Black Lives Matter, the issues surrounding Palestine, rent strikes, women’s rights, and even anti-lockdown demonstrations are all topics of protest in the past year alone. The right to protest has been legally protected for many years and is an imperative method of conveying the beliefs of the public, gaining support, and pushing for social change.
The legislative protection of the right to peacefully conduct protest can be found under the European Convention of Human Rights; specifically Article 5 (the right to liberty), Article 10 (freedom of expression), and Article 11 (freedom of assembly and association). However, these rights are not absolute rights and thus can be restricted or limited should their execution pose a threat to public safety. This article examines the scope to which these rights can be expressed in light of a protest in relation to two similar cases: Austin v Metropolitan Police Commissioner [2009] and Austin v UK [2012].
The Cases
In Austin v Metropolitan Police Commissioner [2009], during anti-capitalist demonstrations in London in May 2001, the police cordoned in up to three thousand demonstrators in Oxford Circus for up to seven hours.
Cordoning is defined as ‘preventing access to or from an area or building by surrounding it with police or other guards’. It is also informally known as ‘kettling’ and is a practice used widely by law enforcement officers during protests and demonstrations.
The cordoning of this particular group of demonstrators resulted in them being left without food, water, or shelter for seven hours. In fact, three innocent bystanders were also cordoned alongside the seven hundred demonstrators. Whilst this appears to be a direct infringement of Article 5 of the ECHR, the House of Lords actually held that there is no infringement given that the measures were not arbitrary, were restored in good faith, and were proportionate and enforced for no longer than necessary. This is an example of proportionality: the test for which was coined by Lord Sumption in Bank Mellat v HM Treasury (No 2) [2014]. He recognised that the ECHR is a living instrument and that an infringement of human rights is necessary in some instances if the measures taken to do so are proportional to the wider context of the situation.
This leads to the question: when is it considered ‘proportional’ to limit the freedoms of demonstrators in such a manner? In this instance, the trial judge had found that the police had expected a ‘hard core’ group of between five hundred and a thousand violent demonstrators to form at Oxford Circus and that there was a serious risk of injury, potentially even death, and damage to property if the crowds were not effectively controlled. Upon arriving at the scene, they came across 1,500 demonstrators, who acted according to their expectations, and thus pronounced cordoning as the most effective measure to protect the public interest. Upon application of the proportionality test, the cordoning was considered a fair restriction upon human rights and thus was deemed legal.
Austin v UK [2012] concerned the long-awaited decision of the European Court of Human Rights who deliberated over the decision of the House of Lord three years prior. The court held that, in some instances, the police have no alternative but to place a limit on certain human rights in order to protect the general public. Despite the fact that the convention is a living instrument, Article 5 should not be interpreted in such a way to ensure that the police are unable to fulfil their duties to the wider community. The ECtHR held that context should be considered as part of examining the manner of implementation of the restrictive measure. Intriguingly, the dissenting judges stated that allowing the context and the wider responsibilities of the police to be taken into account is “dangerous in that it leaves the way open for carte blanche and sends out a bad message to police authorities.”
This decision leaves room for further critical argument and analysis. Whether or not the House of Lords and ECtHR struck the correct balance between protecting the purpose of the convention or what the police stand for is entirely up to interpretation.
‘Kill the Bill’
The reasoning for the infringement of human rights by the police and other law enforcement officers mirrors the sentiment of the Police, Crime, Sentencing and Courts Bill, as proposed by Home Secretary Priti Patel. This Bill implements both time and noise limits on protests, as well as banning protests outside UK Parliament buildings. Causing ‘serious annoyance’ becomes a criminal offence under the proposed legislation. Almost ironically, there have been violent ‘Kill the Bill’ protests across the country as a result of this proposal, however arguably the results of which have strengthened Parliament’s reasoning for the Bill, which is ‘to keep people safe’.
It seems that there have been various attempts, both throughout the history of common law and legislature to limit the extent to which protests can be held. However, some argue that the claim of protecting the public is simply a disguise to hide the real intention of limiting one’s human right to protest. On the other hand, given the recent violence and defamation of public property, the measures taken could be considered proportionate and therefore justifiable in light of the wider context. In either instance, it is imperative to strike a balance between protecting the general public, and ensuring that one’s voice can be heard by those in power through the agency of peaceful protest.
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