As is evident from events in Tunisia, Egypt, Bahrain, Libya and Syria throughout 2011, some governments make no reservations about using any means possible to kill a protest. By comparison, the UK has a long history of peaceful demonstrations – some of which have played an important role in effecting social change. The rights to peaceful assembly and freedom of expression were firmly entrenched in the fabric of domestic law in 2000, when the Human Rights Act came into effect.
The Human Rights Act involves both positive and negative obligations. It requires government, as well as all public bodies like the Metropolitan Police, to take active steps to promote and protect freedom of assembly and expression, as well as negative duties to not obstruct peaceful protest.
Granted, these rights are not absolute. But they can only be interfered with in accordance with laws setting out any parameters to the restriction, and in a proportionate way that is necessary in respect of countervailing social needs. Guidelines published by the Organisation for Security and Cooperation in Europe say that a “high threshold will need to be overcome before it can be established that a public assembly will unreasonably infringe the rights and freedoms of others.” Despite these overarching obligations, a closer inspection of the legal landscape reveals – as the law reform organisation “Justice” has put it – “a bewildering array of overlapping powers and offences in relation to protest activities.” The UK might not use tear gas, tanks or guns to quell dissent, but in many other subtle ways, criminal and civil laws that are vague and broad and contain unnecessary conditions and a wide range of police powers are having a similar effect.
The starting point for the policing of protest is the Public Order Act of 1986. It unashamedly gives the police extensive control over demonstrations, including powers to impose conditions about times, places, routes and numbers. The act covers serious offences such as rioting, but also much less serious offences. Notably, the offence of ‘disorderly conduct’ criminalises insults and words – conduct falling far below the criminal threshold of any other crimes. This provision has resulted in events such as the police issuing a summons to a demonstrator against the Church of Scientology for holding a sign that said: “Scientology is not a religion, it is a dangerous cult.”
The Criminal Justice and Public Order Act of 1994 took further steps to criminalise behaviour not previously regarded as criminal, mainly by turning the civil action of breach of the peace into aggravated trespass. Ten peaceful protesters from UK Uncut were convicted of aggravated trespass earlier this month for staging a sit-in occupation at Fortnum and Masons department store in March to oppose tax avoidance.
In 2005, the Serious Organised Crime and Police Act criminalised demonstrations within the vicinity of Parliament without prior police authorisation, and converted what was once a minor public nuisance offence into the criminal offence of ‘Interference with Contractual Relationships’ attracting up to five years’ imprisonment. Although principally targeted at animal rights activists that had attempted to prevent animal research, it is suggested that the legislation could extend its application to other forms of protest with minimum parliamentary scrutiny. The European Court of Human Rights has identified the requirement of prior authorisation as a potential obstacle to freedom of assembly in circumstances where an immediate response might be required.
A wide range of other laws not intended to deal with protest are also being relied on to obstruct peaceful assembly and intimidate and deter people from expressing themselves freely. The Terrorism Act of 2000 infamously defines terrorism very broadly, to cover many types of non-violent protest action. Police have wide stop-and-search powers over people and vehicles anywhere in greater London for articles that could be used in connection with ‘terrorism’. It is reported that the police do not hesitate in relying on this power to intimidate and delay activists. Anti-Social Behaviour Orders, or ‘ASBOs’, were introduced into the legal lexicon in 1998 to restrict anti-social public behaviour such as swearing or drinking alcohol. An ASBO itself is not a criminal offence, but breach of one is. They too are reportedly widely used by police to deter protesters from acts even as minor as waving banners and handing out leaflets outside an arms fair.
In the sphere of civil law, there are many more ways to restrict demonstrations. On day one of the Occupy London movement, the owners of Paternoster Square pre-emptively revoked the public license to enter the land around the London Stock Exchange, rendering those who dared to liable for trespass. Although technically there is no right to protest on private land, it would not be unreasonable to suggest that restricting peaceful protests on land that is used publicly is a disproportionate restriction.
More recently, the Occupy London camp has been served with an eviction notice. Corporation of London is relying on the Highways Act 1980, which creatively defines highway to include not only the road but also grass verges and private property used as a public thoroughfare, and does not actually require proof that anyone is being obstructed. Such an approach is contrary to current European Court of Human Rights jurisprudence which suggests that peaceful protest on public roads should be protected, even if traffic is disrupted as a result. The outcome of the legal proceedings set for December 19th can only be speculated.
So it appears that despite the introduction of the Human Rights Act, in the UK there are still many ways to quell a protest. As a result of such legislation that is overbroad and excessively vague, the policing of protest has become heavy handed, peaceful protesters are being threatened, intimidated and deterred, and the law is being informed by order rather than rights. The student protests on November 9th were a prime example, when 4000 police were deployed to deal with 2000 students who peacefully marched through the city, the authorisation of baton rounds was publicly announced, and prior offenders were sent warning letters encouraging them to not attend.
It is therefore no surprise that the Joint Committee on Human Rights says that public order law should be reviewed, and that police should be better trained about the human rights regime in which they operate. Only then will it be possible that that the freedoms of expression and assembly promised to UK citizens can be properly realised.
Kym Beeston is a professional lawyer and student at the London School of Economics.