Grace Donnellan analyses restrictions on the right to assemble across Europe.
Over the past number of weeks protests have broken out across the UK regarding the proposed Police, Crime, Sentencing and Courts Bill. Currently, the police in the UK can only restrict a protest if it could cause "serious public disorder, serious damage to property or serious disruption to the life of the community". The Bill will increase police powers regarding protests, allowing police to impose start and finish times, set noise limits and apply these rules to a demonstration of just one person. Failure to cooperate with police instructions regarding your protest could lead to a fine of up to £2,500. Failure to follow restrictions a protestor “ought” to have known about will also become a crime. The Bill also contains an offence of "intentionally or recklessly causing public nuisance". This is intended to prevent protestors employing tactics such as occupying public spaces and gluing themselves to windows. In a particularly extreme provision, damage to memorials, such as statutes, could lead to up to ten years in prison.
The Bill also includes stricter sentencing laws for sexual and violent offenders and increased anti-terrorism provisions. UK Prime Minister, Boris Johnson, has described it as a "very sensible package of measures". The measures seem intent on impeding individuals’ right to assemble. Police chiefs were frustrated that they could not do more to curtail the large Extinction Rebellion (XR) protests in 2019. Home Secretary, Priti Patel, a driving force behind the current Bill, described XR protestors as “so called eco crusaders turned criminals” and Black Lives Matter (BLM) protests as “dreadful”. A government spokesperson stated that the restrictions were a response to "increasingly disruptive tactics" used in recent years by protestors. Civil liberties activists have condemned the Bill as impeding on the right to protest and handing too much discretionary power to the police. Within Parliament the Labour Party have opposed the Bill, accusing the Conservative Party of attempting to rush through legislation.
The right to assemble is protected by the Irish Constitution. Throughout the pandemic peaceful protests have occurred in Ireland. Nonetheless, protesting is currently prohibited under health restrictions as it is not deemed an essential reason for travel under the 1947 Health Act. This is a fact politicians and officials have been reluctant to acknowledge. The Gardaí have arrested a number of individuals in relation to recent protests. Some have argued that even during a pandemic, the right to protest is one that cannot be entirely removed. The Irish Council for Civil Liberties has called for protesting to be added to the list of reasons for essential travel. It suggested this could include guidelines on numbers allowed to be present and mask wearing. Studies conducted in the US have shown that last summer’s BLM protests did not cause an increase in coronavirus cases. However, others contend that as protests are fundamentally an act of disobedience any rules implemented by organisers may not be followed.
The right to assemble peacefully is often considered one of the foundations of democracy. It is protected by the European Convention on Human Rights. The European Court of Human Rights has reiterated that it is a fundamental right in a democratic society. Restrictions on this right are only applicable in very limited circumstances and must be proportionate.
And yet, laws inhibiting this right have become increasingly prevalent across Europe. In 2015 Spain adopted a law on citizens’ safety which brought in the possibility of administrative sanctions and fines for certain actions in the context of an assembly. These included minor disruptions in an assembly, resisting or disobeying police officers and assemblies taking place in the vicinity of an elected body. Despite a long history of protest, assemblies in France are often met with force, rubber bullets and tear gas from the police. In 2019 France amended its legislation to include restrictions on the right to assembly. The legislation allows administrative, rather than judicial, authorities to issue protest bans against individuals that they consider to be a serious threat to public order. It also features additional control measures and heavy sanctions.
Despite restrictions imposed by various governments, people continue to protest. In January tens of thousands took to the streets in France to protest proposed legislation that would ban the filming of police activity. Over the past few weeks Kill the Bill protests have continuously occurred across the UK. These demonstrations show how important many consider the right to assemble to be.
During the past year legislation has been passed to prevent the spread of the coronavirus, criminalising mass gatherings and travel. While this has been deemed necessary in the context of protecting public health, as we slowly get back to normality, governments may attempt to solidify this pandemic related legislation to assert their control over populations. This interferes with democratic norms. In order to protect our democracy, we must ensure adequate protection of our right to assemble.