The provisions of the Serious Organised Crime and Police Act 2005 that prohibit unauthorised demonstrations in the vicinity of Parliament Square have been constitutionally questionable from the start and they have regularly received bad publicity. Insofar as the coming into force of those provisions affected the pre-existing demonstrator, Brian Haw, this article suggests that the root of the problem dates back to Westminster City Council v Haw (2002), and to earlier extra-judicial statements of Lord Scarman that the European Convention on Human Rights should be used to permit demonstrations on public highways The Westminster decision (of Gray J) recognised that Mr Haw had made his home on part of the pavement in Parliament Square. The author argues that, once this finding of fact had been made in Haw's favour, Parliament (well-knowing of his activities) would have recognised that it had to use the ‘hybrid bill’ procedure, if- pace the Court of Appeal in R(Haw) v Home Secretary (2006)- it had genuinely intended to criminalise his continuing demonstration. Haw was probably the only person who could not obtain prior authorisation for commencing his demonstration. This article discusses the nature of ‘hybrid’ legislation and the Parliamentary procedure which requires it to be used. Because that procedure was not used in the case of the Parliament Square legislation, the author argues that, as a matter of statutory interpretation, the Divisional Court was correct to use the literal interpretation which exonerated Haw, and that the Court of Appeal was wrong to use a purposive approach which identified him almost by name. Whilst showing some sympathy for the approach of the common law, that the public's right to the highway should be limited to the right to pass and re-pass, for all proper purposes, the author suggests that there will be future dangers if Parliament and the courts forget that the rule of ‘formal generality’ and ‘equality before the law’ is preserved by the distinction between Public and Private Bills.
Document Type: Research Article
Publication date: January 1, 2008
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Until 2007 the King's Law Journal was known as the King's College Law Journal. It was established in 1990 as a legal periodical publishing scholarly and authoritative Articles, Notes and Reports on legal issues of current importance to both academic research and legal practice. It has a national and international readership, and publishes refereed contributions from authors across the United Kingdom, from continental Europe and further afield (particularly Commonwealth countries and USA). The journal includes a Reviews section containing critical notices of recently published books.