Observations on protest

You thought protests in public places were legal in Britain? Wrong. This autumn, the Transport and General Workers' Union planned to march on Canary Wharf in London to protest against the low wages of its cleaning staff, but the owners of the estate got a high court injunction to stop the protest. As Canary Wharf is private property, its owners are largely free to allow or deny access to whomever they wish, for whatever reason.

On the same principle, in 1998, a group was denied access to a shopping mall in Tyne and Wear where it wanted to distribute leaflets opposing plans to build on a local park. The case went to the European Court of Human Rights, which decided last year that the exclusion of the leafleteers did not violate rights of freedom of expression or association. The court said those rights could be exercised elsewhere, by protesting on neighbouring land or writing to a newspaper.

Yet a particular plot of land may be uniquely positioned to advance the cause of a protest. Canary Wharf is clearly the most effective place to bring the cleaners' wages to the attention not only of others working in the estate, but also to visitors shopping or doing business there. In other cases, what counts is the importance of the private owner. The investment decisions of multinational banks, for example, may have more impact on society than many government decisions.

The tension between the power of property owners and the right to protest has increased with the privatisation of conventional public spaces. Yet the problem goes even deeper to the question of equal opportunities for political participation. Owners of shopping malls or commercial estates can allow access to the campaigns with which they sympathise while banning the ones they oppose. Freedom of assembly and protest is most important, however, for people with fewer resources, who may not be able to make their voices heard through advertising or extensive political lobbying campaigns.

Perhaps we need to look to New Jersey, where the state supreme court upheld a constitutional right of access to distribute leaflets at a privately owned shopping mall. The right is not absolute and applies only to those properties to which the public can normally gain access and where the location is central to the protest. Here in Britain, parliament could enact legislation that designates particular types of land, whether publicly or privately owned, as forums for political expression. The right would apply only to larger accumulations of land, and obviously not to homes or areas where privacy may be at stake. The legislation could build in safeguards, such as advance notice of a protest. But just as we needed laws to secure ramblers' access to the countryside, so we now need laws to ensure that opportunities to protest, campaign and associate are open to everybody.

Jacob Rowbottom is a barrister and fellow of King's College, Cambridge

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