Why we need proper legal protections for our right to protest

7 September, 2020 — Netpol

A Charter for Freedom of Assembly Rights

In Britain, there are laws that are supposed to protect our civil liberties – specifically the Human Rights Act 1998, which has often proven extremely effective as a means of challenging in court injustices by the state that violates our rights. This may go a long way to explaining why the governing Conservative Party has repeatedly threatened to scrap it since 2015.

On a swathe of issues, however, there is little evidence that the Human Rights Act has created a cultural shift within state institutions that has strengthened beliefs,  behaviours or outcomes that genuinely respect human rights. The legislation’s legal protections have been far less successful in providing an ‘invisible safety net’ that prevents rights violations from ever happening in the first place.

The Act has been in place for 22 years: progress may take time, but to borrow from the great African-American writer and activist James Baldwin, how much time do they want us to give?

The Home Office, in particular, has shown little indication that their legal duty to protect domestic human rights is anything other a box that needs ticking. On counter-terrorism and in Netpol’s area of expertise, the right to freedom of assembly, we have seen public bodies with the most wide-ranging powers to interfere with our rights – Britain’s police – make the kind of decisions that are rightly condemned when they are made by the internal security apparatus of other states. Challenges may have been won in court, but no senior officers’ careers are ever affected and there is never any contrition or self-reflection

For years, civil liberties organisations like ours have complained about infringements of the right to protest, from the disproportionate use of force and the misuse of police powers to the secretive, unaccountable expansion of mass surveillance. Often it has been the groups we work with who participate in civil disobedience or direct action campaigns, or campaigners from racialised communities, who have experience unwarranted interference in their right to freedom of assembly the most.

Rather than continuing to ask the police and other authorities for transparency and getting nowhere, perhaps it’s time we started offering solutions ourselves.

We have seen a narrowing, too, of how the police interpret “peaceful” protest, with even minor breaches of the law increasingly treated as invalidating the collective legitimacy of the protesters’ demands – and providing yet another justification for even more surveillance.

This needs to change. We need meaningful legal protections and we need the state to recognise the harm that is done by restricting and disrupting protests and spying on protest organisers.

It’s not as though we need to start from scratch. The British government has already accepted international guidelines on the protection of the right to freedom of assembly from monitoring bodies and experts such as OSCE, the European Commission For Democracy Through Law (the Venice Commission) and the UN Human Rights Committee. It’s just that Britain seems to think these recommendations apply only to authoritarian regimes abroad, rather than its own oppressive policing at home.

In our work over many years with the anti-fracking movement, we tried asking the National Police Chiefs Council to come up with proper guidance on the policing of protests. After constant delays, a draft document appeared that was fundamentally misguided and nearly a year on, there has been no further progress. We also tried appealing to Police & Crime Commissioners to seek clarity from senior officers about the direction, tone and proportionality of the policing of protests in their areas, but they were simply not interested.

Rather than continuing to ask the police and other authorities for transparency and getting nowhere, perhaps it’s time we started offering solutions ourselves.

That’s why we are now aiming to crowdsource the knowledge and experience of campaigning groups to find out what changes they want to see that protect the right to protest and bring this together into a Charter for Freedom of Assembly Rights.

At a time when the Human Rights Act is under attack, it isn’t enough to defend what we know works well in some ways but is already too often sidelined by the state. We need to start demanding more. That is what we hope the proposed Charter will offer.

Netpol plans to contact a wide range of campaigning organisations over the coming month to seek their opinions and will update in early October

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