Freedom of expression and assembly

Freedom of expression and assembly occupies a central position in The Individual and the State because it brings together almost every theme already covered in Durham’s first-year public law sequence: sources of constitutional authority, parliamentary sovereignty, constitutional statutes, the rule of law, separation of powers, prerogative limits, conventions, common law rights, and the Human Rights Act 1998. The topic is not merely about civil liberties in the abstract. It asks how the constitution permits the citizen to criticise, organise, disrupt, offend, persuade, and resist, and how far the executive may restrain those activities in the name of order, security, reputation, privacy, or the rights of others.

The doctrinal starting point is deceptively simple. English law contains no general written constitutional guarantee equivalent to the First Amendment. The citizen’s liberty traditionally operated residually: one may do what the law does not prohibit. That negative conception remains important, especially in relation to public order offences and police powers. But it is no longer sufficient. Since the Human Rights Act 1998, courts must take account of the Convention rights to freedom of expression and peaceful assembly under Articles 10 and 11 ECHR, and public authorities must act compatibly with them unless primary legislation prevents compliance. Alongside this statutory rights framework, the common law recognises freedom of expression and assembly as constitutional rights, protected by legality, anxious scrutiny, and sometimes a demanding approach to statutory interpretation.

For exam purposes, the first discipline is to keep expression and assembly analytically distinct but practically connected. Article 10 protects speech, publication, symbolism, information and opinion. Article 11 protects peaceful collective presence and association, including protest. Many protest cases engage both. A road-blocking climate protest, a vigil, a picket outside a clinic, and a demonstration outside Parliament may all involve expression through assembly. The legal consequence is not that protesters automatically win. Rather, any restriction must satisfy a structured test: legal basis, legitimate aim, necessity, and proportionality. The court must ask whether the interference responds to a pressing social need and whether the balance struck is within the permissible constitutional range.

The second discipline is institutional. Parliament may legislate to restrict protest, subject to political accountability and, under the HRA, declarations of incompatibility if necessary. The executive, including police forces and ministers, must identify lawful authority for any restriction. Courts review legality and proportionality, but do not simply substitute a political preference for the operational assessment of police commanders. The hard questions arise at the boundary: how much deference is due to police predictions of disorder; whether disruption is part of the protected value of protest; and whether recent legislation has converted inconvenience into an excessive trigger for coercive state power.

In Durham tutorials, this topic is likely to be examined through problem questions involving police conditions, arrests, injunctions, surveillance, exclusion zones, or public order offences. Strong answers do not recite Articles 10 and 11 in isolation. They identify the public authority, the legal power relied on, the right engaged, the interference, the legitimate aim, and the proportionality factors. Strong essays place the modern cases in constitutional context: the movement from residual liberty, through common law constitutional rights, to HRA proportionality, and then to the contemporary statutory expansion of protest control.

The historical position of freedom of expression and assembly in the United Kingdom is marked by ambivalence. The constitution has long valued political argument and public meeting, yet it has often protected them through ordinary law rather than entrenched constitutional text. The classical liberal account treats liberty as the absence of legal prohibition. This was Diceyan in method: rights were protected by the ordinary courts and ordinary remedies, not by a supreme constitutional instrument. A person could speak, publish or assemble unless some rule of law authorised restraint. That tradition explains both the strength and fragility of English civil liberties. It subjects the executive to legality, but it leaves Parliament able to regulate extensively.

The law of public meeting developed against a history of fear about disorder, sedition and collective pressure. Nineteenth-century protest movements, including Chartism and labour agitation, demonstrated that assembly could be treated either as democratic participation or as a threat to public order. The common law never adopted a general right to use the highway for political assembly, but DPP v Jones later recognised that peaceful assembly on the highway may be lawful where it is reasonable and does not amount to a public or private nuisance. This represented a significant liberalisation of an older traffic-centred conception of highways.

Expression followed a parallel route. Prior restraint and licensing were gradually abandoned, but criminal and civil liabilities remained: sedition, blasphemy, obscenity, defamation, contempt, breach of confidence, public order offences and later terrorism-related restrictions. The common law developed techniques of protection, especially through the principle of legality. Ex parte Simms is the canonical modern example: clear words are required before Parliament is taken to have authorised interference with fundamental rights. The case did not entrench a right against Parliament. It did, however, change the interpretive culture. Courts would not lightly infer that a statutory power permitted suppression of political or journalistic communication.

The Human Rights Act 1998 altered the field without replacing parliamentary sovereignty. Articles 10 and 11 became directly justiciable against public authorities. Courts gained interpretive duties under section 3 and the capacity to issue declarations of incompatibility under section 4. Students should connect this to Week 8: the HRA does not invalidate Acts of Parliament, but it changes the reasons public bodies must give and the intensity with which courts examine interferences. The language of proportionality entered domestic public law in a more systematic way.

