Next week, the powers-that-be will have yet another go at evicting anti-war protester Brian Haw from his makeshift home of five years in Parliament Square, Westminster.


Mr Haw is back in Marylebone Magistrates’ Court over his failure to comply with conditions in the Serious Organised Crime and Police Act 2005 (SOCPA), introduced seemingly with the sole purpose of bringing to an end the veteran campaigner’s vigil, which began in July 2001. ‘He is a dedicated, single-minded individual,’ says Stephen Grosz, head of public law and human rights at London firm Bindman & Partners, of his client. ‘He considers he needs to stay there for as long as we are at war.’



For campaigners, Mr Haw is a symbol of both our nation’s dogged attachment to the right to protest and New Labour’s attempts to undermine it. The legal history of Mr Haw’s controversial residency began in April 2002, ten months after he set up camp to protest about the pre-war suffering of Iraqis during the 1990s, when Westminster City Council began proceedings under the Highways Act, on the ground that he was a ‘nuisance’. In October that year, the High Court ruled that Mr Haw was exercising his right

to freedom of speech, and any obstruction was not ‘unreasonable’.



Three years later, ministers passed SOCPA, which specifically curtails the right to protest within a one-kilometre radius of Parliament, as well as creating a new criminal offence of trespass on ‘designated sites’ on the ground of national security. ‘Yes, it’s a sledgehammer to crack a nut,’ said the then Home Secretary, David Blunkett. But he added that Mr Haw was ‘a nut’ and one that ‘has caused total havoc’. The High Court again foiled ministers’ plans when it ruled that Mr Haw’s protest was not covered because prior authorisation was only necessary for demonstrations started after August 2005. That ruling was overturned by the appeal judges in May last year.



Mr Grosz says: ‘It’s fair to say that the law that was passed allowed demonstrations if authorised. So, once he lost in the Court of Appeal, in order to keep him in Parliament Square, we made an application for him to have permission to be there, and that is the basis on which he’s there now.’ However, after the appeal ruling, there followed a 3am raid by police, who dismantled the campaigner’s sprawling demo, in keeping with SOCPA conditions that any display must be limited to three metres in any direction and all items must be on display ‘at a glance’. According to Mr Grosz, his client has a petition into the House of Lords to appeal against the ruling on retrospectivity and has a judicial review of the conditions, pending the outcome of next week’s hearing.



Alex Gask, legal officer at civil rights group Liberty, argues that SOCPA ‘symbolises the approach of New Labour to the right to protest’. He says: ‘Despite the fact that this government was responsible for the introduction of the Human Rights Act, it seems to have little respect for the individual’s right to protest, which is seen as an inconvenience – perhaps even a threat.



‘SOCPA was originally drafted so demonstrators could be removed on the basis that they spoilt the view of Parliament or prominent monuments. The idea that you could restrict political protest on the basis that it wasn’t aesthetically pleasing is indicative of a very lax approach to rights recognised by Strasbourg as a fundamental part of any democracy.’



The same Act was used last year to prosecute Milan Rai and Maya Evans, who read out at the Cenotaph the names of British soldiers and Iraqi civilians killed in Iraq. Liberty unsuccessfully argued in the High Court last month that the case brought against them was ‘dispro-portionate’ and not justified. It has also been used to censor the freedom of speech of protesters variously wielding a placard bearing the words of George Orwell (‘In a time of universal deceit, telling the truth is a revolutionary act’) – the protester was arrested – or the more prosaic message on one T-shirt (‘Bollocks to Blair’). The trader was fined.



‘There is an element of intolerance towards protest these days, which we think is quite worrying,’ reckons Sally Ireland, criminal justice policy officer at lawyers’ human rights group Justice. ‘The public order legislation in the framework that has been in place since 1986 gives incredibly wide powers to censor the content of protest, in particular, hate speech. Our position is that further powers aren’t needed.’



She cites the way SOCPA has now extended the reach of legislation on protection from harassment, originally intended to deal with stalkers rather than demonstrators. Section 126 of the Act covers harassment that occurs if ‘a person is present outside or in the vicinity’ of anyone’s home with the purpose of ‘persuading’ him ‘not to do something he is entitled or required to do’, or to ‘do something that he is not under any obligation to do’. ‘If someone like [the late General] Pinochet was to come over here and you wanted to stand outside their house and hold up a placard, then it would be incredibly difficult to do so,’ she explains.



