Activists from Insulate Britain have had plenty of run ins with the law in recent weeks. Photo: Reuters/Alamy

Is it OK for protesters to break the law?

One contributor sees bravery where another sees selfishness. Who's right?
October 31, 2021

Yes—Peter Tatchell

The right to protest distinguishes democracies from dictatorships. It is a precious safeguard that enables governments to be held in check between elections, and empowers the poor and weak to challenge the rich and powerful. One of the first acts of autocratic regimes is to crack down on it—and our government is sliding in that same authoritarian direction with its restrictions in the police bill.

While controversial, breaking the law to non-violently challenge injustice has an honourable tradition, exemplified by the US civil rights movement in the 1960s. The ancient blanket ban on protests within sight of the Westminster parliament was only overturned after I and fellow members of the LGBT+ group OutRage! were repeatedly arrested in the 1990s for “unlawfully” standing opposite parliament to demand equality.

Critics say that breaking the law is never justified in a democracy because elections give people the option of changing the government. But just because a government is elected does not give it the right to do whatever it wants. As the Tory grandee Lord Hailsham warned many decades ago, untrammelled government power can lead to “elective dictatorship.” And besides, Britain is not a fully formed democracy with a fair voting system. In 2019, the Conservatives won only 44 per cent of the vote but bagged an 80-seat majority. Boris Johnson has no mandate for anything.

Breaking the law can be ethically justified in three circumstances: when governments ignore the wishes of the majority; when they break their election pledges; and when they violate human rights. If these principles clash, the protection of human rights should always come first. No government has the right to victimise minorities and, if it does so, people have a right to resist with non-violent civil disobedience.

No—Dominic Grieve

We are going to agree on quite a lot. But your views gloss over the need to show respect for the rights of others with whom we disagree, and to operate within the framework of laws that strike a balance between those competing rights.

Acts of peaceful civil disobedience may be justified if fundamental human rights are being violated. The right to public protest is of fundamental importance, and I share your concerns about the current legislation being brought in by the government. It is entirely wrong that the home secretary should be given the power to decide what constitutes “serious disruption.” Our current laws on public assemblies recognise the need to find a compromise between the right to protest and the right of others to go about their lawful business. While we may not always get it right, the framework is sound.

But that kind of protest is different from the actions of those who seek systematically to cause chaos. Gluing oneself to the M25, or climbing on top of a train to halt its operation to promote a particular political agenda, are acts of selfish irresponsibility and in intention a form of blackmail. Those responsible show no regard for the rights of others who are, as we have seen in the recent protests, exposed to risks to their health and wellbeing as a consequence.

“Gluing oneself to the M25 is an act of selfish irresponsibility and a form of blackmail”

These actions may not involve violence, but they are not peaceful. A physical assertion of disruptive presence is an invitation to public disorder. It also provides the perfect excuse for some to argue that the right to protest should be more tightly controlled, undermining the rights of protesters who behave responsibly.

I do worry about your view that breaking the law is always justified when governments ignore the wishes of the majority or break election promises. Lord Hailsham was right about the risk of “elective dictatorship,” but there is also a risk to our freedom from the actions of groups whose only justification is their insistence they are in the right.

Yes—I am pleased we agree that acts of peaceful civil disobedience may be justified to challenge the violation of human rights. You seem to doubt my other justifications. But surely governments in democracies are supposed to reflect the public will? If they defy the wishes of the majority of their citizens, isn’t this precisely when peacefully breaking the law is necessary and right, in order to preserve democracy?

Non-democratic governments should be challenged by whatever peaceful means necessary—including dignified law-breaking, exemplified by Gandhi’s non-violent resistance. If a notionally democratic government pursues policies without public support, it is not democratic. Disobedient protest then strikes me as the honourable thing to do. Contrary to your insinuation, it is not “selfish” or “blackmail”; it often requires sacrifice.

There may be significantly changed circumstances that make fulfilling election commitments impossible or inadvisable. But otherwise, when governments break their manifesto pledges, they not only betray those who supported them but also corrode trust in the whole process. Hence the widespread dislike of politicians and low turnout at the polls. Protest may help act as a deterrent to wilful pledge-shredding once political parties win power.

