Sarah Harte: Restricting fundamental rights requires careful consideration
Rollingnews Picture: Protesting The Sam Against In Boal Refugees Housing Of Ballymun / Activists Ie
Last week, tensions surrounding the right to protest were once more under the spotlight.
Protests outside an accommodation centre in Ballymun where asylum seekers are being housed were among a string of protests that took place across Dublin and in Co Cork.
They have been roundly condemned for having caused “fear and distress”.
Fr Peter McVerry said he did not believe protests outside refugee or asylum seeker centres were representative of the Ballymun community, but rather were being led by anti-immigrant, right-wing parties.
He and many others have called for exclusion zones around asylum centres to prevent protesters from getting too close and from acting in an intimidatory manner.
Last year, exclusion zones surfaced in the context of abortion clinics.
Gardaí were called to various protests and demonstrations at premises which provide abortion services. Health Minister Stephen Donnelly announced a proposal to legislate for 100m safe access zones around facilities providing abortion services.
Critics of safe access zones in the abortion context called them “a danger to free speech”, saying the 100m rule was too draconian.
They also said the minister had been unduly influenced by a small number of non-government organisations, and that the process leading to the framing of the proposal wasn’t democratic enough.
Mr Donnelly subsequently announced the proposal required further legal consideration. Accordingly, the Oireachtas health committee is continuing its pre-legislative scrutiny and discussion on Health (Termination of Pregnancy Services (Safe Access Zones)) Bill 2022.
Certainly, the principle of proportionality comes into play here, meaning how you balance the rights of the protesters versus the rights of the women looking to access the abortion clinic in peace. Or how you balance the rights of protesters versus the rights of asylum seekers from a demonstration outside what is effectively their home.
Plenty of us will instinctively hate the idea of protesters hurling abuse at vulnerable asylum seekers who have already been through so much and whom we have a moral right to defend.
Ditto protesters standing outside a clinic with explicit and upsetting signage when somebody is facing the trauma of terminating a crisis pregnancy.
However, restricting the right to protest is not small beer, because the right is a core “condition of democracy”.
And in Ireland, it’s a constitutional one. It’s not explicitly named in our Constitution, but derives from three separate rights, which are the right to freedom of expression; the right to freedom of assembly (the right to gather and meet); and the right to freedom of association (the right to take organise and take part in groups).
The right is also protected under the European Convention On Human Rights (ECHR).
In Ireland and other democratic countries, the right to protest may be restricted when it poses a threat to public order. This raises the thorny question of when a peaceful protest escalates into a threat to public order.
Garda Commissioner Drew Harris has said detectives are probing links between recent “sinister” Irish protests and extremist groups overseas, and are liaising with international colleagues to learn lessons on how to handle such far-right agitation. Presumably, where an infraction of the law has occurred, it can be criminally prosecuted.
That’s not to say we shouldn’t curb protests outside asylum centres or abortion clinics, but it’s a case of how we do it and how far any curb goes.
Fundamental rights given away can be difficult to claw back, or can open the door to rights being incrementally further eroded. The flip side of the law is state power. The voice of the people matters, even when the exercise of that voice sticks in the craw.
And it’s worth noting that, generally, there has been a narrowing of the right to protest in Europe.
This week, British prime minister Rishi Sunak signalled his determination to give new police powers to shut down protests before any disruption begins.
These proposed new measures are aimed at preventing tactics such as “slow marching” which have been deployed mainly by environmental protesters. The British government has characterised their methods as “guerrilla tactics”.
British civil liberty campaigners have described the new anti-protest measures as “outrageous” and, on the face of it, they sound worryingly draconian.
Most of us would take it badly if, say, an ambulance carrying a critically ill loved one was impeded en route to the hospital by slow-marching protesters, but that doesn’t mean that there isn’t a right worth protecting or valuing.
The French, who have always seemed to have a remarkable tolerance of, if not appetite for, demonstrations, riots, and protests, have been gradually curbing the right to protest.
In 2015, the right was restricted when a state of emergency was called due to terrorist attacks. But in 2019 it was restricted more controversially as a result of the gilet jaunes protests against economic inequality which led to violent scenes, after which prime minister Edouard Philippe vowed that “rioters would not have the last word”.
French constitutional lawyers have since argued that legal solutions inherited from what was once the legitimate state of emergency have progressively been incorporated into ordinary law and used “illegitimately” to limit the freedom to protest.
Or, to put it more bluntly, the French authorities got used to wielding more power so that the emergency-style powers have become a sort of problematic baseline — and now that the stable door has been opened, it’s proving difficult to close.
Here, Fianna Fáil senator Malcolm Byrne introduced a bill in 2021 to prohibit targeted picketing outside the residential homes of publicly elected representatives when anti-vaccine demonstrators protested outside the homes of the then Tánaiste Leo Varadkar and Health Minister Stephen Donnelly.
Last Friday, he suggested on that this bill be extended to include where the principal private residence is a direct provision centre or what could be defined as a temporary home, which is an interesting idea.
It’s never the case that everyone agrees. Somebody always gets the rough end. It would be highly preferable that it wasn’t asylum seekers or those making the difficult decision to have an abortion.
This isn’t some backdoor nimbyist or nativist argument for not honouring our obligations to asylum seekers — simply a reminder that restricting this fundamental right requires careful consideration.
And it should be done in the most democratic way possible, with public submissions to a review group.
Realistically, any kneejerk rushing through of restrictions on the right to protest will inevitably lead to test constitutional cases challenging the legislation.
But let’s not be part of the incremental backsliding on fundamental civic rights that seems to be under way elsewhere.