We launched the Andrew Lockley Public Law Essay Competition in 2021 to give aspiring public law and human rights lawyers a platform to kick-start their careers. The contest is named after the first head of our Public Law team and we were delighted to run it again this year.
We’ve received some brilliant entries, and we’re proud to present this year’s winner: Laura Bramall.
Laura completed the Bar Vocational Studies Course (BVS), at City, University of London this summer. She’s now a prison lawyer and has hopes to practice as a Public Law barrister in the future.
She answered the question:
What key factors should the courts consider and give most weight to when balancing the rights to freedom of expression and assembly of protestors with disruption to other members of the public?
Our expert panel of judges featured Angela Jackman KC (Hon), Yogi Amin and Oliver Carter from our Public Law team. They enjoyed reading Laura’s essay.
Angela said:
“Laura’s essay was a pleasure to read. It was clear from the introduction that the essay would be well-structured, and she outlined at an early stage the perspective that would be argued.
“Laura made cogent references to both domestic and European case law, discussed international treaties and drew upon key legislation. She adeptly analysed the competing interests between individuals’ rights of protest and protecting the public’s right to come and go freely, whilst debating the underlying need for the courts to apply the principles of proportionality.
“The essay also stood out due to the extensive research evidenced in the bibliography and reference to current protests. Very well done, Laura.”
Oliver continued:
“Protest has been the subject of intense political debate and significant legal reform in recent years, and we were delighted to receive so many excellent essays on this topical question.
“Amongst strong competition, Laura’s essay stood out for its clear structure, detailed analysis, and fluent style. Laura cited relevant judgments in explaining how the courts assess the proportionality of any interference with protest rights, and examined the key factors which they consider. As Laura notes in her conclusion, recent legislation may influence how the courts conduct proportionality assessments, perhaps reducing the level of protection given to freedom of expression and assembly.
“Congratulations to Laura, a very worthy winner of the Andrew Lockley Public Law Essay Competition in 2023!”
Read Laura’s entry in full below.
Since the statutory ratification of the European Convention of Human Rights (ECHR) by the Human Rights Act (HRA) in 1998, the rights to freedom of expression (Article 10) and assembly of protestors (Article 11) (‘The Rights’) have been protected in English and Welsh law. The relationship between the two Articles is most often engaged in the law of protesting: the protection of personal opinions by Article 10 is one of the objectives of Article 11 [Ezelin v. France [1992] EHRR 362 at [37]]. Protesting is a pertinent issue: before The Rights were made statutory by the HRA, ‘the approach of the English common law to freedom of expression and assembly was hesitant and negative’ [Lord Bingham in R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55 [34]]. Yet the Police, Crime, Sentencing and Courts Act 2022 has significantly restricted protesting rights. The courts in England and Wales must now balance the rights of people described by Priti Patel as ‘thugs’ with the maintenance of a properly functioning society.
This essay will examine the key factors that must be balanced when the courts consider cases that engage the rights to freedom of expression and assembly of protestors. These are: the UK’s international (including positive) obligations, the level of disruption that is caused by the actions of the protestors, the presence of violence, and whether there has been discrimination against a person or group of people. This essay will conclude that the courts must consider these and other factors in order to undertake an assessment of proportionality: to decide whether interference with The Rights is ‘necessary in a democratic society’.
International Obligations
In addition to the ECHR, English and Welsh courts are also bound by the International Covenant on Civil and Political Rights (ICCPR) which guarantees the right to peaceful assembly at Article 211. The ICCPR, ECHR, and HRA all dictate that any Parliamentary restrictions on The Rights must be provided in law and proportionate to one or more of the legitimate aims listed in their stated provisions. These include inter alia national security, public safety, and public order. The ECHR requires, in addition, that the restriction be justified by a ‘pressing social need’.
Although English and Welsh courts will be mindful that Parliament has a wide margin of appreciation in determining whether restrictions are proportionate, they must remember that the UK’s international legal obligations also include a positive duty to protect The Rights. The ECtHR rules that this includes protecting participants of assemblies from fear of physical violence from counter demonstrators [Plattform ‘Artze fur das Leven’ v Austria App no 10126/82 (ECtHR, 21 June 1988]. The UNHRC extends the positive obligation to allowing the protest to take place at the protestors’ desired location, even if that means some disruption to daily activities, is not formally authorised, and involves protecting participants from state and private interferences [Turchenyak et al. v Belarus No. 1984/2010 [UN Human Rights Committee, 10 September 2023]]. Indeed, the UK College of Policing teaches that the police have a duty to take reasonable steps to protect participants from threats of disruption.
The UK cannot invoke its domestic law as a justification for failure to comply with its obligations under international law [Vienna Convention on the Law of the Treaties, 1155 UNTS 331, Art 27]. Therefore, the courts should consider the restrictions imposed by the Policing Act 2022 to be secondary to the international obligations outlined above. The UK’s international obligations are fundamental to the courts’ assessment of proportionality: the judiciary must uphold international law.
Level of disruption to the public
Although The Rights derive from international law, a state is able to limit the exercise of The Rights if the protestors’ actions amount to ‘reprehensible acts’ [Kudrevičius v Lithuania [GC] App no. 37553/05 (ECtHR, 26 November 2013) at [81]]. Per Kudrevičius, the state’s margin of appreciation is wide in its assessment of the necessity of measures to prevent ‘reprehensible acts’ [145]. A ‘reprehensible act’ may even attract a criminal sanction. ‘[P]hysical conduct obstructing traffic and the ordinary course of life’ is not at the core of the freedom that Articles 10 and 11 were created to protect [97]. Therefore, the courts should attribute great weight to the level of disruption caused to the public by a protest. It is open to judges to find that an act during a protest is so reprehensible that it falls outside of the protection of Articles 10 and 11.
