The Historic Right to Peaceful Protest
‘To speak of rights at all in this context is to recognise the constitutional shift which is now in progress.’
Mr Justice Stephen Sedley, November 1999
Public protest is deeply rooted in our political culture. There have been countless times in the past - even in the recent past - when public demonstrations of support for a cause, or opposition to a policy or government, have changed the course of history. 'People power' can be a potent political force, whether at a national or a local level; whether to do with political causes or single issues; whether in support of striking workers or bereaved families, or in opposition to globalisation, or the waging of unjustified wars. When people have nothing else to fight with, it is often their solidarity with each other - to stand together and be counted across communities and even across continents - which proves to be their most powerful weapon.
For as long as there have been governments there have been rules to restrict protest and dissent. Over the centuries the law in this area has developed piecemeal, adapting to the prevailing attitudes and concerns of the governments and courts of the day. This dynamic process reflects the struggle that lies at the heart of public order law - the natural tension between the amount of freedom we demand as demonstrators and the amount of restriction we as electors permit our Parliament to impose.
For centuries, legislators have resisted the notion of positive rights in the field of public protest and political expression. Whilst it might have been said that we were free to do anything which was not otherwise proscribed by law, to say that we had a positive right to assemble, to march together, to chant and to campaign - rights that might be weighed against the undoubted rights of property owners, road users or business people - was to swim against a strong current of judicial thinking and an ever-rising tide of repressive legislation, which appeared to tolerate protest only if it did not challenge or cause inconvenience to anyone. The constitutional shift that fundamentally altered this position was the incorporation into domestic law, in October 2000, of the European Convention on Human Rights (the Convention). In the field of political protest the Convention has effect in four key areas:
• Right to Peaceful Assembly – Article 11
• Right to Freedom of Expression - Article 10
• Right to freedom of thought, conscience and religion – Article 9
• Right to respect for private and family life – Article 8
It forbids any public body, such as the police and local government, from acting in ways that conflict with the principles set out in the Convention.
It enables demonstrators to use the courts, in principle, to challenge decisions that would restrict protest; and might enable them to mount defences to non-violent criminal offences connected with political protest.
It is important to remember that the Convention does not give a trump card to political protest – especially at a time when concerns over safety and security are a prime concern of Government. The rights of individuals to assemble together and express themselves freely are only two of a series of rights set out in the Convention that deserve to be considered and weighed against each other.
There are particular reasons to review the state of public order law today. Despite the positive promise of the Human Rights Act 1998 (HRA) the courts have been slow in practice to increase the scope of rights available to protestors. Parliament, on the other hand, has been quick to hand out new statutory powers – under the Terrorism Act 2000, the Criminal Justice and Police Act 2001, the Anti-terrorism, Crime and Security Act 2001 and the Criminal Justice Act 2003 - which all increase the scope of police to prevent the free movement of protestors and other members of the public, and the free expression of political protest.
There are always concerns that such wide discretionary powers tend to be exercised by the police in an unaccountable and discriminatory way. Choosing which powers to exercise, which protests to control and how to control them will often involve very delicate policy and security considerations. In the past, sensitive to criticism on political and human rights grounds, the police tended to use their considerable powers against protest less often than the frequent use of criminal charges against protesters themselves. However, following the events of 11 September 2001 and the Iraq War, police forces are now able to respond ever more boldly with modes of policing which are frankly and unapologetically repressive.
However, public protest should not be driven underground at a time of international political upheaval. On the contrary, maintaining proper structures to ensure that legitimate political protest can find a voice is a positive duty of Government. Maintaining the freedom to express dissent remains a powerful indicator of the political health of a nation.
In the middle years of this decade the challenges facing all those engaged in the public expression of political opinion are immense. It is possible, however, to rise to, confront and often overcome such challenges. Knowing your rights and having a good understanding of the scope of laws aimed at curtailing protest and restricting the expression of political opinion, and in particular how they intersect with Convention rights, are powerful tools. This is especially so if you find yourself negotiating with the police when planning a protest, or with a local authority over permission to distribute political literature. It is also wise to seek the advice of organisations, such as Liberty, that can provide advice and guidance on protest rights and public order issues.
