The International Human Rights Framework on the Right of Peaceful Assembly
The United Kingdom is a state party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
The United Kingdom is not a state party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the state has violated their human rights as protected under the Covenant.
At regional level, the United Kingdom is a state party to the 1950 European Convention on Human Rights. Article 11 governs freedom of assembly and association:
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
The Domestic Legal Framework on the Right of Peaceful Assembly
The United Kingdom does not have a single written constitution, "but an unwritten one formed of Acts of Parliament, court judgments and conventions."Robert Blackburn, "Britain's unwritten constitution", British Library, 13 March 2015.
The 1998 Human Rights Act gives domestic effect to the United Kingdom's obligations under the 1950 European Convention on Human Rights, including the right of peaceful assembly.
Under Section 11 of the 1986 Public Order Act, written notice must be given six days in advance of any public procession intended:
(a) to demonstrate support for or opposition to the views or actions of any person or body of persons,
(b) to publicise a cause or campaign, or
(c) to mark or commemorate an event,
unless it is not reasonably practicable to give any advance notice of the procession.
In order to hold protests in Parliament Square Garden and in Trafalgar Square in London, however, organisers must seek permission from the Greater London Authority. The Greater London Authority instructs that
Applications cannot be made more than 6 months in advance; organisers may not have any more than one application, for Parliament Square Gardens or Trafalgar Square, pending in the same period. Applications operate on a first come, first served basis and should be submitted at least 7 days before the activity but … the [Greater London Authority] may take up to 21 days from receipt to determine an application …. Only one public meeting will be allowed per day, and Trafalgar Square and Parliament Square Gardens cannot be booked for the same organisation on the same day.
Furthermore, “activity duration should be no longer than 3 hours and during daylight hours”.
In commenting on these provisions in his 2017 report, the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association stressed that
freedom of peaceful assembly is a right and not a privilege and as such its exercise should not be subject to prior authorization by the authorities. State authorities may put in place a system of prior notification, where the objective is to allow State authorities an opportunity to facilitate the exercise of the right, to take measures to protect public safety and/or public order and to protect the rights and freedoms of others. Any notification procedure should not function as a de facto request for authorization or as a basis for content-based regulation."Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association on his follow-up mission to the United Kingdom of Great Britain and Northern Ireland", UN doc. A/HRC/35/28/Add.1, 8 June 2017.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the state and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
At the end of February 2019, the UK Policing Minister reiterated before Parliament that in the United Kingdom "any use of force by police officers must be lawful, proportionate and reasonable in the circumstances".
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
In Scottish law, a police officer is not allowed to discharge a firearm against a person unless the officer has reasonable grounds for believing that the person is committing, or about to commit, an action likely to endanger the life or cause serious injury to the officer or any other person, and there is no other way to prevent the danger.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
In its 2015 Concluding Observations on the United Kingdom, the Human Rights Committee did not address the right of peaceful assembly.
Austin v. United Kingdom (2012)
In its judgment in this case, the Grand Chamber of the European Court of Human Rights considered the legality of the technique of containment of demonstrators in a closed cordon, better known as kettling. The Court adjudged that the cordon, which lasted for up to seven hours, did not constitute an arbitrary deprivation of liberty within Article 5 of the European Convention of Human Rights. The case concerned a challenge to the decision by the Metropolitan Police Service to kettle a group of several thousand people at Oxford Circus in London during May Day protests in 2001. The police, perceiving a risk of violence and disorder (which did occur), imposed a cordon under the common-law power to "keep the peace".
The applicants to the European Court – one protester and three innocent bystanders caught up in the containment – lost their case in the House of Lords in 2009. According to the European Court,
the police must be afforded a degree of discretion in taking operational decisions. Such decisions are almost always complicated and the police, who have access to information and intelligence not available to the general public, will usually be in the best position to make them.... Police forces in the Contracting States face new challenges, perhaps unforeseen when the Convention was drafted, and have developed new policing techniques to deal with them, including containment or “kettling”. Article 5 cannot be interpreted in such a way as to make it impracticable for the police to fulfil their duties of maintaining order and protecting the public, provided that they comply with the underlying principle of Article 5, which is to protect the individual from arbitrariness.ECtHR, Austin and Others v. UK, Judgment (Grand Chamber), 15 March 2012, para. 56.
The Court also underlined that
measures of crowd control should not be used by the national authorities directly or indirectly to stifle or discourage protest, given the fundamental importance of freedom of expression and assembly in all democratic societies. Had it not remained necessary for the police to impose and maintain the cordon in order to prevent serious injury or damage, the “type” of the measure would have been different, and its coercive and restrictive nature might have been sufficient to bring it within Article 5.ECtHR, Austin and Others v. UK, Judgment, para. 68.
Views of Civil Society
According to CIVICUS:
The right to peaceful assembly is guaranteed under domestic, regional, and international human rights standards. Public demonstrations are a routine part of public life. Police forces in the UK periodically employ violent tactics against protestors, including containment or ‘kettling’ tactics which may undermine the right to freedom of peaceful assembly. There is an ongoing public enquiry into the use of undercover policing tactics to infiltrate and exert control over assemblies and protest movements, which the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association has described as “not justifiable”.