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Constitutional Law
What constitutional issues are raised by City of London v Samede [2012] EWHC 34 (QB)
(18 January 2012)?


[B]efore the Human Rights Act 1998 no document set out a range of rights which
government, legislature and courts should enforce. Protection of civil liberties, such as
freedom of speech, freedom of assembly and freedom from arbitrary arrest, was in the hands
of Parliament and the courts through the common law.1 The Human Rights Act 1998 was
passed to incorporate Convention rights into domestic law, thus enabling people to assert
positive rights against the state. The Act will guarantee to everyone the means to enforce a
set of basic civil and political rights, establishing a floor below which standards will not be
allowed to fall.2
The rights concerned in City of London v Samede [2012]3 are those under Article 10
(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
states that freedom of expression can be subject to such formalities, conditions, restrictions
or penalties as are prescribed by law and are necessary in a democratic society; 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
common to all permitted restrictions: first, there must be a legal basis for the restriction. It
was indicated in Silver v UK (1983)4 that there must be sufficient indication of the
circumstances in which the discretion will be exercised. Secondly, the restriction must be
1

Maureen and John Spencer, Human Rights Law in a Nutshell (1st Edition, Sweet & Maxwell, 2001), p. 7.
John Wadham and Helen Mountfield, Blackstones Guide to the Human Rights Act 1998 (Blackstone Press
Limited, 1999), p. ix (Foreword).
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City of London v Samede [2012] EWHC 34 (QB)
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Silver v UK (1983) 5 EHRR 347
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proportionate to the interest protected. It was held in Handyside v UK [1976]5 (at para 69) that
the restriction must be necessary in a democratic society. As Mr Justice Londblom
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), the greater the potential for the exercise of the right to interfere with the rights of
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
of freedom in applying the Convention, as per Sections 3 and 4, which state that it can be
impossible to read and give effect to legislation in a way which is compatible with the
Convention rights. Furthermore, Section 6 establishes that public authorities (including
courts and tribunals and any person whose functions are of a public nature, but not
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.
Those sections are at the core of City of London v Samede [2012]8, where the City
claims possession of some land which has been occupied by the defendants as a protest camp.
As outlined in para 1, the question is about the limits to the right of lawful assembly and
protest on the highway. The Citys claim to remove the defendants tents clearly interferes
with the defendants Article 10 and 11 rights. On the one hand, other than their rights under
arts 10 and 11 of the Convention, the defendants had had no arguable right to occupy,
control or take possession of highway land from the City as highway authority (at para 101).
Under the domestic legal provisions, the defendants have no right to put tents on a piece of

Handyside v UK [1976] 1 EHRR 737

City of London v Samede [2012] EWHC 34 (QB)
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Mayor of London (on behalf of the Greater London Authority) v Hall and others [2011] 1 WLR 504
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City of London v Samede [2012] EWHC 34 (QB)
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land under the Citys authority. However on the other hand, under Articles 10 and 11 of the
Convention the defendants are, in principle, entitled to express the views they want to
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
the defendants rights. As Mr Justice Londblom puts it, the crucial differences between the
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).
It is a matter for the court to decide whether the Citys claim is both necessary and
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
cause greater harm by having established their camp than the would otherwise9. The court
may also take into account other peoples rights under the Convention: as underlined at para
158, the camp continues to cause nuisance and to disrupt the exercise by others of their
Convention rights, including the Article 9 rights of those who wish to worship in St Pauls
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.
The court in City of London v Samede [2012]11 decided to make the Citys claim
succeed, because when the balance is truck, the factors for granting relief in this case easily
outweigh the factors against (at para 165). There is a legal basis for the limitation of the
defendants rights, and the restriction granted is proportionate to the interest protected.

See para 156.

Human Right Act 1998 Article 11(2).
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City of London v Samede [2012] EWHC 34 (QB)
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