GOING cap in hand to the Home Office to seek draconian powers to crack down on the right to protest is not a good look for the Scottish Parliament. In recent months SNP MPs have been vocal in our opposition to Priti Patel’s plans to crack down on the right to peaceful protest in the Policing Bill at Westminster, so it was more than a little embarrassing to find out that our own parliament was seeking not dissimilar powers to tackle protests outside Holyrood.
SNP rank and file members clearly felt the same and it was good to see the emergency motion condemning the move passed by a substantial majority at conference. Chris Hanlon and the energetic Stonehaven and the Mearns branch are to be congratulated for bringing the issue to conference, which remains the supreme policy-making body of the party.
The BBC asked – is the Scottish Parliament really banning protests? The answer is no, indeed they could not do so lawfully even if that were their intention.
READ MORE: 'Morally wrong': Legal expert picks apart plans to restrict protests at Holyrood
The suspicion that this draconian action was a response to the large numbers of women who protested their rights outside parliament a couple of weeks ago was understandable when those who should know better were branding as fascists a crowd that included survivors of sex abuse and life-long feminist campaigners, as well as describing MSPs who went out to speak to their constituents as shameful. There is a real fear of a creeping authoritarianism in our public life such as one might see in an immature democracy not the cradle of the democratic intellect.
It did not help that the Scottish Parliament’s Corporate Body (SPCB) took such a cloak and dagger approach to seeking these powers by not announcing it in advance, refusing to publish background papers justifying the move and taking most MSPs by surprise. It’s hardly the transparency and accountability that we have been promised and expect from our parliament. As our former makar the late Edwin Morgan said in his poem to open the parliament: “Open the doors! Light of the day, shine in; light of the mind, shine out!”
The SPCB protested loudly that their actions had been misunderstood. Yes, that’s what tends to happen when you don’t bother to consult or explain why you are doing something.
When brought to the Holyrood chamber to explain by an Urgent Question from a Green MSP, Claire Baker MSP (below), a member of the SPCB said: “ ... we are not seeking to curb or limit protest.
"The reason for applying for designated status is to give the Parliament the means by which to address protests by individuals whereby they try to prevent the Parliament from meeting to carry out its essential role, or seek to interfere with the rights of others to engage at Holyrood, or where their actions make it unsafe for others. Unfortunately, the Parliament has experienced such disruption, impacting on its democratic role.”
She insisted that the police would only remove protestors “in a small number in the most exceptional circumstances”.
However, those who gathered to protest the SPCB’s move outside Holyrood yesterday clearly found this explanation inadequate. Trust has been lost by the SPCB’s secrecy and their failure to consult MSPs before seeking power from Westminster to crack down on Scots protesting outside their own parliament.
In the absence of a transparent or accountable approach it is completely understandable that people should be outraged that Holyrood bosses think the Parliament needs the same protection as military sites such as Faslane naval base and Buckingham Palace. People were frankly stunned to see in the annex to the Statutory instrument a plan showing that the entire frontage of the parliament is marked out as a potential no go zone.
This area was specifically designed and landscaped by the architect Enrique Miralles to facilitate gatherings, celebrations and protests and to make the parliament accessible to the people. I mean, what on earth is going on?
BUT to get back to the BBC’s question I want to put people’s minds at rest. No, Holyrood is not banning the right to protest because, thanks to the Human Rights Act and the Scotland Act which incorporated the European Convention of Human Rights (EHCR) into our domestic law, Holyrood does not have the power to ban protests.
Nor does Westminster, at least not by means of a statutory instrument which is only secondary legislation and so can be challenged in the courts. And, notwithstanding the supremacy of the UK Parliament, any statute which purported to ban protests would be incompatible with the ECHR and the courts would seek, if at all possible, to interpret it in a way which was compatible with those rights or make a declaration of incompatibility.
Article 10 of the ECHR establishes the right to free speech and Article 11 the right to freedom of assembly and association. The rights protected under Article 11 include any public or private gathering for a common purpose and being able to choose the time, place and form of the gathering, within limits so long as it is peaceful. The right to free expression extends not only to information or ideas that are favourably received or regarded as inoffensive, but also those that “offend, shock or disturb the state or any sector of the population”. That is why hate crime laws are potentially open to challenge. The ECHR has placed particular emphasis on the importance of political free expression and said that “in a democratic society based on the rule of law, political ideas which challenge the existing order and whose realisation is advocated by peaceful means must be afforded a proper opportunity of expression”.
READ MORE: IN PICTURES: Activists demand plans to curb Holyrood protests be scrapped
The right to free speech and freedom of assembly are not unlimited but any interference with them will only be justified where it is properly prescribed by law, where there is a pressing social need for the interference and where the interference is proportionate to the aim of the measure. Laws governing such interference must be adequately accessible to those affected by them and the consequences must be foreseeable. They must also contain adequate safeguards against arbitrary or discriminatory use.
What this means is that anyone whose rights were interfered with or who was charged with a criminal offence under this new power sought by the SPCB could challenge the law in court as unlawful – and they would have a pretty good chance of success. Indeed, we could even see a stand-alone challenge to the law from a human rights group or from concerned citizens. It is also important to understand that the rights to free expression and freedom of assembly impose both negative and positive obligations on the state. This means that not only must the state refrain from imposing unjustified restrictions on the right to protest they must also positively act to safeguard and facilitate the right to protest. The importance of this was emphasised by the Joint Committee on Human Rights in our report criticising public order aspects of the Policing Bill. We suggested that the UK Parliament might want to legislate to create a positive right to protest. Perhaps the Scottish Parliament should do the same?
We could certainly do with some clarity on the matter to prevent over-zealous police officers taking advantage of this new law.
Incidentally, while all this was going on, we learned from Call It Out, the campaign against anti-Irish racism and anti-Catholic bigotry, that in Glasgow this coming weekend three anti-Catholic marches will pass by Catholic churches despite the violence that has previously occurred on such occasions.
Something is seriously wrong when those in authority condemn protesting sex abuse survivors as fascists and pour scorn on the MSPs who dare to speak to them while at the same time turning a blind eye to the deliberate goading and terrorising of our Catholic community. Scotland needs a more balanced and human rights compliant approach to freedom of expression and freedom of assembly and Holyrood’s recent contribution has not been helpful.
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