Submission to the Inquiry Into Respect For The Constitutional Rights To Free Expression And Free Assembly At The Clapham Common Vigil On 13 March 2021 And The Bristol Protests In March 2021.
This paper is a response to the call by the All-Party Parliamentary Group on Democracy and the Constitution, who asked Netpol to help inform their inquiry into policing of public gatherings, constitutional rights, and the PSCS bill.
The paper is submitted by Netpol is a coalition of campaigners, legal support groups, lawyers and academics concerned with monitoring protest policing in Britain. We have been working alongside social movements to document issues arising from the policing of protest since 2009.
Dr Val Aston (Hilary Rodham Clinton School of Law, Swansea University)
Dr Sian Jones, Netpol steering group
Kat Hobbs, Netpol Communications Coordinator
The key points that we seek to make here are these:
The need to protect public health and curtail Coronavirus transmission amounts to a legitimate aim for the restriction of assembly rights. However, the failure of governments to acknowledge the importance of protest as a means of political expression even in the midst of a pandemic, and the effect of Convention rights on Coronavirus regulations, created an unnecessary layer of uncertainty and confusion.
The language of ‘balancing’, used frequently by policing bodies, is not always helpful. If protest is viewed as inherently problematic and ‘inconvenient’ rather than as a necessary and important element of a free society, the ‘balance’ will almost always fall on the side of maintaining order and preventing crime.
What is needed, in our view, is a rights-based approach in which the state acknowledges both its negative duty to refrain from interference in assembly rights unless there is a pressing social need; and its positive duty to facilitate protest and ensure the safety of protesters.
Clear and positive protections for those participating in expressive assemblies based on OSCE ODIHR guidelines, such as those contained in Netpol’s Charter for Freedom of Assembly Rights, would be a positive step forward in this regard.
In particular, there should be a clear recognition that the scope of Article 11 encompasses ‘direct action’ protest and that participants in disorderly or obstructive protest will retain the protections of the right to freedom of peaceful assembly as long as they do not have violent intent; and that much more needs to be done to ensure that protesters are protected against the unnecessary restriction of their assembly freedoms and the use of disproportionate force.
We are particularly concerned at the violent nature of the police response to protests in Bristol over the last month, in which at least 62 people were injured.
Respect For The Constitutional Rights To Free Expression And Free Assembly At The Clapham Common Vigil On 13 March 2021 And The Bristol Protests In March 2021
Netpol is grateful for the opportunity to make this submission. We address the questions posed by the All Party Parliamentary Group on Democracy and the Constitution in turn.
Do you consider the law and guidance in place at the time to be sufficiently clear in respect of public gatherings for the purpose of protest/free expression/peaceful assembly during the coronavirus pandemic?
In order to be compliant with the Convention, any interference with qualified rights must be ‘in accordance with law’. This has been interpreted by the European Court of Human Rights (ECtHR) as a requirement that the law must be ‘formulated with sufficient precision to enable the citizen to regulate his conduct’.1 The individual must be able – if necessary with appropriate advice – ‘to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail’.2
There is a wider question in play here as to the extent to which protesters are able to foresee the application of public order and protest law even in non-pandemic times. The police have numerous powers to restrict obstructive or disruptive protest: and almost all protest is, to some extent, obstructive or disruptive of others. Police decisions as to when those powers are used (and the manner in which they are used) vary considerably over time, and across different police forces.
Netpol has often encountered over the years confused and angry protesters who have found that their form of protest, previously tolerated or facilitated by the police, has suddenly warranted pre-emptive clamp-downs and/or arrests. Such uncertainty undoubtedly has a profound effect on the right to freedom of assembly.
There has certainly been a great deal of uncertainty as to the application of Coronavirus regulations. Some degree of uncertainty has probably been inevitable, given the rapid response required of governments to a developing and serious public health emergency.
Nevertheless, it should be borne in mind that the public have been required to navigate frequently changing regulations; apparently blurry distinctions between regulations (binding) and guidance (non-binding); and (particularly from a Welsh perspective) an insufficient recognition on the part of the UK government of the geographic scope of measures and the role of devolved powers.
