We are delighted to welcome this guest post from Darren McStravick, a PhD student at School of Law and Government, Dublin City University. Darren holds a law degree and a masters in human rights law from Queens University Belfast. He has previously worked as a legal researcher with the Northern Ireland Law Commission. His PhD research, for which he holds an O’Hare Scholarship at DCU, seeks to evaluate restorative justice models, specifically Irish adult reparation panels. Darren is particularly interested in the issue of community ownership and the restorative practice within these panels.

The ‘Right to Protest’ on Northern Ireland’s Streets:  Disregarded Limitations and the Need for Clarity

Throughout the previous eight weeks Northern Ireland has been gripped by protests and riots relating to a decision by Belfast City Council to fly the Union Jack on designated days over the grounds of Belfast City Hall. This decision substituted the previous practice of flying the flag on every day of the year. Whatever the views on that democratic decision, concern should be raised over the growing number of statements and opinions debating the importance of human rights law within this jurisdiction. Human rights are, undoubtedly, a vital component of a democratic society. Indeed, there has been a steady stream of support for the protection of these rights from a number of stakeholders, including politicians, protesters and police officers, within the Police Force of Northern Ireland (PSNI). One right in particular has been highlighted; the ‘right to legitimate peaceful protest’. Over this troubling period we have been continually informed that the freedom to protest should be protected. The First Minister himself has voiced his support,  as has the Chief Constable of the PSNI who also notes that ‘[we must] make sure that people’s rights to peaceful protest are upheld’. This ‘right’ is not expressly stated within the content of the European Convention on Human Rights (ECHR – incorporated into UK law via the Human Rights Act 1998). It can, however, be implied to exist within the realm of other Convention Articles. For example, Article 10.1 provides for the freedom to express opinions. It states that:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

Coupled with this, the Convention provides for the right to assemble peacefully. Article 11.1 further states that:

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.

Thus, both articles provide a legal recourse for protesters angry at the Council’s decision. However, if human rights law is to be continually referenced, it is important that it is referenced correctly. There is no unfettered statutory ‘right to protest’ within the Convention. Of course, it can be implied within the rights of expression and freedom of assembly, and it has been robustly protected on many occasions by the Strasbourg Court (for example see Aldemir v Turkey (32124/02 and linked applications, 18 December 2007) and Balcik v Turkey (25/02, 29 November 2007). Another implied example would be the ‘right to free speech’. However, Articles 10 and 11 are not unqualified: there are certain prohibitions and restrictions when exercising the rights protected thereunder. Within the references to human rights law in the present discourse, there are suggestions that the ‘right to protest’ has joined a select group of unqualified freedoms which include Article 3, ‘the prohibition of torture’, and Article 4, ‘the prohibition of slavery’. The Chief Constable and others are correct in arguing for the upholding of the freedom to peacefully protest. However, there is no reasoning or discussion as to why this right should take precedence over other competing rights.

I am left wondering at what stage in the current rights discourse this freedom has inherited such an overriding importance. There is no discussion here, within political and PSNI statements, about the need to uphold the Article 8 right ‘to respect for private and family life’. Over the past turbulent weeks, many people have been prevented, due to the blocking of roads by peaceful protesters, from getting to and from their places of work, from picking up their children from crèches and schools, from attending events and, most worryingly, doctors have been prevented from attending home visits for terminally ill cancer patients (see here). Others have been stopped while trying to visit dying relatives in hospital (see here). Businesses have been badly affected due to reduced footfall, resulting in job losses and reduced turnover (see here). Although the police and protesters have strived for the most part to allow ambulances to be passed through blockades, the disruption has led to others having to reroute. This theoretically engages the possibility of possible breaches of Article 2 ‘right to life’, especially if a patient is seriously ill and there is a need for immediate medical treatment. Should Articles 10 and 11, and ‘the legitimate right to protest’ contained within, then take precedence over these competing rights and if so why? The limitations within both Articles 10 and 11 are clearly outlined. Within Article 10.2, limitations are clearly stated:

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 11.2 contains the same limitations, as well as stating that

‘this Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State’.

The blocking of a public highway and, on occasion, the rioting resulting from that activity, clearly engages a number of the qualifications embedded in both Articles. There are also possible criminal law breaches, including charges of obstruction and breach of the peace. Obviously a court will endeavour to balance the rights in play and make a ruling on a case by case basis. It could be argued, however, that the police are not properly exercising the ‘lawful restrictions’ contained within Article 11.2.

Undoubtedly, there also has to be a balancing act by police forces generally as to what policies will limit civil disorder. Although this has been recently highlighted by the Chief Constable, it is very concerning that he wrongly refers to Article 8 as that which protects the freedom of expression (see here). Further, it is perhaps more concerning that this mistake has not been recognised or commented upon. His argument that the right to life would be better protected by refusing to disperse protesters from the public highway is not substantiated and is debatable at best. The PSNI, of course, are continually caught in the middle of a political decision which was not of their making. They admirably continue to police the fallout despite rising injuries and threats to life of the officers involved. However, there is a primary duty first and foremost to impose law and order within the community it serves. By arbitrarily placing the rights of assembly and expression over other rights such as the right to private and family life, the balance does appear to have come down on the side of protests. This is despite the obvious qualifications within those rights. It is also despite regular public highway blockades and the subsequent rioting and public disorder which occasionally results. Thus by facilitating, without due qualification and recourse to other competing rights, protests and the blocking of roads, taking into consideration the somewhat unique political atmosphere and pressures on the police force in Northern Ireland, this ‘right to peaceful protest’ is gaining a somewhat superior status in the hierarchy here. Whether these rights deserve this status is open to question. Importantly, that question is currently not being addressed.

The case law has not always been clear on the correct balance to be attained. Historically, for example, in Duncan v Jones [1936] 1 KB 218, Lord Hewart CJ stated that, ‘English law does not recognise any special right of public meeting for political or other purposes’. More recently, DPP v Jones [1999] 2 ALL ER 257 has clarified, as per Lords Hutton and Irvine, that a right to peaceful assembly on a public highway does exist, however it should not obstruct the public’s primary right of passage. In Mayor of London v Hall & Ors [2010] EWCA CIV 817, Lord Neuberger (at paragraph 49) took into consideration, amongst other things, the length of time a protest within the grounds of Parliament Square had taken (70 days) when ruling that Articles 10 and 11 were not breached. This may be relevant to the indeterminate nature of current protests in Northern Ireland.  He further noted that these Articles unlocked much potential for the interference of other competing rights. In City of London v Samede and Others [2012] EWCA CIV 160 the permanent obstruction to the highway by protesters outside St Paul’s Cathedral was held to be disproportionate when balancing competing rights of expression and assembly.

Thus, it is submitted that the right to assemble and express opinions are important rights. However, it has to be made clear by elected representatives, police spokespersons and political commentators that they are not unqualified freedoms. Other competing rights should be effectively measured throughout this volatile situation. It would appear that, presently, a superior status is being afforded to Articles 10 and 11 within this jurisdiction. This may or may not be justifiable. What is beyond justification is the unwillingness to fully inform the principle stakeholder throughout this period of unrest, the community itself, as to why this superior status exists. The community is also entitled to be informed of the balancing exercise, if any, that has been carried out in order to arrive at this result. Finally, if human rights law is to be referenced in order to support a particular policy, it would be helpful if the correct Articles are referenced when attempting to uphold this important ‘right’!

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