United Nations Special Rapporteur Maina Kiai urged today the British Government to review a number of legal and policing measures affecting the rights to freedom of peaceful assembly and of association in England and Wales, Northern Ireland and Scotland.
“No matter how old a democracy, there is always space for continued improvements,” said the first independent expert charged by the UN Human Rights Council to monitor and promote the realization of the rights to freedom of peaceful assembly and of association worldwide, at the end of his official mission* to the United Kingdom.
England and Wales (peaceful assembly)
“I am deeply concerned with the use of embedded undercover police officers in groups that are non-violent and which exercise their democratic rights to protest and take peaceful direct action,” the Special Rapporteur noted, recalling the case of Mark Kennedy and other undercover officers. “The duration of this infiltration, and the resultant trauma and suspicion it has caused, are unacceptable in a democracy.”
Mr. Kiai called for a judge-led public enquiry into this and other related cases, “with a view to giving voice to victims, especially women, who were deliberately deceived by their own government, and paving the way for reparations.”
“These cases are as damaging as the ‘phone-hacking’ matters which were the subject of a judge-led public inquiry, and it is crucial that similar practices by the state, in relation to groups which are simply implementing their civic duty to peacefully campaign for change, be subject to an independent investigation,” he stressed.
The rights expert drew attention to Article 13 of the Public Order Act, which allows for the prohibition of marches, as in the case of the recent blanket ban on marches of 30 days in parts of London to prevent the English Defence League, a xenophobic group, from protesting. “While I acknowledge that such a measure has only been used twice in 30 years, I firmly believe that it is intrinsically disproportionate and discriminatory as it affects all citizens wanting to exercise their right to freedom of peacefully assembly,” he noted.
“I am further concerned about the police practice of containment or ‘kettling’ which has been used in London in the past years,” Mr. Kiai said, stressing that peaceful protestors, as well as innocent by-standers – such as tourists – have been held for long hours with no access to water or sanitary facilities. “I believe that this practice is detrimental to the exercise of the right to freedom of peaceful assembly due to its indiscriminate and disproportionate nature.”
The Special Rapporteur warned that ‘kettling’ is apparently being used for intelligence gathering purposes, by compelling those kettled to disclose their name and address as they leave the kettle, increasing the deterrence effect it has on potential protesters.
Regarding ‘domestic extremism,’ Mr. Kiai warned that its definition is too broad. He noted that peaceful protesters fear they could easily be grouped in this category, along with real extremists. “Some police officials, while ostensibly differentiating between extremist groups and others that use direct action, often conflate them, especially when the protest groups are horizontal,” he said.
Northern Ireland (peaceful assembly)
“The current ‘flag protests’ have significantly increased tensions between the communities, and I urge leaders from both sides to dialogue genuinely,” Mr. Kiai said. “Where such dialogue has taken place, there has been progress as Derry Londonderry exemplifies, and I commend the work of civil society organizations working on inter-community relations and human rights.”
However, the human rights expert highlighted that without a political resolution of the tensions and divisions in Northern Ireland, “parades have become a prime location for these tensions and divisions, and all indications are that the forthcoming parading season will be a difficult one.”
“The need for an independent body such as the Parades Commission is undisputed,” the expert stressed, noting however that unionists view it as biased against them for imposing restrictions and limits to what they believe is their absolute freedom to march. “Yet article 20 of the International Covenant on Civil and Political Rights does impose restrictions on rights. And this is especially poignant given the bloody history of Northern Ireland,” Mr. Kiai underscored.
Scotland (peaceful assembly)
“Unlike the situation in Northern Ireland, where a 28-day notification procedure may be necessary because of the contentious nature of some parades, I found little justification for a similar period of notification in Scotland,” he said.
“I was made aware that cost recovery measures are imposed on parade organisers by some local authorities, a situation that I find troubling,” the expert noted. “Cost recovery measures place an unjustifiable burden on parade organisers and have the effect of unduly restricting the exercise of peaceful assembly.”
Freedom of association
“In the context of the fight against terrorism, a number of organisations have been proscribed while there was reportedly no proof that these organisations had been active in terrorist activities, as stressed by the Independent Reviewer for Terrorist Legislation,” Mr. Kiai noted. “Such measures have had a deterrent impact on communities (such as Tamil, Kurdish or Baloch) which have on occasion been afraid of expressing themselves publicly.”
With regard to trade unions, the expert found undue constraints on the right to strike as solidarity strikes have not been allowed since 1982. “It is time to repeal this law and bring the UK into conformity with human rights law,” he said.
The Special Rapporteur was also appalled to hear about the existence of a blacklist of union members in the construction industry, with no sanctions allegedly taken against those who benefitted from the list. “It is crucial that strong actions be taken against the making and using of such lists as a deterrence,” he underscored.
“The United Kingdom, like much of the world, is going through some tough economic challenges that will undoubtedly cause dislocation and discontent. It is in such difficult times, with angry and frustrated citizens, that the respect for freedom of peaceful assembly must be at its highest,” he noted.
“To quote Martin Luther King, ‘the ultimate measure of a man [country] is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy,’ Mr. Kiai said. “That is the challenge for the United Kingdom in these times.”
During his ten-day visit to the UK, the expert went to London, Belfast and Edinburgh where he met senior officials, representatives of the legislature, human rights commissions and other independent monitoring institutions, and civil society.
A final report on the visit will be presented by the Special Rapporteur to the Human Rights Council during its 23rd session (27 May to 14 June 2013). (Update: It is now available here)
The full press release is available in English via OHCHR.