“It was a triumph [for democracy] that protesters outside Parliament House weren’t met with bullets.” These were the remarks of Australian Prime Minister, Scott Morrison, during question time when asked about the protests calling an end to gendered violence that took place around the nation following the murder of Sarah Everard last month. Since Australia has effectively eliminated COVID-19 from its shores, the PM’s comment does not so much reveal a concern for breaking the covid restrictions in the interest of public health, as it does a sentiment of suspicion and vexation that governments around the world hold against large scale protests which call for social reform. In the UK, Westminster have taken this suspicion a step further. The Police, Crime, Sentencing and Courts Bill will give police increased powers to shut down ‘disruptive’ protests. The timing of this bill amidst the ongoing COVID-19 pandemic falsely appears to be guided by a utilitarian logic to derogate the right to protest in favour of public health. However, we should question whether the government is using the pandemic as a trojan horse to impose lasting restrictions on protest rights to thwart their visibility and impact.
Over a year into the pandemic, pre-pandemic life feels more like a collective sense of déjà vu than a fond memory; where restrictions have meant that our personal and professional interactions are almost exclusively virtual. This has cultivated shared anxiety and suspicion towards events that would slow our journey back to normality. Indeed, large scale protests attract such wariness given they clearly pose a threat to the spread of Covid. Legislation seeking to quash ‘disruptive’ protests seem sensible given the circumstances. However, the problem is that the bill is not a temporary covid restriction measure. Instead, the bill will limit the right to protest permanently.
The right to protest is a cornerstone of democracy. To be consistent with democratic and human rights principles, restrictions placed upon the right to protest must be limited to what is strictly needed to protect public health and remain in force only for as long as is absolutely necessary. Further, proportionality and reasonableness must underpin the application of any restrictions.
However, the discretionary power proposed in the Police, Crime, Sentencing and Courts Bill to allow police to shut down disruptive protests is distinctively vague and warrants concern for how minor a disturbance can be before the police can lawfully shut down the protest. The underlying rationale of these expansive new laws is summed up by the government as “to protect its citizens and communities, keep them safe and to ensure that they can get on with their daily lives peacefully and without unnecessary interference.” In order to prioritise citizens’ rights to freely and easily move about their community, Westminster seeks to employ restrictions to essentially stop protests from being seen or heard.
The bill will also give police powers to place more conditions on static protests, which include imposing a start and finish time and setting noise limits, as well as introducing an offence of “intentionally or recklessly causing public nuisance” while protesting. Further, while under current laws, it must be proved that protesters were aware they had been told to move on before a charge is placed. The new bill proposes it will be a crime to fail to follow restrictions that protesters “ought” to have known, even if they have not received a direct order from an officer. Since these restrictions will still operate in a post-pandemic world, the guise that they are motivated to prioritise health is false. Rather, the government is taking a serious effort to weaken the right to protest so as to limit the ability of protest to hold the government to account by calling for social reform. It seems as though under the panic of the pandemic Westminster hope that the realities of these restrictions which derogate rights of dissent go unnoticed.
The emergence of the bill itself has also generated a number unanswered questions by Westminster and Whitehall about the right to protest amidst the COVID-19 pandemic. As a result, the government’s approach demonstrates a stark apathy at best, and deliberate disregard at worst, to engage with and provide protection for certain rights. In Westminster’s piecemeal approach to legislating restrictions, they have left some rights, such as the right to protest, in the dark.
Indeed, it is not even clear if the right to protest even exists amidst the restrictions. Since the right to protest is considered as a privilege of democracy, it does not operate unbound. It is generally accepted within political and juristic thought that per the harm principle, a right is absolute until it threatens another. It is this sentiment which underpins the utilitarian logic of three national lockdowns. These lockdowns prioritised rights to health and life at the expense of rights to freedom and movement. While the Joint Committee on Human Rights (JCHR) claim that protests have never been completely illegal during the three national lockdowns, the government has failed to be clear on whether protests are lawful in any capacity.
To complicate matters further, the government has adopted an irrational rationale for activities and events that are allowed during the national lockdown. While elite sport and religious assembly are given the green light, the right to protest is left in murky waters. This lack of parity was stressed by the Committee Chairman of the JCHR who stressed that like religious assembly “[T]he right to protest is important and should be allowed, like other current exemptions, if it is carried out in a safe way”. Some clarity was finally made on March 29 when lockdown rules were eased in England, protests once again became exempt from the rules against mass gatherings as long as the organiser has taken required precautions, such as social distancing measures. However, it is still unclear how this would work in tandem with the new legislation and would mean lawful protest could still be easily shut down. With their reluctance to protect protests rights, parliament have highlighted a distrust of protests which call for social reform by favouring to limit the right all together.
The United Kingdom is not the only nation whose government appears to legislate with a general suspicion to rights for dissent. As alluded to by Scott Morrison’s statement, the Australian government too slowly has been legislating to limit the right to protest, which is only seen as more justifiable during the pandemic. For instance, in 2018, the New South Wales Liberal Coalition passed anti-protest laws which have low-ranking government officials’ broad powers to ban protests. At the start of the pandemic the New South Wales Parliament passed legislation which almost completely removed the right to protest due to public health concerns.
However, several cases in the Australian courts confirmed that restrictions on protest action may be unlawful if they go beyond what is strictly necessary to protect public health. For example, in Commissioner of Police v Gray organisers of a Black Lives Matter protest in Newcastle, NSW in July 2020 asked the NSW Supreme Court to authorise the protest after police refused to do so. In deciding in favour to authorise the protest, Justice Adamson stressed that social media was not an adequate replacement for an in-person protest since ‘to deprive such groups of the opportunity to demonstrate in an authorised public assembly would inevitably lead to resentment and alienation if the public risk concerns did not warrant it’. It is clear that the actions of the Australian government in slowly legislating more restrictions on the right to protest mirrors the sentiment of suspicion that the UK government also demonstrates against large scale protests. The pandemic has only acted as a gateway allowing both governments to impose lasting restrictions on protest rights, which limit their visibility and impact.
Overall, there is no doubt that the pandemic has placed an enormous amount of pressure on governments around the world to legislate at a lightning pace to impose restrictions to control the spread of the virus. However, the panic of the pandemic also acts as a cloak for other government actions. Although the Police, Crime, Sentencing and Courts Bill appears to be guided utilitarian logic, the bill proposes an everlasting restriction on the right to protest and thus demonstrates how Westminster has taken advantage of the health crisis to impose lasting that will halt the impact and visibility of protests.