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 Continue reading