Criminalisation or Toleration? Legal approaches to protest in IrelandDr Fiona Donson, UCC

Ireland doesn’t protest?

“a preponderance of protest occurring at a local level is not surprising given the specific constraints and opportunities of the Irish political system it is not necessarily a sign of a defective or deficient social movement. National-level groups are more likely to direct their activities toward achieving policy objectives through a repertoire of lobbying and awareness-raising.” (Garavan, 2007)

The local and the national

• “Irish environmental protest activism is essentially a local-level phenomenon. The figures clearly show that the majority of protest activism occurs outside the formally organised, national environmental organisations.”• “Residents” make up the most

significant group• Protest often involves planning

process, litigation, direct action, demonstrations

Environmental protest

• Criminalisation or toleration Or?• demonisation and

moderation

• Protest law is often about controlling the space for protest

Legal/state responses to protest

• Article 40.6.1°:The State guarantees liberty for the exercise of the following rights, subject to public order and morality: i) The right of the citizens to express freely their convictions and opinions.ii)The right of the citizens to assemble peaceably and without arms

Constitutional Foundation

Limited respect for protest

“at a time when many people are under severe financial pressure because of our very difficult economic circumstances, it is scandalous that some protesters behave in a self indulgent way that has no regard for the rights of others.”

“[Protest] requires the expenditure of a substantial amount of taxpayers’ money which could be devoted to far better purposes …. In addition, this type of behaviour runs completely contrary to the public and national interest and furthermore will act as a disincentive to inward investment and the development of our national resources.”Alan Shatter, 2011

Primary legal tools

• Criminal Justice (Public Order) Act 1994 Section 8:

“Where a member of the Garda Síochána finds a person in a public place and suspects, with reasonable cause, that such a person –(a) Is or has been acting in a manner contrary to the

provisions of sections 4,5,6,7 or 9, or(b)Without lawful authority or reasonable excuse, is acting

in a manner which consists of loitering in a public place in circumstances, which may include the company of other persons, that give rise to a reasonable apprehension of the safety of persons or the safety of property or for the maintenance of the public peace, the member may direct the person so suspected to do either or both of the following, that is to say:(i) Desist from acting in such a manner, and(ii) Leave immediately the vicinity of the place

concerned in a peaceable or orderly manner.

Obstruction

• Section 9:“Any person who, without lawful authority or reasonable excuse, wilfully prevents or interrupts the free passage of any person or vehicle in any public place shall be liable on summary conviction to a fine not exceeding €400.”• “Arresting someone for wilfully obstructing the

highway without lawful excuse is a trusted part of the police officer’s armoury in dealing with and containing all forms of protest, not solely obstructive or intimidating direction action protest.”

But non-public spaces?

• “The [water meter] work station area is not a public area for the purposes of the Public Order Act, so it’s only outside the barriers that the act applies.” • Water Services Act 2007

S 12.—(1) A person who obstructs or interferes with—

(a) the exercise by a water services authority or any other prescribed person of powers vested in it or him or her under, or by virtue of, this Act, or

(b) the compliance by any person, including the owner or occupier of a premises, with the

provisions of this Act or of any notice, direction or order issued under it, commits an offence.

Role of Gardaí

“Gardaí are currently at the scene of a protest at Lios Na Li in Baileboro where people are protesting against the installation of water meters.An Garda Síochána has a role in ensuring that peaceful protests can take place, and also in preventing injury and protecting life. Our objective with any such operation is to ensure the safety of the public. We respect people’s right to peaceful protest and will facilitate same. Gardaí attend protests to facilitate free movement of traffic and to prevent any breaches of the peace.”

Adaptable approaches

• “There were no arrests. That was part of our strategy; we did not want to facilitate anyone down there with a route to martyrdom. That has been the policy ever since.” (Garda Review magazine 2006 – • "The danger with not arresting people is that,

instead, force may be unnecessarily used, particularly as frustration builds among Garda officers. Some of the footage supplied supports the view that this is what in fact happened.“ (Frontline defenders report 2010)

Stigmatisation of protest

“[P]rimary amongst these is the ability to trivialise and dismiss activists through a rejection of their behaviour as simply destructive and dangerous. This then facilitates a silencing of these alternative voices in terms of both wider debates on the pros and cons of citizens rights to protest … and wider contested issues of social and economic justice.”

(Exploratory) Conclusions

•Pragmatically for the state protest responses are to be fundamentally adaptable:•Law•Policing•Discourse

•A growing significance of protest?•Moving to embracing a right to protest