Photo by Mark Kerrison
Artillery Row

Mire of conflicting duties

Acceptable speech turns into unjustified coercion as police stand by

Last week Insulate Britain magnanimously announced it would suspend its forcible road-blocking campaign. Apart from noting the impudence of this announcement (remember the IRA sanctimoniously calling its Christmas ceasefires, as if this were something we should be grateful for?), commentators on Twitter, the tabloid press and indeed many of the general public, have found another question troubling. Why, in the face of deliberate criminality aimed at discommoding ordinary people (most of whom will have been less well-off than many of the protesters), did the police hold back, at times apparently chatting with the obstructionists and threatening with arrest any exasperated driver who tried to take steps to remove them? We aren’t told, but we can make some educated guesses.

There was a little-reported but symbolic change in the constables’ oath

One is that the police have more in common with the protesters’ worldview than makes one comfortable. Or rather, that their leaders do, together with those in charge of training (in the case of the police, there are distinct elements of Erich Ludendorff’s quip about lions led by donkeys). Insulate Britain, like its parallel organisation Extinction Rebellion, is posh protest personified. Hardly a black face or working-class accent in evidence; it is best described as the progressive middle classes’ version of Citizen Smith. So too with the police, or rather their senior leaders. They move in the same circles, and increasingly hold much the same views as the progressive establishment. Their staff college, the College of Policing, seems at least as interested in promoting equity and inclusivity,  insisting that all police officers have degrees and producing curious documents (like the guidance on hate crimes that fell to judicially review in the Harry Miller case), as they care about the mundane matter of suppressing low-level criminality.

There is also, one suspects, a further reason. This is the influence of human rights culture, and the idea of the police as upholders of political rights rather than the scourge of wrongdoers.

Nearly twenty years ago in 2002, there was a subtle, little-reported but very symbolic change in the oath sworn by all constables on appointment. Instead of the 19th century undertaking to serve the Queen “without fear or favour, malice or ill-will” in the course of keeping the peace and preventing crime, there is now a much more tendentious promise preceding the duty to keep the peace: namely, to act with “fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal respect to all people”. This requirement, thoroughly reflected as it is in police training today and imbued in policing culture, has two effects.

Human rights laws involve a subtlety well beyond the average constable

One is that all officers must keep at the front of their minds not only the law of the land but also two other guidelines: considerations of fairness and equality (whatever those mean), and human rights laws something peculiarly complex and frequently opaque, even to lawyers. Human rights laws involve a subtlety well beyond the average constable called out to police a tense situation. Put yourself in the position of a policeman, faced with a choice whether to intervene in a case involving illegality and an intent to inconvenience people, but where no-one is actually engaging in violence exactly the situation with Insulate Britain or Extinction Rebellion. You might well think that, if you wish to avoid future trouble and possible complaints of discrimination or unfairness, discretion and inaction would be the better part of valour.

Thanks to the pervasiveness of human rights culture, the constable’s traditional function of upholding the law ceases to be a black-and-white matter, and becomes a potential mire of conflicting duties. Even if the letter of the law says you should arrest a middle-aged protester or at least drag them off the M25 to prevent them obstructing it, there is always a possibility that someone somewhere will hold that this was contrary to their human rights. Once again, a cautious police officer intent on avoiding disciplinary hearings and a possible black mark, may well conclude that it is better to let sleeping dogs lie (at least for the moment), condone the illegality and avoid possible violence.

In the case of the M25 protests there was indeed a human rights angle, which was likely at the back of police commanders’ minds even if very few mentioned the fact at the time.

Four years ago something very similar had happened. Demonstrators in 2017 deliberately blocked roads leading to a weapons fair, and prevented anyone using them, arguing when prosecuted that this was permitted free speech under the European Convention. Despite a rather convincing argument from the prosecution that speech was speech, and that free speech ought to stop precisely where you deliberately acted to prevent someone else coming and going as he pleased, the Supreme Court in June this year decided they were right. The deliberate breach of the law, with the intent to physically inconvenience the public was not enough. 

Phalanxes of police stood by impassive

According to the jurisprudence of the well-meaning judges in Strasbourg, even illegal obstruction might be justified in protesting a good cause, provided it did not last too long. Indeed the state would be in breach of its human rights obligations if it took any steps to prevent it. No wonder, then, that phalanxes of police stood by impassive while frustrated drivers honked their horns. Even if Priti Patel, as promised, passes more draconian laws, she will still come up against the human rights blockage as soon as she tries to enforce them.

Of course this isn’t satisfactory. Freedom of speech should be a simple matter of the right to say what you like, however distressing other people may find it. It certainly ought not to extend to licensing demonstrators deliberately to interfere with other people’s freedom to go where they want, since this is precisely where acceptable speech turns into unjustified coercion. It is bad enough for the European Court of Human Rights to tell us that this is wrong, and that in every case my right to come and go without physical coercion is merely one thing to be weighed in the balance against your right forcefully to put your point of view across: that this should be regarded as a matter of human rights better entrusted to unelected supranational judges rather than elected politicians is worse.

There may be one saving grace. Human rights overreach in the name of the European Convention on Human Rights is becoming ever more blatant; and the more obvious it gets, the closer governments will look at the whole institution. Today it may not be just a matter of tinkering with the Human Rights Act. We need seriously to consider whether we should participate at all, or simply give our statutory six months’ notice to withdraw from the entire European human rights system. Dominic Raab has allowed he is open to ideas on our human rights future. This is one he should add to the mix.

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