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Human Rights Act - Article 11 - Coggle Diagram
Human Rights Act - Article 11
The right to freedom of assembly and association.
Everyone has the right to freedom of peaceful assembly and association with others, including the right to form and join trade unions.
No restrictions on these rights apart from those prescribed by law and is necessary in a democratic society. The article shall not prevent the imposition of lawful restrictions on the excersize of these rights by members of the forces.
Necessary in a democratic society implies 2 conditions.
There has to be a pressing social need for the interference
The interference should be proportionate to legitimate aims pursued.
National authorities need to decide whether here is a pressing social need in a particular case.
The assessment of the national authorities is subject to supervision by the ECtHR.
Courts task is not to substitute its own view for that of a national authorities. Court must look at the interference complained of in the light of the case as a whole and then determine whether is was proportionate to the legitimate aims pursued and whether the interference was relevant and sufficient.
Freedom of peaceful assembly
Freedom of association with others
The right to form or join a trade union for the protection of his interests.
Static meetings, marches, public processions and demonstrations.
Exercised peacefully without violence or threat of violence and in accordance with the law.
Broadly interpreted to include the organisation and participation of legitimate protests.
Stated Limitations
Prescribed by law
Necessary in a democratic society
For a legitimate aim
In the interests of national security or public safety
For the prevention of disorder or crime
For the protection of health and morals
For the protection of the rights and freedoms of others
Issue of proportionality on the limitations
Effective
The interpretation broad enough
The right itself is not being contradicted
It takes into account balance
'Margin of appreciation varies case to case.
Turkey and Spain - law on citizen's security - heavy fines for organisers of spontaneous protests.
Amendment to law on public gatherings permits the detention of any person participating in an unauthorised public assembly.
Aim is to enable maximum citizen participation in 'right culture'
determining the level of legitimacy attached to 'state intervention' differs across nations and cultures.
Should not interfere with activities defined.
Marches
Processions
Static assemblies
Sit ins
Public and private events
Cisse v France
Intervention was carried out on the grounds of the health and safety of the protesters. - No breach of article 11.
Assemblies can be peaceful even though they may lead to counter demonstrations.
Demonstration may annoy or give offence to persons opposed to the ideas or claims that the demonstration is seeking to promote.
Plattform Arzte fur das leben v Austria 1988 - Held by ECTHR: the participants must be able to hold the demonstration without fear of physical violence by their opponents. Fear might deter associations or groups from openly expressing opinions on highly controversial issues affecting the community. - There is a right to counter demonstrate, sometimes the state must interfere to protect its citizens and maintain order.
Where an assembly is designed to cause disorder - not be within article 11.
Deliberately causing disorder cannot be justified as it violates the rights of other citizens, some actions that are deigned to disrupt but not impact negatively on the rights of other citizens it is not legitimate.
G v Republic of Germany 1989 - Demonstrators blocked the road for 12 minuets every hour, but the sit in still fell within the accepted definition of 'peaceful assembly' because it did not completely impact negatively on the rights of others.
DDP v Jones (Margret) 1999 - People were convicted when they were protesting at Stone henge and were determined to stay when they were told to move. On Appeal - Was not a trespassory assembly, because it did not interfere or obstruct the highway. The public right of way is entitled for the public to have the right of public assembly as long as. it does not unreasonably construct the highway.
Some tolerance of demonstrations that may shock, annoy or distress others in an integral part of ensuring that these right are properly protected.
Where an assembly takes place on private land, the owner of the land is able to prohibit the assembly providing this does not prevent lawful protest taking place in a suitable alternative place or method.
Appleby v UK 2003 - Article 11 does not grant freedom of expression or where an individual may exercise that right. No violation had occurred.
The authorities should make sure the restrictions are proportionate. No permission would ever be granted if any effect of the demonstration on others would always be enough to deny permission.
Freedom of association with others - the right concerns bing able to come together to form an association (trade union). This means that those who do not want to participate in a trade union must also have their rights observed.
Also negative right not to be compelled to join an association or union.
Young James and Webster v UK 1981
Young, James and Webster v UK 1981 The closed shop was incompatible with the convention, although it does not prevent fair share agreements or automative enrolment in union member ship with an opt - out.
Meaning of association is not just spending time in other peoples company.
McFeeley v UK 1981 - Prisoners were not permitted to associate with the rest of the prison community. On the basis of article 3, article 11 did not apply to association in this sense.
Association does not include professional regulatory bodies set up by the state to regular professions.
Redfearn v UK 2012 - Bus driver was dismissed because he represented the BNP, concerns about abuse towards passengers or Asian origin, even though there was no allegations.
To the ECtHR - he argued that for an employee to lose his job for exercising his right to freedom of association 'struck at the very substance of that right'. The gov had a positive obligation under article 11 to enact legislation even though he could not claim unfair dismissal.
Trade unions
The state can restrict the right if the restriction can be justified.
Article 11 is a Qualified Right
Clear, precise and predictable legal basis for the interference with article 11
Restrictions come from common law and statute.
Breach of the peace, trespass laws.
Stopping or preventing the breach of peace must ensure that there is no interference with respect for HR
Kettling tatics by the police: McClure and Moos v Commissioner of the Met 2012
Trespass to land Consists of unjustifiable intrusion by a person upon land in possession of another.
An action will not normally be brought for trespass without damage unless the claimant wishes to deter persistent trespassing or there are disputes over boundaries or rights of way.
Ellis v Loftus Iron co. 1874 - If the defendant places a part of his foot on the claimants land unlawfully, it is in law as much a trespass as if he had walked half a mile on it.
Principle was used for sit ins such as that at University of Essex v Djemal 1980. Identified within the amendments made to the public order act 1986 which incorporated this type of action within the bounds of trespassory assembly.
That an assembly will be held on land (land which public has no or limited right of way.
The assembly is likely to take place without the permission of the occupier.
That is may result in serious disruption to the life if the community or damage a site of historical archaeological or scientific importance.