Tag Archives: peaceful protest

FLAGGING UP A MISCONCEPTION

The late, great John Peel was renowned for playing records at the wrong speed, so much so that a compilation of music that he championed through the 70s and 80s was called “Right time,, wrong speed”. The same might be said for the Supreme Court following judgment yesterday (Lord Kerr giving the single speech) in DB v Chief Constable of PSNI, the case arising out of the policing of flag protests that occurred in Belfast for a few months in late 2012 and early 2013. This blog is not going to be a detailed summary of the decision, something Leanne Woods has provided today on the UK Human Rights blog. Instead, it offers an alternative perspective on the critical part of the judgment that goes to the scope of Art 11, which protect peaceful assemblies, and the nature of the police’s duties and power in relation to such protests. The analogy with John Peel is apt: the Court was correct in the view it reached on the (non) policing of the loyalist flag protests but its reasoning is flawed. Indeed, that reasoning – unless nipped in the bud – opens up the prospect for restrictive policing, in Northern Ireland and on the mainland, in the future.

The gist of the case – a judicial review – was that in deciding they did not have the power to take preventive action in respect of protests that had not been notified under s.6 of the Public Processions (Northern Ireland) Act 1998, the police, specifically ACC Kerr (Gold Command) had misconstrued their legal powers. In doing so, they misunderstood the nature of Art 11 and undermined the 1998 Act. The Chief Constable lost in the High Court – Treacy J deciding that in considering whether to stop the marches, ACC Kerr felt he was inhibited from doing so by the 1998 Act and thus “labouring under a material misapprehension as to the proper scope of police powers and the legal context in which they were operating” – but succeeded before the Northern Ireland Court of Appeal (Sir Declan Morgan LCJ, Girvan LJ and Weir J [2014] NICA 56). There, the central issue was whether the police response to the parades was based on the need to take account of “the possibility of violence and disorder giving rise to article 2 risks both in the immediate vicinity and in the wider Northern Ireland community”.

The Supreme Court reversed the NICA, and found for DB. There are interesting discussions in the judgment on operational policing discretion in the context of protests (at [71]-[76]) but this is not our concern. In Lord Kerr’s view, in their handling of the flags protests, the PSNI misconstrued their legal powers to stop parades passing through or adjacent to the nationalist Short Strand area of Belfast. The extent of their powers and indeed duty (under s.32 of the Police (Northern Ireland) Act 2000, a general duty to prevent the commission of offences) was not “legally complicated” ([65]), though as Lord Kerr conceded, this was perhaps clearer only in hindsight. I too think the legal position is relatively straightforward… only not in the way the Supreme Court did.

The nub of the finding – and we see this in several places – is that a protest that is not notified is illegal and, as a matter of law, that this then required the police to take preventive action. The police – and this is the Court’s view, albeit very much a paraphrasing – were doubly wrong: not only did they not have any power to prevent marches that had not been notified, but they had a duty to prevent them.

Contrary to ACC Kerr’s stated position, they could indeed be stopped solely because they were unnotified. There certainly was such a thing as an illegal parade under the Public Processions Act ([65]).

It is here where I think the Supreme Court errs. It is the case that where the proposed organiser of a public procession fails to give notice to the police, both the organiser and (in Northern Ireland) anyone who takes part in it leave themselves exposed to arrest under s.6(7) of the 1998 Act. Does this mean the protest march is illegal or unlawful? The law needs to distinguish actors from event. While from a legal perspective it must be hard to disaggregate “the march” from those taking part in it, conceptually they remain distinct. In fact, even in the strict legal sense, the two are not (necessarily) coterminous. It is only an offence knowingly to take part in an unnotified march; s.6(8) offers a defence for anyone arrested under s.6(7) to show that they did not know of, and neither suspected nor had reason to suspect, the failure to notify the police. It is very unlikely surely that, had there been no notification of the Women’s March in Belfast a week or so back, all of the several hundred women who were there would have known that. Yet, Lord Kerr’s approach – the eliding of protest with protesters, each and both acting unlawfully – risks empowering (and indeed actually requiring) the police to break up each and every march where the organiser has not given the correct notice.

This category error leads to an analytical failing. In seeming to define out from the scope of the protection of Art 11 all protests that are “illegal”, Lord Kerr has misconstrued Strasbourg jurisprudence. His construction of an illegal protest as a legal entity, rather than unpeaceful protesters, is not one that has ever been accepted by the European Court of Human Rights. The notion of an illegal or unlawful protest – whether parade, march, assembly or some other repertoire of contention, in Charles Tilly’s terms – has no pedigree. There is clear and constant case law, starting perhaps with Ezelin in 1991 – where it was asserted that the right in Art 11 was so important that it could not be restricted “so long as the person concerned does not himself commit any reprehensible act” ([53]) – that asserts that

a situation of unlawfulness, such as …the staging of a demonstration without prior notification, does not necessarily (that is, by itself) justify an interference with a person’s right to freedom of assembly. In other words, the absence of prior notification and the ensuing “unlawfulness” of the event, which the authorities consider to be an assembly, do not give carte blanche to the authorities; the domestic authorities’ reaction to a public event remains restricted by the proportionality and necessity requirements of Article 11 of the Convention (Novikova v Russia [2016] ECHR 388, [163])

While this does not mean that the parade or protest per se is immune from policing intervention, whether that be prevention (in advance) or dispersal while it is taking place, it does mean that any such interventions must be measured, proportionate and balanced. If challenged, as here, that is something that must be assessed ex post. It is engaging in that analysis that the Supreme Court singly fails to do. Instead the Court elevates a principle found in Molnar (at [37]) – that “the absence of prior notification can never be a legitimate basis for crowd dispersal” – to its reverse. Lord Kerr concludes from that the “ECtHR has made it clear that, in general, a requirement to notify an intention to hold a parade and a decision to disperse a parade or protest which has not been notified will not infringe article 11” (at [61]). That is not what Molnar holds at all, and neither do subsequent cases. In Berladir, the Court made clear that where there was no prior notification the decision “to disperse the ensuing demonstration solely because of the absence of the requisite prior notice, without any illegal conduct by the participants, may amount to a disproportionate restriction on freedom of peaceful assembly” (at [43]). In Primov, the Strasbourg Court said this:

While rules governing public assemblies, such as the system of prior notification, are essential for the smooth conduct of public events since they allow the authorities to minimise the disruption to traffic and take other safety measures, the Court emphasises that their enforcement cannot become an end in itself. In particular, where irregular demonstrators do not engage in acts of violence the Court has required that the public authorities show a certain degree of tolerance towards peaceful gatherings. Consequently, the absence of prior authorisation and the ensuing “unlawfulness” of the action do not give carte blanche to the authorities; they are still restricted by the proportionality requirement of Article 11. Thus, it should be established why the demonstration was not authorised in the first place, what was the public interest at stake, and what were the risks represented by the demonstration (at [118]-[119]).

The correct approach for the Court here would have been, having found that notice had not been given, not immediately to deem the march wholesale as illegal, thus requiring police intervention, but to move to the second stage of any analysis where it is alleged there has been an interference with a qualified right: to assess whether dispersing or preventing it would have met a pressing social need. That is why this is the right record at the wrong speed. On any reasonable assessment, the PSNI had the power in law to step in and to regulate the flags marches, even quite possibly to have imposed quite restrictive constraints, and were mistaken in both asserting they did not, and then policing the marches on that mistaken basis. Where the Court took a wrong turn was in concluding that this power – duty in fact – arose simply because an organiser, or small cadre of organisers had deliberately flouted the need to give notice. That approach removes automatically an individual’s right to peaceful assembly.

By construing s.6 of the 1998 Act as it did, the Supreme Court risks instituting a policing scheme that breaches the ECHR. In fact, the very structure of s.6 leaves open a human rights challenge, absent this Supreme Court decision. Since it is an offence for anyone taking part in an unnotified march to be arrested under s.6(7) then, assuming either sufficient police manpower or a small enough march, everyone could be arrested. The march would naturally come to an end – for want of any participants – and would do so irrespective of it being deemed an illegal march, under the ratio of DB. The fact that at the police station a handful of minutes later or later at trial, every participant succeeded in the s.6(8) defence – proving they did not know of the failure to notify – would arrive too late for the right to peaceful protest effectively to be exercised. The essence of the right had been extinguished at source on the day by mass arrests, notwithstanding later individual criminal vindication.

That risk is exacerbated were that ratio to be transferred across unthinkingly to the mainland. Here, in England, the scheme in the Public Order Act 1986 has one critical difference. It is only an organiser under s.11 who commits an offence if they fail to give six days notice (s.11(7)); participants do nothing wrong simply taking part in an unnotified march. This makes the notion of an illegal march or unlawful protest yet more problematic. Most people taking part in a march that had not been notified would have committed no crime at all.

Whether in Northern Ireland or elsewhere, constructing the law such that everyone on a protest vicariously suffers the flaws and omissions of others, of the organisers, seems to fly in the face of the individualised nature of human rights. This is not the first example of the courts sanctioning a collective policing response to an individualised concern or risk. I wrote this about the House of Lords decision in Austin, the kettling case. This decision

edges us closer to a position of “illegal gathering”, a concept hitherto unknown in English law but all too familiar elsewhere…The historic position taken in English law is to allow the targeting of individuals either by turning them away or permitting them to be arrested but to confer immunity on the group itself as a separate entity. What we see in Austin is effectively collective guilt by association–and the larger the potentially guilty group (that is the larger the numbers of those threatening or becoming violent), the more defensible it is for the police to exercise indiscriminate control ([2009] EHRLR 376, 393).

