Your Right to Protest in Scotland explained

Your rights with a megaphone and triangle and circle shapes

Image credit: JRS Knowhow and the Noun Project

Disclaimer: this information does not constitute individualised legal advice, it is for public legal education only.  It was last updated on the date shown above, please note it might not reflect recent changes in the law.

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Page contents

  1. What type of protest is protected by the law?
  2. What obligations do public authorities in Scotland have to protect the right to protest?
  3. What rights do I have to plan a protest?
  4. Do I need a permit? 
  5. What rights do I have to participate in a protest? 
  6. What rights do children have to participate in a protest?
  7. What are the considerations for migrants, visitors and international students planning or attending a protest? 
  8. What rights do I have during a protest? 
  9. Can force be used against me during a protest?
  10. What rights do disabled people have during a protest? 
  11. What kind of restrictions are there on protests in Scotland? Are there restricted places and restricted activities? 
  12. What about the new legislation?  
  13. How can I realise my right to protest? 
  14. Where can I find more information? 

1. What type of protest is protected by the law?

‘Peaceful’ protests are protected by law, in Scotland, by the European Convention on Human Rights. Protests where people are violent, incite hatred, stir up violence, or commit criminal acts might face legal restrictions

An individual does not lose their right to protest due to the actions of other people if the individual remains peaceful. 

Protests protected by the law include:  

  • gatherings of people in public and in private 
  • static and moving gatherings 

A protest might take the form of an assembly. An assembly is explained by the European Court of Human Rights as a gathering where people have common purpose (ECtHR 2021: paragraph 14 page 8). An assembly is defined by the UK’s Public Order Act (1986) ‘as two or more people in a public place, which is wholly or partly open to the air’ (section 16). 

Case law about peaceful assemblies includes demonstrations, processions, sit-ins, roadblocks or blocking activities such as sailing boats, putting up temporary structures, counter demonstrations, and lengthier occupations (ECtHR 2021: paragraphs 10, 13-15).  

Direct action tactics and civil disobedience can be used as a form of protest. Law enforcement authorities including the police should consider the different elements of a protest on a case-by-case basis, including its intent (for example, to protest or express political or social dissent, to get the attention of the general public and contribute to the political debate) and its overall impact (causing of temporary harm as opposed to permanent negative consequences for the general public).  

Article 11 of the European Convention on Human Rights, freedom of assembly, covers social and political assemblies, religious and spiritual meetings, and also, parliamentary sessions (ECtHR 2021: paragraph 19). 

Acts of protest might not involve assembling. For example, letter-writing, signing petitions, registering a ‘protest vote’, and displaying flags and other types of symbol (OSCE 2019: 6). These acts of protest are protected by Article 10 of the European Convention on Human Rights, freedom of expression. 

Sources of law:

References:

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2. What obligations do public authorities in Scotland have to protect the right to protest?

Public authorities in Scotland such as the Scottish Government, local councils and Police Scotland must not unlawfully restrict assemblies. Public authorities must also protect your right to enjoy freedom of assembly. 

Public authorities have a duty to make sure assemblies are peaceful and people are safe (ECtHR 2021: paragraph 35). This may include ensuring that access to first aid services and access to medical attention for protestors (ECtHR 2021: paragraph 36).  

Authorities also have a duty to communicate with the organisers of a protest to make sure it is peaceful, and that people are safe (ECtHR 2021: paragraph 37 page 12). For example, if the police were to restrict an ongoing protest on the grounds of people’s safety, they need to communicate clearly with the organisers of the protest. 

Public authorities in Scotland may be able to lawfully control or restrict protest activity, but overall, they cannot act in a way which is incompatible with the right to freedom of assembly.

Sources of law:

  • The European Convention on Human Rights Article 11 is a positive duty meaning that public authorities have to protect your right to freedom of assembly 
  • The Human Rights Act (1998) section 6 means that public authorities cannot act, make decisions or make laws in an incompatible way 
  • Scotland Act (1998) section 29 means that the Scottish Parliament cannot pass incompatible laws and section 57 (2) means that the Scottish Government cannot act in an incompatible way 
References:

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3. What rights do I have to plan a protest?

The right to freedom of assembly includes the person planning or organising a protest. They have the same rights to participate and be safe participating in an assembly.  

The right to freedom of assembly includes the choice of time, place and modality of assembly. For example, where or how the assembly takes place.  

There are some legal restrictions that public authorities might put in place and there are some sites where protest is restricted in Scotland. However, case law does not support an order to change an assembly’s location where the place is crucial to the participants (ECtHR 2021: paragraph 20 pages 9-10). 

Organisers also have the right to use social media to encourage people to assemble, which is protected under the rights to freedom of expression and assembly (ECtHR 2021: paragraph 9 page 7).  

