1 July 2021 — NetPol

Protester at a Black Lives Matter protest in London in 2020. Photo: Shutterstock

An Inquiry report published today by the All Party Parliamentary Group on Democracy and the Constitution has endorsed the demand – by local and national organisations and tens of thousands of members of the public who have supported Netpol’s Charter for Freedom of Assembly Rights – for clear guidelines on the way protests are policing.

The report calls for an amendment to the government’s Police, Crime Sentencing and Courts Bill that would create a new statutory “Code for the policing of protest”. This code would “set out the how relevant police powers must be used and relevant police duties discharged in accordance with both the domestic law and international law obligations” and would include both “the duty to facilitate peaceful protest” and “the duty to refrain from interfering with peaceful protest”.

This recommendation offers little detail on what this Code should include but this is the Charter for Freedom of Assembly Rights in all but name. It is a strong endorsement for the human rights based approach that Netpol has advocated for many years.

If adopted, the drafting of a Code would not need to start from scratch: like Netpol in our consultation on the Charter, the government can draw upon existing international guidelines on the protection of the right to freedom of assembly that it has already accepted. This is what makes this a much stronger proposal than the ‘statutory right to protest’ recently recommended by the Joint Committee on Human Rights, which risks becoming meaningless without explicit guidelines on the practicalities of how protests are policed.

…this is the Charter for Freedom of Assembly Rights in all but name. It is a strong endorsement for the human rights based approach that Netpol has advocated for many years.

Fundamentally, however, this is about changing protest policing so that it no longer automatically starts from what the Inquiry has described as an “assumption of illegality” and “insufficient avenues of accountability”. The need to oblige the police to properly justify the use of their extensive powers is recognised by the recommendation that “any person or organisation exercising a power or duty which relates to protest or public order must act in accordance with the Code”.

Killing the Bill

Today’s Inquiry report is also damning in its criticism of the whole of Part 3 of the Police, Crime Sentencing and Courts Bill covering expanded police powers to restrict protests, saying that “substantially broadening the powers available to police… correspondingly increases the potential for abuse”.

We wholeheartedly agree that the Bill’s flaws “could not be cured by merely amending the relevant clauses”. The Inquiry report says it has “no option but to recommend the wholesale removal of the clauses in the bill which give the police or government coercive powers over peaceful protest”.

Demanding transparency

The report quotes positively and at length from Dr Val Aston, who led on preparing Netpol’s submission to the Inquiry and who gave oral evidence. Val highlighted how it was “extraordinarily difficult to get data from police relating to protest actions. Trying to find out even basic data about police strategy or actions is enormously difficult. Police do not keep good data about how protests policed so very difficult to evaluate”.

This was an issue too for the Joint Committee for Human Rights, which last week called for the National Police Chiefs Council and local forces to begin collecting data on the imposition of conditions and to hold this on a central database that is “easily accessible to the public.”

Netpol continues to argue that this must go further with the National Police Chiefs Council embracing the idea of a “duty of candour” by also gathering, compiling and releasing accessible and transparent data on the number of protest arrests, and on the use of force at protests.

A Protest Commission?

Finally, the Inquiry report says that as a result of the “tension between the roles of imposing restrictions and enforcing those restrictions”, it recommends a government consultation of a new Protest Commission “with the power to determine or advise on what restrictions can be placed on protests and what actions police must take to facilitate them”. The model suggested for this is the Independent Parades Commission in the north of Ireland.

There are significant potential problems about such an approach. To begin with, the tension the Parades Commission exists to address is not simply between the police and demonstrators but between the expectations of different communities arising from the unique circumstances of a sectarian civil war where the Royal Ulster Constabulary very clearly discriminated against the Nationalist minority.

The Commission was created to resolve the particular issue of processions often framed as ‘cultural’ rather than protests and to bolster the impression that the police had genuinely changed. It did so by shifting the burden for contentious decisions about restrictions on certain marches (notably Drumcree in Portadown) to a separate body.

Moreover, what constitutes a protest means a range of activities far wider than a “parade”. Even when applied to A-to-B marches, which are rarely the kind of protests that raise the biggest concerns about protecting human rights compared to civil disobedience or direct action, there are numerous aspects of the Independent Parades Commission’s activities that could make matters worse.

For example, its practice of taking into account agreements from protest organisers, on the general behaviour of participants and on cooperation with the police, when deciding whether to impose conditions on a public procession risks becoming another obstacle for the exercise of right to freedom of assembly. That’s why this is a recommendation that needs far greater consideration.

The ‘Inquiry into the Protection of Constitutional Rights at the Clapham Common Vigil and Bristol Protests in March 2021’ heard evidence in April and May. Its report is available here.