By David Mead
With attention focussed on Leveson and libel reform featuring in the Queen's Speech, the right of the media to report freely hasn't been far from Westminster minds. It's puzzling then that free speech - in the shape of the right to dissent and to protest – has slipped from being under the political radar to actually disappearing.
Hidden away in the coalition's Programme for Government two years ago was the pledge to "restore rights to non-violent protest" – an agenda which was always the poor relation to the civil liberties big hitters, like establishing a commission on a British Bill of Rights.
So far we have seen a single piece of legislative tinkering to restrictions on protest around Westminster. It was a bit of an afterthought, coming not in the Protection of Freedoms Act but added instead at committee stage to the Police Reform and Social Responsibility Act. In addition there's been a solitary unsubstantiated policy announcement by the deputy prime minister in January 2011, and one consultation, about six months ago, angled towards promoting public order and police powers.
How is it that protest, free speech writ large and untainted by commercialism, has lost out? The most likely cause of the inertia comes from tension at the heart of the coalition. The pledge stemmed from the Liberal Democrats. Their manifesto committed them to restore the right to protest, with action on section five of the Public Order Act and on harassment injunctions. The Conservative manifesto was silent, unsurprising really as it was Tory peers in the wash-up who resisted the most uncontroversial change – the attempt to reinstitute the right to protest near Westminster, in what eventually became the Constitutional Reform and Governance Act. Equally, why do so when austerity measures make civil discontent more, not less, likely?
Protest has in reality taken a step backwards. The past couple of years have seen a series of cases eroding, not restoring the right. In Catt this week, the High Court decided that retention of data on protesters within the National Extremism Tactical Coordination Unit (NETCU) database neither engages nor interferes with the right to privacy under Article 8 of the European Convention of Human Rights (ECHR). Other examples would include Moos and McClure (where the Court of Appeal overturned the only successful kettling case to date) and the admittedly contentious decision in Abdul v DPP - the conviction under section five of the Public Order Act 1986 of those protesting in fairly vituperative terms ('baby killers', 'rapists', 'murderers' etc) about the war in Iraq at a homecoming for British troops.
All of this is against a backdrop of continuing disquiet with 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, 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.
Two years ago, just before the general election, I called for a Royal Commission into the right of peaceful protest. The need has become no less pressing in the interim. We need to turn the focus away from our 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 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.
A Peaceful Protest Act would also provide criteria to assess whether or not a protester is "peaceful"; its antonym is violence, not disruption or inconvenience. We should accept as legitimate forms of protest those which disrupt and obstruct us. This is part and parcel of a vital democracy - what David Feldman calls "coerced toleration".
This echoes Michael Sandel's concerns about markets: that they reduce our shared experiences and so diminish democratic life. For too long protest NIMBYism has dominated. We think nothing of the inconvenience caused by all-night queues outside the Apple store or the disruption on Saturday afternoons 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 individual 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.
Other key elements in any new legislative framework would be for a protest impact statement to accompany future proposals, explaining why a new, bespoke offence is needed to capture whatever discrete anti-social activity is currently of concern. History shows that knee-jerk laws in this area are prone to misuse or - perhaps worse - massive under-use. The need for new laws may not be down to legal lacunae but to evidential difficulties under existing laws, which a new offence simply would not solve.
With the growth in the commercialisation of public space, through sell-offs, a Peaceful Protest Act would also create a limited right of access to quasi-public land for the purposes of protest – as Tom Watson unsuccessful amendment to the Protection of Freedoms Bill attempted 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?
This is an abridged version of a blog post that first appeared on the UK Constitutional Law Group website in early May, entitled 'Be careful what you wish for – it may never happen'.
David Mead is a senior lecturer in the Law School at the University of East Anglia and a specialist on UK human rights law and protest. He is the author of The New Law of Peaceful Protest: Rights and Regulation in the Human Rights Act Era, published by Hart Publishing in 2010, and numerous articles and blog posts over the past ten years. He has been consulted on issues relating to protest by the Home Office, Chief Constables, Greenpeace, practitioners and activists.
The opinions in politics.co.uk's Comment and Analysis section are those of the author and are no reflection of the views of the website or its owners.