Plair revision checklist

Article 11 ECHR restrictions

No restrictions shall be placed on the exercise of these rights other than such are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or the protection of the rights and freedoms of others.

Article 11 obligations

• NEGATIVE obligations

  • States must abstain from interfering with an individual’s Article 11 rights without good reason.

• POSITIVE obligations

  • The state has a positive obligation to provide assistance to those wishing to protest / to protect those wishing to exercise their rights to join associations.

Rights under Article 11 when expecting violence

• The participants must be able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents. ‘[T]he possibility of violent counter demonstrations, or the possibility of extremists with violent intentions, (…) joining the demonstration cannot as such take away that right.’ (Plattform Ärzte für das Leben" v. Austria)

• ‘Even if there is a real risk of a public procession resulting in disorder by developments outside the control of those organising it, such a procession does not for this reason alone fall outside the scope of Article 11(1).’ (Christians Against Racism and Fascism v United Kingdom)

• Freedom of assembly does not cover ‘a demonstration where the organisers and participants have violent intentions which result in public disorder’. (G v Federal Republic of Germany)

Scotland procession statutes

• Before the procession takes place: Civic Government (Scotland) Act 1982

• When the procession is about to commence or underway: Part 2 Public Order Act 1986

Civic Government Scotland Act 1982 organiser requirements

• Written notice to local authority and chief constable

• Delivered by post or in person no later than 28 days before the procession.

• Notice must include: 

  • Date and time of the procession

  • The route

  • Number of people likely to take part

  • Arrangements for controlling the procession proposed by the organiser

  • Name and address of the organiser.

• S62(5): If there is a  good reason for this, an authority can accept an application  that was submitted less than 28 days before the procession.

Requirement for authorisation before demonstration

A requirement for authorisation before a demonstration is not generally considered a violation of Article 11 ECHR.

Power given to senior police officers under the Public Order Act 1986

• Under s12, a senior police officer can

  • Give directions

  • Impose conditions

  • Prohibit the Demonstration from entering a specific place

• When can the senior official do this?

  • When the procession may result in serious public disorder, serious damage to property or serious disruption to the life of the community

  • When the purpose of the persons organising the procession is the intimidation of others with a view to compelling them to act in a different way than they intended.

Trespassory assemblies

under s14A POA 1986

• If the chief officer of police reasonably believes that an assembly is to be held on land to which the public has no, or limited, right of access to 

• Such an assembly must be either (i) likely to be held without the permission of the land owner; or (ii) be conducted in such a way as to exceed the permission that has been granted ; 

• The assembly may result in either (i) serious disruption to the life of the community; or (ii) where the land, building or monument is of historical, architectural, archaeological or scientific importance, significant damage may be caused to the land, building or monument.

DPP v Jones significance to peaceful assembly on the highway

Peacefully protesting on public highways was permissible, [1999] 1 AC 240, 257D (Lord Irvine LC)

Facts in R (on the application of Laporte) v Chief Constable, Gloucestershire. what did the HoL find?

• Police ordered a bus of protesters headed to an RAF base to protest the UK’s involvement in the Iraq war to return to London, after stopping and searching the bus. HoL found this action of the police to be unlawful

• Where no breach of the peace has yet occurred, a reasonable apprehension of an imminent breach was required before any form of preventative action was permissible. To be imminent the officer concerned must “think that [the breach] is likely to happen”

• As the chief constable did not consider a breach of the peace imminent when the coaches were stopped, his actions in ordering the coaches back to London was unlawful.

• In any event, four of the five law lords held that the police action was premature, indiscriminate and therefore represented a disproportionate restriction to Ms Laporte’s Article 11 right. 

• In this case, Lord Bingham made reference to ECHR case-law to stress that: “An individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration, if the individual in question remains peaceful in his or her own intentions or behaviour” at [37]

What did the House of Lords decide in Austin and another v Commissioner of Police of the Metropolis [2009]?

The House of Lords confirmed that police containment ("kettling") intended to prevent imminent violence does not amount to a deprivation of liberty under Article 5, provided it is carried out in good faith, is pro- portionate, and lasts no longer than reasonably necessary. The decision clarifies the boundary between law- ful crowd-control tactics and unlawful detention, affording policing authorities a workable framework with- out creating new exceptions under Article 5.

How did the Court of Session apply the ‘three-part test’ in the ‘Indy Camp’ case?

• Was the restriction prescribed by law? Yes

• Did it serve a legitimate aim? Rights of others

• Was it necessary in a democratic society? Continuous nature of the camp was not essential for the protest being made. Article 10 and 11 did not extend to a right to protest in any manner or place of the petitioners’ choosing. The right to protest remained. The only restriction imposed was on the manner the protest was executed. 

How is Article 10 ECHR related to Freedom of Information?

“… This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authorities and regardless of frontiers.”

