Freedom of Association and Assembly / Protests
Vajnai v. Hungary
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A U.K. Court of Appeal upheld a lower court ruling that the imposition of a safety zone around a reproductive healthcare clinic was compatible with articles 8 (Right to respect for private and family life), 9 (Freedom of thought, conscience and religion), 10 (Freedom of expression) and 11 (Freedom of assembly and association) of the European Convention of Human Rights. The Good Counsel Network, a Christian anti-abortion organization, brought the challenge against the London Borough of Ealing in relation to a Public Spaces Protection Order which prohibited pro-life protesters from engaging in their activities within the immediate vicinity of the clinic. The Court recognized that women’s reproductive choices are an intensely personal and sensitive matter, and that Article 8 protected the right to access advice on and medical procedures for abortion available under the laws of the U.K. The Court found that there was sufficient evidence that the activities of the pro-life group had a detrimental impact on those in the community and that their tactics caused lasting psychological and emotional harm to the service users. Therefore, after carefully balancing the fundamental rights, the Court concluded that the restriction of the protesters’ freedom of expression, assembly and conscience was justified and proportionate.
The appellants are associated with a Christian group called the Good Counsel Network (GCN). Before the Public Spaces Protection Order (PSPO) came into force, the members of GCN, and other pro-life campaigners congregated on a daily or weekly basis outside the Marie Stopes UK West London Centre (Centre), which provides family planning services, including abortion services. There, they attempted to dissuade the users of the Centre from having abortions by displaying life-like foetus dolls, threatening that users of the Centre would go to Hell, referring to the users of the Centre as “Mum”, pursuing users of the Centre with leaflets, not leaving users with enough room to pass into the Centre, taking photos of the persons using clinic, etc. In 2015, pro-choice activists began protesting against the aims and methods of the anti-abortion protesters outside the Centre. This generated an atmosphere of tension. The London Borough of Ealing (Ealing) attempted a compromise between the opposing groups, however, the attempt failed.
It was then that the Borough of Ealing prepared a draft PSPO and engaged in a statutory consultation. The consultation included the production of a report based on surveys of and submissions by citizens of the community. According to the report, there was evidence of a detrimental impact on the quality of life of people in the community and 83.2% of respondents to the consultation agreed overall with the scope of a proposed Safe Zone outside the Centre. Therefore it was recommended that a PSPO be made.
Ealing had the power to make such orders under the Anti-Social Behaviour, Crime and Policing Act 2014, if it was satisfied that the following two conditions were met: (1) activities carried out in a public place within the authority’s area have had, or were likely to have, detrimental effects on the quality of life of those in the locality, and (2) the effect, or the likely effect, of the activities was of a continuing nature, which would make the activities unreasonable and justify the restrictions imposed by the notice [Section 59]. Therefore, the PSPO prohibited anti-abortion protests in the immediate vicinity of the Centre (Safe Zone).
The appellants, GCN, proceeded before the Queen’s Bench Division of the High Court in an effort to quash the PSPO on the following grounds: (1) insufficient evidence was presented for them to be satisfied that the activities of the pro-life group had a detrimental impact on those in the locality; (2) the prohibition by the PSPO were more extensive than was reasonable to prevent the detriment alleged; and, (3) the prohibition in the PSPO violated Articles 9 (freedom of thought and religion), 10 (freedom of expression), 11 (freedom of assembly) and 14 (prohibition of discrimination) of the ECHR.
The Judge rejected the argument that the meaning of “those in the locality” was limited to those who reside or work in or regularly visit the locality, and could therefore not include occasional visitors to the Centre, as it would deprive the Borough of the power to PSPOs in relation to detriments suffered by a mainly transient population. Thereafter, the Judge reviewed the evidence on the detrimental impact on those in the locality and concluded that the Borough had justifiable grounds to issue the order. The Judge observed that the second and the third grounds were interconnected. He further referred to Article 8 of the ECHR, which provides for the right to respect for private and family life and held that the activities of the pro-life activists invaded the right to privacy under Article 8. The Judge observed that the restrictions on the protesters’ rights under Articles 9, 10, 11 and 14 were prescribed in Section 59 of the Anti-Social Behaviour, Crime and Policing Act 2014. Further, he held that the protection of the users’ privacy was a legitimate aim with which PSPO has a rational connection.
GCN appealed the order of the Judge on the following grounds:
Sir Terence Etherton MR, Lady Justice King and Lady Justice Nicola Davies gave judgement for the Court of Appeal.
