Have we ever had a "right to protest"?
In this section, I intend to answer the above question, drawing on a variety of sources. I will be looking at both the legal and moral spheres, in the attempt to define whether the "right to protest" has ever existed in either or both of those terms. The question of whether one has a right to protest also, of course, includes the question of whether one has a duty to protest a situation that offends one's morals.
Tony Honore has some interesting points to make on this topic, in his essay "The Right to Rebel". However, his definition of "rebellion" seems necessarily to include violence, which is not quite what I mean by the term "protest". I will be using the term to refer to all forms of dissent, including peaceful marches, and financial support of blacklisted organisations. Nevertheless, some of his arguments are still relevant to the point at hand.
For example, Honore asserts that unless "in certain conditions we have the right to rebel, much talk of human rights can be dismissed as empty rhetoric" , since if one does not have the right to protest the conditions one lives in, then how can one demand other rights? To put it another way, the right to protest cannot exist without "the right to freedom from arbitrary arrest, detention, and exile" , as otherwise, the governmental regime against which one is protesting can simply remove all dissident elements of society.
The largest protests in recent years have all had at their heart a perceived denial of some other right, either on the part of the protestors themselves, or on behalf of others. For example, the anti-globalisation protests in Seattle and Genoa were, at least in part, an attempt to secure better working and living conditions for residents of Third World countries, especially those employed by multi-national corporations.
Honore argues, on which point I agree with him whole-heartedly, that there are certain circumstances in which one has a moral right to protest, either in the form of marches and rallies or, in more extreme cases, by engaging in direct action. As he says "it is oppression and exploitation [either of the protestors, or of others who cannot speak for themselves, for what-ever reason] that may justify rebellion and disqualify the defence of a tyrannical way of life" . This protest may take many forms, all of which can be justified in certain circumstances.
Naturally, it is always preferable to protest peacefully, where this is possible. Mass marches and rallies stand a better chance of winning the approval of the general public than a violent protest ever will. However, when all other possibilities have been exhausted, and the protestors or those for whom they are fighting are in direct danger of continued oppression or worse, I believe that sometimes, one can have the moral right to use force in order to achieve a worthy aim. This is espe-cially true once the state has used force in an attempt to quell the protests. As Honore says, once this has happened, the protestors may "treat [the state] as a hostile force, and meet it as they see fit, whether by way of defence, pre-emptive strike, or counter-attack" .
However, just because one has the moral right to do something, does not mean one always has the legal right. One cannot reasonably expect as a matter of course that states "grant their subjects a right to secede or rebel. Still, they sometimes do so" , although the assertion of this right is not always legally binding. The American Declaration of Independence, for ex-ample, states that "whenever a form of government is destructive of the ends for which government is instituted, 'it is the right of the people to alter or abolish it'. Formal provisions of like sort featured in the state constitutions of New Hampshire, Pennsylvania and Delaware" . The German Federal Republic also conceded "to citizens, including officials, a right to resist any attempt to subvert the democratic foundations of the state" .
The Universal Declaration of Human Rights, as laid down by the United Nations, makes no explicit mention of the right to rebel. The preamble to this document does assert that "it is essential, if man is not to be compelled to have recourse as a last resort to rebellion against tyranny and oppression, that human rights should be protected by the rule of law". This would seem to imply an acceptance of rebellion or protest as a valid method of protecting human rights, on one's own behalf, or on behalf of others. However, "this clause can be taken in more than one way. It could be meant simply to warn states how best to avoid rebellion" , rather than condoning it. If one subscribes to this interpretation, the Universal Declaration might easily be viewed as "intended to confer rights not on individual citizens but exclusively on states" .
Nevertheless, one could interpret the Universal Declaration as lending its support to protest, even to violent rebellion, if the circumstances warrant it - and of course, the decision on whether the circumstances warrant such action depends on individ-ual discretion. However, the discretion in question almost always belongs to state officials, who are not likely to condone anything more than the most peaceful and anodyne form of protest.
In any case, the Universal Declaration of Human Rights is powerless to change anything, even in UN member countries, where they have not signed and ratified it. Whether or not one believes that the Declaration grants a right to protest, and condones any necessary action that may be taken, what really matters is the laws laid down within each individual country. If the laws of a certain country are designed to limit protest, or even to prevent it altogether, then whether or not that country has signed the Declaration, its citizens do not have a legal right to protest.
