Freedom’s banner

From its earliest beginnings in 18th century England to today’s street protests, Paul Harris explains why the right to demonstrate still matters

The legal and practical issues surrounding street demonstrations have remained remarkably similar over the 200 years since the idea of peaceful demonstrations was first thought of. 

Should demonstrators keep strictly within the law, or can ‘direct action’ be justified even if it involves law-breaking, and if so how much? How do peaceful demonstrators prevent violent people from taking their demonstration over, as the revolutionary Spenceans did with a parliamentary reform meeting in Spa Fields, Islington, in 1816? What happens when two opposing demonstrations are timed for the same place? How do demonstration organisers cope with the sinister role of police agents provocateurs? Mark Kennedy, the policeman who confessed to infiltrating climate change demonstrations, was following a long and disreputable tradition going back at least to the 1817 March of the Blanketeers from Manchester to London. The history of these issues is not as well-known as it should be.

The first demonstrations

Crowds and riots are as old as humanity. Deliberately peaceful mass demonstrations only started in England at the end of the 18th century, although their origins can be traced back to the right to petition guaranteed by Magna Carta.

The first demonstrations were organised by the London Corresponding Society, who wanted reform of Parliament, but needed to show the public, in the years after the French Revolution, that they were not violent revolutionaries. The Corresponding Society’s leaders had already been tried and acquitted in the famous 1790s treason trials for their support for reform.

The Corresponding Society was suppressed by Pitt the Younger, but the habit of holding peaceful demonstrations revived and spread in the years of the Industrial Revolution, culminating in the massacre of peaceful demonstrators by soldiers in St Peters Fields, Manchester in 1819, known since as ‘Peterloo’. A further attempt was then made to suppress demonstrations by law, but demonstrations came into their own with the huge demonstrations in the lead-up to the passage of the First Reform Act in 1832. That Act would not have been passed without the thousands who demonstrated for it, largely peacefully, in almost every town in Britain. Street demonstrations thus played a key part in bringing democracy to the UK.

After 1832, demonstrations had come of age in Britain (including Ireland) and were a recognised part of the political scene, completely replacing the earlier politically-inspired riots which had been a regular feature of 18th century London. However, they might never have spread outside the British Isles had it not been for their success in colonial Australia, where demonstrations organised by émigré British Chartists in 1856 led to Australia becoming the first place in the world to set the working day at no more than eight hours. Because of that, Australia became known as the ‘Workers’ Paradise’, and workers movements world-wide took up demonstrating as a campaign technique. This led to the idea of May Day as the international workers’ day, marked by workers’ May Day parades.

The right to demonstrate

The idea that holding a demonstration should be a citizen’s guaranteed right did not come until the mid-20th century. Before then, demonstrations had virtually no legal protection in either the UK or the US. The ‘right of the people peaceably to assemble’ guaranteed by the US Constitution, did not extend to demonstrations, but simply gave constitutional protection to the legislature. Constitutional protection was only extended to meetings by Hague v CIO 307 US 496 (1939), and to moving demonstrations by Shuttlesworth v City of Birmingham 382 US 87 (1969).

In the UK, a demonstration was lawful so long as it was a reasonable use of the highway, but could be banned without any legal redress if a breach of the peace was feared, although not if the feared breach of the peace was by violent opponents of a peaceful demonstration (Beatty v Gillbanks (1882) 9 QBD 308). There were also often special powers in by-laws to prohibit demonstrations without prior approval. The first unambiguous legal recognition that peaceful demonstrations were a reasonable use of the highway was in Hirst and Agu v Chief Constable of West Yorkshire (1987) 85 Cr App Rep 143. Explicit recognition of the right of peaceful assembly only came with the Human Rights Act 1998, incorporating the freedom of assembly provision (Art 11) of the European Convention on Human Rights.

Demonstrations have never stopped being controversial. The Metropolitan Police Commissioner of the 1930s, Lord Trenchard, wanted to ban all demonstrations, as being ‘outmoded’, and the 1970s Prime Minister of Queensland, Australia, Joh Bjelke-Petersen, attempted to do so for several years until eventually being forced to give way in the face of public opposition.

Demonstrations and the rule of law

The early peaceful demonstrators were strongly committed to the rule of law. ‘See we come. No swords we draw. We kindle not war’s battle fires. By union, justice, reason, law. We’ll gain the birthright of our sires’, ran the Marching Song of the Reformist Birmingham Political Union in 1832. But many modern demonstrations also owe much to a quite different tradition – deliberate peaceful lawbreaking as a form of civil disobedience, successfully pioneered by Mahatma Gandhi.

One of the hardest questions for a demonstrating movement is when Gandhi’s civil disobedience approach is justified. Gandhi was campaigning against a foreign occupying power in his country. Martin Luther King, who closely applied Gandhi’s techniques in organising demonstrations in the American South, was able to do so in the name of the rule of law, on the ground that the state and city laws which his demonstrators broke were themselves illegal, because they were inconsistent with the US Constitution. The Supreme Court vindicated King’s stance in decisions like Shuttlesworth and Edwards v South Carolina 372 US 229 (1963).

However, direct action demonstrations which break the law can be deeply undemocratic. An example is the blocking of motorways by French farmers, a far from under-privileged group, in support of their economic campaigns. The failure of huge law-abiding demonstrations against the Iraq war in 2003 may have contributed to the increased support in recent years for direct action campaigns, particularly in the context of environmental issues. However, by definition, demonstrations will only be recognised by governments as a human right if demonstrators themselves generally operate within the framework of the rule of law. I would, however, be inclined make an exception for peaceful and harmless demonstrations against an utterly indefensible law, like Maya Evans’ protest against the now repealed s 138 of the Serious and Organised Crimes and Police Act 2005, which criminalised all demonstrations within one kilometre of Parliament, including Maya Evans’ recitation of the names of dead soldiers at the Cenotaph.

Demonstrations are important because the right to demonstrate is an intrinsic part of the right of free speech. Demonstrations give a voice to minority concerns which may otherwise be overlooked by the political process. They are a peaceful outlet for powerful emotions which could otherwise lead to violence. They can therefore be a strong force for good. Sadly, in much of the world they are still seen by the authorities as illegitimate and subversive. My book is dedicated to those who have died in the many massacres of peaceful demonstrators which have occurred around the world, some of which are listed in the dedication. I hope that the inspiring histories which I describe, from the Suffragettes to Greenpeace, and from the March of the Mill Children to the Mothers of the Plaza de Mayo, will make more people recognise the positive role of demonstrations, and ultimately lead to fewer demonstrators being murdered.

Contributor Paul Harris SC, Doughty Street Chambers. Raising Freedom’s Banner is published by Aristotle Lane Press

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Paul Harris SC

Paul is a barrister at Doughty Street Chambers and at Gilt Chambers in Hong Kong. He is one of Hong Kong’s leading public law Silks. Paul was the founding chairman of the Bar Human Rights Committee in 1992-1994.