Article 11(1): The Restrictions Under Article 11(2) (AQA A-Level Law): Revision Notes
Article 11(1): The Restrictions Under Article 11(2)
Introduction
Article 11(1) protects two fundamental freedoms: the right to peaceful assembly and the right to freedom of association with others. However, these rights are not absolute. Article 11(2) provides a legal framework that permits the state to place restrictions on these freedoms in specific circumstances.
This note examines the restrictions available under Article 11(2) and how they balance individual rights with wider societal interests.
The text of Article 11(2)
Article 11(2) of the European Convention on Human Rights states:
No restrictions shall be placed on the exercise of these rights other than such as 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 for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
This provision establishes both the grounds for restriction and the tests that must be satisfied before any restriction can be lawfully imposed on the freedoms protected by Article 11(1).
When restrictions can be imposed
For a restriction on freedom of assembly or association to be lawful under Article 11(2), it must satisfy two essential requirements:
- Prescribed by law – there must be a legal basis for the restriction in domestic law
- Necessary in a democratic society – the restriction must be proportionate and serve a legitimate aim
Both requirements must be satisfied. If either requirement fails, the restriction will be unlawful under Article 11(2), regardless of how important the state's objective may be.
If these requirements are met, restrictions may be imposed on one or more of the following grounds.
The four legitimate grounds for restriction
(a) National security or public safety
Restrictions can be imposed where they benefit national security or protect the public's safety. This allows the state to prevent assemblies or associations that might threaten the security of the nation or endanger public safety.
Worked Example: National Security Ground
A protest outside a military base during a national security crisis could be restricted if it genuinely poses a risk to national security. The state would need to show:
- The restriction is prescribed by law (e.g., under national security legislation)
- There is a pressing social need (genuine threat to national security)
- The restriction is proportionate (e.g., limiting the location rather than banning the protest entirely)
(b) Prevention of disorder or crime
The state may restrict freedom of assembly or association to prevent disorder or crime. This ground recognises that while peaceful protest is protected, the state has a duty to maintain public order and prevent criminal activity.
For instance, if intelligence suggests a planned assembly is likely to lead to violence or serious public disorder, authorities may impose restrictions such as conditions on the route or timing of the protest.
The state cannot simply assume disorder will occur. There must be credible evidence of a genuine risk of disorder or crime. Restrictions based on speculation or generalised fears are unlikely to satisfy the necessity test.
(c) Protection of health or morals
Restrictions may be justified to protect the health or morals of citizens. This is a broad ground that can encompass public health concerns or the protection of societal moral standards.
Worked Example: Public Health Ground
During a public health emergency (such as a pandemic), restrictions on large gatherings may be imposed to prevent the spread of disease. Courts would examine:
- Whether there is scientific evidence of health risks
- Whether the restrictions are proportionate to the threat
- Whether less restrictive alternatives were considered
(d) Protection of the rights and freedoms of others
The state can impose restrictions to protect the rights and freedoms of others. This recognises that one person's exercise of their rights must not unlawfully interfere with another person's rights.
For example, a protest that blocks access to a hospital, preventing patients from receiving urgent medical care, could be restricted to protect the rights of those patients.
This ground requires evidence of actual or likely interference with others' rights. The restriction must be the minimum necessary to protect those rights – a complete ban would rarely be justified where less restrictive measures (such as re-routing) could achieve the same objective.
Special restrictions on certain groups
Article 11(2) contains an important additional provision. It explicitly states that lawful restrictions can be placed on the exercise of these rights by:
- Members of the armed forces
- Members of the police
- Members of the administration of the state
This recognises that individuals in these roles may need to be subject to different rules regarding assembly and association due to their unique position in upholding law and order and maintaining state functions.
For example, police officers may be prohibited from striking or joining certain political organisations because their role requires political neutrality and the continuous provision of essential services.
These restrictions must still be lawful and necessary in a democratic society. They cannot be arbitrary or disproportionate.
The requirement of necessity in a democratic society
A key element of Article 11(2) is that any restriction must be necessary in a democratic society. This means the restriction must:
- Address a pressing social need
- Be proportionate to the legitimate aim pursued
- Be supported by relevant and sufficient reasons
Courts will scrutinise whether the restriction goes further than necessary to achieve its purpose. A blanket ban on all protests, for example, would be unlikely to satisfy this test, even if some legitimate concerns existed.
The Proportionality Test
When assessing proportionality, courts consider:
- Is the objective sufficiently important to justify limiting a fundamental right?
- Is the restriction rationally connected to the objective?
- Could a less intrusive measure achieve the same objective?
- Is there a reasonable balance between the restriction and its objective?
Balancing individual rights with wider interests
Article 11(2) reflects the principle that human rights exist within a framework of social responsibility. While individuals have the right to assemble and associate freely, these rights must be balanced against:
- The safety and security of the wider community
- The prevention of crime and disorder
- The protection of public health
- The rights and freedoms of other individuals
The restrictions under Article 11(2) provide the legal mechanism for achieving this balance, ensuring that freedoms are protected while preventing harm to others or to society as a whole.
Exam guidance
This content may be assessed in multiple exam formats:
- Multiple-choice questions testing your understanding of the grounds for restriction under Article 11(2)
- Extended answer questions requiring you to examine and discuss restrictions on human rights under the European Convention on Human Rights
- Problem/scenario questions where you must apply Article 11(2) to a factual situation
Approaching exam questions
When answering questions on Article 11(2):
- Identify the right – state that Article 11(1) protects freedom of peaceful assembly and association
- Identify the restriction – explain that Article 11(2) permits restrictions in specified circumstances
- Apply the two-stage test:
- Is the restriction prescribed by law?
- Is it necessary in a democratic society?
- Identify the legitimate aim – which of the four grounds (or special group provision) applies?
- Evaluate proportionality – is the restriction proportionate to the aim pursued?
- Reach a conclusion – has the state shown the restriction is justified?
When discussing restrictions, always consider both sides: the state's interest in imposing the restriction and the individual's interest in exercising their fundamental rights. This demonstrates balanced analysis and critical thinking.
Summary
Key Points to Remember:
- Article 11(2) permits restrictions on the freedoms protected by Article 11(1), but only in specific circumstances
- Restrictions must be prescribed by law and necessary in a democratic society
- There are four legitimate grounds for restriction:
- National security or public safety
- Prevention of disorder or crime
- Protection of health or morals
- Protection of others' rights and freedoms
- Special restrictions can be imposed on members of the armed forces, police, and state administration
- All restrictions must be proportionate – they cannot go further than necessary to achieve their legitimate aim
- The test requires balancing individual freedoms against wider societal interests
- Both requirements (prescribed by law AND necessary in a democratic society) must be satisfied for a restriction to be lawful