Tag Archives: right to assemble on the highway

by | May 22, 2012 · 7:46 pm

David Mead: Be careful what you wish for….it may never happen: the curious incident of peaceful protest under the coalition

If a week’s a long time in politics, then two years is surely a couple of lifetimes? Hidden away – it now seems – in the coalition’s Programme for Government was the pledge to “restore rights to non-violent protest”. Even in the civil liberties section, it was always the poor relation to the big hitters that were thought more in keeping with the zeitgeist: regulating CCTV, taking action on DNA databases and misuse of anti-terrorism legislation, scrapping ID cards and of course establishing a Commission on a British Bill of Rights.  The antics of the red tops, currently being played out at Leveson, has shifted the focus onto press behaviour but the past few years has also – perhaps perversely in that light – been a real worry for press freedom. The concerted campaign on libel reform has achieved a meeting of political minds – and investment of political capital – in the changes proposed in the Queen’s Speech a week or two ago, with plans that “serious harm” be shown, alongside a statutory public interest defence.

It is something of a puzzle that free speech of a different hue, the right to dissent and to protest, is not simply under the radar but has almost disappeared from the political map. It is exactly two years since the coalition agreement was fleshed out: where are the consultations, the public statements of support, the draft bills and other indicators of government interest? The single, positive change is that restrictions on demonstrations around Westminster have been removed – though protest camps in Parliament Square remain unlawful. If the two negotiating teams thought that was the extent of the problem, they were seriously misinformed. Not only was that change not in the wide-ranging Protection of Freedoms Act – its natural home – but in the Police Reform and Social Responsibility Act 2011 and indeed didn’t even feature in the original Bill but was inserted in Committee in early 2011. That was about the same time as the only public acknowledgement of the pledge in two years. In his policy announcement on civil liberties on 7th January 2011, Nick Clegg simply asserted that the right would be restored – without any detail analysis or explanation of what that might mean or what would be needed. The sidelining of protest couldn’t have been clearer.

So all we have to show is a solitary piece of legislative tinkering as an afterthought, one bland unsubstantiated statement and one consultation, late in 2011, angled (still) towards promoting public order and police powers. Surely, protest is simply free speech writ large – without any of the vestiges of commercialism that flavour even the most upstanding newspaper reports and investigations? No newspaper exists simply to expose wrongdoing – though of course the threat of libel hangs over anyone who publishes, whether mass media or do-gooding pamphleteer. Writ large too because protest and dissent also (perhaps by definition) go directly to political participation – presenting, questioning or confirming democratic alternatives – even if it is not avowedly partisan. Can we always say the same of alleged libels? Yet that singular aspect of free speech is now to benefit from special legislative intervention. If free speech is now recognised politically as A Good Thing, why isn’t the same respect accorded when we try to make our views known by protesting?

Libel law of course has, in footballing terms, home advantage: it’s always easier to mount a media campaign when the media is on your side even more so when what is being argued for are better terms and conditions for the media. Any editor would think: “what’s not to like?” It also chimes more easily perhaps with libertarian hearts and minds. Perhaps the perception is that protest is hale and hearty: after all if 30,000 police officers can march across London, where’s the problem? None of these though really account for the paucity of political engagement with the question of how we regulate the expression of dissent. A likelier explanation is the nature of the coalition and the turmoil at its heart.  The pledge really stemmed from the Liberal Democrats. Their manifesto committed them to restore the right to protest by reforming the Public Order Act to safeguard non-violent protest even if it offends and to restrict the scope of injunctions issued by vested interests. The Tory’s manifesto was silent – on that particular civil liberties issue at least. Unsurprising really, as it was Tory peers in the wash-up who objected to the Constitutional Reform and Governance Act 2010 including provisions overturning the ban on demonstrations near Westminster. Such inertia yet, to take one simple example, the Department for Business, Innovation and Skills was recently able to find the time to consult on removing the dishonesty from the cartel offence in the Enterprise Act 2002. A matter of priorities, and the all-pervasive financial & economic agenda?

