Barda, R (on the application of) v Mayor of London on Behalf of the Greater London Authority [2015] EWHC 3584 (Admin)

Case No CO/272/2015[2015] EWHC 3584 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/12/2015
Before
MR JUSTICE GARNHAM
Between
The Queen on the application of BardaClaimantMayor of London on behalf of the Greater London AuthorityDefendant
Marie Demetriou QC and Malcolm Birdling (instructed by Liberty) for ClaimantJonathan Swift QC and Gerard Clarke (instructed by Transport for London) for the DefendantHearing Hearing dates: 25 th– 26 th November
JudgmentMr Justice Garnham :Introduction
[1]The exercise of the rights set out in Articles 10 and 11 of the ECHR, rights to freedom of expression and of assembly and association, is essential to any healthy democracy. But those rights are not absolute. Like much of the Convention, there is inherent in them a search for a balance between the rights of the individual and the rights of the community. In a democracy, those whose role it is to manage public demonstrations have responsibilities and entitlements, the exercise of which requires respect for the principles of the Convention and for the position of those who wish to demonstrate and protest. Sometimes, those who take part in demonstrations have responsibilities too.[2]The working out of those rights and responsibilities in the context of a series of demonstrations in Parliament Square Garden (or “PSG”) falls for consideration in this case. The Claimant, Mr George Barda, is a member of a movement called “Occupy Democracy”. In 2014, a number of those associated with Occupy Democracy, including the Claimant, planned and organised a series of monthly demonstrations in PSG. Mr Barda challenges the decision of the Greater London Authority ("GLA") to erect and maintain fencing on and around PSG which, he says, interfered unjustifiably with those demonstrations and his exercise of his Convention rights.[3]As with any case about Articles 10 and 11, the detailed factual picture is important and I set it out below, in rather greater detail than is sometimes necessary in judicial review cases. But first I set out the relevant statutory provisions and Byelaws, and the provisions of the Convention. I then summarise the competing arguments of the parties. Finally I turn to discuss the merits of the claim under the following headings; the vires of the Byelaws, the alleged interference with Convention rights, and the justification for the alleged interference.

The Statutes, Byelaws and Convention Provisions

[4]Section 384 of the Greater London Authority Act 1999 (“the GLAA”) gives the care and control of PSG to the GLA. It provides, so far as is material as follows:
“384. (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… (3) The care, control, management and regulation of the central garden of Parliament Square shall be functions of the Authority. (4) It shall be the duty of the Authority well and sufficiently to light, cleanse, water, pave, repair and keep in good order and condition the central garden of Parliament Square.”
[5]Section 385 gives the GLA power to make and enforce Byelaws governing PSG:
“385. (1) The Authority may make and enforce such Byelaws to be observed by persons using Trafalgar Square or Parliament Square Garden as the Authority considers necessary for securing the proper management of those Squares and the preservation of order and the prevention of abuses there... (3) A person who contravenes or fails to comply with any byelaw under this section shall be guilty of an offence and liable on summary conviction – (a) if the byelaw is a trading byelaw, to a fine not exceeding level 3 on the standard scale, or (b) in any other case, to a fine not exceeding level 1 on the standard scale. (4) The provision that may be made in Byelaws under this section includes provision for or in connection with – (b) the seizure, retention or disposal of any property in connection with any contravention of or failure to comply with any byelaw under this section... (6A) Byelaws under this section may not be made as respects Parliament Square Garden for the purpose of prohibiting a particular activity so far as that activity is a prohibited activity for the purposes of Part 3 of the Police Reform and Social Responsibility Act 2011 (see section 143(2) of that Act). (7) In this section – “Parliament Square Garden” means the central garden of Parliament Square, within the meaning of section 384 above.”
[6]Pursuant to this power, the GLA has made the Parliament Square Gardens Byelaws 2012. These provide that:
“3. No person shall within [Parliament Square Gardens] … fail to comply with a reasonable direction given by an authorise person to leave the Square;… obstruct an authorised officer in performance of his duties. 5. Unless acting in accordance with permission given in writing by the Mayor…no person shall within the Square… (g) erect… any structure or means of enclosure on any part of the Square; … (j) organise or take part in any assembly, display, performance, representation, parade, procession, review or theatrical event.”
[7]The Police Reform and Social Responsibility Act 2011 (hereafter the “PRSRA”) prohibits certain activities in PSG. Section 143 provides as follows:
“(1) A constable or authorised officer who has reasonable grounds for believing that a person is doing, or is about to do, a prohibited activity may direct the person – (a) to cease doing that activity, or (b) (as the case may be) not to start doing that activity. (2) For the purposes of this Part, a “prohibited activity” is any of the following – (a) operating any amplified noise equipment in the controlled area of Parliament Square or in the Palace of Westminster controlled area; (b) erecting or keeping erected in the controlled area of Parliament Square – (i) any tent, or (ii) any other structure that is designed, or adapted, (solely or mainly) for the purpose of facilitating sleeping or staying in a place for any period; (c) using any tent or other such structure in the controlled area of Parliament Square for the purpose of sleeping or staying in that area; (d) placing or keeping in place in the controlled area of Parliament Square any sleeping equipment with a view to its use (whether or not by the person placing it or keeping it in place) for the purpose of sleeping overnight in that area; (e) using any sleeping equipment in the controlled area of Parliament Square for the purpose of sleeping overnight in that area... (7) In this section “sleeping equipment” means any sleeping bag, mattress or other similar item designed, or adapted, (solely or mainly) for the purpose of facilitating sleeping in a place. (8) A person who fails without reasonable excuse to comply with a direction under subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale.”
[8]Section 146 makes additional powers available to a Court on sentencing an individual for a breach of section 143:
“(1) The court may do either or both of the following on the conviction of a person (“P”) of an offence under section 143 – (a) make an order providing for the forfeiture of any item of a kind mentioned in subsection (2) of that section that was used in the commission of the offence; (b) make such other order as the court considers appropriate for the purpose of preventing P from engaging in any prohibited activity in a relevant area . (2) An order under subsection (1)(b) may (in particular) require P not to enter a relevant area for such period as may be specified in the order. (2A) In this section “relevant area” means an area consisting of either or both of the following areas – (a) the controlled area of Parliament Square, and (b) the Palace of Westminster controlled area. (3) Power of the court to make an order under this section is in addition to the court's power to impose a fine under section 143(8).”
[9]Finally, it is necessary to set out the Convention Articles around which most of the argument in this case centred. Articles l0 and 11 of the Convention provide as follows:
“ARTICLE 10 Freedom of expression 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. ARTICLE 11 Freedom of assembly and association 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
Freedom of expression ARTICLE 11 Freedom of assembly and association The Facts Occupy’s Plans and Intentions

