CLA News / Should the right to protest be unfettered? by Lauren Davis

Introduction

With the first act of oppression arose the fundamental human right to protest. The forms which protest may take are myriad; ranging from the printed and spoken word, to direct action and strikes, and at its most extreme to revolution and civil war. With its roots in the rights to freedom of expression and of assembly, the human right to protest has long been recognised as a fundamental cornerstone of democracy and is well entrenched in international human rights law. Despite this, in many countries including the UK, the current climate surrounding protest is that of increasingly severe restrictions and harsher sentences for offenders, in some cases going as far as to put protest crimes on a par with terrorism. This essay will discuss the value of public protest, the ways in which the rights must be balanced, and whether the limits should be at the discretion of the authorities at whom the protest is directed.

The balancing act

The aims and consequences of protest are as broad as the methods of application- a public petition to prevent the building of a flamingo theme park will have relatively little impact on the daily life of many constituents, whereas the release of state secrets could have serious implications for national defence and public safety. Due to these far-reaching effects, when accounting for the rights of all citizens, there are certain interests and rights which must be reconciled with the right to protest, discussed below.

Public protest is valuable for many reasons. Outside of election periods it provides a crucial means of encouraging political debate and enabling democratic participation by bringing issues to the attention of the authorities.[1] It also acts as a means for minority groups to substantively exercise their rights, where they may otherwise be disadvantaged due to lack of access or misrepresentation from the media.[2] However, while in theory these rights should not be interfered with, realistically the exercise of these rights usually conflicts with other rights. For example, the right of a citizen to choose what they see or hear may include the right not to encounter offensive protest. According to the European Commission on Human Rights, the rights to freedom of expression and to receive information and ideas also include the right not to speak, and as a corollary, the right not to have to encounter speech.[3]

Another oft-stated clash of interests is that of the general public to go about their daily life, with that of protestors to have an adequate forum in which to make their voices heard. This was demonstrated in the case of DPP v Zeigler,[4] in which it was found that even when deliberate obstruction of the highway impacts other road users, protesters have the ‘lawful excuse’ of exercising their rights to free speech and assembly. However, despite this recognition, the recently introduced Public Order act 2023 (POA) specifically targets protests of this kind, inhibiting lawful exercise of these rights.

Legal uncertainty and the chilling effect

An issue which is of vital importance to promoting political speech is the need for certainty in the criminal law. Vague laws may discourage people from exercising their rights due to fear of prosecution and uncertainty of what constitutes an offence. This is known as ‘the chilling effect’.[5] An example of this can be found in the application of the POA 2023 during the coronation of King Charles. The act contains vague public order crimes, equipping the police to arrest people without reasonable suspicion, for carrying items that may be used in connection with being attached to another object (the new offence of ‘locking on’).[6] This effectively equates carrying an object such as a bike lock to an offensive weapon. The act also introduces tougher sentences upon conviction, increasing public fear of arrest. During the coronation over fifty people were arrested, many of whom were held for a few hours, then released without charge. Not only does this give the police almost total discretion to render protest null and void, the contradictory justifications made by the police for the arrests have served to compound confusion about what constitutes an offence under the new legislation, and contribute to the chilling effect. [7]

The social contract and the right to protest

Thomas Hobbes asks us to consider ‘the social contract’ in the formation of a legitimate state. Here, we relinquish certain liberties in exchange for mutual protection from a sovereign power, and the authority of the sovereign is itself created by the consent of the people to be bound.[8] Therefore, legal legitimacy as exercised by the sovereign relies on the obedience of the people. Peter Stillman defines legal legitimacy as ‘the compatibility of the results of governmental output with the value patterns of the relevant systems.’[9] Thus, as value systems change, so does the legitimacy of the law. Stillman suggests that the English revolution of 1688 was a ‘legitimate revolution’, and the preamble to the Universal Declaration of Human Rights may also imply a right of rebellion. If we regard revolution as the most extreme manifestation of protest, then it could be argued that when the fetters imposed by the state on protest become so restrictive as to remove the ability to exercise fundamental rights, even protests that exceed the legal boundaries of the state may be perceived as legitimate when they align more closely with the values of the public majority.

Conclusion

The right to protest is a highly complex issue, as by their very nature protests will always be promoted by some and condemned by others. When considering the rights of society as a whole it is impossible to imagine a way in which the unfettered right to protest could be balanced fairly with other rights. However, protest itself is a warning to the state that when the fetters become too restrictive, protesters may choose to act outwith the fetters of a law that grants them no protection or redress, with far-reaching consequences.

By Lauren Davis

Profile:

Lauren Davis has recently graduated from Dundee University with an LLB in Scots and English Law. She is thrilled to be undertaking an internship with McDermott Will and Emery thanks to the ILBF competition, and is currently searching for other jobs and work experience in order to further her professional development. Currently based in Scotland, Lauren is a dual Scottish/New Zealand Citizen and is keen to pursue opportunities both in Britain and abroad. Outside of law she enjoys reading and cooking, is a keen sportsperson and cyclist, and last year competed for GBR in the 100-mile world Granfondo championships.

Footnotes

[1] K.J Keith, ‘The Right To Protest’ 9 VUWLRP 59/2019

[2] Helen Fenwick, ‘The Right to Protest, The Human Rights Act and the Margin of Appreciation’ [1999]  4 MLR 62, 493

[3] K v Austria, A 255-B (1993) Comm rep paras 45, 49

[4] [2021] UKSC 23

[5] Oxford Pro Bono Publico, ‘The Law on Policing Peaceful Protests’ 32, 61

[6] Public Order Act 2023 S.1(1)(a)

[7] Alex Benn, ‘The coronation, the Public Order Act 2023 and ‘Free Speech’’ https://ohrh.law.ox.ac.uk/the-coronation-the-public-order-act-2023-and-free-speech/

[8] Thomas Hobbes, Leviathan, (first published 1651, Penguin 1985)

[9] Peter G Stillman, ‘The Concept of Legitimacy’ (1974) 7 Polity