Sources of law:

References:

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4. Do I need a permit?

Technically no. According to international law, the process of needing to notify public authorities in advance of an assembly cannot form part of an assembly’s approval procedure. Spontaneous assemblies do not require a notification process (OSCE 2019: paragraph 102-3, page 22, 25).  

Static (non-moving) assemblies in Scotland do not need a permit. There is no notification procedure either.  Having said that, if organisers might consider whether it would be useful to submit a notification to allow public authorities to ensure the safety of protesters – for example, by diverting traffic or ensuring access to emergency medical care. 

There is a notification procedure for public processions in Scotland. A procession is a moving gathering which occurs in a public place. The law does not include funeral processions. 

Whilst a public procession does not need a ‘permit’, there is a requirement to provide details of the procession 28 days in advance to the relevant public authorities and the Chief Constable of Police Scotland. There is discretion over the 28 day notice period. 

Organisers are requested to provide: the date and time, its route, the number of people expected, arrangements for control by the organiser, and the name and address of the organiser. 

A local authority can decide to restrict the procession or impose conditions on it, if certain conditions are met. These can be appealed in the relevant sheriff court. 

 Sources of law:

  • The European Convention on Human Rights Article 11 “2. 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.” 
  • Public Order Act (1986) section 16 
  • The Human Rights Act (1998) section 6 means that public authorities cannot act, make decisions or make laws in an incompatible way 
  • Scotland Act (1998) section 29 means that the Scottish Parliament cannot pass incompatible laws and section 57 (2) means that the Scottish Government cannot act in an incompatible way 
  • The Civic Government (Scotland) Act (1982) section 62 requires organisers of a public procession to provide written notification to the relevant local authority and Police Scotland about certain details 
References:

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5. What rights do I have to participate in a protest? 

Everyone has human rights. Everyone has the right to freedom of assembly and association, and freedom of expression. Everyone has the right to participate in a protest.  

This means everyone in Scotland has the right to protest, no matter your nationality or residency status.  

Your rights should, by law, be upheld and protected by public authorities in Scotland. This includes protecting your safety during an assembly, such as a demonstration. 

Although everyone in Scotland has these rights, they are not absolute.  This means that there can be restrictions on whether, when and how people are able to exercise these rights. 

For example, people have the right to legally observe an assembly. However, only if they can link the purpose of observation to the exercise of their right to freedom of assembly (ECtHR 2021: paragraph 16). 

Actively participating in an assembly is different to accidentally participating in a protest (ECtHR 2021: paragraph 14). For example, if someone walks by a demonstration that is already happening, they are not exercising a right to protest. 

People also have the opposite of the right to protest. People have the right not to be forced to participate in an assembly (ECtHR 2021: paragraph 17). 

Sources of law:

References:

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6. What rights do children have to participate in a protest?

All children under the age of 18 in Scotland have the right to participate in a peaceful protest both in person and online, if they choose to do so.  

Children have the same rights to plan, participate and be safe during a protest. Children have the same human rights as adults during a protest, including the right to life.  

In Scotland the legal age of responsibility is 12 and anyone over the age of 16 is treated as an adult. A child under 12 cannot be arrested, charged or prosecuted for a crime. If a child over 12 and under 16 is arrested the police must try and contact the child’s parent or guardian as soon as possible. The child must only be interviewed by police with a ‘responsible adult’ present. 

Children have the same other rights as adults if arrested, including access to an interpreter, legal representation and adjustments.

Children at a protest with signs reading "Act as if the house is on fire because it is" and "system change not climate change"
Image credit: “Climate Strike, Fridays for Future” by marsupium photography is licensed under CC BY-SA 2.0

Sources of law:

References:

Children and Young People’s Commissioner Scotland, Under 18? Your Human Rights at Protests, URL https://www.cypcs.org.uk/human_rights_protest/  

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7. What are the considerations for migrants, visitors and international students planning or attending a protest? 

Everyone has the right to organise a peaceful protest. Everyone has the right to participate in a peaceful protest, including people with settled status, limited leave to remain, indefinite leave to remain, visitors, international students and people seeking sanctuary in Scotland. Everyone has the right to be safe during a protest. 

Race, nationality and ethnicity are a protected characteristic under the law. This means that public authorities such as local councils or the police cannot discrimination, harass or victimise anyone based on their identity. 

However, the consequences of interacting with the police during a protest or being arrested and charged at a protest can be worrying. The consequences might affect you staying in Scotland or future applications to the Home Office. 

Consequences to consider include the possibility that any criminal charge or conviction linked to your attendance at a protest, could cause your current visa to be curtailed (cancelled) or a future visa application to be refused. Information about your attendance at protests might be passed from Police Scotland or other public authorities in Scotland to the Home Office. 

