Weber defined a state as a monopoly on violence. Thus is violent protest against the state almost doomed to failure: violence *will require* the state to suppress the protest, because a challenge to that monopoly is an existential challenge for that state.
A state will exercise that monopoly and mobilise violence, either internally or externally. Internally that violence will present as authoritarian repression, externally, as war.
A successful mobilisation of violence from external sources sees the destruction of the state in conquest, and a mobilisation from internal sources sees that destruction by means of revolution. The state cannot, will not, survive intact if violence is successfully wrought against it.
Peaceful protest is the means of forcing change in the state whilst yet preserving the state and avoiding the chaos of war or revolution. However, it may be almost impossible to prosecute a campaign of peaceful protest in an authoritarian and repressive state.
And that’s why the executive, in a state that hasn’t so far been authoritarian and repressive, if it is determined to resist the protest, will inevitably be drawn to exercise authoritarian repression, at least unless there are determined and deliberate constitutional restraints upon the executive.
That is the first function of a constitution in a democracy: to restrain or limit the executive in its governance of the state lest it oppress the people. A constitution will provide a context for the state that permits it to maintain its identity as it responds to pressures. It will serve as a counterbalance to the executive’s need to preserve itself at all costs.
These constitutional restraints will be expressed and brought to bear by the judiciary. The judiciary in a free and democratic state is strong so that it may resist and frustrate the executive. It will, however, be a flaccid empty shell in an authoritarian state. The occasional frustration of the executive is a good signal that the state as a whole is in a healthy condition.
The particular problems of the UK
Now, an executive may attempt an assault upon even a codified constitution, where the people enjoy the protection of simply pointing to an article that says “the executive is not allowed to do that”, but here in the UK we have an uncodified constitution, and that creates a situation where the executive can invent laws, enact them, and do whatever they like *until* these new laws are successfully challenged through the courts. Indeed, even with established laws, this cavalier gambit may be attempted by the executive, though precedent might permit it to sustain only briefly.
But sometimes briefly is sufficient to the executive’s ends.
The nature of our judiciary is that it requires a case be brought to it, it cannot happen upon a matter of concern and assert itself to action.
A case must be brought to the judiciary.
Bringing a case requires that an agency or individual invests money and time, precious resources not always readily available, and this scarcity of resource can be, and is, weaponised by the British state: the state gets away with whatever it can until someone is able to invest the necessary time and money to stop it. Thus the prorogation debacle, that saw the executive attempt to game the constitution to its agenda, and it was getting away with it too, until Gina Miller brought her case to the Supreme Court and successfully challenged what was obviously a hijacking of the constitution. That challenge was made in civil law.
If, however, it is some new criminal law that is used to suppress protestors, the enforcement of that law and the prosecution of a case will immediately trigger judicial involvement.
Right? So, there might be a palaver to it, but, ultimately, you are protected. Right?
Wrong. Because whilst you might win out in the end, the time for the processes of law to grind away can make the whole argument academic. By the time you’ve won – assuming you’ve the resources to sustain running the course at all – the world has moved on, and your victory may be irrelevant. And in the meantime, the state suppressed your actions.
I could go into the Post office Horizon scandal with this one, or even Hillsborough, but I will restrict myself to matters of protest and leave my reader to draw the broader applications for themselves.
The suppression of Herberts singing songs
Let’s start with my personal experience. I protest with Steve Bray outside Parliament against Brexit. Our group is known as SODEM (Stand Of Defiance European Movement). We get a lot of support. Not universal support, Brexit still has some cheerleaders, but ever fewer. Famously, the executive (different administrations under different political parties, but I’m afraid that this has proven to make little difference) has made many attempts to close us down, sometimes inventing new laws to do it, but I always said that those laws would fail in court. Ultimately, I was proven right.
Ultimately.
And the executive knew I would be proven right.
Eventually.
Which is why the powers suppressing us machinated at great length to prevent the case ever being ruled upon so that, pending the repeatedly deferred judgment, they could keep sending the police to take our speakers.