A more fundamental difficulty has perhaps been a general failure of UK governments to specify the way in which they expected Coronavirus regulations to apply to expressive assemblies, and in particular to acknowledge the relevance of Convention rights. There has been a consistent message, from policing bodies and governments that all assemblies (other than those explicitly exempted in the regulations) are unlawful and that participants may be arrested and/or prosecuted.
However, as has been confirmed by the High Court in Leigh v Commissioner of Police for the Metropolis the effect of Articles 10 and 11 mean that Coronavirus regulations did not – and could not – amount to a blanket ban of protest. The failure of governments to properly address the issue of protest meant that potential opportunities to facilitate safer protest, perhaps through social distancing and mask-wearing, may have been missed. In this respect expressive assemblies have been treated very differently from other types of assembly (such as weddings, funerals, and gatherings in workplaces and schools).
Protesters (and would-be protesters) have been faced with a very confused picture of what would, or what would not be acceptable conduct. Early on in the pandemic there was considerable tolerance of socially distanced protests by nurses and doctors calling on the government to provide a greater volume of personal protective equipment (PPE).
There was tolerance too of some larger protests: in June 2020 in Cardiff, a ‘Black Lives Matter’ (BLM) protest took place without significant police intervention. But in January 2021, the organiser of another, similarly-sized Cardiff protest (called when a Mohamud Hassan, died after police contact) was issued with a £500 coronavirus fine. In both cases the demonstrations were in breach of Coronavirus regulations (although different regimes were in force).
In other cases protesters have been faced with more coercive policing measures. We discuss proportionality concerns below, but it is relevant here to note that we have been concerned at many of the policing strategies that have been adopted, some of which appear to be likely to exacerbate rather than mitigate COVID risks.
In particular we note the use by the Metropolitan police of containment strategies – or ‘kettles’ – in which protesters have been squeezed together in such a way as to make social distancing impossible. These appear to have been used during Black Lives Matter protests in June 2020,3 and during protests against the PCSC Act in April 2021.
What elements of national/international best practice in balancing, maintaining, and/or facilitating the rights to free expression and peaceful assembly (a) during the pandemic and (b) after the pandemic were relevant to (a) the Clapham Common vigil on 13 March (b) the Bristol protests between 26 and 29 March?
The language of ‘balance’ here is potentially misleading. A straightforward approach to balance is only possible when each side of the ‘scales’ is given an appropriate weighting, yet the value of protest is often overlooked, while the requirements of law enforcement and order maintenance is consistently accorded a greater ‘weighting’.
Even in a pandemic, protest assemblies play an important role, not least as a means of highlighting pandemic issues. At the beginning of the pandemic, for example, socially distant protest by nurses and doctors drew public and press attention to their complaints about a lack of personal protective equipment (PPE).
Protest also plays an important role in highlighting injustice and holding public bodies, including the police and government to account, a role which has not lost its urgency despite concern for public health. Yet these valuable features of protest appeared to play no role in government thinking during its pandemic planning at different stages of the pandemic.
The Home Office did commission advice on protest from the Security and Policing Sub-Group of Scientific Pandemic Insights Group on Behaviours in April 20204, but the terms of reference framed protest firmly and solely as a public order concern, emphasising concerns that ‘allowing’ protest would undermine public health measures by encouraging people to use protest as a ‘lawful way to socially gather’, and would exacerbate community tensions and increase risk of disorder.
As a result, while the government sought to facilitate safer environments for gatherings of other types, protest was side-lined as something which was, at best unhelpful, and at worst dangerous.
In pre-pandemic times we have seen a similar approach from the Home Office in relation to protests by Extinction Rebellion (XR) and other environmental groups. Priti Patel found the inconvenience and disruption resulting from XR protests to be unacceptable, and that they should therefore be stopped and prevented from engaging in further protest.
Over the 11 years that Netpol has monitored protest, we have seen too little evidence of state bodies genuinely facilitating protest, but have amassed a great deal of evidence of intolerance of even minor levels of obstructive or disruptive protest.
