4
Examination of witnesses
Professor Katrina Navickas, Professor Geoff Pearson and Dr Richard Martin.
Q13 Chair: Welcome to the second panel in our discussion today at the Joint Committee on Human Rights about the nature of protest. Our panellists are Professor Katrina Navickas, professor of history at the University of Hertfordshire, and Dr Richard Martin, associate professor of law at the London School of Economics—and we hope to be joined by Professor Geoff Pearson, professor of law at the University of Manchester. Our panellists know that, unfortunately, we are not just against the clock this afternoon but against the Division Bells, because there will be a succession of important votes in the House of Commons and we will cease to be quorate as a committee, so at that stage we have to stop our formal proceedings. But our panellists have been good enough to say that they will continue in an informal discussion and that they will address some of our questions in writing so that they then be incorporated into our inquiry’s report.
It would help us enormously, though, to have a curtain raiser at the beginning of this second session. Protests can sometimes be framed as a problem to be managed by the Government or the police, but at other times they are seen as a valuable activity that should be facilitated. What value should be placed on protest by the state?
Professor Katrina Navickas: As we heard in the previous session, protest is an integral part of the democratic system. Particularly in the context of historical protest, Britain has a very long history of democratic protests, peaceful protests and civil disobedience in a way that protects our rights but also forwards change. On human rights, it is really important to understand the historical context of human rights law and protest law in that context. From the post-Second World War period, protest and the freedom of assembly have been part of that suite of freedoms and rights that the European convention delivered. It ensured that there was a protection against totalitarian and autocratic regimes.
Protest is a way of engaging with the state that, again, is not just about elections; it is about freedom of assembly, freedom of expression and freedom of conscience. Protest allows groups that perceive that there are some deficiencies in the democratic system to express and raise their views about them. We see that from at least the start of the democratic period—I could be very Whiggish and go back to the Bill of Rights 1689 and the start of the democratic system, from the Chartists onwards—but, certainly in the 20th century, it is very much within the context of human rights and preventing autocratic regimes.
Chair: That is why it is such an important question for a Joint Committee on Human Rights, so that is a very helpful scene-setter.
Dr Richard Martin: I am acutely aware of the cumulative impact of witnesses, so I will be quite specific on the values point. We are in a really particular legal space here. It is almost like a Venn diagram. We have three circles: domestic legislation on criminal offences; domestic human rights law, with obligations on public authorities; and the European Convention on Human Rights. The European convention has “peaceful assembly” as a very particular term, and it has particular conceptions of disruption. In domestic law, we now have our own definitions of disruption, and our Human Rights Act gives a guide to what we expect public authorities to do.
So, when we are talking about the public order legislation that we have seen, we are in a space of non-violent serious disruption that enjoys the prima facie protection of the convention. We have criminal offences that are entering that space, which provokes obligations on our public authorities: police, prosecutors—we do not talk much about prosecutors, but it is a public interest to bring a prosecution—and our courts, with trial and sentencing. So, when we talk about what is lawful or unlawful, we can talk about it in the context of Strasbourg or in the context of domestic law. They do not always marry up, which is where some of the real complexity comes.
In thinking about the value of protest, I would say that the last five or six years has given us, and you as a committee, the opportunity to think about the values that we see in the legislative process and how we treat protest. It has been remarkable how this has been police-led and Executive-led through and through. The Police, Crime, Sentencing and Courts Act is 306 pages of legislation, with a whole panoply of issues that Parliament was expected to disaggregate and interrogate. If the then Conservative Government had had their way, at the midnight hour in the House of Lords the Public Order Act 2023 would have come into effect. I appreciate the complexity of policing, but these powers were written largely by the Metropolitan Police in a largely closed meeting in 2019. This was largely a police wish list.
We can talk about the values in how we engage in legislating in the public space, and about how we as a society get on with each other in the public space. That has been driven largely by law enforcement and by intra-government discussions. We can also talk briefly about the value that we place on fact-specificity in determining whether an offence is lawful. We have seen the courts being very willing to defer to Parliament in constructing offences and Parliament being very willing to defer to the Executive.
Chair: Professor Pearson, what is the value of protest? Once we have heard from you, I hope we will have a question from Baroness Hamwee.
Professor Geoff Pearson: I apologise for being a little late. I will defer to Katrina’s response, as she is more of an expert on the actual value of protest, if that would speed things up.
Q14 Baroness Hamwee: There is no need to apologise. We apologise. Protest activity, we are told—and I think we observe it, maybe—has become faster, more decentralised and more disruptive. Is that an accurate description?
Professor Katrina Navickas: I will take the historical view. Protest tactics are essentially fairly constant. Protesters have different causes and, as we have seen, there is an ebb and flow according to generations and different circumstances. But actually they choose from quite a similar range of historical tactics.
There is plenty of historical precedent for the tactics that are seen as particularly disruptive, such as sitting down, slow marching and locking on. In recent history, environmental protesters in the 1990s were using very similar techniques of tunnelling and locking on. We can go back to the suffragettes, who locked on to the grille of the Ladies’ Gallery, and four suffragettes chained themselves to the statues in St Stephen’s Hall during their campaign of about 1908 to 1911. Importantly, those were seen as disruptive in that particular era, whereas now we perhaps see them as a progressive tactic to get the rights that they deserved. These were women in a particularly male space doing something that women were not supposed to be doing, so that was seen as much more militant, as a tactic, than previously.
Where the change has happened—on this idea that things have become much more intense, fast or disruptive—is, as we have heard, the government and police response. The police response to this quite stable repertoire of tactics over the last 200 years has been quite measured, deliberative and consultative. It is actually the number of Bills that have gone through Parliament in the last six years that has been fast and disruptive, I would argue. Some of those other tactics, such as the 1960s sit-ins in Parliament Square and Grosvenor Square outside the embassies, were very similar types of action. We think about civil disobedience as a broader panoply of actions, and it is the response of the state that causes them to be seen as disruptive.
Baroness Hamwee: But does “faster and more decentralised” have any correlation with the use of social media and so on? Has that made any difference, or is that fairly irrelevant to the central point?
Professor Katrina Navickas: It is relevant; they have become faster because of social media. I see decentralisation again with the eye of history: the new social movements of the 1960s, the anti-war movement and the anti-Vietnam war movement, were deliberately decentralised. They did not want to be in the traditional mode of trade unions or political parties, so they decentralised their organisation. The Government and the police, particularly the Met Police, were criticised by organisations such as the National Council for Civil Liberties for oversurveying them and using policing tactics that were seen as removing their rights to protest. So there are always historical precedents, but in this period in particular we are seeing an unusually harsh response by the state to quite traditional tactics of protest.
Chair: Order, order. Very regrettably, just as I wanted bring in Dr Swallow and particularly Lady Chakrabarti because of their personal experience when it comes to the National Council for Civil Liberties—
Peter Swallow: I am not sure I have that personal experience.
Baroness Chakrabarti: You were sitting in Grosvenor Square in utero.
Chair: Some of the rest of us would probably need to declare certain interests as well, historically. But thank you so much. As I explained before Professor Pearson was able to get here, with the Division we have to stop our proceedings. There will be a succession of votes, so we will not be able to continue formally, but those of us who can stay will be able to talk to one another informally. Afterwards, on the questions we have not been able to address, perhaps we might weary you by asking for a written submission, which will help us in our report. But, as I close this part of our proceedings on the record, I thank you very much indeed for being here this afternoon at the 49th session of this committee in this Parliament. Order, order.
