Helga Law Journal - 01.01.2021, Side 148

Helga Law Journal Vol. 1, 2021
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than not the declarations have been responded too and subsequent changes
made.110
3.3 How did the ECHR Change the UK Legal System in
Terms of the Right to Protest?
The seemingly checkered track record of the UK courts of protecting human
rights is also apparent in the right to protest. The right to engage in public protest
has not historically been recognised in British law. In Duncan v Jones, Lord Hewart
stated that “English law does not recognize any special right of public meeting
for political or other purposes.”111 Therefore, the introduction of the ECHR and
the HRA has provided a more recognizable right to protest in the form of the
combination of Articles 10 and 11 in British law. Article 10 guarantees the right
to freedom of expression, “the right includes freedom to hold opinions and to
receive and impart information and ideas without interference by public authority
and regardless of frontiers.”112 In addition, Article 11 guarantees the right to
freedom of peaceful assembly and association with others.
However, both of these rights are not absolute, the exercise of both these
rights may be subject to restrictions “as prescribed by law and are necessary in a
democratic society.”113 Any interference with either of these rights must also be
proportionate. The three-part proportionality test set out by the ECtHR seeks
to establish: (i) whether the legislative objective is sufficiently important to justify
limiting a fundamental right; (ii) whether the measures designed to meet the
legislative objective are rationally connected to it; and (iii) whether the means
used to impair the right or freedom are no more than is necessary to accomplish
the objective.114 The third part of the test articulated in De Freitas protects the
right to protest by ensuring that any policy that restricts either the right to
expression or the right to peaceful assembly cannot be draconian and must be
measured.
There is a positive obligation on the state to ensure that people can engage
in lawful peaceful protest. In Arzte fur das Leben v Austria, the ECtHR noted that
“Article 11 sometimes requires positive measures to be taken even in the sphere
of relations between individuals.”115 Meanwhile, there is the negative obligation
on the state, which establishes “the right not to be prevented or restricted by the
state from meeting and associating with others to pursue particular aims, except

110 Alice Donald, Jane Gordon and Philip Leach, The UK and the European Court of Human Rights
Equality and Human Rights Commission, Research Report 83.
111 Duncan v Jones [1936] 1.K.B. 218, 222.
112 European Convention on Human Rights, Article 10, section 1.
113 ibid, section 2.
114 For an application of the proportionality test see De Freitas v The Permanent Secretary of Ministry of
Agriculture, Fisheries, Lands and Housing and Others [1999] 1 AC 69, 80.
115 Plattform “Ärzte für das Leben” v Austria no. 10126/82, ECHR 1988 [32-33].
to the extent allowed by Article 11(2).”116 Before the enactment of the HRA, the
protection of fundamental rights of British individuals often (albeit, not
always117) relied on the Wednesbury test of reasonableness. Lord Greene stated
that a decision is unreasonable when it is “so absurd that no sensible person
could ever dream that it lay within the powers of the authority.118” The
Wednesbury test that resulted was a strong indication of judicial restraint in ruling
against authorities.119
Nonetheless, the British courts did recognize the importance of protecting
human life and liberty by applying the ‘anxious scrutiny’ test, displayed in
Bugdaycay, Lord Bridge states “the court must…be entitled to subject an
administrative decision to more rigorous examination, to ensure that it is in no
way flawed, according to the gravity of the issue which the decision
determines.”120 The ‘anxious scrutiny’ test, although milder than the Wednesbury
test, was ultimately dismissed by the ECtHR in Smith and Grady v The United
Kingdom and was described by the ECtHR as “still effectively excluding any
consideration of whether the national security and public order aims pursued
struck a balance with the interference with rights.”121
The introduction of the Human Rights Act, which allows individuals to rely on
the ECHR in domestic courts led to the British Courts embracing the tests of
proportionality, used by the ECtHR in assessing human rights claims.
3.3.1 Must the Courts Follow ECtHR Decisions?
The issue of whether the domestic courts must follow ECtHR decisions has been
thoroughly discussed by the British Courts since the inception of the Human
Rights Act. Section 2 of the Human Rights Act subsection 1(a) provides that “a
court or tribunal determining a question which has arisen in connection with a
Convention right must take into account any judgment, decision, declaration or
advisory opinion of the European Courts of Human Rights.”122 The key words

116 Aldemir v Turkey, no 32124/02, ECHR 2009 [41], and Human Rights Joint Committee,
Demonstrating respect for rights? A human rights approach to policing protest (Seventh Report, 2009) HL 45/HC
328 [17]-[18]. Retrieved on 01 July 2018 from
https://publications.parliament.uk/pa/jt200809/jtselect/jtrights/47/4702.htm.
117 Daniel Wei Wang, ‘From Wednesbury Unreasonableness to Accountability for Reasonableness’
[2017] 76(3) Cambridge Law Journal 642, and Michael Fordham, ‘Wednesbury’ [2007] 12(4) Judicial
Review 266.
118 Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 K.B. 223, 229.
119 “In Wednesbury… the licence [of a cinema operator] included a condition that no child under 15
could be admitted, whether accompanied by an adult or not. This decision was taken having regard
to the well-being and moral health of children likely to visit the cinema. The local licensing authority
had a wide discretion in relation to licences and could impose ‘such conditions as the authority
[thought] fit.”’ Justin Leslie and Gavin McLeon, ‘Judicial review: Wednesbury unreasonableness’
(Westlaw Insight, 13 March 2015) [2]-[3].
120 Bugdaycay v Secretary of State for the Home Department [1987] A.C. 514, 531.
121 Smith and Grady v United Kingdom [1999] 29 EHRR 493.
122 Human Rights Act 1998 section 2(1).