Bylaw cannot abolish a constitutional right

About 100 cyclists meandered down O'Connell Street last Friday evening in what they described as a "spontaneous gathering" of…

About 100 cyclists meandered down O'Connell Street last Friday evening in what they described as a "spontaneous gathering" of cyclists to protest. They were expressing their annoyance about the dangers to them from rising traffic levels.

According to Mr Damien O Tuama of the Dublin Cycling Campaign there were no specific organisers behind the rally; rather it was part of the global Critical Mass Movement, seeking the "basic right" to cycle safely through cities.

The protest is exactly the type of "event" Dublin Corporation's proposed "event management" bylaw would render impossible, or illegal. Were it in force, participants could have been arrested and fined, as they had not applied for permission to protest a month ago.

As no one could guarantee there would be fewer than 50 cyclists, they would have had to pay a £2,000 deposit. The cost and time restrictions would have meant the protest would never have happened.

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O'Connell Street, in which the 1916 uprising's most famous scenes were played out, has epitomised the free and vocal nature of protest in the State, a right enshrined in the Constitution.

It has witnessed Irish groups across the widest spectrum of political and non-political opinion vent their views and frustrations. From teachers and students to anti-abortionists and pro-choice activists, groups have gathered to protest.

One of the biggest marches in the State's history was over an issue affecting most ordinary people at the time. In 1980 more than 700,000 PAYE employees took to main streets around the State, but mainly in the capital's main street, to protest against inequities in the tax system.

Each of these groups made its point when it was so frustrated it thought no one was listening and had nowhere else to turn. That pressure valve for Irish society is now under threat. The proposed bylaw is described as a measure to control the number and nature of marches and demonstrations in O'Connell Street. Dublin Corporation's O'Connell Street Project staff drafted the bylaw in response to repeated requests from the area's traders, businesses and developers trying to improve the street both cosmetically and economically under the Integrated Area Plan.

Traders and developers feel that, if they are going to spruce up the area, they want to ensure a return on the investment.

So, if the bylaw is passed by Dublin City Council, no group of more than six people will be allowed to parade without the corporation's permission, which must be obtained 31 days in advance.

A £2,000 deposit will be required for any group bigger than 50 people, and if the protest exceeds 300, indemnity insurance worth £3 million will be necessary. Offenders may be removed by gardai and fined up to £1,000.

Groups which regularly use the "crucible of Irish politics" argue that these cost and time restrictions would effectively prohibit marches altogether. One of these is Youth Defence, with a dozen or so members assembling every week to raise awareness of their campaign, and they have held several large demonstrations in O'Connell Street in the last decade.

"We'd be placed in an impossible situation, as indeed would any organisation that doesn't have direct access to the media," said Mr Justin Barrett, public relations officer. "We've never held any demos of less than 300 people and I can't see how we'd get indemnity insurance of £3 million. Even if we did, imagine the cost of getting that. It would be totally prohibitive."

Mr Barrett maintains that the large-scale Youth Defence marches were "absolutely vital" in 1992 following the X case, when the Government was mooting legislation. He says the bylaw "could potentially change the whole political direction of the country".

Farmers, too, are no strangers to vocal protest. The former IFA president, Mr Joe Rea, is vehement. `It's a total nonsense, it's bureaucracy gone mad. Will they be putting turn-stiles on O'Connell Street Bridge, or tagging people as they go in?" he asks. "If they got away with O'Connell Street they will start on the rest. This is the thin end of the wedge."

Civil rights and left-wing groups have formed the Freedom of Assembly Coalition to combat the proposed bylaw. Fittingly, the coalition is planning to protest against the proposed limits on demonstrations with a demonstration today.

In face of ever-louder criticism, the O'Connell Street Project has begun to row back from the draft provisions somewhat. "We're not saying people can't protest but we're asking people to give us some way of regulating that," a project official, Ms Sheila Bruton, said. "They are subject to change if people can come up with better ideas."

The project manager, Mr Ciaran McNamara, has acknowledged there will always be spontaneous events, such as a victory parade for a successful Irish soccer team, that cannot be avoided.

These would still come under the proposed bylaw, however, and it would then be at the discretion of the Garda whether the ban on gatherings was enforced, and against whom.

Despite the corporation's in-house legal advice, there is a growing consensus that the bylaw would not pass a constitutional test, even if the City Council votes for it at the end of the public consultation process.

Dr Gerard Hogan SC, a Trinity law lecturer and member of the Constitutional Review Group, said the provision would not survive a court challenge. "You can't abolish the constitutional right to assembly by a bylaw. It's as simple as that."