Byelaws – Campers – Demonstrations – Freedom of association – Freedom of expression

Tabernacle v Secretary of State for Defence: CA (Civ Div) (Lords Justice Laws, Wall, Stanley Burnton): 5 February 2009

The appellant (T) appealed against a decision ([2008] EWHC 416 (Admin), Times, 9 April, 2008) refusing to quash part of a byelaw which prevented T camping in the vicinity of the Atomic Weapons Establishment at Aldermaston. T was a long-time member of the Aldermaston Women's Peace Camp, which protested against nuclear weapons in the vicinity of the Atomic Weapons Establishment.

The camp had been going for some 23 years. The women assembled on the land for the second weekend of each month. They stayed from Friday evening until Sunday morning. They held vigils, meetings and demonstrations, and handed out leaflets. Their protest was and always had been entirely peaceful. They camped in an area owned by the respondent secretary of state within ‘the Controlled Areas’ under the Atomic Weapons Establishment (AWE) Aldermaston Byelaws 2007. The byelaws allowed the public to have access to the controlled areas but regulation 7(2)(f) of the byelaws prohibited camping in these areas from which, therefore, it banned the camp.

T claimed that that prohibition violated her rights of free expression and association guaranteed by articles 10 and 11 of the European Convention on Human Rights. The secretary of state submitted that regulation 7(2)(f) imposed no more than a proportionate restriction of T's free expression rights, which were weak because the source of the public’s right to go on the controlled areas was to be found in the byelaws themselves, and because it did not impose a blanket ban on T’s rights of protest but only impinged on the manner and form in which she could exercise her article 10 rights, and was objectively justified for reasons of national security, public safety, the prevention of disorder or crime and the protection of the rights of others.

Held: (1) The supposed distinction between the essence of a protest and the manner and form of its exercise had to be treated with considerable care. In some cases it would be real, in others insubstantial. The manner and form might constitute the actual nature and quality of the protest, as it did in the present case. The camp had been established for something like 23 years. It had borne consistent, long-standing and peaceful witness to the convictions of the women who had belonged to it. Thus the manner and form was the protest itself.

Therefore, the fact that the camp could be categorised as the mode not the essence of the protest carried little weight. The fact that the secretary of state was himself the source of the public’s right to go on the controlled areas carried none. It was elementary that government property was held for the public good. There was no proper analogy with a private landowner’s grant whereby he reserved certain rights to himself.

(2) The byelaw’s interference with T’s rights was far from being weak or insubstantial and the secretary of state had to demonstrate under article 10(2) a substantial objective justification for regulation 7(2)(f) of the 2007 byelaws, amounting to an undoubted pressing social need. However, the secretary of state’s justifications were insubstantial and T’s responses to the justifications were generally persuasive. Paragraph 7(2)(f) was not framed in the face of high-profile public concerns, or threats of violent public disorder, or defiance of the general law, Rai v United Kingdom (25522/94) [1995] 19 EHRR CD93 Eur Comm HR, Chorherr v Austria (A/266-B) [1994] 17 EHRR 358 ECHR and Chapman v United Kingdom (27238/95) [2001] 33 EHRR 18 ECHR distinguished. The secretary of state had viewed, or treated, the camp’s presence as no more nor less than a nuisance. In the circumstances, the effect of paragraph 7(2)(f) of the 2007 byelaws was to violate T’s rights guaranteed by articles 10 and 11.

Appeal allowed.

David Pievsky (instructed by Public Interest Lawyers) for the appellant; Gordon Nardell (instructed by the Treasury Solicitor) for the respondent.