When the European Court sanctioned that approach when Austin reached it. It is to be hoped that if DB is taken there, Strasbourg adopts a very different approach to the idea of “illegal protests”.

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The Dog That Barked Rather Quietly: The Role of Law in Social Movement Studies

On Wednesday this week (27th) I gave a talk at a symposium organised by UEA’s School of Politics, Philosophy and Language. The theme of the day was media, activism and politics. I rather went against the grain and spoke about the role & relevance of law for social movement scholars, and activists. I plan in this short blog to outline a couple of the keys points I made

I am a Johnny-Come-Lately to social movement scholarship, having been almost all my academic life rather a dull(ish) doctrinal lawyer, albeit one who has dabbled in the socio-legal aspects of protesting. Probably less of the come-lately, and more of the “train delayed not yet arrived” if I am being honest.

That said, what I have gleaned so far from reading the literature – immersing would be too strong a term – on law and social movements is a double-whammy omission:

  • the dominant focus of law and social movements scholars (whether lawyers or sociologists) is on using law as part of the group’s strategic armoury, what Charles Tilly referred to as repertoire of contention. This, I argued, marginalises its relevance to a whole host of other issues that social movement scholars look at as, say, a structuring force. As Michael McCann put it in his review piece in the Annual Review of Law and Social Science: “many of the more recent studies build on relatively narrow but unarticulated conceptions of law, mostly focusing on litigation outcomes and the roles of lawyers.” (McCann, 2006).
  • and even within the literature in using law, the focus is almost exclusively on legal mobilisation, that is law before and in the courts, either proactively or reactively. This too offers only at best a partial explanation of the role of law within the armoury of an SMO.

Even then, the appearance of law in the literature is still rather nascent, perhaps only in the last decade or so and is very much a US-driven phenomenon. For example, The Blackwell Companion has nothing in its index for law, two pages listed for law enforcement, and two for “justice systems”, and eight pages listed where “legislation” is mentioned. By contrast mass media, mobilisation and movement participation each have entries into tens, along with sub-entries. There are honourable exceptions this side of the pond, such as Graeme Hayes at Aston or Brian Doherty at Keele, and Chris Hilson in the Law School at Reading.

The talk was in three parts. The first sought to provide various alternative perspectives or conceptualisations of law, in addition to it being broadly a study of rules (Where do they come from? What do they assert? How are clashes of rules resolved?). Again as McCann put it “…much scholarship is committed to making claims about law without clearly thinking through the complex, multiple dimensions of what often are recognized as law and legality” (McCann, 2006). I offered law as binary – are you an employee, yes/no? – and law as constitutive, creating relationships, of rights, of duties, establishing definitions and categories. Law is also a schematic – establishing interdependent framework of rules – and structuring responses. We might also conceive of law as a formalised system of dispute resolution, offering order, not the chance of chaos. Lastly, we might conceive of law as concerned with values and norms, with a legitimating function.

The next offered some suggestions as to how law – even in its most rule-maker guise – could shed light on the various interests or research questions SMO scholars have, broadly (and very basically):

  • Initiation: what might trigger someone into acting, and what process is behind turning that atomised individual anger into collective action – how and why and when does a group emerge, and mobilise?
  • Organisation: what form does and should a group take to maximise strength? How does it grow – how does it represent itself / is it represented in order to garner support? How are internal tensions managed?
  • Goals: what are the group’s aims? What counts as success? What factors – opportunity structures – determine success?
  • Operation: what does and should the group do to achieve its aims? What strategies or tactics – repertoires of contention – do/should they adopt? How, why and when might strategies change.

Just taking a few of those. So clearly the law can provide an initiating trigger – such as the legal ban on certain groups voting or on same-sex marriage. Law might provide the background structuring canvas – in common law systems, landowners cannot be forced to use their property or to rent it out; it can, broadly speaking, sit vacant – so a whole squatting movement might grow. It might not be the law on the books that is the problem but the law in action – the discriminatory use of vagrancy laws in the 1970s gave rise to Scrap SUS. Law might also help frame the claim – using the language of rights (disability rights: Vanhala, 2002) or TaxJustice. Law might impose an organisational straitjacket, requiring certain forms (and this is especially so in the labour movement) such as an “organiser” under certain public order laws. It might provide a structural suggestive skew towards more formal organising – such as we can see in the UK in the Transparency of Lobbying, Third Party Campaigning and Trade Union Administration Act 2013 which cut by 2/3 the amount third parties can spend in a general election campaign, while holding the line for registered parties.

It is at the operational level that there has been most focus. SMO choices tend to fall into institutional (e.g. political campaigning, lobbying, litigation) or confrontational, carrying out a range of repertoires of contention or protests, over a spectrum from peaceful to civil disobedience to non-violent direct action to outright violent insurrection. Most of the focus, both here and more so in the US, has been on legal mobilisation, or litigation strategy – whether pro-active, such as bringing JR – as in the recent PLP case – or reactively. Within that latter, Vanhala (2011) helpfully distinguishes strategies of active reaction or passive reaction. The former is where one seeks out by formal acts of NVDA or civil disobedience – awaiting a prosecution (or perhaps civil SLAPP: Hilson, 2016) then to co-opt the court process for a “political” defence, airing grievances more widely – for both internal and external mobilising purposes (on which see Doherty and Hayes generally). There are clear problems associated with such approaches. We might think of Galanter’s (1974) idea of repeat players v one-off hitters and the fact that activists ‘must articulate their claims so that they fall within the categories previously established by an amalgam of constitutional, statutory, administrative, common, and case law’ which in turn ‘shape the progress and outcome of movement claims in important ways’ (Andersen 2006). Another would be the linked problem of judicialisation. As Hilson (2016) puts it, “the whole point of a SLAPP suit is to convert a matter of public interest into a technical private law dispute, robbing it of political framing and providing a legal one instead”. In short, the legal process might not be sufficiently attuned to the bigger picture, to the “real” claim or concern, or the group’s goals – what we might term doctrinal disjuncture. In the Cornerhouse challenge to the SFO decision to discontinue the investigation into alleged corruption by BAe Systems in relation to the Al Yamamah defence contract with Saudi Arabia, the applicants lost (simply) because judicial review is not responsive to a merits-based challenge.

The paper neared its close by offering a more enriched and nuanced legal terrain for SMOs to traverse, located within the earlier framework – differing conceptions of law. This paper will highlight just two, of those four. The preference for law over disorder is most easily seen in the formalised system of dispute resolution, without resort to force, the idea really of legal mobilisation. In contrast we can see law as favouring if not disorder per se then disruption. We need think no more than to the disruptive – preventive – capacities of modern policing, and mass arrests (without subsequent charge) or bail conditions – all in fact sanctioned by law. Alternatively, law itself can be used as a disruptive repertoire – and I am thinking here of the mass compliance with the Westminster notification system called for by Mark Thomas. Law acts with constitutive power when it, for example, dictates the availability of places to mobilise or hold actions by conferring the status of “public” or “private” upon it, with all that entails for access. It also defines what can be done at place X, rendering the ordinary and commonplace an act of resistance: it is not unlawful to read out the names of the dead, but it is if you do so at the Cenotaph within the 1km boundary of Westminster without notification. Legal rules thus construct political deviance: while no one has been arrested for playing hopscotch, protesters have been arrested for chalking on the pavement, and charged with criminal damage (Hardman [1986] Crim LR 330).

The paper ended by re-asserting that law was a vast resource for both SMOs and those studying it but that at the moment, we were scratching the surface in only one or two areas. The problem, I argued, might be that law is not fully or usually thought of – either by its scholars (though far less so now) and others – as a social construct, and a reflexive one at that. The focus perhaps had been on what law was – and less on what it did or was capable of doing. Previously law had been seen as something in parallel – whereas I am offering law in an undergirding role.

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Law and Social Movements

Yesterday (27 April) I gave one of two keynote speeches at a UEA Politics symposium on Media, Activism and Politics. The full list of speakers is here Media Politics and Activism FINAL poster   I hope to blog a few lines on this in the next few days but for now, for anyone interested, the slides are here –
PPL SYMPOSIUM 2015 MEDIA ACTIVISM AND POLITICS

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SUBMISSION TO DEPT. FOR BUSINESS INNOVATION AND SKILLS – REFORM OF INDUSTRIAL PICKETING LAW

CONSULTATION ON TACKLING INTIMIDATION OF NON-STRIKING WORKERS

DEPARTMENT FOR BUSINESS INNOVATION AND SKILLS

TRADE UNION BILL 2015

I am Professor of UK Human Rights Law in the Law School at the University of East Anglia (UEA), a Chair I to which I was first appointed in 2012. Over the past twenty years, I have written extensively on protest/public order and the law, including the main academic treatise The New Law of Peaceful Protest: Rights and Regulation in the Human Rights Act Era (Hart Publishing 2010, )as well as on the Human Rights Act and on policing more widely. I should also declare an interest as a member of the University and College Union (UCU), and Vice-President of my university branch. I am writing in an academic capacity.

