Democracy Village: Peaceful protest under human rights law

3 June 2010 by

Brian Haw

The Coalition Government have promised to “restore the right to non-violent protest”, but Boris Johnson, the Mayor of London, is bringing court proceedings to evict protesters from Parliament Square. What are the human rights implications?

During the build-up to last month’s General Election, a number of protesters erected tents and flags in Parliament Square, a green outside the Houses of Parliament. The protesters still remain and have named the site “Democracy Village”. Brian Haw, famous for his protests against the Iraq war, is amongst the protesters.

Now Boris Johnson, the Mayor of London, has decided that enough is enough and is to institute trespass proceedings against the protesters. The BBC quotes a spokesman for Mr Johnson, who said “The mayor respects the right to demonstrate, however the scale and impact of the protest is now doing considerable damage to the square and preventing its peaceful use by other Londoners, including those who may wish to have an authorised protest.

If the High Court is asked to grant an injunction against the protesters, as the mayor has threatened, it will have to examine  the rights of the protesters under human rights law and explore what has happened in similar situations in the past.

The human right to free assembly

Article 11(1) of the European Convention on Human Rights provides:

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.

The right is qualified, however, as is the cases with many of the rights under the Convention. It is possible to restrict the right if  that restriction is “prescribed by law, 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.

Emma Norton, a legal officer at Liberty, provides an excellent analysis of the law of peaceful assembly in a Guardian article. She says that the starting point is the Public Order Act 1986 (POA), which does not impose an obligation upon an organiser of a static assembly to provide prior notice to the police. It does allow the police to impose conditions on assemblies if certain conditions are met. That is not the end of the story though, as

In recent years, parliament has passed a range of different laws in response to the perceived threat of terrorism, or antisocial behaviour, which have had the effect of restricting the right to protest.

She goes on to list a number of controversial powers which the New Labour government introduced in order to fight terrorism but which had the side-effect of limiting protest rights, many of which have been challenged in the courts, including by Brian Haw himself who challenged a provision of the Serious Organised Crime and Police Act 2005 (SOCPA). Norton says

The provisions of Socpa are various and complex but, put simply, the act requires those wishing to engage in political demonstrations within the “designated area” to give written notice to the Metropolitan police in advance, stating various details pertaining to the proposed demonstration. The notice must be given at least six days in advance.

SCOPA allows broader conditions than under POA to be imposed on an assembly. Liberty along with Haw have tried to challenge those powers under human rights law, but, after victory in the High Court, ultimately failed to convince the Court of Appeal (see Haw, R (on the application of) v Secretary of State for the Home Department & Anor [2006] EWCA Civ 532 (08 May 2006).)

Proportionality is the key

In the injunction hearing the question will be one of proportionality. The High Court will have to weigh up the potential removal of the protesters against their human rights to free assembly.

The issue is not clear cut, as there is a strong argument that whilst the right to peaceful protest is crucial to a functioning democracy, this does not mean that people can protest wherever and whenever they like. This is because a protest in any public space has the potential to infringe the rights of non-protesters. Emma Norton says

Liberty believes that the right of peaceful protesters like Haw must be vigorously defended and we will be watching the government and the mayor’s next steps very closely.

However, Colin Barrow, the leader of Westminster Council puts the other side of the argument in the Guardian:

Londoners and visitors have not been able to enjoy the public square when more than 40 tents prevent them from walking across it and enjoying it. Every day while the protestors remain, our street cleansing teams are having to dispose of at least a tent’s worth of waste from the square. In addition, the creation of a permanent home on the square has stopped others, with causes that are just as important, from being able to protest there. It is not right that anyone else who wants to highlight an issue cannot take their cause to the square because it is overcrowded with tents, compost lavatories, an oak sapling and vegetable plots.

High stakes

In taking legal action against the protesters, the London municipality is playing with high stakes. As the Israeli Government has recently found in relation to the Gaza Flotilla raid, Government action against protesters can quickly be seen as heavy-handed, even if the authorities feel they have a good arguable case.

However, it seems unlikely, given the previous decisions of the courts in relation to Brian Haw and anti-terrorism legislation, as well as the fact that the protesters have occupied a formerly public space, that they will be able to convince a court that removal of the “Democracy Village” would be an unjustifiable infringement on their human rights.

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