The Right to Protest, the Human Rights Act and the Margin of Appreciation

Publication Date01 July 1999
DOIhttp://doi.org/10.1111/1468-2230.00220
AuthorHelen Fenwick
THE
MODERN LAW REVIEW
Volume 62 No. 4July 1999
The Right to Protest, the Human Rights Act and the
Margin of Appreciation
Helen Fenwick*
Debate on the Human Rights Act, inside and outside Parliament, has tended to
focus on the outer limits of vertical liability and on the linked issue of horizontal
effects. The Act will create vertical liability – liability as between the citizen and
public authorities under section 6 – but it is unclear how far the liability will
extend.1The Act will also affect the legal relations between private persons and
bodies (horizontal effects) although, if they are outside the scope of section 6, they
will not be bound by it directly. Both matters have been of concern to two
particular groups – the Press and the Church. At the time of publication of the Bill
there was widespread concern in the national press regarding the possible creation
of privacy rights. The Christian Association and the Press Complaints Commission
put forward amendments to the Bill which sought to ensure that their liability
under the Act would be avoided or limited.2Academic articles and papers have
focused on the extent of vertical effects, particularly in relation to these two
groups, and on the various possibilities for the creation of horizontal ones.3It has
been claimed that judicial creativity in both respects would lack democratic legiti-
macy since it would involve extension of the liability envisaged by Parliament.
In contrast, straightforward vertical effects have been viewed as much less
problematic and therefore have received much less Parliamentary or other atten-
tion. Since Articles 10 and 11, on freedom of expression and of assembly are
largely (although not exclusively) concerned with protecting the citizen against
state interference with forms of expression, it appears to have been assumed in
most quarters that the judicial role in interpreting them under the Human Rights
ßThe Modern Law Review Limited 1999 (MLR 62:4, July). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 491
* Department of Law, University of Durham. I am grateful to Colin Warbrick for his helpful comments on
earlier drafts.
1 n 4 below.
2 The amendments were eventually reflected in the Act in ss 13 and 12 respectively. See HL Deb vol
582 cols 1231–32 3 Nov 1997 and HC Deb 16 Feb 1998 col 777 for government responses to the
Press amendments.
3 See, for example, M. Hunt, ‘The ‘‘Horizontal’’ Effect of the Human Rights Act’ (1998) PL 423; C.B.
Graber and G. Teubner, ‘Art and Money: Constitutional Rights in the Private Sphere?’ (1998) 18
OJLS 61; I. Leigh, ‘Horizontal Rights, The Human Rights Act and Privacy: Lessons from the
Commonwealth’, ICLQ forthcoming; W. Wade, University of Cambridge Centre for Public Law ‘The
UK’s Bill of Rights’ in Constitutional Reform in the UK: Practice and Principles (Oxford, 1998) 62–
64; and on the Convention generally: A. Clapham, Human Rights in the Private Sphere (Oxford:
Clarendon Press, 1993); A. Clapham, ‘The Privatisation of Human Rights’ (1995) EHRLR 20.
Act will be relatively uncontroversial. The ‘public authority’ issue4and the pos-
sible creation of horizontal effects are not, for obvious reasons, of central concern.
Thus, the constitutional propriety of judicial creativity and activism has not
appeared to be in question, or at least not in such a pressing sense. However, it is
the contention of this article that this question does arise and in some respects in a
more aggravated form than in relation to potential horizontal effects. It arises, it
will be argued, due to the possibilities open to the domestic judiciary in responding
to the margin of appreciation doctrine as developed at Strasbourg. The possible
courses open to the judges go to the heart of their constitutional role but the nature
of that role is affected, it will be contended, by the need to safeguard the freedom
of expression of minority groups in a majoritarian system. This article will focus
on the constitutional place of public protest in a democracy, raising questions about
the positions the judiciary might adopt when considering the impact of Articles 10
and 11 on two of the most restrictive aspects of UK public order law – the common
law doctrine of breach of the peace and statutory criminal trespass.
The value of public protest
It is often said that public protest is tolerated in free societies due to its close links
with freedom of speech.5Those jurisdictions which provide constitutional protec-
tion for free expression have generally accepted that the protection will extend to
some but not all forms of public protest. The distinction is based on the
classification – in the US – of some forms of protest as outside the meaning of
‘speech’6or arises because the threat posed by the conduct element outweighs the
significance of the speech. These distinctions may reflect perceptions that the well
known free speech justifications7are not all equally applicable to public protest
and that not all forms of protest participate equally in those which are applicable.
The justification based on the argument from truth8is present in the sense that
citizens must be able to communicate with each other if debate which may reach
the truth is to occur: public protest provides one means of ensuring that speech
reaches a wider audience. Political speech is justified instrumentally on the basis
that it allows participation in the democracy;9public protest is one particular and
direct means of allowing such participation to occur outside election periods. A
clear example was provided by the Anti-Poll Tax marches in the 1990s. This
justification for expression is the one most favoured by the European Court of
Human Rights,10 which has also given a very wide meaning to the concept of
political expression. A further justification for speech based on moral autonomy11
4 Under the Human Rights Act s 6(3)(b) ‘public authority’ includes ‘any person certain of whose
functions are functions of a public nature’. Under s 6(5) ‘in relation to a particular act, a person is not
a public authority by virtue only of s 6(3)(b) if the nature of the act is private’. Not only is this
definition non–exhaustive, it also leaves open room for much debate on the meaning of ‘functions of a
public nature’.
5 See eg M.B. Nimmer, ‘The Meaning of Symbolic Speech Under the First Amendment’ (1973) 21
UCLALR 29, 61–62; H. Kalven, ‘The Concept of the Public Forum’ (1965) Sup Ct Rev 1, 23.
6InUnited States vO’Brien 391 US 367 (1968) it was found that conduct should not be classified as
‘speech’ simply because it was intended to communicate opposition to the war in Vietnam.
7 See E. Barendt, Freedom of Speech (Oxford: Clarendon Press, 1985) Part I ch 2.
8 J.S. Mill, On Liberty (Everyman ed, 1972).
9 See A. Meiklejohn, ‘The First Amendment is an Absolute’ (1961) Sup Ct Rev 245.
10 See Castells vSpain A 236 paras 42, 46 (1992); Goodwin vUK 22 EHRR 123 (1996).
11 See T. Scanlon, ‘A Theory of Freedom of Expression’ (1972) 1 Phil and Public Affairs 204; H.
Fenwick, Civil Liberties (London: Cavendish, 2nd ed, 1998) 137–138.
The Modern Law Review [Vol. 62
492 ßThe Modern Law Review Limited 1999

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