Occupying Court Time

by Joseph Markus

The Occupy legal proceedings began yesterday and are set to continue for up to four days. Whatever you think of the message of Occupy LSX, the question to which these proceedings relate is not the politics of the movement as such, but rather the method through which it has been expressing those politics.

Looking at the matter from a strictly human rights angle (being manifestly under-qualified to comment on the Highways Act and possession issues), through (re)claiming the churchyard of St. Paul’s and other Corporation of London property, Occupy LSX have raised an interesting conflict between the Corporation’s rights to property and their rights to peaceful assembly and expression.

The question, at least under the human rights heading, for the High Court will be whether, and to what extent, the right under Article 11 of the European Convention on Human Rights (‘ECHR’) to peaceful assembly can protect long-term encampments in public places. Article 10 ECHR (on free speech) will be subsumed within the Article 11 claim.

From a brief look over the Corporation’s Particulars of Claim, it seems that it is relying principally on perceived public health, obstruction, and anti-social behaviour issues to defeat Occupy’s rights. The Corporation concedes that a long-term protest not involving an encampment would be acceptable, though the feasibility of protestors being able to stay in the area without the benefit of tents or bedding is unclear, and that the protestor’s beliefs are genuinely held.

As to the law, the fundamental premise of free assembly and expression is that, unless it is to take place solely in private, it necessarily impacts on the rights of others. The Supreme Court of Canada, whose reasoning our own House of Lords has approved, agreed that

freedom of expression cannot be exercised in a vacuum … it necessarily implies the use of physical space in order to meet its underlying objectives. No one could agree that the exercise of freedom of expression can be limited solely to places owned by the person wishing to communicate: such an approach would certainly deny the very foundation of the freedom of expression.

A 2009 decision of the European Court of Human Rights (‘ECtHR’)—from slightly closer to home—accepted, in the context of French hauliers obstructing traffic on a motorway, that completely blocking the passage of motorway traffic went beyond the disruption inherent in any demonstration. This decision is useful as it shows the sensitivity of the ECtHR to the disruption element to peaceful assembly—in this case, the physical presence of the Occupy camp.

Finally, returning to the UK, the Court of Appeal in the 2009 case of Tabernacle v Secretary of State for Defence came to the conclusion that the Secretary of State’s decision to prohibit camping in the vicinity of the Atomic Weapons Establishment at Aldermaston was a serious interference with the right to freedom of assembly of those participating in the women’s peace camp, which had been protesting at the site for over 23 years.

It seems, then, that the protestors may have a relatively strong case for claiming that they fall, at least prima facie, within the bounds of Articles 10 and 11. The case is strengthened when one considers that their protest takes aim at the system of property and wealth accumulation associated with rabid capitalism; it does this through a symbolic reclamation of City of London land to create a sort of commons. Their presence on the land—the tent city—is crucial to their wider political goals.

The point of contention is likely to be the various public health and public order issues highlighted by the Corporation.

To anyone who happens to have experienced the Occupy camp first hand, it should be clear that those inhabiting have a real commitment to their political vision. They are, broadly speaking, considered, articulate, and polite. They invite discussion and education. They seek to accommodate their own, and other’s differences, both through external dialogue—for instance, with St. Paul’s—and through a highly-democratic general assembly process. There are two routes around St. Paul’s and only one of these is, in any sense of the word, ‘obstructed’, and there is still ample space for foot passage. The camp has a kitchen, a ‘university’, and port-a-loos. Some have complained that homeless and other ‘vulnerable’ persons are attracted to the camp. To this, it can only be said that allowing the homeless the benefit of a canvass roof surely cannot be seen to be a negative thing.

Mr. Justice Lindblom, the judge hearing the case, is expected to visit the camp at some point this week and, hopefully, on that visit he will be able to perceive the many positive attributes of the camp and the protestors who reside there.

Much will depend on that judge’s conclusions as to veracity of the complaints made by St. Paul’s and local businesses, that the life of the cathedral, as well as business, has been detrimentally affected.

I’m tempted to end on a cynical note, that the judiciary are an inherently conservative breed and that they will tend to support the rights of property (and of capital) over those of the marginal and the subaltern. Instead I will retain some hope that Justice Lindblom may allow the protest to continue in its present form—recognising that all protest entails some disadvantage to somebody,—but not much.

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