In a state which prides itself to be a cradle of fundamental rights and freedoms, there has been much controversy about how strong this tradition is and how the rights of the public are genuinely intertwined within the law in the 21st Century.
There is a constant battle of interests, on one side the freedom of the public and the ‘expression’ of civil disobedience and on the other the zeal to maintain a grip on protest and undesirable public behaviour. The 21st Century ruthlessly challenges both fronts and uncovers how the law truly and practically stands; whether it punishes and restrains or aids and corrects. It is monumental however to remember that the nature of protest evolves with regards not only to changes in technology or law, but also with society, and authorities have a duty to keep up with such changes. Therefore, this article shall examine: the law on public protest, the proposals centring on change in police attitudes; specific consideration of the Northern Irish situation; drastic reform with regards to kettling and the sporadic nature of modern protest.
The Key Elements of Protest
Protest is a tool used to oppose or support; to challenge and criticise. It is a key element of the nature of a citizen and a fundamental right1. It is also an instrument to express civil disobedience, whether be it passive, violent or non-violent2. Public protest is regulated mainly under Part 4 of the Serious Organized Crime and Police Act 20053 and Part 2 of the Public Order Act 19864-which applies to England, Wales and Scotland only. This part specifies the rules that must be followed in order to hold a public procession or an assembly, such as the 6 days in advance notice and submitting details about the procession. On one hand it is necessary to have such legislation to fall back on to set out strict perimeters; the Act arguably serves this purpose. However s.13 can be characterized as arbitrary, as it prohibits the holding of processions for three months in an area if according to the Chief police officer s.12 of the Act cannot prevent serious public disorder. This term relies on the officer’s reasonable belief and serious public disorder is not strictly defined in the Act, which can be problematic as the potential of disorder varies in different areas; in some the police can be much more prone to stop protest altogether, even if it might not most likely result in serious disorder. A new possible reform is the Human Rights Joint Committee’s proposal of amendment of sec.5 of the Act by removing the term “insulting”, in order not to criminalise such behaviour or language:5 what is deemed insulting is very subjective, for that reason criminalising such language or behaviour can easily breach art.10 of the ECHR.6
Public Protest in Northern Ireland; Challenges and Lessons
Northern Ireland is arguably the harsher challenger of established norms as recurring troubles put authorities to the test. Its strenuous history and clash of unionists and republicans has lead to deadly and violent public protests. The “an eye for an eye” strategy of paramilitary groups such as the IRA, protests escalating to riots such as the recent Belfast City Hall flag protests with almost 300 arrests,7 create conditions which arguably call for stricter measures.
Itis interesting to note that Acts such as the Public Order Act (POA) 1986 and the Serious Organized Crime and Police Act (SOCPA) 2005 do not fully apply to Northern Ireland, their extent is limited to specific sections.8. The key legislation stipulating guidance on public protest in Northern Ireland is the Public Processions Act (Northern Ireland) 19989 which states that there should be advanced notice of 28 days for public processions and 14 days for counter-protests, as well as 14 days in advance notice for public meetings. It can be noted that conditions for protest are more rigid here than in the rest of the UK, logically so if taking into account continuous troubles. This however can be said not to provide sufficient flexibility to the public and restricts the ability to protest. In retrospect of the clashes between unionists and republicans and the fact that many protests escalate into riots, for the time being, this limiting approach can be deemed to be justified. Since St.Andrews Agreement10 and efforts of compromise by the DUP and Sinn Fein11 as well as the restoration of the Assembly in 2007 and its completion of a full term in 201112, Northern Ireland is on a path of progress and arguably, at some point, legislation on public protest must follow this advancement in order to provide fuller enjoyment of the right to protest to the public. As the Human Rights Act 1998 is fully applicable to N.Ireland and interpretation of all legislation must be done according to Convention rights,13 legislation on public protest should become more flexible. According to the Joint Committee of Human Rights, Northern Ireland has valuable lessons to teach the rest of the United Kingdom with regards to establishing human rights within public protests.14 The report adds that the police (PSNI) has dedicated human rights lawyers advising the officers as well as a comprehensive Code of Ethics based on the ECHR.15 Its recommendation is to follow their example by evaluating the expertise of legal advisers to make sure that all levels of police have constant access and re-evaluation by the Home Office of police contracts and disciplinary procedures’ adherence to human rights standards.16
Kettling at the Heart of Public Protest
An area which needs much attention is the use of kettling. Kettling is a highly controversial crowd-control technique used by the police to prevent a breach of the peace. A crowd is restricted to a specific area and surrounded by police officers without having the right to leave or often even access toilet facilities or food and water, unless allowed by the police.17
The European Court of Human Rights, in the controversial judgement Austin and others v the UK, held that kettling does not constitute a breach of liberty.18Furthermore, in Castle & Others v Commissioner of Police for the Metropolis,19 it was held that the containment of children was “…for a legitimate reason, in accordance with the law, and proportionate to the legitimate aim of preventing an imminent breach of the peace”20.