There was a rare cause for celebration for civil libertarians last month when the Law Lords came to the defence of the right to protest. Anti-war protester Jane Laporte was one of 120 passengers on coaches forced by Gloucestershire police to do a u-turn on their way from London to a lawful protest at RAF Fairford in March 2003. The demo was scheduled to take place hours before the base was to be used for bombing raids on Iraq. The police sealed the doors of three coaches and sent the would-be protesters back to London without toilet stops, causing, in the words of Lord Bingham of Cornhill, ‘acute physical discomfort and embarrassment’.



The senior Law Lord said the case ‘raised important questions on the right of the private citizen to demonstrate against government policy and the powers of the police to curtail that right’. In this instance, the court ruled that the police exercised those powers unlawfully and held that the Human Rights Act 1998 had brought about ‘a constitutional shift’, creating for the first time a right to protest which, it said, the common law had been ‘reluctant and hesitant’ to acknowledge.



‘It is the first major case after the Human Rights Act where the House of Lords had considered the relationship between the common law and convention rights to assemble in protest,’ reckons John Halford, the lawyer at Bindmans who represented the campaigners. The case focused on the police’s use of containment, where campaigners are kept away from a demonstration but not arrested. ‘The police gave evidence in our case that it was a very important power,’ he continues. ‘People can be detained on the basis of powers under the Public Order Act [1994], which empowers the police to give directions as to location points for public assembly and routes of processions. It is theoretically possible to use those powers to contain a group of people at a particular point.’ Mr Halford points out that the Law Lords did not consider that point fully because they ruled that the decision to turn back the protest itself had been unlawful.



However, the Court of Appeal will return to the issue when it hears two test cases in March relating to the May Day demonstrations of 2001, when 3,000 people in central London – where an anti-capitalism protest was taking place – were corralled by riot police at Oxford Circus. That action is being brought on behalf of Lois Austin and Geoffrey Saxby, who are claiming damages for false imprisonment and breach of their right to liberty under the European Convention on Human Rights.



According to their solicitor, Louise Christian, senior partner at Christian Khan in London, Mr Saxby ‘just happened to be passing through and wasn’t part of the demonstration at all’, whereas Ms Austin, who was still breast-feeding at the time, ‘never intended to stay long and was prevented from picking up her child from nursery’. She says: ‘They were kept for seven hours at Oxford Circus in the pouring rain. It was a serious removal of liberty from those people who were protesting.’



When does legitimate crowd control become something more sinister? ‘It would be difficult to argue that it wasn’t a false imprisonment,’ asserts Ms Christian. ‘If you’re held behind a barrier by the police and asked not to move for a while, perhaps everyone understands why that might be necessary. But seven hours is a completely different matter.’



The police say they were ‘duty bound to protect public safety’ through the containment so as to avoid ‘a very real risk of serious injury to the public and our staff’.



Ms Christian fears that, if her clients are not successful, the police will increasingly use those tactics as an add-on to section 44 of the Terrorism Act 2000, which allows them to stop and search anyone in a specific area. ‘If the court gives the green light, it could seriously deter people from going to protests,’ she reckons. ‘It will have a chilling effect on top of the legislative provisions that have been introduced and the way in which existing laws have been extended to clamp down on protest.’



Liberty also fears that terrorism legislation is being used to clamp down on demonstrations and, in many cases, misused. It acted in the case of Kevin Gillan, a 26-year old student, and photo-journalist Pennie Quinton, who were stopped by police under section 44 outside an arms fair in London. Mr Gillan was one of the protesters against the fair and Ms Quinton was filming the protest. ‘We felt very strongly that the police were abusing their powers to deal with terrorism and using them instead against people engaged in legitimate peaceful protest,’ Alex Gask says. The House of Lords disagreed and, last March, unanimously ruled that the stop-and-search power under the Act was valid and not ‘a disproportionate response’.



There has been much anxiety in recent years about striking the balance between human rights and national security. The fear among those charged with defending the former is that those charged with defending the latter will not get it right.



Jon Robins is a freelance journalist