POLICING public protest has always been difficult. Recent decisions of the courts, however, have made it a whole lot harder.

Is it any wonder that Holyrood and Westminster alike are trying to tighten up the law? With COP26 only a matter of weeks away – with all the incentive it offers to those disciples of disruption, Extinction Rebellion – this is a time not only for cool heads, but for clear rules, too.

Yet the state of our law of public protest is not remotely fit for purpose. Partly, this is because of the changing nature of protest and the law’s inability to keep up. When the Public Order Act was written (in 1986), we knew about assemblies and processions, but not so much about the occupy movement, about folk chaining themselves to concrete blocks in the middle of the street, or about people clambering aboard fragile bamboo and cardboard structures designed so that, if the police move them, they will crash to the tarmac and injure themselves.

Our politicians do not care enough about this because, for them, there is an easy get-out clause. The law allows a place such as Holyrood’s grand estate to be a specially designated “protected site”, meaning that no one “without lawful authority” may assemble there. That’s a clear rule, and admits of no exceptions.

What is scandalous about Holyrood deciding to adopt that rule for itself is that it did so in secret, behind closed doors, with not even a debate, never mind a vote. A new kind of politics, anyone?

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But not everywhere can be designated a specially protected site. And for the rest of us, the courts have made such a hash of this area of law that it is anything but clear. The law is now that the police may remove protesters from obstructing the highway only if there are no “less restrictive alternative means” available to them and, even then, only if to do so strikes a “fair balance between the rights of the individual and the general interest of the community, including the rights of others”.

So said the Supreme Court in its most recent ruling on public protest, the Ziegler judgment, in June. Ziegler and his associates had occupied a street outside London’s Excel Centre, blocking it entirely, in order to disrupt the Defence and Security International arms fair being held there. Ziegler’s mob had given no notice to the police of their intention to do this. It took the police more than an hour and a half to cut the protesters free from the concrete into which they had planted themselves. During this period no one could use the road in question at all – it was blocked entirely.

Now, if you consult the statute book you will find that this is a straightforward criminal offence. Section 137 of the Highways Act 1980 provides that “if a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence”. Yet, because of the way these words have been twisted by force of misunderstood and misapplied human rights law, this provision no longer means what it says.

What it now means is that a person is not guilty of the offence of wilful obstruction if a court rules – long after the event – that their right to protest needed, on something called a “fair balance”, to be given greater weight than the public’s right to use the highway for what it was built for (that is to say, for moving from one place to another). This is gobbledegook. It is not what the European Convention on Human Rights was intended to mean, but it is what it has come to mean at the hands of the human rights lawyers.

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The European Convention gives us the right to freedom of peaceful assembly. It is not an absolute right – it is qualified. Yet the human rights lawyers have whittled down those qualifiers to such a point that the all-important word “peaceful” now means next to nothing. It is not a peaceful use of the highway to block it. That is an abuse of the highway. Highways are designed not to keep people still but to allow them to move. Preventing that movement should on no account be regarded as an act of peaceful protest. It’s wilfully disruptive protest. It stops people from going about their lawful business, irrespective of what that business is.

It’s no wonder that the police are up in arms about this ridiculous ruling. They are rightly aghast, and are asking themselves how on earth they are now supposed to go about their job of ensuring that public protest can happen – as happen it must, in a democracy – in a manner that does not interfere with other people’s right to be left alone and to get on with their lives.

In Westminster, the UK government had already decided it needed to revisit the law of public protest, even before the disastrous Ziegler judgment. Its proposals were debated in the House of Lords yesterday. They have met with howls of hysteria from the human rights lobby but the truth is that the proposed amendments to the Public Order Act are modest indeed, and will do little to get to the heart of the problem. Tinkering with the rules about assemblies and processions may be a necessary first step, but a much more fundamental rethink of our law of public protest is required.

Don’t hold your breath, however, for this would require both careful thought and open debate. So much easier for politicians to hide – to designate their workplaces sites of special protection, thereby pushing protest away from places such as Holyrood’s sprawling estate and onto the roads and the streets where the rest of us are just trying to go about our business.

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