British police escort protestors away from the Mall during the Queen's Birthday Parade, the Trooping the Colour, as part of Queen Elizabeth II's platinum jubilee celebrations, in London on June 2, 2022. Picture Credit: BEN STANSALL/AFP via Getty Images

Protest and the public good

Republicanism, free speech and the heckler’s veto

Artillery Row

That republicanism remains a criminal offence in Britain (at least on one reading of the Treason Felony Act 1848) is one of those things that appears in internet lists of “laws won’t believe are real!”. Of course, it is inconceivable today that a peaceful republican could be charged simply on that basis. No one has been charged under this offence since 1883, and in 2003, in a case brought by Alan Rusbridger, Britain’s highest court held that anyone prosecuting such a charge would not only be a “laughing stock” but would also fall foul of the Human Rights Act 1998. 

The Human Rights Act incorporates into domestic law the European Convention on Human Rights, including Articles 9, 10 and 11 dealing with freedom of conscience, expression and assembly. Quite apart from this, lawyers, politicians, public intellectuals and private citizens in Britain make much of their right to air controversial beliefs without state interference. Judges today cite Orwell in their rulings and politicians across the spectrum object to legislation on the grounds of “free speech” or the “right to protest”. All of this is captured by the simple and popular retort that “it’s a free country” (and, implicitly, that it should stay that way).

Yet much attention has been garnered in recent days by republican protestors seemingly being arrested or accosted for expressing this opinion in public. Three incidents have drawn particular publicity. 

The first and most publicised is the arrest of Mr Symon Hill in Oxford city centre for shouting (at least) “who elected him” during the proclamation of King Charles III. He has since been (in police speak) “de-arrested” and it seems unlikely charges will follow.

The second was the arrest of a woman in Scotland. As she appears to have been charged with an offence, little more can be said given reporting restrictions on live criminal proceedings.

The third was a group of people in Parliament square seemingly led away by police after holding signs reading “Not my King”. It is unclear if there was any arrest here, much less a charge.

The necessity of such laws should be apparent

In none of these cases do we have complete facts. For example, it has been alleged that Mr Hill was initially arrested on suspicion of breaking section 78 Police, Crime, Sentencing and Courts Act 2022 but Thames Valley Police now suggest it was section 5 Public Order Act 1986. This is perhaps because the 2022 Act has drawn loud condemnation from both the broader left and parts of the right. In truth, its only fault (if any) is not going further and abolishing the existing crime of public nuisance. As it is, the Act liberalises the old law by requiring that a prosecutor prove intention or recklessness by the defendant, while also requiring consideration of whether a conviction would be an interference with the defendant’s right of expression, and, if so, whether it would be proportionate.

It isn’t hard to accept that Hill’s case is such an interference with his expression, and we might assume here that the third incident also involved threatened or actual coercion by the police. The important question is whether such interference is justified. A number of commentators argued that no restriction on expression could be justified unless it is violent expression. As none of these persons were violent, it follows that any coercion represented overreach.

This has instinctive appeal. Although parts of the contemporary left would argue that some violent protest ought to be allowed, it is generally accepted that violence can be legitimately curtailed. However, while this is a bright line, simple to apply, it does not stand up to scrutiny. I have already mentioned one notable restriction unconnected to violence — reporting restrictions on criminal trials. Similarly, we have criminal laws prohibiting, for example, fraudulent statements, harassment, the selling of adult videos to children and the prevention of imminent civil disorder. Few would question restrictions on such (non-violent) expression. However, as many overlook, all states have laws against obstruction or disruption of public spaces. Most frequently this relates to obstruction of highways, but it is equally relevant to audible protests.

Not all restrictions are created equal

The necessity of such laws should be apparent. Public life would be impossible if any one person was afforded what is sometimes called the “heckler’s veto”. Most obviously, nothing useful could be done if Parliament, council meetings or the courts were drowned out by one person yelling over them. The public good would be subordinated to individual objection. But the right of people to participate in (and enjoy) society is not limited to political or legal proceedings inside buildings (or to being able to travel). To give some recent examples, it also applies to those wishing to watch the Boat Race, Jubilee marching bands or, indeed, the Proclamation of the new King (something that they may only see once in their lifetimes). 

None of this is to say that the state should curtail any annoying or disruptive expression. Far from it — people being annoying is one of the vicissitudes of life which we all must tolerate. Like many freedoms, a balance must be struck between the collective and the individual to ensure everyone has equal freedom. But this is a balance, and there comes a time when it must be struck by use of legal restriction. 

That being said, not all restrictions are created equal. Intrusion on the public good is usually balanced against free expression not by limiting what can and can’t be said but instead where and when types of expression can occur — and by enforcing this both by criminal penalties and less intrusive temporary detention or removal. 

People can (and do) frequently express republican sentiment online, in print and in the street. That brings us back to Mr Hill. His conduct went beyond shouting slogans in central Oxford. On his own account, he repeatedly interrupted the proclamation by shouting over the speaker and then arguing with other members of the public. He was removed by security and arrested by the police. Given his conduct, it was reasonable to take the view that he was intent on disrupting the Proclamation and to remove him on suspicion of public nuisance. However, all things considered charging him would have been disproportionate, and it is unsurprising this did not occur. 

It is of course right that free speech be jealously guarded

As to the silent protesters in Parliament Square, this is more difficult. Under New Labour, all protesting near Parliament was banned. The Coalition removed this restriction while prohibiting audible protests disrupting Parliament. The police still have powers to restrict the location of protests of two or more persons where there is risk of serious disorder, but there was no such risk here. However, the law also prohibits the obstruction of entrances to Parliament — again to ensure that its business can go on. As it appears they were by a gate, it is entirely possible the protesters were informed of this and told to move somewhere else. If this is what occurred it seems a legitimate restriction on expression.

It is of course right that free speech be jealously guarded, and any restrictions on expression be closely scrutinised (as some or all of these incidents will be, in open court). But to suggest that any interference with non-violent expression, no matter how disruptive, is clearly mistaken — disrupting the delicate balance the law strikes and radically undervaluing the public good.

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