Netpol has called the first major review of operational policing of public order and protest in almost a decade “fundamentally misguided” and has challenged the National Police Chiefs Council and College of Policing to justify offering guidance to local police forces that has no basis in law.
In August, the National Police Chiefs Council (NPCC) released its draft “Protest Operational Advice” that will provide national guidance to local police forces on how they conduct policing operations involving protests. The NPCC asked for comments on the document by 27 September.
As we noted in early September, the guidance makes much of the need for a “balanced and impartial approach” and in doing so draws heavily on Article 17 of the European Convention on Human Rights (ECHR). This “abuse clause” was intended to prevent anyone from exploiting the different rights set out in the Convention for their own interests.
However, as we have highlighted in a detailed submission to the NPCC and College of Policing, the case law on Article 17 is concerned fundamentally with hate crime and the destruction of rights by totalitarian regimes – there is no legal basis for using it to restrict the rights to free speech and assembly that may interfere with someone else undertaking lawful business activity. This is simply wrong in law.
We have argued that advising officers that “such behaviour will often fall outside the protection” of the ECHR opens up the possibilities for abuse of their powers and potential legal challenges.
Our submission also argues:
- That there is no basis for asserting a protest that is deliberately disruptive to the activities of others falls outside the protection of rights to freedom of assembly.
- That the new guidance no longer seems to recognise the positive duty on the police to facilitate the right to protest.
- That the guidance seems to advise restricting or limiting a protest on account of the behaviour of (a few of) its members and fails to make it clear that an individual protester is not liable for the actions or intentions of others.
- That the guidances fails to recognise protests are not a single event but involve considerable planning and organisation in advance. When preparations for holding a march or assembly are disrupted or interfered with by policing decisions, especially (but not limited to) surveillance, this can have just as much of a negative impact on exercising rights to protest.
- That the guidance underplays or ignores the potential for police surveillance and information gathering to infringe on protesters’ rights and offers no recognition that the collection of data can have a ‘chilling effect’ on the freedom to protest.
Netpol’s submission is also critical of the suggestion that the deployment of Police Liaison Officers (PLOs) has “gone some way” to addressing mistrust of the police. There is simply no basis for this assertion and the new guidance fails to address the fundamental lack of transparency over the now well-documented role of PLOs as intelligence-gatherers. It also fails to make it explicitly clear that protesters have no legal obligation to negotiate or communicate with the police (invariably through PLOs) prior to a public assembly.
Netpol was first promised a review of the way protests are policing back in March 2016 and it has taken over three years of lobbying to persuade them to draft and then publish their new guidance.
It is disappointing, therefore, that despite promising to produce advice that “reflects the latest developments and lessons learnt from across the United Kingdom when policing protests”, the draft document offered for consultation is so fundamentally misguided. We are calling for wide-ranging changes before it is adopted.
A copy of our submission is available here.