The post-HRA story is not one of simple liberal progress. The policing of protest has become more legally elaborate and politically contested. The Public Order Act 1986 allowed conditions on assemblies and processions. Later counter-terrorism legislation, anti-social behaviour powers, injunctions, dispersal powers, and stop-and-search regimes expanded executive capacity. The Police, Crime, Sentencing and Courts Act 2022 and Public Order Act 2023 further widened public order controls, particularly by reference to serious disruption and protest tactics such as locking on. The result is a constitutional tension characteristic of the modern administrative state: Parliament legislates in broad terms; police exercise predictive discretion; courts supervise through legality and proportionality; citizens claim that disruption is not an accidental by-product of protest but part of its communicative force.

This history matters because it prevents a false binary. The United Kingdom is neither a system with no constitutional protection for protest nor a system in which courts apply an absolute free speech clause. It is a mixed constitution. Protection arises from common law, statute, Convention rights, interpretive presumptions, and political norms. Restriction arises from ordinary legislation, criminal law, police powers and judicial balancing. The best Durham answers show how that mixture works, and where it strains.

There are seven principles around which the topic should be organised.

First, freedom of expression protects more than agreeable speech. Article 10 covers information, ideas, opinions, artistic material, political criticism, journalism, symbolic acts and offensive expression. Its constitutional importance is at its highest in relation to political speech, public-interest journalism, criticism of government, and participation in democratic debate. The European Court of Human Rights has repeatedly treated political expression as central to democratic society. Domestic courts have adopted the same hierarchy of value: the more directly speech contributes to political or public debate, the stronger the justification required for restriction. Commercial expression, gratuitous abuse, threats, harassment and incitement may receive weaker protection.

Secondly, freedom of assembly protects peaceful collective action. Article 11 is not confined to static meetings in private premises. It extends to marches, demonstrations, vigils, pickets and forms of collective presence in public space. It does not protect violence. The adjective peaceful is therefore crucial. But the existence of disruption, annoyance or inconvenience does not by itself remove protection. Most effective protest causes some disruption. If the state could restrict assembly whenever it inconvenienced others, Article 11 would be reduced to a right to be ignored.

Thirdly, Articles 10 and 11 are qualified rights. Interference may be justified if it is prescribed by law, pursues a legitimate aim, and is necessary in a democratic society. This is the principal analytical structure. Prescribed by law requires both a legal basis and adequate accessibility and foreseeability. A power drafted so broadly that citizens cannot know the consequences, or administered with insufficient safeguards, may fail this stage. Legitimate aims include public safety, prevention of disorder or crime, national security, protection of health or morals, and the rights of others. Necessity imports proportionality. The measure must answer a sufficiently important objective, be rationally connected to it, impair the right no more than reasonably necessary, and strike a fair balance.

The landmark cases should be learned as a doctrinal sequence rather than as isolated authorities. Simms supplies the common law constitutional foundation. Prisoners wished to communicate with journalists to investigate possible miscarriages of justice. A blanket policy restricted oral interviews. The House of Lords held that general statutory words did not authorise such interference. The case is important for two reasons: it identifies freedom of expression as fundamental, and it shows how legality operates within parliamentary sovereignty. Parliament may override fundamental rights, but it must do so clearly.

DPP v Jones then gives assembly a common law foothold in public space. The defendants held a peaceful assembly on the verge of a highway near Stonehenge. The House of Lords rejected the view that highways are only for passing and repassing. Reasonable peaceful use may be lawful if it does not amount to nuisance or unreasonably obstruct others. The case does not constitutionalise a general right to occupy highways. It recognises a more generous baseline against which public order powers must be assessed.

ProLife Alliance illustrates the particular sensitivity of political expression. The refusal to broadcast an election communication containing graphic anti-abortion images raised questions about offensive material, broadcasting duties, and political debate. The House of Lords divided, demonstrating the difficulty of judicial evaluation where expression is politically significant but disturbing. The case is a useful corrective to simplistic claims that offence is never relevant or always decisive.

Laporte is the essential preventive policing case. Police stopped coaches carrying protesters travelling to an airbase and required them to return to London. The House of Lords held that the action was unlawful because no breach of the peace was sufficiently imminent. The significance lies in constitutional discipline: preventive power cannot be triggered by generalised suspicion or association with others who may act unlawfully.

Gillan and Quinton shows the Convention quality-of-law requirement in a protest-adjacent context. Stop-and-search powers used near an arms fair were found by Strasbourg to be insufficiently circumscribed. The case demonstrates that legality is not merely the existence of an Act of Parliament; it includes safeguards against arbitrary discretion.

Ziegler is now indispensable. Protesters obstructed access to an arms fair. The Supreme Court held that Articles 10 and 11 were engaged and that conviction required assessment of proportionality. The case does not abolish obstruction offences. It insists that criminal liability itself may be an interference requiring justification.

Miller v College of Policing concerns speech rather than assembly. Recording a non-crime hate incident in relation to tweets was held to have a chilling effect on expression. The case is valuable because it shows that modern interference may arise not only from prosecution but from recording, monitoring and administrative signalling by public bodies.

The Northern Ireland safe access zones reference demonstrates the other side of the balance. The Supreme Court upheld legislation creating buffer zones around abortion clinics. Protest expression was restricted, but the rights of clinic users justified the measure. The case is central for essays on conflict between protest rights and the rights of others.

See practice questions section below.

See further reading section below.