The right to dissent

The extent of anti-war protests may have taken the Government by surprise, says Penny Lewis. But could the law be employed to prevent them?

As the body-bag count from the Iraq conflict rises, so might the tempo of anti-war opposition at home. The high profile accorded to the peace lobby – not merely due to sheer numbers, but also to the "conscientious objectors" who have united people across the political spectrum – must have shocked Tony Blair. Speaking of the experience in Northern Ireland, David Ford, leader of the Alliance party, said that "reaction there was on a par with England".

If "spontaneous" or organised demonstrations continue, questions will arise as to what legal measures could and should be taken to counter protests at both civil and criminal levels. These events need delicate handling, as those in Northern Ireland know.

In an unprecedented development, hordes of schoolchildren have participated in protests, many playing truant. The education law specialist Tim Oliver, a partner at Plexus Law, outlines the legal repercussions for schools and parents: "The Education Act 1966 makes it an offence for a parent to fail to secure their child's regular attendance at school. It is also an offence if the parent is aware that their child is not attending regularly at school and then fails without reasonable justification to cause him to attend." Genuine reasons for absence include "sickness and religious observance or with leave from the school".

Oliver points to a lack of "statutory offences in the event that a school allows a child to willingly play truant. This would be a matter for the local authority education department to deal with". He anticipates that "most schools would say that they had given specific leave to attend the rallies and therefore neither they nor the parent were in breach of any legislation. That may be acceptable in limited circumstances, but if the school regularly granted leave for those reasons then almost certainly the education authority would use its powers through Ofsted to close the school down."

As for employees taking unauthorised time off to join rallies, Laurence Anstis, an employment lawyer with Boyes Turner, says that such "a protest about an event unrelated to work would be a breach of their employment contract and they will be vulnerable to dismissal. Employees taking part in official industrial action have special protection, but this is only available where the action is official and can only relate to 'trade disputes'. The war on Iraq is not a trade dispute."

In contrast to the annual May Day marches, which have frequently erupted in violence, the peace rallies have been largely trouble-free. Nevertheless, demonstrations divert overstretched police resources from vital tasks. There may also be a potentially demoralising effect of dissent on service personnel. Receiving e-mail or television broadcasts concerning the unrest could dishearten those risking their necks in combat.

The barrister Rambert de Mello, an expert in human rights law, confirms that participating in political demonstrations is not illegal: "If you, together with a group of people, peacefully assembled to express an opinion regarding the Government's role in the invasion of Iraq, such a group is entitled under Articles 10 and 11 [of the Human Rights Convention] to express their views freely." It is only when other people's rights are infringed that legal action might be appropriate. In extreme instances, De Mello warns that protesters may even "fall foul of the Terrorism Act 2000". This might happen "if a person wears a certain item of clothing associated with a prescribed organisation".

David Ford says that it can be "difficult to spell out what is a legitimate expression of opinion and when it becomes an infringement of other people's lives in a serious way". Nevertheless, he is confident that "for most, while there is no easy definition, you know when what has happened is excessive".

De Mello believes that with non-violent protests criminal prosecutions might only result if business is seriously disrupted. This sentiment is echoed by Dominic Grieve, a barrister and Conservative Home Affairs Spokesman on Criminal Justice and Community Cohesion. He strongly supports a person's right to demonstrate but "the line gets crossed if activity causes physical danger or interferes in more than a transient way with people going about their business or work". As for prosecutions, he thinks that it is "rather improbable that the state would use a sledgehammer to crack a nut".

A range of public-order offences under the Public Order Act 1986, such as rioting, violent disorder and affray, could apply to civil unrest in addition to the common law remedy, breach of the peace. More interestingly, other esoteric Acts of Parliament could provide a platform for prosecution, creating the offence of attempting to induce police or army personnel to disobey orders and disavowing allegiance to the Crown. Under the Police Act 1996, it is illegal to carry out "an act calculated to cause disaffection among the members of any police force". Identical measures apply in respect of attempts to lead astray members of the Ministry of Defence police and the National Criminal Intelligence Service.

The interaction of the right to free speech and prosecutions following protest action is complex. De Mello emphasises that the right to free speech is qualified in relation to interests of national security, territorial integrity and public safety. It is a matter of balancing competing rights. Thus if the police are convinced that an offence has been or is about to be committed under the Public Order Act 1986 they are entitled to intervene. Even so, any legal sanctions must be proportionate to the need to maintain public order or to protect rights and freedom of others. A "blanket ban on any groups participating in protests against the war" could not be imposed.

There have been various cases where courts have had to decide when groups of protesters have behaved unlawfully. De Mello cites the arrest of hunt saboteurs in Steel & others v the United Kingdom. The creation of a physical obstruction could amount to an improper means of expressing an opinion, while arresting protesters who simply distribute leaflets and display banners is unlikely to be justified.

Whether violence among demonstrators is a prerequisite for prosecution is open to doubt. De Mello says that it is only necessary for this to be "a natural consequence of a defendant's conduct". Therefore it might be enough for conduct to be so provocative that someone in the crowd was likely to be moved to violence. Inevitably, it will be difficult to identify such behaviour.