QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
MR JUSTICE McCOMBE
MR JUSTICE SIMON
|THE QUEEN ON THE APPLICATION OF BRIAN HAW||(CLAIMANT)|
|(1) SECRETARY OF STATE FOR THE HOME DEPARTMENT|
|(2) COMMISSIONER FOR THE METROPOLITAN POLICE SERVICE||(DEFENDANTS)|
Smith Bernal Wordwave Limited
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(Official Shorthand Writers to the Court)
MISS NATHALIE LIEVEN (represented by MR TIM MORSHEAD on this occasion) (instructed by the Treasury Solicitor), appeared on behalf of the FIRST DEFENDANT
MR ADAM CLEMENS appeared on behalf of the SECOND DEFENDANT
Crown Copyright ©
Friday, 29th July 2005
"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 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)."
"(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."
"The notice must be given -
(a) if reasonably practicable, not less than 6 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."
"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."
"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 1st August 2005." [Emphasis by underlining added by me.]
"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 1st August 2005."
"Subject to paragraph (2), sections 132 to 137 (demonstrations in the vicinity of Parliament) of the Act shall come into force on 1st 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 1st August 2005."
"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 1st August 2005."
"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)."
"... 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."
"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."
"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."
"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 Government ministers in Parliament. This would not be a rational distinction."
"Those conditions are more helpful than the original provisions in the Bill. Hon. 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 hon. 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."
"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)."
"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 last 30 years one cannot fail to be struck by the evidence of a trend away from the purely literal towards the purposive construction of statutory provisions."
"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  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  AC 74 at 105.)
"Lord Diplock's third point is, with respect, erroneous. The argument that in Jones v Wrotham Park Settled Estates Lord Diplock was mistaken in saying that for a rectifying construction to be effected it must be possible to state with certainty what the missing words are, has been endorsed by the House of Lords. Lord Nicholls of Birkenhead said that they court must be sure of 'the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used'." (See Inco Europe Ltd and others v First Choice Distribution  1 WLR 586 (HL).
"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 v Schindler  1 Ch 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.
"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 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.
"Their function is to give the words [of the Act] their natural meaning, but not perhaps in wartime leaning towards liberty, but following the dictum of Pollock CB in Bowditch v Balchin  Exch R at page 378, cited with approval by my noble and learned friend, Lord Wright, in Barnard v Gorman  AC 378 at page 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 and 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 liberty of the subject and any attempted encroachments on his liberty by the executive alert to see that any coercive action is justified by law."
"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 such legislation would know whom to blame. But if the words of the Act are not crystal clear and Parliament had 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."
"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."
"... 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 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."
"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."
"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 last few years could be taken on by other individuals as well, and we need to deal with that ..."
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.