Tabernacle v Defence Secretary

Yesterday the Court of Appeal gave judgment in this case about the right to freedom of expression – specifically to protest at the Aldermaston atomic weapons establishment. The protest in question is the Aldermaston Women’s Peace Camp; and the human rights issue arises because in 2007 the Defence Secretary made byelaws under section 14 of the Military Lands Act 1892 (not I think 1992, which is I think a typo in the judgment) making it an offence to camp in tents in the “controlled area” around Aldermaston. I wrote about this case earlier, when the court below was trying to decide the meaning of camp.

Well, the protesters have won their appeal: Laws LJ and his colleagues see the ban on camping as a clear interference with freedom of expression (the government ran a clever argument that the byelaws merely govern the form of protest, rather than striking at the right to protest; but the judges weren’t impressed) and disproportionate.

I’m interested in the way the Court of Appeal has dealt with remedies, though: Laws LJ says they’ll hear further argument (para. 44) on the form of relief. That’s because the big issue for Human Rights Act nerds here is whether the incompatibility with Convention rights arises only from the byelaws – in which case the Defence Secretary acted unlawfully when making them, and the byelaws can be struck down – or whether the power in section 14(2) of the 1992 Act, which says

… byelaws may also provide… for the prevention of nuisances, obstructions, encampments, and encroachments [on the land]…

is itself incompatible by permitting a ban on camping, in which case the byelaws will stand but the court may make declarations of incompatibility in respect of them and section 14(2), under section 4(2) and (4) of the Human Rights Act.

The judges must by now though have decided that the byelaws can’t under section 3 be read or given effect in a way which is compatible with Convention rights – and they’re obviously right. But with respect to them, that element of the reasoning ought to be spelled out in the judgment.