Oxbridge divest at the boat race: Human rights implications
Updated: Aug 14, 2020
Credit: Joe Cook
Source: Varsity News
By Jing Min Tan
As your standard Cambridge student (and, admittedly, a member of my College’s boat club), the annual Oxford v Cambridge Boat Race captivates my attention in a way that lectures normally don’t. This year, however, there was another reason to take heed of the momentous event.
Over 40 members of the Oxford Climate Justice Campaign and Cambridge Zero Carbon Society and Oxford Climate Justice planned to drop a 20m-long banner over Hammersmith Bridge, with the words “Oxbridge Come Clean”, as the men’s boats passed underneath the bridge. This was a repeat of similar action that had been staged at last year’s Boat Race, in which students dropped a smaller banner reading “Oxbridge Divest”. According to a statementreleased by Cambridge Zero Carbon Society, the intention was not to disrupt the races or cause damage to the bridge, but “purely intended to use a public platform to scrutinise the destructive actions of these institutions”.
Several students were stopped and searched by police under Section 1 of the Police and Criminal Evidence Act, for suspicion of causing criminal damage.One justification provided were the zip ties being carried by some of the activists (to secure the banner to the Bridge).Before they could drop the banner, officers of the Metropolitan Police Service (MPS) surrounded students on Hammersmith Bridge and confiscated their banner (though the MPS has been accused of lying that “no items were seized by police”).
This post will briefly discuss the Articles 10 (freedom of expression) and 11 (freedom of assembly) issues under the European Convention of Human Rights (ECHR) that this incident has raised.
The legal background – Strasbourg jurisprudence
Article 10 ECHR protects freedom of expression. Article 11 ECHR contains the right to peacefully assemble, and to freely associate with others. The right to protest, while not explicitly protected in the ECHR, is covered by Arts 10 and 11 ECHR. It is a core form of political expression essential in a democratic society. Both these rights are qualified rights under the Convention; that is, they are subject to restrictionsas prescribed by law, in pursuit of a legitimate aim and necessary in a democratic society. What this means is that there must be a domestic legal basis for the interference with the Convention right, there must be a recognised “legitimate aim” as specified in Arts 10(2) and 11(2),and the interference must be deemed proportionate in balancing the rights of the individual and wider societal interests.
The Human Rights Act (HRA) 1998 incorporates ECHR rights into UK domestic law, and mandates all public authorities – including the police – to act in a way that is compatible with Convention rights (s.6 HRA 1998).
Article 10 protects a wide range of forms of expression, including physical and visual. In Faber v Hungary (2008), the display of a flag associated with a political movement was recognized to fall within the ambit of expression under Art 10. Art 10 protects speech that could be regarded as offensive, shocking or disturbing to the State—such are the demands of pluralism in a democratic society (Handyside v UK). When applying the proportionality exercise to decide if the interference with the Convention right is necessary in a democratic society, political expression is typically given robust protection, with the ECtHR subjecting the restriction to an intense review with almost no margin of appreciation.
Article 11 protects peacefulassemblies only (CS v Germany). This can include processions, sit-ins and occupations. The state is both under a negative obligation to refrain from interfering with individuals’ Art 11 rights, and a limited positive obligation to facilitate the right to assemble—this includes a duty to facilitate a protest taking place and ensuring that third parties do not deprive protestors of their rights. Saska v Hungary held that the right to assemble peacefully includes the right to choose the time, place and modalities of the assembly, insofar as it is possible within the constraints of Art 11(2). This means that allowing an assembly to take place in a location that is not within sight and sound of its target audience and where its impact will be muted is incompatible with the requirements of Art 11 (Lashmankin v Russia). This is pertinent to the events at the Boat Racebecause MPS officers in video footage of their interaction with student activists said that they might have allowed the students to unfurl their banner somewhere else, but not on the Hammersmith Bridge itself.
Article 10 and 11 in conjunction
It is noted that the European Court of Human Rights (ECtHR) often discusses Arts 10 and 11 in conjunction with one another. For example, in Ezelin v France(1991), the ECtHR stated:
Notwithstanding its autonomous role and particular sphere of application, Article 11 must also be considered in the light of Article 10. The protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association as enshrined in Article 11.
In Kakabadze v Georgia, the Court further clarified that Art 11 is to be regarded as lex specialisand Art 10 principles can be taken into consideration when applying Art 11. David Mead suggests that there is no substantive difference in the analyses used under Art 10 and 11. It is usually sufficient to submit an Art 11 claim for traditional protests by groups, but Art 10 may be called upon for more obstructive and disruptive direct action.
The Public Order Act 1986 does not provide for prohibiting assemblies. Section 14A, inserted by the Criminal Justice and Public Order Act 1994, provides only for prohibition of trespassory assemblies – that is, assemblies of 20 or more persons on land in the open air to which the public has no or only a limited right of access held without the permission of the occupier.
DPP v Jones (1986), a decision in the House of Lords taken before the HRA 1998 was passed, concerned a peaceful, non-obstructive demonstration of 21 people on part of the highway near the Stonehenge. The House of Lords held that any reasonable activity which did not involve a public or private nuisance and did not obstruct the highway should not be regarded as trespass. A right of peaceful assembly on the public highway could therefore exist subject to those restrictions.
Under s.11 of the Public Order Act, a senior police officerwho reasonably believes thata public assembly may result in serious public disorder, serious damage to property, or serious disruption to the life of the communitymay impose conditions as to the place at which the assembly may be held. This Act was not invoked by the MPS in preventing the banner-drop, but it is a plausible legal basis that the authorities may have sought to rely upon had the activists invoked their Article 11 rights.
The manner in which the Oxbridge student activists were dispersed and prevented from dropping their banner was indeed unsatisfactory and raises serious questions of respect for Convention rights. The legal basis for the MPS’ preventive measures against a peaceful assembly “meticulously planned so as not to disturb the boat race itself”is uncertain at best. It also underscores the ongoing pertinence of Human Rights Law analysis in understanding citizens’ rights vis a vis the State. Controversy aside, it emphasises the importance of legal reasoning in giving force to our identification of what is wrong in our day to day encounters with public authorities.
I am grateful to Alice Gilderdale for her comments.
“Boat Race: Police accused of ‘aggression and intimidation’,” Oxford Mail,
“Police prevent climate activist banner-drop at Boat Race,” Varsity,https://www.varsity.co.uk/news/17385?fbclid=IwAR3MIXKnXwlpJIypSCdUK4vk3q8WbefIuHvouqmxlOOnbMLeJ2vX9jlfVJw
Namely: national security or public safety, the prevention of disorder or crime, the protection of health or morals or the protection of the rights and freedoms of others.
The Margin of Appreciation doctrine in Strasbourg jurisprudence affords deference to States parties to the ECHR to decide the precise content of a right, based on the socio-political realities of the country.
“Inside Zero Carbon,” https://www.facebook.com/varsityuk/videos/vl.1632601757047097/273825976840142/?type=1
Press release from Cambridge Zero Carbon Society and Oxford Climate Justice Campaign