Helga Law Journal - 01.01.2021, Blaðsíða 169

Helga Law Journal Vol. 1, 2021
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International Legal Research Group
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and prevent crimes, and protecting one’s ability to voice their opinion and
contribute to public debates via demonstration and protest.
6 What positive obligations does your state assume
to guarantee the enjoyment of the right to protest
and protection from the interference of private
parties?
6.1 Introduction
The right to protest is considered a fundamental part of a healthy democracy as
it supports an “informed, participatory and active electorate”279 and acts as an
“important safety valve”280 for dissenting views. As such, the UK is required to
fulfil certain positive obligations in order to guarantee the enjoyment of the right.
These obligations require the state to take protective measures to prevent
interference by private parties, such as counter-demonstrators or businesses
targeted by protestors, and facilitate demonstrations. Part one outlines the legal
framework of the right to protest, namely the relevant Articles 10 and 11 of the
European Convention of Human Rights (ECHR) and the operation of Section
6 of the Human Rights Act 1998 which requires all public authorities to act in a
Convention compliant manner. Part two focusses on the Police as one of the
major public bodies involved in protest activity and how they seek to fulfil their
duties to both the public and the protestors. Part three discusses the role of the
courts in balancing between the private interests of businesses and the right to
protest in deciding orders for injunctions.
6.2 The Legal Framework
6.2.1 The Distinction Between Positive and Negative Obligations
Upholding the right to protest entails the state fulfilling both positive and
negative obligations. Positive obligations require the state to undertake specific
preventative actions to safeguard a particular right whereas a negative obligation
is a duty to refrain from impinging on the right itself.281 A breach of a positive
obligation occurs when the state fails to act and a breach of a negative obligation
would occur via the imposition of a limitation upon the right being exercised –
for example if protestors are subject to violence from police authorities there is
a breach of a negative obligation as they did not refrain from violence, in contrast,

279 David Mead, The New Law of Peaceful Protest (2010, Hart Publishing) 9.
280 Her Majesty’s Chief Inspector of Constabulary (HMCIC), 'Adapting to Protest' (2009) 40.
281 Jean-Francois Akandji-Kombe, Positive Obligations under the European Convention on Human
Rights: A guide to the implementation of the European Convention on Human Rights (Human
Rights Handbooks, Directorate General of Human Rights, no.7, 2007).
if counter-protestors are violent towards protestors and the police do not act,
there is a breach of a positive obligation by failing to act.
6.2.2 The Relevant Provisions
Albeit the right to protest is no stand-alone right, it falls under the scope of
Article 11, and a bit less so under Article 11; imposing both positive and negative
obligations upon contracting parties such as the UK.
Article 11 establishes that all individuals have the “right to freedom of
peaceful assembly and to freedom of association with others,”’282 such that those
who participate or organise such assemblies are protected from state
interference. Peaceful assembly includes meetings, mass actions, marches, sit
down protests but not violent protest or direct action taken to prevent an activity
at all.283 The European Court of Human Rights (ECtHR) has interpreted the
right as encompassing both the right not to be hindered by the state from
assembling in order to pursue particular aims and a duty upon the state to ensure
that such rights are secured even between individuals. For example, as stated in
Ärzte fur das Leben, “genuine effective freedom of peaceful assembly cannot be
reduced to a mere duty on the part of the State not to interfere.”284 Article 11
sometimes requires “positive measures to be taken even in the sphere of relations
between individuals.”285 Lord Bingham echoed the decision in Ärzte in the
domestic Laporte case where he held that a duty upon the state to “take reasonable
and appropriate measures to enable lawful demonstrations to proceed
peacefully”286 existed. Positive obligations to protect freedom of assembly and
association are necessary for the full realisation of the right. For example, fear of
violence from opponents resulting from a lack of protective state action is likely
to deter demonstrations. Thus, fulfilment of Article 11 may require police action
to mitigate risks of violence or facilitating protest via providing access to space.
Also relevant is the freedom of expression guaranteed by Article 10. In
Appleby, the ECtHR held that where a bar on accessing property prevented the
exercise of Article 10, e.g. there were no alternative means available, the court
would not exclude the possibility of a positive obligation to protect Article 10 via
regulating property rights.287
The UK, as a signatory of the ECHR, is bound by its articles and
incorporates the Convention via the HRA 1998. Section 6 HRA makes it
unlawful for any public authority to act in a manner incompliant with the
ECHR.288 Public authorities include courts, tribunals, and “any person certain of

282 Article 11 of the European Convention on Human Rights (ECHR).
283 HMCIC (n 2) 72.
284 Plattform ‘Ärzte für das Leben’ v Austria (1991) 13 EHRR 204 [32].
285 ibid.
286 R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55 (Bingham LJ).
287 Mead, ‘The New Law of Peaceful Protest’ (n 1) 129, see Appleby and Others v. The United Kingdom -
44306/98 [2003] ECHR 222.
288 Human Rights Act 1998 s6.