John Stuart Mill on liberty is a famous cop-out. Everybody has rights, he said, except the right to harm the interests of others. That exception had to be policed by authority. Welcome to philosophy’s most celebrated can of worms.
The government’s attempt this week to strengthen police powers in England and Wales over disruptive protest is a classic of Mill’s cop-out. It is the result of recent actions taken by Extinction Rebellion and Just Stop Oil, not against fossil-fuel companies or their supplies, but against people in general, blocking access to city streets and motorways. The intention has been not to curb carbon emissions – the congestion probably increased them – but to generate publicity and thus headlines in the media.
The police were originally criticised for in effect colluding with the protesters, for standing by when Oxford Street and the M25 were jammed. They faced motorists starting to take direct action against protesters, with public demands that they should protect ambulances, fire engines, police cars and those with personal crises who have a right of access to the highway. Freedom of movement in one’s country is as fundamental a right as could be imagined.
It seems likely this is a crisis that has passed. The police in England and Wales have considerable power already to prevent disruption and public nuisance, and there is increasing evidence of it being used. Indeed, in the case of the Sarah Everard protests two years ago, a harmless demonstration in south London was suppressed with much ruthlessness, police action being condemned by a court as “not in accordance with the law”.
The issue of stop and search in a public street continues to be controversial, with argument over the degree of suspicion needed to justify it. What used to be confined to weapons and drugs is now to be extended to glue, chains and tunnelling equipment. The previous home secretary, Priti Patel, even regarded making a loud noise as justification for protest suppression.
The Metropolitan police chief, Mark Rowley, argues not so much that he needs wider powers as that he needs existing powers to be adjusted to meet conspiracy to gridlock. He can at present impede “serious disruption” only once it has occurred, which is like waiting for a crime to take place before trying to stop it. He feels he needs wider discretion to ban a protest on “reasonable suspicion of conspiracy” to cause nuisance. Any new powers with such a vague remit deserve the most stringent scrutiny.
Decades of casual lawmaking in this field boil down to legislators leaving it to frontline commanders to judge the “balance of rights”. But such a balance must be understood by those wielding the right to harm and their victims who expect the police to protect them. The police are required by law to make often snap judgments, without the scope to sit down on the M25 and debate philosophy with drivers and protesters.
The devil is in the linguistic detail. What precise meaning do we attach to words such as serious, reasonable, nuisance and minor disruption? What may have seemed plausible to a police officer on the spur of the moment can seem woefully misguided in the calm of a subsequent court of law.
Police have taken a public relations beating in recent years for want of judgment. They, and particularly the Met, have suffered accusations of wrongful detention, discriminatory behaviour and unnecessary violence. Criticism from London’s mayor, Sadiq Khan, forced the resignation of Rowley’s predecessor, Cressida Dick, for her failure to eliminate “bad ’uns” from the force. Yesterday, another scandal: guilty pleas from Met officer David Carrick, a serial rapist who committed more than 71 serious sexual offences.
Advance details of the government’s present bill suggests some police officers may now pose a serious risk to the right to protest. Rather than wider powers, it might be more suitable to offer better training and great specificity in the law’s interpretation. The government’s amendment should be scrutinised for its practicality as much as its potency.
That said, it must be wrong for Britons to feel they must do harm to their fellow citizens to win an argument, however seismic its implications; indeed, particularly if they are seismic. They should not need to do so, nor should the law facilitate them in doing so. But this battle is not going away. Britain is awash with Mill cop-outs. The government wants to prevent nurses, doctors and teachers from harming a public to whom they owe a duty of public service. But the right to withdraw labour is a fundamental liberty against which this duty must be balanced.
The same applies to freedoms online, particularly on social media. But what value is a freedom that harms teenagers, disseminates falsehood, breeds conflict and wrecks lives, apparently beyond the power of governments to arbitrate? The answer has to be not much, yet it is still a freedom. Never have the arguments of political philosophy seemed so practical and so urgent.
The lesson of these debates is that neither the right to free protest nor the right to be protected from it is absolute. But these freedoms must be fought out not on the M25 but on the floor of a democratic legislature. It is uncomfortable that a protest control bill is now being introduced and debated not in an elected House of Commons, but in a chamber of lords and ladies. What testament to democracy is that?
Simon Jenkins is a Guardian columnist
