Scottish Public Protest at a Time of Covid-19

Document Cited authorities (8) Cited in Related
DOI10.3366/elr.2021.0677
Published date01 January 2021
Date01 January 2021
Pages105-111
Author

“This attack on our free press, society and democracy is completely unacceptable”1 was the response of the UK Home Secretary on an early September Saturday afternoon to a coordinated protest by the environmental activist group Extinction Rebellion. Their members had managed to blockade several distribution centres for Rupert Murdoch's News International Group. Their belief was that Murdoch's press was not reporting climate change and was “polluting national debate”.2 In doing so, they managed to delay the distribution of newspapers across the country.

This protest had also spread to Scotland where the Eurocentral press in Lanarkshire was targeted.3 Two elements of this event seemed to typify the themes around public order law in Scotland in this strange time. First, Police Scotland announced that the Motherwell event was “peaceful” and had passed without major incident4 in contrast to London where more than 600 arrests were made.5 Further, the organisers of the Scottish protest were keen to stress that protesters had worn face masks and had maintained social distancing of two metres. These were only two in a number of examples of UK public protests at the time of COVID-19. However, they also took place at a time when there had been heightened legal discourse around the very question of public protests in Scotland and across the UK.

EARLY LOCKDOWN MEETS BLACK LIVES MATTER

It is not an overstatement to say that the extraordinary measures introduced on public gatherings in the first months of lockdown faced their first major challenge over the heated question of public protests.6 At the start of lockdown, Regulation 6 stated that no person “may participate in a gathering in a public place of more than two people”.7 Although a number of exceptions were listed, there was no mention of gatherings to express a political view.8 As delegated legislation made by the Scottish Government, such rules must comply with the European Convention on Human Rights (“ECHR”).9 Article 11 of the ECHR protects freedom of assembly, albeit that right is qualified where any restriction is made for the “protection of health or for morals or the protection of the rights and freedoms of others”.10 This became more than an abstract question of law two months into the lockdown with the killing of George Floyd in Minneapolis by a police officer.11 This action sparked a worldwide movement of protests under the banner “Black Lives Matter”12 (“BLM”) that soon reached Scotland.

The Scottish Government, via the First Minister and the Justice Minister, publicly stated their support for the campaign but urged protestors to stay at home to “prevent the risk of spreading COVID-19” rather than join in demonstrations planned for 8 June 2020.13 Perhaps unsurprisingly, given their political support, neither the First Minister nor the Justice Secretary chose to emphasise that any such gathering would have been illegal under the relevant legislation passed to deal with COVID-19. This approach – downplaying the question of the protest's (il)legality – was echoed by the Chief Constable of Police Scotland who said that he was “aware of several planned protests” but urged people to follow “government guidance”.14

This low-key approach – attempting to persuade people not to take part in mass gatherings rather than stressing the possibility of legal sanction – was reflected in the policing of the Glasgow event which attracted thousands of...

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