In early November, the High Court ruled that the use of police powers to severely limit protests by Extinction Rebellion were unlawful. The Metropolitan Police claimed this was “made with good intent “.
As part of our recent report Restricting the Rebellion, we asked David Mead, Professor of UK Human Rights Law at the University of East Anglia, to give an expert opinion. This is what he said.
The human rights issues arising from the policing of XR protests in London
The decision by the Met, on 14 October, to impose a blanket condition on the many and varied XR protests across London was successfully challenged in the High Court as unlawful. As a matter of statutory interpretation, each action at each site was a separate “public assembly” requiring its own assessment by a senior officer of likely serious disruption and thus its own separate condition. What was not decided in the case, as it was either never argued or was not necessary for the decision, was whether in imposing the condition the Met also breached the XR protesters’ human rights under the ECHR. It almost certainly did so.
There are some key human rights principles at play whenever a protest is being policed, whether the result of that is “simply” controlling/regulating it or restricting/ending it. The first question is whether the action being taken falls within – “engages” – the protection of the right of free speech (Article 10) or the right to assemble peacefully (Article 11), which two together constitute a right to protest peacefully. European human rights case law here is clear: the right extends past the traditional forms – marches, demos or rallies – and can certainly comprise disruptive forms of action: as sit-ins, occupations, lock-ons etc. The key question here is whether the action was peaceful – were they peaceful i.e. did they have (physically) violent intentions? It’s clear that there was nothing in the XR actions that would have taken the protesters outside the scope of protection; (and here it is critical that we assess the actions of individual protesters, not the amorphous protest) :
“…an individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration, if the individual in question remains peaceful in his or her own intentions or behaviour.”Ezelin v France (1991)
The primary focus of the court on any challenge is on two matters: first, the certainty or clarity of the condition that is imposed, and secondly, was the imposition of the condition a proportionate response? This is standard human rights analysis when looking at the right to protest peacefully. The Met is exposed on both. Restrictions on rights are only lawful if we are able to foresee with sufficient certainty what exactly we can and cannot then do: given the nature of XR, how easy would it be to know whether or not any protester is “linked” to it? Equally, while “assembly” is a term clearly defined in law, protest is not – how then is someone to know what sort of activity is captured by the condition to “cease protests”?
There is also the separate point here that under s.14 conditions can only be imposed on people, not on assemblies. Even if a court determined that the condition was certain, it would very likely fail as being disproportionate. The essence here is tailoring the restriction to the perceived harm, serious disruption – sometimes referred to as minimal impairment. The Met must impose the least onerous restriction.
The Met’s decision wrongly assumed that a pair of teenage XR activists protesting outside their school in Tooting would be seen as disruptive as the hundreds at Oxford Circus – and that clearly is not the case.
It simply could not be said that all XR assemblies across the whole of London constituted the same level of serious disruption (if any) yet all were subject to the same blanket direction to cease; application of a policy or decision in blanket fashion without consideration of individual facts will render it disproportionate (seen recently on an admittedly dissimilar issue, that of a university policy, Ngole v University of Sheffield). The Met’s decision wrongly assumed that a pair of teenage XR activists protesting outside their school in Tooting would be seen as disruptive as the hundreds at Oxford Circus – and that clearly is not the case.
If the High Court had not found the Met’s decision to be unlawful on the ground that they had misinterpreted the extent of their statutory power, it would most certainly have done so on the ground that the decision breached XR’s rights to protest.