The Materialist Lawyers’ Group runs a monthly reading group critically interrogating the law from a materialist perspective. Applying Paulo Friere’s concept of dialogic pedagogy, we select a judgment and a critical text to frame our discussions, which are facilitated by practicing lawyers and legal academics. This is a report on our recent discussion of the strategy of ‘Reclaim These Streets’ in its legal challenge to the Metropolitan Police Service’s ban on protests in response to the death of Sarah Everard. We read Leigh v [2021] EWHC 661 (Admin) alongside this article on racialised policing. Our discussion was facilitated by Garden Court Chambers barrister and Director of Black Protest Legal Support, Zehrah Hasan.
Background
The murder of Sarah Everard by a police officer was caught by the mainstream media and sparked national outrage. Reclaim These Streets, an NGO purporting to ‘speak up on street harassment of women and girls’ announced a vigil on Clapham Common to commemorate Everard’s death.
Reclaim These Streets engaged with the police from the outset, seeking their permission to hold the vigil. When the police, who originally gave positive signals, banned the vigil, purportedly under coronavirus restrictions against public gatherings, Reclaim These Streets went to the High Court in Leigh, not to seek an injunction enabling the vigil itself to go ahead, nor even to seek a declaration that the specific police ban was unlawful, but rather, a far weaker general declaration that the coronavirus regulations must be read and applied compatibly with the Human Rights Act 1998, in particular Articles 10 and 11 which confer the rights of freedom of expression and freedom of assembly. In Leigh, the court refused the application and Reclaim These Streets cancelled the in-person vigil after police told the organisers that they could be prosecuted for conspiracy and subject to heavy fixed penalty notices. The court reaffirmed the law, that there cannot be a blanket ban on protests, but deferred to the police to determine whether it would be proportionate to restrict individual protests in light of the coronavirus regulations.
Intro from Zehrah Hasan
The judgment in Leigh demonstrated the complicity of the courts in deferring power to the police, highlighting why the law is limited and why the Reclaim These Streets strategy, rooted in a context of police reform rather than abolitionism, was never going to lead to the right outcome for protesters.
Reclaim These Streets has prided itself on being able to work with the police; campaigning for misogyny to become a hate crime, meeting with the commissioner, suggesting a solution to police violence is more police training, and asking for the Met to show that they are committed to the myth of ‘policing by consent’. But criminalisation and legislation won’t protect women and gender non-confirming people from violence. Policing by consent is inherently illusory when the police are institutionally violent and racist.
The declaration sought was a simple restatement of the existing law, rendering the legal action itself superfluous. Reclaim These Streets didn’t ask the court for an injunction enabling their protest to go ahead, nor did they ask for a declaration that the police ban was unlawful; one can question why these points did not form part of their legal strategy. But the more fundamental question is whether the court should ever, or ever can, seriously protect our right to protest.
What this judgment exemplifies is the inherent contradiction between seeking ‘permission’ to protest (from the police or from the courts), and the very nature of liberation through dissent. For Reclaim These Street, when permission was not granted by the state, they abandoned the streets rather than asserting their fundamental right to protest irrespective of state approval. It was left to women and non-binary people of colour from Sisters Uncut to lead the vigil that did take place.
This is a classic example of how white-led liberal groups reinforce, and often collude with, the authoritarianism of the state. Reclaim These Streets kowtowed to the courts, normalising the view that people should ‘ask permission to protest’ and that the power to grant or withhold the ability to protest lies with the state. This approach also only serves to uphold and legitimise police brutality and violence against Black, Brown and Racialised protesters - something we are seeing continually on the ground from Black Lives Matter to Free Palestine protests in the UK.
Fundamentally defending the right to protest can only ever truly be won on the streets; protest movements are more effective than the judicial system in winning rights. In this context, legal action can be more useful and strategic as a retroactive tool, challenging the state once it has already breached the law, rather than as a prospective tool intended to ask for permission.
For instance, 5 Legal Observers from Black Protest Legal Support threatened to judicially review the Met after officers arrested them at Kill The Bill protests earlier this year. The threat of legal action resulted in all charges against the Legal Observers being dropped. BPLS still maintains that the arrests of mainly racialised Legal Observers were targeted, discriminatory and unlawful. The 5 Legal Observers arrested are now pursuing a civil claim against the Met.