Two issues lay at the heart of the appeal:
Interpretation of “those in the locality”
GCN argued that visitors do not fall within the purview of “those in the locality”. They argued that the words only extend to members of the local community and not occasional visitors. GCN referred to the White Paper “Putting Victims First – More Effective Responses to Anti-Social Behaviour” published in 2012 prior to the Act, to support the argument. It was also argued that one of the conditions required the effective activity to be of a continuing or persistent nature. Accordingly, the condition would not practically apply to occasional visitors. They also argued for a narrow interpretation of the words based on the criminal nature of the consequence, in case a PSPO is breached. The appellants also relied on the view of May J in Summers v London Borough of Richmond Upon Thames  1 WLR 4729, that the expression “those in the locality” in Section 59 “must be read to include those who regularly visit or work in the locality, in addition to residents”.
The Court, however, rejected the argument. Regarding the White Paper, the Court observed that it is nothing more than a statement of future intent and that it is not meant to be a comprehensive description of the Act. Regarding the Summers case, the Court agreed with the view of May J. However, it added, “in addition to residents, it will depend on the precise local circumstances whether or not it extends to others”. The Court also found that the effect of the activity is of continuing or persistent nature because evidence suggested that those who have visited the Centre have been left with significant emotional and psychological damage lasting substantial periods of time by the conduct of the protesters. Further, the Court did not find any scope for narrowing the proper interpretation of the expression on the ground that it is a criminal offence to breach a PSPO.
Engagement of Article 8
GCN argued that the Judge was wrong in holding that Article 8 rights of the visitors were engaged. Ealing’s argument was broadly based on the fact that the activities, which are subject of the PSPO, were in a public place and that there was no record or publication of what service users were doing. Ealing presented various situations to illustrate that patients were receiving services at the Centre of a highly personal and intimate nature. In such situations, the patients would wish to cross the public space as inconspicuously as possible. Ealing further presented protesters’ activities which intruded on patients visiting the Centre.
On the basis of various cases, the Court firstly observed that whether or not to have an abortion is an intensely personal and sensitive matter [A v Ireland  (2011) 53 EHRR 13; Re Northern Ireland’s Human Rights Commission’s application for judicial review  UKSC 27]. Thereafter considering the situations presented by Ealing, the Court approved the Judge’s conclusion that Article 8 rights of the visitors were engaged. Further, Article 8 protected the right to access advice on abortion and medical procedures for abortion available under the laws of the U.K. [para. 57]
Failure to carry out a “merit-based” approach
Upon establishing that Article 8 rights of the visitors were engaged, the Judge was required to balance those rights with the rights of the protesters under Articles 9, 10, 11 and 14. GCN contended that the Judge failed to form an independent opinion on whether the PSPO was a justified restriction, and based its decision on the Borough’s own assessment of the issue. The Court rejected this contention by looking at the judgement as a whole, rather than relying on the specific paragraph presented by GCN. Accordingly, the Court ruled that the Judge correctly followed a structured proportionality test to justify his conclusions in the judgement.
The appellants’ article 9 rights
The Court rejected the GCN’s argument that the lower court had not properly weighed the article 9 rights of the protesters “to manifest their religion and religious beliefs by seeking to persuade women visiting the Centre not to have an abortion.” [para. 75] The Court noted that the lower court judge recognized that the protesters’ article 9 rights were engaged and restricted. However, all of the fundamental rights invoked are “of equal importance in the sense that none has precedence over the other” and therefore the article 9 rights could not have superseded the article 10 and 11 rights or tipped the scales, if the restriction by Ealing was justified and proportionate.
Relative importance of the protesters’ right under Articles 10 and 11
The Court observed the tension between the rights of the service users under Article 8 and the rights of the protesters, namely under Articles 10 and 11. It affirmed that a fair balance must be struck between the competing rights and interests [Bank Mellat v HM Treasury (No. 2)  UKSC 39].
GCN argued that rights under Articles 10 and 11 render the activities of the pro-life protesters unintrusive and that the PSPO was a disproportionate interference with articles 10 and 11. They further submitted that the activities merely comprised of offering leaflets, offering to engage in conversations, and holding placards.
The Court rejected the argument stating that the protests did not merely cause irritation and annoyance, which fall within the protection of Articles 10 and 11, but extended to having a detrimental effect on the quality of life of those visiting the Centre. The Court found the tactics employed by the protestors caused lasting psychological and emotional harm to the service users. Hence, “a PSPO was necessary to strike a fair balance between, on the one hand, protecting those important interests of the service users and, on the other hand, the rights of the protesters.” Accordingly, the Court held that the PSPO did not have disproportionate interference with the protesters’ rights. Further, the Court rejected the claim for a PSPO with less restrictive terms.
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The Court observed that the balancing exercise required in the present case took a “particularly acute form” as it involved a conflict between fundamental rights under the ECHR. Considering the facts of the case, the Court determined that it was necessary to restrict the freedom of expression (article 10) and assembly (article 11) rights of the protestors, in order to protect the privacy rights (article 8) of the patients and service users of the healthcare clinic. The Court found that to be a proportionate balancing of the interests claimed by the parties to the conflict.
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