Protest is a fundamental right, not a mere inconvenience for police
- First published in : Visit Website
- First published on: 23rd Sep 2022
Last weekend chilling video footage emerged on Twitter which should concern us all. It appeared to show two police officers following a lone young woman home from an anti-monarchy demonstration in Edinburgh and, when challenged, saying “Tell us where you live, and we will let you go...”. Not only did it show a scene which we would normally expect to see only in a totalitarian state, but it also showed an alarming insensitivity in the light of the circumstances surrounding the murder of Sarah Everard.
The good news is that what happened to this young woman is being investigated by her constituency MSP. The bad news is that this may not be an isolated incident. I have received reports of protestors at a recent pro-independence demonstration in Edinburgh being followed by police in a similar fashion and asked for their names and addresses. The police may legitimately ask you for your name and address if you are a witness to a crime or if they suspect you of having committed an offence, but they must first inform you of the general nature of the offence they believe you have committed. However, this does not seem to have been the position in the cases reported to me.
And these are not isolated incidents. There have been many reports from across the UK of overzealous police responses to anti-monarchist demonstrators. Questions are rightly being asked by politicians of all parties and questions have been raised in the Scottish parliament. The Cabinet Secretary for Justice, Keith Brown, promised to take concerns up with the Chief Constable of Police Scotland. However, he said that during the events following the Queen’s death, overall, the police had done a ‘superb job’. While that may be true it cannot be allowed to obscure the seriousness with which we should treat unwarranted interference with the right to peacefully protest.
The reason why the police operation went so smoothly is that years of meticulous planning went into preparations for the aftermath of the Queen’s death. So, it is puzzling, to say the least, that little thought seems to have been given to how best to facilitate the right to protest. That some might wish to demonstrate against the proclamation of the new King was foreseeable given the existence of lively republican sentiment across the UK. Lessons require to be learned in time to make sure the same mistake is not made in advance of the coronation.
In England and Wales, the Tories have been clamping down on the right to protest in the Police, Crime Sentencing and Courts Act 2022 and the Public Order Bill. In our report on the first of these measures, the Joint Committee on Human Rights (JCHR) looked carefully at the right to protest. We noted that current rhetoric around protest tends to downplay the importance of the right to peaceful protest and treat it as an inconvenience in conflict with the public interest. This results in discussions focusing on “balancing” the rights of protesters against the rights of members of the public. This is problematic because it often leads to the right to protest being given insufficient weight in the “balancing” compared to the rights of the public.
Given that the right to protest is protected by Articles 10 (freedom of expression) and 11 (freedom of assembly and association) of the European Convention on Human Rights (ECHR) it should be facilitated so far as possible. It is also wrong to automatically assume that the rights of protesters inevitably conflict with the public interest. Whilst protests may cause inconvenience, they are also fundamental in a democratic society to facilitate debate and discussions on contentious issues, and this is of value to the public generally.
Whilst the ECHR provides that protests can be limited to protect the rights of others, any restriction of the right is only lawful if it is both proportionate and necessary. The scales are, therefore, weighted in favour of protecting the right to protest, rather than equally balanced. If protest is viewed as inherently problematic and ‘inconvenient' rather than as a necessary and important element of a free society, the ‘balance' will almost always fall on the side of maintaining order and preventing crime.
The starting position should be that peaceful protests should not be restricted and should be facilitated so far as possible. To help ensure this happens the JCHR proposed the introduction of express statutory protection for the right to protest, setting out the obligation on public authorities to refrain from interfering unlawfully with the right but also the duty to facilitate protest. Needless to mention our suggestion was not taken up by this Tory Government. I hope it will find a more sympathetic ear in Scotland.
Poor policing decisions around the right to protest are not confined to republican and pro-independence demonstrations. Recently in England and Wales lesbians engaging in planned protests about the right to disagree with extreme gender ideology, which denies the existence of sex as a biological reality or same sex attraction, have faced intimidation and abuse from counter protestors. Too often, instead of facilitating the right of such women to protest, the police have suggested that women desist from marching to protest their rights “for their own safety.” A statutory right to protest might help restore fairness to such situations.
One good thing about the outcry over the treatment of anti-monarchist protestors has been a resurgence of interest in the right to freedom of expression across the political divide, including from some politicians who have previously embraced the “No Debate” mantra in some areas of public discourse. It was refreshing to see Patrick Harvie argue that minority views must be allowed to be expressed and to read that Maggie Chapman believes that “Freedom of Speech and the right to protest are cornerstones of our democracy, even when views expressed are uncomfortable or challenge the elite.”
Both these statements are of course correct. Furthermore, like all human rights, the right to free speech and the right to protest are universal rights meaning they apply to everyone. I hope this will be remembered next time women who believe in the immutability of sex and the value of same sex attraction seek to make their voices heard in the debate around sex and gender.