The Facts

[10]Occupy is a protest movement concerned with issues of social equality and injustice, in particular in relation to housing and the NHS. The Claimant, Mr Barda, describes the Occupy movement in the following way in his first witness statement:
“I have seen numerous one day protests and marches ignored by almost everyone in power, the best example being the protest against the Iraq War. Occupy, on the other hand, is both difficult to ignore and also opens up democratic space where people can demonstrate shared concern and engage in discussion about what is to be done.”
[11]He describes the genesis of the Occupy movement in the protest movement in New York called “Occupy Wall Street”. He describes how he attended the occupation of St Paul’s Cathedral churchyard in 2011 and then explains the origins of “Occupy Democracy”. He says “we wanted to move from the city to Parliament to raise other concerns regarding inequality, particularly in relation to housing and the NHS, and to move to where the injustice is facilitated – i.e. Parliament.” He explains that weekly meetings were held from May 2014 onwards, in the course of which the decision was taken to “do something in Parliament Square in October.”[12]Occupy Democracy did not apply for authorisation to hold what Mr Barda calls “the October, November or December occupations”. He says the Police contacted the movement’s website asking them to get in touch. Although the message was picked up, no one replied to it; “Personally” says Mr Barda, “I feel that the right to protest is compromised if you have to ask permission for it in advance”. The plan devised by Occupy was to hold monthly demonstrations in PSG from October 2014 until the General Election in May 2015. Their aim was to draw attention to their concerns regarding the state of democracy in the UK and what they saw as the consequential problems of social injustice.[13]The Occupy website publicised the “opening event and overnight vigil” which was to be held on 17th October 2014. The website entry reads:
“the occupation starts at 5pm on Friday 17th October with an overnight vigil to mark the UN Day for the Eradication of Poverty. This will be a candle light event with speakers and acoustic entertainment where we will stand in solidarity with the victims of the widening wealth inequality that we see in the UK today and as a result of our broken democracy. We will also stand in solidarity with the victims of our foreign policy which impoverishes and exploits many parts of the world through economic, diplomatic and military means.”
[14]The website goes on “bring a candle in a jam jar and, in case of rain, an umbrella… As a gesture of solidarity with those suffering homelessness we feel that we should not have shelters in the Square that night.” The website referred to a “nine day occupation at Parliament Square” and to an entry on the Twitter website (a “tweet”) that reads “#OccupyDemocracy to reoccupy Parliament Square.”[15]A subsequent page on the website provides the programme for 18th October. It indicates that there will be talks from David Graeber of Occupy Wall Street, Donnachadh McCarthy, former deputy chair of the Liberal Democrats, John McDonnell MP, Natalie Bennett MP and the Claimant himself. The schedule for 19 October provides details of various workshops, entertainment and speeches which were to take place; there were similar schedules for events each day until Sunday 26 October 2015, just as there were for later protests.[16]Mr Christopher Harris is employed by the Greater London Authority as Support Services Manager. He is responsible for the care, control and management of PSG. He also has responsibility for security and enforcement on the GLA controlled land at PSG. He describes PSG in this way:
“PSG is a highly important space at the heart of London and our parliamentary democracy, an area of significance, historic and symbolic value worldwide. It is surrounded by iconic (mostly listed) buildings and is an important part of the setting of those nationally important buildings.”
[17]He goes on to explain that PSG is also used for demonstrations and public gatherings. He says that he is one of the “authorised officers” referred to in the Byelaws. He explains that the GLA has in place a standing enforcement strategy, known as the “Gold Strategy” by reference to which enforcement action in PSG is managed. The Gold Strategy provides as follows:
“This Gold Strategy is the agreed starting point for managing any enforcement action on Trafalgar Square and Parliament Square Gardens, any changes to reflect different circumstances will be communicated at the time. The standing Gold Strategy is; • To prevent breaches of the Trafalgar Square Byelaws and Parliament Square Gardens Byelaws • To advise, warn and then identify persistent byelaw offenders (i.e. those who do not heed warnings) with a view to prosecution, taking a measured and proportionate approach. • To protect the rights of others to go about their lawful enjoyment and use of the Square, in particular; ◦ To ensure that authorised events and works can take place unhindered and vacant possession is given to event organisers and contractors ◦ To ensure that members of the public can enjoy the use of the Square, free from interference by unauthorised activities ◦ That GLA maintains possession of the Gardens and any trespassers are removed lawfully • To uphold Section 141 to 149 of Part 3 of the Police Reform and Social Responsibility Act 2011 on Parliament Square gardens, in relation to camping, sleeping equipment and the use of amplified noise equipment. Enforcement of the Act will take place in accordance with the Enforcement Protocol between the Metropolitan Police Service, Westminster City Council and the Greater London Authority and the Operational Framework signed on 19th December 2011.”
[18]Mr Harris describes in his witness statement how the GLA first became aware of the plans for protest in PSG on 16th September 2014 through information published on social media. Mr Harris observes that no permission had been sought for any such activity in PSG.[19]On 10th October 2014 Mr Harris sought a quotation for the supply, installation and removal of “Heras” fencing around the GLA controlled land on PSG. Heras fencing is metal mesh fencing linked together by metal clamps and held in blocks. This request for quotation was part of what Mr Harris called his “contingency planning for the planned protest”. He explained in a subsequent email that he was considering fencing off PSG. He says that this option was one of a number being considered in deciding how best to deal with the planned protest.[20]A series of briefing notes were prepared by the GLA relating to the planned Occupy Democracy demonstrations between October 2014 and May 2015. They provide a summary of the information available to the GLA about the proposed protests shortly before they took place and include descriptions of response plans prepared in consultation with the police. The briefing notes dated 15th October 2014 is entitled “Unauthorised Tented Protest on Parliament Square Gardens by the Occupy Movement on Friday 17th October through to Sunday 26th October”. The note includes the following:
“the mass occupation by tents on Parliament Square Gardens will be the first real test of Part 3 of the Police Reform and Social Responsibility (PRSR) Act 2010. Failure to enforce will undermine the credibility of the PRSR Act and will probably result in criticism from the Government… there is no current intelligence to suggest any planned disorder. Occupy engage in direct action but it is non violent in nature. Their activities do however cause disruption.”
[21]The response plan set out in the note indicates that the GLA and the Police had agreed that the grass areas would be closed to the public on 15th October using low level rope and posts; officers known as “Heritage Wardens”, supported by the Police, would act against any attempt to pitch tents. “If this situation escalates and there is a mass occupation or public order offences are committed then the Police will take the lead on enforcement. If there is a mass occupation, on Police advice, once the square has been cleared it will be fenced off and supported by security officers. The fencing will be removed once the threat of reoccupation has passed which means it may be in place for seven days”.[22]It is apparent from that briefing note that the possibility of erecting fencing was considered from the beginning but rejected initially in preference for low level rope and posts. The intention, according to Mr Harris, was to protect the grass to allow it to recover. It was hoped, he says, that the protesters would respect the low level fencing.