Using legal action in this way enables individuals to hold the Met to account, without deferring to the courts or the police themselves to regulate the lawfulness or legitimacy of particular protests. It creates space for more strategic and nuanced arguments to be raised that supplement campaigning efforts, rather than relying on the law alone.
Further, Reclaim These Streets, in both their campaigning and legal strategy have consistently failed to go beyond the parameters of middle-class white feminism by adopting a classic liberal framing. Racialised and minoritised communities have suffered police violence and brutality for decades; yet the national outrage and ‘vigils’ to mourn this violence are distinctly lacking. Therefore, Reclaim These Streets’ focus on ‘policing by consent’, on critiquing their ‘girl boss’ Cressida Dick for ‘disregarding women’s rights’, and on criminal ‘justice’ responses to male violence are all actively harmful to the communities most impacted by police and state brutality.
This violence, experienced by Black, Brown and Racialised people every day, also inevitably permeates into the policing of protests.The state’s rising repression is crystallising in the Police, Crime, Sentencing and Courts Bill. The Bill will put the power the police have gained to clampdown on protests on a wider and more permanent legislative footing and will most sharply impact people who are already heavily criminalised by the state. The narratives underlying the Bill are reflected in the Reclaim These Streets strategy - of asking the police whether they can protest or not, and which types of protest are legitimate (e.g those that are white-led, or framed as ‘vigils’).
In the end, Reclaim These Streets did not show up at Clapham Common. Instead, Sisters Uncut led the charge. Racialised people do this at great personal risk. We need to think about what material solidarity looks like in this context for our communities.
Discussion
Participants came up with key themes that had been raised by the texts. One question addressed what difference, if any, exists between a strike and a protest, and what role strikes and trade union protests play in defending the right to protest. It was agreed that a strike is a form of protest and that it is important to recognise the different strategies used to show dissidence and collective struggle in using our bodies to call out oppressive systems, and that it was interesting to think about how to join up those different struggles. It is through the performative act of protest itself – including pickets and strikes – that power is claimed.
The issue of how the police have become ideological actors was discussed. The police themselves lobbied for the Police, Crime, Courts and Sentencing Bill, and their recent gestures, eg. surrounding Churchill statues, has placed them in a more explicitly ideological position (though it can be questioned how much this is a novel development given that police ‘neutrality’ has always been a myth).
The three key questions discussed in breakout groups were:
- ‘The master’s tools will never dismantle the master’s house’: can we ever effectively use the law to defend the right to protest?
- What does the judgment tell us about reformist approaches and how harmful they can be to abolitionist movements? What do you think about the complicity of the court and the claimants’ legal strategy in handing power to the police? Do you agree that’s what happened and what does it tell us about the limitations of the law? Was there anything else striking about the judgment?
- How do we collectively resist the current threats to the right to protest, particularly in standing in solidarity with Black, Brown, Racialised and other marginalised protesters?
In the ensuing discussion, some participants who have been directly involved in the Reclaim These Streets case argued that the court action was necessary because the organisers of the protest were afraid that they would be given fixed penalty notices if they continued with it, and that the judgment itself was helpful because although the declaration sought was not given, the court did restate the principle that protesters may have a lawful excuse for breaking the coronavirus regulations when exercising their right to protest. It was argued that this was practically useful for the defence cases of those protesters who were arrested, because although there were many arrests, there were no charges. Further, the question about whether the particular protest was lawful was not asked because the court would have said it was unlawful and that would have been even more useless and unhelpful.
In response, other participants argued that the legal action was not necessary as the lawful excuse principle had already been established in previous cases. The strategy was flawed by the naive assumption that the courts, if not the police, would defend liberal freedoms, and ended in the cowardice of deference to both institutions. In the end, such judgements often don’t have a material effect on the ground in terms of how the police behave. Despite the judgment, the police are still arresting and assaulting protesters, causing significant trauma for often racialised people, even if charges are later dropped, which ultimately has a chilling effect on the right to protest and emboldens the police force.
