Art. 11: Association and protest

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.

This is a qualified subject to exceptions that must be applied proportionately to achieving the aims of national security, public safety, crime prevention, the protection of morals and the rights and freedoms of others. See ECHR EXCEPTIONS TABLE

Until 1966 when people in the U.K. were first allowed to take their grievances to Strasbourg, the rights of free expression and to protest were never declared in Britain (Dicey: An Introduction to the study of the law of the constitution, ed. 10, 1959, p. 271). Instead we managed with the less clear position that everything was legal that was not outlawed.

1. Protest (Article 10, Free Expression, also applies)
Jane Laporte traveled with three coachloads of protesters to Fairford RAF base, Gloucestershire to demonstrate peacefully against the war in Iraq. Fairford was heavily used by U.S. B52 bombers. Protests were frequent and in particular a demonstration by the London Workers in White Overalls Movement for Libertarian Effective Struggles (Wombles) had led to disturbances.

The three coaches were stopped 2 km from the perimeter fence. These protestors were also wearing white, this time to represent the nuclear weapons inspectors at Fairford. The police searched the coaches and found two pairs of scissors and a safety flare among various defensive items, e.g. polycarbonate shields. When all coach passengers were asked if they were or knew who was responsible for the items, no one owned up.

Intelligence sources and the items seized made it reasonable for the police to think in terms of a beach of the peace and they ordered the coaches back to London. Including inspection time, the protestors were kept in the coach for 2 1/2 hours.

Supported by the HR organisation Liberty, Jane Laporte applied for Judicial Review of the lawfulness of this action by state officials (the police). The High Court and then the Appeal Court held that the decision to return the coaches to London had been lawful but that the protesters’ Right to Liberty was violated as the police had no warrant for stopping the coaches.

The High Court and the Appeal Court also ruled that preventing the protesters getting to the base was lawful because the police had “reasonable grounds” for believing a breach of t he peace was imminent. However the House of Lords disagreed. Not only was stopping the coaches unlawful but a breach of the peace was not imminent and therefore the police action was heavy handed (disproportionate). Neither was it proportionate in respect of its aim of preventing serious disorder since it stopped the many “sheep” as well as a possible few “goats” from protesting.

This crucial idea that state officials must be proportionate when restricting the  rights as against the traditional U.K. position that they need only be “reasonable” is therefore part of the sea change that the HR Act brought into U.K. courts, making state authorities much more accountable regarding individual people’s rights.

2. Freedom of Association:

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