Lecture 18: Right to Protest

Question 1

What are some different ways to protest?

Answer 1

Protest can occur through assembling, marching, processing, writing letters, singing songs, or striking/sitting in.

Question 2

Is there a single ‘right’ to protest?

Answer 2

No, there is no single right to protest. It is a combination of freedom of expression, assembly, and association that together form the right to protest.

Question 3

What legal protections are in place for protest?

Answer 3

Protest is protected under the ECHR, the Human Rights Act (HRA), and common law.

Question 4

What is the right guaranteed by Article 11 of the ECHR?

Answer 4

Article 11 guarantees the right to freedom of peaceful assembly and freedom of association, including the right to form and join trade unions to protect one’s interests.

Question 5

What restrictions can be placed on the exercise of the rights in Article 11?

Answer 5

Restrictions can only be placed if they are prescribed by law and are necessary in a democratic society for national security, public safety, prevention of disorder or crime, protection of health or morals, or to protect the rights and freedoms of others.

Question 6

Does Article 11 allow for restrictions on certain groups?

Answer 6

Yes, the Article allows for lawful restrictions on the rights of members of the armed forces, police, or state administration.

Question 7

What is the significance of Article 11 ECHR?

Answer 7

Article 11 is one of the foundations of a democratic society, protecting the right to peaceful assembly and association, which are essential for expressing opinions and promoting freedom and democracy.

Question 8

What case highlights the objective of freedom of assembly and association under Article 11?

Answer 8

The case Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], 1999, § 37, highlights the importance of protecting opinions and the freedom to express them as part of the rights under Article 11.

Question 9

Which other rights are connected to Article 11 ECHR?

Answer 9

Article 11 is connected to:

Article 10 (Freedom of expression)
Article 9 (Freedom of thought, conscience, and religion)
Article 5 (Right to liberty and security)

Question 10

What is the meaning of “peaceful assembly” under Article 11 ECHR?

Answer 10

Peaceful assembly means a common purpose among participants, not a random gathering of individuals with differing causes, as seen in Navalnyy v. Russia [GC], 2018, § 110.

Question 11

What types of gatherings are covered under the right to peaceful assembly in Article 11?

Answer 11

The right to peaceful assembly applies to both private meetings and public gatherings, and can be exercised by individual participants or those organizing events, as stated in Kudrevičius and Others v. Lithuania [GC], 2015, § 91 and Djavit An v. Turkey, 2003, § 56.

Question 12

What rights do individuals have concerning the time, place, and manner of an assembly under Article 11?

Answer 12

Under Article 11, individuals have the right to choose the time, place, and manner of conducting the assembly, as highlighted in Sáska v. Hungary (2012, § 21).

Question 13

Does Article 11 ECHR apply to assemblies that are not peaceful?

Answer 13

No, Article 11 does not apply to gatherings where participants have violent intentions or incite violence, as outlined in Kudrevičius and Others v. Lithuania [GC], 2015, § 92.

Question 14

What factors are considered in establishing whether an assembly is peaceful under Article 11?

Answer 14

To determine whether an assembly is peaceful, courts consider: i. Whether the assembly intended to be peaceful and the organizers had violent intentions; ii. Whether the applicant demonstrated violent intentions when joining the assembly; iii. Whether the applicant inflicted bodily harm on anyone, as seen in Gülcü v. Turkey (2016, § 97) and Shmorgunov and Others v. Ukraine (2021, § 491).

Question 15

What obligations do states have regarding the right to peaceful assembly under Article 11?

Answer 15

States have both positive and negative obligations under Article 11:

They must not unreasonably restrict the right to assembly.

They must safeguard the right to assembly.

Question 16

What is the significance of freedom of association under Article 11?

Answer 16

Freedom of association under Article 11 is closely linked to democracy and pluralism, including the role of political parties.

Question 17

What does the term “association” mean under Article 11?

Answer 17

“Association” refers to a voluntary grouping of individuals for a common goal, as explained in Young, James and Webster v. the United Kingdom (1981, Commission’s report, § 167).

Question 18

Does the right to freedom of association under Article 11 cover the right to mix socially with others?

Answer 18

No, the right to freedom of association does not encompass the right to mix socially with others.

Question 19

What types of associations does Article 11 apply to?

Answer 19

Article 11 applies to private associations formed for common goals, not public or professional associations.

Question 20

What is the importance of the autonomy of an association under Article 11?

Answer 20

Article 11 guarantees the autonomy of associations, allowing them to operate independently without undue interference.

Question 21

Do individuals have the right to not join or withdraw from an association under Article 11?

Answer 21

Yes, individuals have the right not to join or withdraw from an association, as stated in Sigurður A. Sigurjónsson v. Iceland (1993, § 35) and Vörður Ólafsson v. Iceland (2021, § 45).

Question 22

What does Article 11(2) of the ECHR state regarding restrictions on the exercise of rights?

Answer 22

Article 11(2) states that no restrictions shall be placed on the exercise of these rights other than those prescribed by law and necessary in a democratic society.

Question 23

What are the two types of restrictions on the freedom of assembly under Article 11?

Answer 23

The two types of restrictions are:

Conditions on the exercise of the right.

Enforcement measures.

Question 24

What must be considered when analyzing interference with the rights to assembly or association?

Answer 24

Interference with these rights must:

Be prescribed by law.

Pursue a legitimate aim (such as national security, public safety, or protection of others’ rights).

Be necessary in a democratic society, considering proportionality and the “chilling effect” of the measure.

Question 25

What are the legitimate aims for restricting the rights under Article 11?

Answer 25

Legitimate aims for restrictions include: National security or public safety. Prevention of disorder or crime. Protection of health or morals. Protection of the rights and freedoms of others.

