Chapter 18 Guidance on answering the exam questions

1. The government is concerned that a radical religious organisation is planning to campaign in one of the major cities of the UK in order to control its local government and, thereby, seek to impose a strict religious discipline in some of the schools. The organisation is popular and may well win the election. The minister is pursuing various options. One possibility being considered is to propose legislation which would enable her to ban the organisation were it to win the local election.

As a government lawyer, advise the minister on whether such a step could be compatible with Article 11.

• This is a question which deals with the extent to which political organisations can be banned compatibly with Article11.
• Begin by a general discussion of Article 11. In particular, that it is a qualified right. The right to associate, which the organisation in the question will seek to claim, can be limited by the state.
• Therefore article 11 will be engaged unless, perhaps, the evidence is that, through its actions, the “radical religious organisation” is seeking to seriously undermine Convention values. In which case it may be that Article 17 can be used to prevent it arguing Convention rights. There is no evidence in the question that this is the case and, certainly, Article 11 can be engaged by radical political organisations (e.g. Communist Party of Turkey v Turkey) and by political organisations with a strong religious basis and an aim at promoting religious policies (Refah Partisi v Turkey).
• Therefore, you will need to advise the minister that the proposed legislation must be capable of only authorising actions which are compatible with Article 11. Note that, normally (but not always), the ECtHR will not decide a direct, abstract, challenge to legislation but is concerned with specific applications of the law. Likewise, under the HRA, a domestic court will seek to interpret legislation, so far as possible, so that it can only authorise Convention compliant actions. The alternative would be accepting the risk of a declaration of incompatibility. Normally governments change the law when this happens to prevent an adverse decision from the Strasbourg court.
• The legislation, therefore, must, firstly, meet the “prescribed by law” test – its terms must be sufficiently clear for those running the organisation to know whether they run the risk of being banned. It is possible that safeguards (e.g. the role of an independent reviewer to check any banning order either before or after the ban) will need to be in place in order to satisfy the “law” requirement. There is likely to be only a narrow margin of appreciation on this matter.
• Secondly, the legislation must ensure that any banning can only be for a purpose consistent with the purposes listed in Article 11(2). These include, for instance, upholding the rights of others. This could include the right of children to a plural education. In SAS this term included the right of social cooperation and solidarity which burqa wearing was considered to offend.
• Thirdly, whilst the legislation can allow the minister some discretion, it needs to be clear that any decision to ban must meet a proportionality test (i.e. that a ban is a means of meeting a pressing social need and that the individual impact of the ban can be weighed against this social need). So, for example, a proportionality standard might be expressly mentioned in the legislation as a control on the minister’s decision making under the legislation.
• Your conclusion might be that if these provisions are met, a ban could be possible. However, banning a political party is a major, draconian, step to take in a democracy. Article 11 is clearly one of the main ways in a which a plural democracy (the best system for upholding human rights) is upheld and so any ban is likely to successful only if a truly pressing need can be shown. An example of where this was done successfully (in the context of Turkish society) was Refah Partisi v Turkey. States are allowed to take severe measures in order to protect their plural and democratic institutions from a serious threat.

2. Do you agree with the proposition that Article 11 provides states with ample scope for a reasonable and effective law on public order which balances rights to demonstrate with the rights of others to live their own lives? Exemplify your answer from the law of the United Kingdom.

• This answer should disclose knowledge of Article 11 in the context of public order.
• Describe the main features of Article 11 in respect of public order: the right to freedom of peaceful assembly which is subject to restriction by the authorities on the grounds of article 11(2).
• Then note the application of Article 11 in the context of UK/English law: public order law includes statutes, such as the Public Order Act 1986 which must be interpreted if possible for compatibility (section 3 HRA) and that the police etc., are public authorities and so act unlawfully if they breach Convention rights.
• Then consider a range of issues. These could include the following.

1. That Article 11 only applies to “peaceful” assembly but that this is given a wide definition so that it can include (depending on context) actions which interfere with others’ freedoms such as use of the highway. Nevertheless, the Convention gives a high value to political demonstration.
2. That restrictions must be as prescribed by law. Law has an autonomous Convention meaning (see Chapter 6). Its application must be foreseeable, but in this context the Convention allows a wide margin of appreciation and domestic law considerable discretion to the authorities.
3. Restrictions must be for a legitimate purpose (to protect public order, for instance).
4. Interferences must be proportionate. In particular, they must relate to the given purpose.

• English law (POA 1986 section 11) requires, for instance, organisers to give notice of demonstrations. This is consistent with the Convention since it is necessary so that the police can give effect to the purposes that any necessary, legitimate, restriction may serve.
• Likewise, the law permits (under certain conditions) marches to be re-routed, re-timed etc. or even banned and meetings to be subject to limits and even, in some circumstances, banned (POA 1986 ss12-14A). Likewise, under the common law the police have the power to take reasonable steps to maintain the peace.
• The law also gives remedies to landowners whose land may be occupied by demonstrators and who are thereby prevented from undertaking lawful pursuits thereon. Judges may be called on to issue remedies (which are discretionary).
• The exercise of these powers must be subject to Article 11 analysis and, in particular, the proportionality of any action must be assessed. At the heart of proportionality is a careful and structured balancing of interests – of the need for restriction with the importance of the demonstration in terms, particularly, of the demonstrators’ rights to express themselves politically.
• Your conclusion may be that UK/English law can be applied consistently with Article 11 when approached through the prism of Article 11(2). A good example of the application of Article 11(2) analysis is Samede v City of London in which the courts had to decide whether it was appropriate to issue an injunction against “Occupiers” outside St Pauls.