Two news items caught my eye over the weekend, both on the same topic but each identifying very different outcomes. The Midlands Express and Star reported (9th February) how the residents of Dudley were left to “pay the price of EDL protest” as local business lost hundreds of thousands of pounds when the shops closed as a result of a lock-down. The Observer the previous day reported that climate change protesters had been told to hire their own private security, the police no longer agreeing to facilitate the temporary closure of roads along the agreed route. In short – and obviously I imagine – both these stories shed light on who bears the cost of protest.
The focus of this short post is on the second story, though by implication it touches the first – since that in many ways is the reverse. The crucial point is that this chimes with a recent trend documented by many, including a piece I wrote in Public Law in 2013: the privatisation of protest regulation ( PL 100). The historic norm has been for regulation though criminal sanction and administrative decisions – think here of s.5 of the Public Order Act 1986 (abusive or threatening language) or of ss.11-14A of the same Act dealing with conditions and bans on both processions and public assemblies. Recent years however have seen the rise, in the UK and globally, of harassment injunctions, of libel claims by “wronged” companies, and of suits to recover damages for economic loss, to name but three. All of these – this shift from public regulation by the police to private law regulation by those directly harmed by protest and direct action – come at a cost: accountability, transparency and financial. Protesters no longer have public funding via criminal legal aid and are exposed to litigation strategies brought by companies as “repeat players”, in Marc Galanter’s words. As and when cases get to court, plaintiff companies need only prove the matter on the balance of probabilities, the civil law test, and may do so adducing hearsay evidence, admissible in civil claims much more easily. In short, protesters who engage in anything but what we might typify as “traditional” banner waving marches and assemblies run the risk of being sued. There is not, for example as there is in employment law, a “golden formula” protecting those engaging in legitimate peaceful, albeit disruptive, protest from legal claims. In fact, the opposite applies. The UK does not yet have quite the same experience of SLAPPs, but there are signs that certain companies have not ignored the potential to bring (what will ultimately be) unfounded claims to silence protesting dissenters, and to tie them and their resources up.
If protesters, seeking to engage in that most traditional form – a march along a High Street – are henceforth to fund and employ their own security, three points seem immediately evident. First – and while this might seem narrowly doctrinal, it is incredibly important – they will have no Human Rights Act remedies or claims against ProtestProtection plc. Such a company will undoubtedly not be, as the police undoubtedly are, a public authority. They will, as such, owe no public law duties to any of the protesters or indeed to any bystander – for whatever restrictions they impose on their Convention rights under Arts. 10 and 11, or for kettling them (though of course Austin excuses the police generally anyway). Instead, the law assumes that the protesters would be able in advance to insist on such terms in whatever contractual arrangement it manages to reach. While this may or may not be both realistic and actually achieved, it betokens a narrow and theoretically flawed way of thinking about rights: both that you literally pay to exercise them and that you contract to have them. It is of course in keeping with our neoliberal times: if you cannot afford a public good – your human right – you cannot have it.
That really leads to the second point. If it is right that protesters can be made to pay, it leads to a reconceptualisation of the right of protest that is not one based on public utility and social value – a right with a justifiable claim to instrumentality – but one founded on its intrinsic worth only to those individual participants. We thus move away from Meiklejohnian notions of protest and free speech (putting aside for these purposes arguments about whether the former is separate fro, or sub-category of the latter) – that it is valuable because it contributes to an informed self-governing participatory electorate – and we veer instead towards Dworkinian ideas about autonomy and dignity, very individualised asocial goals. Whenever rights are constructed as absent any element of the public, they struggle whenever battle is fought against rights or claims that can (more easily) be constructed as containing them. I have written about this in the context of privacy vs. free speech ( EHRLR 541). That argument of course is one founded more on, or concerned with, doctrinal, even practical precepts. The wider, better argument is surely that constructing protest as being about private entitlement misconceives the very nature of the right, and its goals, from the outset, a concern that is more existential. In short, it conveys a view of protest that is devoid of any meaningful public interest.
That leads to our third point. It creates a system of two-tier protection, rights for those who can afford to pay – and are willing to pay – and no rights for the rest of us. It pays no regard to the importance of the contested topic (if such matters can be ranked) and no account of the alternative means open to the group. It assumes a single, blue-line criterion for exercising rights – resources. It avoids questions, bread and butter to human rights lawyers the world over, of proportionality, setting up the ability to pay for the protest instead as the single demarcation of its likely realisation. When previously restrictions – bans or conditions on marches and demonstrations – would be assessed by means of balancing the rights claimed against, say, the disruption caused, we now have no assessment at all of such questions. The precursor to legitimacy is the bank balance. There is no value at all in a system of rights-protection that prefers ability to pay over social utility – that privileges privilege, in other words. Such a system runs the risk – in purely doctrinal ECHR terms – of falling foul of the non-discrimination guarantee in Article 14, as well as being open to those wider, more theoretical concerns. Alternatively, and counter-intuitively, as Val Swain pointed out to me, it creates a two-tier system around “good” and “bad” protesters. Those protests which the police categorise as unlikely to result in trouble will not be policed – that is the case for the climate change protesters here. Those whose marches and demos – the EDL perhaps in that other news item above – will have free-at-the-point-of-delivery state assistance. That cannot be right on any legitimate basis – and the risk of it backfiring is self-evident.
This creeping trend in respect of protest – is there another right that those engaging in it are forced to pay before enjoying it? – runs counter to the long-standing jurisprudence of the Strasbourg Court. In the Plattform Ärzte case, the violation was founded on the fact that the police had failed to provide adequate security to allow one group to protest, in the face of possible disruptive counter-protest. It is the basis for the positive obligation in Article 11, the duty not simply to refrain from restricting but to facilitate protest. The move, in the mind-set of the police, towards an acceptance of this was, in the UK, long and hard-won but since the policing of the G20 in 2009, and the various HMIC reports into it, it has become commonplace in the policing lexicon. The decision to opt-out, to be replaced by G4S or somesuch is retrograde indeed.