I wish to make only a short comment on the plans to regulate industrial picketing yet further. In my view, the consultation document suffers from two defects: first, it fails to identify with enough precision why further legislation is needed (though I accept that consultation responses may do so) and, secondly, it is silent on what must (obviously in my view) be the knock-on consequences for the right to protest more widely. It is not an in-depth dissection of the proposals (such as offering the view that democratic accountability and reputational protection – para 26 – are matters surely for a union to opt for, not to have foisted upon it?).

Before doing so, it is surely worth noting some key points from the Article 11 jurisprudence of the Strasbourg Court, the European Court of Human Rights:

• The right to “peaceful protest” is not equated with lawfulness; a protest can be unlawful – say, for breaching permit requirements – but remain peaceful. The consultation document in para 8 seems to conflate the two, wholly incorrectly.

• There is no such concept as an unlawful or unpeaceful assembly; it is an individual right and, as such, the right is not lost by the (violent) behaviour of others; it is lost only if the person is (or perhaps intends to be) violent

“The guarantees of Article 11 of the Convention apply to all assemblies except those where the organisers and participants have violent intentions or otherwise deny the foundations of a “democratic society”… Any measures interfering with freedom of assembly and expression other than in cases of incitement to violence or rejection of democratic principles – however shocking and unacceptable certain views or words used may appear to the authorities – do a disservice to democracy and often even endanger it… If every probability of tension and heated exchange between opposing groups during a demonstration were to warrant its prohibition, society would be faced with being deprived of the opportunity of hearing differing views on any question which offends the sensitivity of the majority opinion. The Court would add that a demonstration may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote. (Faber v Hungary [2012] ECHR 1648 [37]-[38])

• The right to freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society (Promo Lex v Moldova [2015] ECHR 216 [21])

• Where demonstrators do not engage in acts of violence it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance (Oya Ataman v Turkey [2007] ECHR 493 [42])

• If every probability of tension and heated exchange between opposing groups during a demonstration was to warrant its prohibition, society would be faced with being deprived of the opportunity of hearing differing views (Öllinger v Austria [2006] ECHR 665 [36]

 

1. What is the gap?

The consultation identifies (para 4) various unsavoury incidents said to have occurred on picket lines, noted in the Carr Report of 2014. Bar the last, photo-shaming of non-strikers, it is hard to see why the police would not be able to arrest anyone reasonably suspected of committing them. Each is (either clearly or more than likely) a free-standing crime, as the consultation points out later on p.7.

What more is planned to be added, and why? The police can perfectly properly arrest. If they have no evidence or indeed (para 8) “no direct evidence of criminal behaviour” then creating a greater range of offences will either not solve the problem or will be so widely drawn as to capture a whole host of obviously and clearly legitimate activity. In short, as I comment in my book, the problem is less likely one of insufficiency of laws but inadequacy of enforcement; the latter is not solved by dealing with the former.

There is nothing that should prevent officers both (i) arresting individuals for ostensible criminality and (ii) facilitating the right of every one to protest peacefully something which the document seems to presume is mutually exclusive. They are not and indeed it could be argued are actually mutually reinforcing. Further, in general terms arresting those who are violent raises no Art 11 concerns since such an individual has removed themselves from the scope of the right by ceasing to be peaceful, while arresting those who are “merely” intimidating non-strikers may likely be a proportionate response and so protected under Art 11(2).

It is, in other words, hard to see what a new offence of intimidation on the picket line would add: using threatening or abusive words causing another to fear immediate unlawful violence is already an offence under s.4 of the POA 1986, whereas if someone were “merely” harassed or alarmed by such language or behaviour, that too is an offence but under s.5. It would have to quite low level intimidation – and therefore (arguably) not actually intimidation at all or certainly not intimidation that the law should punish – for that test not to be met.

It would be hard to justify punishing such language as being a proportionate restriction on a striker’s free speech rights (under Art 10) given, in the words of Lord Justice Sedley in what is a well-known case of DPP v Redmond-Bate [1999] EWHC Admin 733 at [20]
“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.”

2. Wider ramifications

What is lacking in the consultation document is any analysis or even recognition that – where change is planned for what it refers to as “leverage” tactics i.e. away from the place of work – either (a) these are already regulated quite heavily by the general law relating to protest or (b) there would need to be tandem schemes, for industrial protests on one hand and for other protests on the other or (c) that the planned changes for industrial protests are a portent for change more widely.

Developing all that a little:

Very few consider the current framework to be especially pro-protest; indeed the government (albeit as part of the 2010-2015 Coalition) has previously pledged to restore the right to non-violent protest, indicating surely there were problems? The legislation passed in that period – removing “insulting” from s.5 and altering the position for protests around Westminster – has not, I would suggest, done a great deal and certainly not as much as required. The law and, more importantly, (policing) practice largely does not tend to favour protest, certainly not forms of protest outside the archetypal norm of marching and assembling.

It is hard to see quite why new and greater restrictions are needed but only for industrial protests away from the picket line. There will always be consequential harm for third parties, or the risk of it at least – the fact that it arises in the context of an industrial dispute does not seem to alter the underlying dynamics sufficiently.

Taking that second point, a few seconds’ thought would surely be adequate to dispel any idea of trying to initiate a regulatory scheme solely for industrial protests. There is under the Public Order Act 1986, no current need to notify the police of anything unless a public procession (march) is being planned; static assemblies are immune from that six-day prior notification rule. There is literature indicating that schemes of notification ultimately often become ones of authorisation, and where organisers concede more in negotiations “bargaining in the shadow of the law”. If we wish to tie the courts up with litigation (one avenue that springs to mind would be an Art 14 challenge to the differential rules as between industrial and non-industrial protests, something where the onus would be on the government to show a proportionate link to the different harm suffered in industrial disputes), to provide academic lawyers with hours of fun and to render the police in stasis as they worry about definitional scope, then that would be the route to go. If not….

The fear that this would lead, by design or default, to greater restrictions on the democratic right of us all to protest, to dissent, and to put across an alternative point of view, even forcibly – something we must surely acknowledge is a public good, irrespective of the temporary, perhaps directed harm suffered privately? – must be a real worry. It is something the Department has simply failed, entirely, to address. An urgent response on that seems to me an eminently reasonable demand.

David Mead, 8/ix/15
Professor of UK Human Rights Law,
University of East Anglia,

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INAUGURAL LECTURE MARCH 2015: “Turning the world upside down and televising the tarpaulin revolution: what might ‘Protest Studies’ look like?”

I delivered my inaugural lecture at UEA on 3rd March. I didn’t have a script but some scribbles and bullet points. The following is thus not quite a transcript but is in effect what I said – with some points added that I simply forgot to make, or where some expansion would assist, and the introductory thanks to my friends and family omitted. I’ve added some hyperlinks where I think that will help too. The Prezi slides that accompanied the lecture can be found here https://prezi.com/5r9dw_khziak/inaugural-lecture-3-march-2015/ The lecture ended with me looking forward ten or twenty years, when I expressed the hope that by then a fully fledged inter-disciplinary course, drawing on the elements the lecture touched on, might be in place. I hope I have attributed properly to the works of others but where I have not – and this lecture was put together from a wide variety of sources over a two week period, apologies and I will rectify if you let me know. It is rather long, almost exactly 10,000 words.

  1. Introduction

I hope the next 45 minutes will clear up the various elements in the rather lengthy title – something that has rather been my forté over the years. What then will we cover? In short, this is going to be a whistle-stop tour of various other disciplines, rather like an open top, sightseeing bus tour, with 15 minutes at the Tower of London, 10 at the London Eye and 15 at Madam Tussauds. In short, it is going to offer a view of what an inter-disciplinary course – Protest Studies – might look like, and so is seeking to do two linked things: from the perspective of a lawyer interested in protest and public order, looking at other disciplines and seeing what, if anything we might learn; in reverse, what insights can law offer to historians, political scientists, sociologists, communication theorists and to those who immerse themselves in the study of popular culture, to name but a handful. I’m not going to delve too much into what “protest” means – I tried that about ten years ago (in turn looking at motive, forum, content and actor) not entirely successfully, and haven’t bothered since…but I think it is ripe for re-exploration! Defining protest is in fact the very first hurdle, one that lawyers, political theorists and others are interested in. Unless we can define what it is we are looking at and thinking about, we can’t really hope to study it or have insights from others. It is rather hard to define and in fact few attempts have been made – English law historically didn’t need to. There was no separate category – the law regulated marches and assemblies, without reference to their possible political nature. All that changed first with the Human Rights Act when the right to protest, an amalgam of the right of free speech and the right peacefully to assemble, was protected – so we needed to know what such a thing was – and also, for the first time, law came to regulate “demonstrations” (around Westminster) so we needed a distinct category. In my book I offered the following:-

Screen Shot 2015-03-06 at 18.35.33

 It’s made more difficult because a protest is not self-evident: wearing certain colour nail varnish is not generally a protest but it is if it’s rainbow coloured varnish worn by an athlete in the Winter Olympics in Sochi, protesting against the steps Russia has taken against gays and lesbians. Ditto just sitting on a bus – but very different if the bus is driving through Montgomery Alabama in 1955. To cut to the chase, and to give us at least a working conceptualisation, Protest Studies looks at people getting cross