It must be noted that as the United Kingdom has not ratified Protocol 4 of the ECHR which includes the right to freedom of movement, possibly this can hinder the interpretation of other Convention rights in combination with the freedom to move and not be restricted unless absolutely necessary.21
According to Glover, the legal authority of the police with regards to kettling “appears limited and uncertain”;22 he mentions that because common law powers are blurred, this creates confusion for both the public and the police, and that “this uncertainty is exacerbated by the “bewilderingly imprecise” law on breach of the peace…, fails to meet requirements at the heart of the rule of law, namely: “maximum certainty and fair warning””.23A solution mentioned by Glover and proposed by the HMIC (Her Majesty’s Inspectorate of Constabulary)24is the amendment of the Police and Criminal Evidence Act 1984 in order to clarify the legality of kettling.25
The Social Issues Affecting Public Protest and the Need for Reform
One might wonder why racial discrimination or the ethics of private bodies connect with public protest. In our age, public protest is linked to many issues and “sparked” by different sources –as for example the G20 protests-, if the authorities and bodies which are responsible or affected by such matters do not alter their behaviour to modern standards then the future will see many more public protests which can escalate to violent riots. Such attitudes breach the Convention rights and reflect the weakness of the law in its theoretical and practical application.
With regards to the interplay of protest and private interests, as Meade suggests modern demonstrators are ready to “disrupt a company’s business to make their point directly…as an alternative, a supplement even, to formal electoral politics. This inevitably brings protesters into closer contact with private commercial concerns”.26 This leads to enhanced efforts for control by private interests, as he continues saying “There is real concern that our right to dissent, to persuade and to make known our views might be at the mercy of unaccountable private commercial hands, the very targets of the protest. This creates a tension”.27
Therefore a solid framework must be established and encoded within the law for public protest which ensures that regardless of whether it targets private or public bodies; protest is a monumental civil liberty that must be respected.
As seen in the G20 protests, the riots in August 2011, the police needs to become more professional not only with regards to techniques but with public relations as well, in order to deal sufficiently with future large-scale protests.28 Gravelle and Rogers assert that there should be a better?implementation of a Corporate Social Responsibility (CSR) adopted by the public and private sector. The CSR has four key areas, moral obligation; license to operate; sustainability –especially long term-within the context of the environment and communities and reputation29.
On the front of discrimination, the law must reflect intolerance to such attitudes as discrimination is very capable to spark violent protests, whether be it on the grounds of a clash between unionists and republicans in N.Ireland or against ethnic minorities in England.30 Based on the research of Cashmore, there is serious discrimination among police officers which results in racial abuse among policemen and ethnic minority civilians31, can be supported by the Stephen Lawrence case where under the inquiry of Sir Macpherson the police was deemed “institutionally racist”32.
A combination of implementation of a CSR and inclusion of public protest in the Protection of Freedoms Act 201233 with provisions which take into account the aforementioned issues can arguably strike a balance between maintaining the established legislation on protest and adding separate provisions which enhance its consequences in a positive way. Moreover, following the Joint Committee’s proposals, there must be effective dialogue between police and protesters; “no surprise” policing for both fronts.34 The Committee further emphasises the cultivation of a relationship of trust, a point where the CSR and improvement of discrimination issues can prove decisive for such relations. Additionally, establishing and emphasising that preventing a protest includes a high threshold of necessity and proportionality, while retaining efforts to limit authorities’ interference in protests as much as possible35.
To achieve the necessary goals and preserve the sanctity of public protest as an integral human right, one must balance on one hand the protection of the public, respect of the rule of law and competing interests, and on the other hand the genuine nature of protest. This may be achieved through a combination of the aforementioned proposals which will ensure a spherical approach that takes into account more variables. Moreover, ignoring key weaknesses in the private, but especially in the public sector, for the benefit of achieving short term results, has already proven to be very poor planning for the future.
Finally, protest may be a basic right or idea; however, its execution and its role in modern day societies is not as simplistic as one might assume. It constantly evolves and breaks down barriers by combining new strategies, new technologies and bringing different people and ideologies together. For those in policy changing roles, an open mind and innovative thinking is a requirement if the aforementioned goals are ever to become a reality.
Written By: Juliana Ruseva
LLB Student King’s College London
17 Lois Austin and others v UK – a further nail in coffin of the right to protest (ObiterJ,16 March 2012) <http://obiterj.blogspot.com/2012/03/lois-austin-and-others-v-uk-further.html> accessed 27 April 2013
27 ibid at P.L.116; see also P. Canan and G. Pring, “Studying strategic lawsuits against public participation: mixing quantitative and qualitative approaches” (1988) 22 Law and Society Review 385, 388
29 ibid; see also Porter, M. and Kramer, M. (2006) ‘Strategy and Society: The Link between Competitive Advantage and Social Responsibility’ Harvard Business Review 84 (12): 78-92; Dahlsrud, A. (2008) How Corporate Social Responsibility is Defined: An Analysis of 37 Definitions’ Corporate Social Responsibility and Environmental Management 15(1) p.7
32 Sir William Macpherson’s Inquiry Into The Matters Arising From the Death of Stephen Lawrence”. Official Documents Archive. 24 February 1999.; see alsoHough A.,’Stephen Lawrence’s brother sues Met over race discrimination’ The Telegraph (London,8 January 2013)