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‘Lawful protest and free speech are fundamental rights, but we cannot allow them to be abused to spread hate or cause disorder. The law must be fit for purpose and consistently applied.” So said the home secretary, Shabana Mahmood, last year on appointing Lord MacDonald, the former director of public prosecutions, to lead a review of public order and hate-crime legislation. He will soon report. For all who prize the historic right to protest, as have so many generations before us, the omens aren’t good.
Laws govern the right to protest, but one of the lessons I learned from my time as the solicitor for the family of Stephen Lawrence is that the law is not, as Mahmood put it, “consistently applied”: it does not listen to everyone in the same way. The law was available, for example, to Stephen’s parents in theory, but in practice it did not respond to them as equal citizens.
Thirty years on from Stephen’s murder, it is difficult to say this lesson has been fully absorbed, and that will be important as we consider this review of how groups are treated and what happens when they organise – on a single occasion or on multiple high-profile occasions – to raise a voice.
We know that racialised groups remain disproportionately unprotected because perception still shapes how the law is applied. Despite repeated calls from Muslim communities, who experience the highest levels of recorded hate crime in England and Wales, objections are raised when it comes to legally addressing Islamophobia.
There is a palpable unfairness. Muslims are told they do not fall within the scope of race law, but at the same time the threshold for religious discrimination is often set too narrowly to capture how Islamophobia operates in practice. They are treated in public life as a single group and ascribed shared characteristics, regardless of individual belief or behaviour. Scholars of race have long shown that racial groups are not produced by biology but by societal and institutional practice.
So think now of how that affects Muslims as they exercise their rights as citizens: of the treatment of Muslims who protest against the genocide in Gaza. It is clear that this racialisation affects them in practice. Demonstrations calling for an end to the violence, many of them peaceful and family-oriented, are met with preemptive restrictions, heightened policing and public warnings that blur the line between protest and criminality. Protest is viewed as a source of risk rather than a democratic right.
Counterterrorism language seeps into decisions about policing, conditions and enforcement to justify extraordinary measures such as false imprisonment and terrorism charges.
A similar pattern is familiar to Black communities, who have seen assumptions about aggression and disorder used to shape stop-and-search practices, public-order policing and criminal-justice outcomes across generations. These assumptions are rarely set out in statute, yet they exert powerful influence over how discretion is exercised on the ground. And what connects these experiences is racialisation.
It is against the background of that skewed thinking and uneven enforcement that this looming ominous debate about protest and public order must be understood. Rather than starting from the premise that protest is a right to be facilitated, we have a review urged to focus on ways to constrain it.
And there is the particular threat of a focus on the cumulative impact of protest. That is contrary to everything we have known. Indeed, articles 10 and 11 of the European convention on human rights are framed as they are precisely to protect political expression and assembly as rights exercised each time they occur – not as privileges that diminish through repetition.
The growing emphasis on cumulative impact treats lawful protest as a collective nuisance rather than as a series of individual exercises of protected freedom. The inconvenience caused by repeated protest is recast as justification for restriction.
Think of what that means in other contexts. If transport workers, for example, were told they could strike once, but not again, because repeated action caused too much disruption, collective bargaining would be emptied of any real force. Pressure works because it is sustained. It does not work if it is allowed only when it remains tolerable.
Think of our history. The suffragettes did not secure the vote for women through a single demonstration or a moment of polite persuasion. Their campaigns were persistent, disruptive and widely condemned at the time, yet are now recognised as having been integral to securing change. The same is true of movements for racial justice. Civil rights campaigns reshaped law and public life through sustained protest over time, in the face of significant inconvenience to those in power. Had those protests been curtailed on the basis of cumulative disruption alone, much of that progress would never have been achieved.
So there is much to be concerned about from a review that threatens to entrench already evident inequalities and to restrict the rights of some to preserve the comfort of others.
This is a moment. Because once the law, already erroneously applied to many citizens, also begins to treat persistence as a problem rather than a feature of democratic participation, free speech stops being a right. It then becomes what it has never been and never should be: a matter of political permission.
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Imran Khan KC is a practising solicitor