  • What sorts of things do they get cross at or about? Is it in fact what we define as “protest”
  • Who are the people getting cross and why?
  • What might they be able to do about it?
  • How might they seek to improve matters?
  • What might happen to them if they do?
  1. A short diversion through some law

There are at least four elements to a protest

  • someone to protest
  • somewhere to protest
  • something to protest about
  • some protest message

The law attaches in different ways to each of those as well as to a fifth, what happens when someone protests. Without dwelling on any in any depth on any of them, the sorts of things I am currently interested in, from a legal perspective, would be:-

  • Issues of place and access, especially to what seems to be public spaces – like an old style high street or civic space – but which in fact are privately owned and managed, mostly with very limited access – on terms and conditions stemming from the contractual licence to enter –save for the purposes of for example shopping, what Anna Minton calls “malls without walls”. We might also here think of the JR challenge mounted by Liberty to the fencing off of Parliament Square.
  • Surveillance – both undercover and technological, to which we will return.
  • Costs/privatising control: recently, the Met twice refused to police a protest in London by not agreeing to road closures for a march they had assessed as low risk. Had the police not reversed that decision –under some pressure from a host of quarters – the organisers were going to be forced to pay for private security. This all raised a host of wider issues about the costs of the cost of protest, about which I blogged last month.
  • The rise in police powers of control and constraint. This has been almost all one-way traffic – though we should note the watering down of very wide restrictions for protests around Parliament and the removal of “insulting language ” from the list of offences in s.5 of the Public Order Act 1986, alongside of course the HRA itself. The key here though is the proliferation of general laws, not designed with protest in mind, but which come to be used against them.

Most recently, anti-social dispersal orders (created in 2014 in the Anti-social Behaviour, Crime and Policing Act) have been used to clear  occupying protesters on the Aylesbury Estate in Southwark and peaceful demos against fur trade and Israel in Liverpool, both despite specific protection for freedom of expression in s.35 of the Act.

  • That policing power is facilitated by poor or lack of definitions and consequent wide discretion – most evident recently in Parliament Square in October 2014. Here, the police confiscated pizza boxes and tarpaulin under powers entitling them to direct people not to use sleeping bags, mattresses or “other similar item designed, or adapted for the purpose of facilitating sleeping in a place.” There must of course be serious question marks over such items being included in that definition, and as being in the mind of the drafter.

This is all part of the problem now well-recognised by socio-legal scholars of “law in the books” vs. “law in action” and informal policing “in the shadow of the law”.

HISTORY

Until recently, there was little cross-over between law and history in the area of protest. The history of the law has been singularly uninteresting for both lawyers and historians; both have tended to focus on single events or laws, though we might recall Richard Vogler’s 1991 study “Reading the Riot Acts” or Adrian Randall’s 2006 study “Riotous Assemblies: Popular Protest in Hanoverian England” There has been no longitudinal British study of the development of both protesters and of how protests are controlled or facilitated, and nothing akin to the work in USA by e.g. Tabatha Abu El-haj and John Inazu on what has shaped the development of what they call the “forgotten” or “neglected” right of assembly. We therefore have no idea of what might trigger changes in law – restriction or liberalisation and whether we can predict from the past. My own interest is whether we might somehow plot legislation against economic prosperity – though what would that tell us? Is it coincidence that the two main pieces of public order legislation in the UK are from mid 1930s and mid 1980s? On this, there is an interesting new book – that I have not yet read: Alasdair Roberts (Suffolk University Law School) The End of Protest: How Free-Market Capitalism Learned to Control Dissent which plots history of economic unrest from 19th century to present against government reaction and strategies for control. The last decade has seen a growing sub-specialism, certainly here in the UK, of “protest history”, looking at events as disparate as highland crofters’ resistance in the mid 19th century; the London Corresponding Society and the coffee houses of Georgian London; reinterpretations of the Swing Riots in southern England and East Anglia in the summer of 1830 – as well as more obvious events such as Peterloo, the Gordon riots and the Diggers and Levellers of the mid 1640s – made famous in Christopher Hill’s book The World Turned Upside Down, one aspect of the title of this lecture. What then might we learn from these historical studies? I think there are three wider points.

1.   The idea of “history from below” epitomised best by the preface to EP Thompson’s “The Making of the English Working  Class” (1963) Untitled“I am seeking to rescue the poor stockinger, the Luddite cropper, the “obsolete” hand-loom weaver, the “utopian” artisan, and even the deluded follower of Joanna Southcott, from the enormous condescension of posterity.” Thompson was seeing to put centre stage the lived-in experience of ordinary people, not a history of events and names, but human development and individual destiny shaped by each and every one of us – neither cogs nor victims. Much greater attention in recent years has been paid to protesters’ accounts that differ from or counter official narratives. In 2013, Joanna Gilmore submitted her PhD to the University of Manchester, one key element of which was splendid ethnographic study of those who took part in the Gaza protests outside the Israeli Embassy in January 2009. We might also think of Gabrielle Coleman’s new book Hacker, hoaxer, whistleblower, spy – the many faces of anonymous (2014), an anthropological study of Anonymous allowing us an insight into mindset and motivation of that group of activists. Knowing who takes part in protests – the demographics of activism – offers us insights for law, for regulation and for control. What is the effect of a whole new generation becoming engaged – perhaps turned off by Russell Brand’s adjuration not to vote? What can we learn from the fact that we are witnessing people engaged in political activism who would never have done so before e.g. anti-fracking protests at Balcombe in Sussex?

2. The need to reinterpret small-scale acts of insubordination – not simply as crimes – resiting them as everyday resistance, imbuing them with political resonance such as the work by Carl Griffin at Sussex, an historical geographer (?) on wood pilfering and animal /plant maiming in Georgian England. This is what James C Scott has called the “weapons of the weak”. In my own work, I have argued that we should focus as much on the “mundane and everyday” as much as on large scale, staged marches & protests. It is the cumulation of small events that tells really what protest is. The following is just one hour’s worth of twitter feed last week noting various protest events taking place.Screen Shot 2015-03-06 at 18.40.14We might think here of comedian Mark Thomas and his 100 Acts of Minor Dissent including an Irish Ceilidh band on Apple store on Oxford Street to protest tax position. There was in fact a splendid example just the other day, of a man in Kent who stole a kindle from a shop – after being in dispute about a replacement for the faulty one he’d given his wife as a present. He handed himself in to the local police only for them not to arrest him but to consider it a private, civil matter between him and the shop – so even shoplifting can be a legitimate protest!

3.  Last, and also from EP Thompson, we have the idea of the “moral economy”, in his book Whigs and Hunters: the Origin of the Black Act Thompson sought to explain the incidence and extent of the food riots in the late 18th century; they were not simply sporadic random and wanton acts of violence but intentional, planned, targeted and rational, the perpetrators basing their attacks on those who sought to profit by charging more than a fair or just price for scare goods. A fair price did not mean a market price, and action against those who set a price higher than moral price was justified. The parallels with certain forms of non-violent direct action – about say climate change or environmental harm – is apparent: hijacking a train laden with coal bound for the Drax power station or sitting in to block a Ryanair plane on runway at Stansted.

GEOGRAPHY

The last main link between history and law is one that speaks directly to another discipline, that of geography and especially the relevance of geographical concepts of place and space to notions of dissent and protest. The relationship between law and geography, led most obviously by Nicholas Blomley, is a blossoming one.  I am indebted to my former UEA colleague Daithi MacSithigh for putting me onto all this about four or so years ago.

Historically, we can see significant parallels between a long line of protests contesting the use and control of space – from the Enclosure Acts at the start of the Industrial Revolution through civic improvement schemes in cities like Manchester (studied by historian Katrina Navickas) to modern day “gentrification”, that has been the attention of critical geographers such as Tom Slater at Edinburgh and Stuart Hodkinson at Leeds with their focus on ‘new urban enclosures’, and to the control of access to shopping centres such as to outlaw free speech and protests, seen in Ground Control by Anna Minton and some of my own work on privatised regulation. At a more mundane level, let me offer the view that the idea of place is relevant for a host reasons

1. Because people

  • need a place to protest in, whether that be a physical space or a virtual space.
  • might protest about a place or the use it is being put to – thinking here of fracking at Balcombe in Sussex
  • might use a place actively as the form of protest – such as a long term occupation (as an organisational space or offering an alternative society and we might think here of Climate Camps or Pollock Free State in Glasgow in 1990s) – or by using the place in a way to challenge our preconceptions, such as the treeplanting by Reclaim the Streets on the M41 extension at Shepherds Bush in 1996

2. Because the law creates boundaries, of ownership and of “types” i.e. public or private. So the law constructs not only property rules but configures who can use it and how, what US public lawyer Timothy Zick called (of the 1st Amendment) an “expressive topography”.

  • There are different rules of entry and of remaining for private and public land
  • Some places have specific rules that regulate them such as highways or Parliament Square. We might think here of the recent appeal challenge in the US on whether citizens have the right to protest on the plaza in front of Supreme Court or only on pavement.

