The law and the right to protest

Diane Abbott MP made a good point in a Westminster Hall debate yesterday:

Section 50 of the Police Reform Act 2002 allows the police to demand the name and address of anyone whom they believe has acted in an antisocial manner. Failure to provide that information is a criminal offence. It is therefore a criminal offence to fail to give a name and address when stopped on mere suspicion of committing a non-criminal act, but it is not a criminal offence to fail to give that information when suspected of a criminal offence. In other words, the legislation imposes a more onerous regime on protesters than exists for people who are suspected of criminal acts.

Shequotes Shami Chakrabarti:

Few would argue against proportionate interferences with that right to protect people and property. Yet the past 15 years have so blurred the lines between civil, public order and anti-terror powers that we risk turning constables (whose traditional role was to keep the peace) into bouncers charged with shutting down demonstrations.

Protest has never been very easy in Britain. During the 1930s (when protests were becoming more common) the police used a number of acts to prevent protest, including the Seditious Meeting Act (1817) and the Six Acts (1819). Protesters were arrested for incitement to ’cause discontent, dissatisfaction and ill-will between different classes of His Majesty’s subjects’ – ie sedition. Meetings were illegal if they blocked the streets, infringed bylaws, if a constable believed a breach of the peace was likely’, or if a person of ‘reasonable firmness and courage’ was alarmed. By a law of 1816 it was illegal to protest within one mile of parliament.

Most notorious was the case of Katherine Duncan, which showed that statute law was not even needed to halt a protest. Duncan addressed people an unemployed training centre in South London. She had previously been arrested for impeding the highway, so she held her next address in a side alley not used by vehicles or pedestrians. She was arrested before she could speak and fined £2 and five guineas in costs. At appeal the sentence was upheld by Hewart LCJ on the grounds that if she spoke it could lead to a breach of the peace. In other words it was left to a constable to decide whether Mrs Duncan’s words might make a hungry unemployed person unhappy; and whether that unhappy person might, at some unspecified date, commit a breach of the peace.

Any political act in public could, in theory, fall within the law. At times in British history these laws – what Ivor Jennings called the ‘relics of feudal anarchy and of anti-revolutionary reaction’ – were forgotten and not enforced. There were long periods when wide latitude was given to protesters. At times, however, they were dusted down and used again or updated. The Public Order Act (1986) placed further conditions on protesters and gave police wider powers. Various anti-terror acts have also been used to stifle protest and even the reporting of events.

It has never been easy to protest in Britain. History has shown that, if it wants to, the state can use a variety of techniques to crack down. Most worrying is the wide discretion given by these acts to police constables. It is not fair on them and it is not fair on those who are moved to protest. Laws, new equipment and overheated rhetoric have all given the impression that protest or signals of dissent are grave social menaces. That happened in the 1930s and it has been going on again since the 1980s.

Why, in the 21st century, are we so scared of citizen action? We have constructed draconian laws even at a time when interest in politics is waning. In British history liberty has often been won not by reform but when laws and practises fall quietly into disuse. It is the reluctance of people in authority to use the laws and equipment at their disposal which gives room for freedom. At times in our past the sight of policemen stretching their authority and politicians using the spectre of disorder for their own ends offended the national sentiment. We need a revival of that spirit of freedom.

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