In this context, we find the language of ‘balance’ unconvincing. The scales are inherently weighted against protest: the ‘balance’ between protest rights on the one hand, and maintaining order on the other, is one that rarely falls on the side of protest.
What is required is not ‘balance’ but recognition that the Convention imposes two obligations on state bodies: the first is a negative obligation not to interfere with protest unless certain conditions are met; the second is a positive obligation to positively facilitate and protect protest rights where it is possible to do so.
The conditions required for interference with the freedom of peaceful assembly are laid out in Article 11(2): the interference must be in accordance with the law; and it must be necessary and proportionate to a legitimate aim.5
It is important to remember that these obligations applied both to the Clapham Common vigil, and to the Bristol protests. Neither the fact that the protest itself may be considered ‘unlawful’, nor that some protesters may be acting unlawfully, necessarily deprives participants in these protest of the protections of Article 11.
The European Court of Human Rights (ECtHR) has asserted, ‘where demonstrators do not engage in acts of violence it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance’.
As such, Article 11 has been held to cover a wide range of protest activities, including pickets,6 processions,7 rallies,8 sit-ins,9 roadblocks,10 occupations of buildings,11 and the public reading of press statements.12 Forms of ‘direct action’ protest considered to fall within the scope of Article 11 have included the obstruction of a public road in order to disrupt access to a naval base;13 the creation of a rolling barricade of vehicles across several lanes of the motorway in order to slow down traffic;14 and a mass demonstration which obstructed a major highway for a period of 48 hours.15
Nor does the fact that a protest amounts to a threat to public safety necessarily take protests or protesters outside the scope of Article 11. In Kudrevicius farmers protesting a lack of agricultural subsidies were charged with incitement to riot for blocking three major roads for around 48 hours. While the Court acknowledged that these acts were potentially dangerous, the conduct of the demonstrators was not ‘of such a nature and degree as to remove their participation in the demonstration from the scope of protection of the right to freedom of peaceful assembly under Article 11 of the Convention …’. 16
The implications of this ruling is that a potential threat to public health from possible transmission of Coronavirus does not remove protesters from the protection of Article 11, and any intervention must therefore be in accordance with law, necessary and proportionate.
Article 11 rights are applicable only to peaceful protest, but it is also critical that state bodies do not interpret ‘violence’ too broadly. The fact that there has been violence at a demonstration does not alter the rights of those who have not engaged in that violence. The ECtHR has held that a person ‘does not cease to enjoy the right to freedom of peaceful assembly due to sporadic acts of violence or other wrongdoing committed by others’17 as long as ‘the individual in question remains peaceful in his or her own intentions or behaviour’.18
The mere risk or anticipation that violence will occur at a demonstration is not sufficient to take an assembly outside the scope of Article 11, if the intention of the assembly is not violent: the ECtHR has emphasised that ‘even if there is a real risk that a public demonstration might result in disorder as a result of developments outside the control of those organising it, such a demonstration does not as such fall outside the scope of Article 11 § 1, and any restriction placed thereon must be in conformity with the terms of paragraph 2 of that provision.’19
If the police seek to remove the protections of Article 11 from protesters on the basis that they have violent intentions, incite violence ‘or otherwise reject the foundations of a democratic society’20, there must be evidence of such intention.
In Schwabe v Germany, the German police claimed that anti-G8 protests intended to incite ‘very violent’ anti-globalisation activists with banners calling for the freeing of prisoners, and that one of the applicants had assaulted a police officer during an identification check. This was not sufficient, however, to take any of the applicants outside the scope of Article 11.21
Assemblies will also remain within the scope of Article 11 if the violence which occurs results from disproportionate state interventions.22 In Nurettin Aldemir v Turkey the Court was content to extend the protection of Article 11 to circumstances in which a disruptive but peaceful protest became violent after state interventions which consisted of ‘considerable force’ and which caused ‘tensions to rise, followed by clashes.’23
The application of Article 11 does not, of course, mean that police interventions will themselves be unlawful, but it does meant there are obligations on the state to facilitate and protect peaceful protesters; to exercise a degree of tolerance; and to ensure that any interventions are both necessary and proportionate to a legitimate aim.