The October Event

[23]Mr Barda says in his statement that he was present from the start of the protest on the 17October 2014. He says that there were probably 200 people present that day. He was aware that the central grassed area of the Square had been roped off and records seeing signs that read “Closed for Repair” or “Please Keep Off the Grass”. He explains that the demonstration on 17 October began at the back of the Square and not on the grassed area. However he says that subsequently the demonstrators moved onto the grassed area, “in the firm belief that our right to assemble in that most relevant of locations was more important than any consideration of the state of the grass”. He describes the presence of police and heritage wardens in the facility who, he said, told the demonstrators not to go onto the Square. He says that the protesters were not able to sleep that first night because the police threatened to remove their sleeping bags if they fell asleep.[24]Mr Barda describes how the Occupy protest proceeded. He says that it was important for them to be as “peaceful, inclusive and accessible as possible”. People were not encouraged to drink and drug taking was disapproved of. He says that the protesters made use of lavatories in the buildings around Parliament Square, notably Methodist Central Hall.[25]Mr Barda says that by the time he arrived at PSG on the second day of the demonstration, Saturday 18October, the Occupy Democracy demonstrators had been forced off the grassed area and were standing on the pavement. He explains how later in the day protesters returned to the grassed area and a number of the planned events took place on the grass. These included speeches from Mr Russell Brand, Natalie Bennett, the leader of the Green Party and from Mr Barda himself. The following morning he says, Occupy “continued the programme as planned”. That evening police officers from the Territorial Support Group attended and began dragging protesters off tarpaulins on which they were sitting. The protesters were told that they were prohibited from using sleeping equipment.[26]Mr Barda went home for the night but returned the following day, 20October. He was told there had been a further incident with tarpaulins overnight which led to a number of people being arrested. Again he explains that the protesters continued with their programme as planned during that day.[27]Mr Harris describes the same events in his statement. He says that initially, on 17October, the protesters respected the fact that the grassed area was cordoned off by rope and post fencing. Towards the end of the day, however, a number of protesters crossed over the rope and stood on the closed off grassed area.[28]Mr Harris says that “the situation escalated during Saturday 18October. A number of Occupy protesters and others moved onto the fenced off area.” He described the situation on 19October in an email sent at 9.48 that day. The email reads as follows:
“During the day more protesters joined those on PSG and started to establish an encampment. Structures of sleeping equipment started to appear… It was decided to go in again and seize items covered by PRSR Act.”
[29]By the following morning, 20 October, some 75 protesters remained on the grass, according to Mr Harris. He says there were a number of breaches of the PRSR Act overnight and the Police made multiple arrests. In the light of those developments Mr Harris decided to fence off the main grassed area of PSG with Heras fencing. That decision is explained in an email timed at 8.52 on 21 October. It reads:
“Significant number of breaches of PRSR last night. c.20 people on the Square. Enforcement to clear PSG will take place shortly… Protesters continue to be non-compliant and the Square will now be fenced using Heras fencing.”
[30]In his witness statement he explains that his aim in introducing the fencing was to “reinforce the message that this area was closed and to uphold the Byelaws and PRSRA… initially I was satisfied that low level rope and post fencing originally erected to protect the grass would be appropriate; however in light of the developments and in particular repeated breaches of the Byelaws and PRSRA, the situation reached a point where in my judgement there was no other option than to clear the grassed area of PSG and fence it off… to prevent reoccupation and further offences being committed.”[31]Mr Barda also describes the construction of the fence in his witness statement. He confirms that a map prepared by the GLA and entitled “21st October 2014 Configuration (in yellow)” accurately records the fencing position. He points out that the inclusion of the area around the Winston Churchill statue meant “we couldn’t even assemble on that part of the pavement, which is closest to Parliament”. He says that if the objective was to prevent harm to damaged grass, Occupy “would have been happy to restrict our demonstration to the part of the central grassed area” where the grass was in good condition. He says that there was “no opportunity for constructive negotiation”. He explains that he and another demonstrator managed to get onto the central grassed area while the fence was being constructed. After it was constructed, he explains, one demonstrator climbed the fence and climbed onto the Winston Churchill statue where he remained for some 26 hours.[32]The following day, according to Mr Barda, probably saw the largest attendance of demonstrators that week. He says that that was the themed day for the environment and hundreds of people attended. The following day, he says, Occupy Democracy remained in the smaller grassed area of the north edge of the Square while the Police patrolled the fenced off area. He says he and his colleagues were “very frustrated at having been forced out of the central area onto the inappropriate and inadequate smaller area of grass”. Protesters responded by forming a human ring around Parliament Square, encircling “the space of exclusion”. Thereafter they returned to the smaller area on the north of the Square.[33]The following day the planned programme was continued, although it was confined to the smaller grassed area. Sunday 26 October was the last day of the demonstration “and it passed off without any particular conflict, and we had a closing ceremony as planned before we all went home”.[34]Mr Harris describes a number of further incidents on PSG between 22 and 26 October 2014. He recorded that the Heras fencing around PSG had been pushed over. Then on the 27 October:
“I took the decision additionally to fence off the raised grass bed on the north side of the Square to allow the area to be inspected, any damage repair and to prevent a reoccupation.”

The November 2014 Protests

[35]Towards the end of October GLA became aware via social media, of plans for what was called the “Million Mask March” promoted by a group calling itself “Anonymous”. PSG remained closed during that event so as to prevent occupation. On 19 November some 400 protesters entered PSG, overwhelming the heritage wardens who were seeking to protect it. The fence was pulled down and police assistance was sought. The fencing was subsequently replaced. During the course of these events smoke grenades were thrown onto Parliament Square. It is important to note, however, that these events were not part of the programme of protest arranged by Occupy Democracy.[36]The next Occupy Democracy event took place over the weekend of 21 – 23November. Again no application for permission was made to the GLA for this event. At that date most of the PSG remained fenced off. During the weekend, according to Mr Harris “a number of attempts to enter the closed off area of PSG” were made “although the main body of protesters located themselves in front of the Supreme Court”.[37]The majority of the metal fencing was removed on 29th November by the GLA because they believed that the threat of further occupation had passed. Low level rope and posts arrangements were reinstalled.[38]When Mr Barda arrived for the planned demonstration on 21st November he found that “the fencing was still shutting off the whole island of Parliament Square, including the area we had used in October”. He described this as “extremely frustrating meaning that the protesters had no space at all on the central island of Parliament Square on which to demonstrate”. Instead 150-200 were strung out along the pavement. Eventually the protesters decided to assemble in front of the Supreme Court. Mr Barda describes this location as being “far from ideal, being on the opposite side of the Square from Parliament and much less prominent in terms of our ability to communicate to the passing public, but it was the best place we could find in the circumstances”. Mr Barda says that nonetheless protesters were able to continue with their programme:
“We spent the days having assemblies and hearing from prominent speakers”
.

