Should the right to protest be unfettered?

The right to protest is essential to our human rights, rooted in Article 10[1], freedom of expression, and Article 11[2], freedom of assembly and association.

Protests are essential in democratic societies; they serve as a barometer for public opinion, encouraging political participation and enabling oversight over government actions. Judiciaries acknowledge that "peaceful demonstrations are a means by which individuals and groups may express their needs, aspirations or complaints"[3].
However, this essay asserts that, the right to protest should be subject to limitations to maintain societal order and safeguard others' rights. There are three critical areas of concern:

1. Potential violations of human rights, such as privacy or non-discrimination.
2. Ensuring protests do not excessively disrupt societal benefits or essential services.
3. Maintaining public safety and order to prevent violence and property damage. 

Human rights are fundamental entitlements belonging to every individual to protect them from harm and maintain their welfare[4].

Unfettered protests, while exemplifying freedom of expression, can sometimes intrude on other individuals' rights. For example, residential picketing can disrupt the peace and privacy of residents, and aggressive protest tactics may lead to harassment or intimidation.

The Human Rights Act (HRA)[5] preserves the ECHR to guarantee freedom of expression and assembly. However, these rights are not absolute and can be restricted in the interest of public safety or for the rights and freedoms of others. Whilst the Public Order Act (POA)[6] addresses instances where balance must be struck between protest rights and the rights of others, giving law enforcement specific powers to manage protests.

Regulating protests to prevent the violation of human rights is justified to ensure public protection. However, there are criticisms that such regulations may overreact and suppress legitimate protest activities. The Law Society Gazette considers the intention to help the courts in “preventing them from committing further protest-related offences or carrying out activities related to a protest that result in, or are likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales”[7].

It would seem that while some may argue that the right to protest is foundational in a democratic society, it is not a sacred right clear of any limitations. Balancing the right to protest with protecting others' rights is crucial, and the legal framework should aim to navigate this fragile balance. However, The Good Law Project explores the courts failed attempt at balancing as they reveal “the right to peaceful protest has been suppressed recently” as the courts take an “extraordinary approach”[8].

Acknowledging these considerations, the right to protest should maintain its significance yet be subject to appropriate restrictions to safeguard the rights of others.

Protests have historically been motivations for change, precipitating progress in areas like women's rights. The Suffragette movement, through public demonstrations and civil disobedience, “determined to obtain the right to vote for women by any means and campaigned tirelessly and sometimes violently to achieve this aim”[9], crucially contributed to women's suffrage in the UK. Unfettered protests demonstrate the power of collective action in highlighting resentments and demanding governmental and societal acknowledgement. Demonstrated through the Miners’ Strikes of 1984 to 1985, “coal miners in Great Britain took industrial action against pit closures. Approximately 165,000 miners went on strike.”[10]

Unrestricted protests promote engagement by providing a platform for various voices, increasing awareness and pushing democratic participation[11]. They promote the immediacy of concerns to the broader public, as seen in the impactful anti-Iraq War marches in 2003[12].

Nevertheless, unfettered protests carry risks, such as the spread of misinformation or societal division. As was the case with the Brexit debate protests, which fragmented public opinion “when scores of pro-Brexit counter-protesters attempted to disrupt the rally and provoke the anti-Brexit demonstrators”[13].

Grounded in these realities, whether the right to protest should be unfettered is complex. While protests are indispensable for democracy, the potential for negative consequences suggests that some regulation, aligned with the HRA and POA, is necessary to balance collective expression with societal harmony.

Parliament’s primary responsibility is ensuring public safety and order. The regulation of protest rights substantively derives from the obligation to protect citizens from violence and uphold law and order. Whilst the right to protest holds glorification within the democratic layers of the UK under the HRA, unlimited protest rights can escalate into public commotion, evident in events like the 2011 England riots[14].

Such incidents of violence and looting emphasise the potential threats of unrestricted public protests. Implementing 'time, place, and manner' restrictions, without undermining the essence of the right to peaceful assembly, is a measure that aims to mitigate these risks and aligns with jurisprudential advice provided by judgments of the European Court of Human Rights, such as Handyside 1976[15].

Balancing the fundamental right to protest with societal safety calls for calibrated regulation. This strategy preserves the core of protest rights while managing reasonable concerns about public turmoil and safety, suggesting that the right to protest should not be unfettered but reasonably regulated.

The right to protest is a cornerstone for democracy, encouraging public participation and holding governments accountable. Proper balance is necessary to respect others human rights, minimise disruption to daily life, and uphold public safety. To reconcile these interests, I emphasise the necessity for clear guidelines that delineate the limits of protests. Such guidance would ensure the vital expression of collective opinion while protecting societal harmony and the rights of the wider community. Therefore, while we must preserve the right to protest, it is essential that it is exercised with consideration for the broader implications on society and the rights of others.