Rights to Association and assembly
Today the freedom of association is protected by Article 11 of the ECHR.
Demonstrations are among the types of assembly protected by this article.
This new protection is superimposed on protection by English common law.
Right to demonstrate
- Article 11
1. 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.
2. 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.
- Article 17
Nothing in [the] Convention may be interpreted as implying for any …, group or person any right to engage in any
activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein …
Test
•Is a right involved?
•No – no breach
•Yes – go to next stage
•Is itInterfered with by authority?
•No- no breach
•Yes- go to next stage
•According to law?
•No – Unlawful action of authority
•Yes- go to next stage
•For a legitimate aim?
•No - unlawful
•Yes- go to next stage
•Is intrusion into right proportional to the aim pursued?
•No -unlawful
•Yes- Lawful!
Breach of the Peace
The Common law protection of protests is linked to the concept of ‘breach of the peace’.
A breach of the peace is not an offence in itself, but a police officer can arrest anyone for breaching the Queen's peace.
So it is important to understand when a demonstration breaches the peace, and when in is protected at common law.
More restrictive definition in R v. Howell [1982] QB 416 - Only violence or threat of violence constitute a breach of the
peace.
This definition better protects the freedom to protest than the CEBG definition.
Adopted in the context of demonstrations in Percy v. DPP [2001] EWHC Admin 1125.
Broad definition
R (CEGB) v. CC Devon and Cornwall (obiter) –A breach of the peace occurs when a person who is lawfully carrying out
duties is unlawfully or physically prevented by another from doing so.
This can describe many protests. If this is the interpretation applied to breach of the peace, then English law seriously
undermines the freedom to protest.
Today the freedom of association is protected by Article 11 of the ECHR.
Demonstrations are among the types of assembly protected by this article.
This new protection is superimposed on protection by English common law.
Right to demonstrate
- Article 11
1. 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.
2. 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.
- Article 17
Nothing in [the] Convention may be interpreted as implying for any …, group or person any right to engage in any
activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein …
Test
•Is a right involved?
•No – no breach
•Yes – go to next stage
•Is itInterfered with by authority?
•No- no breach
•Yes- go to next stage
•According to law?
•No – Unlawful action of authority
•Yes- go to next stage
•For a legitimate aim?
•No - unlawful
•Yes- go to next stage
•Is intrusion into right proportional to the aim pursued?
•No -unlawful
•Yes- Lawful!
Breach of the Peace
The Common law protection of protests is linked to the concept of ‘breach of the peace’.
A breach of the peace is not an offence in itself, but a police officer can arrest anyone for breaching the Queen's peace.
So it is important to understand when a demonstration breaches the peace, and when in is protected at common law.
More restrictive definition in R v. Howell [1982] QB 416 - Only violence or threat of violence constitute a breach of the
peace.
This definition better protects the freedom to protest than the CEBG definition.
Adopted in the context of demonstrations in Percy v. DPP [2001] EWHC Admin 1125.
Broad definition
R (CEGB) v. CC Devon and Cornwall (obiter) –A breach of the peace occurs when a person who is lawfully carrying out
duties is unlawfully or physically prevented by another from doing so.
This can describe many protests. If this is the interpretation applied to breach of the peace, then English law seriously
undermines the freedom to protest.
