Public Nuisance v Freedom of Speech: Flags and Protests in Northern Ireland

We are delighted to welcome this post from Dr Ciara Hackett. Ciara joined the School of Law at Queens University Belfast in August 2012, prior to that she held a teaching and research fellowship at the School of Law, National University of Ireland Galway.  Her research explores a diverse range of issues in the areas of regulation, corporate governance and corporate social responsibility as well as legal theories of development.  She is currently engaged in a number of projects in the areas of Corporate Social Responsibility, Tort Law and Corporate Governance.

Queues, carols, mince pies, mulled wine and….protests? Belfast (and indeed large portions of Northern Ireland) has come to a standstill in the weeks and days leading up to Christmas, not due to crowds of festive shoppers but rather for daily protests over the decision, earlier this month, to remove the Union flag from its daily perch over City Hall, instead, limiting its flying to designated days in keeping with the rest of the UK.

The wrath of daily commuters (on both sides of the religious divide) surrounds the fact that these protests are blocking their route home. The challenge to the law therefore, is in balancing the protestors right to protest (as protected by Article 10 of the European Convention on Human Rights and Articles 10 and 11 of the Human Rights Act 1998) with causing an obstruction amounting to a Public Nuisance.   The tort of nuisance broadly conceived is described as the interference with another’s rights.  Concerned not with the prohibition of a certain act, the tort instead protects the claimant from an unreasonable interference with rights.  The idea of Public Nuisance is more recent manifestation concerning itself with the protection from unreasonable interference with rights which are common to all.  Described first in the UK in the judgment of AG v PYA Quarries [1957] 2 QB 169, the judgments of Lord Romer and Lord Denning are most relevant.  Romer defined public nuisance as that which affects materially the reasonable comfort and convenience of a class of her majesty’s subjects.  Endorsing Lord Justice Romer, Lord Denning goes further, stating that it is the “responsibility of the community at large to put a stop to unreasonable activity”.

As a public tort, the AG litigates on behalf of the community at large, unless it can be proven that the plaintiff/claimant has suffered “special damage”.  Defined within the UK and Ireland as damage which is appreciably more serious than that suffered by the general public, Smith v Wilson [1903] 2 IR 45 illustrates its application in Northern Ireland.  Developments in the UK have suggested that personal injury also comes within the confines of Public Nuisance, therefore distinguishing it quite significantly from the tort of Nuisance as more broadly understood (See Corby Group Litigation v Corby Borough Council [2009] EWHC 1944).  Public Nuisance covers obstructions to the highway via marches and pickets.  In short, the protests do amount to a Public Nuisance.  However, as to whether or not it is actionable will depend on the interpretation of the courts on the relationship between Public Nuisance and Freedom of Expression Rights and the associated right to protest (Article 10 of the ECHR as endorsed by the Human Rights Act (articles 10 and 11)).

Criticisms of the tort of Public Nuisance have centred round the disproportionate and selective use of the tort in its application in the courts.  Although the idea of reforming the area of Public Nuisance was before the Law Commission in 2010 no report has yet been forthcoming and its concerns seem to be mainly with the criminal aspect of the offense.

In anticipating the direction of the court, we can take some guidance from how the courts in the UK considered these rights and the subsequent relationship between them in the wake of the global Occupy protests.  In the case of City of London v Samede & others [2012] EWHC 34 (QB), the courts seem to have decided that the freedom of expression right overrides the Public Nuisance Tort except in extreme cases.  Looking at previous case-law (Mayor of London v Hall & others [2010] EWCA Civ 817) the test deployed would seem to be that interference with articles 10 and 11 of the Human Rights Act will be judged against the impact that their protests are having on others… taking into consideration particularly those who are unwillingly caught up in the obstruction.  Whether or not an impact on Christmas Shopping, or lengthy queues and delays will be enough to engage “special damage” and therefore the courts balancing exercise in favour of those affected seems therefore unlikely.

So, whereas obstructions on the highway are textbook public nuisance cases as defined by the academic Fleming and AG v PYA Quarries, unless criminal damage arises from these protests (which is starting to happen), or they breach statutory protection (The Roads (Northern Ireland) Order 1993 etc) the protesters are generally free to exercise their freedom of expression.  For the commuters and those caught up in the long delays arising from the protests – they can seek solace in the fact that the protests should abate on the 25th and 26th of December as these are two of the designated days in which the flag will fly above City Hall in Belfast.

Merry Christmas!!

Public Nuisance v Freedom of Speech: Flags and Protests in Northern Ireland

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