We Must Reject the Idea of Legal Protest

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We Must Reject the Idea of Legal Protest

The laws governing the legality of civil dissent narrow the perameters of political possibility.

The Peterloo massacre, Richard Carlile. Source: Manchester Library Services/Wikimedia commons. Public domain.

On 16th August 1819, some sixty to eighty thousand people assembled in St Peter’s Field, central Manchester. Men and women, young and old. They had gathered to protest for greater suffrage, and for an end to the Corn Laws that had plunged many into poverty, exacerbating the disastrous effects of the famine ushered in by the Napoleonic Wars. The local magistrates, understandably alarmed, read out the following fifty three words to the few who could hear them over the din:

“Our sovereign lord the King chargeth and commandeth all persons, being assembled, immediately to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, upon the pains contained in the act made in the first year of King George, for preventing tumults and riotous assemblies. God save the King.”

This is the infamous Riot Act: a piece of legislation giving local authorities the power to disband groups of twelve or more people, or else. A gesture of slick political magicianship designed to transform a crowd of citizens into a dangerous mob. This particular dangerous mob, of course, did not disperse after the Act was read. So, hundreds of heavily armed militiamen set about the task of preventing tumults and riotous assemblies – with swords, with horses and with guns. Fifteen protesters were killed, and hundreds injured.

2016 is not 1819. To draw a mawkish one to one comparison would be to do a enormous disservice to those who, in the intervening years, have fought long and hard for the various legal protections alien to those at St Peters Field: the formal rights to free assembly and universal suffrage, to name a couple. Nonetheless, this incident – known to history as the ‘Peterloo massacre’ – stands in grim testimony to a fact that still defines the terms of political contestation in this country: that our laws grant the police the power to determine the (il)legality of any particular act of protest. Let’s look at that again: the legitimacy of actions designed to change or contest politics is decided by those whose job it is to make sure that the given political settlement is neither contested nor changed.

This isn’t some harmless paradoxical quirk of the British legal system; it narrows the perameters of political possibility. If we are to challenge these longstanding political settlements; to resolve the democratic deficit so keenly thrown into light by the EU referendum; we must demand the decriminalisation of public assembly and protest.

Enshrined as it is in the Universal Declaration of Human Rights, we do in theory have the right to freely assemble and to express dissent. But in reality, there are a lot of ways of undermining legal rights without actually taking them off the books. Introducing a whole host of caveats and exceptions can make a right too inconvenient, too unpleasant, or too dangerous to be actually exercised. Such is the case with the laws surrounding governing what counts as ‘legal protest’.

You could argue that it is, surely, a good thing that protest is to some extent legal. And there’s some sense to this. It’s doubtless a sign of progress that some legal concessions towards public accountability have been made. But the problem remains that declaring some specific types of protest legal simultaneously outlaws many others; giving way to a whole gamut of exceptions and limitations made in the name of ‘safety’ and ‘public protection’ that steadily chip away at civil liberties. These laws legitimate police actions taken against those who, intentionally or no, fall in the nebulous border regions of the law, allowing the initial legality of their actions to be declared by whichever boy in blue happens to be within grabbing distance. These actions range from continued surveillance, to confiscation of possessions, to being arrested on trumped-up charges of ‘aggravated trespass’, to the occasional rough-up caught by faulty radio recorders, to stints in prison, to fatal batonnings.

If - concerned for the integrity of your wallet, your criminal record or indeed your cranium -you want to avoid this sort of confrontation, you must gain the consent of the police to hold a march, telling them the size, destination, and exact route. They may “limit or change the route of your march, [and] set any other condition of your march”. You must not block any public highways, or damage any property – or look like you’re liable to do so. You may be ‘kettled’ for hours at a time if the police judge the march to pose a risk to public safety or to have breached the peace. If there is a ‘Section 60’ provision in place you may be stopped and searched without police suspicion. You may be rounded up on (often pre-booked) buses and carted off to police stations in your hundreds. Your image and details may be collected and stored without your knowledge. In the run up to the most recent royal wedding, some activists were even ‘pre-arrested’ by the Metropolitan Police. These actions were later sanctioned by the High Court. These aren’t far-flung limit cases. They are the bread and butter of policing civil disobedience. Thus, the flexibility and intentional vagueness of these laws is enormously powerful. Any direct action can be declared illegal if it threatens to get anything much done. Any individual can be nabbed for stepping out of line once a protest has been given the go-ahead.

