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Does the HRA protect our right to peaceful protest?
Assessing the effectiveness of the Human Rights Act 1998 (HRA) in protecting the right to peaceful protest is a pertinent task in light of the current calls to repeal the HRA. It is crucial to consider: the right itself; how the HRA protects the right in theory; the way it has been interpreted and implemented; and it’s effects in practice. Only a few areas can be explored thoroughly, but it can still be seen that much changed as a result of the HRA’s enactment. Although the current system is still not perfect, it is much better than it was before the HRA; returning to a system without the HRA would be regrettable.
The right itself
Only when we know what we value about the right to peaceful protest can we know how to protect it and how to limit it. Protesting has been labelled ‘"the politics of the street", because it is the means by which the relatively powerless can force into the political arena issues which would otherwise be excluded' (UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association). It is widely accepted that a right to peaceful protest is necessary for a healthy democracy. One only has to look at the recent ‘Arab Spring’ demonstrations, for example, to see just how powerful protests can be. Therefore, the right should be highly valued.
Before the HRA was enacted there were no ‘rights’ as we know them now, only civil liberties and responsibilities. In 1885 Dicey wrote that there were no rights to freedom of thought, speech or public meeting in England. Over a century later the protections available for peaceful protesters were still hard to find. They were mentioned in cases before the HRA was enacted; however, ‘a distinct right to … protest … [was still] more mixed and more difficult to trace…’ (David Mead).
Then, in DPP v Jones and Lloyd the House of Lords gave support to a right of assembly in the UK; however, this was not conclusive because of varying rationale, dissenting judgments and the fact it was pre-HRA. What was significant, though, was Lord Irvine’s statement that ‘our law will not comply with the Convention’ in its current state because ‘mere toleration doesn't secure a fundamental right…’ (DPP v Jones and Lloyd). His approach is favourable because it acknowledges that, for our society to be fair, the right should be valued more than it was.
Once the HRA came into force, the protection for the right to peaceful protest was strengthened further. Although it is not explicitly contained in the HRA, it is still protected by the Act. It is an amalgamation of fundamental rights, mainly: the rights to freedom of assembly and freedom of association in Article 11 HRA and freedom of speech in Article 10 HRA. Sections 2 and 3 of the HRA state that when applying the Act, domestic courts must interpret legislation and decide cases in line with the European Convention on Human Rights (ECHR) and the European Court of Human Rights (ECtHR).
If protests are indeed peaceful then the rights to freedom of assembly and freedom of association (under Article 11 HRA and ECHR) can be invoked if they are interfered with. These rights ‘impose significant duties on states’ (Ewing and Hendy). This can be seen by the decision in Bqczkowski and ors v Poland: the state must not only refrain from creating obstacles to these rights, but it must also take steps to secure them. With regards to the application of Article 11 in the UK, however, there are concerns that ‘the focus of the legal framework on freedom of peaceful assembly is overall more on ensuring public order, rather than on a human rights-based approach to facilitating peaceful assemblies' (UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association). This needs redressing.
Article 10 HRA and ECHR encompass ‘expression in any medium...’ (Equality and Human Rights Commission). Steel and others v UK differentiates between types of protests that should or should not fall within the scope of Article 10. This helped the UK find that this fundamental right was applicable to peaceful protesters. The right to freedom of expression also gives state both positive and negative obligations. The UK do recognise these obligations; this can be seen in Redmond-Bate v DPP. This case concerned Christians protesting peacefully outside a cathedral. The police told them to stop because they were worried about a potential breach of the peace; however they continued and were thus arrested.
The court found in favour of the protesters. The decision was not straightforward; nonetheless, the right balance was made. This is evidence of the ‘constitutional shift’ in the system of rights protection in the UK.
It seems indisputable that the right to peaceful protest is protected, in theory at least, within the scope of Articles 10 and 11 of the HRA and the ECHR. Still, all the conditions specified in those Articles must be met by the specific protest. Also, these rights are not absolute, so they can be limited.
