messrs Bindman & Partners, wrote to the Secretary of State asking when sections 132 to 138 of the Act would come into force and asserting that section 132(1) did not apply to the respondent for the reason given above. After some delay, by letter dated 20 July, Bindman & Partners were informed by the Home Office that a Commencement Order had been made on 7 June pursuant to section 178. The letter did not comment on the suggestion that the Act did not apply to the respondent.

Articles 3 and 4 of the Commencement Order provide, so far as relevant, as follows:

The words which we have put in italics were the words which were struck out or quashed by the Divisional Court on the ground that they were ultra vires because they had the effect of amending the Act, which the Secretary of State had no power to do under section 178. If he had wished to amend the Act he would have had to do so (if at all) under the Parliamentary procedure set out in sections 172 and 173 of the Act (quoted above), which he did not purport to do.

The reasoning of the majority of the Divisional Court, which is naturally supported by Mr Drabble on behalf of the respondent, can be shortly stated as follows.

The respondent’s demonstration did not start after the Act received the Royal Assent or after the Act came into force because it had already started in June 2001.

The language of section 132(1) of the Act is clear and unambiguous. It provides that any person who organises, takes part in or carries out a demonstration is guilty of an offence if “when the demonstration starts” authorisation has not been given under section 134(2).

That the Act applies only to demonstrations which start after it came into force is underlined by section 133(2), which provides for a notice to be given not less than six days before the day on which or the time when the demonstration “is to start”.

A distinction is drawn in section 133(2), (3) and (4) between the day and time when the demonstration is “to start” and by whom and where it is to be “carried on”.

Thus, the first step to be taken by a person who requires authorisation for a demonstration in a designated area is to serve a notice under section 133(2) which must state when the demonstration is to start. Section 134 applies if a notice complying with section 133(2) is received in time. In such a case the Commissioner must give his authorisation under section 134(2) but may impose conditions under section 134(3) and (4). It follows that authorisation is required in a case in which a notice under section 133 is necessary.

Since notice under section 133 is only necessary where a demonstration is to start and not when such a demonstration is to continue or be carried on, it follows that the respondent was not required to serve a notice in order to continue or carry on his demonstration.

It further follows that the respondent could not be guilty of an offence under section 132(1) because no authorisation was required in respect of a demonstration which had already started. As Mr Drabble put it, on ordinary principles of construction, an offence could not be committed if the moment by which authorisation was to be obtained, viz the start of the demonstration, occurred before the authorisation was required.

Since section 132(1) of the Act is both clear and unambiguous and (in particular) clearly identified its purpose and, if construed in the way proposed, does not lead to any absurdity, let alone manifest absurdity, there is no room for any alternative purposive construction.

McCombe J stressed the principle that in a case in which the liberty of the subject is concerned the court should give the words of the statute their natural meaning. He referred to the famous speech of Lord Atkin, albeit a dissenting speech, in Liversidge v Anderson [1942] AC 206, where at page 244, he quoted with approval this dictum of Pollock CB in Barnard v Gorman (1850) 5 Ex 378:

For the same reason it is not permissible to have regard to Hansard in order to ascertain the intention of Parliament as an aid to construction of the Act.

Alternatively, if recourse is had to Hansard, the statement of the relevant Minister is not sufficiently clear and unequivocal to assist in construing the Act, especially having regard to the principle which was described in argument as the principle against penalisation under doubtful law. As Simon Brown LJ put it in R v Bristol Magistrates Court ex parte E [1998] 3 All ER 798 at 804:

By contrast, the reasoning of Simon J, which in turn is naturally supported by Mr Pannick on behalf of the Secretary of State, may be summarised in this way.

The statutory purpose of sections 132 to 138 of the Act was to regulate demonstrations in the vicinity of Parliament.

The provisions of the Act were intended to control and regulate (a) the organisation of such demonstrations, (b) the taking part in such demonstrations and (c) the carrying on of such demonstrations in the designated area. The purpose of such control and regulation was not to suppress legitimate extra-Parliamentary opposition but because of Parliament’s concern that the unrestricted exercise of freedom of expression so close to Parliament posed a threat to democratic freedom.