Question 26

Are there exceptions to restrictions on the right to assembly or association under Article 11?

Answer 26

Yes, lawful restrictions can be applied to members of the armed forces, the police, or the administration of the State.

Question 27

What legitimate aim under Article 11(2) of the ECHR corresponds to concerns in UK law regarding territorial security?

Answer 27

The legitimate aim of "National Security" corresponds to state security laws and controlled areas in UK law.

Question 28

How does UK law address the legitimate aim of "Prevention of disorder or crime" under Article 11(2) ECHR?

Answer 28

In UK law, this aim is addressed through public order laws, including regulations on hate speech and breach of the peace.

Question 29

Which aspect of UK law corresponds to the legitimate aim of "Protection of health or morals" under Article 11(2)?

Answer 29

In UK law, the protection of health or morals is addressed by obscenity laws and regulations concerning safety during assemblies and processions.

Question 30

How does UK law relate to the legitimate aim of "Protection of the rights and freedoms of others" under Article 11(2)?

Answer 30

UK law addresses this legitimate aim through laws regarding hate speech and harassment, which protect individuals' rights and freedoms from harm.

Question 31

What is the scope of "assembly" under UK law?

Answer 31

Under Section 16 of the Public Order Act 1986, an assembly is defined as "two or more people in a public place which is wholly or partly open to the air."

Question 32

What actions are not protected by Article 11 in UK law?

Answer 32

Actions such as riot, violent disorder, affray (violent intentions), and offences under Sections 1-3 of the Public Order Act 1986 are not protected by Article 11.

Question 33

What restrictions on the right to freedom of assembly exist under UK law?

Answer 33

Under UK law, restrictions on Article 11 include the Public Order Act 1986, Sections 4-5, which address provocation of violence and harassment, and the Protection from Harassment Act 1997.

Question 34

What does Section 14 of the Public Order Act 1986 allow regarding the exercise of the right to assembly?

Answer 34

Section 14 of the Public Order Act 1986 grants police powers to regulate assemblies, including the broad scope of "serious disruption to the life of the community," which now includes noise, and the ability to impose conditions on assemblies.

Question 35

What are the restrictions on "one person protests" under UK law?

Answer 35

Under Section 14Z of the Public Order Act 1986, there are restrictions on "one person protests," which may be subject to conditions.

Question 36

What are "trespassory assemblies," and how does UK law address them?

Answer 36

UK law allows for the banning of "trespassory assemblies," or assemblies that occur without the landowner's permission, under the Public Order Act 1986.

Question 37

What does the Public Order Act 1986 require for processions?

Answer 37

Under Sections 11-13 of the Public Order Act 1986, organisers must give notice of processions, including details of the reason, route, date, and time, and the police may ban public processions if conditions do not sufficiently prevent serious public disorder (Section 13(1)).

Question 38

What does the Police, Crime, Sentencing and Courts Act 2022 and the Public Order Act 2023 address regarding protests?

Answer 38

These Acts make it an offence to cause or risk serious harm, including serious annoyance or inconvenience, or to obstruct the public, under Section 78 of the Police, Crime, Sentencing, and Courts Act 2022.

Question 39

What does the concept of "breach of the peace" mean under UK common law?

Answer 39

"Breach of the peace" refers to disturbing the peace or preventing a person from lawfully carrying out their work. As stated in R v Chief Constable of Devon and Cornwall [1082], it occurs when a person is unlawfully and physically prevented from doing their work.

Question 40

When can the police exercise powers regarding a breach of the peace under UK common law?

Answer 40

Police powers can be exercised when a breach of the peace is imminent, as seen in R (Laporte) v Chief Constable of Gloucestershire Constabulary [2007 AC 105], where the scope of powers was changed post-Human Rights Act.

Question 41

What is the Abortion (Safe Access Zones) Bill (2022) in Northern Ireland?

Answer 41

The Abortion (Safe Access Zones) Bill was passed by the Northern Ireland Assembly on March 24, 2022, and made it an offence to influence a protected person (patients, companions, staff) within a safe access zone with intent or recklessness.

Question 42

What was the issue regarding the lack of a "reasonable excuse" defence in the Abortion Services case?

Answer 42

The issue was whether a sanction without a defence of reasonable excuse under the Abortion (Safe Access Zones) Bill was outside the legislative competence of the Northern Ireland Assembly, as it might interfere disproportionately with Article 9, 10, and 11 rights.

Question 43

What was the outcome of the Abortion Services case regarding the Bill's compatibility with Convention Rights?

Answer 43

The UK Supreme Court unanimously found that the Abortion (Safe Access Zones) Bill was compatible with Convention Rights.

Question 44

What reasons did the Court provide for finding the Bill compatible with Convention Rights?

Answer 44

The Court held that the Bill was within competence unless it caused unjustified interference, and the ingredients of the offence were such that a conviction would be compatible with Convention rights. The court did not apply DPP v Ziegler [2021] UKSC 23.

Question 45

What are the four questions used to assess potential interference with rights under the Abortion Services case?

Answer 45

The four questions to assess interference are: Is there a restriction or interference with the right? Is the interference prescribed by law? Does the interference pursue a legitimate aim? Is the interference necessary in a democratic society?

Question 46

What four questions must be asked to determine if interference is "necessary in a democratic society"?

Answer 46

To assess if interference is "necessary in a democratic society," the following questions must be asked: Is the aim sufficiently important to justify interference with a fundamental right? Is there a rational connection between the means chosen and the aim in view? Are there less restrictive alternative means available to achieve that aim? Is there a fair balance between the rights of the individual and the general interest of the community, including the rights of others?