In my opinion your Lordships' House should so hold for three main reason which are as follows. First, the common law recognises that there is a right for members of the public to assemble together to express views on matters of public concern and I consider that the common law should now recognise that this right, which is one of the fundamental rights of citizens in a democracy, is unduly restricted unless it can be exercised in some circumstances on the public highway. Secondly, the law as to trespass on the highway should be in conformity with the law relating to proceedings for wilful obstruction of the highway under section 137 of the Highways Act 1980 that a peaceful assembly on the highway may be a reasonable use of the highway. Thirdly, there is a recognition in the authorities that it may be appropriate that the public's right to use the highway should be extended, in the words of Collins L.J. in Hickman v. Maisey at p. 758:
"in accordance with the enlarged notions of people in a country becoming more populous and highly civilised, but they must be such as are not inconsistent with the maintenance of the paramount idea that the right of the public is that of passage."
I now turn to state these reasons more fully.
The common law right of public assembly is unduly restricted unless it can be exercised in some circumstances on the public highway
In Hubbard v. Pitt  Q.B. 142, 178 Lord Denning M.R. stated:
"Finally, the real grievance of the plaintiffs is about the placards and leaflets. To restrain these by an interlocutory injunction would be contrary to the principle laid down by the court 85 years ago in Bonnard v. Perryman  2 Ch. 269, and repeatedly applied ever since. That case spoke of the right of free speech. Here we have to consider the right to demonstrate and the right to protest on matters of public concern. These are rights which it is in the public interest that individuals should possess; and, indeed, that they should exercise without impediment so long as no wrongful act is done. It is often the only means by which grievances can be brought to the knowledge of those in authority--at any rate with such impact as to gain a remedy. Our history is full of warnings against suppression of these rights. Most notable was the demonstration at St. Peter's Fields, Manchester, in 1819 in support of universal suffrage. The magistrates sought to stop it. At least 12 were killed and hundreds injured. Afterwards the Court of Common Council of London affirmed 'the undoubted right of Englishmen to assemble together for the purpose of deliberating upon public grievances.' Such is the right of assembly. So also is the right to meet together, to go in procession, to demonstrate and to protest on matters of public concern. As long as all is done peaceably and in good order, without threats or incitement to violence or obstruction to traffic, it is not prohibited: see Beatty v. Gillbanks (1882) 9 Q.B.D. 308. I stress the need for peace and good order. Only too often violence may break out: and then it should be firmly handled and severely punished. But so long as good order is maintained, the right to demonstrate must be preserved. In his recent inquiry on the Red Lion Square disorders, Scarman L.J. was asked to recommend that 'a positive right to demonstrate should be enacted.' He said that it was unnecessary: 'The right, of course, exists, subject only to limits required by the need for good order and the passage of traffic': The Red Lion Square Disorders of 15 June 1974 (1975) (Cmnd. 5919), p. 38. In the recent report on Contempt of Court (1974) (Cmnd. 5794), the committee considered the campaign of the 'Sunday Times' about thalidomide and said that the issues were 'a legitimate matter for public comment': p. 28, line 7. It recognised that it was important to maintain the 'freedom of protest on issues of public concern': p. 100, line 5. It is time for the courts to recognise this too. They should not interfere by interlocutory injunction with the right to demonstrate and to protest any more than they interfere with the right of free speech; provided that everything is done peaceably and in good order."
In Hubbard v. Pitt the issue before the Court of Appeal was whether the judge in the High Court was right to grant an interlocutory injunction. Lord Denning dissented on this issue from the other members of the court, Stamp and Orr L.JJ., but they did not express an opinion on the right of public assembly.
In Hirst and Agu v. Chief Constable of West Yorkshire (1987) 85 Cr.App.R. 143, 151 Otton J. cited the above passage from the judgment of Lord Denning in Hubbard v. Pitt and said:
"The courts have long recognised the right to free speech to protest on matters of public concern and to demonstrate on the one hand and the need for peace and good order on the other."
If, as in my opinion it does, the common law recognises the right of public assembly, I consider that the common law should also recognise that in some circumstances this right can be exercised on the highway, provided that it does not obstruct the passage of other citizens, because otherwise the value of the right is greatly diminished. The principles of law in Canada governing the right of public assembly are different to those in England, in part because the Canadian Charter of Rights and Freedoms gives an express right of freedom of expression, but I consider that the reasoning in the following passage in the judgment of Lamer C.J.C. in the Supreme Court of Canada in Committee for the Commonwealth of Canada v. Canada (1991) 77 D.L.R. (4th) 385, 394 should also apply to the common law right of public assembly:
". . . the freedom of expression cannot be exercised in a vacuum . . . it necessarily implies the use of physical space in order to meet its underlying objectives. No one could agree that the exercise of the freedom of expression can be limited solely to places owned by the person wishing to communicate: such an approach would certainly deny the very foundation of the freedom of expression."
Conformity between the law of trespass to the highway and the law relating to wilful obstruction of the highway
Section 137(1) of the Highways Act 1980 provides:
"If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence . . ."
In Hirst and Agu v. Chief Constable of West Yorkshire the defendants were members of a group of animal rights' supporters which stood on the public street in the vicinity of a furrier's shop offering leaflets to pedestrians and holding banners. They were charged with an offence contrary to section 137(1). They were convicted by the Justices and their appeals to the Crown Court were dismissed. They then appealed by case stated to the Divisional Court. Both in the Crown Court and in the Divisional Court the submission of the prosecutor was:
"'that unless the presence of the defendants upon the highway was for the purpose of its lawful use (i.e. passing and re-passing over and along it) or some purpose incidental to that lawful use then their presence on the highway constituted an obstruction. He further contended that the question of 'reasonableness' did not fall to be decided if the court was satisfied that the presence of the defendants upon the highway was not for the purpose of its lawful use or some purpose incidental to it.'"
The Crown Court stated its conclusion as follows:
"We considered ourselves bound by the decision in Waite v. Taylor (1985) 149 J.P. 551. We found that to stand in the highway offering and distributing leaflets or holding a banner was not incidental to its lawful user, and accordingly that each of the defendants had wilfully obstructed the highway contrary to section 137 of the Highways Act 1980. We therefore dismissed the appeals."
The Divisional Court allowed the appeals and quashed the convictions. In his judgment Glidewell L.J. cited the judgment of Lord Parker C.J. in Nagy v. Weston (1965) 1 All E.R. 78, 80 in which Lord Parker said:
"It is undoubtedly true--counsel for the appellant is quite right - that there must be proof that the user in question was an unreasonable use. Whether or not the user amounting to an obstruction is or is not an unreasonable use of the highway is a question of fact. It depends on all the circumstances, including the length of time the obstruction continues, the place where it occurs, the purpose for which it is done, and, of course, whether it does in fact cause an actual obstruction as opposed to a potential obstruction."