For years, Netpol has highlighted the gap between what campaigners expect their rights to freedom of assembly, as set out in the Human Rights Act, to mean and what tends to happen in practice.
Our campaigning has focused in particular on attempts by the government and the police to deliberately alienate the wider public from protests, by labelling campaigners’ demands as “extremist”. This in turn has been used to justify increasingly intrusive surveillance, more aggressive police tactics and more arrests – restricting protesters further from exercising their rights to freedom of assembly and association.
We have had a number of important victories: in 2019, we pushed the Home Office and other government departments to confirm they were abandoning the highly subjective, politically-loaded “domestic extremists” label and in 2020, we have secured the same commitment from the police.
There are some indications too that another of Netpol’s key demands – the complete separation of public order policing from the policing of terrorism threats – is finally underway.
However, despite repeatedly called on the police to properly set out what proportionately “facilitating” protests in Britain actually means, they have repeatedly failed to do so.
A new Charter for Freedom of Assembly Rights
Rather than continuing to ask the police and other authorities for greater transparency and getting nowhere, we think it’s time we collectively started offering some solutions of our own.
Legislation is often very effective at challenging violations of our rights in court after they occur but has been much less successful in preventing them in the first place.
There is no ‘invisible safety net’ until state institutions like the police genuinely respect our human rights. However, this political and cultural shift has simply never happened, even though 22 years have passed since the Human Rights Act became law.
For the last decade, successive governments have been increasingly hostile towards protests. This has been matched by the way the police have interpreted “peaceful” protest so that even minor breaches of the law are treated as invalidating the collective legitimacy of protesters’ demands, justifying even more aggressive tactics and more surveillance.
This has to change – but if we have to keep waiting for a shift to take place, we may wait forever.
That’s why Netpol is now aiming to crowd-source a new Charter for Freedom of Assembly Rights, calling for on the government and police to say whether they will endorse it – and if not, why not?
Following a survey of campaigning groups in October, we produced a draft Charter (see below). We are now consulting with experts in protest law, particularly the solicitors and barristers with years of experience defending campaigners following arrests at protests around Britain.
We aim to launch the final version of the Charter shortly, along with detailed guidance based on Britain’s national and international human rights commitments.
The draft Charter for Freedom of Assembly Rights
Public assemblies need not only facilitation, but also protection
The police must treat both the organising of and participation in assemblies expressing a political message as enjoying a heightened level of protection and refrain from adopting vaguely defined “public order” justifications to limit the right to protest.
Public assemblies need protection based on equality and non-discrimination
The police must uphold the general principle that human rights are enjoyed equally by all individuals and without discrimination. This means the policing of assemblies must not discriminate against organisers and participants on the basis of protected characteristics (such as “race” or sexual identity) or because an assembly actively supports the rights of those most at risk of discrimination.
Potential disruption is not an automatic excuse for denying protection for assemblies
All public assemblies involve some level of disruption. The police must treat street closures, redirecting traffic or preventing interference from other members of the public, private security or counter-demonstrators as necessary measures to protect participation in assemblies, rather than an excuse to limit, disperse or curtail a protest.
This means restrictions imposed for the protection of “the rights of others” are treated as exceptional, requiring detailed justification and the police must not limit protests simply because of their frequency.
The use of civil disobedience and direct action tactics are not an automatic excuse for denying protection for assemblies
The police must not treat collective civil disobedience and direct action that involves disruption, non-cooperation or minor breaches of domestic law as automatically “violent” and thus no longer deserving the protection of laws on the rights to assembly. This means accepting that blanket restrictions are presumptively disproportionate.
The use of police powers to collectively restrict the right to freedom of assembly is only justifiable in exceptional circumstances
The police must refrain from the indiscriminate or punitive use of mass arrests. or containment (kettling) powers and use powers to disperse a protest only in exceptional circumstances. This includes the presumption of generally leaving assemblies to end by themselves without strict limits on duration.
Although public assemblies are collective activities, protesters are individually rather than collectively responsible for their actions
The police 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 or treat everyone as collectively tainted by violence against them, either from counter-demonstrators or the police themselves.
Choosing to take part in a public assembly is not an invitation to surveillance and denial of privacy
The police must refrain from treating privacy as irrelevant to assembly rights simply because protests take place in public. This means strict limitations and genuine safeguards on the use of surveillance tools to track individuals organising or taking part in protests, including police video recordings, facial recognition, surveillance of social media sites used by campaigners and identification of a person’s whereabouts through location tracking (to establish attendance at a demonstration).
These safeguards must include strict limits on the retention of personal data in order to profile campaigners and, to enable transparency and accountability, a presumption of individual access to any personal data held by the police relating to the organising or participation in assemblies.
Organisers of public assemblies, not the police, must decide their level of communication and dialogue
Whilst the police may seek to establish communication and dialogue with organisers before or during a protest, they must refrain from requiring such engagement or using a reluctance to communicate as an indicator that a protest no longer deserves the protection of laws on the rights to assembly.
Independent monitoring of the policing of protests is essential for defending the right to organise and participate in public assemblies
The police must ensure that independent monitoring of protests is treated as particularly important to the full enjoyment of assembly rights and ensure that even if a protest is declared unlawful, the right to monitor the actions of the police is not restricted.
Imposing financial burdens on organisers restricts the right to freedom of assembly
The police must refrain from imposing on organisers or participants in assemblies a requirement to contribute to the cost of policing, security, medical support or street cleaning as a condition for restricting the right to protest.
The police have a particular duty to protect the rights of vulnerable or disabled people wishing to exercise their rights to freedom of assembly
The presumption that political assemblies enjoy a heightened level of protection means that police must treat potentially vulnerable participants, such as children or people with disabilities, with particular care and refrain from using their vulnerability as a justification for restricting their rights to take part in a protest.
It takes time and energy to defend our right to freely assemble in public without facing the threat of arrest or harassment from the police – and it takes the support of people like you.