Article 11 and the Met’s “pay to protest” proposal

8 March 2015 by Hannah Noyce

Photo credit: The Guardian

A number of campaigning groups were recently informed by the Metropolitan Police that Scotland Yard would no longer provide traffic management at their planned demonstrations. Instead, these groups would be required to devise their own road closure plans and to pay a private security firm to carry out the task.

One of the groups, the organisers of the Million Women Rise rally, estimated that this would cost them around £10,000. The groups refused, arguing that this would amount to a breach of their right to protest.

The Met ultimately backed down – but what if it hadn’t? What is the legal position?

The right to freedom of peaceful assembly

The starting point is the right to freedom of peaceful assembly protected by Article 11 ECHR. Protesters will usually also be exercising their right to freedom of expression under Article 10, which in this context is treated by the European Court of Human Rights as an aspect of the Article 11 right.

The right to freedom of peaceful assembly is a fundamental right in a democratic society and one of the foundations of such a society. It therefore should not be interpreted restrictively: Djavit An v Turkey (2005) 40 EHRR 45 at [56]. This does not mean, however, that everyone has the right to protest whenever, wherever and for however long they wish. The right may be subjected to limits which are prescribed by law, necessary in a democratic society to meet one of the legitimate aims set out in Article 11(2), and proportionate to that aim. The permissible aims are the protection of national security or public safety, the prevention of disorder or crime, the protection of health or morals, and the protection of the rights and freedoms of others.

Article 11 imposes both negative and positive obligations on the state: see e.g. Djavit An at [57]. This means that the state is required not only to permit, but also to take positive steps to facilitate peaceful demonstrations. These positive obligations are not unlimited: the state will not usually be obliged, for example, to require private landowners to permit demonstrations on their property, so long as the protesters can exercise their right somewhere else: Appleby v UK (2003) 37 EHRR 38. But where positive steps are necessary to ensure that the right is practical and effective, the state will be required to take them.

Policing demonstrations

The Court has made clear on a number of occasions that states have a positive duty to provide adequate policing at demonstrations. For example, where a demonstration and counter-demonstration are planned to coincide, the state will not usually be permitted simply to ban one or the other. Rather, it must consider measures which will allow both demonstrations to take place without disturbance, although it has a wide margin of discretion when doing so: see Barankevich v Russia (2008) 47 EHRR 8 at [33]. In Olinger v Austria (2008) 46 EHRR 38, which similarly concerned two potentially competing meetings, the Court held at [48]:

“… the Court is not convinced by the Government’s argument that allowing both meetings while taking preventive measures, such as ensuring police presence in order to keep the two assemblies apart, was not a viable alternative which would have preserved the applicant’s right to freedom of assembly while at the same time offering a sufficient degree of protection as regards the rights of the cemetery’s visitors.”

The state therefore cannot simply take the route which requires the fewest resources. The fact that Scotland Yard has provided traffic management for such protests in the past, including for the particular groups in question, might be evidence that it is reasonable to expect them to do so again.

Of course, the police in this instance were not intending to ban the demonstrations altogether. However, given that at least some of the groups in question made it quite clear that they could not afford to pay, the effect would have been the same as far as those groups were concerned. The Met clearly had in mind groups supported by regular donations or with a defined subscription-paying membership: no consideration appears to have been given to groups which may be less well-organised, or whose members lack the resources or inclination to pay these kinds of sums.

It is also important to remember that the rights at stake are not only those of the organisers, but of each and every person who wishes to join the demonstration. In fact, therefore, arguments about whether or not the group can afford to pay are somewhat beside the point. If the organisers decided not to do so for whatever reason, then each of those persons would be effectively prevented from taking part in the demonstration (unless they are able to and choose to pay themselves, but that obviously cannot be an answer to the problem).

“Manner and form” or the essence of the right?

But, the Met might respond, no one is suggesting that these people would then be prevented from exercising their rights to protest. Each of those people could choose to do so in smaller numbers or in a different location, so that no roads needed to be closed. A similar argument was made by the Secretary of State in Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23, which concerned a women’s protest camp which had been happening on a monthly basis for 23 years, and which the Secretary of State wanted to move from its established location. Laws LJ identified, at [16], various Strasbourg cases which have recognised a distinction between the essence of a right and the manner and form of its exercise. However, at [37] he said:

“But this “manner and form” may constitute the actual nature and quality of the protest; it may have acquired a symbolic force inseparable from the protesters’ message; it may be the very witness of their beliefs… the camp has borne consistent, long-standing, and peaceful witness to the convictions of the women who have belonged to it. To them, and (it may fairly be assumed) to many who support them, and indeed to others who disapprove and oppose them, the “manner and form” is the protest itself.”

Of course, the demonstrations with which we are concerned are not long-standing or continuous. However, it could certainly be argued that the manner and form of a large-scale rally, attended by large numbers of people, constitutes the nature and quality of that protest. A small demonstration, attended by few enough people to fit on the pavement, would hardly have the same feel or impact.

Legitimate aim

On the face of it, therefore, it seems the state does have a duty to facilitate these protests. It would have to establish that its failure to do so in this case was necessary in order to fulfill one of the legitimate aims in Article 11(2) and was proportionate to that aim. The aim cannot be to protect the rights and freedoms of other road users, since those people are affected by the road closure itself, regardless of who is paying for it. Nor could the state simply rely on the needs of public safety and/or the prevention of disorder or crime, since (even if there were any suspicion that the protests might involve or lead to violence or disorder, which does not appear to be the case) there is no reason why those aims should be achieved by a private security firm rather than by the police. The real reason appears to be cuts to police funding; but, given that the state as a whole is responsible for securing the Convention rights in its territory, that justification would be unlikely to hold much weight in Strasbourg.

None of this means that the state is obliged to facilitate all protests, however long or disruptive they may be. Public authorities will always have to balance the other considerations, including the rights of other members of the public, against those of protesters. Recent domestic decisions have made clear, for example, that it will generally be lawful to remove protesters who have been exclusively occupying public land for many months and are significantly interfering with the rights of others: see e.g. Samede v City of London Corp [2012] EWCA Civ 160 at [49], and Hall v Mayor of London [2010] EWCA (Civ) 817 at [49]. But those circumstances are very far from this case, where self-contained protests are scheduled for a particular day. It may well be necessary and proportionate for the police to limit, say, the length of time for which roads will be closed in order to minimise disruption to other road users, but that does not mean that they can refuse to facilitate any closure at all. If the planned protests were to go on for a long time or to cause significant disruption, then it may well become lawful to stop them for that reason; that does not mean it would become lawful to allow them to continue only if the protesters paid for the privilege.

It seems likely, therefore, that any requirement that demonstrators pay to protest in a public space would constitute a breach of Article 11. From a practical perspective, it also risks discouraging groups from engaging with the authorities with the result that demonstrations become more disruptive – why bother to notify the police about your protest if you will be asked either to pay or prevented from protesting altogether? We will have to wait and see if the question ever gets as far as a court room.