Tabernacle v Secretary of State for Defence  EWCA Civ 23 (05 February 2009) The England and Wales Court of Appeal has held that bylaws which prohibited camping in the vicinity of the Atomic Weapons Establishment at Aldermaston ('the AWE') were an unlawful interference with the right of the appellant, a member of the Aldermaston Women's Peace Camp ('the AWPC'), to freedom of expression and freedom of peaceful association under the European Convention on Human Rights.
For 23 years, the members of the AWPC had camped once a month on land occupied by the AWE to protest against nuclear weapons. Their protest had always been entirely peaceful.
Section 14(1) of the Military Lands Act 1992 (the MLA) permitted the Secretary of State to make bylaws in relation to the use of its land where it had been appropriated for a military purpose. Where the appropriated land was not being used for a military purpose, s 14(2) of the MLA provided that the bylaws could permit public access to the land and provide for the 'government of the land... and the preservation of order and good conduct... and for the prevention of nuisances, obstructions, encampments, and encroachments thereon'. Paragraph 6 of the 2007 AWE bylaws allowed the public to access certain 'Controlled Areas' on the land for 'any lawful purpose'. Paragraph 7(2) of the bylaws listed twenty prohibited acts in relation to the land, including s 7(2)(f), a prohibition on camping 'in tents, caravans, trees or otherwise'.
The prohibition on camping on the AWE had existed since 1986. Contravention of the provision was a criminal offence, but it had not been enforced over the years because there had been some doubt about whether the AWPC was on land belonging to the Secretary of State, and because of an 'apprehension' about the impact of the Human Rights Act 1998.
The Divisional Court held that there was no violation of the freedoms of association and expression, since s 7(2)(f) only impacted on one form of association and expression. The issue on appeal was whether the camping prohibition was justified by the any of the considerations in art 10(2) of the European Convention, which provided that the right to freedom of expression 'may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society', for example, 'in the interests of national security'. The Court of Appeal did not focus on the freedom of association claim, noting that it was not an autonomous claim, but rather underlined the mode of free expression relied upon.
Laws LJ (with whom Stanley Burnton LJ and Wall LJ agreed) held that s 7(2)(f) did constitute an unlawful interference with the appellant's rights under arts 10 and 11 of the Convention.
In deciding whether the interference with the appellant's right was justified, Laws LJ considered whether paragraph 7(2)(f) of the bylaws served the achievement of a legitimate aim and if so, whether it constituted a proportionate means of doing so. This could only be satisfied if the interference was required to fulfill a 'pressing social need'.
The State had argued that the prohibition on camping was justified on the grounds of national security, public safety, the prevention of disorder or crime, and the protection of the rights of others. Camping in the vicinity of the security fence would require additional surveillance and could be used as a cover or distraction in relation to terrorist activities. Camping in close proximity to high volume traffic was a distraction to motorists, and there were no publicly accessible sanitation facilities in the Controlled Areas.
Laws LJ emphasized that the justification advanced by the State could not be looked at in isolation. Whether s 7(2)(f) imposed no more than a 'proportionate restriction' of AWPC's free expression depended on the nature and quality of the right's exercise. Laws LJ placed little weight on the Secretary of State's argument that the public's right to enter the land was found in the bylaws themselves. The court was not persuaded by the argument that s 7(2)(f) only interfered with the 'manner and form' of the appellant's freedom of expression, and not with the 'essence' of that right. Neither did it accept the State's argument that where the interference with freedom of expression is in the 'manner and form' territory, the court should be readier to allow the state a 'generous margin of appreciation to take restrictive measures for practical or prudential reasons.
Laws LJ said that the distinction recognized in the Strasbourg jurisprudence between the 'essence' and the 'manner and form' of a protest has to be treated with 'considerable care'. In this instance, the argument that the camp was merely the mode and not the essence of the protest carried little weight. The AWPC was not merely the setting or context for the protest, but an inherent part of the protest itself. The 'manner and form' of the protest had 'acquired a symbolic force inseparable from the protestors' message'. For the participants in the peace camp, and their supporters, 'the "manner and form" is the protest itself'.
Laws LJ held that the justifications advanced by the state were insubstantial. No steps had been taken in 23 years to put a stop to the camp. If the State had such substantial objections to the presence of the camp, it could have taken the necessary steps to deal with it. The points about the security fence, traffic problems, and sanitation facilities were said to be 'nuisance points'.
Relevance to the Victorian Charter
It remains to be seen whether a similar decision would be made under the Victorian Charter, in which the freedoms of expression and political association are contained in ss 15 and 16. In particular, it is unclear whether a Victorian court would be persuaded by the argument that the distinction between manner and form and the essence of the right could not be upheld, since the mode of expression - the peace camp - went to the very essence of the expression.
Like art 10 of the European Convention, s 15(3) of the Victorian Charter contains an internal limit to the right to freedom of expression, providing that it may be subject to lawful restrictions 'reasonably necessary' for the protection of other interests, such as national security, public order and public health. In addition, however, s 7(2) of the Charter introduces a non-exhaustive list of factors which must be taken into account when determining whether a limitation on any right under the charter can be 'demonstrably justified in a free and democratic society'. This includes the nature of the right and the limitation, the importance of the purpose of the limitation, the relationship between the limitation and its purpose and any less restrictive means available to achieving that purpose. While there is clearly overlap between the internal limit in s 15(3) and the general limitations provision in s 7, s 15(3) can be understood to identify particular considerations which are relevant to the test outlined in s 7. The requirements in both sections must be satisfied. Overall, it can be said that the same kinds of considerations which persuaded Laws LJ that the camping prohibition was not a proportionate restriction would also be considered in the framework established by ss 7, 15 and 16 of the Victorian Charter.
The decision is available at http://www.bailii.org/ew/cases/EWCA/Civ/2009/23.html.
Rosannah Healy is an Articled Clerk with Allens Arthur Robinson