After the conclusion of the official visit of Maina Kiai, the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, to the UK, ARTICLE 19 calls on the UK authorities to improve the protection of the right to protest in the country. We support the conclusions of the Special Rapporteur presented at the end of the visit and urge the authorities to implement them as a matter of priority.
The visit was the follow-up mission to the first country visit carried out by the Special Rapporteur in January 2013. Although the UK Government has made efforts to address some recommendations outlined by the Special Rapporteur in his country Report (May 2013), these fall short of the complex reforms that should have been adopted.
ARTICLE 19 believes that the Government and public authorities, at both state and local levels, must make a serious commitment to reform legislation and practices related to the right to protest, in order to enhance protection of that right, and of human rights more broadly.
ARTICLE 19 believes that the UK Government has not addressed the recommendations which call for adoption of a positive legal framework on the right to protest and freedom of expression, which would enact a crucial shift from a public order focus to a human rights approach.
In particular:
- “Insult” and the public order: The wording of Sections 4A and 5 of the Public Order Act 1986 remains overbroad, and continues to be used to criminalise acts of expression during peaceful protests where there is little or no threat to public order. We welcome the reforms proposed by the Crime and Courts Bill 2012 to remove “insult” from Section 5. However, the remainder of Section 5 will still criminalise “threatening” or “abusive” expression without requiring a showing of intent or actual harm. The provision remains an unnecessary and disproportionate restriction on the right to freedom of expression. We are further concerned that intentional “insult” or “abuse” that only causes “alarm” or “distress” will remain criminal under Section 4A, since these terms are extremely broad and may be interpreted to restrict expression protected by international human rights law. We call for the repeal of Section 5 of the Public Order Act 1986 and the narrowing of section 4A, to safeguard the right to freedom of expression and the right to protest.
- Several provisions in Part 3 of the Police Reform and Social Responsibility Act (2011) remain an issue of concern. We believe that the prohibition on “tents” and other equipment in Parliament Square is in effect absolute, and an indirect attempt to limit the duration of protests without due regard to the “legitimate aim” served under international human rights law and the principles of necessity and proportionality. Moreover, authorisation requirements regarding amplified noise equipment sets an administrative burden that further chills the exercise of the rights to freedom of expression and of peaceful assembly. The overall impact of Part 3 is to undermine the presumption in favour of the right to protest, and indeed the State’s obligation to facilitate that right, in the very heart of the country’s democracy. It is also concerning that the spokesperson to Vladimir Putin cited these provisions in justifying harsh reforms to Russia’s domestic protest laws in a letter to the Telegraph in June 2012. We call on the government to repeal Part 3 of the Act.
- There has been no reform of law related to aggravated trespass, trespassory assemblies and the privatisation of public space (under the provisions of Section 68 and 69 of the Criminal Justice and Public Order Act 1994 and Section 14 A – C to the Public Order Act 1986). ARTICLE 19 believes that private property rights have been unduly applied to deny individuals the enjoyment of their rights in places that are functionally public, and often places where those rights may most effectively be exercised – within sight and sound of the public or the private entities that operate on or control those spaces. Private property owners often enlist the police toensure the suppression of any expression or protest of which they do not approve, and in many cases secure long-term and even indefinite injunctions to prevent protesters returning. We urge the UK to repeal the offence of “aggravated trespass” and offences around “trespassory assemblies” and legislate to strike a more appropriate balance between property rights and the rights to freedom of expression and the right to protest.
- The Anti-Social Behaviour, Crime and Policing Act 2014 allows for the implementation of public space protection orders (PSPOs), which have been used to criminalise protesting in public areas. The use of PSPOs enable local authorities to criminalise actions, including protests, whenever ‘activities carried on in a public place within the authority’s area have had or are likely to have a detrimental effect on the quality of life of those in the locality.’ They have been used unfairly and disproportionately against individuals gathering in public spaces. The requirement only to prove harm ‘on the balance of probabilities’ should be replaced with a requirement ‘necessity’ of the orders to preventing harm (such as when implementing ASBOs). The new powers also include ‘injunctions for the prevention of nuisance and annoyance’, which could be used to prohibit legitimate protest based upon vague and grounds at the discretion of the court. These restrictions could also cover peaceful protesters and demonstrators.