When considering this factor, the courts should use ECtHR case law as a reference point. This dictates that a demonstration on a public highway is not prohibited per se [Barraco v France App no. 31684/05 (ECtHR, 5 March 2009)] and that blocking three major roads and exceeding the scope of permits issued does not constitute a ‘reprehensible act’ [Kudrevičius]. Indeed, the UK Supreme Court has ruled that a deliberately obstructive protest on the highway retains the protection of Articles 10 and 11, despite its considerable disruption to the public [DPP v Ziegler and others [2021] UKSC 23].
Presence of violence
A ‘reprehensible act’ may be a violent one. UNHRC Article 21 demands that an assembly be peaceful and the High Court makes clear that if a protestor is violent, he is not entitled to rely on Articles 10 and 11 [DPP v Cuciurean 2022] EWHC 736 (Admin) at [86]]. Although individuals who act violently during a protest will still retain the protection of other rights under international and domestic law, the courts must consider violence early on in their assessment.
It is, however, unclear what may constitute violence. The UNHRC notes that ‘mere pushing and shoving or disruption of vehicular or pedestrian movement or daily activities’ would not amount to violence for the purpose of Article 21 [UN Doc CCPR/C/GC/37]. Yet domestic law dictates that a protestor can be arrested merely for failure to comply with conditions or for ‘breach of the peace’ based on the police’s apprehension of harm [Laporte and Christian v Commissioner of the Police of the Metropolis [2014] EWHC 3574]. English and Welsh courts should bear in mind that conduct must cross a higher threshold to constitute ‘violence’ in international law than under UK law. The point at which a protest, or protestor, becomes violent and loses the protection of Articles 10 and 11 must be determined on a case-by-case basis. Yet it is crucial to the court’s assessment.
Real or potential discrimination
While consideration of real or potential discrimination is not unique to cases involving Articles 10 and 11, it is nevertheless important. Both Articles must be guaranteed to everyone without discrimination based on any grounds listed in the Equality Act 2010. The UN finds the possibility of discrimination against people living in poverty relevant to decisions on protests. Its report concludes that the criminalisation of acts like the ‘disruption of traffic’ and ‘road-blocking’ may disproportionately affect those who are of such socioeconomic status that such acts are their only means of making their voices heard [UN Doc A/74/349 at [46]].
The relevance of this factor in the courts’ judgments is particularly pertinent in relation to the ongoing protests against the British Government’s support of Israeli airstrikes in Gaza. While it is important to protect The Rights of pro-Palestinian protestors, the courts must consider the actual or potential antisemitism that has or may arise out of the protests.
Conclusion
Ultimately the courts must conduct a test of proportionality. The aforementioned factors are not exhaustive. In Zeigler, the Supreme Court included in its list other factors, such as the sincerity of the protestors’ beliefs and evidence of any complaints about the protest. The long term effect of the Policing Act 2022 and the amendments made to it by the Public Order Bill remains to be seen. The Joint Committee on Human Rights suggests that this new legislation will tilt courts’ assessment of proportionality away from the protection of Article 10 and 11 rights and towards reducing the disruption to the public. However, should the legislation lean too far, it will undoubtedly be met with a legal challenge on the basis that such interference with Articles 10 and 11 is not necessary in a democratic society and therefore not proportional.
Bibliography
Blaxland KC, Henry and Greenhall, Owen, Supreme Court upholds right to disruptive protest on highway (Garden Court Chambers blog, 25 June 2021) <Supreme Court upholds right to disruptive protest on highway | News | Garden Court Chambers | Leading Barristers located in London, UK> [Last accessed: 29.10.23]
Human Rights (Joint Committee), Legislative Scrutiny: Public Order Bill [First Report of Session 2022-23 8 June 2022] <Legislative Scrutiny: Public Order Bill (parliament.uk)> [Last accessed: 29.10.23]
Hughes, David, Just Stop Oil protesters ‘wreaking havoc’ and costing millions, says No 10 (The Independent, 30 August 2022) <Just Stop Oil protesters ‘wreaking havoc’ and costing millions, says No 10 | The Independent> [Last Accessed: 29.10.23]
Lazarus, Prof Liora; Atrey, Dr Shreya; Martin, Dr Richard (Oxford Pro Bono Publico), The Law on Policing Peaceful Protests (University of Oxford, September 2020)
Nuyts, Maya, What Freedom of Assembly? – An Analysis in Contemporary Law (The Yale Law Journal, 17 December 2018) <What Freedom of Assembly? - An Analysis in Contemporary Law - The YLJ> [Last accessed: 29.10.23]
Royal College of Policing, Public order public safety <Public order public safety | College of Policing> [Last accessed: 29.10.23]
UN General Assembly, Note by the Secretary General: Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association (11 September 2019) UN Doc A/74/349
UNHRC, General Comment No 37 – Article 21: Right of Peaceful Assembly (27 July 2020) UN Doc CCPR/C/GC/37
Cases cited
Domestic
DPP v Cuciurean [2022] EWHC 736 (Admin)
DPP v Ziegler and others [2021] UKSC 23
Laporte and Christian v Commissioner of the Police of the Metropolis [2014] EWHC 3574
R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55
International
Barraco v France App no. 31684/05 (ECtHR, 5 March 2009)
Ezelin v. France [1992] EHRR 362
Kudrevičius v Lithuania [GC] App no. 37553/05 (ECtHR, 26 November 2013)
Plattform ‘Artze fur das Leven’ v Austria App no 10126/82 (ECtHR, 21 June 1988)
Turchenyak et al. v Belarus No. 1984/2010 [UN Human Rights Committee, 10 September 2023]
Treaty cited
Vienna Convention on the Law of the Treaties, 1155 UNTS 331, Art 27
Further reading
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