Restrictions and balances
The restrictions under Articles 10(2) and 11(2) must be prescribed by law, in accordance with a legitimate aim, which must be necessary in a democratic society. This final stage includes an assessment of proportionality. These tests are applied in Vajnai v Hungary, where a total ban of a protest was held to be in violation of Article 10 ECHR; it was too broad and indiscriminate to be necessary in a democratic society, nor was the interference in line with any ‘pressing social need’. The Court elaborated that ‘[t]o hold otherwise would mean that freedom of speech and opinion is subjected to a heckler’s veto.’ Similarly, in relation to Article 11 ECHR, the ECtHR affirmed that it is so important ‘that a person cannot be subjected to a sanction … for participation in a demonstration which has not been prohibited, so long as this person does not himself commit any reprehensible act on such an occasion' (Fáber v Hungary). Article 17 ECHR is a further safeguard to the limitation of the rights; it protects against abuse of rights. When applied, this means that ‘[e]xpression may not be protected if it is incompatible with a society based on tolerance, pluralism, and broadmindedness' (Sunday Times v UK). Restrictions must also be not interpreted narrowly. The UK should comply with this requirement because arbitrary or excessive limitations will not completely protect the right to peaceful protest.
These requirements are essential because they emphasise just how important the right to peaceful protest is, yet acknowledge that there are other rights and interests to be considered. If they were properly followed then we may truly be able to say we live in a ‘human rights culture’ (Jane Gordon). Unfortunately, while it seems that the right to peaceful protest is effectively protected in theory, there are further difficulties.
First, there is ‘considerable scope for manouvre by domestic courts’ (Ewing and Hendy). UK court judgments on this are still disappointing sometimes; often because they don't always interpret the restrictions properly. For instance, the notorious Austin case seems to have ‘aided in opening the door to police policies of suppression and intervention in protest…’ (Helen Fenwick), rather than protecting the right to protest in line with the ECHR. Experts have criticised it for many reasons, ‘notably at a doctrinal and policy-level’ (Mead), so domestic courts should no longer follow this approach.
The right to peaceful protest is not absolute, so it must be balanced with other rights. Sometimes it is unclear which right should ‘trump’ the other right. Other times it is clear, yet the wrong right triumphs. This can be seen with regards to various different issues; for example, retention of protesters’ data (Segerstedt-Wiberg and ors v Sweden), or balancing protesters’ rights with counter protesters’ rights (Platform ‘Ärtze für das Leben’ v Austria) etc. However, I will focus on the tensions of protesters rights with private property rights and with policing concerns here.
Private property rights
Previously, the UK did not protect the right to freedom of assembly on private property (Anderson v UK). In Appleby v UK there was no violation of Article 11 ECHR when protesters were stopped from leafleting in a private shopping centre. Nonetheless, the ECtHR held that it would be possible for them to find a violation where ‘the bar on access to property has the effect of preventing any effective exercise of freedom of expression or it can be said that the essence of the right has been destroyed...’ However, Appleby has been criticised - rightly so - because the ECtHR sanctioned the position that it is the ‘absolute right of the common law, the defining characteristic of ownership and title, … to exclude all-comers without reason…’ (Mead). Unfortunately private interests are still being prioritised over the right to peaceful protest, which is ‘constrained … by the availability of land and the ease with which companies can obtain injunctions’ (Mead).
There are constantly new protests against private actors, though; for example, the current anti-fur protests at Harvey Nichols. The UK should act under its positive obligations to protect the protesters’ rights against the threats from Harvey Nichols. In this case, the High Court reduced the restriction in the injunction ‘from 10 metres to 7.5 metres’, protecting protestor’s rights (Alison Stacey); but this is just one case. The UK needs to do more to shift the balance in favour of the right to peaceful protest in general. There have even been calls for legal reform that have been ignored (J Rowbottom). Changes to the current system clearly should be made, to ensure that effective protection is afforded to protesters’ rights, otherwise ‘the company would always likely triumph’ (Mead).
Policing concerns
The police’s role in protest situations is to contain them and ‘prevent them from becoming disorderly’ (Waddington and Leopold). The police must follow the relevant rules just as much as other state actors and protesters must. In addition to the HRA, there are other laws that govern the right to peaceful protest, most importantly, the Public Order Act 1986 (POA):
‘By virtue of ss.12 and 14, the police are able to impose conditions on such events provided that they reasonably believe that the demonstration in question may result in either serious public disorder, serious damage to property, serious disruption to the life of the community, or the purpose of those organizing the demonstration is to intimidate others' (Neil Parpworth).
