Freedom of Assembly and Association in UK Law

In our view, those factors include (but are not limited to) the extent to which the continuation of the protest would breach domestic law, the importance of the precise location to the protesters, the duration of the protest, the degree to which the protesters occupy the land, and the extent of the actual interference the protest causes to the rights of others, including the property rights of the owners of the land, and the rights of any members of the public.

The approach of the English common law to freedom of expression and assembly was hesitant and negative, permitting that which was not prohibited. The Human Rights Act 1998, giving domestic effect to articles 10 and 11 of the European Convention, represented what Sedley LJ in Redmond-Bate v Director of Public Prosecutions (1999) 163 JP 789, 795, aptly called a "constitutional shift".

Article 10 confers a right to freedom of expression and article 11 to freedom of peaceful assembly. Neither right is absolute. The exercise of these rights may be restricted if the restriction is prescribed by law, necessary in a democratic society and directed to any one of a number of specified ends.

But, as O'Kelly v Harvey shows, where it is necessary in order to prevent a breach of the peace, at common law police officers can take action (in that case dispersing a meeting) which affects people who are not themselves going to be actively involved in the breach.

But the European Court has at all times also stressed the importance of the rights of freedom of assembly and expression and that states have positive obligations to take steps to facilitate their exercise (cf paragraph 136 above). So, wherever possible, the focus of preventive action should, on any view, be on those about to act disruptively, not on innocent third parties.

The point which is argued on appeal is that the decision of the police to arrest, of the CPS to prosecute and the decision of the court to convict has interfered with important convention rights and thus had to be justified under convention law. The submission in simple terms is that the State, in its various public authority guises (police, CPS, courts) must be able to justify the necessity to act on the individual facts of each case.

It is self-evident that any right to be recognised conferred by domestic law will have to be defined by rules which identify which unions should be recognised by which employers in respect of which workers and for what purposes.