Input to Special Rapporteur on freedom of assembly and association - BLM protests

PPR response to the Call for Inputs from the Special Rapporteur on the rights to freedom of peaceful assembly and of association (for his report on the protection of human rights in the context of peaceful protests during crisis situations, to be presented at the 50th session of the Human Rights Council) 27 July 2021 This input is in the context of Call for Inputs area 6 (health crises, eg pandemics) and area 9 (crises of poverty and inequality)1.

The relevant domestic legislation is the UK's Human Rights Act (1998). Article 11, on freedom of assembly and association, provides that: 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

1 Per Call for Inputs at https://www.ohchr.org/Documents/Issues/FAssociation/CFI-report50th-HRC-session/Crisis-Situations-Questionnaire-EN.pdf

the armed forces, of the police or of the administration of the State.2 The right to free assembly is critical to the operation of a democratic society. While the above sets out the circumstances in which restrictions may legitimately be placed on the exercise of this right, any such restriction must be lawful, necessary in a democratic society, have a legitimate aim and must be proportionate.

In addition, Article 14 of the 1998 Human Rights Act provides that: the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.3 Article 14 of the Human Rights Act is not a standalone right and attaches itself to other rights within the Convention. Although it could be argued that some restrictions on Article 11 freedoms could lawfully be applied in the interest of health during the Covid-19 pandemic, Article 14 would require that in no case could they be applied in a discriminatory, inconsistent or disproportionate manner.

The events set out below raise concerns in this regard. They are particularly worrying in light of the poorer enjoyment of rights by black and minority ethnic communities in Northern Ireland: like elsewhere in the UK, as documented extensively in the Covid-19 Marmot Review4 amongst other sources, these communities face endemic social and economic inequalities that have been exacerbated by the impact of the pandemic.

Specifically in the area of policing, in Northern Ireland recent press investigations have highlighted the disproportionate levels of fines imposed by the Police Service of Northern Ireland 2 https://www.legislation.gov.uk/ukpga/1998/42/schedule/1 3 Ibid.

4 https://www.instituteofhealthequity.org/about-our-work/latest-updates-from-theinstitute/build-back-fairer

(PSNI) against black, Asian or minority ethnic people for breaches of Covid-19 restrictions. 4.2% of all Covid-19 fines in Northern Ireland went to people from black and minority ethnic backgrounds, though they make up only 1.8% of the population. Black people received 1.84% of the total fines where ethnicity was recorded, despite making up just 0.2% of the population.5 Similar evidence has emerged with regard to the recent use of 'stop and search' policing powers against people from ethnic minority backgrounds here: according to PSNI figures, people of black, Asian and minority ethnic backgrounds made up 4.1% of the total stops in 2020, despite again only making up around 1.8% of the population.6 Travellers were the group most affected.

Specific areas of concern with regard to free assembly here are detailed below.

1. Inconsistent and disproportionate policing of Black Lives Matter protests in Belfast and Derry, Northern Ireland, June 2020 In the wake of the killing by police of George Floyd in Minneapolis, USA, in June 2020 up to 2,000 people7 took part in orderly, socially distanced, Black Lives Matter (BLM) protests in both Belfast and Derry in Northern Ireland 8. Despite the fact that organisers of the protests were recognised to have taken "genuine steps in the planning the event to ensure social distancing"9, officers of the Police Service of Northern Ireland (PSNI) intervened in the events and ultimately served cautions and fixed penalty notice fines on a number of organisers and 5 https://www.thedetail.tv/articles/disproportionate-covid-19-fines-black-people-northern-ireland? utm_source=mailinglist&utm_medium=email&utm_campaign=864-covid-19-fines-disproportionately-issued 6 https://www.thedetail.tv/articles/chief-constable-addresses-disproportionate-stop-andsearch-and-covid-19-fines-for-bame-people? utm_source=mailinglist&utm_medium=email&utm_campaign=933-chief-constableaddresses-disproportiona 7 https://www.policeombudsman.org/PONI/files/85/858a4b0b-9b99-4921-b9475fae248ba683.pdf p. 78.

8 https://www.bbc.co.uk/news/uk-northern-ireland-52950934; https://www.belfasttelegraph.co.uk/news/northern-ireland/black-lives-matter-protestersin-northern-ireland-prepared-to-fight-fixed-fines-over-rallies-during-coronavirus-lockdown39266958.html; https://www.belfastlive.co.uk/news/belfast-news/black-lives-matterprotesters-fined-18375897 9 https://www.nipolicingboard.org.uk/sites/nipb/files/publications/report-on-the-thematicreview-of-the-policing-responser-to-covid-19.PDF p. 43.

protestors -- something they had not done in other instances of public gatherings in the days preceding the BLM demonstrations.

Protestors and civil society sources expressed concern at both the manner of policing and the levelling of fines 10.

