EWJ Dec 2023 - Journal - Page 63
5. for the prevention of disorder or crime, for the
protection of health or morals; or,
stance on ‘right-wing’ counter protesters. This article
may have ignited a hostile counter protest as the
Metropolitan Police condemned the ‘extreme violence
from right-wing protesters’ where on 11 November
they made 145 arrests, the vast majority of whom were
‘right-wing’ counter protesters. This prompted Sunak
to condemn the violence of the EDL (English Defence
League). Disturbingly, this comment by the UK Prime
Minister reveals how out of touch many prominent
politicians in senior government positions are in relation to far-right and the extreme far-right (neo-Nazi)
politics as the EDL was disbanded in 2011. Yet, it is
these politicians who are orchestrating not just how
the protests should be policed but also public opinion
on what is and is not acceptable within the rights to
freedom of expression and peaceful assembly. This
was seen in France on 12 November 2023 where a
major demonstration was held in Paris brought about
by the Israel-Gaza war by prominent far-right politicians, including Marine Le Pen, leader of National
Rally and three-times presidential candidate. The
protest was to show support for traditional Franch Republican values and the rejection of anti-Semitism.
Protests like this demonstrates how the far-right are
currently rebranding with a move away from the suspicion the Jewish conspiracy which undermined nationalistic values to focusing on immigration,
insecurity brought about by immigrants mainly from
Muslim states and Islamism. The much-derided former leader of the EDL, far-right activist and now
claiming to be an independent journalist, Tommy
Robinson (real name Stephen Yaxley-Lennon) is also
demonstrating this move in the UK who called on his
supporters to join a march against anti-Semitism on
26 November 2023 in London and, ‘…let British Jews
know they are not alone’. Within this political, historical and social context, the article examines the law
surrounding protests.
6. for the protection of the rights and freedoms of
others.
To put some context into what is legally acceptable in
relation to freedom of expression, in the UK case Redmond-Bate v Director of Public Prosecutions [1999] EWHC
Admin 733, Lord Justice Sedley said:
‘Freedom of speech includes not only the offensive but
the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, provided it
does not tend to provoke violence. Freedom only to speak
inoffensively is not worth having.’ [My emphasis]
Important in this decision is that freedom of speech
does not provoke violence and the European Court
of Human Rights (ECtHR) adopted a similar approach in an earlier case, Handyside v UK (1976), Application Number 5493/72. In Erbaken v Turkey (2006)
Application Number 59405/00, the ECtHR tempered
freedom of expression saying that tolerance and respect for the equal dignity of all human beings constitutes the foundation of a democratic, pluralistic society,
adding:
‘That being so, as a matter of principle it may be
considered necessary in certain democratic societies to
sanction or even prevent all forms of expression which
spread, incite, promote or justify hatred based on
intolerance …’
Two issues emanate from these decisions. One is from
Redmond-Bate that we must tolerate speech that we
disagree with even if we find it offensive. The second
is that the protection this right affords speech dissipates when that speech provokes and encourages violence or incites hatred.
Article 11 ECHR is also a qualified right where 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. However, this right can be interfered with where it is prescribed by law and necessary
in a democratic society in the interests of:
1. national security or
The Law on Freedom of Expression and Right of
Association
While the conflict continues, so will the protests in the
UK, mainly from pro-Palestinian supporters. From a
legal perspective the first area to consider are the applicable rights under the European Convention on
Human Rights (ECHR) mainly article 10, freedom of
expression and article 11 right to freedom of assembly
and association. Article10(1) ECHR provides everyone the right to freedom of expression, including freedom to hold opinions and to receive and impart
information and ideas without interference by a public authority, regardless of frontiers. This is a qualified
right allowing state agencies to interfere with this right
only when it is in accordance with the law and necessary in a democratic society when it is in the interests
of:
1. national security
2. public safety,
3. for the prevention of disorder or crime,
4. for the protection of health or morals or
5. for the protection of the rights and freedoms of
others.
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 right of the public to assemble or march together
in peaceful protest has long been acknowledged by
the common law of England and Wales. In Hubbard v
Pitt [1976] QB 142, Lord Denning M.R. was unequivocal how this important right is, saying:
‘Here we have to consider the right to demonstrate
and the right to protest on matters of public concern.
2. territorial integrity or public safety
3. for the protection of the reputation or rights of
others
4. for maintaining the authority and impartiality of the
judiciary
EXPERT WITNESS JOURNAL
61
DECEMBER 2023