The Mayor of London (Greater London Authority) v Haw & Ors [2011] EWHC 585 (QB)

You may remember that there has been some previous litigation (the most crucial of which we reported on here) between the Mayor of London and various persons protesting on or around Parliament Square. If you have actually seen the Square recently you will be able to observe the extensive security fencing and the remaining tents which will be enoughto tell you that the issue is not yet over and that previous victories for the Mayor have not been sufficiently crushing to the spirit of the protesters.

In summary the position when we left it was that the Court of Appeal had given orders which removed the majority of the protesters from Parliament Square Gardens, or PSG for short (the grassy bit in the middle of the Square which you can dimly see behind security fencing). However, Brian Haw, the original protester really having been there since some point in 2002, and Barbara Tucker, resident since late 2005, along with one other person were not removed from the site pending a review of the proportionality of removing them from the site as against their rights under Articles 10 and 11 of European Convention on Human Rights (the rights to freedom of expression and freedom of assembly respectively).

I should stress here that the issue of whether the protesters could encamp on the pavement is not the issue in this case (or the previous one before the Court of Appeal). The Mayor does not control the pavement, only the grass. Proceedings by Westminster City Council (who do control the pavement) to obtain an injunction against the protests continuing on the pavement are currently ongoing. The issue before the Court then was a consideration of medical evidence produced by Mr Haw that being removed from the grass onto the pavement would negatively impact on his health (he has an ongoing back condition and is beign treated for lung cancer) and his safety (due to the risk of assault by passers by and the increased risk from traffic). This would prevent him carrying out his protest effectively and could end it altogether. In addition both Mr Haw and Ms Tucker asserted that their rights under articles 10 and 11 which had been exercised for a considerable period of time should supersede the Mayor’s right to possession, especially given the very low impact their protest makes on the public. Both Defednants sought to distinguish themselves from the far larger Democracy Village protest which was effectively ended by the earlier Court of Appeal decision going so far as to call the organiser of that protest and agent provocateur employed by the Mayor to discredit them (the Court did not accept this assertion). The third Defendant did not appear and was not represented at these proceedings.

The Court first considered the views of the Court of Appeal that the Defendants would find it very hard to show that their rights under articles 10 and 11 would be violated if they were removed from PSG on the basis that they could still protest even if they then had to sleep elsewhere. The Court also noted that the medical evidence provided for Mr Haw did not support the contention that he needed to remain on the grassed area rather than the pavement due to his back problems.

In short the Court held that the possession order should be made and I can put the reasons no better than the Court did itself:

First the Defendants seek to exercise their Convention rights indefinitely in a manner and at a location of their choosing; while I acknowledge that following the letter of 7 July the First Defendant sought permission for a demonstration for a fixed duration this case has proceeded on the basis that both Defendants claim to be entitled to exercise their Convention rights indefinitely upon PSG. Second, PSG is not a suitable location for prolonged camping; such camping is incompatible with the function, lawful use and character of PSG and it is also inconsistent with the proper management of the area as a whole. Third, members of the public have been and would be precluded from using the area occupied; the area in question is the area nearest to an important entrance to the Houses of Parliament. The Defendants ought not to be permitted to occupy this area of land indefinitely when they are trespassers notwithstanding the fact that significant numbers of people may support the aims and objects of their protest. Fourth, the Defendants have exercised their Convention rights from this location since September 2009 and for a significant period of time in 2006/2007. That, on any view, amounts to a very substantial period of time during which the Defendants have exercised their rights entirely as they would wish. Fifth, there is no reasonable possibility that the Defendants would be authorised to carry on their protest in the manner in which they have done so since 2009.

A separtate argument was made that Mr Haw was disabled and that the Claimant was, in its treatment of him required to make reasonable adjustments to accomodate his disability and when applying any provision, criterion, or practice to him not to put him at a disadvantage when compared to non-disabled persons as required by s20(3) Equality Act 2010. The Court dismissed this argument very briefly on the basis that there was no identified provision, criterion, or practice by the Mayor which was putting Mr haw at any for of disadvantage.