The December and January Protests

[39]A further protest was staged by Occupy on 20th and 21st December 2014. In response, according to Mr Harris, “low level pedestrian barriers were deployed” around the majority of the GLA controlled area of PSG. This is a third type of barrier, distinct from the high Heras fencing and the low post and rope arrangement. He says the decision to use these low level barriers was taken “in order to reduce costs and because they are more robust than the higher fences, albeit easier to climb over”.[40]Mr Barda describes the fencing in December in similar terms. He says that it was less high than that used in October and November and was instead about “waist height”. Protesters gathered in the space in front of the Winston Churchill statue and it was there that they spent most of the weekend. He describes the space in the following terms:
“It was a very small space left available by the fact that the fencing surrounded the statue but did not take up the whole of the pavement.”
[41]He describes his reaction to these changes in the following way:
“We felt that at the previous demonstration in November we had allowed ourselves to be sidelined in the space outside the Supreme Court. While the space we were in in December was still entirely inappropriate in terms of space, proximity to the road and traffic noise, we were at least opposite Parliament in a more prominent space than in November. It was impossible, in that area, to create the kind of space that our demonstrations are aimed at creating: a space in which anyone would feel welcome to join and participate in the discussions and debates that Occupy is about.”
[42]Mr Barda says that at one point on the 20th December the protesters lifted the fencing apart and entered onto the central grassed area of Parliament Square. They sat on the central grassed area for a short period until the police indicated they would arrest them. They then returned to the area near the Winston Churchill statue. He says “we continued the planned programme, as best we could in the space available on Sunday 21st December”.[43]A further demonstration was planned on 24th January, again no permission was sought in advance. The GLA briefing document for that event indicates that the Authority understood that this protest would be limited in time so that it ran from 15:00 to 20:00 hours. The briefing notes that the numbers attending the events were declining, that there was less risk of damage. In those circumstances, it was decided not to use metal fencing but to revert to the rope and posts previously deployed. Mr Harris says that the protesters ignored the rope and posts, and at one stage some 200-300 people occupied the main grassed area. Attempts to enforce the Byelaws were unsuccessful but the protesters left at around 9pm.[44]Mr Harris did not attend the demonstration in January. However Mr Matthew Varnham, a “legal observer”, provided two statements in support of the Claimant’s case. He describes in his second statement how he attended on 24th January 2015. He says “the Square was roped off with signs on the rope saying the Square was temporarily closed and asking people to ‘Please Keep Off’”. He describes how, at about 15:20, some 100-150 people including members of Occupy Democracy moved onto the central grassed area of Parliament Square. He describes a conversation with a police inspector who indicated that he would not be taking enforcement action to remove the protesters from the grass unless there were breaches of the PRSRA. He says:
“The demonstration continues as planned. It concluded with a general assembly meeting after which the demonstrators spent a few minutes clearing up their tarpaulins and posters. They left the Square at around 20:15.”
[45]He describes similar events, including a short term occupation of the central grassed area, occurring on 25th January.

Protests in February and March 2015

[46]There were social media advertisements for further demonstrations in February and March 2015. No permission was sought for either. Again the grassed areas remained closed off by rope and posts.[47]Mr Harris described how, on 14 February, a number of Occupy protesters entered PSG in the area around the Winston Churchill statue. At about 6pm the protesters crossed the rope and post fencing to access the main grassed areas. A maximum of 150 people took up this position. Attempts to enforce the Byelaws were unsuccessful and according to Mr Harris some of the protesters “became aggressive and confrontational”. A number of arrests were made. There was a similar pattern of protests on 15 February, although there was only a few minor incursions onto the grass.[48]Mr Barda describes the protesters gathering around the Winston Churchill statue on 14 February before climbing the rope and post fencing “in order to use the central grassed area of Parliament Square for our assembly”. He says the protesters were “constantly interrupted and hassled by the heritage wardens”, actions which he describes as “extremely frustrating… when trying to hold serious and open discussion regarding issues of fundamental democratic importance”. He says that most of the Sunday was spent near the Winston Churchill statue other than a period of about half an hour when protesters entered the grassed area.[49]Again, the GLA learned of the planned occupation of PSG on 7 March 2015 on social media. Again, no permission was sought for this protest. Again, the grassed areas remained closed off, marked by the low level rope and post fencing. Again, some protesters crossed the rope and post barrier. At one stage there was some 200 people on the closed off grass area. This demonstration was timed to coincide with a march organised by the Campaign Against Climate Change. At some point, according to Mr Harris, smoke grenades were thrown onto the grass at PSG. He also says that “what appeared to be a high powered marine flare was ignited. The use of pyrotechnics presented a serious safety hazard to all those in the vicinity”. Mr Barda says that the use of pyrotechnics was “certainly not part of Occupy Democracy’s planned programme as we try to keep our activities as safe, accessible and welcoming as possible”.

May 2015

[50]In April 2015 Mr Harris became aware through social media of plans by Occupy Democracy to stage protests in PSG for 10 days from 1st May 2015. The GLA’s solicitors contacted those acting for Mr Barda to remind him of the need to make an application for permission. This time, an application was submitted, with Mr Barda given as the contact name. The application was refused but the protest went ahead nonetheless.[51]Mr Harris described how some nine protesters (including Mr Barda) arrived on 30 April; (that must be an error; the protest began on 1 May 2015). A number climbed onto the statues in the Square, including Mr Barda. Over the following days Occupy Democracy engaged in various activities on PSG. Tents, tarpaulins and amplification equipment was used. A number of arrests were made for obstruction and assault.[52]On 6th May a VE Day event was planned and low level pedestrian barriers were installed for that purpose.[53]Mr Barda describes the circumstances in which he came to make an application for permission to hold the May demonstration. He says Occupy was “desperate to find a way to make sure that the demonstration could go ahead”. He says that although he believed that the right to political protest is compromised if permission had to be obtained in advance, he decided to “engage constructively with the Defendant” and made the application. He sets out in some detail his objections to the information he was required to provide, in particular he objected to the fact that, if the application was accepted, Occupy Democracy would be unable subsequently to change “the activity plan”. He says “from a principle point of view, this is an extremely oppressive and chilling condition to place on political protest”. He also raised objections about providing risk assessments, and to the requirement that the demonstration should not consist of “anything which might reasonably cause offence”.[54]Mr Barda expresses his pleasure that the rope and post fencing was not in place for the May protest. He says this “enabled us to create a much more welcoming, open and accessible space for our demonstration, values which are at the core of the Occupy movement”. He says Occupy were able “to carry out our programme as planned from 1st – 10th May”. He says that Occupy “moved away from the central grassed area of the Square in preparation for the VE Day celebrations”.

Public Liability Insurance

[55]The Claimant also relies on a statement from Ms Holly Williams, a trainee solicitor assisting the solicitor for the Claimant. Her statement addresses the requirement in the application form for organisers to obtain public liability insurance of at least £5 million. She explains how she contacted a number of insurers in preparation for the hearing of the Judicial Review application. She says nine stated outright that they would not be able to provide such insurance to a group like Occupy Democracy, the remaining two were unable to provide even a rough quotation. I will return to this issue subsequently.[56]Mr Harris responds to the question of public liability insurance in a statement dated 12 November 2015. He produces a schedule of rallies that have been authorised in PSG between March 2014 and July 2015. They include a number of political demonstrations; there were, for example, two by the organisation called “Stop the War”. For each, public insurance was obtained. Mr Swift submits that Mr Harris’ evidence demonstrates that insurance could be obtained for political events, by individuals as well as organisations, and at reasonable cost.

