Human Rights: Example essay B – Right to protest
To what extent are the rights of political protestors protected when considering the
domestic legal framework of the United Kingdom
Introduction
The right to protest is a fundamental right recognised in the European Convention on Human Rights,
and this has been implemented in the UK’s domestic law by way of the Human Rights Act 1998. An
individual’s right to protest, whether against the state or a third party, ‘crucial in a democratic society’ 1
and embodies the voice of the people in a way no alternative could. The ability to protest allows
minority groups who may often be excluded from much of the democratic process an opportunity to
express themselves.2 Therefore, the right to protest is one that must be afforded great protection from
the state, and it will be argued here that the current mechanisms for doing so are insufficient. Firstly,
the Public Order Act 1986 will be contrasted with the common law ‘breach of the peace’ doctrine, both
of which are mechanisms for police control over protest situations, and it will be established that
neither of these out-dated policies afford sufficient protection to the human rights implemented under
the HRA 1998. Furthermore, it will be argued that despite the clear rights afforded under articles 5 and
11 particularly, with regard to protest, the right to liberty and freedom of assembly, these rights are
largely unenforced and do not receive adequate protection under the current UK domestic legal
framework, as demonstrated by leading cases, Austin3 and Laporte.4 Secondly, this essay will look at
policing policies regarding protest groups, particularly the Kennedy Revelations, and argue that the
state, in attempting to balance the obligation to maintain public order and peace with each individual’s
right to protest, liberty, etc., has failed and has sacrificed these rights in favour of protecting public
order and preventing breach of the peace, on many highly publicised occasions. Thirdly, this essay
will evaluate the post-HRA 1998 legislation to identify the huge extension in police powers that were
afforded after the introduction of many fundamental rights into the UK’s domestic structure. It is
argued that these powers have caused the significant power imbalance, which must be redressed. It
will be concluded that the powers of the state in controlling and restricting protest are out-dated,
disproportionate, and unreasonable and that in order to redress the power imbalance and effectively
protect the rights of protesters, the state must fulfil its positive obligation and introduce more
procedural legislation to ensure the protection of HRA 1998 rights.
Public Order Act 1986 & breach of peace doctrine
1
Liberty, ‘Free Speech and Protest’ (Liberty, Protecting Human Rights) <https://www.liberty-human-
rights.org.uk/human-rights/free-speech-and-protest> accessed 29 December 2015
2
Helen Fenwick, ‘The Right to Protest, the Human Rights Act and the Margin of Appreciation’ (1999) 62
Modern Law Review 491, 493
3
Austin v Commissioner of the Police of the Metropolis [2009] UKHL 5, [2009] 1 A.C. 564
4
R (on the application of Laporte) v Chief Constable of Gloucestershire [2006] UKHL 6, [2007] 2 A.C. 105
, A key piece of legislation relating to the policing of protests is the Public Order Act 1986, which
predates the HRA 1998. It is argued here that this legislation is out-dated, incompatible with the HRA
1998, and requires reform. This legislation gives police officers statutory powers in relation to protests
and also sets out the requirements for protest organisers to fulfil. Section 11 5 is particularly pertinent
to this, as it sets out the requirement of Advance Notification of a protest; by which an organiser
commits an offence according to 11(10)6 if he fails to comply. This legislation gives unnecessarily vast
powers to the police to deal with protests - for example; a public procession can be restricted in terms
of time or place under s.10, 7 or prohibited altogether under s.12. 8 Especially given the dawn of the
HRA 1998, it seems that the POA 1986 allows police too many opportunities to restrict an individual’s
article 5 right based on ‘reasonably believing’ them about to cause ‘serious public disorder’ or any of
the other reasons discussed in s.11. 9 Professor Hadfield, in briefly drawing parallels between the POA
1986 and the Northern Ireland equivalent, suggests that in order to achieve greater parity in police
powers, a body may be created, consisting of the protest organiser, senior police officer, member of
the local authority, and perhaps spokespeople for the residents. 10 This, it is argued, is a considerable
step towards achieving a greater power balance between the police and protesters, and would allow
for easier communication between the two, thereby reducing the necessity for employment of the
harsher powers established under the POA 1986. The POA 1986, as evident by its title, is a piece of
legislation, which prioritises public order above all, including above human rights. It is questionable
whether this is the fairest course of action, and it could be strongly contended that in a lot of cases,
protection of the right to protest is more important than the protection of public order, and the POA
1986 is an entirely insufficient method of protecting the rights of political protesters.