Faced with this ‘total policing’, some campaigning bodies are determined to remain respectable, stressing the need to stay within the bounds of the law even as that law becomes more and more restrictive. Even as New Labour clamped down on dissent in the Anti-Terror legislation of 2006, as the current government passed the Trade Union Bill, as it allowed mayors to import water canon to use on their electorate. They are not some thoughtless rampaging mob with no respect for the law – they are citizens, with legitimate concerns that ought to be listened to. They are angry, perhaps, but in a politely self-contained, petition-signing way. And we shouldn't castigate people for trying to stay on the right side of the law. Solo activists, and in those organisations with an ethic of civil disobedience (such as Greenpeace) – who flout the law in order to expose its moral failings – often find their way onto watch lists as ‘domestic extremists’. But at the same time, it’s worth considering that this kind of respectability politics might do half the police’s work for them.

With such little room for legal maneuver, it’s little wonder that large-scale legal protests now mostly consist of long trudges through city centres. Whether dynamic and jubilant or damp and dispiriting, they make us feel a little bit better – and then, when political hopes are snuffed out in the drizzle of a London park, a whole lot worse. Little wonder people say that these kinds of protests don’t work. They are not really supposed to. They are designed to ensure that people protest without inconveniencing anyone, without making anyone feel nervous that perhaps they’re not best representing the interests of their electorate, (or employees, or indeed customers).

But that discomfort is at the heart of any democratically accountable relationship between the governor and the governed. The point is not to soothe or to ask – but to unsettle, to demand. To remind those in power that it should not be within their gift to ignore their electorate. Without that discomfort, any government can luxuriate in the quiet of an uncontested term in power, untroubled by the extent to which it may-or-may-not be pursuing the wellbeing of the public. This is half-baked spectacle of democracy is the sort that leads – understandably – to the rampant disaffection that the EU referendum threw so sharply into light.

The organisers of the marches against the Iraq war insisted on the importance of open communication with authorities in the run up to the demonstration, initially running into difficulties when they were denied permission to use Hyde Park as a meeting venue. Eventually though, they relented and it went off without a hitch. This march was, famously, completely ignored. It was a masterpiece of public disappointment; the kind that’s sometimes more effective at quashing political action than a few nights in jail. Tony Blair might perhaps have found it less easy to ignore the striking Scottish train workers, whose actions threatened to derail the delivery of armaments and effectively halt the war. This was, of course, illegal: politicized industrial action without a direct workplace grievance enjoys no protection under UK law.

Nonetheless, you might still contend that this sort of policing is a reasonable price to pay to stamp out the ‘troublemakers’ – stock characters featured prominently in the press coverage of all protest and civil disobedience. Those from whom the respectable elements of protests take pains to distance themselves, and those in whose name protests can be banned altogether. The violent, lurking elements of our society from whose vicissitudes we need protecting. This rationale seems altogether more palatable if one falls reliably within the shifting category of the ‘we’ in need of protection – usually the wealthy, the white, the uncomplaining. The less likely one is to be at the angry end of a water cannon, the more likely one is to view it as an acceptable price of peace on our streets. Unfortunately for many, the subtlety and vagueness of legislation surrounding protest & ‘public order’ – now increasingly bound up with sprawling anti-terrorism legislation – makes it surprisingly easy to be a dangerous member of society from whom everyone else needs protecting. It suffices to redirect the route of your student march, or to jump the police barriers to take a shortcut to the tube stop. To stand in a menacing way too close to a public monument. To be a Muslim with some opinions on the Israel/Palestine conflict. To be black at the wrong time or place.

Something’s got to give. We must abandon ‘legal’ protest as a tactic, and call for its wholesale decriminalisation. In one sense, this is a modest proposal. No more than a revindication of a right which is already guaranteed us. Any one person has (in theory) the right to stand on the street. From here, one can simply extrapolate a collective right by adding one more person. Then perhaps a hundred, a thousand more. That rights are more effective when exercised collectively is an understanding lodged deep at the heart of paranoiac Tory policy-making.

In another sense, this proposal is totally quixotic. It would involve the unravelling of many provisions on surveillance, much of the current ‘anti-extremism’ legislation. An overhaul of   how the government views the public: more or less, as an inconvenience. But to welcome the power of collective action as a part of democracy would amount to the state wilfully defanging itself; obliging itself to continually prove its legitimacy not by the maintenance of an enforced peace, but by the judiciousness of its actions. It’s a necessary step towards a redressing of the imbalance of power between state and citizen - and a royal headache that few governments would welcome.

It is quixotic, yes. But quixotic according to a discourse that defines 'political realism' as a begrudging choice made between the offers of mainstream political parties – parties that spend their time scrapping across the vanishingly narrow territory that separates them from one another. And if we are to attempt to found a genuinely democratic settlement beyond that in which we find ourselves mired, we must expand the limits of the ‘possible’ in our political imagination. There are many words that can be used to dismiss political proposals as illegitimate, unfounded or mad. ‘Illegal’ is one of those words. ‘Impossible’ another.

Eleanor Penny

Eleanor Penny is a writer, editor, translator and poet. She's an editor at Novara Media, and is currently working at openDemocracyUK. She holds a degree in Philosophy & French from University College London. She tweets @eleanorkpenny.

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