Right To Protest

Note: This briefing note was written for the 2010 General Election campaign. It might not represent the current legal position in England & Wales.

The law in the United Kingdom is based on the theory a citizen my act as they wish, except where the law requires or prevents a specific act. Historically – unless the method of protest was an offence – the protest was legal.

In 1988 this right to protest was further acknowledged by the Human Rights Act 1988 which recognised the application of, among other things, the rights to Freedom of Expression and Freedom of Assembly under Articles 10 and 11 of the European Convention on Human Rights.

In 1989 when a fatwa was issued against Salman Rushdie for writing the Satanic Verses diplomatic relations with Iran were severed “…in plain defence of… the right within the law of freedom of protest.”{1}.

Only twenty years later, in February 2009 Geert Wilders MEP was invited to the UK to show his film, Fitna, to the House of Lords. The government took the unprecedented stance of denying a Member of the European Parliament access to the country; not because he was advocating violence himself but because his film was likely to “…disrupt community harmony….”{2}. The only comments in Parliament on this decision were in support of it.

This movement away from peaceful protest can be seen in the Criminal Justice and Public Order Act 1994 which grants the power to police officers to move on groups of two or more people where they are causing damage, using antisocial words or behaviour, or where the group has six or more vehicles on the land.

Whilst on the face of it this seems reasonable, the definition of damage is wide enough to include dropping a single chocolate wrapper, the definition of antisocial words could include calling your local councillor incompetent, and vehicles includes bicycles.

The power also applies to not just the individual committing the act but to the whole group, and to any group where the officer believes one of these acts has been or is going to be committed.

The movement away from the right to protest is clearer still in the Human Rights Act 1998; when a Bill is placed before Parliament the sponsor can state it is compatible with the ECHR or ask Parliament to pass it anyway{3}, so there is no requirement for new laws to comply, and, also states that if the Courts find a law to be incompatible they can state that it its, but that this does not affect the application of that law and that statement is not binding{4}. As the ECHR already permits rights to be curtailed where it is necessary for (among other things) national security, the prevention of crime and disorder, and the protection of the rights of others, there would seem to be no legitimate reason for a Bill designed to serve the public interest not to comply with the ECHR.

Even laws apparently unrelated to protest are being used to stifle dissent. The Protection from Harassment Act 1997 was introduced to deal with acts “…alarming the person or causing the person distress…” such as persistent abuse and stalking. However, it does not require that the alarm or distress be something a reasonable person might feel, so in 2001, the act was used to both to prosecute a protester for “…staring at a building” and to prosecute protesters for holding up a notice reading “George W Bush? Oh dear!”. In 2004 a woman was arrested for sending polite emails to a drugs company requesting an end to animal testing.

The Serious Organised Crime and Police Act 2005 expanded the definition of harassment from at least two actions towards the same person to include action toward at least two people. So, if your placard distresses two people you have committed harassment, even if your placard is a true statement.

The abandonment of the right to protest is clearest in Section 132 of SOCPA. Anyone organising, taking part in, or carrying on by themselves, a demonstration in a public place near Parliament is guilty of an offence if authorisation for the demonstration has not been given by the Commissioner of Police of the Metropolis.

The Commissioner may when giving authorisation impose conditions including permitted locations for the demonstration, permitted number of demonstrators, and permitted number of banners or placards.

Further any senior police officer (defined as the highest ranking officer present) may at any time impose further conditions on anyone organising or taking part in the demonstration, or changing conditions already applied. No right to appeal these conditions is created.

Although defences exist to these new offences, arrests are sufficient to disrupt the protest. Any decision not to prosecute, or an acquittal, would come too late to permit the protest to continue.

The rhetoric that these new laws are needed for national security and public order are not borne out by the reality that any offence under the new laws was an offence before they were introduced.

Violence or threats of violence, intentional damage to property, and disorderly behaviour have been offences since time immemorial.

The pre-existing common law offence of aiding, abetting, inciting, or procuring an offence was defined in statue in the 19th century{5}.

Further anyone who agrees a course of action with one or more people, that involves one or more of them committing an offence is guilty of conspiracy{6}.

So the small numbers of protesters who turn from legitimate expression of disapproval to active infringement of the rights of others, or try to convince others so to do, were always committing an offence.

Fortunately the situation is not utterly bleak. On 26th November 2008 the Court of Appeal unanimously overturned bye-laws criminalising camping and displaying banners outside the Atomic Weapons Establishment at Aldermaston. However, this ruling was a judicial review, a long and expensive form of case.

In March 2008 the Government committed to repealing the restrictions around Parliament; however this has not yet occurred.

As the Tolpuddle Martyrs show, banning protest does not prevent protest. By criminalising peaceful protest we only disenfranchise those who believe in democracy must obey the rule of law, silencing those who obey the law and making the protester as rioter and terrorist the reality the laws were supposedly passed to prevent.


1. Geoffrey Howe MP
2. Jacqui Smith MP
3. Section 19, Human Rights Act 1988
4. Section 4, Human Rights Act 1988
5. Accessories and Abettors Act 1861, amended by s.65(4) Criminal Law Act 1977
6. Section 1(1) of the Criminal Law Act 1977

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