Fighting for the right to protest
Public support for the fuel protesters may have been high, but Paul Killen says although the right to free speech is recognised under UK common law, the right to protest and demonstrate peacefully is a different story
The barricades have gone and the fuel has started to flow again, but the actions of the protesters at the Stanlow oil terminal in Cheshire and across the country have left us with some interesting issues to consider. In particular, comparison with events across the Channel has raised questions about the extent of the right to protest in the UK. The right to peaceful protest and demonstration may be regarded as an essential element of the right to free speech. But although there is a generally recognised right to free speech under common law in the UK, the precise extent of this right is uncertain.There is a positive right to protest in France, and workers’ right to take strike action is guaranteed by legislation. In the UK the right to protest is not clearly defined by statute, so the legal position of those taking part in any form of public demonstration is usually uncertain. Similarly there is no positive right to strike and the freedom of workers to withdraw their labour is merely tolerated by law and is hemmed in by several potential legal liabilities.Take picketing as an example. This is potentially subject to criminal and civil liabilities. The right to picket, as set out in Section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992, amounts to a right to attend a particular place and to remain on the public highway. The Act confers no immunity from criminal law and picketing is subject to the overriding duty of the police to prevent a breach of the peace. It follows that the actions of fuel protesters in blockading oil refineries could constitute a variety of criminal offences including obstruction of the highway or harassment. Where picketing spills over into intimidation or coercion this may also amount to an offence under Section 241 of the 1992 Act (the provision under which pickets were moved on from the gates of the Stanlow Terminal on the first night of the protest). The fact that this provision includes the archaic offence of ‘watching or besetting’, originally enshrined in the Conspiracy and Protection of Property Act 1875, is an indication of how little development there has been in this field of law. It remains to be seen whether the introduction of the Human Rights Act 1998, which incorporates into domestic law a right to freedom of peaceful assembly under Article 11 (1) of the European Convention on Human Rights, will make any difference.Pickets also open themselves up to potential liability to civil action. Even the act of peaceful picketing and persuasion may give rise to civil liability if the individual concerned is held to be inducing a breach of contract, or preventing compliance with a contract, by another party (a tanker driver, for example). Pickets who are taking part in an industrial dispute with their employer have specific protection from such civil liability under Section 219 of the 1992 Act. However, the pickets who recently blockaded fuel depots were engaged in no such dispute and had no such protection.It appears that the identity of many of those involved in organising the protests is well known and these individuals could be sued by the oil companies or by any other party that suffered loss as a consequence of their interference with the performance of any contract. It might even be possible to obtain an injunction to prevent these individuals from attending the place in question. Recourse to this sort of legal process by employers is not uncommon in response to unlawful industrial action by trade unions. It might seem curious that the oil companies have neither taken nor threatened civil action against any of the pickets. However, this was not a conventional industrial dispute and the difficulty of bringing legal proceedings against an apparently spontaneous group of protesters, not to mention the public relations consequences, might have rendered this course of action impractical.
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