The other Lords judgment yesterday came in this interesting case about section 11 of the Public Order Act 1986, and whether Critical Mass is a procession requiring to be notified to the police, or is exempt under subsection (2) as a procession which is “commonly or customarily held”. Critical Mass is a gathering of cyclists on London’s South Bank which, one Friday each month, sets off biking around London in all sorts of directions, the cyclists making up their routes as they go along. Critical Mass had won in the Administrative Court, but that was reversed in the Court of Appeal, a majority thinking a procession has to have a route in order to be customary.
The Lords have reversed things again, unanimously holding, in favour of Critical Mass, that it is a customarily held procession and that its route does not have to be notified. Beyond this narrow question, though, Lord Phillips and Lord Brown say that Critical Mass is not a public procession at all: section 11 doesn’t apply to it, so it doesn’t need the benefit of section 11(2).
I’m interested in the facts themselves of course, and in the result, but I’m also interested in the way the Lords dealt with this “wider issue”. Lords Rodger and Carswell dodge the issue completely, while Lady Hale ducks out of it I think for the very bad reason that she apparently sympathises with Critical Mass – see paragraph 53. Lord Phillips deals with it obiter, but I think Lord Brown’s approach is the right one, and admirable. Since his view is that Critical Mass is not a public procession, he rightly sees that as the conclusive legal issue: the “narrow issue” becomes merely academic, and, as he rightly says, meaningless. I hope the Supreme Court when it starts work takes his robust approach to the straitjacketing of legal issues as happened in this case.
The brilliant Law in Action covered the case back in October – you can see a short video of Critical Mass here, and I think you should still be able to listen to the programme by downloading the podcast.
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