Airport protest and the law (10 August, 2007)

It was, said the Independent, " A Good Day For Free Speech" in one of its comic book generation front page headlines. Whilst the anti-war campaigner Brian Haw won another round in his battle to bear witness outside Parliament, BAA lost most of the elements of its attempt to silence environmental activists and their anti-aviation campaign. That was the Indy's take, and it mirrored the general approach of Channel 4 News.

At issue is the attempt by Plane Stupid and others to establish a Camp for Climate Action, along the lines of their last, in 2006, at Drax power station. This year's will be somewhere near Heathrow and will include some people and groups whose avowed intent is to disrupt operations. According to a sympathetic activists' website, the campaigners had argued amongst themselves as to whether the holidaying public made quite the target that an energy utility presented - and whether the airport wasn't a tad noisy to be a great venue for a talkathon. Anyway, there was a consensus that there should be no occupations of runways.

So far, so good, you may think. But it remains the case that Heathrow knows that an unknown number of people will turn up at an unknown site near enough to the airport to be a nuisance and that amongst them will be people who intend to tip the airport into chaos. Their job will, according to Heathrow's many enemies and fewer friends, be very easy. This is the busiest time of year, and the infrastructure everywhere within miles of every ticket barrier will as usual be strained, as will be the nerves of passengers and operators alike. Chuck in the experience of Glasgow airport and the burning jeep-bomb poised at the entrance to its terminal, and one readily gets a sense of the problem.

What would you do if you were running an airport which was the brunt of discontent from half the people who came into contact with you - and now some committed malcontents too - and was a prime terrorist target?

The way the papers and electric media described it, the British Airports Authority had sought to ban members of the National Trust and the RSPB (and of Greenpeace and Lord knows who else) from visiting Heathrow. This was nonsense: they would merely have been forbidden to go to proscribed areas as protestors. As passengers, of course, no-one would have known their affiliation, or asked. Anyway, the judge never seemed likely to warm to this theme: she was a member of half these organisations herself. She was prepared only to grant an injunction against four named activists from Plane Stupid and another group, and banned them from being on BAA property.

She seemed not to like the way BAA had sought to use the protection from the Harassment Act 1997, which was - as campaigners and media always point out - original designed as a device to get at the seemingly innocent and generally legal behaviour of stalkers. People who plague women and celebrities often hang about certain places in a way which is not itself illegal, and may not even be intended to create fear, but can be terrifying. The Harassment Act created the possibility of injuncting stalkers: in particular it forbade them being in the places, and doing the things, which might lead to fear being created. It was the victims' reasonable expectation of fear which produced the proscription.

If you think about it for a moment, the value and novelty of the 1997 Act was clear. It didn't require that violence of the beach of the peace kind was in prospect. It allowed the victim's likely experience to be the legal trigger. It acted pro-actively for plausibly dangerous activity rather than seeking to punish past behaviour. So far as I know it has done that original job pretty well.

This is where the story gets personal. The Harassment Act was in part the brainchild of the lawyer Timothy Lawson-Cruttenden, a former Guards officer and keen TA member. As well as pursuing stalkers, he became interested in defending the fur trade against persistent and often threatening but seldom actually violent animal rights activists. As a fan of the fur trade, I became aware of his activities in this line, and helped him gather and present the evidence he needed. In 2001, I was a defence witness in one definitive High Court outing between the fur trade and its tormentors.

Over the years, TLC has persuaded several High Court judges that the Harassment Act covered extremist animal rights protest. Here was behaviour, after all, which conventional law and policing had manifestly failed to stop, and it was plainly designed to induce fear. Such activists should be made to stay a certain number of feet away from, for instance, the shops, offices and homes of furriers. They should be forbidden from bridging the gap with loud-hailers.

The judges were always concerned with the balance between the harassment protestors intended to cause and their right to protest. Indeed, the judges completely accepted that protestors had a right to be voluble and visible in their cause. They had a right to be noisy near their targets. But judges kept on granting most of TLC's requests. In time, the Harassment Act helped to defend HLC - Huntingdon Life Sciences, the animal testing and research laboratory - and Oxford University's proposed animal research lab. In these cases, the protests were occasionally more obviously violent than the anti-fur actions had been.

