20 January 2022

Balance of Rights

Freedom to act and speak.

By Lynda Goetz

‘It is the duty of peers and MPs to strike a proper balance between the rights of a small number of protesters and those of everyone else’, concluded the Daily Telegraph editorial yesterday, after pondering the rejection by peers of almost all of the amendments which the Government had added to its Police, Crimes, Sentencing and Courts Bill.  In an attempt to deal with the likes of campaigners Extinction Rebellion and its offshoot Insulate Britain, whose antics had brought parts of the country to a standstill last year, late-stage amendments had been included before the Bill went to the House of Lords.  The Lords threw them out and for good measure added some of its own.

It is true that many people were concerned at what they considered to be unfair restrictions/limitations to the long-held right in this country to ‘peaceful protest’.  Justice, an ‘all-party law reform and human rights organisation’, briefed the House of Lords on its views and objections to a number of the proposed amendments, including the whole of Part 3 on Public Order. Some of its reservations were around issues of widespread concern; for example, the ‘stop and search’ clauses and clauses 56 and 57, with noise as a trigger for the police to impose conditions; nevertheless, the rejection of so many of the Government’s amendments has had the result, as the Telegraph put it of ‘eviscerating’ the bill.  This is possibly not what the law-abiding majority in the country want. 

It was widely reported last week that a jury had cleared three Extinction Rebellion protesters of disrupting the railway after they had climbed onto the roof of a train in Shadwell station in October 2017, causing delays of well over an hour and attendant disruption. Like the ‘Colston Four’ a few weeks ago, there was no denying that the ‘Shadwell Three’ had taken the actions of which they were accused; however, they pleaded ‘not guilty’ on the basis of their beliefs and their right to protest.  In both cases, juries bought that argument and they were acquitted. Judge Reid had told the jury that protest rights under the European Convention of Human Rights (ECHR) ‘gives them and us the freedom of belief, expression and the right to freedom of assembly’, adding: ‘Are we sure that a conviction of the defendant for obstructing the railway is necessary in a democratic society in the interest of public safety, prevention of disorder or protection of rights and freedoms of others?’

The reaction of lawyers, politicians and the public to these decisions has been mixed. Whilst no-one has sought to deny the benefits of jury trials, nor to limit access to them, there has been concern that the system is being misused and that others in similar positions would seek to pursue the same course.  The waters have also been more than a little muddied by the decision of the Supreme Court in DPP v Ziegler, now known as the Ziegler judgement. In this, the Supreme Court concluded that, as originally argued by the defendants’ lawyers, the interference with their rights under the ECHR to be lacking ‘proportionality’.

It does seem more than a little strange that, at a time when our liberty to say or write, in any media, what we think or believe is increasingly curtailed on the grounds that someone else might ‘perceive’ it to be offensive, our right to actions which impact very directly on the right of others to go about their lawful business can apparently be freely taken in pursuit of beliefs or in support of causes.  This is entirely incongruous.

Last week, around about the same time that the Shadwell Three were acquitted, Professor James Treadwell, a criminologist at Staffordshire University was advised by the university that ‘formal and official’ complaints had been made against him for his comments on Twitter arguing that transgender women shouldn’t be allowed in women’s prisons. Readers of StokeonTrentlive have taken to social media apparently to condemn the attempts to get the Professor sacked. This of course is only one incident and it does appear that ‘complaints’ should actually read ‘a complaint’, but it is the latest in a list of similar incidents and indicative of the intolerant mood on university campuses.  Universities, as the Government has made quite clear, should be places where freedom of speech is a given and ‘cancel culture’ is cancelled. Their Higher Education (Free Speech) Bill is still only at the Report stage in the House of Commons, but aims to redress the lack of both academic freedom and free speech on campuses which has driven out the likes of Professor Kathleen Stock (see Shaw Sheet Trans Fear Nov 2021) and cancelled celebrity speakers with whom academics or student union leaders disagree.

The government has said it would consider drawing up a separate bill to bring in the ‘draconian’ rules thrown out by the Lords earlier this week.  Should it do so, there will then be ample time to give careful consideration to such measures and have them properly debated before being passed. It is probably fair to say that a majority believed that existing laws about obstructing highways and railways would have been sufficient to prevent the sorts of activities witnessed last year, but apparently not.  This being the case, and bearing in mind the verdicts given by juries recently, it is not at all unreasonable for a government to consider revisiting legislation which is clearly not having the intended result.

The right to protest is one thing, and it is important. None of us has any wish to live in a Hong Kong, a Belarus or a Kazakhstan, but the right of self-righteous minorities repeatedly to bring parts of the country to a halt and to prevent others from going about their lawful business for hours or even days on end is not in the interests of any kind of justice. Nor, it has to be said, is the silencing of majority views by vociferous minorities protected by laws which rely on the ‘perceptions’ of the so-called victims. Harry Miller’s victory in the courts at the end of last year was a milestone in terms of this particular fight, but there remains a long way to go for freedom of speech to be something, like freedom to protest, which we can take for granted.

Cover page image: Clem Onojeghuo (Unsplash).