For the reasons we lay out below, we do not accept that this was the case either at Clapham Common or Bristol.
How does the police approach and conduct at (a) the Clapham Common vigil and (b) the Bristol protests compare with relevant best practice?
Setting aside concerns as to whether the law in place was sufficiently clear and accessible as to be in ‘accordance with law’ the police response to the vigil for Sarah Everard was grossly disproportionate.
Following the discovery of the body of Sarah Everard – allegedly kidnapped and murdered by a serving member of the MPS – women in Clapham began to organise a vigil in her memory, and reflecting the nationwide outpouring of concern and anger about violence against women. The organisers of the vigil took every possible measure to ensure a peaceful assembly, by cooperating with both the Metropolitan police (MPS) and the local council, and by planning and publicising preventative measures to ensure a COVID-19 safe assembly.
Following the decision of the MPS (apparently under political pressure) to withdraw cooperation and prohibit the assembly, on the basis that their hands were tied by the 2020 (Coronavirus) Regulations, the organisers appealed to the High Court on 12 March. 24
Nevertheless the MPS refused to facilitate the protest but took the decision to characterise the assembly which went ahead at Clapham Common as unlawful. This was, in our view, a manifest failure of their responsibilities under Article 11. They failed in their duty to facilitate peaceful assembly and took enforcement action which was neither necessary nor proportionate: by making physical interventions and arrests the police arguably increased the risk of virus transmission to at least some of those present.
It is notable that other vigils took place the same night, both elsewhere in London and around the UK, which were at least tolerated if not actively facilitated.
The picture of protest policing in Bristol is far more complex and the details are still emerging. Our concern here is that while some protesters may have acted unlawfully, the police did not do enough to protect those who were not acting violently, and that the reaction of the police was in any case grossly disproportionate.
It is important perhaps to remember that the focus of these protests was in particular the opposition to increased powers provided to the police by PCSC Bill. There was potential that, faced with hostility from an angry crowd, the police would react in a way which exacerbated rather than mitigated the risk of disorder. Whether this was, in fact, the situation is not yet clear.
As we have already established, the mere fact that a protest poses a risk of disorder does not in itself remove protesters from the protection of Article 11. The fact that protests took place after a night of significant disturbance on 21 March did not relieve Somerset and Avon Police of their obligation to protect and facilitate peaceful protest as far as it was possible to do so, and to ensure that their interventions were limited to those which were necessary and proportionate to the aim of maintaining order and preventing crime.
Observers on the scene have communicated to Netpol their view that this was not the experience of many protesters, and we have received numerous reports of a disproportionate use of force against those who had no violent intent.
One such report concerned the use of a police dog unit to disperse around 150 protesters and their families from a public park on 23rd March, apparently prompted by a decision to remove protesters from the area before dark. The protesters were sitting on the floor and chanting “peaceful protest” as riot police gathered nearby. Several of them were subsequently hospitalised.
A journalist at the scene described it as “the most violent and disgraceful policing I’ve ever seen in the UK”, commenting “it’s difficult to put into words the extreme violence I witnessed, as police attacked, arrested and hospitalised people, and police horses and dogs were used to charge at crowds.”25
Further, local legal observers have characterised policing subsequent to 21 March as “revenge policing”, in which police interventions did not appear to be related to, or conducted in response to the actions of protestors. As one witness stated, police officers appeared to unleash a real [and personal] anger onto protestors, irrespective of who they were or whether they had taken part in the first demonstration on 21 March.
We are aware that at least 62 people sustained injuries as a result of police actions, 22 of which were head wounds, and 7 of which required hospitalisation.
REPORTED INJURIES IN BRISTOL BETWEEN 21-26 MARCH 202126
|People were hit by batons||20|
|People were hit by shields||11|
|People were hit by shields/batons||13|
|People were kicked, punched or physically assaulted by police hands/bodies||3|
|People were bitten by police dogs||7|
|People were pepper sprayed||12|
|Injuries occurred in ways that are unclear||5|
Netpol has received further reports from legal observers and eye-witnesses of unprovoked police violence taking place on Friday 26 March when riot police were used to disperse a crowd outside Bridewell police station.
