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[B]eforetheHumanRightsAct1998nodocumentsetoutarangeofrightswhich
government,legislatureandcourtsshouldenforce.Protectionofcivilliberties,suchas
freedom of speech, freedom of assembly and freedom from arbitrary
arrest, was in the hands
ofParliamentandthecourtsthroughthecommonlaw.1TheHumanRightsAct1998was
passedtoincorporateConventionrightsintodomesticlaw,thusenablingpeopletoassert
positive rights against the state. The Act will guarantee to
everyone the means to enforce a
setofbasiccivilandpoliticalrights,establishingafloorbelowwhichstandardswillnotbe
allowed to fall.2
TherightsconcernedinCityofLondonvSamede[2012]3arethoseunderArticle10
(freedom to receive and impart ideas and information) and 11
(freedom of association). They are qualified rights: there are
limitations that state the scope of the rights. Article 10(2)
clearly
statesthatfreedomofexpressioncanbesubjecttosuchformalities,conditions,restrictions
orpenaltiesasareprescribedbylawandarenecessaryinademocraticsociety;similarly,
Article 11(2) states that restrictions can only hinder freedom of
speech where they are 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. There are two principles
commontoallpermittedrestrictions:first,theremustbealegalbasisfortherestriction.It
wasindicatedinSilvervUK(1983)4thattheremustbesufficientindicationofthe
circumstancesinwhichthediscretionwillbeexercised.Secondly,therestrictionmustbe
1 Maureen and John Spencer, Human Rights Law in a Nutshell (1st
Edition, Sweet & Maxwell, 2001), p. 7.
2JohnWadhamandHelenMountfield,BlackstonesGuidetotheHumanRightsAct1998(BlackstonePress
Limited, 1999), p. ix (Foreword). 3 City of London v Samede [2012]
EWHC 34 (QB) 4 Silver v UK (1983) 5 EHRR 347 2 proportionate to the
interest protected. It was held in Handyside v UK [1976]5 (at para
69) that
therestrictionmustbenecessaryinademocraticsociety.AsMrJusticeLondblom
observed in City of London v Samede [2012]6 (at para 99): Lord
Neuberger went on (in para 387) to observe that the greater the
extent of the right claimed under Article 10(1) or Article
11(1),thegreaterthepotentialfortheexerciseoftherighttointerferewiththerightsof
others, and for its having to be curtailed or rejected under
Article 10(2) or Article 11(2). The Human Rights Act 1998 was
conceived in such a way that it leaves some leeway to the courts:
the doctrine of margin of appreciation means that states are
allowed some measure
offreedominapplyingtheConvention,asperSections3and4,whichstatethatitcanbe
impossibletoreadandgiveeffecttolegislationinawaywhichiscompatiblewiththe
Conventionrights.Furthermore,Section6establishesthatpublicauthorities(including
courtsandtribunalsandanypersonwhosefunctionsareofapublicnature,butnot
Parliament) are lawfully obliged not to act in a way which is
incompatible with a Convention right unless one or more provisions
of or made under primary legislation are not compatible with the
Convention but have to be enforced.
ThosesectionsareatthecoreofCityofLondonvSamede[2012]8,wheretheCity
claims possession of some land which has been occupied by the
defendants as a protest camp.
Asoutlinedinpara1,thequestionisaboutthelimitstotherightoflawfulassemblyand
protestonthehighway.TheCitysclaimtoremovethedefendantstentsclearlyinterferes
with the defendants Article 10 and 11 rights. On the one hand,
other than their rights under
arts10and11oftheConvention,thedefendantshadhadnoarguablerighttooccupy,
control or take possession of highway land from the City as highway
authority (at para 101).
Underthedomesticlegalprovisions,thedefendantshavenorighttoputtentsonapieceof
5 Handyside v UK [1976] 1 EHRR 737 6 City of London v Samede [2012]
EWHC 34 (QB) 7 Mayor of London (on behalf of the Greater London
Authority) v Hall and others [2011] 1 WLR 504 8 City of London v
Samede [2012] EWHC 34 (QB) 3 land under the Citys authority.
However on the other hand, under Articles 10 and 11 of the
Conventionthedefendantsare,inprinciple,entitledtoexpresstheviewstheywantto
express, and to assemble peacefully in a public place to do so (at
para 147). Section 6 of the Human Rights Act 1998, as seen above,
requires public bodies to act in accordance with the Convention
where possible: the City may have to leave the tents where they
are, according to
thedefendantsrights.AsMrJusticeLondblomputsit,thecrucialdifferencesbetweenthe
two sides in this case relate to the constraints placed upon those
Convention rights, in Articles 10(2) and 11(2) respectively (at
para 147).
ItisamatterforthecourttodecidewhethertheCitysclaimisbothnecessaryand
proportionate (at para 104) or a substantial interference
disproportionate (at para 107). Indeed the court must strive to
reach a balance between the needs of the community and the
individual (at para 99). This balance may be achieved by
establishing whether the defendants
causegreaterharmbyhavingestablishedtheircampthanthewouldotherwise9.Thecourt
may also take into account other peoples rights under the
Convention: as underlined at para
158,thecampcontinuestocausenuisanceandtodisrupttheexercisebyothersoftheir
Conventionrights,includingtheArticle9rightsofthosewhowishtoworshipinStPauls
Cathedral. Freedom of expression and association being a qualified
right, it is limited by the protection of the rights and freedoms
of others10: the camp is clearly said to hinder the right of other
to worship in St Pauls Cathedral.
ThecourtinCityofLondonvSamede[2012]11decidedtomaketheCitysclaim
succeed, because when the balance is truck, the factors for
granting relief in this case easily
outweighthefactorsagainst(atpara165).Thereisalegalbasisforthelimitationofthe
defendants rights, and the restriction granted is proportionate to
the interest protected. 9 See para 156. 10 Human Right Act 1998
Article 11(2). 11 City of London v Samede [2012] EWHC 34 (QB)
