Article originally published on ICCL website, 23 April 2020 – accessible here

The Irish Council for Civil Liberties (ICCL) has said that the government should review the decision to exclude protest from the list of reasonable excuses to leave home during the pandemic. The call comes as discrepancies arose between garda treatment of protesters in Cork, Dingle, the Four Courts, and Henry St in Dublin.

ICCL’s expert on the right to protest, Doireann Ansbro, said:

“The right to protest, to voice dissent and dissatisfaction without fear of breaking the law, is a core tenet of a democracy. Although the right to protest can be justifiably restricted in a public health crisis for a limited period, the longer the restrictions are in place, the higher the threshold for their justification and the more urgent the need for their review.”

The current regulations, which grant the gardaí extraordinary powers to enforce specific public health measures, contain a non-exhaustive list of reasonable excuses for which people can leave their place of residence. The gardaí can use their discretion to determine what constitutes a “reasonable excuse”. This places individual gardaí in the position of adjudicating on whether someone whose job or livelihood is at stake should be allowed to exercise their Constitutional right to protest while maintaining physical distance.

Ms Ansbro continued

“We’re concerned that recently protesters have been escorted away from protests and prevented from speaking to journalists. While the necessity for restricting some of our rights in the current context is evident, the restrictions must be equally applied, regularly reviewed and proportionate to the risk. Where a protest is small and complying with principles of physical distancing, as we saw in Cork and Dingle lately, there is a very good argument that they should be facilitated”.

In the interests of ensuring public understanding of and compliance with the restrictions, and safeguarding against disparity in their enforcement by An Garda Síochána, ICCL urges the government to provide legal clarity on the right to protest under the regulations as soon as possible.

ICCL reiterates our call on the government and gardaí to carry out a human rights impact assessment before any new extension of garda powers is announced. This assessment should determine whether all measures meet the necessity and proportionality requirements to restrict fundamental human rights, including the right to protest.

ICCL underlines our support for the government’s efforts to curb the spread of COVID-19 and we exhort people to adhere to the public health measures.