This point will be elaborated on further in the next section, with a discussion of certain legislation recently put in place in the United Kingdom, with the express purpose of limiting dissent.
The two most important pieces of legislation limiting dissent put into place in recent years are the Prevention of Terrorism Act and the Criminal Justice and Public Order Act. In this section, I will be looking at the provisions and powers of both acts.
The Prevention of Terrorism Act was first introduced in 1974, "following the Birmingham pub bombings [in November of that year]. Although originally justified as a temporary measure, [it] has been renewed three times since, each time retain-ing the word "temporary" in its title" . Originally intended to counter the threat of the IRA, it was revised ten years later to include "any acts of terrorism of any other description except acts connected solely with the affairs of the United Kingdom or any part of the United Kingdom other than Northern Ireland".
The Act's provisions now allow for "the proscription of organizations said to be involved in terroristic activities; the deten-tion, for up to seven days, of those believed to be involved in such activities; and the exclusion of British subjects from one part of the United Kingdom to the other". It also makes the withholding of information about possible terrorist attacks a criminal offence.
Since 1989, the wording of the Act has placed the proscription of organizations at the direct discretion of the Secretary of State. According to a report made to the UN Human Rights Commission in 1990, it "is an offense under the 1978, 1987 and 1989 Acts to belong to a proscribed organization; to solicit support for or contribute to the resources of a proscribed organi-zation; to arrange meetings in support of a proscribed organization; and to display support in public for a proscribed organi-zation" . What this means, in effect, (especially in light of the final provision) is that if someone were to "display, carry or wear in public anything which suggests that [they are] a member or supporter of a proscribed organization - even if he or she is not" - they would be guilty of a criminal offence and might even be sentenced to imprisonment. This has happened to people for such innocuous "crimes" as raising money to support the families of convicted IRA members.
The provisions for detention under the Prevention of Terrorism Act are also extremely strict, to put it mildly. The Act "authorizes the detention for up to seven days [without charge] of persons believed to belong to a proscribed organization or to be guilty of other offenses under the Act" . For the first 48 hours of this detention, the police are not obliged to notify the detainee's friends or family, or to provide him or her with a lawyer.
In light of the fact that this act, originally intended as an emergency measure during a time of crisis, has now been on the books for nearly thirty years, during which time there have been several IRA cease-fires, it does not seem unreasonable to consider it a serious breach of civil liberties. Indeed, groups whose entire existence is dedicated to upholding civil rights, such as Liberty, have published reports on the Prevention of Terrorism Act.
However, more recently, another bill has been enacted which is of even more concern for defenders of civil liberties and the right to protest. This is the Criminal Justice and Public Order Act, enacted in 1994, which was never intended to be only an emergency measure, and thus is not required to undergo review or renewal.
The provisions of the Criminal Justice and Public Order Act include drastically increased police powers over public gather-ings and trespassers. The Act grants the police new powers to "stop and search" for a period of twenty-four hours (with pos-sible extension for a further six hours), where a senior officer believes that "incidents involving serious violence may take place in any locality in his area, and it is expedient to do so to prevent their occurrence". During these searches, any police officer has the right under the Act to seize any "dangerous instrument or an article which he has reasonable grounds for sus-pecting to be an offensive weapon". They need not previously have any "grounds for suspecting that the person or vehicle is carrying weapons or articles of that kind". The Act also removes the previously sacrosanct "right to silence in custody and in court" . Obviously, this is of great concern to anyone wishing to engage in direct action, or even a peaceful march or rally not cleared with the police in advance, to the extent that the Act was "described by [human rights pressure group] Liberty as the most wide-ranging attack on human rights in the UK" .
The Act also criminalised activities that had never previously been punishable offences under the law, such as "intent to cause a person harassment, alarm or distress" and "intent to damage property". Therefore, under these sections, one would not have to actually harm or distress a person or damage their property, as long as the courts can prove that at some point, one intended to do so. Actions covered under this provision include using "threatening, abusive or insulting words or be-haviour, or disorderly behaviour" and displaying "any writing, sign or other visible representation which is threatening, abu-sive or insulting", as long as intent to cause distress can be proved. This section seems designed to limit the more direct forms of protest, since "intent" to do anything is a very nebulous charge, and depends largely on an individual's perception, unlike the more concrete offences where physical damage has actually been done.
