Lord Justice Bingham once described the Rule of Law as ‘the cornerstone of a democratic society.’ Although on the face of it this constitutional principle might be associated with the idea that law and order reign, the doctrine’s deeper implications concern how power is exercised in a modern constitutional regime. More specifically, a state that claims to uphold the Rule of Law is a state in which government and its administration (that is, those who claim to legitimately exercise power – including a monopoly on violence) operate according to the law. This is what distinguishes a police force from a gang, or the executive of a government from a Mafia. Although it may (quite rightly) be argued that the Rule of Law serves to mystify and sustain power relations, it also provides a means of holding power to account and illuminates a disturbing trend in recent events. Here I have in mind the practice known as ‘kettling.’
Through the practice of kettling police have gone from enforcing law to creating it. In effect, kettling has criminalised the right to political protest. In this de facto criminalisation, there is no charge, no trial, and punishment includes detention (without access to food, water, or use of toilet facilities), containment within a large group of people whom the police appear to be trying to incite into a mob, and, the possibility of being charged by horse, crushed, or hit with batons. Whilst the condemnation of what has now become the well documented brutality may appear obvious to many, we can also look to the English common law tradition to highlight the absurdity of the claim that such practices are a legitimate form of legal enforcement. The principles developed within the common law to hold power to account – that is to uphold the constitutional doctrine of the Rule of Law – consider whether a measure taken is proportional, rationally connected to its aim, and whether that aim is a legitimate expression of the purpose which the public power was vested in the body to begin with. Finally, as with any other person or collective, a public body must not contravene the law as enacted by the Queen in Parliament.
For the purposes of simplicity, lets assume that the aim of keeping public order is a legitimate aim of the police. Lets, at least for the moment, also put aside the issues and problems with the Public Order Act, 1986, or for that matter with the general trend in recent legislation emphasising ‘security’ at the expense of individual rights and liberties. So, if we were to take the ‘aim’ to be a legitimate one, we might first ask if the practice of is kettling rationally connected to its aim. The short answer I would suggest is no, and that in fact, kettling achieves the precise opposite. By preventing people from leaving a demonstration, charging them with horses, crushing them and attacking them with shields and batons, there is a strong argument that kettling incites a crowd.
Secondly, we would ask if kettling is proportional, and where human rights are at stake, the judiciary has emphasised that a measure should be necessary to its aim in order to justify interfering with an individual’s fundamental rights and freedoms. Again, the short answer to this is, no. Not only is it unlikely that kettling does in fact keep the peace, but the use of kettling involves an excessive and disproportionate amount of force and violence. The actual violence or damage to property likely in a mostly peaceful demonstration is relatively insignificant as compared to, for example, what we might anticipate on a Saturday night in any given London borough. If we took the police practice of kettling as our benchmark however, we would expect a complete lock-down and violent containment of an entire borough if someone broke a window or pushed past a bouncer.
Finally, we would look at the simple legality of the practice – that is, if kettling outright breaks the law. Since the enactment of the Human Rights Act in 1998, fundamental human rights and freedoms have been protected in UK law. But the question of legality in the case of the HRA is not simply one of showing that someone’s rights have been interfered with. In the court case Austin v Commissioner of Police of the Metropolis,which concerned kettling during the May Day demonstrations, the legal question was whether the interference with human rights in the process of kettling was justified. Sadly, in this highly controversial decision the judges concluded that it was. In deciding that the actions were taken ‘in good faith’ by the police, the court failed to scrutinize the practice according to the broader principles of the rule of law.
While the practice of kettling is disproportionate, irrational and indiscriminate in a way that fundamentally affects peoples basic rights and liberties (as set out in democratically enacted legislation), its implications go further than the usual accusation that a body has acted beyond its powers. In this case police practices and administration have taken it into their own hands to – in effect – criminalise the long held British right to political protest. This is not only a threat to our ability to take to the streets to express our political discontent, but evidence of a more deeply disturbing capacity for those who are meant to uphold the law to take the law into their own hands. The question in the final analysis is not for the law lords and the specificity of legal analysis, but for everyone within the UK about what it means when police go beyond their powers and enact ‘law’ according to their discretion.