Mr Justice Stephen Sedley, November 1999
Public protest is deeply rooted in our political culture. There have been countless times in the past - even in the recent past - when public demonstrations of support for a cause, or opposition to a policy or government, have changed the course of history. 'People power' can be a potent political force, whether at a national or a local level; whether to do with political causes or single issues; whether in support of striking workers or bereaved families, or in opposition to globalisation, or the waging of unjustified wars. When people have nothing else to fight with, it is often their solidarity with each other - to stand together and be counted across communities and even across continents - which proves to be their most powerful weapon.
For as long as there have been governments there have been rules to restrict protest and dissent. Over the centuries the law in this area has developed piecemeal, adapting to the prevailing attitudes and concerns of the governments and courts of the day. This dynamic process reflects the struggle that lies at the heart of public order law - the natural tension between the amount of freedom we demand as demonstrators and the amount of restriction we as electors permit our Parliament to impose.
For centuries, legislators have resisted the notion of positive rights in the field of public protest and political expression. Whilst it might have been said that we were free to do anything which was not otherwise proscribed by law, to say that we had a positive right to assemble, to march together, to chant and to campaign - rights that might be weighed against the undoubted rights of property owners, road users or business people - was to swim against a strong current of judicial thinking and an ever-rising tide of repressive legislation, which appeared to tolerate protest only if it did not challenge or cause inconvenience to anyone. The constitutional shift that fundamentally altered this position was the incorporation into domestic law, in October 2000, of the European Convention on Human Rights (the Convention). In the field of political protest the Convention has effect in four key areas:
• Right to Peaceful Assembly – Article 11
• Right to Freedom of Expression - Article 10
• Right to freedom of thought, conscience and religion – Article 9
• Right to respect for private and family life – Article 8
It forbids any public body, such as the police and local government, from acting in ways that conflict with the principles set out in the Convention.
It enables demonstrators to use the courts, in principle, to challenge decisions that would restrict protest; and might enable them to mount defences to non-violent criminal offences connected with political protest.
It is important to remember that the Convention does not give a trump card to political protest – especially at a time when concerns over safety and security are a prime concern of Government. The rights of individuals to assemble together and express themselves freely are only two of a series of rights set out in the Convention that deserve to be considered and weighed against each other.
There are particular reasons to review the state of public order law today. Despite the positive promise of the Human Rights Act 1998 (HRA) the courts have been slow in practice to increase the scope of rights available to protestors. Parliament, on the other hand, has been quick to hand out new statutory powers – under the Terrorism Act 2000, the Criminal Justice and Police Act 2001, the Anti-terrorism, Crime and Security Act 2001 and the Criminal Justice Act 2003 - which all increase the scope of police to prevent the free movement of protestors and other members of the public, and the free expression of political protest.
There are always concerns that such wide discretionary powers tend to be exercised by the police in an unaccountable and discriminatory way. Choosing which powers to exercise, which protests to control and how to control them will often involve very delicate policy and security considerations. In the past, sensitive to criticism on political and human rights grounds, the police tended to use their considerable powers against protest less often than the frequent use of criminal charges against protesters themselves. However, following the events of 11 September 2001 and the Iraq War, police forces are now able to respond ever more boldly with modes of policing which are frankly and unapologetically repressive.
However, public protest should not be driven underground at a time of international political upheaval. On the contrary, maintaining proper structures to ensure that legitimate political protest can find a voice is a positive duty of Government. Maintaining the freedom to express dissent remains a powerful indicator of the political health of a nation.
In the middle years of this decade the challenges facing all those engaged in the public expression of political opinion are immense. It is possible, however, to rise to, confront and often overcome such challenges. Knowing your rights and having a good understanding of the scope of laws aimed at curtailing protest and restricting the expression of political opinion, and in particular how they intersect with Convention rights, are powerful tools. This is especially so if you find yourself negotiating with the police when planning a protest, or with a local authority over permission to distribute political literature. It is also wise to seek the advice of organisations, such as Liberty, that can provide advice and guidance on protest rights and public order issues.