The police failed to submit their evidence in time for the first hearing, and also proposed a roster of witnesses that ran to over a dozen. The judge’s expression said “you’re taking the Mick”, even if she didn’t actually say it. At the second hearing one of the prosecution witnesses brought an audience who started taking photos in the courtroom, despite there being signs on the walls and the doors saying not to. Fortunately, we caught them at it almost immediately and informed security very quickly before the offenders could leave the court, thus preventing further adjournment. But they tried to create a situation where the judge felt compelled to adjourn, which would have left us still caught in limbo, and the police able to continue closing down our protest pending judgement.
Their ruse failed. The judge ruled.
He ruled Steve to be not guilty. Of course. We have a constitution. We are entitled to protest.
Did that stop the powers that be?
However, that was not the end of shenanigans in law. The police in Westminster are briefed before they deploy on a Wednesday for PMQs. A part of that briefing is that there’s that noisy lot on the traffic island with their banners, placards, flags and music. The police on the ground change every week, borrowed from stations from all over the Met, but those officers are briefed each week by a team with responsibility for overseeing Westminster on the weekly occasion of the Prime Minister’s majestic entry in a multiple vehicle cavalcade on his way to PMQs.
That team briefing the police on the ground neglected to inform those officers that we had won the case, and so they approached us with threats of seizing equipment should we use it to protest.
Once might be an honest mistake.
Twice could be gross incompetence.
The third is deliberate strategy.
We survived these efforts to close us down despite having won in court, by bringing a hardcopy of the judgement and insisting the police officers read it. Those we actually addressed on the street, and their immediate superiors, found our presentation of in-the-field evidence irresistible. They would read, and then leave us alone, I hope reflecting upon my suggestion that they ask themselves why they were being used to impose sanctions contrary to a judicial ruling.
What does this mean?
My point is this: the ruling in law was a mere inconvenience to certain vested interests. They wanted to close down our protest. Our rights were but a tiresome incident. Silly fripperies such as our constitutional rights were not to be regarded as any impediment to the exercise of power. And, had we not rocked up prepared, with both the hardcopy and the means to record the police in action, they would have continued to close us down, ruling or no ruling.
The British executive is no longer of the opinion that a judicial ruling is something to which they ought to be expected to pay attention.
Get the idea? The express ruling of the courts is little more than a tiresome detail that might be ignored by the government. The assumptions of authoritarianism have become the norm.
SODEM is not unique
Remember the coronation of King Charles? Some people are of a republican bent, and those people wished to protest against the fact of monarchy. This was deemed to be undesirable, so they were rounded up and imprisoned for the duration of the ceremony. Released the next day, of course, apologies all round, please protest to your heart’s content. But the coronation was over. Of course the republicans could now protest their point, but they’d been robbed of their golden opportunity of protesting against a monarchy at a coronation.
And now, the new trick, and this one stinks of desperation, not to mention has none of the subtlety required of wishing to maintain the merest veneer of a rule of law: declare anyone you wish to silence to be terrorists.
A leaf from the fascist playbook
“Terrorism” is not criminality. They are not positions on the same spectrum. The aims of a gangster are not those of a terrorist. Terrorists have been known to engage in criminality to fund their campaign, gangsters might rule their patch through terror, but terrorists are looking to promote, well, terror (clue is in the name), that terror to push a political agenda. The idea that anyone can be confused as to what terrorism is, and what criminality is, is simply absurd.
The group Palestine Action did perform some criminal damage upon government property. That the persons who actually perpetrated those acts might be tried and possibly convicted for that damage is perfectly reasonable. That damage was not intended to inspire terror. You weren’t supposed to see it on the news and fear that you could yourself be fatally painted red at any moment. It wasn’t like the IRA planting bombs, or Islamists on the tube. It was not the same thing. It wasn’t remotely the same thing.