Observations on the Factual History

[57]The decision under challenge in these proceedings is described in these terms in the claim form:
“The decision to erect and maintain fencing around Parliament Square Gardens from 21st October 2014 onwards.”
[58]The focus of my consideration, therefore, has to be the installation of fencing. It is to be noted that there were three types of fencing employed by GLA; the Heras fencing which stands perhaps six feet tall, the low level barriers, which stand about waist height, and the rope and post barriers which can easily be stepped over.[59]As will be apparent from the discussion of the evidence above, the fencing was not in place continuously. From 15th October the post and ropes were in place; on 21st October the Heras fencing was erected and on 27th October the area encompassed by the Heras fencing was extended. There were temporary barriers erected by the police on 5th and 6th November and high metal fencing was erected some time prior to 20November 2014. This encompassed the majority of PSG. On 29th November the Heras fencing was removed and replaced with posts and ropes. On 20th December the waist high metal barriers were erected and they remained in place until the following day. On 22nd December rope and posts were reinstalled. They remained in place until 12th March 2015 when they were replaced by Heras fencing which was itself removed two days later. There was no fencing at all on 14th March 2015.[60]It will be apparent from the details just set out that the events of May 2015 are not directly relevant to this challenge; by then there was no fencing in PSG. Furthermore, in my judgment, there is no substantial grounds for complaint as regards the events of January, February or March. By then there was no fencing in place; there was simply posts and ropes which the Claimant and Occupy disregarded. It cannot be said therefore that they constituted an “interference” any more than the post and ropes on October 17, about which no complaint is pursued. Whilst the events of 2015, therefore, might provide some colour to the description of Occupy Democracy’s protests, they are not central to the issues I have to decide.[61]What is clear from the evidence is that the extent and nature of the fencing of PSG varied at different times during the period from October to December 2014. Those changes reflected the changing assessment by GLA of the risks posed by the Occupy demonstrations, as they saw them. When the fencing was at its most extensive, it effectively sealed off PSG from the Claimant and his colleagues, and the rest of the public. In consequence, Occupy Democracy were left to conduct their protests either from the pavements around the Square or on the wider expanse of pavement in front of the Supreme Court building. Nonetheless they were able to continue, in this restricted area, with their programme of events.[62]It is against that evidence and those conclusions on the facts that I now turn to consider the merits of this challenge.

The Parties’ Arguments

[63]I have been greatly assisted in this case by the submissions of Counsel for both parties, Marie Demetriou QC and Malcolm Birdling for the Claimant and Jonathan Swift QC and Gerard Clarke for the Defendant. The skeleton arguments of both parties were particularly helpful.[64]Ms Demetriou emphasises that these were peaceful protests. The intention was that each should last a number of days and would consist not of marching but of talks, debates and workshops. Ms Demetriou says a critical element of the protests was the fact that they took place in front of the Houses of Parliament.[65]The Claimant contends that the fencing decision was unlawful because it was ultra vires the GLA’s statutory powers of management of PSG, or alternatively was an improper exercise of those powers. She says that the fencing decisions infringed the Claimant’s right under Articles 10 and 11 and could not be justified. She says the real motive behind the decision to fence was to uphold the Byelaws and the PRSRA and that is not a purpose authorised by the GLAA.[66]Ms Demetriou argues that the Claimant’s rights under the Convention were “interfered with” by the fencing decision and that the interference was unjustified. She says in her skeleton argument “not only was the GLA’s decision making afflicted by lack of legal certainty, and by confusion as to the legitimate aim pursued, but moreover – and critically – the fencing decision was… disproportionate”. She said in oral submissions that the “centre of gravity” of her case is that the decisions were disproportionate.[67]In my view Ms Demetriou was right to characterise proportionality as being at the heart of her challenge. During the course of her oral arguments Ms Demetriou recast her vires challenge somewhat and it ended up with the submission that the statutory scheme did not authorise action which breaches the Convention.[68]Ms Demetriou said that there had plainly been interference with the Claimant’s Convention rights and that the real question was whether that could be justified. She says that the interference was substantial because most of PSG was fenced off leaving little space for the Occupy Democracy events. She said that had a serious impact on the demonstrations and made it difficult in particular to conduct the planned workshops.[69]Ms Demetriou contends that there is no proper justification for this interference. She says any pressing social need to regulate the demonstrations could have been achieved by less restrictive means and she highlights the way in which the May demonstration was managed. She says that a similar approach could have been taken throughout. She says that although there was no blanket ban on protesting, the fencing constituted a form of prior restraint. The fencing was put up in advance of the demonstration and that effectively prevented the protest taking place in Parliament Square as had been planned.[70]The Claimant maintained that none of the suggested justifications were made out. Basing herself on the judgment of the Court of Appeal in Mayor of London v Hall [2011] 1 WLR 504, Ms Demetriou contended that, even if (which was not conceded) the demonstrations were unlawful and the demonstrators were trespassing on PSG because their activities had not been authorised, that does not answer the question whether Articles 10 and 11 were infringed. She said the question of authorisation is not exhaustive of the Article 10 and 11 questions. She took me to the European Court of Human Rights decision in Mammadov v Azerbaijan [Application Number 60259/11] and in particular to paragraph 50:
“A prior ban can have a chilling effect on the persons who intend to participate in a rally and that amounts to interference, even if the rally subsequently proceeds without hindrance on the part of the authorities.”
[71]So, argues Ms Demetriou, the first suggested pressing social need – the prevention of breaches of Byelaws – proceeds on the basis of an error of law; breach of the Byelaws or the PRSRA could not of itself justify the erection of fencing.[72]She says, furthermore, that in the PRSRA Parliament has identified a proper and proportionate response to misconduct in PSG and to do more was disproportionate. She points to the fact that there were no convictions following any of the arrests at any of these demonstrations and contends that as a result the Court can safely conclude that the breaches of the Byelaws and PRSRA were not serious. Furthermore, there were no grounds for anticipating serious misconduct.[73]Ms Demetriou made clear that she was not suggesting that there was no power in an extreme case for the Mayor to close PSG. But the legislation provides a guide to the appropriate enforcement of breaches of the Act. She says the whole point of the legislation was to avoid permanent encampment by demonstrators, and to do so without permanent fencing. She says that the remedies for the Mayor were those provided for under the Act, namely the giving of directions, the prosecution of offenders and directions of the Court to individuals.[74]Ms Demetriou makes particular criticism of the requirement in the GLA authorisation machinery for applicants to provide evidence of public liability insurance. This, Ms Demetriou says, was a “hidden obstacle” to the exercise of Article 10 and 11 rights. She points out that Westminster City Council, who also have interests in Parliament Square, do not require public liability insurance, and to the fact that the Defendants’ researches appear to suggest that only two councils around the country do require it.[75]Ms Demetriou then turned to the second potential justification for the interferences, namely the prevention of disorder. She urges caution by the Court in reliance on the disorder of persons other than those attached to the Occupy Democracy movement. She says that in any event, taken at its highest, such disorder was sporadic and not serious. She said it was not capable of justifying prior restraint by means of fencing.[76]As to the suggested justification that the fencing was erected to protect the rights of others Ms Demetriou says that Occupy’s protests interfered only “very minimally” with the rights of others. She points out that at no stage did the Occupy demonstration occupy more than 20% of the Square and that Occupy were happy to share the space with others, as occurred on VE Day. She said that the rights of others to enjoy the space were relevant but points out that the effect of the fencing was to prevent such enjoyment altogether.[77]Ms Demetriou says in conclusion that the Defendants can make out none of the suggested justifications.[78]Mr Swift, for the GLA, took me to the evidence as to how the Occupy movement operates. He says that the underlying purpose of the organisation was to organise static demonstrations over extended periods of time. He points to the failure of the Claimant to engage with the GLA in the run up to any but the last of these events. He says that GLA was entitled to react to what they could discern were Occupy Democracy’s purposes. Mr Swift says that GLA’s objectives were to stop an encampment being established in PSG, to prevent further breaches of the Act or the Byelaws and to protect the rights of others.[79]Mr Swift described the argument about public liability insurance as “a red herring”. He points out that Occupy did not apply for permission until April 2015 and suggest that as a result the requirement for insurance was irrelevant. He says that in any event the interference under challenge is the fencing, not the requirements of the authorisation procedure.[80]Mr Swift contends that there was in fact no interference with Article 10 and 11 rights. He says that it may be right that Occupy Democracy were not permitted to protest in precisely the place or manner they wished, but they were able to continue with their programme of events in Parliament Square.[81]In any event, contends Mr Swift, GLA were entirely justified in their response to the threat they faced. He says GLA adopted a “measured approach” on each occasion when fencing was erected. Discussion Ultra vires

