THE OCCUPY WALL STREET protest movement began on September 17, 2011 in the New York Financial District. Around the world, including in London, a number of similar protest groups using the ‘Occupy’ name sprang up in sympathy. Among the movement’s many ideals, including pressure for the adoption of a Community Bill of Rights, the ‘Occupy’ movement claims to be motivated by a ‘[fight] back against the corrosive power of major banks and multinational corporations over the democratic process’. To students of constitutional thought the Occupy movement is perhaps best described as a form of direct political action borne of disaffection with the institutions of representative democracy and the ability of those institutions to remain free from the power and influence of private capital.

Britain felt the influence of this global movement through the activities of the Occupy London Stock Exchange (Occupy LSX) movement. This group initially sought to occupy the City of London financial district but was prohibited from doing so by way of a pre-emptive court injunction granted in favour of the City of London excluding protestors from the area. In response to this decision a protest camp was established at a site surrounding St Paul’s Cathedral in the City of London on October 15, 2011. A tent village was set up on land held by St Paul’s Cathedral and part of the public highway. The movement subsequently became known as Occupy St Paul’s. Following a decision of the High Court on February 18, 2012 protestors were evicted by police and bailiffs on February 28, 2012 during which twenty arrests were made.

In City of London v Samede and Others the City of London successfully sought an order for possession of the public highway pursuant to section 263(1) of the Highways Act 1980, and an injunction against current and prospective protestors under section 130 of the same Act. Due to the fact part of the protest camp was established on church land outside of St Paul’s Cathedral, which the City of London did not own, the City also successfully sought an injunction against current and prospective protesters pursuant to section 171 of the Town and Country Planning Act 1990 on the grounds that no planning permission had been sought to erect any form of structure in the grounds of St Paul’s Cathedral. The City also sought a declaration that it was empowered at either common law or, if necessary, to use its powers under section 143 of the 1980 Act to remove the tents from the various protest camp sites. Neither the Church of England, nor any representative from the Chapter of St Paul’s Cathedral was a party to the litigation.

Mr Justice Lindblom gave the sole judgment of the Court, phrasing the human rights problem in the following terms, by asking whether the limits of Articles 10 and 11 of the European Convention on Human Rights extended to the indefinite occupation of highway land by an encampment of protestors who argued that this form of protest was essential to the exercise of their rights, when the land they have chosen to occupy was in a prominent place in the centre of the metropolis, beside a cathedral of national and international importance, which is visited each year by many thousands of people and where many thousands more come to exercise their right, under Article 9 ECHR, to worship as they choose? The High Court answered this question in the negative, stating that: ‘Whatever the protestors hope to achieve by leaving their camp where it is, they have had ample time in which to draw attention to the causes they espouse. They have made their point’ (at [164]).

The decision of the High Court is authority for the proposition that there is no right to an indefinite or permanent protest on the public highway or any public space pursuant to Art 10 or Art 11 ECHR as incorporated by Schedule One of the Human Rights Act 1998. Although supporters of the Occupy movement will doubtless be dissatisfied with the outcome of the case, and the subsequent refusal of leave to appeal to the Court of Appeal, it is argued here that the decision was the correct one. It is difficult to suggest without questioning the legitimacy of the legal process to which the representatives of Occupy chose to submit themselves that the decision could have been made any other way. In fact, the serious engagement with the use of evidence based proportionality to strike a balance between the rights at stake should be welcomed by those who take the project of human rights seriously.

Paragraphs sixteen to eighty-eight of the judgment are devoted to the reproduction of witness testimony from both supporters and detractors of the protest, including, in support of the protest, a Minister of religion who supported the camp, residents of the camp, and David Mead, whose work has featured on this blog. Among those who made statements on behalf of the City of London were from the City’s Department for the Built Environment, the Registrar of St Paul’s Cathedral, and the Temporary Police Inspector. Although the court rightly claimed that its judgment was not intended as an attempt to ‘adjudicate on the merits of the protest’ (at [155]) much of the evidence in support of the defendants did indeed speak to the importance of Occupy’s cause and the relationship of its merits to human rights law. David Forsdick QC for the City of London submitted that ‘the High Court is the place for litigation, not a forum for the debate of matters such as [Occupy’s cause]. It is a court of law, not of policy, opinion or politics’ (at [155]).