But the government decided to class Palestine Action as being the same as Hamas. They put them together in the same legislation so that to vote down the legislation on account of their misrepresentation of Palestine Action would also be voting down the proscription of Hamas, and Hamas are definitely terrorists, and no MP (well, very few) wants to be seen to be supporting Hamas. The mendacity of this government saw them present Hamas – terrorists – and Palestine Action – protest group, some of whom had perpetrated criminal damage – as the same thing. They leveraged terrorism in order to suppress protest.
Many have observed that Palestine Action are very possibly criminal, but there is nothing to indicate terrorism, to which then Home Secretary Yvette Cooper responded that “ooh.. they are, you know, but it’s secret and we can’t tell you about it”.
And there’s a pretty crucial problem with that, and it’s this: terrorist acts are not secret. They are intended to inspire terror, and you can’t inspire terror if no one knows what you’ve done. So, sure, a terrorist will plan their operation in secret, but it is essential and absolutely necessary that the terrorist act, to be terrorism at all, be very public and known about by as many people as possible. That’s the whole point of the exercise: to inspire the terror to push your agenda the world needs to know about your terrible acts.
Bombing the Manchester arena and killing 20 people was not the end object of the bomber. Sowing fear and intimidation across the whole country, even the whole world, in the service of a vile ideology, that was the end object of the bomber.
You will perhaps say that terrorists might be thwarted before their act of terrorism comes to fruition, and sure, we would all hope for that, but the terrorists would still be put on trial. There could well be details that were kept from the public for security reasons, fair enough, but the fact of there being a case to answer is not suppressed. Justice must be seen to be done.
Palestine Action made damage costing millions of pounds.There is a case for them to answer. But it isn’t of terrorism, it’s of criminal damage. A lot of criminal damage, but criminal damage is not on spectrum that admits it graduating to terrorism on grounds of scale. Terrorism and criminality are categorically different things.
But now we have the unedifying spectacle of pensioners being arrested by police who look even more shamefaced about carrying out their orders than did the crowd that descended upon SODEM.
This too will see challenge in court in time, The executive’s abuse of both the law and the dictionary will be rejected by the judiciary. We won’t be sending 80-year-olds to end their days in prison. It will all be a big mistake. But, in the meantime, criticism of a genocidal regime will have been quelled.
Criticism of a genocidal regime that has been giving money to many members of our executive via proxies, the Israel lobby funded a quarter of British MPs.
The state visit of Donald Trump
There have been declarations from the Trump regime that it has concerns regarding freedom of speech in the UK. As you can see, so do I. It is, therefore, regrettable to note the American silence on the matter of the arrest of Led by Donkeys, the satirists who projected images upon the walls of Windsor castle reminding us all of the relationship between Trump and Epstein. They did no damage. But, as I write this, they haven’t been released.
They will be.
Once Trump has gone.
But then it’ll be “off you go lads, sorry about the locking up thing, our mistake, no harm done, eh?”
Between the writ of law and the operation of the judiciary is the liminal space, the interstitial space, where politics manipulates our law to suppress protest for the period necessary for the executive to get away with doing whatever the hell it wants. They quelled SODEM for over a year, kept the republicans out of view for the duration of the coronation ceremonies, they’ll keep cosy with their Israeli paymasters until the point is made academic with the leveling and ethnic cleansing of Gaza completed, notwithstanding a UN agency declaring it a genocide [Israel has committed genocide in Gaza, UN commission of inquiry says – BBC News https://share.google/fI6NfkPmFlf6knNBd ], and they’ll quell the commentary of the Led by Donkeys chaps until Trump flies home. Then the writ of law will either be honoured, or, if necessary, rewritten. And then it will be done again. This is how an executive in an uncodified constitution that is also supported by the artificial power base lent it by a First Past the Post voting system rides rough shod over the rights of citizens, most particularly the right to protest, with impunity, always able to say it has not broken the law, because it does the damage it needs to do in that window before they are ruled to be being unlawful.
But no harm done. Right(s)?
