The right to protest is dear to our hearts. So too the rule of law. Both are in play in the consideration of public order legislation and it is this part of the mammoth Police, Crime, Sentencing and Courts Bill, now entering report stage before the House of Lords, that is currently so strenuously exercising government and public alike.
I want to focus here on those acting in the name of Insulate Britain (IB) and their extreme form of highway obstruction. But I should perhaps begin by stating my own position, which is quite simply that IB’s stance is unforgivable and that the statutory sanctions available against them should be strengthened. That said, I regard most of the proposed new provisions in this part of the Bill as quite unnecessary and unhelpful. Let me explain.
In this context, the right to protest is really an amalgam of the rights arising out of articles 10 and 11 of the European Convention on Human Rights: those of freedom of expression and freedom of peaceful assembly respectively. These together allow people to gather and make their viewpoints forcibly heard. To what extent, however—and this is really the crunch point arising in IB's case—is this reconcilable with the rights of other people to free passage along public highways?
Anyone wilfully obstructing a highway “without lawful authority or excuse” is currently liable to a fine of up to £1,000; section 137 of the Highways Act 1980. Altogether too little attention seems to have been paid to the judgment on 25th June of the Supreme Court in DPP v Ziegler, which directly concerned this very provision. This held, correctly in my view, that “without lawful authority or excuse” encompasses “unreasonably” and that—in the light of articles 10 and 11 of the ECHR—highway obstruction by protesters can, if proportionate, be reasonable.
Much of the 61-page decision in Ziegler is devoted to consideration of just what sort of highway obstruction could satisfy this test and what criteria are to be applied in determining proportionality. The protesters in Ziegler had occupied one side of a dual carriageway approaching London’s ExCel Centre, where an arms fair was being held. They aimed in part to draw attention to their objection to the arms trade, in part to disrupt deliveries to the centre. It had, moreover, taken the police only some 90 minutes to remove them.
The distinctions between that case and what IB are engaged in hardly need emphasis. The obstruction in Ziegler was closely targeted at the precise object of the protest. Here, by contrast, the protesters seek the maximum disruption of the national highway system with no link whatever between their specific cause and the particular roads being obstructed.
Their underlying cause is of course to avert environmental catastrophe through climate change. Certainly this can be characterised as “an existential threat.” But, save for a tiny quixotic minority, the whole nation—and certainly the government—is fully alive to this threat and the imperative need to address it urgently; it really cannot be said to need to be brought dramatically to public attention. IB’s specific and immediate cause is rather to force the government to promise to insulate the nation’s entire housing stock by 2030. No doubt that is a most desirable objective. But so too are various other plans and policies being pursued by the government to combat the threat and clearly all have resource implications, so that the advancement of one is highly likely to prejudice another.
What, therefore, is surely unacceptable is IB’s assumed right to insist on their own preferred means of combating the problem and to hold the nation to ransom until they get it. Surely their proposed approach must give way to whatever competing approach is decided on by the democratically elected government.
What if some other, equally well-intentioned though misguided, group should propose what they regard as a better course still—say, the banning of all non-electric private transport by 2025? Should they too occupy (or perhaps, to distinguish themselves, instead dig up) our busiest highways?
The short point is that the rule of law allows for the vital and rightly treasured democratic rights of protest and assembly. But it also necessarily requires limits to be placed on those rights. To act as IB are doing not merely risks bringing these rights into disrepute, but surely borders on the approach of blackmailers. IB is not to be tolerated.
