Opinion

Power without constraint – the UK’s paradoxical attack on protesting rights

Not content with the unprecedented restrictions over public behaviour which have arisen during the pandemic, the Government is acting on the advice of the Metropolitan Police Commissioner to expand the powers of the police against peaceful protestors. Although European nations have celebrated and striven towards basic freedoms since the oppression of the 20th century, the Tory majority envisages the right to peaceful protest as a matter of cold, utilitarian evaluation (only, seemingly, from the viewpoint of the state) and sly mitigation – ordinary privileges which can be swept aside under the guise of ‘public order’. Following the protests in Bristol and Manchester over the Police, Crime, Sentencing and Courts Bill, the rights-resenting wing of conservatism in the UK appears to be rethinking the role of protests in a modern democracy, while the population remains reliant on protest as its most direct form of communication with power.

The new Bill is about as expansive as its name suggests. Its most controversial provisions are those on the right to peaceful protest, which Labour has described as ‘draconian’, and where Theresa May urged reconsideration as ‘our freedoms depend on it’. These limitations give police the power to control the duration of protests, set ‘noise limits’, and issue fines to protesters who do not follow their orders. More concerning still, police will now be able to apprehend protest organisers on the basis that their protests did not conform to certain standards, even if those standards had not been communicated to the protestors. The Bill’s section on protest concludes with the introduction of a new offence of ‘intentionally or recklessly causing public nuisance’.

Causing a public nuisance? Could a more vague offence ever be envisaged? If I find ten other people who disapprove of a new piece of legislation, and we go out to protest, then it is inevitable that our acts will constitute a ‘nuisance’ to someone. A protest which does not at least risk causing a nuisance to others is unlikely to have any impact at all. While the Government attempts to reassure the Commons by emphasising the role of proportionality in the use of these measures, the new law clearly allows the police to control any protest – outrageous and publicly disruptive or otherwise. If the law is to be read in its most literal form, then the million protesters who marched against the Iraq War in 2003 could only ever be viewed as causing a public nuisance. The same could be said of the Vietnam Solidarity Campaign’s protest outside the American Embassy against the Vietnam War in 1968, the Suffragist campaign for equal voting rights in the 19th and 20th centuries, or, on an international level, the UK’s contribution to the Campaign for Nuclear Disarmament – one of the world’s longest-running protest campaigns. All these events were disruptive, risked public disapproval, and can now be looked back on with pride, as displays of our common values and dissent. The Conservative Party seeks to turn its back on these historic examples of public action, based on the faint notion that recent Extinction Rebellion and Black Lives Matter protests have ‘exploited gaps in the law which have led to disproportionate amounts of disruption’.

Disproportionate? When the police and politicians reflect on why these protests have been so disruptive, they should consider that protests will only be as visible and disruptive as the BLM marches were last summer if they are highly popular. What made the BLM protests disproportionate? Was the subject matter not important enough to justify some disruption? Granted there were a lot of people involved, which led to a significant practical effect, but people should not be deterred from voicing their opinions, whether you agree with those opinions or not, just because there are already too many people expressing that view.  In any case, it is bold to categorise the disruption as ‘disproportionate’ considering the near-limitless extent of the police’s vague new authority.

By enacting the Bill, Parliament will give the police the power to control which protests are given a higher platform than others, and in doing so vastly limit the right to peaceful protest which has played a central role in shaping policy over the years. The police will have a wealth of restrictive measures at their disposal to control or dissolve any protest which they see fit, despite their lack of accountability.

Furthermore, it is unclear what problems the Government is trying to fix. Politics is becoming more divided, and we face two of the greatest challenges in history in the recovery from the pandemic and climate change – challenges which have split and will continue to split public opinion for years to come. If the Prime Minister is surprised at the increasing instances of public protest, then he is perhaps less informed about the sentiments of the electorate than he might think.

If the Bill is to pass, which looks likely, the Government may face legal challenges to the compatibility of the legislation with protestors’ human rights. Article 11 of the European Convention on Human Rights guarantees ‘the right to freedom of peaceful assembly and to freedom of association with others’, subject to limitations for public safety and national security in a ‘democratic society’. If the Government fails to prove that the Bill is necessary for public safety or national security, subject to civil needs in a democracy, judges will be free to conclude that the Bill is incompatible with the UK’s commitment to universal human rights.

In spite of any ruling by the Supreme Court or the European Court of Human Rights, Parliament remains free to give effect to the Police, Crime, Sentencing and Courts Bill. The state of human rights in the modern UK Constitution remains one of ultimate political control. Judicial intervention in the protection of human rights has its limits, and the population must rely on political pressure as the ultimate safeguard against the infringement on their rights. The Prime Minister and the commissioners of the Police who have encouraged this new legislation would do well to recognise the irony here– how can the electorate make their disapproval known when it is that very same right to make their disapproval known which is threatened?

While our constitution has not evolved to such an extent as to fully protect rights in the legal sphere, these limitations on the right to peaceful protest have been exposed as a blatant attempt by a ruling political party to maintain control in a turbulent political era, without being subject to the organic forms of accountability on which that control is conditional. Our legislature finds its legitimacy through its representative credentials. The sovereignty of the people is delegated to representatives who are trusted to enact laws which represent our interests. While the flagship opportunity for individuals to participate in the democratic process is undoubtedly the General Election, many of us make our views heard far more regularly – by signing petitions, liking social media posts, supporting organisations with certain mission statements and, indeed, participating in public, disruptive protest. Without these day-to-day forms of expression, our representatives would be free to drift from the principles and interests they were elected to represent, and democracy in the UK could easily mould into elected dictatorship. It need not matter that the right to freedom of association exists as an intrinsic element of our human existence, or as a political ideal. If it is the people who are sovereign, then the right to communicate disapproval for the actions of Parliament through protest exists as a matter of inalienable fact – a fact which persists so long as our legislature calls itself ‘representative’. It would be conspicuously paradoxical if the most direct form of public expression is controlled, or even extinguished by those who are trusted to represent the people’s interests and listen to our opinions.

Image Credit: Pressenza