3. Because place and space play a role more widely in constructing protest, dissent and political participation

  • Some places are in the words of geographer Yi Fu Tuan “emblematic”: they have a meaning separate from their physical longitude and latitude coordinates. Both Hillsborough and Orgreave, in the British mind, convey something, perhaps a rallying point or site of contention, aside from their physical existence.
  • Protests may be more effective when protesters are “in place but out of place”, as Tim Cresswell terms it: the women of Greenham Common, transgressing social norms to jolt us
  • Antonia Layard has noted the tandem modern phenomenon: the disappearance of civic/social space and the notion of citizenship converging into commodification: think here of the “buying” of political expertise of Jack Straw and Malcolm Rifkind.
  • Places such as the streets are both sites of contention and sites of power: Whose streets? Our streets!

POLICING

After his World At One comments on Monday (2nd March) on hypocrisy – including the view that our “policemen are wonderful, provided you’re white, middle class & don’t take to the streets”, I’m fairly sure we could enlist Alan Bennett to our new course!

Not surprisingly, this is all fertile ground – a search of the word ‘protest’ in single journal “Policing and Society” produced 151 hits. I think there are really two questions that concern those interested in protest and dissent, and in political participation more generally

1. How far do the various models of policing disorder and protest affect how, when and whether people can exercise their lawful rights to engage in peaceful protest the issue? Drawing on the work of Alex Vitale we can conceive a typography of four models

  •  Escalated force: force meets force, running street battles of the 1960s
  • Negotiated management: cooperation, communication, tolerance of disruption, limited force – typified in the UK by what are called police liaison officers, and more widely what is called the Swedish model
  • Miami model – aggressive dispersal; paramilitary show
  • Command and control based on zero tolerance policing used more widely in e.g. New York. It is inflexible – the police set clear guidelines in advance for the “hierarchical micro-management of protests”. There may well be high levels of confrontation and force in relation even to minor disturbances. Force is used however only to re-establish control; there is a preference for avoiding it through management, and force is certainly not uncoordinated or escalated.

Gillham and Noakes offer us a fifth, which seems to fit much more with certain recent developments in UK. This is what they call ‘strategic incapacitation’: preventing citizens from committing crime and causing disruption/disorder, with an emphasis on e.g. controlling space, on surveillance and on information sharing It has two limbs, what we might term

  •  Preventive, even pre-crime policing: on the day of the Royal Wedding in April 2011 there was a mass round-up of the “usual suspects” all on grounds of “imminent breach of the peace”. Most were later released without charge and those that were not had bail conditions relating to wholesale areas of London. This led to the Hicks litigation in the courts, where the policing tactic was upheld as lawful.
  •  “Panoptical policing” – surveillance and control seen in cases such as Catt, where we are expecting judgment from the Supreme Court tomorrow on the construction of a database noting simply innocent participation in protests in the presence of others known for disorder and violence. NB: since the lecture was given, the UKSC held by a majority of 4:1 that such police activities were lawful under the ECHR.

2.  What else also structures the police response? In other words, what else might dictate whether we can exercise our democratic rights? The level and type of police response is likely to be in inverse proportion to how far we can protest. Most obviously here we need to draw on what David Waddington and others have called the “flashpoints” model (Waddington, 1989): what determines whether one potentially volatile gathering of protesters (or football fans, or striking miners) does indeed erupt, and become disruptive (or worse) and, further, what determines whether the police will step in, and if they step in, whether they do so in numbers and with strength. Factors are likely to include

  •  The police’s own perceptions of demonstrator’s legitimacy and objectives

To a certain degree this is more of a reflexive relationship, with police perceptions of protesters as something constructed by media coverage and portrayal and may become self-fulfilling. Both the police and the media deal in shorthand and stereotypes The work here of Hugo Gorringe and Michael Rosie is important. In their studies of the policing of the 2005 G8 summit at Gleneagles and the 2009 G20 in London they make the point that media constructions “shape the context within which the policing of protest occurs both by reinforcing the image of a folk-devil and by legitimating forceful policing” (Gorringe and Rosie, 2009) It was widely reported in the run-up to the 2009 G20 in London that the police were “up for it”, later denied and disproved – but the damage was done. They show how press reports were littered with descriptions such as “dangerous” anarchists” dominated by folk devil construction. Donson, Chesters, Tickle and Welsh have spoken about the construction of a new “folk devil” surrounding anti-capitalist protesters (to use Stan Cohen’s phrase), that engenders and stokes a “moral panic” and then a clampdown, done to “facilitate a silencing of these alternative voices in terms of both wider debates on the pros and cons of citizens rights to protest within neo-liberal capitalist democracy and wider contested issues of social and economic justice.”

  • outside pressure: institutional – leading possibly to what Waddington calls “in the job” trouble or fallout; the second London student fees demo in November 2010 was met with a significantly stronger police presence and response after the Millbank demo in the October when a fire extinguisher was thrown down, nearly killing bystanders, after which the Met admitted they had lost control.
  • actual tactics used by protesters
  • resources available to police. By this I do not mean simply financial funding but such matters as: the negotiating strategy; training in e.g. psychology (see later) and law (as well as knowledge and understanding of legal powers). For example, what can explain (as I point out in my book) why in 2002 did 19 of the total 54 UK prosecutions for aggravated trespass take place in Suffolk? Why did 50 of the 63 total UK arrests for watching and besetting occur in two counties (49 in Surrey, and 11 in Hertfordshire)? It brings us back again to the law in books vs. the law in action. Most important here might be equipment used or available to the police. Recent years in the UK have witnessed debates on water cannon in UK – how far would it change relationship between citizens and police, and the state, and would be seen as such, creating whole new dynamic. We might cast our minds back to the 1970s when the police confronted rioters and public disturbances with simple dustbin lids as shields – and the consequent militarisation debate about whether a move to riot shields, and riot gear, has led to or is itself a function of perceived threats and of disorder.
  • policing culture: might officers have different expectations of what to expect and how to respond? My own informal “study” of a major policing event a few years ago revealed possible significant difference between what constituted a “good day” for senior command – facilitating protest, everyone home quietly, minimal disturbance, no injuries to their own officers – and more junior officers who may want to put into practice their public order training
  • Self-perception of own role: Winter (1998) talks, of German police shifting from staatspolizei to burgerpolizei, from protectors of state to protector of citizenry. In the context of UK policing, there has been a noticeable discoursive shift, in favour of “facilitating” the right to protest not simply order maintenance, a move from seeing protest as a threat to seeing protest as integral to the functioning of society.

SOCIAL MOVEMENTS

Another branch of sociology provides insights into the organisation, dynamics and development of activist or protest groups This is the study of social movements: organised collective activity over time (i.e. there is some element of growth and continued existence) aimed at effecting socio-economic or political change through a variety of means including (especially?) non-institutional means. Good examples would include the civil rights movement, the anti-apartheid movement, suffragettes and anti-globalisation movement. I want to focus on only one, the seemingly limited appreciation of the role of law in studying social movements, and especially in understanding their strategies and tactics, as well as being possible indicia of success. The other issue that might concern us links to the next main discipline, political theory, and relates to the legitimacy of a social movement’s tactics and actions. More broadly, the sorts of questions that writers on social movements – Charles Tilly, Sydney Tarrow, Donna dellaPorta, Bert Klandemans, Hank Johnston – seek to address would include

  •  What drives people to come together to seek change, and on what topics: what is, in Smelser’s words, the initiating event or trigger?

Let us consider here of the self-immolation of Tunisian fruit seller Mohammed Bouazizi in 2011 that triggered the Arab Spring or Rosa Park’s refusal to give up her bus seat

  •  How do they coalesce and form or develop a “movement” and garner support…How do they “mobilise” and remain united?

We need here to think of their use of technology and social media, as well as considering ideas around legitimacy – of both objectives and methods; a social movement needs to chime or at least not set itself apart from the general population

  •  What determines success? What in fact would the movement consider to be a “success”?

What resources can they bring to bear? Not simply financial but physical, social capital, media, knowledge, time etc etc

  •  What methods or tactics of seeking social change can they enlist, what Charles Tilly memorably called “repertoires of contention” and then specifically..

Why and when would a group choose protest? In Charles Tilly’s longitudinal study Popular Contention in Britain 1758-1834 , what he described as the repertoires of contention available or used included pamphletting, meetings, marches, strikes, barricades, sit ins, occupations and machine-breaking. We might ask why did/do some fall out of use – are they culturally specific? That said, machine-breaking has a modern resonance – think of the criminal damage charges brought against members of Ploughshares for their direct action against Harrier jump jets destined for Indonesia in early / mid 1990s. We’re reminded here perhaps of EP Thompson’s moral economy? Repertoires of contention have both internal and external functions, or what we would conceive as movement-related and outcome-related functions. Tilly also talks of actions having or showing WUNC: worthiness; unity; numbers; commitment. The anti-war or million-man march might serve both. The group’s choice of actions are determined by a host of matters but especially “political opportunity structures” – which will also contribute to determining success of movement in achieving its goals – or what we might conceive as the vulnerability of political system to challenge. Amongst these would be the degree of accessibility to formal political process; stability; conflict within or between elites; and the level of repression or likely disposition towards tolerance on the part of elites. A key issue for lawyers here is the very limited (and possibly no) role in the debate around success, tactics and actions for LEGAL opportunity structures. The index of the Blackwell Companion to Social Movements has not a single entry for law – only law enforcement, and then only covering two pages on policing. I cannot lay claim to this splendid insight – instead, the point was made to me by my colleague Michael Hamilton over coffee a year or two ago…but it seems crucial. What role does, can and should law play in determining whether groups decide to obey or flout legal restrictions? Do they know of them? How do legal restrictions in e.g. numbers or place structure form and type of protest? Does legal framework skew towards certain forms of repertoires?

