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Yesterday, the High Court of Justice issued its ruling in the case of Jones & Others v The Commissioner of Police for the Metropolis. This case was a judicial review of the decision taken by the police to restrict the Extinction Rebellion Autumn Uprising (XRAU) in London. Upon review, the court determined that the order for gatherings linked to the XRAU to cease had been unlawful as it did not fall within the conditions under which the police have the power to make such orders.

Freedom of association and assembly, and more narrowly the right to protest, are important in any democratic society. Often, campaigns for change and law reform make use of peaceful protest in one form or another to draw attention to their cause and to increase pressure on those who are in a position to implement the changes. Historically, the protests of the suffragettes and the strikes of workers fighting for safer work environments have brought about significant change.  A great deal of awareness and activism can now be achieved from assembling online rather than in a physical sense, but the recent presence of XR and other climate change activists on the streets of many cities worldwide has generated publicity and attention both to the cause and to the protests themselves.

A feature of most public protests, rallies or strikes, whether intentional or inadvertent, is the disruption it will cause to others. Opposing sides will always have differing views on whether the cause merits the disruption it brings about and it is in this respect that there is a need for objective laws which protect the right to protest, allow this to be curtailed when necessary and, most importantly, allow for review of decisions taken by authorities such as the police to ensure that the appropriate balance is maintained.

The basic right to assemble and associate with others is enshrined in human rights legislation. Article 11 of the ECHR, as implemented by the Human Rights Act 1998 provides that everyone is entitled to peaceful expression of this right. Pre-dating this legislation there has also been a longstanding common law right to protest in the UK. The High Court’s judgement made reference to this history and to the manner in which the right to protest is still upheld strongly today.

The ways in which the right to protest is exercised can however be restricted. The Public Order Act 1986, under which the police purported to make their order in respect of the XR demonstrations is an example of such a legitimate restriction. The UK can enact and enforce these laws to the extent that they are necessary for certain aims such as public safety, the prevention of crime and disorder and the protection of the rights and freedoms of others.

In Jones & Others the court reached its decision on an interpretation of whether the XR demonstrations constituted a “public assembly” in terms of the Public Order Act. They held that the separate gatherings did not constitute a “public assembly” and therefore the order which had been an effective ban on the protests had been unlawful.

Viewed through the lens of human rights law, this restriction would therefore fall at the first hurdle in testing its legitimacy, as it was not a restriction provided for by law. Authorities cannot ban protests without a legal basis for doing so. Had the XR protests been considered a single “public assembly” then the actions of the police may well have been considered lawful. However, even if an authority’s actions are prescribed by law, it does not automatically follow that they are lawful in terms of the protection given to the right to protest by the ECHR.

The key concept in determining whether laws, and the way in which they are enforced, are compatible with the right to protest is one of proportionality. Generally, the justification for authorities interfering with a protest will need to be real and serious before the interference will be considered legitimate. Blanket bans on demonstrating will generally be inconsistent with the right, unless there is a real threat to public order or security. There is a need to take less stringent measures where necessary. On a similar vein, the fact that the points being made by a protest will annoy or offend others is not justification in itself for preventing it going ahead.

When other rights, including those of freedom of expression and freedom of religion are considered, interference by the police, local Councils or other authorities with the power to make orders which interfere with protest can come with greater or lesser legitimacy. Decisions on the balance of rights are not easy, and nor should they be when the potential impact of protest and counter-protest is considered.

The High Court’s decision in Jones & Others demonstrates one of the checks in place to ensure that interference with the right to protest is only exercised when it is necessary and that this fundamental right is respected.

Blog by Amy Haughton, Solicitor

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