The question is, what does the law do, and can it protect us? Some participants argued that it cannot, as ultimately, the law protects the state. The narrow space in which it can be helpful to wider movements has to be navigated carefully and with the communities most sharply impacted leading on strategy.
It was acknowledged that the lawyers who did the work to achieve the judgment deserve credit and the ultraleftist position that law is all bad is unhelpful, but so too is the liberal position that believes the way to stop state abuse of the right to protest is to seek solutions from judges. That strategy is damaging because it’s not effective in creating change. Reclaim These Streets presented itself as a political group interested in physically taking back control over the streets, but then they went and asked the courts for permission. They hadn’t strategised what would happen if the courts did not give that permission and they then deferred to the state when it was not given.
What Reclaim These Streets did was dangerous because they purported to be a role model and a leader for the masses, then abandoned the streets and deferred to the state. They raised a significant amount of money, with little to no accountability, and mobilised thousands of people without a transparent political agenda. When that agenda came to light, they lost both trust and legitimacy, owing to the very harmful ramifications of their ideological framework.
From a radical lens, the point of legal challenges is to expose the contradictions of the courts and the liberal system to better develop a wider political strategy around it. It is about using legal action to chip away at the system, but recognising only non-legal remedies can dismantle it. The organisation’s deference to the courts and decision to abandon the planned protest left a vacuum and sent a signal to the public, discouraging them from utilising a key means of expression of dissent.
Sisters Uncut’s strategy was far more effective; they took over and said, ‘if the courts don’t like it they can drag us away’. What will the liberals do when the Parliament repeals the Human Rights Act or when the PCSC Bill becomes law? When many modes of protest will be expressly criminalised and the likelihood of arrest will increase. It will be radicals, and predominantly Black, Brown and Racialised people, who will continue to take to the streets. Liberals will abandon these causes, as Reclaim These Streets did, out of fear of individual repercussions and end up being complicit in state oppression.
What Sisters Uncut did showed that the power to protest inherently lies in the bodies of the people. We don’t ask for our right to protest, we assert it.
As part of our discussion, other participants questioned how we push the boundaries of what is deemed unlawful. What lessons can be learned, for instance, from the Bradford 12 in the 1980s when Asian children were acquitted for using molotov cocktails to defeat the National Front, and Michael Mansfield successfully argued that it was self-defence?
More generally, participants viewed legal action by analogy to mutual aid; not as a way of achieving change but rather a way of survival, working in a system that doesn’t serve us.
The use of semantic differences to criminalise some protests and not others was raised, for instance, the Sarah Everard gathering was a ‘vigil’ as against other protests. In terms of looking to the courts to protect rights, it was highlighted that the judiciary are predominantly white Oxbridge-educated men whose interests are already represented in the political arena, and the idea that they would protect the interests of marginalised groups was laughable. We also know how much the courts defer to the police; the courts are an arm of the state and the police are an arm of the state. While there is some value in bringing legal challenges, the most important thing is how those challenges are framed.
Concluding thoughts
Participants who had been involved in the Reclaim These Streets case argued that one of the most important things is resisting divisions. That going forward, the best way to keep defending fundamental rights is to keep a diversity of tactics and resist the drawing of lines between different groups of people.
One participant argued that radicals and liberals should be working to the same aim; when liberals turn to the courts and it fails, that gives momentum to discuss how the courts and the system is broken.
Others responded that diversity of tactics is important, but as Jodi Dean has stated, politics is about division. Radicals and liberals occupy fundamentally contradicting positions. Radicals side with labour knowing that judges will pursue the interests of our class enemy. When the time comes, the liberals hand the keys to the fascists because they prefer the fascist state to the ‘mob’. Radicals, for instance, were out on Cable Street, while liberals deferred to the cops. The time will come when the radical-liberal distinction determines whether you have the guts to go out on the street, as happened in response to the PCSC bill and time and time again in the past.
Participants expressed wariness that the term unity is used as a shield against criticisms for organisations like Reclaim These Streets. Unity itself favours moderates and centrists. It makes radicals seem like an inconvenience. What’s the benefit of unity if it stifles radical voices for systemic transformation?