  •  How do social movements trigger or effect social change?

It needs both what we would term a political claim – public articulation of a demand to be performed by X – and the “framing” of it, that is, constructing it in intelligible terms such that listener both understands and sympathises with the concern or objection and with the demand. There is a clear link here to semiotics and to theories of language and communication. In fact a key exponent of the idea of framing is the US cognitive linguist George Lakoff. In Don’t think of an elephant (2005), he offered his view on the recent US political landscape. Specifically, he tried to set out what he thought accounted for the success of the Republican right in winning the battle for the public’s hearts and minds during the 1990s. He analysed the debates surrounding several contentious issues, and the manner in which those debates, literally, were constructed. For example, on the issue of tax, instead of campaigning for “tax cuts” for the rich, Republicans framed the debate as one in which they were arguing for tax relief. As Lakoff wrote, “When the word tax is added to relief, the result is a metaphor: taxation is an affliction. And the person who takes it away is a hero, and anyone who tries to stop him is a bad guy. This is a frame. It is made up of ideas, like affliction and hero. And if people try to stop the hero, those people are villains for trying to prevent relief.” Nobel Prize winner Daniel Kahnemann in Thinking Fast and Slow offers a really useful and easily intelligible example of framing: subjects were asked whether they would opt for surgery if the “survival” rate were 90%, while others were told that the mortality rate was 10%. The first framing increased acceptance, even though the situation was no different. As an example, we can conceive – or frame – issues around fracking as ones about Big Business, as about the future of the planet, as around individual likely harm or as around house prices! Each we can see will play to and attract a different audience.

POLITICAL SCIENCE/THEORY

This all leads us onto discussions of the role and place of protest within wider political framework. The single but critical question here is the democratic legitimacy of protest – or perhaps, and more accurately, of different forms of protest. A subtly different way of posing the same question is to ask whether protest is a necessary adjunct of political participation or is the fact that protest is on the increase show that democracy is not working: is it the highpoint or crisispoint, the zenith or nadir?

I am no expert on democratic theory and theories of legitimacy but we might perhaps consider this: what is it that we are asking is “legitimate”? It must be exercise of power, perhaps even coercive force, over us. It can be presumed that we are required to obey directions that are not in our best interests only where we conceive those directions – and the threat of force for refusal – are somehow legitimate. A necessary condition – but by no means sufficient – must be that the decision or the direction has been approved. Decisions with which no one agrees with cannot ever be legitimate surely? Thus there needs to be a system by which some decisions are accepted – have legitimacy bestowed on them – and others are rejected. If no decisions are rejected, we must too question their legitimacy.

We could run some sort of system of pure Athenian democracy – where all concerned citizens are entitled to a say. An ideal type and probably impracticable for anything save a small self-governing group: a 5-a-side team or a book club perhaps? However, and as a slight aside, one further contribution that the study of protests makes to studies of politics is that protests themselves might actually be constitutive – creative – of news modes of “doing politics”. We might think here of the recent work by Marina Prentoulis, of UEA’s School of Politics who along with Lasse Thomassen has looked at Occupy movement – noting the horizontal, bottom-up focus (through general assemblies) of managing disputes and agreeing policy – the essentials of any political system. Thus, in the minds of those involved, this is far removed from representative democracy which simply leads to different elites governing – a democracy that is both party- and institution-based – elites that are always distant from the people, creating a passive citizenry and polity.

Assuming however that direct Athenian democracy is not possible, then anything of any size needs some form of indirect democracy to confer legitimacy – a system of representation, a deliberative chamber, a parliament? But is it enough simply to have such a body to confer legitimacy? Surely not but here we run into some problems: The first is that might all depend on what form of indirect democracy we espouse or prefer. Liberal representative democracy tends to favour delegation of power to institutions, some would say to elites, a form of popular sovereignty exercised through ballot box. It’s not quite a five-yearly exercise but becomes closer to it. We might well conceive that decisions produced by such a body and under such as system would be legitimate if there were a means to get rid of the decision-makers in free and fair elections and perhaps a system of political parliamentary accountability. That seems to leave little room for protest and other forms of political participation save perhaps in run up to election. How might we counter such an emasculated view of democracy, of legitimacy?

We could of course conceive of democracy differently – as being instead participative and deliberative. Legitimacy is then not simply about outcomes and votes – but about “inputs”, about the opportunity to make one’s voice heard, an idea that is far more process-driven. Alternatively (or additionally?) we might posit that democracy only has real meaning if people can contribute – the essence of a democracy, a self governing people is the idea that they can expose failings or suggest alternatives. What is the point of voting if we do not know what we are voting about or for? Such a view requires continual free speech and protests: what are we to do in between five-yearly votes but seek to persuade others to change their minds. Furthermore, being able to protest and make our views known provides a safety-valve, without which democracy would collapse. This is Hirschmann’s idea of “voice” or “exit” transposed into the political from the business sphere; without “voice”, people might simply “exit” or reject the democratic system. Last, there is the idea of protests as a means for those whom might otherwise have only a limited voice to be louder, those outside of and alternative to ballot box which tends to gravitate towards the centre ground and then towards those who actively participate. There is a wealth of literature – and we need think no further than Duverger’s Law and the Black/Downs model of median voting – that suggests this under first-past-the-post model and more generally. I was reminded of this last week in the debates around index linking of pensions and winter fuel allowance which unlike other forms of welfare benefits have not been either (i) cut or (ii) limited to clear demonstrable need. Those who stand to gain most from political system are those whose voices most often heard; the young increasingly tend not to vote – student fees are raised and EMA removed.

In short, it must be beyond argument that “traditional” peaceful protests – marches, assemblies, rallies etc – must be seen as legitimate democratic responses and indeed essentials of any state that seeks to call itself “democratic”. The second and far more difficult question is whether we can say that of all peaceful i.e. non-violent protests. This is where we move onto very contentious territory. My thoughts – ill-thought through as I imagine they were – were expressed in a Guardian blog in 2010. First, we should be very wary indeed of permitting under the guise of “peaceful protest” direct action aimed at stopping any activity in its tracks. That way seems to me to lead to rule of the powerful, the rich, the strong, the most determined and resilient. Who determines which activities should continue – why should numbers and might win, and not persuasion and deliberation? As I intimated in my book

 “Are there – should there be – criteria by which we can evaluate the legitimacy of large-scale collective dissent so as to defeat or temper the ‘decisional autonomy’ of our Burkean representatives at Westminster?”

That said, the faulty democracy that we have – by which governments are formed on a 35-40% majority of popular vote simply cannot be right. It is the task of lawyers and democracy theorists to confront this… and all the more so when, as I mention in my book, there is suspicion that matters are even unhealthier: Plane Stupid rooftop protest at Westminster in Feb 2008 was in part triggered by evidence they say they had about collusion between BAA and civil servants to doctor environmental impact evidence relating to Heathrow expansion.

Against that though, we might add this. What should happen when it seems a decision favoured by many is ignored or dropped? Should we not have gone to war in Iraq because 3m (even the police estimated 750,000) marched and rallied in Hyde Park in Feb 2003? Protest is almost always and necessarily oppositionist/rejectionist (though see for example the Charlie Hebdo march in favour of free speech): should we assume the rest are in favour, don’t care. What stock should we put on that? How do and how should those in favour of status quo make their views known? Are those who simply want no change or who are happy with e.g. government policy required to come out weekly to do so – why can’t a ballot vote show the same? That said, the domestic legal framework provides too little protection for peaceful but disruptive forms of direct action, action aimed not at stopping the activity but through a short-lived symbolic event, highlighting it or where disruption is an incidental and inevitable side-effect of location, numbers or type of protest. We don’t, after all, ban all-night queues before the Selfridges sale. Again, as I argue in my book UntitledWe might here though to take account of the analysis provided by Helen Fenwick and Gavin Phillipson in their 2001 Legal Studies article: that, for example, the law should disfavour protection for those groups who engage in disruptive protest but who have open to them more traditional channels, or are raising issues that are already on the political agenda and/or which may indeed have had political support and we should favour protests about matters that were marginalised: their example was the petrol protests of September 2000 where the truck drivers were pushing at an open door.

That all leads to out third point: when is it ever legitimate to break the law? The notion of civil disobedience has a long and healthy history in political philosophy – we can think of course of the suffragettes, of Ghandi and of Martin Luther King, all following on from the ideas of David Thoreau expressed in 1840s. For anyone wanting to know more, Kimberley Brownlee has a very interesting book on the topic. Recently the courts have been more sympathetic towards the (limited) necessity of law breaking disobedience – I’m thinking here of two cases involving Greenpeace one in New South Wales in 2002 and one in Amsterdam in 2012.