The construction of the Act favoured by the majority (and summarised above) is contrary to the legislative purpose of sections 132 to 138, namely to regulate, not just some, but all demonstrations in the designated area.

No rational basis has been suggested as to why Parliament should have intended entirely to exclude demonstrations which had begun before the commencement date of the relevant provisions of the Act. In the words of Ms Lieven’s skeleton argument on behalf of the Secretary of State before the Divisional Court,

The language of section 132(1) was designed to focus on the time of authorisation. The words “when the demonstration starts” were inserted to make it clear that authorisation must be sought and given in advance, in contradistinction to during the course of a demonstration or retrospectively.

In applying section 132(1) to a demonstration which started before the relevant part of the Act came into force, the Act (in the words of paragraph 13 of Mr Pannick’s skeleton argument) effectively deems such a demonstration to start no earlier than the date of commencement. This was the argument accepted by Simon J in paragraph 76.

The construction favoured by the majority leads to manifest absurdity. The mischief of the Act is shown by section 134(3) and the matters which the Commissioner can take steps to prevent by imposing conditions. There is no sensible purpose in being able only to regulate demonstrations which commenced after the Act came into force but not those which began before it came into force but continued thereafter.

In any event the principle stated by Lord Browne-Wilkinson in Pepper v Hart [1993] AC 593 at 640B-C, with which the majority of the House agreed, is satisfied here. That principle is that reference to Parliamentary material should be permitted “ as an aid to construction of legislation which is ambiguous or obscure or the literal meaning of which leads to absurdity.”

The statements of the relevant Minister showed that Parliament intended that the authorisation of demonstrations in the designated area was to apply to existing demonstrations, including the respondent’s demonstration.

As to the doubtful penalisation point, there is no reason in principle why, if Lord Browne-Wilkinson’s other criteria are satisfied, 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.

On this basis, the Commencement Order does not extend the scope of the Act but makes the position clear.

The question is one of construction of the Act. Like all questions of construction, this question must be answered by considering the statutory language in its context, which of course includes the purpose of the Act. The search is for the meaning intended by Parliament. The language used by Parliament is of central importance but that does not mean that it must always be construed literally. The meaning of language always depends upon its particular context.

We consider the problem first without reference to what was said in Parliament. There is undoubted force in the reasoning of the majority because of the express reference to the start of the demonstration in sections 132(1) and 133(2) and (4) and because of the contrast between the demonstration starting and being carried on. On the other hand, it is, to put it no higher, a puzzle as to why Parliament should have wished to control demonstrations which started after the relevant commencement date but not demonstrations which started before. It was suggested that it might have been content with the respondent’s demonstration because it had lasted for some considerable time and had, indeed, been held to be lawful. However, that does not seem to us to meet the point because, on the respondent’s construction, not only his demonstration, but any other demonstration which began before the relevant commencement date would be unregulated under the Act.

We have reached the conclusion that the Parliamentary intention was clear. It was to regulate all demonstrations within the designated area, whenever they began. In reaching this conclusion we have been much influenced by a point which was not put to the Divisional Court. It was included for the first time, not in the skeleton argument lodged on behalf of the Secretary of State, but in the skeleton argument lodged by Mr Clemens on behalf of the Commissioner. It depends upon section 132(6) of the Act and upon the terms of section 14 of the Public Order Act 1986 (“the 1986 Act”).

By section 132(6), which we have quoted above, section 14 of the 1986 Act does not apply to a public assembly “which is also a demonstration in a public place in the designated area”. There is no doubt that the respondent’s demonstration is such a demonstration and it is not suggested otherwise. In the context of the argument in this appeal, the critical point is that the disapplication of section 14 of the 1986 Act is not limited to demonstrations which started after the commencement or coming into force of the Act but applies to all demonstrations, whether they started before or after the commencement or coming into force of the Act.

The significance of that is to be found in the terms of section 14. A public assembly is defined in section 16 of the 1986 Act as an assembly of two or more persons in a public place which is wholly or partly open to the air. Section 14 provides, so far as relevant:

Section 14 of the 1986 Act is the section which gives the police power to impose conditions in relation to demonstrations generally, provided that they consist of two or more people. The purpose of section 132(6) of the Act was to replace section 14 of the 1986 Act with the provisions of sections 132 to 138 of the Act in the case of demonstrations in the designated area, whenever they started. It is, in our judgment, inconceivable that Parliament would have repealed section 14 with respect to demonstrations which had already started, if it did not intend to apply the provisions of 132 to 138 of the Act to such demonstrations.

