The case report on the appeal between the Mayor of London and various occupiers of Parliament Square Gardens has appeared on BAILII.
For those who don’t live in or near London, Parliament Square Gardens (PSG) is the area of grass surrounded by statues and walkway which sits between the Houses of Parliament, Westminster Abbey and the new Supreme Court building. It has often been a site for protest but has been the subject of long-term occupation by a number of protesters. The background to these protests was set out by Mr Justice Griffith Williams in his original High Court judgement which was the subject of this appeal.
3. On 1 May 2010, four separate groups said to represent the Four Horsemen of the Apocalypse and which had formed up at different locations across London arrived and set up a camp which they named their ‘Democracy Village’. Their then stated intention was to remain until 6 May 2010, the date of the General Election but they have continued to occupy PSG and (on the evidence of a number of the defendants …) have every intention to do so for the foreseeable future.
4. Brian Haw (the second defendant) has been camping lawfully since 2001 on a pavement on the eastern side of PSG – a part of the highway controlled by Westminster City Council. He was joined some years later by Barbara Tucker (the third defendant). They have been conducting their own protest for Love, Peace, Justice for All. They and those associated with them are in no way a part of the Democracy Village.
5. The defendants who are a part of the Democracy Village are demonstrating variously in respect of a number of causes – these include the war in Afghanistan, the war in Iraq, genocide, war crimes and world wide environmental issues.
Mr Justice Griffith William made an order for possession against all but 2 of the Defendants and also made an injunction order against all but 2 Defendants requiring them to remove tents and other structures from the grassed area of PSG, not to erect any further structure, to leave PSG and not to organise or take part in further assemblies there that do not have the consent of the Mayor.
Permission to appeal was sought from the Court of Appeal and this was heard at the same time as the appeal itself before the Master of the Rolls (with LJ Arden and LJ Stanley Burnton) who gave the leading decision. There were five issues at appeal which were clearly and succinctly set out by the MR:
First, whether the trial below was fair – whether it complied with article 6 of the European Convention on Human Rights and Fundamental Freedoms (“the Convention”). Secondly, whether the claim for possession was properly constituted. Thirdly, whether the order for possession and the injunction complied with articles 10 and 11 of the Convention in terms of proportionality. Fourthly, whether an injunction was a permissible remedy in the light of section 385 and the Byelaws. Fifthly, there are issues concerning costs.
The first issue, that of the fairness of the trial, concerned the suggestion that the possession hearing had been listed very quickly. However, it was not listed sooner than the minimum time specified in the CPR nor even close to that minimum time. It was also the case that there had been two prior directions hearings so the possession proceedings were not in any way a surprise to the Defendants. While it was true that the speed had meant that some of the Defendants had been unable to obtain publicly funded representation, all the issues had been sufficiently aired by the six barristers who were retained in the matter and so no significant disadvantage was caused to those Defendants who were forced to represent themselves. The final point on this issue was that the issues being raised by the Defendants were of prime importance and were ones which attracted the protection of the ECHR. This was not doubted by the Court but they did not consider it of much relevance to the matter at hand.
The most interesting area of appeal concerns the right of the Mayor to seek a possession order at all. This point was based around the fact that the Mayor does not actually enjoy a legal estate in the land of PSG, although the Court was clear that he has control over it. This control is awarded by section 384 of the Greater London Authority Act 1999. Subsection 1 states:
(1) The land comprised in the site of the central garden of Parliament Square (which, at the passing of this Act, is vested in the Secretary of State for Culture, Media and Sport) is by this subsection transferred to and vested in Her Majesty as part of the hereditary possessions and revenues of Her Majesty.
The argument put forward for the Defendants was that the Mayor, while statutorily empowered to control PSG has no right to commence possession proceedings. This was well-summarised by the Court in the following terms:
(i) a claim for possession of land is the modern equivalent of a claim for ejectment (see the discussion in Secretary of State for the Environment v Meier  UKSC 11;  1 WLR 2780, paragraphs 6-7, 26-33, and 59-61); (ii) a claim for ejectment (as opposed to a claim for an injunction in trespass) could only be maintained by someone who could establish a legal estate in the land (see e.g. per Lord Mansfield CJ, and Aston and Willes JJ in Roe v Harvey (1769) 4 Burr 2484, 2487, 2488 and 2489 respectively, and per Bayley J in Harper v Charlesworth (1825) 4 B & C 574, 589); and (iii) it would represent an unprincipled departure, fraught with inconsistencies and unforeseeable problems and conundrums, to depart from this rule (as the Supreme Court of New South Wales decided in Georgeski v Owners Corporation  NSWSC 1096)
The Court pointed out that this argument was inconsistent with the reasoning in Manchester Airport PLC v Dutton  1 QB 133 but it was argued by the Defendant’s that that decision had been made without the benefit of the authority they cited and also that their view that possession should be bound by the same principles as ejectment was supported by the Lords in their ruling in Meier.
For the Mayor it was argued that the prior possession of the mayor was sufficient to establish his prior seisin or right to title. However, the presumption of prior seisin is rebuttable by evidence (see Asher v Whitlock (1865) LR 1 QB 1) and the presumption was clearly rebutted by the statutory basis on which the mayor controlled PSG.
The Court accepted that there was force in the Defendants’ arguments but was also of the view that the “modern law relating to possession claims should not be shackled by the arcane and archaic rules relating to ejectment, and, in particular, that it should develop and adapt to accommodate a claim by anyone entitled to use and control, effectively amounting to possession, of the land in question”. As it was the decision of the MR in Meier which most substantially supported the ejectment/possession equation the Defendant’s it was fairly fatal at this stage that the MR felt that his opinion was “concerned with a very different aspect of a possession order from that raised here”. Ultimately the Court ruled that the powers granted to the Mayor included an implied right to seek possession and that it “would be scarcely consistent with the powers and duties conferred on the Mayor … if he could be denied the ability to obtain possession of PSG.”
Considering the issue of Articles 10 and 11 it was held by the Court that this case was not similar to Kay or Doherty as no balancing act had been carried out during the passing of the legislation. It was therefore necessary to carry out this balance in this case. This largely came down to whether or not the current protesters prevented other people protesting in PSG. The Court viewed the issue on a wider basis and considered the rights of people to express themselves simply by walking on PSG. On this basis it took the view that the protesters had been protesting for 70 days and had made their point in that time and that they should now go.
The last main issue was whether the High Court should have granted an injunction when there were already criminal penalties available against trespassers on PSG. Following the decision in B & Q  AC 754, 714J it was in order to grant an injunction where it was clear that the criminal penalties available were insufficient to deter continued breaches.
Mr Haw made a separate series of arguments. He distinguished himself from the other Defendants and pointed out that his occupancy of PSG was at a much lower level. Ultimately the Court decided to remit the issue of articles 10 and 11 back to the High Court for reconsideration. This was largely on the basis that being forced to pitch his tent on the pavement (which was not the subject of these proceedings) would have a negative effect on Mr Haw’s health. The Court did express doubt as to whether he would be able to convince the High Court not to make a further order against him.
The issues of costs are not really relevant for our purposes.
In summary permission to appeal and the appeal was granted for Mr Haw and his associates (Ms Tucker, Sweet and Hall) and the matter was remitted to the High Court for reconsideration articles 10 and 11. The other appeals were dismissed.