Practicalities to consider if you are visiting Scotland and arrested, include possibly needing to come back to Scotland for hearings or court proceedings. 

You might also be at risk of deportation if you are arrested, charged and convicted of a criminal offence. Deportation is triggered if you received a sentence of 12 months or more. However, more minor offences might trigger deportation if there is a history of offences. 

If you are arrested by the police, you have the right to an interpreter so that you understand the reason for your arrest and the charges against you. You also have the right to a lawyer – and if you cannot afford a lawyer you may be able to access free legal representation through the Scottish Legal Aid Board, even if you are a visitor or you do not have leave to remain.  

People listening to a speaker at a rally in front of a large building. A protest sign reads Refugees welcome.
Image credit: Amnesty International UK

Sources of law:

References:

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8. What rights do I have during a protest? 

During a protest, all our human rights apply.  

Public authorities, including local authorities and Police Scotland, must ensure that our human rights are respected, upheld and protected. For example: 

  • Everyone’s right to life is protected.  
  • No-one shall be subject to torture.  
  • Everyone has the right to liberty and security, unless lawfully detained or arrested. Anyone who is arrested has the right to be told why they are being arrested and the charge, in a language which they understand. 
  • Everyone has the right to a fair trial. 
  • Everyone has the right to freedom of expression. 
  • Everyone has the right to live free from discrimination on “the grounds of sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. 

Public authorities have a proactive responsibility to take appropriate measures to ensure peaceful conduct and public safety at lawful assemblies (ECtHR 2021: paragraph 35).

Sources of law:

References:

European Court of Human Rights (December 2021) Guide on Articles 11 of the European Convention on Human Rights: Freedom of assembly and association, URL https://echr.coe.int/Documents/Guide_Art_11_ENG.pdf

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9. Can force be used against me during a protest?

Private security cannot use force against you or arrest you. 

Force can sometimes be used by public authorities such as the police but only certain and exceptional circumstances.  It must be legal, necessary in a democratic society and proportionate.  

The primary duty of police is to facilitate peaceful protests. Part of this duty is to de-escalate conflict through dialogue. Using force is ineffective at de-escalation and should only be used as a last resort.   

Instances where force have occurred before at protests include during arrest or to make sure that a protest moves or stops. It is important that the use of force to stop a protest doesn’t break other human rights, including article 3 freedom from inhuman or degrading treatment (ECtHR 2021: paragraph 87, page 20). For example, the use of tear gas is hard to justify according to international law because of its effects on bystanders. 

Police must always consider the consequences for third parties. Even in a situation where using force against a violent individual is legitimate, there may be bystanders or other third parties at risk if force is used. Police must always assess these situations and proceed as cautiously as possible. Special caution is required with regard to groups facing particular risk of suffering serious harm or injury, such as children or older people. Law enforcement officials should show particular restraint when dealing with such persons.  

Sources of law:

References:

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10. What rights do disabled people have during a protest? 

All disabled people have the right to be treated equally. All people have the right to be safe participating in peaceful protests. 

Disability is a protected characteristic under the law. This means that public authorities such as local councils or the police cannot discrimination, harass or victimise anyone based on their identity. 

Public authorities have a proactive responsibility to take appropriate measures to ensure public safety at lawful assemblies (ECtHR 2021: paragraph 35). Case law has highlighted the importance of first aid services and access to medical attention for protestors (ECtHR 2021: paragraph 36).  

If you are arrested, you have the right to legal representation, adjustments and an interpreter, and you have a right to medical treatment if you are arrested. The law states that “vulnerable persons” have the right to an “appropriate adult” to provide support. 

Sources of law:

References:

Scottish Community & Activist Legal Project (SCALP) Guide for Disabled Activists, URL https://www.scottishactivistlegalproject.co.uk/disabled-activist-guide/

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11. What kind of restrictions are there on protests in Scotland? Are there restricted places and restricted activities? 

What kind of restrictions are there on protests in Scotland? 

The right to protest can be restricted by public authorities. A local council or the police can only restrict a protest with a reason approved in law. The reason must be necessary in a democratic society and the restrictions must be proportionate. With an aim to:  

  • Protect national security or public safety 
  • To prevent disorder or crime 
  • To protect health or morals  
  • Or to protect the rights and freedoms of other people 

For example, the removal of protestors blocking a main traffic route is not automatically necessarily proportionate and rights based. Such an approach however would become acceptable if protestors were, for example, blocking emergency services as a result of such direct action. 

The police can make public processions or public assemblies comply with certain conditions. These could include location, time and number of people. 

Sources of law:

  • The European Convention on Human Rights Article 11 ‘2. 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.’ 
  • Public Order Act (1986) sections 12 and 14 describe how the police can impose conditions if a procession ‘… may result in serious public disorder, serious damage to property or serious disruption to the life of the community’ or if it has ‘the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do’. Section 14a describes trespassory assemblies where people have limited access or no access to the land 

Are there restricted places and restricted activities? 