Again, legal observers present at the scene reported that the demonstrators were seated on the floor chanting and singing when riot police charged the crowd just after 10pm, only seconds after ordering the crowd to disperse. Contemporaneous notes record “riot police…pushing and shoving activists with their hands up- batons out” and “TSG using shields as weapons- lifting them and hitting people”.
The police then proceeded to use horse-mounted police and a dog unit, in addition to Territorial Support Group (TSG) officers using batons, shields and pepper spray, to push a dense crowd back into a small walled courtyard on the edge of Bristol’s shopping district. During this manoeuvre several people received head injuries and were at risk of being trampled by the dense crowd which was unable to disperse as the line of riot police advanced.
With what appears to be remarkable disregard for public safety, the riot police line then cleared protesters onto a busy-two lane highway without stopping traffic, leaving protesters caught between moving vehicles and horse-mounted police.
The failure of the police to differentiate between peaceful protesters and those posing an immediate threat is illustrated by the fact that several legal observers and volunteer first aiders in clearly-marked hi vis bibs medics suffered violent attacks by police officers. Press were also caught up in the violence, and a journalist from the Daily Mirror shared a video of themselves being pushed and hit with a baton by a police officer while identifying himself.27
First-aiders reported being prevented from giving support to those who were injured and in one instance, police refused to allow a volunteer medic supporting a semi-conscious protester who had received a significant head injury to move through the police line to the roadside where they were attempting to reach an ambulance and paramedics.
While we accept that the police have a duty to maintain order and prevent crime, they have a corresponding and equivalent duty to ensure that the right to freedom of assembly is adequately protected. ‘Balance’ is not achieved if the maintenance of order and the prevention of crime is a ‘trump card’ which justifies unnecessary constraint on protest assemblies or the use of disproportionate force.
The correct approach is not to attempt a subjective balancing of protest against law enforcement, but to ensure that the default position is one of facilitation not constraint; that police interventions are made only they are necessary, i.e. where there is a pressing social need; and that those interventions are kept to the minimum necessary for meeting that social need.
What, if anything, do the events at Clapham Common and in Bristol tell us about the propriety of the extension of police powers in the Police, Crime, Sentencing and Courts Bill?
The ‘problem’ of protest is not that police have insufficient powers, as suggested by the Home Secretary: rather we believe that it is that police have powers that are too broadly drawn, and which are not always exercised in accordance with Convention rights.
We do not intend to provide here a detailed analysis of all provisions of the PCSC Bill, many of which we consider to be problematic. We are content to make the general point that Bill contains proposed police powers which are intended to be used to restrict peaceful protest. On this basis we consider that the Bill is not compliant with the obligations placed on government by Article 11 to facilitate peaceful protest, and as such it poses a serious threat to fundamental rights.
The government have argued that existing legislation, including the 1986 Public Order Act, is out of date, and is thus seeking through the PCSC, for example, to extend – and augment – the provisions of the POA applicable to processions to static assemblies. Yet the published rationale indicates that this measure is not intended to address the threat of serious crime or violent disorder, but specifically to place limits on peaceful protest.
The government’s Protest Powers Fact Sheet states such measures are required “specifically to deal with protests where people are not primarily violent or seriously disorderly but, as in this instance,[The 2020 Extinction Rebellion Protests] had an avowed intent to bring policing to its knees and the city to a halt and were prepared to use the methods we all know they did to do that”.28
This reasoning potentially limits and frustrates peaceful protest, where there is a perceived “intent” to cause disruption but not of serious criminality or violence. As we have established above, disruptive protest falls within the scope of Article 11 protections, and some measure of inconvenience must be tolerated if protest is not to lose all substance and meaning.
We are concerned that these proposals enable the Secretary of State to reduce the threshold at which s12 and 14 conditions may be imposed on assemblies and processions, and to restrict protest because it involves the creation of noise or amounts to a broadly defined offence of ‘nuisance’. Aiming such measures at peaceful protest is clearly out of kilter with aims of Article 11.
