Blog Post by Irina von Wiese, former LibDem MEP
London Calling is the European Liberal Forum’s column aimed at bridging the Channel.
Almost a year ago, I wrote about attempts by authoritarian regimes to use the Covid pandemic as an excuse for disproportionate restrictions of civil rights and democracy. Since then, parliaments across the globe were side-lined by decree powers, emergency rules brought in to outlaw legitimate protest, and state surveillance increased far beyond the necessary ‘track and trace’.
Now, the United Kingdom is jumping on the bandwagon.
On 16 March, the House of Commons, with its 80 seat Conservative majority, passed the ‘Police, Crime, Sentencing and Courts’ bill in second reading. If adopted in its current form, it will increase the maximum prison sentence for defacing a statute or other memorial from three months to ten years, and radically expand police powers to restrict the right to protest. Police could control the length of protests and prosecute activists for causing ‘serious annoyance’. Demonstrations could be broken up if the noise they make has a ‘relevant impact’ on people in their vicinity.
This needs to be seen in the context of three events.
First, the Extinction Rebellion protests, which in 2019 paralysed some of London’s main traffic arteries and saw thousands of school children assemble in front of the Houses of Parliament every Friday. XR groups have announced more action at the upcoming COP26 summit in Glasgow.
Second, the Black Lives Matter demonstrations last year, targeting and sometimes destroying statues and other symbols connected with the slave trade and the empire.
These two mass events, although overwhelmingly peaceful, caused significant disruption and even greater political upheaval – arguably that was their very purpose.
The third event happened days before the Police, Crime, Sentencing and Courts bill was endorsed by the House of Commons: the murder of Sarah Everard, a young woman abducted on her way home, sparked outrage and prompted wide ranging protests against gender-based violence. The man charged with the killing is a serving Metropolitan police officer. A vigil planned and organised by women’s groups in the London park where Sarah was abducted, was prohibited by authorities because it was deemed a risk to public health. When dozens of women and girls assembled nonetheless and held a peaceful vigil, police stepped in to disperse the crowd, physically restraining some of the women.
Apart from the terrible images generated and the backlash for the Metropolitan Police and its (female) leader, this raises serious questions about the proportionality of such restrictions. Do public health concerns justify the prohibition of peaceful assemblies, even when they are outdoors, masks are worn and social distancing is observed? Much bigger Black Lives Matter demonstrations in London last year resulted in no significant increase in Covid infection rates, and many argued that organisers of the Sarah Everard vigil would have been able to ensure social distancing better than police.
The proposed legislation threatens to further curtail civil rights.
If demonstrations can be broken up because their noise impacts people in the vicinity, what is left of the right to protest? Once the pandemic no longer serves as an excuse for prohibiting gatherings, how will the government justify these restrictions?
The focus on statues also hints at discrimination depending on the object of demonstrations. BLM and XR – both seen as a thorn in the Conservative government’s side – target symbols of human rights abuses and environmental crimes. If such symbols are protected by criminal law but the crimes, they embody go unpunished, what message does this send to young people?
Freedom of expression, including the freedom of assembly, is a fundamental civil right. Restrictions of this right must fulfil two conditions: they must be content-blind, and they must be proportionate.
The first means that BLM, nationalists, women’s groups and anti-vaxxers have the same right to peaceful protest, even though we may feel very differently about their causes.
The second means that any restrictions must, in principle as well as in the individual decision on the ground, be effective to protect something which on balance is more worthy of protection than the right to protest.
Importantly, the assessment of this balance must also be content-blind, and that is often difficult. In the context of the Sarah Everard murder, it has been argued that women’s and girls’ right to live free from sexual violence is more important than the protection of the public from a very small risk of increased infection at an outdoor gathering. This is the wrong question: it is the right to peaceful protest (for or against anything) that is at stake, and the question is whether the risk to public health – assessed on a case-by-case basis and depending on specific circumstances – justifies restrictions of this right.
The right to protest ends, like all individual rights, where equivalent rights of others start – notably the right of demonstrators, police and the public to physical integrity and life. This is the benchmark against which demonstrations must be measured – not the amount of noise they emit.