Supreme Court is correct to get tough on the right to protest

Tony Blair’s governments gave the courts a huge range of powers they had not previously enjoyed. The Human Rights Act 1998 meant that courts could quash ministerial decisions – and could rule also on legislative enactments—which were, in the judges’ view, contrary to our basic rights. At the same time, the devolution legislation meant that our top courts could rule on border disputes – on questions of whether powers to do certain things lay with Westminster or Holyrood. All this was novel.

Adam Tomkins: Time is coming for the SNP's young guns to take over

Since David Cameron’s time in Downing Street, by contrast, governments have been concerned that our courts have grown too powerful. The Conservative Party, in its 2019 election manifesto, made bold promises to curb the powers of the courts by reforming the law of judicial review and by amending our human rights laws.

To date, these reforms have amounted to little. But that, in no small measure, is because the Supreme Court has not needed ministers to rein it in: it has been acting, of late, with a marked restraint of its own. The signals, that the era of ever-increasing judicial power is over, could not be clearer.

Until this month, the one exception to this – the one area where the courts were still outspoken in their liberalism, and were far from conservative – was the right to protest. As recently as last year the Supreme Court ruled in a case called Ziegler that it would be unlawful for a protester to be arrested for obstructing the highway unless the obstruction was such a disproportionate interference with the rights of drivers and other road users that an arrest really was the police’s only option.

This has made the effective policing of direct action groups, such as Extinction Rebellion and their ilk, nigh on impossible. Social media is awash with images of French police officers simply hauling protesters off the road and dumping them out of harm’s way on the verge. Such tactics would be unlawful in the UK—no matter how much the road-using public would rush to support them – because of court rulings extending and deepening the law’s protections of those who choose to protest, whether peaceably or not.

Adam Tomkins: The ghosts of New Labour are still playing the old tunes

This is the context in which this month’s Supreme Court ruling on “safe access zones” around abortion clinics in Northern Ireland needs to be assessed. The Northern Ireland Assembly had legislated for such zones, meaning that pro-life campaigners could not lawfully protest against abortion in the immediate vicinity of an abortion clinic. Such protests are targeted less at public policy on the provision of abortion, and more at the individual woman walking into an abortion clinic in order to avail herself of the services offered there.

The Supreme Court ruled that the Northern Ireland legislation was lawful – that it was no violation of the right to freedom of assembly, which is a basic human right under the European Convention on Human Rights. It is well known that the Scottish Government wishes Holyrood to enact similar legislation in Scotland, and was awaiting the Supreme Court’s verdict before knowing whether it could do so. Now that we have the court’s ruling, we can expect legislation on this matter to come before Holyrood next year.

The Supreme Court’s ruling is not the attack on free speech some right-wing commentators have accused it of being. It is not the speech of anti-abortion protesters which is limited by the legislation: it is merely the location at which they may stage a demonstration. This, classically, is what the right of freedom of assembly is about, not the right to freedom of expression.

In making its ruling on the Northern Ireland legislation the Supreme Court took a swipe at its own previous case law on freedom of assembly, Ziegler in particular. That case was not formally overruled in the Northern Ireland decision, but the approach which led to it is plainly not the approach the Supreme Court is any longer prepared to countenance. If, in due course, this heralds the consigning of Ziegler to the dustbin of judicial error, where it belongs, all well and good.

The right to protest is, in fact, a misnomer. Like a lot of convenient shorthand it overlooks too much. What the law actually gives us is not a right to protest but a right to peaceful assembly. In those years when a less conservative and more liberal senior judiciary was in the ascendancy, that qualifying adjective lost its meaning. Too often, freedom of assembly would be judicially protected whether it was peaceful or not.

Adam Tomkins: Supreme Court ruling is good news for nationalists

The current Supreme Court is brilliantly led by two judges trained in the disciplines of Scots law – Lord Reed and Lord Hodge are, respectively, the Supreme Court’s president and deputy president, and both are Scots lawyers. Piece by piece they are reasserting a more orthodox approach to the problems of law and government.

We saw this in the uncompromising ruling in November that stopped in its tracks any lingering prospect of a second independence referendum. We have seen it in multiple areas of our constitutional law. And now we are seeing it in the context of the so-called right to protest, too.

This is unambiguously a good thing. The new reality the court has brought to bear, that we do not have an unbridled right to protest, is much to be welcomed. In this regard, what goes for anti-abortion protests goes also, of course, for climate activists. Their days of obstructing the highways with impunity are numbered.

Adam Tomkins is the John Millar Professor of Public Law at the University of Glasgow School of Law. He was a Conservative MSP for the Glasgow region from 2016 to 2021.