State overreacts to boat-race protest
Geraldine Van Bueren berates the government for its disproportionate response to Trenton Oldfield’s actions
Source: Daniel Mitchell
No one should have been surprised that Trenton Oldfield – the boat-race protester – shocked British society. After all, his first name is also the site of a 1776 battle where George Washington’s troops took a military encampment by surprise.
Australians also have a tradition of protest at globally reported events. It was the silver medal-winning Australian sprinter Peter Norman who donned an Olympic Project for Human Rights badge in support of the historic gloved salutes given by African-American athletes Tommie Smith and John Carlos in the 1968 Olympics. In his autobiography, Silent Gesture, Smith explained that the gesture was not a “Black Power” salute, but a “human rights salute”.
There is, however, a gaping chasm between the actions of Oldfield in bringing a halt to the Oxford-Cambridge University Boat Race and the bravery of Smith, Carlos and Norman who, until recently, were pariahs in their own countries. Their actions endangered no one but themselves.
After swimming out towards the boats during last year’s race, Oldfield has sought to justify his actions as targeting elitism. However, this is to ignore the significant space created by the Human Rights Act for effective peaceful protest that does not risk injury to others. This is why he has not raised his right to free speech as an argument to avoid deportation by the Home Office, which recently rejected his application for a spousal visa, despite the fact that he has lived here for 12 years. Even in the US where the constitutional right to free speech is accorded the greatest weight, the Supreme Court Justice Oliver Wendell Holmes ruled back in 1919 that no one has the right to falsely yell fire in a crowded theatre.
Paradoxically, the Oxford-Cambridge Boat Race can be regarded as both elitist and anti-elitist. It is elitist in the sense that the two competing teams are not necessarily the best of all the university boat teams in the UK, reinforcing the image of the two universities as the most important in Britain, regardless of the contributions of others. It is anti-elitist because it is also an amateur event with no financial reward and – importantly in these days of increasingly prohibitive ticket prices – it is free to watch.
Although it is legitimate to expect, as the Home Office does, that “[t]hose who come to the United Kingdom must abide by our laws”, it is a corollary that where laws are felt to be unjust, then it is up to an individual to be able to protest peacefully. Oldfield did not protest peacefully and has been tried and received both a criminal conviction and a six-month prison sentence.
It is also a fundamental tenet of a democratic society with a culture of human rights that it does not seek to use a sledgehammer to crack a nut. In a number of recent cases, commentators have claimed that the state’s response to protest has been disproportionate. However, this is unlikely to be the focus of Oldfield’s legal arguments against deportation.
Instead, he and his newborn child do have arguments under Article 8 of the European Convention and the Human Rights Act to avoid deportation, and the birth of the child has strengthened these arguments.
Any case will rest on two fundamental principles: one being what is in the best interests of the child, a primary concern for any court in a case of this nature; and the other being the right of everyone to respect for family life, regardless of immigration status.
The right to respect for family life is not an absolute right, like the right to be free from torture. Article 8 is subject to limitations, including the duty of the state to act in the interests of public safety, the prevention of disorder or crime, and to protect the rights and freedoms of others. But it is very unlikely that the interference in the child’s family life could be justified on any of these grounds. In essence, were Oldfield to be deported, it would place an unjustifiable penalty on a child because it would mean separation: Oldfield’s wife and the child’s mother, a British citizen, has expressed no desire to leave England.
Instead of deportation, the government should take comfort from the fact that a man who was sentenced to six months in jail and who has been ordered to leave the country would still prefer to live in England.
Article originally published as: Making waves (11 July 2013)
Geraldine Van Bueren QC is professor of international human rights law, Queen Mary, University of London and visiting fellow, Kellogg College, Oxford.