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Poetic Justice

Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23

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Abstract

This note examines the decision of the Court of Appeal in Tabernacle v Secretary of State for Defence (2009). The court held that byelaws prohibiting camping on Ministry of Defence land adjacent to the Atomic Weapons Establishment at Aldermaston, Berkshire violated the human rights of women peace protestors under Articles 10 and 11 European Convention on Human Rights. The note argues that this decision calls into question arguments recently made, that the association of women with peace should be abandoned. It also reveals the potential of law to facilitate the performative and transformative production of subject positions, as ‘woman’, which do not depend on or connect with debilitating patriarchal constructions of women as weak or vulnerable.

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Notes

  1. The Atomic Weapons Research Establishment (AWRE) Aldermaston Byelaws 1986 SI 1986 No 746, available at http://www.defence-estates.mod.uk/byelaws/Internet/Revoked.php (last accessed 30 April 2009).

  2. 1986 byelaws, para 1(a).

  3. 1986 byelaws, para 1(b).

  4. 1986 byelaws, para 4(2)(b).

  5. See Tabernacle v Secretary of State for Defence [2008] EWHC 416 (Admin) para 5 per Maurice Kay LJ. It is worth pointing out that the understanding of the AWPC and MoD police seems to be that the 1986 byelaws did not prohibit their camp (which was not in any case in one set location), and that the 2007 byelaws extended the scope of the Controlled Area to cover the AWPC for the first time (AWPC 2009, p. 1).

  6. The Atomic Weapons Establishment (AWE) Aldermaston Byelaws 2007 SI 2007 No 1066, available at http://www.defence-estates.mod.uk/byelaws/Internet/Reviewed.php (last accessed 30 April 2009).

  7. Breach of the 2007 byelaws is made a criminal offence by para 9 and by s 17(2) Military Lands Act 1892.

  8. See the camp blog for 17 June 2007, available at http://www.aldermaston.net/camp/blog.php (last accessed 30 April 2009).

  9. Tabernacle v Secretary of State for Defence [2008] EWHC 416 (Admin) at paras 13–15.

  10. The court held that “annoyance” is to be measured by the reaction of a reasonable person and so is a term of sufficient certainty to satisfy judicial review, and that as the purpose of paragraph 7(2)(j) is to prevent anti-social activity which falls short of constituting the tort of nuisance, there was a justifiable infringement of Articles 10(1) and 11(1) ECHR, being “necessary…for the prevention of disorder or crime…, for the protection of…the rights of others”: ibid at para 34. This point was not further argued on the appeal.

  11. Ibid at para 23.

  12. The court was rather vague about which of the justifications in Articles 10(2) and 11(2) were being relied on. Mention was made, by way of justification, of issues of security raised by persons camping near military bases. The court also referred to the lack of sanitary facilities on the site, and “numerous complaints” made to AWE regarding the behaviour of AWPC members, and of members of the public reacting to the camp, for example motorists were said to be sounding their horns when passing the camp (ibid at paras 23–25).

  13. Ibid at para 25.

  14. [2009] EWCA Civ 23. All subsequent references to the Court of Appeal’s decision are to this report unless otherwise indicated.

  15. Laws LJ treated the claimed breach of Article 11 as secondary to the claimed breach of Article 10. This was on the basis that the freedom of assembly issue “is on the facts not so much to be regarded as an autonomous claim, but rather as underlining the mode of free expression relied on: a communal protest in a camp established for the purpose” (para 10), although he did proceed to find a breach of both Articles (see para 44).

  16. Para 11.

  17. Sunday Times v United Kingdom (1979) 2 EHRR 245.

  18. Para 48.

  19. Para 49.

  20. Para 41.

  21. Para 42.

  22. Para 43.

  23. The Secretary of State also argued that as the Government owned the land and the only right of public access came from the byelaws, the interference with the Article 10 rights of the applicant should be treated only as minor. This point was significant in the High Court (see Tabernacle v Secretary of State for Defence [2008] EWHC 416 (Admin) at para 25) but the Court of Appeal dismissed it summarily (para 38) on the basis that the position of the Secretary of State, as guardian of public land, is not analogous to that of a private land-owner as he or she has no capacity to reserve rights in the land vis-a-vis the general public.

  24. See the cases cited by Laws LJ at para 16.

  25. “Discretionary area of judgment” was Laws LJ’s suggested replacement for the concept of the “margin of appreciation” when the concept is employed in a domestic law context (para 26).

  26. Para 36.

  27. Para 35.

  28. Para 37.

  29. Para 38.

  30. Para 43.

  31. Para 43.

  32. Para 47.

  33. See para 46, citing the witness statement of the MoD estate manager.

  34. See para 14.

  35. Wall LJ at para 49 describes the High Court’s view as “unduly dismissive”.

  36. Noted by Laws LJ at para 23.

  37. Some of which took “a particularly unpleasant form” according to Laws LJ at para 31.

  38. See the camp blog, supra n 8.

  39. This includes the imposition of some surreal interpretations of the byelaws. For example, the camp blog for 12 August 2007 (supra n 8) recounts an incident in which a woman lying at night in a bivouac bag in the Controlled Area was woken by MoD police at hourly intervals, on the basis that lying in a bag awake was not in breach of para 7(2)(f) of the 2007 byelaws, but lying asleep in the same bag constituted camping and so was in breach of that para. This seems to posit a crime, the actus reus of which is sleeping.

References

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  1. School of Law, University of Nottingham, Nottingham, NG7 2RD, UK

    Ralph Sandland

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  1. Ralph Sandland
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Correspondence to Ralph Sandland.

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Sandland, R. Poetic Justice. Fem Leg Stud 17, 219–228 (2009). https://doi.org/10.1007/s10691-009-9122-9

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