Freedom of Information Act 2000

• Individual entitlements: FOIA 2000, s1(1)

  • default position that those who request information are entitled to it

  • 20 working day time limit (but can be expanded with reason in (2))

  • Information Commissioner Detailed Specialist Guide

    • ‘Valid request – name and address for correspondence’

• Duty on public authorities: FOIA 2000, s16(1)

  • public authorities must provide advice and assistance to applicants where reasonable to do so

• Definition of ‘information’: FOIA 2000, s84

  • “information recorded in any form”

• A ‘request for information’: FOIA 2000, s8

  • 8(1) Reference to a request for information is in writing, states name of applicant and address, and describes info requested

‘Publication Scheme’

Proactive publication: FOIA 2000, s19: Public Authorities must proactively publish certain information (‘publication schemes’)

Which types of information are exempt under the 2000 Act in relation to the BBC?

• Absolute vs qualified exemptions

• Class-based vs prejudice-based exemptions

Significance of Sugar v British Broadcasting Corporation (No2) [2012]

information held by the BBC for journalistic purposes falls wholly outside FOIA, subject only to minimal rationality review, in order to protect editorial independence under Article 10 ECHR.

Three possibilities the Supreme Court considered in relation to disclosures that are partly for news purposes and partly for other purposes in Sugar v BBC? Which one did the majority eventually adopt?

• Dominant-purpose test – FOIA applies only if the main purpose is non-journalistic.

• Severability / dual-use approach – disclose to the extent the information is held for non-journalistic purposes.

• Any journalistic purpose rule – if the information is held even partly for journalism, it is wholly excluded from FOIA. Majority view adopted

Absolute and qualified exemptions?

ABSOLUTE EXEMPTIONS: no duty to consider whether disclosure in public interest

QUALIFIED EXEMPTIONS: Does public interest in disclosure outweigh public interest in secrecy?

Class-based and prejudice-based exemptions (with examples?)

CLASS- BASED EXEMPTIONS: Particular category or class of information

PREJUDICE- BASED EXEMPTIONS: Public authority must determine whether disclosure will cause certain type of harm

Public interest test

Public authority can only withhold information if public interest in maintaining a qualified exemption outweighs public interest in disclosure.

Security bodies (MI5, MI6, GCHQ) and information relating to them are absolutely exempt from requests under the FOIA 2000

Role / powers of the Information Commissioner?

can issue decision notices and enforcement notices, which may be appealed to the First-tier Tribunal. FOI(S)A 2002, s42

Role / powers of the Information Tribunal?

FOIA 2000, s58: On an appeal under s 57, the Tribunal must allow the appeal or substitute a new notice if the Commissioner’s notice was unlawful or involved a misuse of discretion. Otherwise, the appeal is dismissed. The Tribunal may also re-examine the facts underlying the notice.

Process when a public authority refuses a FOI request

• The authority must issue a refusal notice under s17, stating why and citing relevant exemptions

• Internal review by the public authority is a recommended step before escalating to the Information Commissioner.

• The Information Commissioner can issue decision notices and enforcement notices, which may be appealed to the First-tier Tribunal

‘Ministerial override’

FOIA 2000, s53(2): A decision notice or enforcement notice to which this section applies shall cease to have effect if, not later than the twentieth working day following the effective date, the accountable person in relation to that authority gives the Commissioner a certificate signed by him stating that he has on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure falling within subsection (1)(b).

• Statement of Justice Secretary Jack Straw MP to House of Commons, 24 February 2009

  • Response: Information Commissioner, ‘Report to Parliament on the Ministerial veto on disclosure of Cabinet minutes concerning military action against Iraq’ (HC 2008-09 622)

• R (Evans) v Attorney General [2015] UKSC 21

  • per Lord Mance at para 130

  • per Lord Neuberger at paras 88-89 – note the distinction between the approach of Lords Neuberger, Kerr and Reed and that of Lord Mance and Lady Hale

per Lord Hughes (dissenting) at para 154

Facts in R (Evans) v Attorney General? The UKSC in Evans, quashed the specific veto issued in relation to Prince Charles's correspondence with government departments. What was the basis of this per Lord Neuberger? Which authorities does the Freedom of Information (Scotland) Act 2002 apply to?

• The Attorney General’s certificate was unlawful because it merely disagreed with the Upper Tribunal’s decision on the same material. This breached:

  1. The rule of law, and

  2. The separation of powers (executive overriding a judicial decision without new grounds).

• Which authorities FOISA 2002 applies to:
  FOISA applies to Scottish public authorities

How is the ministerial veto exercised in Scotland?

Can be used where a Scottish Secretary has “reasonable grounds to believe” that a Holyrood bill:

• would be incompatible with the UK’s international obligations or not in the interests of national defence

or

• would modify the law on reserved matters in such a way as to have an “adverse effect” on the operation of the law as it applies to reserved matters.