You suggest that serious disruption tactics cannot be justified. I have always argued that protests should avoid unnecessarily inconveniencing the public. We need the public on side to win support for social change. However, a degree of annoyance is sometimes acceptable. I disagreed with the Brexiteers and was inconvenienced by some of their demonstrations. But I defended their right to protest. I am a democrat.

No—Civil disobedience, even without recourse to violence, is still a drastic step, because it gives a green light to others to do the same for whatever cause they think justifies it. It can cause serious disruption and is often intended to do so. It is a conscious undermining of the rule of law that protects us all.

Once you move away from serious violations of human rights, most justifications for civil disobedience in democracies fall apart. How exactly is the public will to be ascertained which permits the steps you recommend? And where does this leave the need for politicians to show leadership by taking unpopular decisions, including changing their mind, and trusting that by the subsequent election their rethink may be seen as correct?

As you will be aware, the polling evidence is that in abolishing the death penalty and decriminalising homosexual acts in private in the 1960s, the government and parliament went against majority opinion, which gradually altered after these desirable changes took effect. You may argue that both matters concerned human rights and I would agree, but many did not share this view at the time. So we must count ourselves fortunate that outraged citizens did not deploy your reasoning, and block roads in protest as their opinion was ignored.

You mention Gandhi, but he was not operating in a democracy. Those of us who have that blessing need to be respectful of it. You accept this, I think, in your final comments about lawful protest not inconveniencing others. In my experience the most powerful demonstrations are the most law-abiding. But you seem attracted to the power of civil disobedience as a tool to coerce democratic governments with which you disagree on matters of policy. The proper way to do that is through the ballot box.

Yes—Think about the discomfort of protesting in the cold without food for hours, and the risk of being beaten by opponents and arrest by the police. Protesters who break the law are prepared to suffer the legal consequences for the sake of their conscience and for what they believe to be the common good. This is to be admired.

Pressuring the government to change course is everyone’s democratic right, including the right of people who disagree with me. You worry that civil disobedience will give a green light to others—and so it should, whenever the circumstances warrant it. As to your view that powerful demonstrations are the most law-abiding, tell that to the 1.5m people who marched lawfully and peacefully against the Iraq War yet were powerless to stop it.

“Protests can be a damn nuisance­—that’s the price of living in a democracy”

Demonstrations can be messy, chaotic and a damn nuisance: that’s the price we pay for living in a democracy, as opposed to North Korea. Extinction Rebellion, Black Lives Matter and others do not engage in disruptive protests lightly. They are usually a last resort, when politicians have ignored their concerns. Of course we want to uphold the rule of law, but not if the law is harmful or unjust.

I agree that protests should try to avoid disruption and alienating the public. We need public support to achieve social reform. However, some issues, like the climate emergency, pose an existential threat to humanity (and the exercise of its most fundamental rights). In these instances, some degree of disruption may be morally justified. When our electoral system keeps delivering governments that the majority voted against, an unreformed ballot box is not the answer. Protest is!

No—I accept that many who decide to engage in civil disobedience do so because of their consciences and the belief that they are furthering the common good. But that does not mean they are right to do it, or that the causes they are advocating must deserve support.

Many campaigns of this kind, such as the encampments at Greenham Common against nuclear weapons, enjoyed very limited public support and were entirely contrary to majority opinion. The unlawful actions took time and money to police and achieved nothing. The weapons went elsewhere when the Cold War was won.

Civil disobedience of a disruptive character produces anger among its targets and from the affected members of the public. It makes reasoned discussion of the issues behind a protest more difficult, reducing the likelihood of mutual understanding or consensus on a subject of controversy, and is thus in many cases counterproductive.

At any given time there are many who will be in disagreement with government policies, or who may desire change and feel that they are not being listened to. But perhaps fortunately for us all, it is only a small minority who resort to civil disobedience and disruption; if everyone took your view and argued they were entitled to follow their conscience in this way, we would have a serious problem running our society.

Democracy must always be flexible enough to accommodate dissent, but those protesting must keep in mind the principles of democracy and freedom that allow this to occur. The use of civil disobedience should not be an act of self-indulgence at the expense of the rights and freedoms of others.