The Special Rapporteur has also raised concerns about the impact of measures aimed at preventing violent and non-violent extremism (PVE) on protection of human rights. As well as vague and overbroad definitions of these terms, ARTICLE 19 argues that the programmes put in place in the UK (e.g. the ‘Prevent’ strategy) open the door to human rights abuses. Under the PVE programme, many activists and protesters have been labelled as “extremist” simply for exercising their human rights. Moreover, it is concerning that these measures – as well as promoting flawed theories of terrorist radicalisation – overwhelmingly target Muslims. This has significant potential to threaten the human rights to equality and freedom from discrimination, the right to privacy, and the freedoms of expression, association, and religion or belief.
ARTICLE 19 continues to be deeply concerned about intelligence gathering, and mass data retention, on protesters lawfully expressing their views or advocating for reforms in various areas. For example:
- John Catt, an 87 year-old protester with no criminal record, has found that there were 66 entries in respect of his political activities on the “National Domestic Extremism Database.” In 2015, the Supreme Court held that the retention was in accordance with the law on the basis that the material is regularly reviewed for deletion according to rational and proportionate criteria contained in the publicly available Code of Conduct and accompanying Guidance. No weight was given to the “chilling effect” of surveillance, which has been recognised in other cases.
- The categorisation as “extremist” of people exercising fundamental rights is entirely illegitimate. The definition of ‘domestic extremism’ remains too broad and allows a conflation of treatment of terrorist organisations and legitimate protest groups, (e.g. the Occupy London movement is listed as a terrorist group, alongside Al Qaida). We agree with the Special Rapporteur that the relevant authorities should ‘Delete any records on peaceful protestors on the National Domestic Extremism Database and other intelligence databases’.
- Further, despite the fact that the UK introduced the Protection of Freedoms Act 2012, which purported to control the use and retention of DNA information and fingerprints by police taken from suspects, but in reality simply authorises the collection of such information. ARTICLE 19 supports the recommendation that the necessity threshold for collecting information related to protests must be high, given the intrusiveness of such methods.
- Some police authorities have continued to abuse the power to request (but not compel) protesters provide personal details under Section 60 of the Public Order Act 1986, by employing intimidating tactics beyond their lawful powers. The Government has no legitimate interest in routinely collecting and retaining information on the peaceful and lawful activities of political activists. We urge the Government to stop this practice immediately, and to end the abuse of Section 60 powers.
ARTICLE 19 is further concerned that a number of provisions in the Investigatory Powers Bill 2016 (currently in discussion) are intrinsically disproportionate in their scope and will have a significant chilling effect on human rights, including the right to protest. For example, the Bill introduces powers for the Secretary of State to designate ‘thematic warrants,’ which mandate equipment interference or the interception of communications related to individuals or protest groups. Thematic warrants could also be used to surveil peaceful protesting, where s88 Thematic Warrant powers, proposed in the Investigatory powers Bill, could be used in the context of protest policing to extend surveillance activities to any individual associated with a protest group. The warrants refer to the individuals themselves engaging in (possibly low-level) criminal activity, but also to all individuals believed to share a ‘common purpose’ with them’ (as defined by s90(2) of the Bill), which could result in disproportionate targeting of protesters.
ARTICLE 19 finds the reforms related to abuses by embedded undercover police officers insufficient. Following the publication of the actions of ‘Spy Cops’ such as Mark Kennedy and others, an HMIC Report and a Judicial Inquiry into Undercover Policing were announced in 2014 and 2015 respectively. MPs had been reluctant to reveal the names of undercover police officers or further details on the investigations. The Metropolitan Police Service maintain a ‘neither confirm nor deny’ principle which makes it difficult for protestors who were ‘spied upon’ to know whether his or her complaint in relation to an undercover officer has been upheld, as well as further damaging the public confidence in the police.
The abuses by undercover police officers embedded in peaceful political groups, including the case of Mark Kennedy, are clear violations of fundamental rights of protesters who were targeted. We believe that any proposals to reform the system should be in line with the 2013 Special Rapporteur’s Report, which contends that clear democratic systems of control for undercover policing must be put in place — through consistent legislation, regulations and policies — and these must explicitly incorporate necessity and proportionality tests, and must set out clearly how risks of intrusion are to be assessed and managed.
Concluding his visit to the UK at a press conference on 21 April, Special Rapporteur observed that the UK takes seriously its role as one of the global leaders in human rights protection, but that the world takes note when it moves to restrict space for democracy and human rights. ARTICLE 19 urges the UK Government to step up in the reforms related to the right to freedom of expression and the right to protest to better safeguard fundamental human rights.