Discussion

[82]As noted above, Ms Demetriou recast her argument on vires during the course of the hearings. In my judgment, she was right to do so.[83]The functions which s384(3) of the GLAA requires the GLA to exercise are broadly expressed; they are to have “the care, control, management and regulation of the central garden of Parliament Square”. The power to make Byelaws granted by s385 is a power designed to secure “the proper management” of the PSG. “Regulation” and “management” plainly includes regulating and managing the use of the gardens, regulating access to the Square and maintaining the security of the Square. I see nothing at all in the point advanced in Ms Demetriou’s skeleton (only faintly pursued orally) that the GLS’s powers are limited to “maintaining the physical condition of PSG”.[84]If the vires argument is limited to establishing that the principle of legality requires that the powers under the Act and the Byelaws are used consistently with the requirements of the Convention, it adds precious little to the Article 10 and 11 arguments, to which I now turn.

Interference

[85]Mr Swift contended that there was no interference with the Claimant’s Convention rights; the demonstrations went ahead, and even if the areas in which those demonstrations were permitted to occur was limited, the Claimant did in fact exercise both his right to freedom of expression and his right of assembly. In the alternative, he suggested that any interference was minimal.[86]Ms Demetriou responds that it was critical to Occupy’s message that the demonstrations took place “at the heart of democracy, i.e. on PSG”. The “manner and form" of the demonstration, she says, is essential to it.[87]There have been a series of decisions of this Court and the Court of Appeal where the significance of the manner, form and place of a demonstration have been considered. In Tabernacle v the Secretary of State for Defence [2009] EWCA Civ 23, the Court of Appeal considered an appeal against a decision of the Divisional Court which dismissed a challenge by members of the Aldermaston Women’s Peace Camp (“AWPC”) against the legality of Byelaws prohibiting camping at the Aldermaston Atomic Weapons Establishment. Laws LJ said this:
“35. In my judgment the supposed distinction between the essence of a protest and the manner and form of its exercise has to be treated with considerable care. In some cases it will be real, in others insubstantial. All depends on the particular facts… 37. But this “manner and form” may constitute the actual nature and quality of the protest; it may have acquired a symbolic force inseparable from the protesters' message; it may be the very witness of their beliefs. It takes little imagination to perceive, as I would hold, that that is the case here. As I have said, the AWPC has been established for something like 23 years. Some of those involved may have been steadfast participants the whole time. Others will have come and gone. But the camp has borne consistent, long-standing, and peaceful witness to the convictions of the women who have belonged to it. To them, and (it may fairly be assumed) to many who support them, and indeed to others who disapprove and oppose them, the “manner and form” is the protest itself. 38. In my judgment, therefore, the fact that the camp can be categorised as the mode not the essence of the protest carries little weight.”
[88]In Mayor of London (on behalf of the GLA) v Hall [2011] l WLR 504 the Court of Appeal considered the compatibility of a possession order against the “Democracy Village” encampment on PSG with Articles 10 and 11. Lord Neuberger MR said:
“37. The right to express views publicly, particularly on the important issues about which the Defendants feel so strongly, and the right of the Defendants to assemble for the purpose of expressing and discussing those views, extends to the manner in which the Defendants wish to express their views and to the location where they wish to express and exchange their views. If it were otherwise, these fundamental human rights would be at risk of emasculation. Accordingly, the Defendants' desire to express their views in Parliament Square, the open space opposite the main entrance to the Houses of Parliament, and to do so in the form of the Democracy Village, on the basis of relatively long-term occupation with tents and placards, are all, in my opinion, within the scope of Articles 10 and 11.”
[89]In R (Gallastegui) v Westminster City Council [2013] 1 WLR 2377, Lord Dyson, citing Lord Neuberger’s judgment in Hall, said:
"26. I accept that the importance of the right to express views publicly and to assemble for the purpose of expressing and discussing those views can extend to the manner in which it is wished to express the views and the location where they wish to express them."
[90]It follows from those authorities that place, manner and form may be important in determining whether there has been an infringement. But they are not necessarily so, and that caselaw is certainly not authority for the proposition that a protester’s choice of place and form must always be respected. Lord Dyson also said in Gallastegui, “Parliament Square is a very significant location for political campaigners, situated as it is close to the Houses of Parliament", but, in my judgment, that does not mean that the authorities responsible for the Square must always accommodate a protest in precisely the form the protester prefers.[91]In Tabernacle the longevity of the AWPC and the symbolic force it had garnered meant that the camp had become the protest itself. A protest does not acquire that status simply by declaring it to be so. In my judgment the Court must take account of the form, place and mode of the protest along with all the surrounding circumstances in deciding whether the actions of the state constitute a real interference with the exercise of the rights.[92]Here, in my judgment, they did. The erection of fences around much of PSG for the duration of the first three demonstrations, the substantial limitations that caused on the ability of the Claimant and his colleagues to carry out the protest they wished, in the way they wished, in view of the Houses of Parliament, and the significance of Parliament as the focus of the demonstration lead me firmly to the view that the Claimant’s Article 10 and 11 rights were the subject of an interference. In that regard, I take particular note of what Lord Neuberger said at paragraph 42 in Hall:
“Quite apart from this, when freedom of assembly, and, even more, when freedom of expression, are in play, then, save possibly in very unusual and clear circumstances, article 11, and article 10 , should be capable of being invoked to enable the merits of the particular case to be considered. Thus, in R (Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 AC 105 , paragraphs 36 and 37 Lord Bingham of Cornhill made it clear that state authorities have a positive duty to take steps to ensure that lawful public demonstrations can take place, and that any prior restraint on freedom of speech requires ‘the most careful scrutiny’.”
[93]That means that I must turn to the merits of this case and the justification for the interference.

