The Inter-Dependence of Public & Private in the Regulation of the Right of Peaceful Protest and the Problems Thrown Up by its Privatisation

This article takes a more holistic perspective on the regulation of peaceful protest, one that is different to that usually taken in Anglo-American literature. It will show how private law rules are as much capable of affecting our ability to engage in protest as is public law regulation through the criminal law or the exercise of administrative discretion. That latter will only ever paint a partial and simplistic picture of how protest is regulated. The first part plots the ways in which private law rights and remedies can shape the exercise of the public right of peaceful protest. It comprises three aspects: the criminalisation of what are essentially private, civil law relationships; the differentiated reality of protest resulting from private law rules and concepts relating to land; and the privatisation of the regulation of protest by which the commercial targets of a protest utilise their own private law rights and remedies to control and constrain protesters. The second part considers some of the ramifications of this privatising of the regulation of protest. It concludes by locating these shifts within contemporary domestic politics and the ideological tensions that lie at the heart of the Conservative-LibDem government in the UK. The case will be made in this article that full restoration of the right to non-violent protest, as was pledged in the coalition agreement in May 2011, will require several contentious decisions to be taken.