It’s not simply that peaceful protest is the human right that dare not speak its name – it’s been in retreat. Breach of the peace remains the catch-all for dealing with any sort of likely disruption, as well as acting as the underpinning authority for kettling more generally. Cases like Austin, at Strasbourg, and here Moos and McClure (where the Court of Appeal overturned the only successful kettling case to date) do not paint a happy picture. The thorny issue of finding physical space to hold a protest – with the commercialisation of formerly public land – is in turn problematic, made no better by holding that distance and the cost of daily travel cannot justify the establishment of a semi-permanent protest site. That decision, in Gallastegui last month, joins the line of unsuccessful occupation cases over the past couple of years, like Hall (Democracy Village) and Samede (Occupy LSX). The point here is not that the occupiers should have won but that an engaged polity needs to find space to discuss the extent to which we should allow such forms of protest. To this catalogue we might add the admittedly contentious decision in Abdul v DPP, the conviction under s.5 of the Public Order Act 1986 of those protesting in fairly vituperative terms (“Baby killers” “Rapists” “Murderers”) about the war in Iraq at a homecoming for British troops and the continued place in the armoury of aggravated trespass. The case against those 145 members of UK Uncut who “occupied” Fortnum and Masons in March 2011 would be a prime example, as would the sit-in protests at the Ahava store in Covent Garden, based on its connections to the Occupied Palestinian Territory on the West Bank, in Nero v DPP. All of this against a backdrop of continuing disquiet at aspects of policing practice: the revelations about undercover surveillance and embedding officers in environmental groups; Kent police paying out £5.3m to all those it subjected to blanket (and so arbitrary) stop and search at the Kingsnorth Climate Camp; and allegations of excessive force as police kettled student protesters on Westminster Bridge in December 2010.

In short, it is hard to think of anything particularly positive from the last few years. Following last year’s consultation (and indeed a recommendation of the Joint Committee on Human Rights in 2009), reform of s.5 of the Public Order Act 1986 is back on the political agenda courtesy of Peter Tatchell last week. Even if there is movement there, restoring the right to peaceful protest will not be achieved simply by tinkering with demonstrations around Westminster and making it no longer an offence to utter “insulting” words. One of the problems – as I argue in an article to be published in Public Law next year – is the increasing use of private law to control and contain protesters. This subverts the more transparent and accountable public law framework: arrests for crimes and conditions imposed on marches and assemblies. Not only are protesters subject to the grace and favour of private landowners – which explains why Occupy LSX were outside St Pauls not the Stock Exchange, over which Paternoster Square Holdings had obtained an injunction – creating what we might call a “differentiated reality” of protest, but we are witnessing an increasing reliance on anti-harassment and libel injunctions (or SLAPPs, a transatlantic import) by target companies. This is what lies behind the second limb of the Lib Dem manifesto commitment.

So, what should the immediate future hold? Two years ago, just before the general election, I called for a Royal Commission into Peaceful Protest. The need appears to have become no less pressing in the intervening period. We need to turn the focus away from the UK’s historic attachment to order maintenance; we have several Public Order Acts but no Peaceful Protest Act. First we need to eradicate the concept of “unlawful” assembly from both law and policing practice. The right to protest peacefully is an individual right not something defined out, and so lost, simply because others are violent or intend serious harm. Seeing protesters as an amorphous mob lies behind the legitimising of kettling, treating everyone as a potential threat on the basis of suspicions of perhaps a handful. Any Peaceful Protest Act would provide criteria to assess whether or not a protester is “peaceful”; its antonym is violence, not disruption or inconvenience. We should – and indeed must – accept as legitimate forms of protest that disrupt and obstruct us, as part and parcel of a vital democracy. This echoes Michael Sandel’s concerns about markets: that they reduce our shared experiences and so diminish democratic life. It is what David Feldman calls “coerced toleration” or as Lord Scott out it in Pro Life: we simply do not have the right to be offended by certain forms of speech. For too long protest NIMBYism has dominated; without respecting the views of others, why should I be able to demand my own be heard? Worse, we think nothing of the inconvenience caused by all-night queues outside the Apple store or the disruption at 5:00 on Saturdays as football crowds disperse yet we clamour for a clamp down when a march causes temporary street closures. The wider public social utility of my right to dissent needs re-affirmation. Furthermore, we should be prepared to accept the political legitimacy of certain forms of non-violent direct action. Where it is obstructive or disruptive but is so only temporarily, or incidentally or symbolically, a pressing case is needed to justify restricting it, the more so perhaps for views which run counter to the mainstream and so will never otherwise reach the political agenda. There is a world of difference between a few protesters linking arms outside an arms factory for five minutes to prevent workers entering and a group which tries to dismantle an entire fighter plane. That would allow us properly to distinguish intentional intimidation or obstruction aimed at stopping an activity itself done as a supplanting of the democratic process by effecting change directly.

Other key elements in any new legislative framework would be that a protest impact statement is required for all future proposals. This would explain why a new, bespoke offence is needed to capture whatever discrete anti-social activity is being carried out. History shows that knee-jerk laws in this area are prone to misuse or, perhaps as worse, massive under-use. The need for new laws may not be down to any substantive gaps but to evidential difficulties under existing laws, which a new offence simply would not solve. A Peaceful Protest Act would provide for two more pressing reforms: codifying and constraining the common law power to take preventive action on grounds of breach of the peace, containing containment so to speak, and creating a limited right of access to quasi-public land for the purposes of protest – as Tom Watson unsuccessfully endeavoured to do in the course of the Protection of Freedoms Bill becoming law last year. Last, it would respond better to the need to balance the legitimate rights of businesses to be free from activities designed directly to obstruct its trade and the rights we all have to persuade employees, suppliers and customers not to buy from, sell to or work for that company. There have been enough instances where injunctions have been granted to prevent free speech and dissent: disconcerting and ill-judged perhaps, hostile and unwelcome certainly but peaceful protest nonetheless.