Justification – Preliminaries

[94]The correct approach to testing justification is well established. It was set out by Lord Dyson in Gallasteguiat paragraph 28:
“The correct general approach to the question of whether an interference with a Convention right is justified is not in doubt. First, the limitation on the right must be “prescribed by law”
. Secondly, it must have one or more of the legitimate aims set out in Articles 10.2 and 11.2. Thirdly, the limitation must be “necessary in a democratic society”. This requires that the limitation must meet a pressing social need and satisfy the principle of proportionality. The European Court has frequently stated that, in view of the importance of the right to freedom of expression, restrictions on it have to be ‘established convincingly’: see, for example, Bergens Tidende v Norway (2000) 31 EHRR 430, paragraph 48.”[95]In her skeleton argument, Ms Demetriou contested whether the fencing decision was “prescribed by law”. She said that there was no transparency or certainty as to how the GLA exercised its decision to close all or a very significant part of PSG; the scope of the discretion and the manner of its exercise must be indicated with sufficient clarity to give the individual protection against arbitrary interference; and that it was only with the service of the GLA's Grounds of Resistance and evidence that the Claimant obtained any clarity as to the basis on which the GLA contends that the various decisions in respect of the fencing were made out.[96]That argument was not much pressed in argument and I reject it. As I have concluded above, the scope of the GLA’s powers to manage and regulate PSG were broad; they were more than sufficient to permit the erection of fences as a means of managing and regulating the use of the gardens.[97]The interference also pursued a legitimate aim. The fact that the aims changed over time and sometimes covered more than one objective is nothing to the point. The care and maintenance of the physical space, the prevention of disorder, the protection of the rights of others, (both those who also wanted to protest and those who simply wanted to enjoy the amenity of the gardens), are all legitimate aims. And I accept on the evidence that those were genuine aims of the GLA at various points during the history.[98]All of that means that the critical question now, as I suspect it has always been, is whether the interference was proportionate.[99]The burden of proof of justification is on the Defendant (see Tabernacle paragraph 12). And it is the Court they have to satisfy (see Hallat paragraph 43). This is not a Wednesbury challenge where a degree of deference is due to the decision maker. I have to put myself in the position of the GLA at each material stage and ask whether the Defendants have satisfied me that their response was proportionate given what they knew at the time. I emphasise the last clause of that test; it would not be correct to take into account what has become known since the decision being considered, but which could not have been known at the time.[100]It is convenient at this point to address five issues that were the subject of debate at the hearing and which are relevant to justification: first, the extent of the interference; second, prior restraint; third, prior authorisation; fourth statutory sanctions and controls; and fifth public liability insurance.[101]As to the first of those points; although I have held that there was an interference, it was far from total. As my discussion of the evidence makes clear, the protest events in October, November and December (like those in January, February, March and May) went ahead. And they went ahead in Parliament Square. Occupy Democracy were able to continue with their lectures, workshops and debates, although in much more restricted areas than they would have wished. In other words, there was some interference with their rights of expression and assembly but that interference was limited.[102]As to the second; Ms Demetriou argues that the fencing constituted “prior restraint” of the Convention rights. She points to what Lord Bingham said in R (Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 AC 105(referred to by Lord Neuberger in Hall and set out at paragraph 91 above) about the need for caution about prior restraint.[103]She is right that fencing did amount to a form of prior restraint; Occupy and any other protester could not go precisely where they wished in Parliament Square, nor conduct precisely the sort of events they wished to, when and where they would have preferred. However, as discussed above, this was partial restraint and, in my view, falls to be judged on the scales of proportionality.[104]Third, it is not a breach of Articles 10 or 11 to require prior authorisation for demonstrations or protests. In the admissibility decision in Ziliberberg v Moldova App No 61821/00 the ECtHR held in respect of the right to freedom of assembly in public places:
“their subjection to an authorisation procedure does not normally encroach upon the essence of the right. Such a procedure is in keeping with the requirements of article 11(i), if only in order that the authorities may be in a position to ensure the peaceful nature of a meeting, and accordingly does not as such constitute interference with the exercise of the right…”
[105]In Berladir v RussiaApp No 34202/06 the ECtHR said this:
“54. The Court has previously considered that reasonable notification or authorisation procedures for a public event do not normally encroach upon the essence of the right under Article 11 of the Convention as long as the purpose of the procedure is to allow the authorities to take reasonable and appropriate measures in order to guarantee the smooth conduct of a public gathering…”
(emphasis added)[106]In Oya Ataman v TurkeyApp No 74552/01 the ECtHR was concerned with a case where prior notification was required. The Court held; “38. Having regard to the domestic legislation, the Court observes that no authorisation is required for the holding of public demonstrations; at the material time, however, notification was required seventy-two hours prior to the event. In principle, regulations of this nature should not represent a hidden obstacle to the freedom of peaceful assembly as it is protected by the Convention. It goes without saying that any demonstration in a public place may cause a certain level of disruption to ordinary life and encounter hostility; this being so, it is important that associations and others organising demonstrations, as actors in the democratic process, respect the rules governing that process by complying with the regulations in force. 39. The Court considers, in the absence of notification, the demonstration was unlawful, a fact that the applicant does not contest. However, it points out that an unlawful situation does not justify an infringement of freedom of assembly (see Cisse v. France, no. 51346/99, § 50, ECHR 2002-III). In the instant case, however, notification would have enabled the authorities to take the necessary measures in order to minimise the disruption to traffic that the demonstration could have caused during rush hour. In the Court’s opinion, it is important that preventive security measures such as, for example, the presence of first-aid services at the site of demonstrations, be taken in order to guarantee the smooth conduct of any event, meeting or other gathering, be it political, cultural or of another nature” (emphasis added).[107]In my judgment, the same principles apply to requirements for authorisation of the sort in place in the present case. Those organising demonstrations, “as actors in the democratic process”, should respect the rules governing conduct of demonstrations by complying with the regulations in force. A failure to do so demonstrates a disregard of the rights and freedoms of others and of the need to manage those competing rights sensibly if they are to be enjoyed to the greatest extent possible. Of course the Convention imposes obligations on contracting states not individuals, but if the individual does not play his part a greater latitude must be allowed to the state in the way it responds. Mr Barda says he objects as a matter of principle to seeking permission to demonstrate; his objection is wholly misplaced. The Convention principles on which he seeks to rely do not operate in a vacuum.[108]Ms Demetriou is right to contend, consistent with paragraph 39 in Oya Ataman, that failure to obtain authorisation will not negate the rights under Articles 10 and 11. However, in my judgment, it will be relevant in judging the proportionality of the state’s response.[109]Fourth, Ms Demetriou argues that since Parliament has prohibited certain activities in Parliament Square and provided for penalties for the same, there is no legal room for the GLA to impose other restraints; in the alternative she argues that the PRSRA should provide “guidance” as to what is a proportionate response to reaches of the Act or the Byelaws. In particular, she contends that the only appropriate responses to Occupy’s demonstrations were those provided for by the Act, namely directions to comply, prosecutions for failure to do so and directions of the Court on such prosecutions. Anything else, she says, was disproportionate.[110]The corollary of the state’s entitlement to require prior authorisation, is the right of the state to impose sanctions if that authorisation is not obtained. In Ziliberberg the ECtHR said:
“The Court considers that since States have the right to require authorisation, they must be able to apply sanctions to those who participate in demonstrations that do not comply with the requirements. The impossibility to impose such sanctions would render illusory the power of the State to require authorisation.”
[111]I reject Ms Demetriou’s argument that such sanctions are limited to those provided for by PRSRA. If that were right, it would mean that those responsible for PSG, faced with the possibility of disorder or threat of occupation of the Square by those without authorisation for a demonstration, would be required to sit on their hands, wait for unlawful activity to occur and then deal, as best they could, with each individual protester separately. And they would have to do so (save, Ms Demetreou might concede, in “extreme cases”) regardless of the level of interference the protest caused to the rights and freedoms of others, regardless of the disorder that resulted and regardless of the fact that dealing with each protester separately might well increase, rather than reduce, the effect on others and the scale of the disorder. That simply cannot be right.[112]As Mr Swift rightly contends, there is nothing to suggest that the PRSRA establishes an exclusive scheme for responding to demonstrations in PSG. The power to make Byelaws governing the management and regulation of the Square remains.[113]Fifth, public liability insurance. Mr Swift says the fact that Occupy Democracy might have difficulty obtaining insurance is irrelevant on the facts of this case. It was not until April 2015 that Occupy even applied for authorisation; the requirement that they obtain public liability insurance is therefore causatively irrelevant. Ms Demetriou says that the interference here is the erection of fencing and GLA must justify it. A substantial plank of their argument is that the demonstrations were not authorised and the Court will have to assess whether the absence of authorisation is sufficient to justify interference. That they cannot do, she suggests, if it is difficult or impossible to meet one of the pre-requisites of authorisation, namely obtaining insurance.[114]In my judgment, neither party is wholly correct about this issue. The fact that public liability insurance might have been difficult for Occupy Democracy to obtain is relevant, but so is the failure of Mr Barda and his colleagues to engage with GLA at all prior to April 2015. Both matters fall to be considered as part of the Court’s consideration of the question whether the interference was proportionate. The absence of authorisation did not of itself entitle GLA to erect fences; the potential difficulty in complying with the insurance requirement did not excuse Occupy Demonstration from the obligation to liaise with the GLA.