While this may be performed properly in most instances, misuse of police powers impede the effectiveness of the HRA in protecting the right to peaceful protest.
Notoriously, Laporte involved the police preventing a coach-load of people from reaching the site of a planned protest. Instead of using their statutory powers, ‘police sought to justify the legality of their decisions as actions reasonably taken to prevent a reasonably anticipated breach of the peace’, which is a power they have under the common law (Human Rights Joint Committee). The House of Lords held that the police had illegally and disproportionately interfered with the protesters’ rights under Articles 10 and 11 HRA. This was because ‘no breach of the peace was or could reasonably be apprehended to be “imminent”…' (R (Laporte) v Chief Constable of Gloucestershire Constabulary). This is a good decision, but still shows how fragile protesters’ rights are in practice. Parliament wouldn't have intended police to have powers that went beyond their statutory powers. Nevertheless, Fenwick rightly stated that: ‘the common law doctrine of breach of the peace overshadows all the statutory changes over the last ten years'. Therefore, we have lost some of the gains we achieved since the enactment of the HRA. Giving the police guidance to ignore politics; respect rights; and remember to be neutral could help solve this. Proactive policing and more communication before protests could also help, but policing will always be difficult in modern society.
Kay highlights more of these difficulties. The major question in this case was whether a Critical Mass bike ride is a public procession for the purposes of the POA. This was important because of the requirements to have an organiser and for notice to be given to police about protests under s.11 POA. These requirements are too onerous and too bureaucratic. Thankfully, in Kay, the court decided that no notice was required for that type of protest. This is sensible; it acknowledges that, even though the requirement to give notice doesn't automatically violate Article 11 ECHR (Bukta v Hungary), this will not be proportionate in every situation.
There should still be a change in legislation to accommodate this kind of well-established protest. Further, Kay involved a big protest, where disruptions were likely, but protests can be small and non-disruptive. A threshold requirement, to differentiate between protests in this way, should be considered because ‘lack of clarity [may allow] … breaches of the Convention to occur…’ (Nick Taylor). S.11 POA also requires that notice be given at least 6 days before a procession. Even common sense tells us that this will be problematic; it rules out spontaneous protests. The Special Rapporteur himself is ‘in favour of shorter notice, which is more conducive to the exercise of the right to freedom of peaceful assembly.’ (UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association).
Clearly, policing protests is difficult and this must be acknowledged; however, the above cases show that there are inconsistencies with the courts’ reasoning in this area. This is bad because any application of a human right should be universal. They also show that the legislation in place is in need of reform too. Decisions and legislation should always be in line with the HRA and ECHR in order to ensure sufficient protection for the right to peaceful protest.
Should the HRA be repealed?
Evidently, much more needs to be done to protect the right to peaceful protest. Yet instead of an outcry to improve the state of our human rights, there are movements to further erode them.
The Conservatives have plans to replace the HRA with a British Bill of Rights and Responsibilities (BBRR). They stated that their intention is to: ‘put Britain first, taking action to reform the human rights laws in the UK’. This may sound appealing, but their plans are extremely problematic. Not only are their criticisms of the HRA ‘paradoxical and ill-informed’ (Alice Donald), moreover, their plans for a BBRR appear utterly incompatible with creating an effective bill of rights. Chakrabarti’s opinion on this is clear: ‘They are wrong’. Without the safeguards in the HRA and ECHR we would find it much harder to rely on the right to peaceful protest, and all other rights we possess in the UK. The fundamental problem is that the BBRR appears to be ‘an attempt to redefine our fundamental rights as citizens’ privileges' (Chakrabarti). The right to peaceful protest must be more than a privilege because one shouldn't have to be granted the opportunity to protest by the people they are protesting against; that may be near-impossible anyway.
Conclusion
Although there are in theory ways to protect the right to peaceful protest under the HRA, it is not always properly or fully guaranteed, especially not in practice. Nevertheless, the current problems can be solved without repealing the HRA. In fact, repeal would cause more harm than good. Yet changes clearly need to be made to the current system. The main thing to consider, when contemplating which changes to make is how important the right to peaceful protest is; if we lose sight of this then we are in real danger. You wouldn't want to live in a State where you couldn't peacefully stand up for what you believe in, would you?