London – May 31 2020: Black Lives Matter protesters march from Trafalgar Square to US Embassy for George Floyd. PHOTO: Ben Thornley / Shutterstock
Netpol’s campaign for greater certainty about the way demonstrations are policed has brought some success, but big gaps remain.

Over two and a half years since it completed a public consultation, the National Police Chiefs Council (NPCC) finally, in April, published the first full version of its new guidance on the policing of demonstrations and public assemblies. This has emerged only because of a Freedom of Information request by our partners at the Article 11 Trust.

Netpol welcomes some of the changes made since the NPCC held its consultation in 2019, which reflects the sustained pressure we have placed on the national body for senior officers and our call for greater clarity about the policing of protests. We have been working on this issue for nearly seven years, ever since the NPCC’s first attempt at offering protest guidance was released way back in August 2015.

Material risk’

The previous 2019 version of the NPCC document – known as Protest Operational Advice – was in our view fundamentally misguided. It sought to reinforce the idea that the police “balance” the rights of protesters and of others by drawing heavily on Article 17 of the European Convention on Human Rights – the “abuse clause” concerned with matters such as hate crime and the destruction of rights by totalitarian regimes. This is intended to prevent the exploitation of different rights set out in the Convention for states’ and individuals’ own interests.

There is no legal basis for using it to restrict the rights to free speech and public assembly and as we pointed out in a detailed submission, this was simply wrong in law.

Thankfully, the new version of the NPCC guidance does finally recognise that Article 17 rarely has any relevance whatsoever to protests and that “even where [freedom of] speech is undoubtedly encouraging hatred based on race, religion or ethnicity, the threshold for invoking Article 17 is very high”.

The HM Inspectorate of Constabulary, Fire & Rescue Services seems to have agreed with us on the NPCC’s misunderstanding of human rights law. In March 2021, its thematic review on “how effectively the police deal with protests” said [page 46] that it found:

problems with the document, particularly concerning some of its legal explanations. This could pose a material risk of commanders failing to fulfil their obligations under human rights law.”

It was this continued risk to protesters that led Netpol to create the Charter for Freedom of Assembly Rights, launched in March last year with the support of over fifty organisations and backed by a petition signed by tens of thousands of people.

Protest Operational Advice

“a benchmark for measuring – and challenging – whether… police forces actually understand and respect the need to both facilitate and protect human rights”.

New benchmarks for campaigners

The authors of the NPCC’s new Protest Operational Advice have obviously listened to human rights experts (including the submission from the Netpol Lawyers Group) and have attempted to address many of the legal inaccuracies in the previous version.

As well as now comprehensively setting out the current case law, this includes a number of particular pieces of advice for local operational commanders that protest organisers and participants can use as a benchmark for measuring – and challenging – whether their police forces actually understand and respect the need to both facilitate and protect human rights.

For example, the guidance makes it clear that rather than make disproportionate blanket presumptions, police officers must remember that:

A peaceful protestor does not cease to enjoy the right to freedom of peaceful assembly as a result of sporadic violence by others in the course of the demonstration… In principle, it is the actions and intentions of the individual seeking to protest that are relevant.

The guidelines tell police that they must not treat everyone participating in a protest or within a social or political movement as collectively culpable for isolated actions that may lead to arrests.

On police conduct, the following advice on excessive force may also serve as a useful measure for campaigners attending protests or monitoring police behaviour in the future:

It is appropriate to emphasise the great importance of ensuring that unnecessary or disproportionate force is avoided when dealing with public protest.

There is an expectation that police officers will not act towards protestors in a way that is unnecessarily aggressive, intimidating, or degrading… Just as with the use of force, unnecessarily confrontational behaviour may have a chilling effect on those who experience, are witness to or learn of such behaviour.

A more detailed comparison of what our Charter for Freedom of Assembly Rights recommends and the closest approximation to it in the Protest Operational Advice is available here.

Significant problems remain

However, significant issues have still not been addressed. There is, for example, no guidance at all about the controversial use of containment or kettling. The failure to recognise that independent legal observers are not participants in a demonstration but human rights defenders is disappointing and open to a potential legal challenge.

