Article 11 Right to protest and freedom of association

Everyone has the right to freedom of peaceful assembly. This is a right closely linked to the right to freedom of expression.

It provides a means for public expression and is one of the foundations of a democratic society.

The right applies to protest marches and demonstrations, press conferences, public and private meetings, counter-demonstrations, ‘sit-ins’, motionless protests etc.

The right only applies to peaceful gatherings and does not protect intentionally violent protest.

There may be interference with the right to protest if the authorities prevent a demonstration from going ahead; halt a demonstration; take steps in advance of a demonstration in order to disrupt it; and store personal information on people because of their involvement in a demonstration.

The right to peaceful assembly cannot be interfered with merely because there is disagreement with the views of the protesters or because it is likely to be inconvenient and cause a nuisance or there might be tension and heated exchange between opposing groups.

There is a positive obligation on the State to take reasonable steps to facilitate the right to freedom of assembly, and to protect participants in peaceful demonstrations from disruption by others.

Freedom of association

Everyone has the right to freedom of association with others.  This includes the right to form and to join trade unions and to join with others to pursue or advance common causes and interests.  It also includes the right to formally join or create associations. 

Necessarily included in the right of association is the freedom not to associate with others.  There is no right for any individual to join a particular association if other members of the group decide not to include them or to expel them on the basis that their membership was not compatible with the aims and interests of the association.  However, in relation to trade unions, if a decision not to include a person has adverse employment consequences, any such decision must not be unreasonable or arbitrary.

Freedom of association also protects the right to refuse to join an association. This does not include professional regulatory bodies set up by the State to regulate professions, as these are not considered to fall within the definition of an ‘association’.

Limitations

Article 11 is a qualified right and as such the right to protest and the freedom of association may be limited so long as the limitation:

  • is prescribed by law;
  • is necessary and proportionate; and
  • pursues a legitimate aim, namely:
    • the interests of national security or public safety;
    • the prevention of disorder or crime;
    • the protection of health or morals; or
    • the protection of the rights and freedoms of others.

 

The requirement to give notice of plans to stage an assembly in advance will not necessarily breach the right to protest as long as notification doesn’t become a hidden obstacle to exercising freedom of assembly.

Article 11(2) also states that this right will not prevent lawful restrictions being placed on the exercise of these rights by members of the armed forces, the police or the administration of the State.  However, this has been narrowly interpreted to require convincing and compelling reasons for any such restrictions to be valid.
 

Case study

In early 2003 around 120 protestors travelled by three coaches from London in order to demonstrate against the Iraq war at a Royal Air Base in Gloucestershire.  Five kilometres from the Air Base, police, who were aware the group was travelling to the protest, stopped the coaches.  Police searched the coaches and seized a number of items including helmets, overalls, scarves, scissors and a safety flame belonging to a small number of protestors.

The police then took the decision that while there was no proper basis to arrest anyone for breach of the peace, they would turn the coaches back and prevent the group from attending the protest.  As a result, everyone in the coach were induced back on to the coaches (under the impression they would be on their way to the protest), but then forced to return to London for the 2½ hour journey.  The coaches had a police escort the entire way and were prevented from stopping anywhere, even for people to relieve themselves.

One of the protestors sought judicial review against the police under Articles 10 and 11 of the HRA.  The House of Lords held that the police’s actions breached the protestors’ rights to free expression and protest.  As there had been no imminent threat to breach of the peace, the police’s actions in limiting the right to protest was not done in accordance with law.  It was also held to be an indiscriminate and disproportionate restriction on the claimant’s right to protest, as there was no reason to view the claimant as anything other than a committed peaceful demonstrator.

 

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