In November 2020 a report by the Northern Ireland Policing Board examined allegations that there had been a "lack of consistency" between the PSNI's policing of other gatherings (at funerals or on beaches, for instance) and its handling of the BLM protests, and that black and minority ethnic protesters had been "subject to disproportionate policing" 11.

The Policing Board found that "following the policing of such events, it was apparent that public confidence had been impacted upon because of the perception that the policing of events differed"12. It further concluded that "the [PSNI's] approach sent the wrong message to protesters and damaged the reputation of the PSNI and the confidence of some members of the public. Whatever the rights and wrongs of going ahead with the protests and the difficulty of social distancing given the transmission rates for the virus at the time, this approach was not lawful" 13.

In December 2020, a report by the Police Ombudsman found that "the overriding police objective for the 6th June 2020 ‘Black Lives Matter’ protests was to have the events cancelled rather than ensuring the protests were policed proportionately"14 and that the policing of the BLM protests and a subsequent 'Protect Our Monuments' event were "inconsistent"15. The Ombudsman questioned the validity of the Fixed Penalty Notices issued16 and found that the PSNI's failure to constructively engage with the black, Asian and minority ethnic communities involved "exposed an historic gap in strategic relationships with these communities". 17 The report continued, "it is my view that historic PSNI passivity in 10 https://caj.org.uk/wp-content/uploads/2020/11/Briefing-note-COVID-19-NI-RegulationsFinal-June-2020.pdf 11 NI Policing Board, op. cit. p. 43.

12 Ibid. p. 8.

13 Ibid., p. 51.

14 Op. cit., Police Ombudsman report, p. 79.

15 Ibid., p. 81.

16 Ibid., p. 83.

17 Ibid. p. 84.

establishing strategic relationships with Black, Asian and Minority Ethnic groups in Northern Ireland manifested itself in an inability to engage effectively with sections of those communities at a time of crisis immediately before and after the ‘Black Lives Matter’ protests on 6th June 2020." 18 In the wake of the Ombudsman's report, in January 2021 BLM protestors sued to recover fines charged plus damages. The PSNI chief constable ultimately apologised for the service's handing of the demonstrations in Belfast and Derry, but the fines and cautions against protestors were reported to remain in force19 until June 2021, when the Public Prosecution Service finally announced no action would be taken against them 20. This resolution was welcomed by NI Legislative Assembly members 21 and others.

Responding to the PPS decision, the PSNI Deputy Chief Constable told members of the press that the force's policing of the protests had "unintentionally damaged the confidence and trust of the Black, Asian and Minority Ethnic Community" 22.

Separately, the Police Ombudsman announced a related investigation into a Derry protestor's complaint about policing of the BLM protests23.

2. Impact of bill on Police, Crime and Sentencing currently before the House of Lords24 PPR would also like to draw the Special Rapporteur’s attention to the Police, Crime and Sentencing Bill, currently before the House of Lords. While policing is a devolved matter in Northern Ireland and this bill will not be in vigour here, it sets a disturbing precedent for curbing fundamental freedoms in the United Kingdom. The bill contains draconian provisions that 18 Ibid. p. 86.

19 https://www.theguardian.com/uk-news/2020/dec/22/n-ireland-police-chief-apologisesover-handling-of-black-lives-matters-protests 20 https://www.irishtimes.com/news/ireland/irish-news/black-lives-matter-ni-protesterssalute-decision-not-to-prosecute-1.4585716 21 https://www.theyworkforyou.com/ni/?id=2021-06-07.2.1&s=social+housing#g2.13 22 https://www.bbc.co.uk/news/uk-northern-ireland-57330499. Also https://www.belfastlive.co.uk/news/belfast-news/blm-protesters-not-prosecuted-covid20724132? utm_source=belfast_live_newsletter&utm_campaign=daily_newsletter2&utm_medium=e mail; https://www.belfasttelegraph.co.uk/news/northern-ireland/black-lives-matter-niprotesters-will-not-face-prosecution-over-alleged-covid-breaches-pps-40495087.html 23 https://www.policeombudsman.org/Media-Releases/2021/Investigation-to-assessconsistency-of-police-enga 24 https://bills.parliament.uk/bills/2839

would seriously harm people's ability to exercise their right to free assembly and which call into question the very essence of the right, for example the provisions on ‘nuisance’ and ‘noise.’

Faith groups, unions and civil society groups have all expressed alarm at the government's move to quietly include such proposals into draft legislation which it is then trying to push through parliament -- particularly at a time public focus is understandably elsewhere, given Covid-19 and its fallout 25.

Following this example would seriously harm the exercise of free assembly here, and would inevitably further erode public trust in policing.

25 https://www.theguardian.com/uk-news/2021/mar/14/new-anti-protest-bill-raisesprofound-concern-human-rights-groups-say? utm_term=32fe9172488a788fcfbf2a7dca2444bb&utm_campaign=GuardianTodayUK&ut m_source=esp&utm_medium=Email&CMP=GTUK_email