There is little recognition, either, that vulnerable protesters, including children, have a right to freedom of assembly that does not disappear because of ‘safeguarding concerns’. Instead, the guidance adopts a paternalistic attitude that any risk they might face comes from other protesters, rather than decisions made by the police themselves.

As the NPCC is currently promoting its new Race Action Plan, there is also surprisingly nothing about preventing the disproportionate targeting of protesters based on race, which was a particular criticism made by Black Lives Matter demonstrators in 2020.

Neither is there any advice on any other protected characteristics, or situations where a protest actively supports the rights of those most at risk of discrimination.

Amid the numerous case law examples cited, the guidance fails to mention Berkman v Russia, arising from a St Petersburg LGBTQ protest, that says [a] positive obligation is of particular importance for persons holding unpopular views or belonging to minorities, because they are more vulnerable to victimisation” (1/12/20, para 46).

Pressure for ‘dialogue’

The new guidance also continues to suggest, wrongly in our view, that protesters’ expectations of the police facilitating their demonstration “may well be reduced if… an opportunity to open dialogue with the police well in advance of a protest event… was not taken”.

Worse still, the guidance implies that pressure to establish communication with an individual or group” is far more about bolstering the case for the “necessity and/or proportionality of subsequent intrusive policing tactics” than about protecting human rights.

It is wrong to link the choices campaigners make to engage in dialogue with the way police decide to facilitate a protest, or “the extent of any necessary restrictions”. This is incompatible with international human rights guidance, for example the Venice Commission in 2020 stated that:

if organizers or participants are unwilling to engage, then this should be accepted and should not, of itself, impact detrimentally on the performance of the state’s human rights obligations in relation to the assembly. Where voluntary dialogue is not possible, the relevant law enforcement bodies must still ensure that their actions are aimed at de-escalating tensions”.

The guidance accepts that “some protest groups have been mistrustful of the police and this has made communication between police and these protestors challenging” but continues to cling to the idea that Police Liaison Teams – intelligence gatherers – have “gone some way to address this”. This is not just untrue – it is almost wilfully delusional.

No consideration of the impact of surveillance

Overall, the NPCC still seems completely unable to see a protest as part of an ongoing political process, rather than a single event.

In 2019 during the NPCC’s consultation, we raised how campaigners’ organisational capacity in advance of a demonstration and behind the scenes are influenced by policing decisions, especially (but not limited to) surveillance.

The Protest Operational Advice says “it should not be assumed that any pro-active gathering of information… will always be regarded as necessary to meet the pressing social need to protect public safety, prevent disorder or crime, or safeguard the rights and freedoms of others”.

However, it also suggests that police should “educate themselves regarding the individuals, groups, and groups within groups” at a protest and places considerable emphasis on treating protests as a ‘threat’ that warrants extensive surveillance activities.

The guidance says, somewhat bizarrely, that in doing so, “attempts should be made to counter any perception that the police are seeking information in advance in order to undermine protest”.

In our view, it is not simply the ‘perception’ that matters as much as actual decisions that undermine the capacity to exercise rights to protests: for example, raids on meeting spaces or buildings associated with a particular campaign, which are used as convenient intelligence-gathering opportunities.

Practical alternative’

The Protest Operational Advice does represent a small step forward. But after years of lobbying, it is far from the kind of clear, accessible benchmark that Netpol and other campaigners have been calling for.

It will undoubtedly help campaigners to know that official guidance now insists police must recognise that “significant weight is attached to an individual’s right to protest in a democratic society”.

The NPCC now also publicly accepts that protests against branches of the state – including, as in Hackney recently, against the police themselves – are of “even greater importance, as this is a fundamental feature, essential in a democratic society”.

However, with a government deeply antagonistic towards anything other than the mildest of protest and a range of new anti-protest laws either enacted or on the way, Netpol will continue to offer the Charter for Freedom of Assembly Rights as a practical alternative to what remains inadequate guidelines.

We will also persist in pressing the National Police Chiefs Council to provide much greater transparency and accountability about the way that protests are policed.