Protest: Selective application of the law undermines justice

Dissent, Protest, & Justice Series 004

Originally posted on Facebook 15 March 2021

The policing of the Sarah Everard vigil caused me to fall into two traps. Firstly allowing my view of the policing to be driven by my sympathy for the cause. Secondly thinking that the main problem was the way the police tried to enforce the law.

The policing was bad. But the underlying problem is the law. When we talk about being sensitive in applying the law, or being proportionate, the underlying sentiment is usually a desire that the law not be applied. It is easy to criticise those applying the law, but that distracts us from recognising that the law is wrong.

The soviet system involved criminalising the everyday activities needed to live. Everyone was a criminal, but party members were above the law, and most people were left alone if they kept their heads down. The moment they annoyed an official, or threatened the status quo, they could be thrown in prison. Officials didn’t need to create obvious martyrs by convicting people of the Things that actually annoyed the state, they could merely prosecute them for the everyday Infringements that were usually ignored.

The law relating to demonstrations essentially criminalises protest, even when peaceful. The tactic of ‘kettling’ ie preventing demonstrators exercising their rights to walk down the Queen’s highways, and preventing demonstrators from leaving a demonstration when they might want to (either to go home or pop somewhere for lunch) is part of a sinister trend which equates opposition with traitorous behaviour.

The criminalising of protest means not that people refrain from protesting. Rather, it places the police in an awkward position when dealing with ‘popular’ demonstrators. For the police to be heavy handed dealing with BLM protests in summer 2020 would have meant a predominantly white police force attacking non violent protestors whose cause was police violence.  Not a good look (that some protestors were not peaceful does not undermine this point). A crowd of football aficionados peacefully celebrating their team’s victory is likewise an unappealing target for the police. Alas, restraint with BLM and with football crowds, involves not applying the law. Once the state has been seen to make a decision not to apply the law to a ‘favoured group’, it no longer washes when they choose to apply the law to another group.

Mr Khan, Ms Dick, and the Met, are quite right if they say that the police were applying the law to the Sarah Everard vigil. But the law was not applied to others gathering in violation of the rules. So it is inevitable that people ask “why is it enforced in this case?”. The state has already ceded the case that “Because the law was being broken” is not a sufficient condition for its enforcement. And it has created two classes of demonstration: those with official approbation (eg football) and those with official disapprobation (vigils against the murder of a woman, possibly by a policeman).

To avoid tyranny, we must avoid judging the state by the extent to which its disapprobation is directed at those we don’t find sympathetic.

I am uncomfortable with any departure from the robust statement in the 1689 Declaration of right.

“The citizens have the right to petition the king without fear of repercussions. That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal.”

Unfortunately this must mean not only that ‘good guys’ get to protest, but also Piers Corbyn gets to proselytise his niche views, and that Wooton Basset’s parade for the war dead is not immune from those that wish to protest against a war, or against the (real or imagined) conduct of our troops.

The moment that protest is denied to the looniest people, the most fringe enthusiasts for the caliphate, or the most reactionary opponents of democracy, then the state is in the business of giving a thumbs up, or thumbs down, to every protest. And, sooner or later, they will give thumbs down to things like a peaceful vigil lamenting violence against women.