Street politics of the fringe must be subject to the law

Michael McDowell’s columnn The Irish Times this week.

Liberty to exercise the right of citizens to assemble peacefully and without arms is guaranteed by the State in Ireland subject to public order and morality.

However, Article 40.6 of the Constitution authorises laws to prevent or control meetings “which are determined in accordance with law to be calculated to cause a breach of the peace or to be a danger or nuisance to the general public” and “to prevent or control meetings in the vicinity of either Houses of the Oireachtas”.

Article 11 of the European Convention on Human Rights similarly provides for the right of peaceful assembly subject only to restriction prescribed by law and necessary in a democratic society “in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of public health or morals, or for the protection of the rights and freedoms of others.”

Oireachtas members enjoy constitutional immunity from arrest going to or coming from either House save for treason, felony or breach of the peace; it follows that as a matter of constitutional order it must be unlawful for any group to lay physical siege to the Houses of the Oireachtas – detaining members, officials, lawful visitors and witnesses, and staff, as was done recently.

The corollary is that the An Garda Síochána is legally bound to prevent the effective closure of ingress and egress from sittings at Leinster House. In constitutional terms, keeping the peace and preventing disorder obliges the gardaí to prevent such thuggish sieges from recurring.

It is a breach of the peace to use threatening behaviour to intimidate or interfere with legislators while exercising constitutional rights and performing duties in this way. And the Criminal Justice (Public Order) Act 1994 gives gardaí ample power to require anyone engaged in such behaviour to disperse – upon pain of arrest without warrant and criminal prosecution.

Nobody in the Oireachtas objects at all to small groups of orderly picketers or demonstrators protesting on a wide variety of issues immediately outside Leinster House or coming there for a photoshoot to highlight causes dear to their hearts.

This happens almost every day. They are no hindrance, and sometimes are helpful actors, in the democratic process.

Increasingly worrying are signs that some on left and right fringes want to stage threatening and confrontational street politics between activists as a polarising tactic in public discourse. Whether right-wing xenophobes or left-wing Antifa types, they want visible aggro and confrontation and to use it as a recruiting tool.

There is no constitutional right to foment public disorder and breach of the peace in furtherance of extremist views. Obviously, some protests cause inconvenience on occasion and the gardaí have to use discretion and not be unduly heavy-handed in response.

But, as Kathy Sheridan pointed out here last week, the shocking mistreatment of Joan Burton when Tánaiste in 2014 did not come from the far right. Far from it. Street politics is not a one-way street; there are gutters on either edge.

Nor is there an absolute right of assembly aimed at preventing others from assembling. The ECHR and the Irish Constitution do not support use of freedom of assembly to prevent others with whom one may profoundly disagree from exercising the same right.

Counter-demonstration is legitimate provided it is orderly, peaceful and not designed to intimidate, drown out by noise, or create a likelihood or major risk of disorder requiring massive policing. No one has the right to claim a monopoly of assembly rights or to deny others the right to demonstrate peaceably. Pro-choice people may not set out to prevent pro-life demonstrations. Transgender activists breach the rights of gender-critical protesters when they publicly deny their right to public or private assembly.

Alarmed

I was alarmed at the recent response by sports minister Catherine Martin on the Irish Amateur Boxing Association’s comments that it would investigate the use of the National Stadium by a Christian group opposed to the teaching of LGBTQ issues. She welcomed the IABA’s commitment to “keep a much closer eye on their leasing arrangements”.

The State, of which she is a minister, is bound to vindicate citizens’ rights of peaceable assembly. Grant-aiding sports or other arenas – or assembly halls and hotels – is no licence to subvert that right by indirect means.

The GAA were perfectly within their rights to permit recent Eid celebrations the use of Croke Park’s facilities. In doing so, they did not endorse Muslim teachings on gay rights, apostasy, blasphemy, or other issues with which many might differ strongly.

Boycotting or cancelling is no function of democratic government. If we go down the road of seeking to prevent Christian fundamentalists and traditionalists the right to meet indoors on the teaching of LGBTQ or trans issues in schools, we are on a slippery slope.

Those of us who are liberal, secular republicans must speak out courageously for all citizens’ rights, freedoms, and civil liberties – not just a favoured few.