Governing complex economies and societies by consent is hard. Much easier to impose decisions and restrict any capacity by the governed to complain, challenge and protest. The Chinese Communist party’s brutal repression in Hong Kong is driven by that impulse, as is the Singapore government’s recent intensification of its crackdown against dissent. The US Republican party’s approach may be less directly repressive but serves the same end – to gerrymander the voting system to ensure a government that brooks no opposition.
Democracy is in retreat worldwide. Democracies seem weak, unable to get things done, and are captured by big money. A basic precondition for democracy – respect for different opinions – is vanishing in fractious times; adversaries are seen not as part of the same polity but rather abhorrent “others” to be quashed. Next to such “strong men” as Vladimir Putin and Xi Jinping, democratic leaders can seem insipid.
Yet for all the democracies’ weaknesses they remain the best protector of liberties and the rule of law – and have two understated strengths. They solve the issue of succession: who is to follow Putin and Xi, and how damaging will be the brutal struggle for power as it becomes obvious their capacities are failing? Equally, deliberation, discussion, dissent and protest within democracies may be time-consuming and sometimes irritating – but no one and no party is right all the time. Ensuring an argument is strong enough to withstand challenge or public demonstrations is vital to ensure that, as far as possible, our leaders get the big decisions right.
When a million citizens are aroused to give up their time to march – as they were, say, against the Iraq war or for a second referendum on Brexit – it is a storm warning that the policy in question has serious, perhaps fatal, flaws. The wise democratic government takes note. Freedom of expression and freedom to protest publicly and peacefully are not just pivotal liberties in their own right but essential building blocks of trust and good government.
Time was when an article expressing views like this would have seemed unremarkable – and plainly directed at political systems other than ours. But they are alien to Priti Patel, the home secretary, and the bulk of the cabinet and party of which she is a member. Her police and crime bill, which lost an incredible 14 divisions against successive provisions in the House of Lords last week, is a cleavage from the British democratic tradition, and an embrace of the new authoritarianism. She and her fellow cabinet ministers hold to a thin definition of democracy. Once a political party has won a majority in the House of Commons in a first-past-the-post voting system backed by a flagrantly partisan press, it should be free to do whatever it likes – override judges’ sentences or defund the BBC. Division of powers? Respect for peaceful protest? An independent judiciary? Building cross-party consensus? Winning arguments? Being held to account? Forget it.
In particular, the governing party should be free to shred the way legitimate protest is currently framed by the 1986 Public Order Act – which makes public demonstration hard enough, even if it is just within the terms of the Human Rights Act. The proposed bill, as it went to the Lords, would have criminalised protest, with protesters suffering prison or sky-high fines for not observing prohibitive new rules, about which they could not pretend they did not know if tried in court. The police and home secretary would become the arbiters of whether a protest or assembly is allowable, when it can start and finish, and they could outlaw it if it is too noisy. The police would be empowered to issue “serious disruption prevention orders” at will, arrest individuals without any cause except that they look suspicious, and imprison, for up to 51 weeks, those who “lock on” to railings. Protest in Parliament Square was to be off limits. Patel belongs in today’s Hong Kong, Beijing or Singapore – not Britain, a former beacon of democracy.
Beyond a desperation to paint Labour as being against tough law and order measures and an anxiety to show that Brexit Britain, free from obligations as an EU member state to conform with basic democratic standards, can reconceptualise itself as an Asian police state if it chooses, she and the prime minister hope to catch a popular mood. For, as opinion has become more polarised so protest has become more aggressive and imaginatively disruptive. Law-abiding citizens object to strategic roads being closed or protesters “locking on” to railings or whatever to inconvenience passersby. They may support the right to peaceful protest, but with proportionate rather than extreme disruption. Something, maybe not as draconian as proposed by Patel, surely needs to be done to set limits.
The police and home secretary would be arbiters of whether a protest is allowable, when it can start and finish and if it is too noisy
Except it doesn’t. Mrs Thatcher’s Public Order Act already makes peaceful protest harder than in almost every other democracy, according the police and government exceptional powers. The flurry of additions to this police and crime bill over Christmas (extraordinary, after it had left the Commons) were explicitly aimed at environment protesters, as Patel acknowledges. It was “red meat” to appease the growing trend towards climate change scepticism on the Tory right, her natural constituency. It was wrong at every level: in principle, constitutionally and in practice – but it pleased an element in her party and her press.
In fact, the Lords did not strike out the provision that strategic roads should be protest free. The bill going back to the Commons thus permits the widening of the scope of the Public Order Act but removes most of Patel’s most egregious proposals, so that police and executive discretion to outlaw protest remain within limits. Human rights are protected.
Will Patel and Boris Johnson accept the revised bill? Given the state of the Tory party, both will see advantage in facing down the “unelected” Lords and casting themselves as the “protectors” of public order – a cynical ploy that debases them. That so much parliamentary time and effort should be consecrated to what, essentially, are third-order problems speaks volumes about the government’s priorities and lack of strategic direction – and its insouciant approach to longstanding democratic rights. The Tory party under Johnson is going rogue before our eyes; it is the new enemy within.
Will Hutton is an Observer columnist