Liberty has its Limits
by Ann Furedi
Public Order restrictions are always going to be complicated and need to be understood in their social context – this is one of the reasons why periodically Government produce sweeping legislation that mop up a range of what it perceives to be identifiable problems. The 1860 Offences Against the Persons Act, which has come to discussion recently because it is the legislation that outlaws abortion, is a good example of just such a Bill. Beyond abortion, it criminalized assaults on people authorized to sell grain, people preserving goods from shipwreck, obstructing clergymen, assaulting sailors, obstructing railways, garrotting, using gunpowder, poisoning, setting fires in shipyards. The matters covered by the legislation seem today to be quite random but reading the Bill actually gives insight into the unresolved issues of the day.
Public Order Bills are always hideous. By their very nature they aim to restrict behaviour in public areas and, in those of us who value freedom and liberty (me included), they generate a reflexive response: “it’s an attack on our freedom”. The Public Order Bill, now in the House of Lords, is no exception.
If you consider freedom as the most general ability to do anything you want, all laws that regulate public engagement are incursions on freedom. The speed limit is a restriction on freedom. The compulsion to drive on the left side of the road in Britain, and the opposite side in France is a restriction of freedom. But who would want the free for all of a law-less road system? As Charles Morgan, observed in the Sunday Times in the 1940s, modern society needs social rules as much as individual freedom. The beautiful volume of quotes, compiled by Neville Hilditch in 1949, highlights his observation that: “In a complex and highly industrialized society freedom cannot have the same meaning, as an element of the relationship between subject and state, that it had at the time of the Revolution in 1688.” In his opinion freedom and liberty did not have fixed meanings when applied to the day-to-day public order issues that modern society generates.
Perhaps, in 150 years’ time, law students looking at the current Public Order Bill will be struck by a similar bizarre and random nature of proposed offences and supposed liberties that this Bill will restrict. Why on earth would a government bring legislation that specifically creates an offence of “locking on”? or going equipped to “lock on? Why make it a criminal offence to obstruct major transport works? or interfere with key national infrastructure?; or cause serious disruption by tunnelling? Why create a buffer-zone of 150m around an abortion clinic where people can’t seek to influence patients?
And perhaps, having asked why state authorities thought these specific new crimes were necessary, they will also wonder why anyone with an ounce of intellectual acumen would oppose the restriction of these actions in the name of “freedom” and “liberty”. Do we, each and all, have a personal freedom to interfere with someone accessing legal abortion, if we think it’s wrong? Do we have a personal liberty to dig a tunnel (to quite literally undermine) a train track?
George Bernard Shaw made an important point about Liberty in his play Man and Superman. He said: “Liberty means responsibility”. And it is the absence of responsibility on the side of both protesters AND law enforcement that has given birth to this Bill.
The reason why Liberty demands responsibility is that to claim freedoms we must use those freedoms with judgement, foresight, and awareness about the consequences of our actions for others. Our individual freedom does not liberate us from social responsibility for the consequences of our actions on those around us. This absence of social responsibility and contempt for the democratic system that is responsible for policy, including that on oil, the environment and abortion, is what marks the actions criminalized by the Bill.
For example, a bill to make it a crime to interfere with national infrastructure should utterly unnecessary. Firstly, because no socially responsible activist should imagine that such interference is a legitimate form of action. Secondly, no responsible police commander should accept the need to stand back when public infrastructure or lawful services are threatened or when people are prevented from going about their lawful business. It is insane that during the recent stoppages of the M25, police spokesmen justify their inaction because of the need to respect a fine line between people travelling and people blocking the road because they believe in a cause. The police do not need a Bill to give them powers, they need to exercise the powers they have, just as they have before they were confounded by claims of the human right to obstruct traffic.
Furthermore, those who feel activists are being denied the right to their freedom of expression might want to consider what they feel this freedom in these circumstances is worth. Is the value of the protest not worth the penalty imposed by the Criminal Justice Bill? If you believe in your cause sufficient to prevent fellow members of the public from earning a living should you not be prepared to pay the cost of a fine or time behind bars? Why should anyone assume they have a free pass to carry out anti-social activity just because they are doing it for something they personally believe is important.
It is ironic that some of those who have objected to the criminalization of “locking on” have referred to the history of the suffragettes who, 100 years ago, famously chained themselves to railings in their struggle for the vote. We can be sure that not one of those heroic women believed they could assert their right to “lock on”.
They knew full well that they would be arrested, and that their own sacrifice was part of their protest. And arrested they were, because even without a specific bill saying it was an offence of locking on, the police took responsibility for the interpretation of existing public order offences.
This Public Order Bill is a travesty. It gives credence to the idea that the police cannot act unless an anti-social activity is mentioned in legislation and so is useless as a means to enforce reasonable behaviour. We can sure that right now the mischievously inventive minds that were previously planning how to tunnel under construction projects are now dreaming up a non-tunnelling alternative. This will require a new Bill, and so it will go on.
Furthermore, in its attempt to be specific it becomes ridiculous. Why should only patients at abortion clinics be protected from interference from those who seek to use a medical facility as a venue for debate with patients as unwilling participants?
It would be better to have no new Bill, and simply expect the police to police.
– Those of us who value Liberty must first understand what it is, and how the enjoyment of Liberty in a democratic society requires that we exercise tolerance and judgement and restraint.
– The questions we face now are not new. Writing at the time of the French revolution, Edmund Burke, was particularly preoccupied with the questions that faces us now: to what extent do the institutions of state make the exercise of personal liberty possible, to what extent do those same institutions violate our rights as individuals and how do we resolve the tension.
If we want to resolve that tension with less legislation, those who want to mobilize for a cause need to do better and drop than the childish social-vandalism that passes for direct action.
Ann Furedi is the author, The Moral Case for Abortion, and the former chief executive, BPAS