In Scotland we have the right to roam. This means everyone has the right to access and be on land for certain purposes and to pass across land. There are some restrictions to access rights, including areas around houses and farmland where activities are disrupted.  

Just because everyone has the right to roam in Scotland, doesn’t mean that any protest activity will be automatically unrestricted. The offence of aggravated trespass makes it illegal to intimidate people or attempt to stop then doing something, or to obstruct or disrupt activity.  

The police can also seek to prevent assemblies of more than 20 people in areas where they do not have access or only have limited access. The police must write to the local authority who can approve or deny the request. 

In Scotland there are places where protests are legally restricted. The right to roam does not apply in these areas. The existing law restricts unauthorised access for reasons of national security. 

At the time of writing, restricted sites include:  

There are also areas like airports, train stations and railways where specific byelaws might prohibit access.  It is important to note that many council areas across Scotland ban drinking alcohol in public spaces, including Glasgow and Edinburgh City Council. 

Sources of law:

References:

Scottish Community & Activist Legal Project (SCALP) Guide to Activism, Scottish Law and the Police, URL https://www.scottishactivistlegalproject.co.uk/guide-to-activism-scottish-law-and-the-police/

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12. What about the new legislation?

The Police Crime Sentencing and Courts Bill passed in the UK Parliament on the 25 April 2022. The Public Order (Act) 1986 has been updated as a result.  

This has consequences for the law in Scotland. Including the changing the penalties for breaching the law, adding conditions police can legally place on protests and giving police powers to remove trespassers from unauthorised encampments.  

However, the new restrictions based on the noise of a public procession and assembly, giving local authorities expedited powers to issue protection orders on public spaces, wilful obstruction of highways and restrictions on one person protests only apply to England and Wales. Not to Scotland. 

Sources of law:

  • Police, Crime, Sentencing and Courts Act (2022)  
    • Section 74 (3) adds to the Public Order Act (1984) legal conditions that a senior police officer can make on a public assembly, including the place, duration and number of persons ‘to prevent the disorder, damage, disruption, impact or intimidation’ 
    • Section 75 (6) means that someone found guilty of an offence of planning a procession and knowingly failing to comply with a condition on the protest, can be fined up to level 4 of the standard scale (£2,500) or imprisoned for up to 3 months, or both 
    • Section 75 (6) means that someone found guilty of an offence of participating in a procession and knowingly failing to comply with a condition on the protest can be fined up to level 3 of the standard scale (£1,000) 
    • Part 4 Unauthorised encampments section 83 changes the Criminal Justice and Public Order Act (1994) to add an offence for being on land without permission in or with a vehicle. The amendment introduces an offence for failing to leave or returning, where someone is prohibited from a place for 3 months. A person can be imprisoned for up to 3 months or fined up to level 4 (£2,500) of the standard scale, or both 

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13. How can I realise my right to protest? 

We can all learn more about the law and our rights.  

Before you participate in a protest you can read legal guides and participate in know your rights training.  

If you are planning a protest, you can contact organisations who provide volunteer legal observers and also legal advice

You can also volunteer and train as a legal observer to monitor the way our rights are upheld or restricted in Scotland. 

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14. Where can I find more information? 

Legal basis and international law 

To find out more about the legal basis around the right to protest, challenges to the right and defending our rights, take Amnesty International’s online course about the Right to Protest and browse the Protect the Protest campaign.  

The online course is available to complete via web browser and mobile phone app. It takes around three hours to complete. You will need to provide an email address to create an account and login. A certificate of attendance is available to download upon completion. 

Scots law

To find out more about Scots Law, the right to protest and knowing your rights, you can read the Scottish Community & Activist Legal Project’s (SCALP) guides. The guides are available as PDF downloads and some of the guides have been translated into community languages. 

The guides cover: 

  • Activism, Scottish Law and the Police 
  • Guide for internationals 
  • Guide for disabled activists 
  • Guide to public order and police tactics 
  • Guide to police station support 
  • Guide to legal support systems and collective care 
  • Guide to Scottish Policing and Immigration Enforcement for Racialised communities  

SCALP also deliver online and in-person workshops and training, about being a legal observer and knowing your rights.

The law in England and Wales

To find out more about the law in England and Wales you can join Amnesty International UK’s online course about the right to protest. It covers how to organise a protest, why protest creates social change and how protest is under threat.

Green & Black Cross have a know your rights section on their website. It covers topics like advice about going to a protest, filming and photographing at actions, stop and search, and being trans and protesting. 

Liberty have an advice and information page about protest. It includes practical tips, information about the new policing act and bust cards translated into ten languages. 

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