Helga Law Journal - 01.01.2021, Blaðsíða 161

Helga Law Journal Vol. 1, 2021
166
International Legal Research Group
167
5 How can restrictions on the right to protest be
justified with reference to the protection of
public order and prevention of crime in your
country?
5.1 Introduction
The right to peaceful protest and assembly, as protected by Article 11(1) of the
European Convention of Human Rights (ECHR), is a fundamental feature of
democracy and pluralism.219 At a societal level, the right complements and adds
to the political debate, constantly triggering a process of reflection and
deliberation, generating transparency and accountability.220 At an individual level,
it is a way of assertion of one’s dignity. It is also important by virtue of its close
nexus with Article 10, the right to the freedom of expression, by protecting one’s
ability to voice and communicate their ideas to the wider society.221 The multi-
layered importance of the right, therefore, necessitates strong protection and
close scrutiny of any restrictions.
Nevertheless, as important as the right is, it may compete against another
public policy – the need to prevent crimes and disorder in the society, which the
unrestrained permissiveness on the exercise of the right to protest may give rise
to.222 Accordingly, it has been argued that the two concepts need to be balanced
against each other.223 This has been recognized by Article 11. The limited
circumstances in which the restrictions on Art 11(1) may be justified are expressly
set out in Article 11(2). These are “the interests of national security or public
safety…the prevention of disorder or crime…the protection of health and
morals, or…the protection of the rights and freedoms of others.”224

219 Law, Liberty and Australian Democracy, Beth Gaze, (1990), 115.
220 Martin O’Flatherty, “Right to Peaceful Protest is Pillar of Open Democracy” 2014 Irish Times
15.
221 Commonwealth Secretariat, Freedom of Expression, Association, and Assembly, (2003), 15.
222 With regards to some protests, some level of police intervention may be necessary in order to
prevent escalation into violence and disruption of the public order. One example of this is the events
of 1 May 2000, where the protest against capitalism “turned ugly with looted shops and battles with
police.” The events included some demonstrators throwing bottles at the police, two protestors
smashing the McDonald’s windows and McDonald’s sign, and smoke bombs let off inside the place.
May 2K: special report, Will Woodward, Paul Kelso, and John Vidal, available at:
https://www.theguardian.com/uk/2000/may/02/mayday.world.
223 In many jurisdictions, the right to peacefully assemble and protest is protected so long as the public
order is not disrupted. For example, while the right to peacefully protest is not expressly guaranteed
in the French Constitution, it may be implied from the 1789 Declaration of Rights of Man and of the
Citizen, incorporated into the French Constitution, which declares that “no one should be bothered
for his opinions, even religious ones, so long as their manifestation does not disturb the public order
established by Law.” In Italy, the Italian Constitution guarantees the right to peaceful assembly, where
“peaceful” is described as one that does “disturb the public order.”
224 European Convention on Human Rights, s 11(2).
The following sections evaluate how restrictions on the right to protest are
justified with reference to the prevention of disorder or crime in the UK. Some
restrictions have developed through common law; others have been solidified
with legislation. In the UK, the right of freedom of protest is generally restricted
on the grounds of protecting public order and preventing crimes which can
threaten the maintenance of public order, such as terrorism.225
Because there is no determinative objective standard to determine when a
protest can threaten public order and peace,226 broad discretion has been granted
to the police and the local authorities.227 Many human rights organisations, such
as Liberty, have criticized this broad discretion as over-inclusive and
disproportionate, applying even to peaceful demonstrators exercising their
freedom of expression.228
5.2 How is the Right to Peaceful Protest Protected and
Restricted at a Domestic Level?
The effect of the ECHR on the protection of the right to protest within the UK
has already been elaborated previously in this journal. Nonetheless, a brief
reiteration of the basic points is necessary before we proceed with our analysis.
As previously discussed, the ECHR has been significantly influential on how the
right to freedom of protest is regulated at a domestic level. While it is an
international document, as opposed to a British Bill of Rights, it has been made
part of the domestic law through the HRA 1998. This means that the way in
which the right to freedom of protest is governed at a domestic level has to be
ECHR-compliant, including the restrictions imposed on the right. Consequently,
any restriction on the right has to surpass a three-fold test to be justified: (1) the
restriction should be prescribed by law; (2) it should be necessary in a democratic
society; (3) and it should be proportionate. The proportionality test is again three-
fold: (a) the limitation should pursue a legitimate goal; (b) it must address a
pressing social need; (c) the balance between the aim pursued and the means
employed to achieve it must be proportionately struck.
5.2.1 The Public Order Act 1986
In addition to the HRA, the right to protest is regulated through legislation and
the common law. The main piece of legislation is the Public Order Act 1986,
outlining the steps necessary for a lawful protest. Under the Act, it is essential to

225 Public Order and the Right of Assembly in England and the United States: A Comparative Study,
(1938), 47 Yale L. J. 404.
226 R v Howell [1981] 3 All ER 383 explained that the breach of peace is the “harm … actually done
or likely to be done to a person or, in his presence, his property or is put in fear of being harmed
through an assault, affray, riot, unlawful assembly or other disturbance.”
227 (n6).
228 Liberty’s response to the Joint Committee on Human Rights: “Demonstrating Respect for Rights?
A Human Rights Approach to Policing Protest,” (2009).