Its other provisions include increased police powers connected with terrorism. Any uniformed police officer may now "stop any vehicle or person and make any search he thinks fit whether or not he has any grounds for suspecting that the vehicle or person is carrying [articles of a kind which could be used for a purpose connected with the commission, preparation or in-stigation of acts of terrorism". Anyone resisting such searches, whether because they have "articles" to hide or because they know they are innocent, may be charged with obstruction and can be fined or imprisoned for up to six months. It is also an offence to "collect or record any information which is of such a nature as is likely to be useful to terrorists", whether or not there is any evidence that the accused was supplying such information to terrorists.
The effects of the legislation on the right to protest
Both the aforementioned pieces of legislation have significant effects on the right to protest. The Prevention of Terrorism Act is particularly worrying since under its new provisions, anyone expressing dissent could be treated as a terrorist, even if their chosen form of protest is non-violent. Effectively, it is a declaration that "terrorists" are a worse kind of criminal than any other, whatever it is they actually do - those "motivated by political, religious, or ideological factors when committing crime will have fewer rights than a person who assaults another for revenge or greed" . The Act as it was passed contra-venes several rights central to the expression of dissent: it infringes "the right of people to join organisations, regardless of whether or not they personally take part in criminal activity" and prevents "people from exercising the right to free speech" .
This becomes particularly clear when one reads the section of the Act listing the new punishable offences: "the use of seri-ous violence against persons or property, or the threat to use such violence to intimidate the Government, the public or any section of the public for political, religious, or ideological ends". Elsewhere in the Act, terrorism is defined as "The use or threat of action for a political, religious or ideological cause involving serious violence against any person or property that endangers life or creates a serious risk to the health and safety of the public". It could be argued, and no doubt will be, that any large gathering of people with the aim of protesting against any government policy constitutes a threat of violence, even if every member of that crowd had only peaceful intentions. These provisions are also clearly aimed at criminalising direct action, which often involves the destruction of property, especially in protests against genetically modified crops.
This is compounded by the idea of having blacklisted organisations: most of them those who encourage or engage in direct action, such as Reclaim The Streets or the Animal Liberation Front. This demonisation of protest groups in the eyes of the general public will do more to kill large-scale protest than anything else the government could do, since it will create the impression that direct-action protestors are in some way "bad people" and deserve everything they get. The best way to eliminate the right to protest without anybody noticing is to marginalise those who would participate in large-scale protests and direct action - and that is exactly what the Prevention of Terrorism Act is intended to do. As the alternative newspaper Schnews puts it, the Act targets "environmental groups, animal rights protestors, and anyone who shows a social or moral conscience" .
In short, then, the Prevention of Terrorism Act's main, perhaps even sole, reason for existing is "to curb the right to protest, and it is undoubtedly the most draconian" of all the pieces of legislation passed with similar aims. Towards this aim, the Act has made it a crime to support proscribed groups even in the mildest of ways, and "the burden is on the accused to show they have a good excuse" for whatever they are supposed to have done.
The Criminal Justice and Public Order Act, if fully implemented, also has a worrying effect on the right to protest. Again, like the Prevention of Terrorism Act, it is "aimed directly at "marginalised" groups" , including protestors. The provisions causing the greatest concern are those that challenge the right to assembly and authorise the police "to stop and turn back anybody suspected of intending to go to a gathering" . This, clearly, could be used to prevent any large-scale protest from taking place, since it is impossible to plan such a thing in complete secrecy, and any advance warning would allow the po-lice to take action against it, should they so wish. The new "stop and search" powers granted to the police are also particu-larly worrying.
The core of the new legislation is the ancient offence of Breach of the Peace: this has always been punishable by incarcera-tion, but the definition of what, exactly, constitutes Breach of the Peace has been widened under the Criminal Justice and Public Order Act. The basic definition is any activity that "causes someone to either fear for their safety or fear that damage will be caused to their property" , both of which are expressly mentioned as offences under the CJA. The author of the article I have just quoted believes, and I am inclined to agree with him, that this is just another sign that "our right to protest has been systematically eroded so that politicians now talk of peaceful demonstrations in a critical and derisive manner" . This part of the law has become "one of the main tools the police use to prevent peaceful protest" .
It seems inescapable that the government of this country, as can be seen in the laws they choose to pass, is "wholly biased against peaceful protest. At virtually every stage you run the risk of arrest. […] There is no written right to peaceful pro-test and government continues to whittle away what few freedoms are left" . That is the real effect of much of the legisla-tion passed in recent years, though these measures are promoted as anti-terrorist, or as an attempt to preserve public order.
