On Tuesday, several dozen demonstrators, most of them women, gathered at the Spire in Dublin to protest violence towards women in the wake of the murder of UK woman Sarah Everard.
The demonstrators wore masks and stood, for the most part, two metres from each other. The event was a stark contrast to the much bigger anti-lockdown protest which took place in Herbert Park in Ballsbridge the following day.
There, masks were scarce and there was little attempt among the crowd to socially distance as they listened to conspiracy theories about the virus delivered from the bandstand by a UCD professor.
Regardless of the conduct of demonstrators at each event, both gatherings were equally illegal under current health regulations.
The fact that all public protesting has been banned for many months now is a stark reality which politicians and officials are reluctant to acknowledge outright. When The Irish Times asked the Garda this week if protests were illegal, a spokesman simply pointed to the Health Act 1947. A Department of Health spokeswoman, when asked the same question, referred to the Garda's response.
Gathering for a protest is not explicitly banned in the Health Act. Rather, it is excluded from the list of essential reasons for travel. That is the case whether there is one person protesting or one thousand and whether it takes place 300km away or at the end of your road.
The end of the pandemic is around the corner we are told. But with cases starting to creep up again and daily reports of vaccine delays, it is not clear how far away that corner is. In the meantime, frustrations with lockdown are growing.
Combined with non-Covid related grievances, such as the mother and baby homes report, Black Lives Matter and labour disputes, that means the desire to protest is only likely to increase as the country enters warmer weather.
This has caused some in Ireland to question if the ban on protests should be maintained. Should the Government and gardaí facilitate the holding of safe protests? What if those protesters are actively spreading dangerous misinformation about Covid-19 or relate to events which occurred in a different country? And is it even possible to have a "safe" protest during a pandemic?
Right to protest
For activist Ruth Coppinger, the protest at the Spire shows people can protest safely if organised properly. "We took a lot of flack over it but the protests went ahead and were well-run.
"Obviously in a pandemic, people's rights aren't absolute. But I don't think the right to protest can be removed entirely. They should to be allowed if participants are doing their upmost to protect people's health," said Coppinger, a former TD, who has attended Black Lives Matter protests and vigils calling for an independent investigation into the death of George Nkencho last year. *
A garda inspector who turned up at the Spire obviously did not agree. The inspector ordered officers to take the names of about 14 of those present, causing many of the other protesters to disperse.
Earlier this month, after an anti-lockdown protest resulted in gardaí being attacked on Grafton Street, the Irish Council for Civil Liberties (ICCL) wrote to Minister for Justice Helen McEntee pleading for protest to be added to the list of essential reasons for travel.
It said this could be accompanied by guidelines on protesting safely, such as limits on numbers, the wearing of face masks and avoiding contact with the wider public. Its executive director, Liam Herrick, pointed out the German courts have struck down a blanket ban on protests during Covid while France has rolled back its initial ban and has started permitting demonstrations of limited size.
In policing protests over the last year, the Garda have been walking a tightrope. "It's a job no garda enjoys. People have a right to protest under the Constitution. For the most part these are ordinary, decent people who are frayed at the edges," said recently retired assistant garda commissioner for Dublin Pat Leahy.
He said the Garda approach has been to use its discretion and make arrests only when it is necessary and when it is safe to do so.
Breaking the law
Since the start of the pandemic, the Garda approach has been to liaise with protest organisers ahead of time and advise them they may be breaking the law. If the protest goes ahead anyway, gardaí will work with the organisers to ensure it passes off safely before later launching an investigation (the Garda declined to release figures on how many people have been investigated or charged for organising protests during the pandemic).
Sometimes, however, organisers will refuse to liaise with gardaí. “That’s a nightmare because you don’t know what people are planning,” said Mr Leahy.
The Garda approach has drawn some criticism, particularly for its perceived inconsistency in policing demonstrations. For example, early in the pandemic the Policing Authority and the ICCL criticised the dispersal of Debenhams workers protesters while, on the same day, a far-right demonstration was allowed go ahead outside the Four Courts.
According to the ICCL, permitting well-organised protests will not only vindicate people’s right to gather, but will limit the ability of the far-right to use anti-lockdown protests as a recruiting vehicle.
It is often difficult to determine who is behind many of the anti-lockdown demonstrations and the far-right frequently use them to distribute literature or address the crowds.
“Failure to set out guidelines on safe versus unsafe protests creates a climate of uncertainty. This can be exploited by far-right groups who are using discontent about the lockdown and a veneer of concern for human rights to recruit into their ranks,” the ICCL said.
‘Harm or hatred’
That is not to say only “good” protests should be permitted, said the ICCL’s head of legal and policy, Doireann Ansbro. “Our view is people have a right to express alternative views, as long as they are not prompting harm or hatred. Alternative views are the life-blood of our democracy.”
Protesting might also be far less dangerous than people think, as long as it takes place outdoors. Studies conducted after the massive wave of Black Lives Matter protests in the US last summer show they did not contribute to a significant increase in cases. All the data suggests indoor gatherings are vastly more dangerous.
“If you’re staying several metres away from people, wear a mask and only stay close to people you live with, that should be okay,” said infectious diseases specialist Prof Sam McConkey.
Prof McConkey said he “sort of understands” the argument in favour of allowing protests during Covid. “If we lose our ability to critique those who govern us and to protest, then our country is hardly worth living in.”
The problem with allowing “safe” protesting is that protests, by their very nature, tend to be acts of disobedience, something Prof McConkey acknowledges. “Just because the organisers put rules down doesn’t mean people will follow them.”
Leahy is also sceptical of the idea of permitting protests of limited size. “The minute you limit it to a certain number, you are back at square one. If you limit it to 500 people, anybody over that figure will say their constitutional right is being impinged. There’s no magic number you can limit it to.”
One thing is certain; with discontent over the lockdown and the vaccine rollout growing by the day, it is an issue that is not going away.
* This article was amended on March 20th, 2021
