At the same time that the UK government admonishes regimes like Syria and Bahrain for cracking down on peaceful protests, it is attacking our own demomocratic rights.
By Michael Mansfield
1 May 2012
Police "kettling" the April 2009 G20 protest in the City of London.
The Arab spring last year and the current struggles in Bahrain and Syria highlight the vital nature of collective public protest as the precursor and mainstay of any sensible form of effective democracy.
The UK is always quick to contrast these situations with the right to peaceful protest that is said to exist here, and to admonish regimes that do not exercise restraint – most recently at the Bahrain Grand Prix. For too long, however, we have overlooked and become anaesthetised to the inroads in our own backyard.
It is important to reflect upon and review the limitations that are frequently imposed on the exercise of the ordinary citizen's right to protest.
This has particular resonance in the runup to the Olympic Games when such concerns may surface once again. Connections between human achievement on the field and the human condition off the field are not difficult to understand. The patronage of sport cannot be divorced from the abuse of human rights where such a connection can be established.
The approach to protest, however, over the last three decades has become increasingly intolerant and intrusive, exemplified by the manhandling and ejection of 82-year-old Walter Wolfgang in 2005 for half a heckle at the Labour party conference in Brighton.
The Labour government introduced all kinds of restrictive legislation that gave powers of stop and search in extensive "sterile" zones designated by police, on the pretext of preventing terrorism.
These measures are in addition to all the other regulations about giving notice of numbers, duration and location. Beside the regulatory framework has been the steady development of specialist units, such as the Territorial Support Group, trained to operate in highly visible protective gear with long and short shields and with batons, often alongside the mounted division.
Their deployment has been notable as far back as the anti-racist marches and the death of Blair Peach in 1979, through the industrial struggles under Thatcher, the poll tax disturbances, and the more recent G20 and Climate Camp demonstrations.
A distinctive disincentive to the collective public voice, however, comes from the introduction of a tactical option which can and has impacted dramatically upon the freedom of movement of ordinary peaceful protesters and even accidental bystanders. Both can now expect the real risk of incarceration for long periods of time, eight or nine hours, without basic facilities, should they be in the wrong place at the wrong time.
They need have done no wrong and committed no offence. Presence is all that is required. The tactic has become known progressively as "corralling", "containment" or "kettling".
Early examples of this surfaced during the miners' strike in 1984 and can be witnessed on original footage used in the film The Battle for Orgreave by Yvette Vanson. Since then there have been a number of refinements and adaptations for the urban environment and it is now a standard procedure employed on a number of marches and rallies over the last 15 years. It is supposed to be an action of last resort, only used in exceptional circumstances, and only in a necessary and proportionate manner.
This has been challenged as a matter of principle in the courts on a number of occasions. Ultimately, last month it was endorsed at the highest level in Europe, the Grand Chamber of the European Court of Human Rights, as a legitimate power circumscribed by a number of necessary factors which then render the lawfulness of each decision to contain as case or fact specific. Put shortly it depends on the circumstances.
While this flexibility may be of considerable assistance to the police, it provides no reassurance or certainty to the public.
The case itself (Austin and others), stemmed from the 2001 Mayday demonstration and is of interest because it concerned four applicants, none of whom had committed or threatened to commit any offences. One was a woman demonstrator with a young child left at a creche, another happened to be shopping in the Oxford Street area and two worked locally. All were prevented from pursuing their legitimate activities for six to seven hours.
The majority of legal opinion in the judgment took the view that there was no deprivation of liberty although there was a serious restriction on freedom of movement. It was considered that this was no more than proportionate and necessary in the circumstances to prevent injury or damage.
Quite what level of actual or perceived violence triggers a need to impose containment is indeterminate. Quite what the threshold is that has to be crossed to convert a restriction into a deprivation of liberty is entirely unclear. Quite how officers on the cordons are to ascertain who to release, if anyone at all, is totally arbitrary and confused. Quite how anyone among a crowd of thousands is informed about duration and exit strategy is left to chance. Quite how the distress, anxiety and humiliation caused to ordinary citizens is balanced against the risk of disorder or damage caused by others cannot be readily calibrated.
One logical ramification of this doctrine is that a perfectly peaceful crowd maybe contained for hours to prevent a merger with others perceived to pose a threat.
These dilemmas are in urgent need of resolution for the benefit of all. They have been raised and examined by a cross-party parliamentary committee in 2011 but the parameters have yet to be defined.
In the absence of transparency most individuals will think twice about exercising this fundamental right and there will have been a significant erosion of freedoms we hold dear.