By Sebastian Topan, Second Year, Law
You would be forgiven for thinking that it is within your human rights, and therefore morally justified, to exercise your right to freedom of expression through public protest.
This was seen in Bristol's city centre on Saturday 14 November, in order to defend another human right, that of liberty, during a national lockdown. You would be forgiven, but you would be wrong.
It must be established that this is not a question on your right to liberty, and nor is it a question on freedom of expression either. This is a question on freedom of assembly: I am not writing about why the public protest took place, I am writing about why the physicality of the public protest should not have taken place during lockdown.
Around 200 protestors are now marching through Bristol city centre.
— Avon and Somerset Police (@ASPolice) November 14, 2020
This gathering is unlawful and is putting others at risk.
Arrests have been made as people have failed to comply with the directions of officers.
One arrest has also been made after an officer was assaulted.
The right to freedom of assembly is interconnected with the right to freedom of expression. By facilitating effective forms of public protest, the former right provides a practical means by which the latter right can be exercised. However, civil liberties do not come without their constraints and these two freedoms are no exceptions.
The law has a difficult balancing act of, on one hand, upholding people’s civil liberties whilst, on the other hand, preserving social order and, in turn, the safety and health of the general public.
This balancing act is seen in the ‘European Convention on Human Rights’ (ECHR), which explains, in effect, why students should not be allowed to protest, in public, during a national lockdown.
Technology has made it easier than ever to communicate or promote a view
Article 10(2) of the ECHR sets out the rare situations in which the right to freedom of expression must be curtailed: ‘(freedom of expression) …may be subject to…restrictions…as are prescribed by law…in the interests of…public safety, for the prevention of disorder or crime, [or] for the protection of health’.
What this is saying is that anyone can express their view but only if they do so in a way which does not put the safety of the public at risk or involve committing a crime.
Neither of these criteria were met during the public protest on the 14th. It occurred during a national lockdown, and therefore broke the law, in addition to endangering lives in the community, putting lives at risk.
This means that students, and anyone else, can be allowed to protest during a national lockdown but not in a way which infringes on the lockdown restrictions, so not in public.
People should not have been permitted to participate in the public protest
Technology has made it easier than ever to communicate or promote a view, with a plethora of social media. This enables like-minded individuals to organise and coordinate their efforts so as to maximise the impact of their message, whatever that might be. This form of protest is preferable given the current circumstances.
Article 11(2) of the ECHR stipulates the constraints on the right to freedom of assembly:
‘No restrictions shall be in place…other than…[those] prescribed by law in the interests of public safety, for the prevention of disorder or crime, [or] for the protection of health…’
This means even peaceful assemblies will be unprotected by the ECHR to the extent that it is ‘necessary in a democratic society’ to restrict such assemblies for any purpose set out in Art 11(2). Therefore, freedom of assembly must be permitted except, and only to the extent, that its restriction is necessary.
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In the case of the public protest on Saturday 14th, which was an assembly during lockdown, restrictions to this human right were indeed necessary.
The right to protest is then a qualified right, meaning that it must yield in the face of more compelling legitimate interests. Adhering to the national lockdown, in order to prevent people becoming infected, is certainly a compelling legitimate interest.
Therefore, people should not have been permitted to participate in the public protest, or any public protest, during a national lockdown. It is against their human rights to do so.
Featured Image: Epigram / Georgiana Scott
Do you think people should protest during a lockdown?