Maybe it’s not the broken society that the coalition needs to worry about, but broken promises?

David Mead is a Senior Lecturer in Law at the UEA Law School. 

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by | May 1, 2012 · 9:03 am

Hayley J. Hooper: ‘A Case without Precedent’: City of London v Samede and Others [2012] EWHC 34 (QB)

THE OCCUPY WALL STREET protest movement began on September 17, 2011 in the New York Financial District. Around the world, including in London, a number of similar protest groups using the ‘Occupy’ name sprang up in sympathy. Among the movement’s many ideals, including pressure for the adoption of a Community Bill of Rights, the ‘Occupy’ movement claims to be motivated by a ‘[fight] back against the corrosive power of major banks and multinational corporations over the democratic process’. To students of constitutional thought the Occupy movement is perhaps best described as a form of direct political action borne of disaffection with the institutions of representative democracy and the ability of those institutions to remain free from the power and influence of private capital.

Britain felt the influence of this global movement through the activities of the Occupy London Stock Exchange (Occupy LSX) movement. This group initially sought to occupy the City of London financial district but was prohibited from doing so by way of a pre-emptive court injunction granted in favour of the City of London excluding protestors from the area. In response to this decision a protest camp was established at a site surrounding St Paul’s Cathedral in the City of London on October 15, 2011. A tent village was set up on land held by St Paul’s Cathedral and part of the public highway. The movement subsequently became known as Occupy St Paul’s. Following a decision of the High Court on February 18, 2012 protestors were evicted by police and bailiffs on February 28, 2012 during which twenty arrests were made.

In City of London v Samede and Others the City of London successfully sought an order for possession of the public highway pursuant to section 263(1) of the Highways Act 1980, and an injunction against current and prospective protestors under section 130 of the same Act. Due to the fact part of the protest camp was established on church land outside of St Paul’s Cathedral, which the City of London did not own, the City also successfully sought an injunction against current and prospective protesters pursuant to section 171 of the Town and Country Planning Act 1990 on the grounds that no planning permission had been sought to erect any form of structure in the grounds of St Paul’s Cathedral. The City also sought a declaration that it was empowered at either common law or, if necessary, to use its powers under section 143 of the 1980 Act to remove the tents from the various protest camp sites. Neither the Church of England, nor any representative from the Chapter of St Paul’s Cathedral was a party to the litigation.

Mr Justice Lindblom gave the sole judgment of the Court, phrasing the human rights problem in the following terms, by asking whether the limits of Articles 10 and 11 of the European Convention on Human Rights extended to the indefinite occupation of highway land by an encampment of protestors who argued that this form of protest was essential to the exercise of their rights, when the land they have chosen to occupy was in a prominent place in the centre of the metropolis, beside a cathedral of national and international importance, which is visited each year by many thousands of people and where many thousands more come to exercise their right, under Article 9 ECHR, to worship as they choose? The High Court answered this question in the negative, stating that: ‘Whatever the protestors hope to achieve by leaving their camp where it is, they have had ample time in which to draw attention to the causes they espouse. They have made their point’ (at [164]).

The decision of the High Court is authority for the proposition that there is no right to an indefinite or permanent protest on the public highway or any public space pursuant to Art 10 or Art 11 ECHR as incorporated by Schedule One of the Human Rights Act 1998. Although supporters of the Occupy movement will doubtless be dissatisfied with the outcome of the case, and the subsequent refusal of leave to appeal to the Court of Appeal, it is argued here that the decision was the correct one. It is difficult to suggest without questioning the legitimacy of the legal process to which the representatives of Occupy chose to submit themselves that the decision could have been made any other way. In fact, the serious engagement with the use of evidence based proportionality to strike a balance between the rights at stake should be welcomed by those who take the project of human rights seriously.

Paragraphs sixteen to eighty-eight of the judgment are devoted to the reproduction of witness testimony from both supporters and detractors of the protest, including, in support of the protest, a Minister of religion who supported the camp, residents of the camp, and David Mead, whose work has featured on this blog. Among those who made statements on behalf of the City of London were from the City’s Department for the Built Environment, the Registrar of St Paul’s Cathedral, and the Temporary Police Inspector. Although the court rightly claimed that its judgment was not intended as an attempt to ‘adjudicate on the merits of the protest’ (at [155]) much of the evidence in support of the defendants did indeed speak to the importance of Occupy’s cause and the relationship of its merits to human rights law. David Forsdick QC for the City of London submitted that ‘the High Court is the place for litigation, not a forum for the debate of matters such as [Occupy’s cause]. It is a court of law, not of policy, opinion or politics’ (at [155]).