Justification – The GLA’s Response

[115]Until they learned of it from social media, the GLA knew nothing of Occupy’s plans in respect of PSG. Occupy had not sought permission for the demonstration because they disagreed with the need for permission as a matter of principle. In fact, they did not engage with GLA at all. But once GLA learned of them, they could hardly be expected to do nothing in response. On any view, the planned demonstration would present something of a challenge and would require some form of response from those who had responsibility for the management of the square. Contingency planning, in those circumstances, was entirely justified.[116]It was discovered that the plan was for a nine day “occupation” of PSG in October by the group, or a variant of the group, who had previously “occupied” St Paul’s churchyard. The Occupy movement was known to be non-violent but their presence in St Paul’s had caused very substantial difficulties and had interfered with the rights of others to use the churchyard. It was now PSG which was to be the site of a static demonstration. The October occupation was to be followed by further monthly demonstrations until the General Election in May 2015.[117]Showing what, in my judgment, was commendable restraint and good sense, the GLA’s initial response was not fences and barricades to protect the Square from occupation, but low level rope and posts. Given the terms of the Bye-laws, the effect of the PRSRA, the fact that Occupy had not sought permission for this demonstration, had not informed the GLA directly, had a history of establishing long term encampments in public or private places, were seeking to encourage large numbers of people to attend the event, were prevented by statute from bringing sleeping equipment onto the site, had provided nothing to indicate that they had made arrangements themselves to marshal demonstrators or to provide them with basic facilities for a prolonged stay, putting up posts, ropes and signs to discourage trespassing on the gardens by those without permission to use them was, in my judgment, plainly proportionate.[118]In fact, the posts and rope did not prevent the Occupy Democracy event proceeding in the gardens. The demonstrations continued and Ms Demetriou, quite properly, does not suggest that this “interference” was unlawful. It plainly was not. But that is significant not only for the period when posts and rope were deployed in mid October; it is also significant for the rest of the period because it demonstrates that GLA were seeking to calibrate their response to reflect the evidence available to them about the nature of the challenge the Occupy Democracy demonstration posed.[119]On 21 October fencing was erected around PSG. That followed a period of some days during which Occupy protesters moved over the rope barrier and onto the grassed area. Sleeping equipment was moved onto the grass and material which could be used in breach of the PRSRA was seized. There were a number of arrests. It was plain the rope barriers were not being respected and increasing numbers of demonstrators were likely to ignore the Byelaws and the PRSRA and take over parts of PSG, at least for a period of some days. For the reasons set out above, it does not seem to me that, faced with those developments, GLA were confined to the reactive measures provided for by the PRSRA. Fencing off part of the Square was a reasonable and proportionate response.[120]That level of fencing did not prove entirely effective; there were yet further incidents on PSG between 22 and 26 October 2014 and the Heras fencing around PSG was pushed over. As the briefing for the November demonstration makes clear, GLA continued to fear that tents would be pitched on PSG.[121]The Occupy Democracy website for December indicated that the demonstrator’s plan remained “Monthly Occupations until General Election”; in other words the threat of an occupation remained very real. In my judgment, GLA were entitled to take measures to prevent the occupation of the Square, in order to protect the Square itself, to protect the rights of others to use the Square and to prevent the flouting of the Byelaws and the PRSRA. A failure to maintain a measure of management and control over PSG in these circumstances would inevitably affect adversely the ability of others to exercise their rights in the Square. When the threat of occupation diminished, the fencing was removed.[122]At no time were Occupy Democracy’s protests prevented altogether. Throughout the period, it remained possible for them to mount their protest, albeit in less space and comfort than they would have wished. Their programme of events continued regardless of the limitations imposed on them.

Conclusions

[123]In my judgment, of central significance in this case was the measured and graduated approach adopted by GLA to the threats of periodic occupation of PSG. Alternative responses, including polite requests, then removals, then arrest and prosecution of individual protesters, were tried without success. The Square was roped off, then part of it was fenced off, then most of it was fenced off. When the likelihood of occupation diminished then the fencing came down.[124]The response waxed as the threat to the Square increased and waned as it subsided. In my judgment, it was the very definition of a proportionate response.[125]For all the reasons set out above, this challenge must fail.