Article 11
Freedom of assembly and association
Summary
Article 11 is one of the foundations of a democratic society. It provides that everyone has the right to freedom of peaceful assembly and freedom of association with others. The right to freedom of peaceful assembly means the right to protest in a peaceful way. It lies at the heart of a democratic society, as peaceful protest is an important way to promote change. The right to freedom of association protects the right to join or form associations, such as political parties, as well as the right to form and join a trade union as a way of protecting one’s interests. This right is vital to the functioning of democratic societies.
Britain has a strong tradition of civil protest, but only with the Human Rights Act 1998 (HRA) were the rights to freedom of peaceful assembly and freedom of association directly and fully guaranteed in domestic law for the first time.
Britain has an extensive legal framework regulating public processions and assemblies. Freedom of association is governed in domestic law through a range of statutory provisions, including legislation giving individuals the freedom to choose whether to join a trade union and protection from discrimination if they do so.
The key issues we address in this chapter are:
Public order legislation is complex, overbroad and risks eroding the right to peaceful protest
The police have a vast range of statutory and common law powers and duties in relation to the policing of protest. However there are questions about the impact of overbroad legislation on the ability of police to manage peaceful protest effectively
The review shows that:
- The police do not adequately understand their powers and duties.
- The police do not always strike the appropriate balance between the rights of different groups involved in peaceful protest.
- Introducing more legislation may unnecessarily expand police powers and have a negative impact on the right to protest.
- Protests in and around parliament are subject to a restrictive authorisation regime.
- Counter-terrorism powers to proscribe organisations are too broad and may interfere with Article 11 rights of non-violent organisations.
Police use of force and containment in managing protests may risk breaching a number of articles
The tactic of containment or ‘kettling’ is sometimes used to manage protests. It has become a major public order issue in the past decade, focused on the degree to which it is legitimate and proportionate. Given the possible interference with the right to liberty, breaches of Article 5 may happen.
The Criminal Law Act 1967, the Police and Criminal Evidence Act 1984 and the common law require that any use of force should be ‘reasonable’ in the circumstances. This means that the use of force must be the minimum appropriate in the circumstances to achieve the lawful objective. Excessive use of force is unlawful and, as well as interfering with protestors’ rights to freedom of expression and assembly under Articles 10 and 11, may also constitute a violation of Article 2, the right to life, Article 3, freedom from torture, inhumane and degrading treatment, or Article 8, the right to private life.
The review shows that:
- The police tactic of containment or ‘kettling’ of protestors has an impact upon the liberty of protestors and a chilling effect on protest.
- The police do not always use the minimum level of force when policing protests.
- There is no common view among police forces of the meaning of 'reasonable force'.
Police misuse of surveillance, stop and search powers, and other pre-emptive legal action by the police and private companies inhibits peaceful protest
The police rely on information and intelligence to plan effectively for large scale protest events and to establish the potential for disorder or violence. Yet the inappropriate and disproportionate use of surveillance of protesters who have not committed any criminal offence has the potential to deter people from taking part in peaceful protest. The police also have a range of stop and search powers under domestic law which are used during public order operations related to protests. These powers raise important human rights issues, notably the question of whether police action is compatible with the right to private life protected by Article 8.
The review shows that:
- The inappropriate use of surveillance powers violates the right to privacy, and undermines confidence in policing and risks being disproportionate and unlawful.
- Blanket use of stop and search powers breaches Articles 8, the right to private life, Article 10, the right to freedom of expression, and Article 11.There is misuse of police powers to stop and search without reasonable suspicion.
- Pre-emptive legal action by the police stifles peaceful protest.
- The use of civil injunctions against protesters by private companies inhibits the right to protest.
Britain may not be meeting some of its obligations in relation to freedom of association
Article 11 protects the right of people to choose whether or not to form and<> join associations such as political parties, trade unions and other private organisations if they want, and for these associations to be recognised legally. It explicitly recognises trade union freedom as one form or a special aspect of freedom of association.
The review shows that:
- Regulations to protect employees involved in trade union activity from blacklisting may not meet Britain’s Article 11 obligations.
- The procedural rules governing the right to strike make it too easy for employers to challenge the lawfulness of proposed strikes.
Download the full chapter
Article 11: Freedom of assembly and association (PDF)
Case study: Policing protests story