We have already established that the European convention is a response to the Nazi regime of Adolf Hitler and the creation of the Third Reich. What isn’t quite so well known is the way that German ‘National Socialism’ attempted (and in large part succeeded) in preventing people from associating with each other. The idea was that if people couldn’t come together in large enough groups they wouldn’t be able to oppose the Nazi party’s dominance of the country.
On the 27th February 1933 an arson attack on Berlin’s Reichstag (the German equivalent of the UK’s houses of Parliament) was blamed on German Communists. Most people believed at the time that the fire was actually set by the Nazis themselves as an excuse to demonise their most prominent political rivals. It certainly gave them an excuse to outlaw not only the communist party but also any other associations that might threaten their all encompassing control of German society.
On February 28th, the very next day, Hitler passed the ‘Defensive Measures Act’. He told aides that:
“The German people will have no sympathy with lenience. Every communist official will be shot where he is found. The communist deputies must be hanged this night. Everything connected with the communists is to be settled. No more indulgence will be afforded the social democrats or the Reichsbanner.”
Adolf Hitler (February 1933)
“My measures will not be crippled by any judicial thinking. I don’t have to worry about justice! My mission is to destroy and exterminate, nothing more!”Herman Goering (March 1933)
The Defensive Measures Act (1933) restricted:
Free expression of opinion;
Assembly and association;
Postal, telegraphic and telephonic communications;
This opened the door for mass arrest and summary execution of political ‘undesirables’ from communists to liberals, democrats and ‘middle of the road’ political activists of all persuasions.
In direct response to this Article 11 concerns itself with freedom of association and ideology. In combination with other articles (predominantly articles 5, 8, 9 & 10) it protects our right to form associations and to meet and discuss our ideas with others.
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
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.
Since the early days of the Convention the courts have produced a stream of judgements providing guidance in balancing the right of free association with the need to protect society and the rights and freedoms of others. One definite principle is that mere difference of opinion is not likely to be sufficient grounds to prevent association. A recent case involved the Associated Society of Locomotive Engineers and Firemen (ASLEF).
ASLEF vs UK clarified that a union cannot expel a member simply for belonging to a political organisation unless other problems also apply. The case concerned a far right BNP activist belonging to the traditionally left wing ASLEF union. That is because association is not usually anything more than a private affair. It is possible for the law to intervene in associations where there are reasonable grounds to do so based upon past or likely behaviour. It is also possible in the right circumstances for particular groups or associations to be declared illegal per se but again there needs to be good reason. It ought to be more than merely a difference of opinion.
So thanks to the European Convention on Human Rights you and I have the right to meet and discuss our grievances against the prevailing government. We can form pressure groups or political parties and we can even take our grievances out onto the streets so long as we respect the lawful rights of others to go about their business.
Ironically the extreme far right groups most opposed to the convention are the ones benefitting most from it (and the ones most likely to remove it if ever they achieved power themselves). But that’s not such a problem. The Convention affords these groups the right to meet and to demonstrate but it also prevents them from removing that liberty from others. That’s the price we pay for liberty – we have to accept the right of others to oppose (for others) the very liberty they enjoy themselves. As Voltaire allegedly said:
“I disagree with what you have to say, but I will
fight to the death to defend your right to say it.”
About ‘The Convention’
This series of posts first appeared on Stuart’s blog in June 2011. It is not intended to be a comprehensive or even particularly authoritative reference guide to the ECHR. Rather it is a brief introduction to a much larger and infinitely more fascinating subject. You can download the entire series in PDF format here: