The Government response to covid-19: freedom of assembly and the right to protest Contents

3The right to protest—Articles 10 and 11 ECHR

15.The right of the public to assemble or march together in peaceful protest has long been acknowledged by the common law of England and Wales. Lord Denning M.R. noted in Hubbard v Pitt [1976] QB 142:

“Here we have to consider the right to demonstrate and the right to protest on matters of public concern. These 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. It is often the only means by which grievances can be brought to the knowledge of those in authority—at any rate with such impact as to gain a remedy. Our history is full of warnings against suppression of these rights.”

16.However, the protection of this right under the common law was uncertain and piecemeal. The Human Rights Act 1998 brought the rights guaranteed by the ECHR into domestic law and established express rights to free speech (Article 10 ECHR) and free assembly and association (Article 11 ECHR). The Article 11 right to freedom of peaceful assembly extends to gathering together for a common purpose in private or in public, and being able to choose the time, place and form of the gathering, within the limits established by Article 11(2). However, Article 11 protects only the right to peaceful assembly. Violent protests and those organised with violent intentions will not receive the protection of Article 11.8 But an individual who remains peaceful will not lose the protection of the Convention merely because other participants in a demonstration engage in sporadic violence.9

17.Article 10 ECHR protects the expression of opinions in the form of protest, covering “not only the substance of the ideas and information expressed, but also the form in which they are conveyed”.10 The right to free expression extends not only to information or ideas that are favourably received or regarded as inoffensive, but also to those that “offend, shock or disturb the State or any sector of the population”.11 The European Court of Human Rights has placed particular emphasis on the importance of political free expression: “in a democratic society based on the rule of law, political ideas which challenge the existing order and whose realisation is advocated by peaceful means must be afforded a proper opportunity of expression.”12

Articles 10 & 11, European Convention on Human Rights

ARTICLE 10—FREEDOM OF EXPRESSION

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

ARTICLE 11—FREEDOM OF ASSEMBLY AND ASSOCIATION

Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

Source: European Convention on Human Rights—page 8

18.The rights to free expression and assembly under Articles 10 and 11 ECHR impose both negative and positive obligations on the State. This means that States must refrain from applying unjustified restrictions on the right to protest, the negative obligation, and they must also safeguard the right to protest, the positive obligation. This includes taking reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully, with participants kept safe.13 It is often referred to as the duty to ‘facilitate peaceful protest’.14

19.The HRA prohibits all public authorities in the UK from acting incompatibly with Convention rights, but the key authorities concerned with protest are the police and the Government, particularly the Home Office. The police are operationally independent of Government. Chief Constables are entitled to make decisions about the deployment of their officers without political interference.15

20.Prior to the outbreak of covid-19, the key piece of legislation governing the right to gather to engage in public protest was the Public Order Act 1986. This Act, which is unaffected by the coronavirus laws and remains in force, gives the police the power to impose such conditions on public assemblies and processions, including restrictions on their size, duration and location,16 as are necessary, but only where a senior officer reasonably believes that the procession or assembly may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or that the purpose of the organisers is to intimidate. In exceptional circumstances public processions may be banned with the permission of the Secretary of State, but there is no power to ban a public assembly.17

Lawful interferences with the right to protest

21.Together, Articles 10 and 11 provide a clear, positive right for any individual to organise and engage in public protest with others.18 However, as the rights guaranteed by both Articles are qualified, the right to protest is not absolute. Article 10(2) and Article 11(2) establish that authorities may interfere with the right to protest for legitimate reasons including public safety, protecting public health and protecting the rights and freedoms of others. Plainly, taking steps to prevent the spread of a potentially deadly and highly virulent virus falls within these legitimate reasons. Indeed, there is a positive obligation on the State under the ECHR to safeguard the right to life (Article 2 ECHR).

22.However, any interference with Article 10 or 11, even by a measure intended to serve a legitimate purpose like preventing the spread of covid-19, will only be justified where it is properly prescribed by law, where there is a pressing social need for the interference and where the interference is proportionate to the aim of the measure. For an interference to be prescribed by law for the purposes of Articles 10 and 11, the law governing it must be adequately accessible to those affected by it and the law’s consequences for them must be foreseeable. The law must also contain adequate safeguards against arbitrary or discriminatory use.19 This requirement is not affected by a public health emergency such as the covid-19 pandemic.

23.The proportionality of any measure interfering with Article 10 or 11 rights during the pandemic must be assessed against a number of factors such as its intention, its impact on different groups, whether it will cause the least interference possible to achieve its end, and, most obviously, its likely public health impact. Throughout the pandemic the Government response to covid-19 has been characterised by efforts to limit people gathering, in recognition of the ease with which the virus can be spread from person to person and the crucial need to keep the infection rate down. The proportionality of different measures will change over the course of the pandemic, as the prevalence of the virus and the rate of infection fluctuates, and it is therefore understandable that the position on protest in the law has changed as well. Tighter restrictions at times of national lockdown may be reasonable, compared to more deference being shown to the right to protest when the public health situation is less severe.

24.In order to assess whether restrictions on protest over the course of the pandemic have met the requirements of lawfulness and proportionality, we need to understand what restrictions have in fact been in place.

8 Navalnyy v. Russia [GC] 2018, § 98

10 [GC], nos. 28955/06, 28957/06, 28959/06, and 28964/06, at [53]

12 Egitim ve Bilim Emekcileri Sendikasi v Turkey Application no. 20641/05 (25 September 2012) at paragraph 70.

14 See, for example, Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, Getting the balance right? An inspection of how effectively the police deal with protests’, 11 March 2021, pages 71–72

15 While operational independence is fundamental to the British model of policing (see Schedule 1, The Policing Protocol Order 2011, para 30) it is not defined in law and opinions on its precise meaning and scope vary.

16 In respect of assemblies, these are the only types of condition that can be imposed.

17 Public Order Act 1986, Sections 12 to 14

18 The European Court of Human Rights has described “the protection of personal opinions, secured by Article 10, [as] one of the objectives of freedom of peaceful assembly as enshrined in Article 11” (Ezelin v France [1991] ECHR 29 at paragraph 37) and noted that in cases of restrictions on protest it can be impossible for “the issue of freedom of expression [to be] entirely separated from that of freedom of assembly” (Schwabe and MG v Germany [2011] ECHR 1986 at paragraph 101).

19 See, in the context of mass protest, Lashmankin and Others v. Russia, [2017] ECHR 130 at paragraphs 410–471




Published: 19 March 2021 Site information    Accessibility statement