PSYCHOLOGY

One issue psychologists can certainly assist with is why do people join groups (or not) and why do they remain? What predictors or triggers are there for likely participation in protest, and in different forms? Another, the focus of this talk, relates to policing: to what extent do police responses – when acting within their legal discretion – accord with empirically sound psychology on crowds? It is an important one for law – the exercise of legal rights is dependent in part on how the police regulate or control and in turn this is very much dependent on their own view of crowd dynamics.

Historically, the police have tended simply to adopt LeBon’s idea on the crowd of submergence, contagion and suggestibility. The crowd is seen as an amorphous unruly mob, inherently prone to disorder and violence simply by virtue of numbers and loss of identity – losing oneself in the crowd – all made disposition to crime and violence more likely. This gradually came to be questioned by empirical studies of actual crowd behaviour – by a growing number of UK crowd behaviourists in UK universities (such as Steve Reicher, John Drury, Clifford Stott and Chris Cocking). A new model of crowd dynamics began to appear in 1990s – Elaborated Social Identity Model (ESIM) which is more contextually determined: the crowd is not a singular thing nor with a singular predictable outcome; it has its own internal dynamics, in turn shaped by both external and internal factors specific to individuals and/or segments. In short, the classical model predicted violence and disorder, volatility, irrationality and spread such that the most appropriate response was always control by force. The evidence is that this may well backfire – and a group of individuals might coalesce around the perceived threat and respond. As HMIC put it in 2009 in Adapting to Protest: Nurturing the British Model of Policing (its second report of that year at p.88), the investigation into the policing of the G20 in London that same April,

“the indiscriminate use of force by the police during an event can negatively impact upon crowd dynamics to increase the risk that a crowd poses to public order. Indiscriminate use of force by the police can create a sense of unity in the crowd through a common perception of the illegitimacy of police action and corresponding opposition in response. Perceptions of police legitimacy are critical because they affect the crowd’s internal dynamics, facilitating or undermining the ability of those seeking conflict to exert social influence over others in the crowd. Consequently, there is an increase in the numbers within the crowd who perceive conflict against the police as acceptable or legitimate behaviour, thereby empowering those prepared to engage in physical confrontation with the police. In this way, the crowd is drawn into conflict even though the vast majority had no prior intention of engaging in disorder.”

Clearly, in this light kettling – or mass containment – is essentially problematic. The past few years has seen a growing commitment to what is usually termed “dialogue” policing – in large part based on a commitment to communication, to a graded and differentiated or targeted response aimed at clear wrongdoers, and at promoting self-policing of the crowd itself. All of this – and training aimed at promoting it – is based on changed psychological perceptions, and so we can very easily see the interplay here of law and another discipline.

MEDIA / COMMUNICATION THEORY & LANGUAGE

It is a truism that the media constructs and provides social meaning to events that we cannot personally experience. It cannot report everything – so there is a skew, or selection bias, and what it does report is “mediated” by e.g. choice of language – its “framing” – juxtaposition of stories, and by the focus or angle of story. Thus, relevant to us, is to ask: how are protesters represented in the media?

As we have already seen this does risk being self-fulfilling – with a nod to labelling theory – and provides the informational, contextual backdrop for the police response. Considering then the newsworthiness of protest, could I offer the following possible determinants or factors?

  • The need for a spectacle – drama – with known roles and places, binary positions of police and protesters. As is well known, “Dog Bites Man” is not news. The complaint is age-old that peaceful marches pass off without much media coverage. Hugo Gorringe and Michael Rosie made this point in relation to the build-up for the G20 in London in April 2009, when coverage was all about possible future trouble not peaceful march previous weekend.
  • The news media tend to create universality or homogeneity from distinct separate events or to generalise from a few different specifics – that is, it “mediates”.
  • The media look for easy narratives – black and white, not shades of grey, 50 or otherwise. A young male protester in a black hoody is never constructed other than as deceitful and acting illicitly, never as someone who is cold, or someone wearing a uniform of solidarity, or even someone who doesn’t want to be filmed and recorded and kept on a database.
  • The media prefers episodic or event reporting, not narratives around themes or the background. Again, Gorringe and Rosie illustrate this in their G20 study of G20: the possible issuing of tasers is never questioned or deconstructed, just accepted and reported. We might consider too the coverage of the “Tarpaulin Revolution” the c. 9-day occupation of Parliament Square in October 2014, where one of very few stories concerned the arrest of GLA member Jenny Jones, something personalised not issue-based.
  • Differential reporting: a search of BBC news on-line against “occupy AND ‘parliament square’” produced only two In the story on Jenny Jones, there were two lines saying the police had “arrested 15 other people sleeping on tarpaulin in Parliament Square after they failed to leave the area following requests from the police”. The other story related to later attempt in November to stage a protest. We might contrast this with saturated media coverage of the Hong Kong occupation at about same time, and with widely differing views on legitimacy expressed by politicians. There is differential coverage too as between different newspaper titles; there was a really interesting MSc at LSE by Stefan Hall in 2011 – The Discourse of Protest – comparing how the Daily Telegraph and The Guardian covered the same event, when the car containing Prince Charles and Camilla got caught up in the student protests of Dec 2010.

INTERNET, TECHNOLOGY &SURVEILLANCE STUDIES

It’s often said of the growth of new forms of media and of social media in particular that it “democratises” newsgathering and dissemination – we all have mobile phone cameras to record and to post, and we can all contribute to message boards, twitter and Facebook etc. What then can we learn about what Judith Butler has called the “new spaces of protest”, and what are the promise and perils of protesting on the internet (Wells, 2012)?

Let us consider what, using Bart Cammaerts’ terminology, “affordances” & “constraints” (Cammaerts 2012) there are in these “mediation opportunity structures”? It costs little or nothing – save in time – to set up an on line blog, and less of course to post or to tweet. The costs therefore of distribution and publicising views and dissent, in comparison to those of Fleet Street (in old money!) are almost infinitesimally small. Avaaz, which might be known to several of you, is a petitioning and campaigning website with (at the time of writing) just over 41 milllion members world wide…though in the course of researching simply this section, with the website open on my laptop, the membership numbers simply grew as I typed. Current campaigns include tax justice, compensation from Benetton for those clothing workers who died at Rana Plaza complex and about planned changes to IP laws for medicine that would massively increase costs. Each has a million+ signed up. Is it though all as plain-sailing as this? Malcolm Gladwell in a famous essay in The New Yorker in 2010 Small Change: Why the Revolution will not be Tweeted suggests that such sites, and social media campaigns more widely, might in fact be regressive as tolls for political and social emancipation. In his view, they prevent commitment and ties and as such they don’t lay the foundations for “high risk” actual activism, of a type seen in the civil rights movement in the 1960s. Instead of what is termed “clicktivism”, we have instead “slacktivism”; Kristofferson and others in 2014 wrote about this: how the “social observability of an initial act of token support impacts subsequent prosocial action”. In other words, their study provided evidence that the more public the initial support – clicking a FaceBook like – the less likely was someone later to do a “meaningful” act i.e. to donate cash or time, and the reverse held true too.

Social media offers a global or at least wider reach and penetration, and at speed – seen for example in the viral spread on YouTube and Facebook of “Can’t Breathe” memes following the death of Eric Garner in New York in 2014, capturing the essence more concisely making it more likely people will read or see it – far more so than a lengthy news report. As the US Supreme Court put it in ACLU v Reno as long ago as 1996 “Any person with a phone-line can become the town crier with a voice that resonates further than it could from a soapbox” Social media opens up and offers different form of protest. As well as Avaaz for campaigning, technology offers us newer forms of action – or repertoires of contention: hacktivism, in the form say of denial of service attacks (DoS). It also offers us opportunities for better “remembrance” (Foucault) or recording and disseminating (amplifying), again thinking here of the death of Eric Garner, and for monitoring and reporting. As just one example, on the domestic scene, we might look to Netpol, the police monitoring group with a very active web presence. Alongside this, social media provides opportunities for correctives to official discourse (Wells, 2012). After the death of Ian Tomlinson at the G20 in 2009, it was clear very speedily that there was more to the account than simply that offered by the Met. Last, social media might be thought to replace or substitute for the loss of real physical public space…. but we should not make such assumptions uncritically. Internet access is controlled by private companies; it is not truly public, or even close to it – as Wikileaks found out when PayPal and others e-taliated following their national security disclosures.

Against all that, there are some significant constraints or drawbacks. Internet and social media access is demographically skewed. Not everyone has access or can even “work” the internet. In their interesting report in the role of social media in the Arab Spring, Howard at el (2011) make clear that those involved were, in the main, young, relatively well-educated urban professionals though, and this clearly is a strength, many were women. Modern technology makes easier forms of surveillance by state, in Deleuze’s words a “control society” but in exchange – as we saw above – also offers the chance for activists to effect their own forms of control or “sousveillance” – filming those officers at demonstrations who do not wear identification numbers clearly on the epaulettes. There is no greater insulation from Government crackdowns for social media than for hard copy newspapers; we need only reflect on internet blackouts in China. Organising on the internet can be rather isolating and solitary; virtual space is a collection of individualised spaces. It is of course the case that social media brings people together who would not otherwise have met – and so promotes connections and collectivism but in comparison to physical protests, virtual protests are individualised – without any sense of communion, and acting in common as one – but simply our own clicks. We might pose the counter-intuitive question: is social media less egalitarian and more divisive than traditional, physical protests? Social media too lacks the serendipity of physically encountering opposing views – the chance coming on a demonstration on the high street. Last, for all its expanse, the internet risks what Licklider has typified as “narrowcasting” – messages are not amplified to newer audiences but the internet comes to resemble an echo chamber; we seek out and subscribe to sites and pages and blogs that we sympathise with. We are in short not challenged or confronted.