The government’s argument here is that we must trust the police to use their powers only where they are necessary and proportionate to a legitimate aim. This appears to us to be a laughable prospect.
Netpol has been monitoring protest for over a decade, and in that time we have documented very, very many instances of disproportionate or unnecessary interference with protest. The primary consideration of the police, it seems to us, is not whether constraints on protest are necessary, but rather whether available powers would be useful in preventing crime or maintaining order. This is a much lower threshold, and one which unacceptably limits the exercise of fundamental rights.
The government’s proposals follow the case of Jones & Ors v Commissioner of Police for the Metropolis, in which the Court ruled that conditions imposed on a series of proposed assemblies linked to Extinction Rebellion (XR) were ultra vires. The ruling was, however, limited in its application: there is nothing in this judgment that prevents the police from imposing conditions on an instant assembly under s14 Public Order Act 1986; the issue arose only when the police attempted to impose conditions on a number of potential future assemblies, as this amounted to a de facto ban on certain types of protest over a designated period.
It should be noted that the police already possess very broad powers to intervene in protests where disruption occurs. The police may impose time, manner and place restrictions on assemblies where serious violence, serious damage to property or serious disruption to the community may occur. In this context ‘serious disruption to the community’ has been very broadly defined. We do not consider that there is any justification to widen this further.
Network for Police Monitoring (Netpol)
1 Sunday Times v United Kingdom (No.1) (1979) 2 EHRR 245 
2 Sunday Times v United Kingdom (No.1) (1979) 2 EHRR 245 
4 SAGE/SPI-B Security and Policing Sub-Group: Home Office SAGE Commission on Protest Security & Policing Workstream: 04/05/2020
5 These obligations form the basis of the Charter for Freedom of Assembly Rights, which sets out Netpol’s views on what the public should expect from the policing of protests https://netpol.org/charter/
6Shmushkovych v Ukraine App no. 3276/10 (ECtHR 14 November 2013)
7Christians against Racism and Fascism v the United Kingdom (1980) 21 DR 138
8Kasparov v. Russia (2018) 66 EHRR 21
9Çiloğlu and others v Turkey App no. 73333/01 (ECtHR 6 March 2007)
10Kudrevičius and Others v. Lithuania (2016) 62 EHRR 34
11Cissé v. France, App no. 51346/99 (ECtHR 9 April 2002)
12Oya Ataman v. Turkey, App no. 74552/01 (ECtHR 5 December 2006)
13Lucas v. the United Kingdom, App No. 39013/02 (ECtHR Decision on Admissibility, 18 March 2003)
14Barraco v France, App No. 31684/05 (ECtHR 5 March 2009)
15Kudrevičius and Others v Lithuania (2016) 62 EHRR 34
17Mesut Yildiz and others v Turkey App No. 08157/10 (ECtHR July 18 2017), 27
18Ezelin v France App No 11800/85 (ECtHR 26 April 1991) 
19Kudrevičius and Others v Lithuania 
20Sergey Kuznetsov v. Russia App no. 10877/04 (ECtHR 23 October 2008) 
21In this case the Court found that there had been a violation of Article 11 as state actions had a chilling effect on expression and were not necessary as less intrusive measures had been available.
22Primov and others v Russia App No. 17391/06 (ECtHR 12 June 2014)
23Nurettin Aldemir v Turkey  ECHR 32124/02, 32126/02, 32129/02, 32132/02, 32133/02, 32137/02 and 32138/02 (ECtHR 18 December 2007) 
24See above, Leigh v Commissioner of Police for the Metropolis
25 Eliza Egret, Last night I saw the most violent and disgraceful policing I’ve ever seen in the UK. The Canary 24th March 2021. https://www.thecanary.co/opinion/2021/03/24/last-night-i-saw-the-most-violent-and-disgraceful-policing-ive-ever-seen-in-the-uk/
26 Netpol: Figures reveal scale of Bristol protesters injured by police Apr 14, 2021 https://netpol.org/2021/04/14/figures-reveal-scale-of-bristol-protesters-injured-by-police/