The only sensible conclusion to reach in these circumstances is that Parliament intended that those sections of the Act should apply to a demonstration in the designated area, whether it started before or after they came into force. Any other conclusion would be wholly irrational and could fairly be described as manifestly absurd.

In these circumstances, although we see the force of its reasoning, we have reached a different conclusion from that of the majority in the Divisional Court. It appears to us that when the Act is construed in its context and having regard to the plain intention of Parliament as deduced from the Parliamentary language, including the disapplication of section 14 of the 1986 Act, section 132(1) on its proper construction includes demonstrations actually starting before the commencement of the Act as surely as those starting after. Those starting before, like the respondent’s, are deemed to start at commencement; and in such cases the words “when the demonstration starts” refer to the time of commencement. The provisions of section 133 and 134 then work perfectly satisfactorily by reference to such a start date. This is the construction which we understand was favoured by Simon J in paragraph 76.

It is important to observe that we have reached this conclusion on the basis of the statutory language construed in its context. We have sought to apply the approach identified by Lord Nicholls in R v Secretary of State for the Environment, Transport and the Regions ex parte Spath Home [2001] 2 AC 349 at 396:

As already stated, it is the Parliamentary language, including the disapplication of section 14 of the 1986 Act, which has led us to the conclusion that Parliament cannot have intended to apply sections 132 to 138 only to demonstrations which began after the Act came into force but intended to include all demonstrations within the designated area. In order to give effect to that intention, the words “when the demonstration starts” in section 132(1) have to be read (in their application to a case like the present) as we have indicated in paragraph 24.

We have considered whether such a construction is impermissible having regard to the principle of doubtful penality or to the principle stated by Pollock CB. We entirely accept the general principle stated by Simon Brown LJ in R v Bristol Magistrates Court ex parte E and quoted above that a person should not be penalised except under clear law. Equally we are mindful of the importance of the liberty of the individual. However, whether or not there is “clear law” depends in this context upon the true construction of the relevant statute. We have reached the conclusion that in the case of the Act, once the intention of Parliament is ascertained from the language used, construed in its context, there is in the relevant sense clear law.

We should refer in this regard to two cases to which we were referred by Mr Pannick, albeit in very different statutory contexts. The first is McMonagle v Westminster City Council [1990] 2 AC 716, where the House of Lords treated words as surplusage in a statute which contained criminal sanctions in order to avoid what Lord Bridge described as the substantial frustration of the object of the Act: see especially at page 726 C-F and 727F-G. The second is DPP v McKeown [1997] 1 WLR 295, where in a breathalyser case the House of Lords refused to give the words of a statute their literal meaning because to do so would produce a result which Lord Hoffmann (with whom the other members of the House agreed) said would produce a result which was “quite irrational”. Thus all depends upon the circumstances of the particular case, even if the case involves the construction of a statute which contains penal provisions.

In the instant appeal, having regard to what in our opinion was the plain intention of Parliament, if the literal construction of the references to “starts” or “start” leads to the conclusion that the Act does not apply to any demonstration commenced before the relevant provisions of the Act came into force, leaving such a demonstration unregulated by any statute at all because of the disapplication of section 14 of the 1986 Act in section 132(6) of the Act, we would not give it that literal construction but would construe it as we have indicated.

We have reached this conclusion without reference to the Parliamentary material, so that it is not necessary for us to consider its admissibility in this case. No-one suggested that there is anything in that material which supports the conclusion that Parliament intended to exclude a demonstration such as that of the respondent.

Our conclusion also makes it unnecessary to consider the Commencement Order point separately. If we are right, there is nothing in the order which contradicts any provision of the Act. On the contrary, the terms of the order reflect what in our view (reached without reference to the order) was the intention of Parliament in the Act.

On the true construction of sections 132 to 138 of the Act Parliament intended to include demonstrations, whenever they started. It follows that we allow the appeal and set aside the orders of the Divisional Court.