Helga Law Journal - 01.01.2021, Blaðsíða 132

Helga Law Journal Vol. 1, 2021
136
International Legal Research Group
137
“after all legal restrictions have been imposed and taken account of.”5 This is an
expression of the principle of parliamentary sovereignty – the paramount
principle underpinning the whole constitutional framework of the UK – which
places Acts of Parliament at the apex of the hierarchy of norms, and common
law liberties at its foot.6 Thus, participation in public assemblies or processions
would only be lawful to the extent that it was not prohibited by statute or the
common law.7 Individuals had no right to invoke against public authorities which
interfered with their protests.8
Historically, public order concerns have taken precedence over freedom of
assembly in the UK. The first judge to acknowledge the existence of a right to
protest in the common law was Lord Denning, in his dissenting judgment in
Hubbard v Pitt, where he stated that:
“...the right to demonstrate and the right to protest on matters of
public concern … are rights which it is in the public interest that
individuals should possess; and, indeed, that they should exercise
without impediment so long as no wrongful act is done.”9
1.3 Domestic Public Order Legislation
Despite the incremental recognition of the common law right to protest in the
UK, statutory restrictions on its exercise still prevail. The main statute concerning
the policing of protest is the Public Order Act 1986 (POA), which was passed in
the aftermath of the 1984-85 miners’ strike and aimed to give the police stronger
and more effective powers to deal with similarly serious public disorders in the
future.10 If a senior police officer ‘reasonably believes’ that a public procession
or assembly “may result in serious public disorder, serious damage to property
or serious disruption to the life of the community,” or that its purpose “is the
intimidation of others,” he can impose such conditions on the maximum
duration, number of people, date or location “as appear to him necessary to
prevent such disorder, damage, disruption or intimidation.”11
In addition, before their repeal, sections 132-138 of the Serious Organised
Crime and Police Act 2005 (SOCPA) criminalised demonstrations in the vicinity

5 ibid. 4.
6 Orsolya Salát, The Right to Freedom of Assembly: A Comparative Study (Hart Publishing 2015) 39.
7 Mead (n 4) 26.
8 ibid.; Orsolya Salát is sceptical whether this has changed since the HRA. Its drafting having been
guided by the principle of parliamentary sovereignty, even its most powerful weapon – the declaration
of incompatibility – ‘does not affect the validity, continuing operation or enforcement of the
provision in respect of which it is given’: Salát (n 9) 39.
9 Hubbard v Pitt [1976] QB 142, 178 (Lord Denning); Lord Denning considered that ‘the right of
protest is one aspect of the right of free speech’, the latter having been recognised almost a century
earlier in the 1891 case of Bonnard v Perryman [1891] 2 Ch 269, 284.
10 Salát (n 9) 19.
11 Non-compliance with the imposed conditions is a criminal offence: Public Order Act 1986, ss 12,
14.
1 How is the right to protest guaranteed in the
constitutional framework of your country and how
has it adapted in reaction to national social
movements?
1.1 Introduction
In the United Kingdom (UK), in the absence of a codified constitution, the legal
framework which protects and regulates a person’s exercise of their right to
protest consists of a corpus of common law principles, complemented by
principles derived from the jurisprudence of the European Court of Human
Rights (ECtHR) on the European Convention on Human Rights (ECHR), other
international human rights treaties (such as the International Covenant on Civil
and Political Rights (ICCPR)), as well as domestic public order legislation. The
English common law, being quite adaptive, has been informed by the ECHR,
especially since the ‘bringing home’ of Convention rights with the Human Rights
Act 1998 (HRA).1
It must be noted at the outset that it is largely in reaction to specific
demonstrations – rather than national social movements – that the law in this
area has historically evolved. The UK legal system draws a conceptual distinction
between communicative and direct action protests,2 treating the former more
favourably than the latter.3
The following sections will aim to show that although there has been a
gradual strengthening of the constitutional protection of the right to protest in
the UK, this has been counteracted by an expansion of police powers under both
statutory and common law.
1.2 Historical Foundations of the Right to Protest
Until the enactment of the HRA, the concept of positive enforceable rights was
alien to English law.4 Instead, judges were the guardians of common law liberties
– “a negative residual concept” denoting those individual freedoms which remain

1 Home Office, Rights Brought Home: The Human Rights Bill (White Paper, Cm 3782, 1997). The ‘right
to protest’ has since come to be understood as an amalgamation of the freedom of peaceful assembly
and association (Article 11 ECHR, Article 19 ICCPR) and the freedom of expression (Article 10
ECHR, Article 21 ICCPR), which have been recognised by UK and Strasbourg judges as
‘fundamental right[s] in a democratic society and … one of the foundations of such a society’ -
Ziliberberg v Moldova App no 61821/00 (ECtHR, 4 May 2004) at [2].
2 Examples of communicative protests are, inter alia, marches, rallies, shouting slogans and
distributing pamphlets. Direct action protests, in contrast, specifically aim to disrupt or obstruct the
target body or activity.
3 David Mead, The New Law of Peaceful Protest: Rights and Regulation in the Human Rights Era (Bloomsbury
UK 2010) 9-11.
4 Mead (n 4) 25.