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Queen’s Bench
Division Regina (Haw) v
Secretary of State for the Home Department and another [2005] EWHC 2061
(Admin), [2006] 2 W.L.R. 50 DATES: 2005 July 26; 29 JUDGES: Smith LJ, McCombe and Simon JJ SOLICITORS: Bindman & Partners; Treasury Solicitor;
Director of Legal Services, Metropolitan Police. Claim for judicial review July 29. SMITH 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 Police of the Metropolis under the Serious Organised [*52] 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 which legislates on a number of different topics. The
provisions with which the court is concerned in this case are to be found at
sections 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 in so
far 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 [*53] 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 section 132 are not germane to this
application, save for subsections (7)(d) and (7)(e). They provide that in this
section and in sections 133 to 136: “(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 six 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 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 section 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 sections 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
section 178 would come into force on such day as the Secretary of State may by
order appoint. [*54] 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
Secretary of State, asking when sections 132 to 138 would come into force, and
expressing the opinion that section 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 section 178. However,
the letter of that date did not comment on the suggestion that section 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 No 1, Transitional and
Transitory Provisions) Order 2005 lies at the heart of this application. The
Preamble states that the Order is made under sections 178(8), (9) and (10) of
the Act. Article 3, paragraph 1 of the Order lists a number of provisions
which, subject to paragraphs (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 added.) 19 Then, as if further to underline the point that the provisions
of section 133 were to apply to demonstrations that were starting or continuing
on or after 1 August 2005, paragraph (5), to which paragraph 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. It provides: “(1) 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 section 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 [*55] 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, counsel for the claimant,
submitted that section 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 section 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 article 4(2) of the commencement order were inserted
into section 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 section 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
section 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 section 178 with his wider powers under section
173. That section provided: “(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).” [*56] 27 Thus section 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 section 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 section 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 section 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 section 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 Guest in Utah Construction and Engineering Pty Ltd v Pataky [1966] AC 629, 640
where Lord Guest quoted with approval from the Australian High Court decision
of Shanahan v Scott (1956) 96 CLR 245, 250, 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 section 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 section 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 section 173. However, she
contended that section 178 was sufficient for the [*57] 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 p Britnell [1991] 1 WLR 198, 202
where Lord Keith said: “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 section 178 and 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
was apparent from section 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 [*58] 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 section 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, 640, Lord Browne-Wilkinson
said: “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 section 132
gave rise to any ambiguity, obscurity or absurdity. 38 Mr Clemens, for the Commissioner of Police of the Metropolis,
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 the Environment,
Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349, 398,
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 [*59] 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 sections 132 to 138. 40 In introducing the amendment of 7 February 2005, as recorded at
Hansard (HC Debates), col 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. Honourable 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 honourable 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, 4th ed (2002), p
810, section 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] 1 WLR 1204,
1206-1207, where he said: “Although 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 past 30 years one cannot fail to
be struck by the evidence of a [*60] trend away from the purely literal
towards the purposive construction of statutory provisions.’
“ 44 The passage from Bennioncontinues: “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, 105.) 45 The passage from Bennion continues:
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 section 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.
[*61] 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 v First Choice Distribution [2000] 1 WLR 586. 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 Jones v Wrotham Park
Settled Estates [1980] AC 74 and the three conditions that must be satisfied
before Parliament will undertake such a liberal construction, Lord Nicholls of
Birkenhead said, at p 592: “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 Ltd v Schindler [1977] Ch 1, 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 section
132(1), read together with article 4(2) of the commencement order, applied to
Mr Haw. The commencement order was validly made under section 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 that 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
submissions. He did, however, accept that, when read alone, section 132(1) did
not apply to Mr Haw. He adopted Miss Lieven’s submission that the
commencement order was validly made under section 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 section 132(1) were clear. As Mr
Clemens had [*62] 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 section 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
section 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
Settled Estates [1980] AC 74, Mr Drabble submitted that that would be quite
inappropriate in a penal statute. As Simon Brown LJ had said in R v Bristol
Justices, Ex p E [1999] 1 WLR 390, 397E: “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 it 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 section 132 was ultra vires. There was no
power in section 178 to make provisions which amended or modified the Act. Miss
Lieven’s reliance on dicta in R v Secretary of State for Social
Security, Ex p Britnell [1991] 1 WLR 198 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, section 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 section 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 section
178(10). However, I do think that I can recognise on which side of the boundary
this particular provision falls. 55 In my judgment, article 4(2) of this Order, which alters the
effect of section 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 [*63] 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 article 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 section 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 section 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 section 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
section 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. [*64] MCCOMBE J 59 The factor that weighs with me in this case is that section 132
creates a criminal offence. It is necessary to inquire 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 section 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 section 132 should somehow be affected by the power to makes
transitional or “transitory” (sic) provisions in section
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 section 132. An express power of amendment, no doubt itself
having limited bounds, is created by section 173 of the Act. However, the order
now relied upon was not made under that section, but under sections 178(7) to
(10) of the Act and, for present purposes, especially subsection 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 section 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
section 173, but only on section 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 [*65] 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, 244 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 words [of
the Act] their natural meaning, not, perhaps, in war time leaning towards
liberty, but following the dictum of Pollock CB in Bowditch v Balchin [1850] 5 Ex 378, cited
with approval by my noble and learned friend Lord Wright in Barnard v Gorman [1941] AC 378, 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, 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 subject and any attempted encroachments on his liberty by the
executive, alert to see that any coercive action is justified in 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, 279,
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 this kind of
legislation would know whom to blame. But if the words of the Act are not
crystal clear and Parliament has 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. [*66] 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 section 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 section 173, upon which
a further resolution of each House would be required. In the light of what I
regard as the clear wording of section 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 section 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 Smith LJ, I do not
consider that the power conferred by section 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 section 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 posed a threat to democratic
freedom. 72 The way in which the relevant acts are to be regulated in
sections 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 withhold authorisation
under section 134 would be subject to judicial [*67] 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 sections 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 section 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 section 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 section 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 One of the objections raised against this construction by Mr
Drabble, counsel for the claimant, is that it gives section 132 retrospective
effect. He referred us to the effect of Plewa v Chief Adjudication Officer [1995] 1 AC 249, 256
where Lord Woolf quoted with approval the advice from the Privy Council in Yew
Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553, 558: “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 [*68] 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 sections 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 overriding
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 section 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. Lord Browne-Wilkinson set out the principle in a passage with
which the majority of the House agreed, at p 634 : “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 640. 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 at Hansard (HC Debates), col 1295:
[*69] “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 past few years could
be taken on by other individuals as well, and we need to deal with that
…” 88 In my view, Miss Lieven 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
section 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 section 132 of the Act. The Serious
Organised Crime and Police Act 2005 (Commencement No 1, Transitional and
Transitory Provisions) Order 2005 set out the Secretary of State’s
exercise of powers under section 178 of the Act. Article 4(1) of the Order
brings section 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 section 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 Smith LJ and McCombe J.
However, for the reasons I have indicated, I would refuse the application. Order accordingly. |