Implications and Consequences
The implications of this stripping away of the right to protest have already been partially discussed in previous sections of this essay. The British government, while talking about democracy, does not want any kind of large-scale dissent, and is doing all it can to prevent the expression of any such dissent.
The government, if asked, would no doubt say that the only implication of this legislation is that terrorism is still very much a danger, and that the British public must be protected from such violent people. However, things look very different from the other side of the argument, when one is actually a protestor or sympathetic towards them, and many people have spoken out against the legislation.
One implication of the two acts discussed, which is of particular concern, is to do with human rights. The governments of both Britain and America, although they may not have expressed it openly, clearly believe that they need to curtail civil liberties, which are being portrayed as "unaffordable luxuries because of the security threat posed by terrorism" . More worrying still is the fact that several provisions of the Acts contravene the European Convention on Human Rights, espe-cially those sections covering freedom of speech.
The implications of this are clear, and they are frightening. If one is being charitable, one might say that our leaders in Par-liament genuinely believe that it is necessary to sacrifice a certain amount of freedom of speech, and the minority's right not to be persecuted by the police, in order to protect the majority of British citizens. However, just because they believe it, does not necessarily mean it is right or true, and would not excuse them if it did. To quote Benjamin Franklin, "Those who would sacrifice liberty for security deserve neither".
Then, of course, there is the less charitable viewpoint, which holds that the politicians currently in power are not nearly as afraid of terrorism as they would have us believe. Subscribers to this view maintain that the government is manipulating the public fear of terrorists in order to get rid of those who really pose a threat to their positions of power: the ordinary people who disagree with some aspect of our world, and are not afraid to express their dissent.
Whichever is the truth, or whether it is some mixture of the two possibilities, one thing is incontrovertibly true. Whatever their motives, the government, in a process lasting years, has been working to erode our right to protest under the law, and therefore our civil liberties and even their much vaunted democracy.
The consequences of the legislation cannot be discussed with any certainty until a few more years have passed. However, certain events in recent years can be taken as pointing to the way things are going.
The first of these is, of course, the G8 protests in Genoa, in the summer of 2001. These were well publicised at the time, and the aftermath is well known, but it is worth a little more discussion. I am not taking the fatal shooting of Carlo Giuliani as a sign of any wider trend. It was, of course, tragic, but the evidence suggests that it was a one-off incident, rather than reflecting any policy, and it appears not to have been ordered.
The use of tear-gas on protestors, and the events at the media centre that night, are far more worrying. The police raid on the media centre, and the arrest of many of those present, including journalists, was an attack of staggering violence. To quote Paul Kingsnorth in his book, "One No, Many Yeses": the carabinieri "attack people with truncheons while they sleep; they beat journalists unconscious in the street outside; they punch, kick, grope and batter defenceless people who offer no resistance". After the arrests, it is claimed that the police tortured their prisoners.
The events discussed above are an extreme case and, of course, they did not take place in Britain. However, they can be taken as a worrying precedent, and a possible sign of things to come, as implicitly condoned by the anti-terrorist legislation I have mentioned.
The provision under the Prevention of Terrorism Act for the police to hold terror suspects for up to 48 hours without noti-fying anyone, allowing a phone call, or providing a lawyer, while I am sure it was not intended to encourage police brutal-ity, may well have that effect all the same. If a police officer who might have been inclined to brutality, but previously held back due to fear of punishment, suddenly finds himself with a suspect, before or after arrest, and 48 hours to let the bruises heal, there is only one likely outcome.
The other potential consequences of the legislation are not so directly worrying for protestors themselves, but may well end up defeating the object for which the laws were ostensibly passed in the first place. Real terrorists are far from being stupid, and they will find a way to avoid detection and arrest. On the other hand, if the intent of the laws was to stop direct action groups from doing what they do, as it seems indeed to be, then that will not work either. All the legislation will achieve is to drive these alleged "terrorists" underground, where the police cannot so easily track their activities. It may even tip a few over the edge into real terrorism. In any event, the laws are counter-productive and harmful.
In conclusion, then, the recent changes in British legislation have curtailed the right to protest to an alarming degree: as much as they could without making it inescapably obvious that that was what they were doing. However, it may yet get worse. When the lawmakers realise that their attempts to curtail protest under the guise of terrorism have not worked, it is very likely that they will attempt still more drastic measures to stifle any still-existing dissent. And the irony is that they will do it all in the name of protecting democracy.