The harassment law now being used against anti-dumping protesters in Oxfordshire is turning into the riot act of our day
If any of you doubt that protest is being criminalised in the United
Kingdom, take a look at an injunction posted at http://www.epuk.org. Granted in
the high court by the Honourable Mr Justice Calvert-Smith, it forbids
the people of a village in Oxfordshire from “coming to, remaining on,
trespassing or conducting any demonstrations or protesting or other
activities” on the claimant’s land.
As this land is also the villagers’ most treasured local amenity, it
means they have to abandon any effective means of trying to protect
their quality of life. If not, they could end up with five years behind
bars.
On second thoughts, don’t look at the injunction – it will turn you to
stone. A cunning clause ensures that it also applies “to any other
person who has been given notice of the terms of this order”. In fact,
you have probably already been injuncted by reading the first paragraph
of this article. So, if you value your liberty, you can’t now go near
Thrupp Lake.
The lake is the haunt of kingfishers, otters and even rarer wildlife,
such as Cetti’s warblers and water rails. It is the place where local
people walk their dogs, swim, fish and picnic. But for the giant energy
company RWE npower, which runs Didcot power station, it is the next dump
for its pulverised fly ash, a byproduct of burning coal. The company
intends to empty the lake, line it with clay, and pour in at least
60,000 tonnes of grey slurry – the fly ash mixed with water – then wait
for years until it solidifies before attempting “remediation”. Fly ash
typically contains lead, mercury, arsenic and cadmium.
The project, in other words, is an abomination. The people of Radley
village, as anyone would, have tried to stop this dumping. They have
marched and demonstrated and photographed the cutting down of trees and
the destruction of habitats. And now they have been confronted by one of
the most brutal instruments on the statute book.
The Protection from Harassment Act 1997 is, on the face of it, a
sensible piece of legislation defending people from stalkers. But when
it was drafted, several of us warned that it failed to distinguish
between genuine harassment and legitimate protest. Harassment includes
“alarming the person or causing the person distress”, which could mean
almost anything: you can alarm someone, for example, by telling them
that pulverised fly ash contains mercury. It requires a “course of
conduct” to be pursued, but this means nothing more than doing something
twice. If you take two pictures of workers felling trees, that counts.
Conduct also includes speech.
Worse still, the legislation was the first of several “behaviour acts”
which blur the distinction between civil and criminal offences. The
victim of the course of conduct may take a civil claim to the high
court. On the basis of far less evidence than a criminal case requires,
the court can grant an injunction against the defendant. If the
defendant then breaks that injunction – by continuing to talk to the
people he is seeking to dissuade, or to march or picket or protest – he
then commits a criminal offence, carrying up to five years’ imprisonment.
We warned that the legislation had the makings of a new sedition law. No
one took us seriously. But the first three people to be arrested under
the act were peaceful protesters. Since then it has been used repeatedly
to stifle what should be legitimate dissent.
The injunction was granted on the grounds that the site’s security
guards were feeling threatened by the protesters. Many of the guards are
former members of the armed forces. In the photos I have seen they wear
black face masks. They allege that protesters have spoken threateningly
to them and photographed them. I don’t know whether or not this is true,
but the guards claim that this has made them feel scared and intimidated
for themselves or their families. It seems to me that the security
company has hired a bunch of right cissies. But all the act requires is
a judgment that the men felt “alarmed” or “distressed”.
So an instrument designed to prevent intimidation in turn intimidates.
As well as being forbidden to step on to the land they have walked and
played on for years, the villagers and other protesters are forbidden to
loiter “within five yards of any of the protected persons (whether on
foot or in vehicles) in the vicinity of Radley Lakes”. In other words,
should one of the security guards approach them, they must step well
back if they want to avoid the possibility of five years inside. The
injunction has thrown a great bucket of cold water over their attempts
to protect the neighbourhood.
At first I thought these uses were an accidental product of bad
drafting. Now I am not so sure. The law company serving the writ,
Lawson-Cruttenden, describes itself as “the market leader in obtaining
ground-breaking injunctions on behalf of individuals and corporations
who have been the subject of harassment by direct action protest
groups”. It also boasts that it “assisted in the drafting of the …
Protection from Harassment Act 1997″. Are such apparent conflicts of
interest normal? Did Lawson-Cruttenden know that the act would support a
lucrative line of business? Did Michael Howard, the home secretary at
the time, know that companies like this would use the law like a new
riot act?
The journalist Henry Porter, who has done more than anyone else to draw
attention to some of our illiberal new laws, believes that they result
from Tony Blair’s “authoritarian streak” and his attempts to build a
“fussy, hairsplitting, second-guessing, politically correct state”. On
this matter I think that he is wrong.
Some of the most illiberal laws of recent years – the 1986 Public Order
Act, the 1992 Trade Union Act, the 1994 Criminal Justice Act, the 1996
Security Service Act, the 1997 Police Act and the 1997 Protection from
Harassment Act – were drafted by the Conservative party. Blair has
supplemented them with all manner of pernicious instruments (such as the
2000 Terrorism Act, the 2001 Anti-Terrorism, Crime and Security Act, the
2001 Criminal Justice and Police Act, the 2003 Anti-Social Behaviour
Act, the 2004 Civil Contingencies Act and the 2005 Serious Organised
Crime and Police Act). But this illiberal trend long pre-dates him.
I think it arose partly in line with rising inequality, and the ever
more urgent demands by corporations and the super-rich that their assets
and their position be defended. But I think it also reflects something
else, seldom discussed by the press: the over-representation of lawyers
in British politics. Lawyers have an instinctive love of new laws, as
this is how they derive their power over the rest of us. In this
respect, Blair differs not a jot from Margaret Thatcher, Howard, Jack
Straw and the other barrister-legislators. When you elect lawyers, you
get laws.
I have met quite a few lawyers – not always voluntarily – and some of
them are able to perform a passable impression of human beings. Like
teenagers, they are generally quite harmless by themselves. But sensible
voters would ensure that they were never let loose in a representative
chamber. People of the same trade seldom meet together but the
conversation ends in a conspiracy against the public. Lawyers are no
exception.
