The threat to our right to protest

Robert Wilcox

If liberty means anything at all, it means the right to tell people what they do not want to hear”.

George Orwell

On 18 June 1984 – a literary coincidence, perhaps – thousands of striking miners gathered outside Orgreave coking plant. The miners sought to prevent lorries from leaving the plant in the hope that it would allow them to pressurise the government into keeping the pits open, and thereby safeguard their jobs and communities. This was their protest. Those miners were met by thousands of police officers, some with police dogs and others on horseback. The violence that followed led to the confrontation becoming known as the “Battle of Orgreave”.

At the time, the mainstream media embraced the narrative that it was the miners whom were responsible for the extent of the violence. 95 miners were charged with committing violent disorder and riot, but the trials collapsed. Over thirty years later, the Independent Police Complaints Commission issued a report which found “evidence of excessive violence by police officers, a false narrative from police exaggerating violence by miners, perjury by officers giving evidence to prosecute the arrested men, and an apparent coverup of that perjury by senior officers”. In the words of human rights barrister Michael Mansfield QC, it was “the biggest frame-up ever”.

Fast forward to today and there are those who are using the scenes in Bristol last weekend to justify the government’s Police, Crime, Sentencing and Courts Bill, which recently passed its second reading in the House of Commons. They say that it is precisely this sort of behaviour which the Bill is intended to combat. However, if we have learnt anything from confrontations between police and protesters over the course of history, both here and abroad, it is that we should at least be wary of one-sided, state-backed narratives. Avon and Somerset Police have already had to withdraw their claim that “one [police officer] suffered a broken arm and another suffered broken ribs”; this claim had apparently been made before those police officers were medically examined but was leapt upon by political pundits to condemn the protest against the Bill.

For all that, it is extremely important to acknowledge the truism that protesters can and do take matters too far, and acts of gratuitous violence on their part – when they do happen – should be called out. Too often, well-meaning individuals fall into the trap of dismissing or defending such acts because they do not wish to do damage to their cause. But one can advocate for a cause, whilst simultaneously condemning any violence carried out in its name. Freedom is always in danger in any society where ideals trump truth.  

The threat to our freedom is what makes the Bill so controversial. Amongst other things, it would abolish the common law offence of public nuisance and replace it with a statutory offence, one which specifically makes it a crime to seriously annoy or inconvenience members of the public. If a person were to be convicted of this offence, they could be imprisoned for up to 10 years. The Bill also grants additional powers to the police to dictate the manner in which a person can protest, through the imposition of time and noise limits. Anyone who claims to be a proponent of liberal democracy should be deeply worried by the prospect of these measures becoming law.

Article 11 of the Human Rights Act 1998 grants “everyone … the right to freedom of peaceful assembly and to freedom of association with others”. This right is not absolute; restrictions may be imposed in the interests of national security or public health, for example. Crucially, however, the Act stipulates that such restrictions must be necessary in a democratic society”. The jurisprudence of the European Court of Human Rights tells us that this means the restrictions must be proportionate, and no more than what is required, to achieve a legitimate aim.

The ostensible aim here is that of public order. But the content of these provisions is such that one would have very good reason to doubt that this is the government’s true motive. Comments made by the Home Secretary, Priti Patel, are illuminating. She described the largely peaceful Black Lives Matter protests against racial injustice and police brutality as “dreadful”. According to her, members of Extinction Rebellion, a global environmental movement committed to non-violent protest, are no more than “so-called eco-crusaders turned criminals”. One gets the sense that what the government really has an issue with is the act of protest itself. 

The proposed legislation would obviously give would-be protesters pause. It criminalises “serious annoyance” and “serious inconvenience” to members of the public but defines neither, affording considerable discretion to police officers to make arrests. All protests, to some degree, annoy or inconvenience some section of the public; any form of expression carries with it the potential to offend. Those who would exercise their right to protest should not have to do so with a draconian sentence hanging like a Damoclean sword above their heads. Nor should the police have the power to dictate to a person when and how they can express their personal convictions to the degree envisaged by the Bill. We are not yet a police state.

Revisiting the protest in Bristol, one can see how the government’s justification for the Bill simply does not hold water. The police have claimed that a minority of protesters were responsible for the violence and destruction that took place. They are currently attempting to track down and charge those protesters. This, in itself, shows that existing provisions of criminal and tort law (the body of law that addresses civil wrongs) must be sufficient for cases where individual protesters have allegedly crossed the line. If this were not the case, the police would have no legal basis for pursuing these individuals. And it is worth noting that the rest must, therefore, have been peacefully exercising a fundamental right. It is these individuals whose freedom of expression is threatened if the Bill becomes law. It is always worth remembering that when police and protesters clash, it is the police who occupy the position of initial arbiter for offences allegedly done to them. It is they who decide who and when to prosecute in matters in which they themselves have been involved.

Just a few weeks ago the Foreign Secretary, Dominic Raab, warned that democracy is “in retreat”. Apparently, Mr Raab is lacking a sense of irony. It is not too late to oppose the Bill. And if it seriously annoys or inconveniences government ministers that we do so, so be it.

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