Wednesday, 15 December 2010

Peaceful Protest

Recent days have seen demonstrations against the coalition government policy of increasing tuition fees for students going to University from 1st September 2012 onwards.  Whilst the vast majority of demonstrators appear to have conducted themselves properly there were a significant number of nasty events including one in which a car carrying Prince Charles was attacked.  Police tactics have also been controversial including "kettling" of crowds and releasing those "kettled" slowly so that photographs could be taken.  The legislation dealing with student fees is the Higher Education Act 2004 and Regulations made thereunder.  MPs have been voting on the Draft Higher Education (Higher Amount)(England) Regulations 2010.  The sponsor of the draft regulations is the Department for Business, Innovation and Skills and see their webpage dealing with Student Finance

The Police tactic of "kettling" was challenged in the House of Lords in 2009 - see Austin v Metropolitan Police Commissioner [2009] UKHL 5.  Their Lordships held that "kettling" did not breach the Article 5 rights of those who were so contained.  Interestingly, it is now reported that a fresh legal challenge to kettling is to be mounted - The Guardian 14th December.  It has also been reported that the use of water cannon has been under consideration - at least in the event of further protests - Telegraph .

Underlying all of this is the basic question - Do we actually have the legal right to protest?  The answer is far from a simple - YES.

Protest has a lengthy history and it is arguable that it has forced legislators to eventually bring about some beneficial changes. So far as English common law was concerned, a person was permitted to do that which was not prohibited by law.  Thus, in common law, the right to peacefully protest is a sort of negative right - we may do it because it is not prohibited.  However, protest is restricted by numerous legal considerations.  There is even old legal authority that certain kinds of assemblies or riots might come within the treasonable head of "levying war" under our immensely unsatisfactory law of treason: Dammaree's Case (1710) 15 ST 522 as well as older authorities.  The reign of Charles I saw use of an armed force aimed at the destruction of all brothels and in Henry VIII's time there was an insurrection for the purposes of fixing a wage rate.  In 1839, a "Special Commission" comprising Chief Justice Tindal, Baron Parke and Williams J was set up to try alleged offences committed during disturbances at Monmouth.  Subsequent centuries saw the activities of Chartists ; Suffragettes/Suffragists ; the Aldermaston MarchesMiner's Strike of 1984-5 ; riots against the "Poll Tax" ; Iraq war protest and G20 protests in 2009.  

Modern English law of protest is now governed mainly by either the common law (breach of the peace) and by the Public Order Act 1986 (as amended) but, of course, criminal offences may arise in connection with a demonstration - e.g. criminal damage (e.g. to Conservative Party HQ and the Statue of Churchill) and various offences against the person (e.g. common assault, assault occasioning actual bodily harm); obstruction of the Police etc.  The 1986 Act was passed to modernise the law following the Miner's Strike of 1984-5 which saw massive confrontations between Miners and the Police.  The 1986 Act contains sections requiring the Police to be give notice of marches; they may impose conditions and, to prevent serious disorder, there can be an application to the local council for a banning order which can be made but only with the consent of the Secretary of State.

Modern rights are not governed solely by common law or British statute law.  The European Convention on Human Rights has to be considered.  Tactics such as "kettling" raise concerns under Article 5 (Liberty and Security) but, on this, see the Austin case - link above.  Freedom of expression (Article 10) and Freedom of assembly and association (Article 11) are also engaged.  None of those rights are "absolute" since the Convention Articles contain permitted exceptions.  An excellent text on the European Convention is "Human Rights Law - Directions" by Howard Davis (Reader in Law, Bournemouth University).

Thus, it may be concluded that we are generally free to do that which is not prohibited by law but the law imposes considerable restrictions.  The European Convention on Human Rights takes us beyond the traditional English law position by giving us specific rights to liberty, freedom of expression and freedom of assembly and association but those rights are not absolute.  However, States do not have unfettered discretion as to how the rights can be restricted.  For example, under Article 5, the right to liberty may only be restricted for one of the reasons set out in Article 5(1)(a) to (f) and the restriction must be prescribed by law.

Addendum:  Law and Lawyers is delighted that Legal Week has highlighted this post.  Please see their excellent website - here.

1 comment:

  1. If a body of persons assembles and the police then confine it to a small area and apply pressure, disorder is very likely to break out as people struggle or try to resist the pressure. Offences will be committed, the event will be "broken up", and those involved will be criticised for their behaviour.

    That is why the "sit down" anti-nuclear demonstrations of the early 1960s, led by Bertrand Russell and others, caused such consternation to the authorities at the time: the tactic of sitting down set at nought the conventional police tactics, and largely preserved the reputations of those involved.

    Perhaps it is a pity that today's students have not learned from history.