By around 2005, the police began to be more efficient in bringing the clearly criminal activities of some protestors to book. But the Harassment Act remained valuable as a remedy against protest which shaded into direct action - namely action designed not to make a point but to force a difference. Here was a means of making clear that protestors could not play ducks and drakes with their right to demonstrate.

By 2006, the role of Harassment Act injunctions had widened to the point where they were used against the threat of direct action by environmentalists. It happens that it was neither TLC nor the Harassment Act which were deployed against the climate change activists who sought to disrupt Drax power station with a camp there in 2006. But the old team were used against activists who sought to stop Npower from disposing waste into part of Radley Lakes, in Oxfordshire. TLC was becoming a hate figure in the activist world.

The activists always discuss TLC as though he were flogging the Harassment Act around boardrooms as an ideal instrument of "corporate bullying". Actually, of course, in so far as the Act or any Act is useful to lawyers it is because judges so decide. TLC is a stooge of the law, not of corporates.

It will perhaps be obvious that I am a great admirer of TLC. I know that his actions have helped many furriers and animal laboratory workers (whether academic or commercial) live more normal lives. What's more, I know that it his tenacity which has been successful. He is not the most suave of lawyers, but he is a bonny fighter. He is as much devoted to civil liberty as are the much more famous names who are lauded in liberal circles. The point is, of course, that he is interested in the civil liberties of the targets of protest in much the same way that he is interested in the civil liberties of protestors. He did himself no favours telling the Independent that he is a legal rottweiler: he's a legal terrier. Anyway, it was perhaps obvious that the Indy would get the wrong end of the stick and headline their little profile: "How Heathrow's lawyer has made a career of opposing right to protest". Actually, it's just that TLC is part of the process which aims to get the balance right. What's more of course, he is on the side of formal democracy. The injunctions he has secured all aim to limit direct action campaigns aimed at overturning decisions taken by voters.

There is indeed a question as to whether aviation and waste disposal (or Drax) present the same sort of case as the stalking of women or threatening furriers or animal researchers. It would certainly be very nice if there was a law which made it easy for police to draw a distinction between peaceful and unacceptable protest of whatever sort. But direct action is almost always a subtle beast: it depends on disingenuous street theatre shading into, and providing shelter to, real menace or serious nuisance of different sorts. In this, it is really quite like the behaviour of stalkers. The fact is that the ordinary criminal law is useless at policing protest and the Harassment Act - even if it is not a perfect fit - has real advantages.

When TLC lobs up with a request to limit a protest, he has to demonstrate that he wants the court to proscribe behaviour which is threatening, and that tacit assumption is that he has to demonstrate that protest can continue alongside his requested injunction. In other words, he has to demonstrate that what he wants to stop is definitely bad and that stopping it won't infringe legitimate protest. Most of the injunctions he has won specify the places close to the targets where protest can continue.

So when we come to the Heathrow shenanigans, it is important to see that it is no use liberals holding their noses as TLC turns up to try to get a judge to define what can't be tolerated. Naturally, everyone's working in the dark since the protestors won't say where they plan to have their camp nor what activities they intend to launch from it. The National Trust and other respectable bodies got caught up in all this because they belong to an umbrella group which ran the gamut from cosy to disruptive. It may have been right for the judge to cleave the respectable from the anarchic, but it will also have been salutary for the soft-left liberal, green Establishment to realise that it ought to consider who it gets into bed with.

It's obvious we are in murky waters. We want to preserve the right to protest. We obviously want to stop serious threats to life and liberty. We ought to prevent behaviour which induces fear. We probably ought to be able to stop disruption, especially but by no means exclusively when it amplifies a terrorist threat. Oddly enough, you may think, thrashing the issues out in front of High Court judges, and doing so case by case, produces a rather good balance. Surely it's better than having policemen clumping about with riot shields behind which they angrily consult a ream of explanatory notes to criminal laws of labyrinthine complexity.

That is why it so stupid of the Independent and Channel 4 and the rest to see TLC's work as self-evidently on the side of repression. TLC may go too far, and claim too much danger from too many protagonists. But he has been extraordinarily effective in helping the judicial system draw its own lines and come to its own conclusions as it preserves real liberty, which is always a balance between freedom and order.
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