The other aspect of police power that places pressure on the protection of protesters’ rights is the
common law ‘breach of the peace’ doctrine. This policy, in comparison to the POA 1986, gives police
forces powers that have been described as ‘immensely broad and bewilderingly imprecise’, 11 which
inhibit individuals’ right to protest even further. The breach of the peace doctrine is such that the
police can choose to act according to this as opposed to the more restrictive POA 1986, as
interpretation of the doctrine is often left to ‘police perceptions… and unpublished police guidelines’. 12
5
Public Order Act 1986, s.11
6
ibid, s.11(10)
7
ibid, s.10
8
ibid, s.12
9
ibid, s.11
10
Brigid Hadfield, ‘The Human Rights Commission and the Civic Forum in the Devolved Northern Ireland’
(2001) 7(2) European Public Law 143
11
Helen Fenwick, ‘Marginalising Human Rights: Breach of the Peace, “Kettling”, the Human Rights Act and
Public Protest’ [2009] Public Law 737, 738
12
ibid
To what extent are the rights of political protestors protected when considering the
domestic legal framework of the United Kingdom
Introduction
The right to protest is a fundamental right recognised in the European Convention on Human Rights,
and this has been implemented in the UK’s domestic law by way of the Human Rights Act 1998. An
individual’s right to protest, whether against the state or a third party, ‘crucial in a democratic society’ 1
and embodies the voice of the people in a way no alternative could. The ability to protest allows
minority groups who may often be excluded from much of the democratic process an opportunity to
express themselves.2 Therefore, the right to protest is one that must be afforded great protection from
the state, and it will be argued here that the current mechanisms for doing so are insufficient. Firstly,
the Public Order Act 1986 will be contrasted with the common law ‘breach of the peace’ doctrine, both
of which are mechanisms for police control over protest situations, and it will be established that
neither of these out-dated policies afford sufficient protection to the human rights implemented under
the HRA 1998. Furthermore, it will be argued that despite the clear rights afforded under articles 5 and
11 particularly, with regard to protest, the right to liberty and freedom of assembly, these rights are
largely unenforced and do not receive adequate protection under the current UK domestic legal
framework, as demonstrated by leading cases, Austin3 and Laporte.4 Secondly, this essay will look at
policing policies regarding protest groups, particularly the Kennedy Revelations, and argue that the
state, in attempting to balance the obligation to maintain public order and peace with each individual’s
right to protest, liberty, etc., has failed and has sacrificed these rights in favour of protecting public
order and preventing breach of the peace, on many highly publicised occasions. Thirdly, this essay
will evaluate the post-HRA 1998 legislation to identify the huge extension in police powers that were
afforded after the introduction of many fundamental rights into the UK’s domestic structure. It is
argued that these powers have caused the significant power imbalance, which must be redressed. It
will be concluded that the powers of the state in controlling and restricting protest are out-dated,
disproportionate, and unreasonable and that in order to redress the power imbalance and effectively
protect the rights of protesters, the state must fulfil its positive obligation and introduce more
procedural legislation to ensure the protection of HRA 1998 rights.
Public Order Act 1986 & breach of peace doctrine
1
Liberty, ‘Free Speech and Protest’ (Liberty, Protecting Human Rights) <https://www.liberty-human-
rights.org.uk/human-rights/free-speech-and-protest> accessed 29 December 2015
2
Helen Fenwick, ‘The Right to Protest, the Human Rights Act and the Margin of Appreciation’ (1999) 62
Modern Law Review 491, 493
3
Austin v Commissioner of the Police of the Metropolis [2009] UKHL 5, [2009] 1 A.C. 564
4
R (on the application of Laporte) v Chief Constable of Gloucestershire [2006] UKHL 6, [2007] 2 A.C. 105
, A key piece of legislation relating to the policing of protests is the Public Order Act 1986, which
predates the HRA 1998. It is argued here that this legislation is out-dated, incompatible with the HRA
1998, and requires reform. This legislation gives police officers statutory powers in relation to protests
and also sets out the requirements for protest organisers to fulfil. Section 11 5 is particularly pertinent
to this, as it sets out the requirement of Advance Notification of a protest; by which an organiser
commits an offence according to 11(10)6 if he fails to comply. This legislation gives unnecessarily vast
powers to the police to deal with protests - for example; a public procession can be restricted in terms
of time or place under s.10, 7 or prohibited altogether under s.12. 8 Especially given the dawn of the
HRA 1998, it seems that the POA 1986 allows police too many opportunities to restrict an individual’s
article 5 right based on ‘reasonably believing’ them about to cause ‘serious public disorder’ or any of
the other reasons discussed in s.11. 9 Professor Hadfield, in briefly drawing parallels between the POA
1986 and the Northern Ireland equivalent, suggests that in order to achieve greater parity in police
powers, a body may be created, consisting of the protest organiser, senior police officer, member of
the local authority, and perhaps spokespeople for the residents. 10 This, it is argued, is a considerable
step towards achieving a greater power balance between the police and protesters, and would allow
for easier communication between the two, thereby reducing the necessity for employment of the
harsher powers established under the POA 1986. The POA 1986, as evident by its title, is a piece of
legislation, which prioritises public order above all, including above human rights. It is questionable
whether this is the fairest course of action, and it could be strongly contended that in a lot of cases,
protection of the right to protest is more important than the protection of public order, and the POA
1986 is an entirely insufficient method of protecting the rights of political protesters.
The other aspect of police power that places pressure on the protection of protesters’ rights is the
common law ‘breach of the peace’ doctrine. This policy, in comparison to the POA 1986, gives police
forces powers that have been described as ‘immensely broad and bewilderingly imprecise’, 11 which
inhibit individuals’ right to protest even further. The breach of the peace doctrine is such that the
police can choose to act according to this as opposed to the more restrictive POA 1986, as
interpretation of the doctrine is often left to ‘police perceptions… and unpublished police guidelines’. 12
5
Public Order Act 1986, s.11
6
ibid, s.11(10)
7
ibid, s.10
8
ibid, s.12
9
ibid, s.11
10
Brigid Hadfield, ‘The Human Rights Commission and the Civic Forum in the Devolved Northern Ireland’
(2001) 7(2) European Public Law 143
11
Helen Fenwick, ‘Marginalising Human Rights: Breach of the Peace, “Kettling”, the Human Rights Act and
Public Protest’ [2009] Public Law 737, 738
12
ibid
