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The Law of Protecting Protestors – from Tiananmen to London

Posted on 4th June 2019

In the early hours of 4 June 1989, the army in China crushed student led demonstrations that had occupied Tiananmen Square. It was a brutal crackdown of pro-democracy campaigners, who had called for reforms and democratic elections. This was the first of a wave of demonstrations and protests that engulfed communist run States over the next couple of years. Whilst the Berlin Wall fell and the Soviet empire disintegrated, the totalitarian regime in China survived and adapted. Capitalism may arrived in China but the democratic ideals of that generation are not yet fulfilled.

At the time of Tiananmen, I was preparing to be a student myself and I was fascinated by those who were barely older than myself, who had thought they could take to the streets to change the world. The image that is seared across my mind is the video of “tank man”. A lone protestor stands in front of a column of tanks. Every time the first tank moves, “tank man” seeks to block their path. We don’t know who tank man is – we don’t know what became of him – we can guess. It is estimated that thousands died in the crackdown. A photo of that scene still hangs on my office wall and reminds me of the value and sacrifice that protestors have made throughout history.

There are those that question the legitimacy of protest and dissent – who say that it is for history and perhaps for those abroad. We can commemorate Tiananmen as it was against a communist regime or the suffragettes as it is history but all this is irrelevant in a mature democratic state such as modern day UK.

Nothing can be further from the truth. Courts in the UK have always held that freedom of expression constitutes one of the essential foundations of a democratic society and essential to the proper functioning of that democracy. That holds good today as it ever did. It helps in the discovery of truth in the “market place of ideas”. Free speech may not be a “trump card” overriding all other matters but speech is allowed to disturb, offend and shock. It can even be disruptive and annoying. As has been said in one famous case, freedom to speak inoffensively is freedom not worth having.

In another well-known case, Lord Hoffman stated
“….civil disobedience on conscientious grounds has a long and honourable history in this country. People who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history. The suffragettes are an example, which comes to mind immediately. It is the hallmark of civilised community that it can accommodate protests and demonstrations of this kind”.

These rights long protected in English law are now codified in article 10 and 11 of the European Convention on Human Rights.

It is in this context that we should treat very carefully suggestions that we should introduce new laws to deal with the Extinction Rebellion protests which occurred in April 2019. Protest is to be valued and cherished. From Rosa Parks refusing to take her seat to Black Lives Matter highlighting police brutality. From the Northern Ireland Civil Rights Movement to anti austerity protests. All have made society better, contributed to the political debate and made us stop and think about the issues. It may well be that to paraphrase Lord Hoffman, that environmental protestors will be vindicated by history and that future generations will ask what we did to stop disastrous global warming rather than what we did to keep traffic moving in London.

In 2019, the UK is not going to use a Tiananmen Square type crackdown (although the UK State has a sorry record in using violence to curtail protest, from the shooting of unarmed protestors in Derry at Bloody Sunday to the killing of Ian Tomlinson at the G20 protests in 2009). Instead, it now seeks to use the law to deter and punish those protests that it deems has “crossed the line”. Witness the shameful prosecution and conviction of the Stansted15 for a terror related offence for a peaceful action at Stansted airport. Witness the comments of the London Metropolitan Police calling for the blanket prosecution of Extinction Rebellion cases and tougher new powers. Yet in a recent landmark case, defended by Hodge Jones & Allen (Ziegler and others), the High Court confirmed and reaffirmed the importance of the right to free speech and laid out the framework about how such cases should be reviewed.

The battle to protect our rights goes on. It is having those rights that will allow people to take to the streets to protest about President Trump’s state visit to the UK. The right to protest is there so we can show our displeasure at what some believe is a racist, sexist, Islamophobic President who is doing so much damage to our society. On the 30th anniversary of Tiananmen, perhaps a true commemoration to “Tank Man” is not just articles in the national newspapers, but using the rights he was denied, to take to the streets today.

Raj Chada is a Partner at HJA and specialises in protest law. He represents the Stansted 15, in their ongoing appeal to the Court of Appeal and Ziegler who is applying for leave to the Supreme Court.

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