Protest may be rude but it doesn’t merit arrest
Adam Wagner
Sunday September 18 2022, 12.01am BST, The Sunday Times
‘The truth will set you free,” said Gloria Steinem, “but first it will piss you off.” Quite a few people felt that sentiment last week about protesters expressing republican views at events around the country. And those protesters have been equally perturbed by the proclamation of a new King.
The police have been caught in the middle and seem to have overreached. A woman in Edinburgh was charged with breach of the peace after holding up a sweary sign expressing republican sentiments, a
man was arrested for shouting “Who elected him?” at a proclamation event in Oxford and — somewhat surreally — a barrister protesting outside parliament was threatened with arrest for holding a blank piece of paper, but only if he wrote “Not my King” on it.
Everyone agrees that freedom of speech is important. That’s easy. The difficulty is deciding how to manage protests in public spaces. Protests can be disruptive, offensive — even annoying. But the point of a protest is to get people’s attention. Sometimes that means being provocative.
“Rights worth having are unruly things,” Lord Justice Laws said in a case about protests against nuclear weapons. “Demonstrations and protests are liable to be a nuisance. They are liable to be inconvenient and tiresome, or at least perceived as such by others who are out of sympathy with them.” But, he said, the government’s “shoulders are surely broad enough to cope”.
Liberal societies need to have broad shoulders, because peaceful protest is often how ideas are challenged. We all benefit, even when this challenge happens at times of great public emotion. And that’s the problem with protesting against the monarchy — often the best opportunity to get people’s attention is during a family function. And whether it is a wedding or a funeral, the same objection arises: this isn’t the time. To which protesters respond: if not now, when?
To add to the complication, in the age of culture wars it is easy for people to confuse support for free speech with support for the cause of the protest itself. This is a mistake — if we don’t support the right of people to speak out on causes we disagree with, we can hardly complain when they don’t support us.
What are police to do? Being offensive or disrespectful isn’t against the law. The keystones should be violence and the threat of violence — if there is no likelihood of violence, police should leave well alone.
But this government has muddied the waters. Until this year the focus was on section 5 of the Public Order Act 1986, which prohibits using “threatening or abusive words or behaviour or disorderly behaviour” and displaying any writing, sign or visible representation that is “threatening or abusive”. There is a defence of “reasonable excuse”, which can include expressing your right to freedom of speech.
Now, added to that, is the new statutory offence of causing “public nuisance” in the Policing Crime, Sentencing and Courts Act, which can include causing “serious annoyance”. This provision, included to make it more difficult for mass movements such as Extinction Rebellion and Black Lives Matter to operate, is vague and moves our criminal law further from the laudable aim of preventing violence and closer to a point where the police become the arbiters of public decency.
This may stop some “annoying” protests going ahead, but in the most part it will serve only to increase tension between the police and citizens trying to express themselves. And this will be bad for everyone.
For my upcoming book, Emergency State, I examined the first two years of the pandemic through the more than 100 restrictive laws that locked down the country. During the summer of 2020 an exception to restrictions was permitted for outdoor socially distanced protest. But in the autumn, as cases began to climb, the exception was removed, apparently at the instruction of the home secretary.
Although protest was never explicitly banned, the Metropolitan Police behaved as if it was. That led to women being physically removed from the vigil after the
death of Sarah Everard. This year the High Court ruled that the police’s actions had been unlawful, breaching the protesters’ right to freedom of assembly. The police, the court said, should have facilitated that right.
This is not what the police want to be doing. In my book I relate conversations with officers distressed by the strain of policing the pandemic. The only effect of increasing vague anti-free-speech laws is to put more pressure on the police and to fray the bond of trust with the public.
Police certainly shouldn’t be arresting people for holding up signs, even if they are a bit rude. People should be given latitude to express themselves if they are doing so peacefully. But I also think the police are between a rock and hard place, because of the state the government has left the law in. The monarchy is a fundamental part of our identity. So is the right to free speech. We can find a way to respect both — and that’s the truth.
Adam Wagner is a barrister at Doughty Street Chambers. His debut book, Emergency State: How We Lost Our Freedoms in the Pandemic and Why it Matters, is published on October 13 by Vintage
). Sadly, my observation is that 'progressive' groups tend to do that a lot. Looks to me like, in this case, there is a valid possible concern that might become apparent once we know what the proposals are.
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