One of the limitations heralded by social media, and by the advent of new technologies more widely, is the potential for increased surveillance. Such advances have allowed the police not simply to be able to obtain large amounts of material – from what are called “open source” searches (or trawls) of social media such as Facebook or ANPR (automated number plate recognition) – but more importantly to process, collate, analyse, to be able to create in effect databases of protesters and activists, actual or would be. To hark back, we are expecting a Supreme Court ruling on much of this tomorrow, in the case of Catt. These all raise clear questions about transparency, accountability, and indeed legality – do the police simply have the power to do that which is not prohibited or must they as agents of the state point to positive entitlement? – and thus to legitimacy, all being very ably explored by my PhD student, Val Swain. On which, perhaps we might also consider what Stephen Graham in Cities under Siege (about the increasing cross-over of military surveillance, now common place in urban areas) typifies as “the new military urbanism”.

However, “old school” surveillance still takes place, both covert and overt. Most of us I’m sure are familiar with the revelations made over the past couple of years of infiltration by a dozen or so Special Branch officers into various organisations in 1980s and 1990s including the London Greenpeace campaign against McDonalds and into other environmental groups. This included fathering children with women members of the groups, as well as very clear criminal activity of their own, all in the name of detection or prevention. Undoubtedly there are critical issues of accountability here to. All has been fantastically well documented in Undercover (in 2013) by journalists at The Guardian, Rob Evans and Paul Lewis. More obvious physical or overt surveillance would include use of Forward Intelligence Teams and cameras filming at protests.

CULTURAL STUDIES

This is our last disciplinary area of relevance. How do plays, music, film, TV and art play a role in protest, in effecting social change or in political life more widely?

Broadly speaking, we might conceive of plays and music etc either as a forms of protest and dissent itself or of them recording or representing protest and dissent. My focus here is on the modern; I can claim no special expertise or even great awareness of, say, the poems of Blake or the paintings of Hogarth (such as say The Humours of an Election in 1755). That said, in Nightwalking (out in early March 2015) Matthew Beaumont constructs a world where the eponymous act in the title is imbued with and resonates socio-political; nocturnal ambulation as an act of dissent.

More generally, we might think of avowedly political theatre – the works of Brecht, David Hare, Caryl Churchill, Dario Fo, 7:84 theatre to name but a few. Most recently Gregory Burke’s Black Watch that tells the tale almost correspondent in time of the death of Black Watch soldiers on deployment in Iraq and the dissolution of the regiment after 300 years, based on first hand interviews. Such works make us question or act as a call to arms, to open our eyes to alternatives. Alternatively, we might think of “political comedians” such as Mark Thomas, Jeremy Hardy, Mark Steel and Josie Long. Documentary or quasi documentary works – such as the so-called tribunal plays at the Tricycle Theatre in North London from the 1990s (Half the Picture, The Colour of Justice and Justifying War) provide opportunities for both remembrance and amplification, as – from a different time – did books by Dickens such as Hard Times (on the socio-economic impacts of industrial age) or Little Dorrit on conditions in debtors’ prisons. Alternatively, we might think of works of art as satire and excess, again prompting reflection and action: from Gulliver’s Travels, a political allegory of life in early 18th century England, to the fact that Al Murray’s comedic creation the Little Englander The Pub Landlord is standing against Nigel Farage in the 2015 general election, a point made to me in passing by my UEA Film, TV and Media colleague Brett Mills. Indeed there is also literature on protest events as a form of theatre – or performance art as protest, each side with its roles, playing out of a narrative, performance. The case of Tatar and Faber v Hungary, before the Strasbourg Court in 2012, concerned the penalties imposed on those who “performed” a 13-minute dirty laundry protest on railings.

Indeed, the boundary between what is “art” and what is “protest” is usually blurred. The cover of my book features not Brian Haw’s actual protest at Parliament Square – for which he was many times arrested and his tent confiscated – but a visual representation of it, State Britain, an installation by Mark Wallinger at Tate Modern, that was not only lawful but won the Turner Prize in 2007. Perhaps the following provides as good example as any of the intertwining? Screen Shot 2015-03-06 at 18.49.43 Let us focus, as we near the end, on something that is a little closer to home for me, that of music. John Street – a colleague here at UEA in the School of Politics – has a long-standing pedigree on music and politics going back to 1986, and Rebel Rock: The politics of pop music and Politics and Pop Culture (1998). Most recently – in The Oxford Handbook of Political Communication (2015) – he offers us three ways in which music has become associated with political communication:

  • music as protest, either explicit or hinted at protest song such as much of the output of Woody Guthrie and Bob Dylan or the song Strange Fruit, by Billie Holliday, about the lynching of Black Americans in the 1930s
  • music as propaganda securing support or endorsing established order, and John gives the examples of D:Ream’s Things can only get better or the “ownership” fight in 1984 between Democrats and Republicans over Bruce Springsteen’s Born in the USA
  • music as resistance: songs that do not intentionally contain a political message, whether overtly identified or hinted at but which have political significance through context and meaning attributed. He highlights Pink Floyd’s Another Brick in the Wall, and especially the line “we don’t need no education” that was taken on by schoolchildren in Soweto to rally against the attempt to impose Afrikaans on them.

In Acting in Concert: music, community and political action Mattern (1998) suggests music might be confrontational, or deliberative or indeed even pragmatic. Thinking more widely, we might conceive of music playing a host of different political functions.

It might for example identify a political predicament – such as Public Enemy’s 911 is a Joke, a damning indictment of the differential treatment by the emergency services in the USA I call a cab cause a cab will come quicker The doctors huddle up and call a flea flicker Reason why I say that cause they flick you off like fleas They be laughing at you while you’re crawling on your knees Music may itself be a protest event – Red Wedge in the 1980s or Rock against Racism concert at Victoria Park in 1978s – or as a call to arms, such as Gil Scott Heron’s “The Revolution Will not be Televised”. Some music may itself forment protest and debate – think of the outcry at Robin Thicke’s controversial date-rape song Blurred Lines – or the output itself may be a protest, such as Radiohead’s pay-what-you-want download release In Rainbows in 2007. Music may assist in amplifying political contention; at the Grammys in 2015, Pharrell Williams performed Happy but had dancers in black hoodies mimicking the “Hands Up Don’t Shoot” protest at the shooting of Michael Brown. Music might create what we might call “water cooler” moments or a “communicative space” (Graham and Hajru, 2011) – triggering what they call “everyday political talk”, or music might be the precursor to collective political activity in a different way by effecting cohesion, or by identity-forming. There has been work done for example on gaita music in Venezuela by Carruyo (2005): it “emerges from and helps create an imagined oppositional community [by invoking] shared experiences”. Last, music might perform an important political sublimating function, acting as a safety valve for anger: we might think here of the gospel spirituals and work songs of American south (Edet, 1976). I would like to conclude by offering up my own interpretation of four songs, or lyrics, written by (or in the case of the second, performed by) the Bard of Barking, Billy Bragg. Screen Shot 2015-03-06 at 19.02.01

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Turning the world upside down and televising the tarpaulin revolution: what might ‘protest studies’ look like?

Tomorrow night, Tues 3rd March, I’ll be giving my inaugural professorial lecture at UEA. It is, in broad terms, a whistle stop tour through various disciplines to see what lawyers interested in protest, dissent and political participation can learn from the ideas and theories of others, and in reverse what they might learn from us. In turn, I’ll be covering history – touching on the works of EP Thompson – and geography, especially the relevance of ideas of place and space to protest. Law and geography, through the works of Nicholas Blomley and more recently by writers such as Antonia Layard, has been a developing area of the past decade in the legal academy. Next, I’ll be touching on two linked sociological areas: literature on policing especially the various models of policing disorder, and how they inform our understanding of the exercise of the legal right to protest, and social movement theorists, looking at repertoires of contention and opportunity structures. Attention is then on psychology, especially the recent literature relating to policing and kettling, and then communication theory, looking at the representation of protesters – and selection bias and media narratives – in the press. After that, I’ll be turning to look at the impact of technology – not solely social media – and what Bart Cammaerts has called the “affordances” and “constraints” – with a nod to Malcolm Gladwell’s New Yorker article suggesting that social media activism is not all that it might be cracked up to be. I shall conclude with a consideration of culture and protest: its representation in, primarily, music and how music can indeed be, as well as represent, political activity and dissent. I’ll end with offering an interpretation of some of the key lyrics of the Bard of Barking, Billy Bragg, in that light. The lecture is at 18:30 (3rd March) in the Julian Study Centre at UEA. I’ll upload a full transcript on this blog, and a link to YouTube for the recording

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QUIS DEBIET IPSOS CUSTODES? THE REAL COSTS OF THE COST OF PROTEST

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 ([2013] 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 ([2006] 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.

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