The argument over the proportionality of the City’s various claims for possession and injunction were not whether they were prima facie lawful, as this was not disputed on the facts, but rather whether they were in pursuit of a legitimate aim, rational, and necessary in a democratic society. The City of London authority claimed that its duty to act in the public interest as a local authority required it to have regard to the public interest, and in turn, to the Article 9 ECHR rights of prospective worshippers who sought to use St. Paul’s Cathedral. The High Court took its duty to act within the framework of proportionality very seriously, recognising that any decision reached under the rubric of proportionality did not obviate the relevance of the City of London’s original decision making process. In his consideration of the City of London’s actions Lindblom J concluded that: ‘…the City went about the balancing exercise it had to carry out with a clear understanding of the legal issues involved and having regard only to relevant facts and considerations’ (at [148]).

It was acknowledged by the Court that this was indeed ‘a case without precedent’ because neither of the two closest domestic authorities Hall or DPP v Jones had considered the concept of the right to indefinite or permanent protest, and the European Court of Human Rights (ECtHR) had not considered the matter either. In this respect, Samede is not simply a matter of private law with a human rights law gloss: the resolution of the case goes to the heart of one of the most contested debates in contemporary British public life. That is, how far should British judges strike out on their own to create distinctively British human rights jurisprudence under the Human Rights Act 1998? This has been discussed on this blog in the context of the Brighton Conference and the on-going debate about a British Bill of Rights.

Whilst both public opinion, and figures central to the debate, such as Lord Irvine of Lairg, have come out in favour of using section 2(1), which requires British Courts to do no more than ‘take account of’ Strasbourg jurisprudence, to craft a distinctively British body of human rights case law, very little attention has been given to the issue implicitly raised by Samede. That issue is: where a novel question of rights interpretation comes before a domestic court applying the ECHR, and there is uncertainty as to whether the ECtHR would find a violation of human rights on the facts, is it open to a domestic court to extend the reach of human rights law further?

Obviously, a literal reading of section 2(1) Human Rights Act 1998 would permit such an extension of the protection of human rights in domestic law. In theory, the High Court could have declared that Art 11 ECHR encompasses the right to an indefinite or permanent protest on the public highway, however infeasible this might seem, in a manner that was consistent with parliamentary intention. However, the English courts have been reticent to take this path. In Ullah v Special Adjudicator Lord Bingham opined that the ‘duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.’ In even more concrete terms it was held in Quark Fishing that the House of Lords would not find a breach of section 6(1) of the Human Rights Act 1998 unless it was certain that Strasbourg would find a breach in the same situation.

The Samede decision would be the wrong context in which to depart from these principles. By focussing on the narrow issue of whether the right to protest permitted an indefinite or permanent protest with physical presence, the court successfully executed its duty towards both proportionality adjudication and the doctrine of precedent whilst avoiding becoming overly entangled in the issues promoted by the Occupy movement which are political par excellence.

It is rare that litigation subject matter is so politically polarizing. In fact, Samede is the type of case which should make us genuinely ask whether we wish courts to decide on issues of social policy at all. Reading the witness testimonies regarding the merits and demerits of the Occupy camp brings JAG Griffith’s maxim that the text of Convention rights ‘sound like the statement of a political conflict pretending to be a resolution of it’ sharply into focus. Moreover, Art 9 ECHR has a ‘stronger’ linguistic structure in relative terms, than Articles 10 and 11, and the High Court was cognisant of this. Whereas Articles 10 and 11 have second paragraphs providing for constraints on the operation of the rights on the grounds of inter alia necessity in a democracy, national security, territorial integrity or public safety, Article 9 does not carry the caveat shared by Articles 10 and 11 which explicitly limits ‘the exercise of these freedoms, since it carries with it duties and responsibilities’. This stronger structure is reinforced by section 13 of the Human Rights Act 1998 which mandates that ‘[if] a court’s determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right.’ In view of these three considerations it would have been manifestly unwise for the Court to extend the right to protest in the manner which the defendants in Samede sought without seriously bringing its own legitimacy into question.

If Occupy wishes to continue asking challenging and thought provoking questions of the utility of our financial and representative institutions in an effective way, it must do exactly that: question our constitutional system from the outside, as opposed to willingly participate.

Hayley J. Hooper is Lecturer in Law at Trinity College, Oxford

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