The argument over the proportionality of the City’s various claims for possession and injunction were not whether they were prima facie lawful, as this was not disputed on the facts, but rather whether they were in pursuit of a legitimate aim, rational, and necessary in a democratic society. The City of London authority claimed that its duty to act in the public interest as a local authority required it to have regard to the public interest, and in turn, to the Article 9 ECHR rights of prospective worshippers who sought to use St. Paul’s Cathedral. The High Court took its duty to act within the framework of proportionality very seriously, recognising that any decision reached under the rubric of proportionality did not obviate the relevance of the City of London’s original decision making process. In his consideration of the City of London’s actions Lindblom J concluded that: ‘…the City went about the balancing exercise it had to carry out with a clear understanding of the legal issues involved and having regard only to relevant facts and considerations’ (at [148]).

It was acknowledged by the Court that this was indeed ‘a case without precedent’ because neither of the two closest domestic authorities Hall or DPP v Jones had considered the concept of the right to indefinite or permanent protest, and the European Court of Human Rights (ECtHR) had not considered the matter either. In this respect, Samede is not simply a matter of private law with a human rights law gloss: the resolution of the case goes to the heart of one of the most contested debates in contemporary British public life. That is, how far should British judges strike out on their own to create distinctively British human rights jurisprudence under the Human Rights Act 1998? This has been discussed on this blog in the context of the Brighton Conference and the on-going debate about a British Bill of Rights.

Whilst both public opinion, and figures central to the debate, such as Lord Irvine of Lairg, have come out in favour of using section 2(1), which requires British Courts to do no more than ‘take account of’ Strasbourg jurisprudence, to craft a distinctively British body of human rights case law, very little attention has been given to the issue implicitly raised by Samede. That issue is: where a novel question of rights interpretation comes before a domestic court applying the ECHR, and there is uncertainty as to whether the ECtHR would find a violation of human rights on the facts, is it open to a domestic court to extend the reach of human rights law further?

Obviously, a literal reading of section 2(1) Human Rights Act 1998 would permit such an extension of the protection of human rights in domestic law. In theory, the High Court could have declared that Art 11 ECHR encompasses the right to an indefinite or permanent protest on the public highway, however infeasible this might seem, in a manner that was consistent with parliamentary intention. However, the English courts have been reticent to take this path. In Ullah v Special Adjudicator Lord Bingham opined that the ‘duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.’ In even more concrete terms it was held in Quark Fishing that the House of Lords would not find a breach of section 6(1) of the Human Rights Act 1998 unless it was certain that Strasbourg would find a breach in the same situation.

The Samede decision would be the wrong context in which to depart from these principles. By focussing on the narrow issue of whether the right to protest permitted an indefinite or permanent protest with physical presence, the court successfully executed its duty towards both proportionality adjudication and the doctrine of precedent whilst avoiding becoming overly entangled in the issues promoted by the Occupy movement which are political par excellence.

It is rare that litigation subject matter is so politically polarizing. In fact, Samede is the type of case which should make us genuinely ask whether we wish courts to decide on issues of social policy at all. Reading the witness testimonies regarding the merits and demerits of the Occupy camp brings JAG Griffith’s maxim that the text of Convention rights ‘sound like the statement of a political conflict pretending to be a resolution of it’ sharply into focus. Moreover, Art 9 ECHR has a ‘stronger’ linguistic structure in relative terms, than Articles 10 and 11, and the High Court was cognisant of this. Whereas Articles 10 and 11 have second paragraphs providing for constraints on the operation of the rights on the grounds of inter alia necessity in a democracy, national security, territorial integrity or public safety, Article 9 does not carry the caveat shared by Articles 10 and 11 which explicitly limits ‘the exercise of these freedoms, since it carries with it duties and responsibilities’. This stronger structure is reinforced by section 13 of the Human Rights Act 1998 which mandates that ‘[if] a court’s determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right.’ In view of these three considerations it would have been manifestly unwise for the Court to extend the right to protest in the manner which the defendants in Samede sought without seriously bringing its own legitimacy into question.

If Occupy wishes to continue asking challenging and thought provoking questions of the utility of our financial and representative institutions in an effective way, it must do exactly that: question our constitutional system from the outside, as opposed to willingly participate.

Hayley J. Hooper is Lecturer in Law at Trinity College, Oxford