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.