Helga Law Journal - 01.01.2021, Síða 140

Helga Law Journal Vol. 1, 2021
144
International Legal Research Group
145
peace has expanded, and the HL judgment in Austin represents the most recent
evidence of this development.
2 Does the National Legal System Provide an
Effective Remedy to Individuals Who Claim
That Their Right to Protest Has Been
Violated?
2.1 Introduction
The freedom to protest is a human right recognised under national and
international legislation and should afford victims of violations an effective
remedy. The meaning of what is ‘effective’ will depend on each case, its facts,
and the expected satisfaction of the individual, however a basic assumption can
be made to hold that effectiveness ‘effectiveness’ meaning something which does
the job it is meant to. The sections below will look at whether a claiming
individual receives the remedy that they deserve.
The right to protest is enshrined within Article 11 of the European
Convention on Human Rights (ECHR), and is most frequently read in
conjunction with Article 10 (the freedom of expression). Before the enactment
of the Human Rights Act (HRA) in 1998, individuals would have to petition the
European Court of Human Rights (ECtHR) in order to uphold their human
rights. Today, the rights are directly enforceable in the UK by way of the HRA
which imposes obligations upon the state to not only enable the rights but also
protect and safeguard them i.e. positive and negative obligations.55
Within the HRA, Section 6 lays out the main rule, making it “unlawful for a
public authority to act in a way which is incompatible with a Convention right.
”56 Section 7 then lists the proceedings which should be undertaken when
claiming a breach of this prohibition by identifying more specifically who can
bring such a claim, who it should be brought against and other conditions which
have to be met for the claim to be accepted. Section 8 lists the judicial remedies
that a claimant may be entitled to, should his case succeed. Where the court finds
that the public authority has acted unlawfully, due to failing to meet the standards
required of them by the act, the court may award relief or remedies which it
“considers appropriate.”57

55 These sections conclude that although the public benefit from the implementation of the HRA,
the procedure is highly complex and difficult to navigate thus discouraging many from claiming their
remedies. The alternatives also fail to provide an effective way of putting right the violations due to
strict procedural complications and an effective escape clause for violators of the right.
56 Human Rights Act 1998, s 6.
57 Human Rights Act 1998, s 8(1).
2.2 Procedure
Before the implementation of the HRA, the individuals relied on the ‘good grace’
of the authorities to have their claim heard, having only the option of taking their
claim to the ECtHR in Strasburg if their claim was not deemed worthy of a
hearing.58 Today, the ‘good grace’ approach has disappeared and individuals can
now depend on a standardised and secured set of statutory authority. Upon
reflection then it may be said that the implementation of the HRA has increased
the effectiveness of reaching a remedy, as it allows this to be done based on
statutory footing, not the discretion of authorities. Likewise, individuals are no
longer required to take their legal action to the ECtHR in order to argue their
violation but can enjoy directly applicable rights within the UK which not only
imposes obligations upon the state to both enable and protect the right but also
eases the process for the individual.
Within the HRA itself, Section 6 requires public authorities to act in line
with the rights enshrined within the ECHR, the failure of which enables an
individual to initiate the proceedings within Section 7. There are positive
obligations on the state which requires it to respect, protect and fulfil the right in
questions, the last of these requiring that the state makes available a range of
remedies for possible violations and infractions.59 These proceedings have a
range of complex and complicated qualifications and requirements which have
to be met in order for the action to be successful.
2.2.1 Assessment of the Procedure
The first requirement within Section 7(1) requires that a claim can only be
undertaken if a “public authority has acted (or proposes to act) in a way which is
made unlawful by section 6(1).60” Although no comprehensive definition of a
public authority is given, this requirement of a public authority causes potential
issues as it will not be possible to bring forward a claim against a private
individual. At the same time, another grey area concerns organisations which
have been outsourced or have been assigned part of the functions of a state, or
that of a ‘public nature’ as stated by Section 7(3) such as in Donoghue v Poplar
Housing & Regeneration Community Association Ltd,61 where the organisation was
seen as fulfilling the Local Authorities’ statutory obligation. The worry here is
that the courts have adopted a very narrow and state-centric approach to what
they interpret a function of a state to be62. This decreases the chance of

58 Hubbard v Pitt [1976] CA 1 QB 142, as opposed to Director of Public Prosecutions v Jones and
Lloyd [1999] HL 4 MAR.
59 Section 7 of the HRA explains the procedure which needs to be undertaken by individuals seeking
to bring their action.
60 Human Rights Act 1998, s 7(1).
61 Donoghue v Poplar Housing & Regeneration Community Association Ltd [2001] CA 27 APR 2001.
62 YL v Birmingham City Council [2007] UKHL 27 A care home given the task of looking after individual
by the public authority was seen as private and not public due to being privately owned.