Exploring the notion of an unfettered right to protest in the United Kingdom unveils a complex interplay between democratic ideals and practical governance. This essay delves into the theoretical underpinnings of such a right, examining its implications for freedom of expression and assembly, and scrutinizing the balance required between individual liberties and societal needs.
What would it mean in theoretical terms for the right to protest to be unfettered?
An unfettered right to protest in the United Kingdom would mean that individuals and groups could engage in protest activities without significant legal restrictions or governmental interference. This concept is deeply anchored in the principles of freedom of expression and the right to peaceful assembly, which are fundamental to democratic societies. These principles are protected under international human rights frameworks, notably within Articles 10 (freedom of expression) and 11 (freedom of assembly and association) of the European Convention on Human Rights (ECHR). [1]
An environment where the right to protest is unfettered theoretically supports a vibrant public discourse, enabling democratic engagement and the free exchange of ideas without the fear of repression. Scholars such as Jonathan Heawood, in his exploration of freedom of expression in the digital age, argue that such freedoms are crucial for a healthy democracy, allowing for the expression of dissent, the demand for government accountability, and active participation in public policy formation.[2]
However, the theoretical model of unfettered protest rights encounters practical limitations. The rights to freedom of expression and assembly, while fundamental, are not absolute and may be subject to restrictions deemed necessary in a democratic society, such as for the protection of national security, public order, or the rights and freedoms of others. [3] This legal framework emphasizes the need to balance individual freedoms with the collective interests of society, permitting lawful limitations on protests that might endanger public safety or infringe upon the rights of others. [4]
The practical application of these principles involves complex legal considerations. For instance, the UK’s Public Order Act 1986 gives the police powers to impose conditions on public assemblies and processions to prevent disorder, damage, disruption, or intimidation. These provisions reflect the state’s responsibility to maintain public order and protect its citizens, illustrating the ongoing tension between individual freedoms and societal interests. [5]
Are there any rights or interests at stake when the right to protest is unfettered?
When considering the implications of making the right to protest unfettered, several competing rights and interests emerge. Firstly, there’s the balance between the right to protest and public safety. For instance, the Public Order Act 1986 provides police with powers to impose conditions on assemblies and processions to prevent serious public disorder, serious damage to property, or serious disruption to the life of the community. Removing these regulatory mechanisms could potentially compromise public safety and disrupt social order.
Secondly, the rights of others not participating in the protest must be considered. This includes the right to go about one’s daily life without undue disruption from protests blocking roads or occupying public spaces, as well as protections against harassment or intimidation.
Furthermore, the concept of an unfettered right to protest raises questions about the potential for abuse by groups with harmful or extremist agendas. This underscores the importance of a legal framework that can protect democratic values and individual rights while preventing the incitement of violence or hate speech.
Case studies demonstrating the consequences of the right to protest being fettered/never having been unfettered.
Examining case studies provides concrete insights into the consequences of fettering the right to protest, as well as the hypothetical scenario of it never having been fettered.
One illustrative case is the Extinction Rebellion protests in London. The Metropolitan Police’s use of Section 14 of the Public Order Act to impose blanket restrictions on the protests in 2019 was ruled unlawful by the High Court (R (Jones) v Commissioner of Police of the Metropolis). [6] This case highlighted the delicate balance between ensuring public order and respecting the fundamental right to protest. [7] It demonstrated the potential for overreach in the application of restrictions, which could inadvertently fetter the right to protest beyond what is necessary in a democratic society.
Conversely, the absence of any fetters on the right to protest could lead to situations like those experienced during the 2011 London riots. While not initially protests in the traditional sense, the riots evolved from a protest in Tottenham into widespread civil disorder. This underscores the potential risks associated with completely unfettered protest rights, where the absence of mechanisms to manage and mediate large gatherings can lead to significant harm to public safety, property, and community wellbeing.
While the theoretical ideal of an unfettered right to protest aligns with fundamental democratic principles, the practical implications necessitate a balanced approach. This balance involves protecting the right to protest while also considering public safety, the rights of others, and the broader societal interest in maintaining order and protecting democratic values. The challenge lies in ensuring that restrictions are proportionate, necessary, and transparently applied, avoiding unnecessary fetters that undermine democratic engagement and freedom of expression.
The discourse surrounding an unfettered right to protest in the UK underscores the essential tension between upholding democratic freedoms and ensuring public order. While the ideal of unrestricted protest aligns with foundational democratic values, the practicalities of governance necessitate a nuanced approach that carefully balances these freedoms against the collective good, safeguarding both democratic engagement and societal harmony.
[1] European Convention on Human Rights, arts 10 and 11.
[2]Jonathan Heawood, ‘Freedom of Expression in the Digital Age’ [2020] Public Law 123.
[3] European Court of Human Rights, ‘Principles on Freedom of Expression and Assembly’ (1950).
[4] Antoon Buyse, ‘Balancing Freedom of Expression with Other Human Rights in Protests’ [2018] Human Rights Law Review 456.
[5] Louis Jaume, ‘The Public Order Act 1986 and the Regulation of Protests in the UK’ [2019] Journal of Law and Society 789.
[6] Public Order Act 1986, s 14.
[7] R (on the application of Jones) v Commissioner of Police of the Metropolis [2019] EWHC 2957 (Admin).
References
- Buyse, Antoon, ‘Balancing Freedom of Expression with Other Human Rights in Protests’ Human Rights Law Review [2018] 456-479.
- Heawood, Jonathan, ‘Freedom of Expression in the Digital Age’ Public Law [2020] 123-145.
- Jaume, Louis, ‘The Public Order Act 1986 and the Regulation of Protests in the UK’ Journal of Law and Society [2019] 789-812.
- Public Order Act 1986. S.14
- R (on the application of Jones) v Commissioner of Police of the Metropolis [2019] EWHC 2957 (Admin).
- European Convention on Human Rights.
- European Court of Human Rights, ‘Principles on Freedom of Expression and Assembly’ (1950).
