The right to peaceful assembly and freedom of association: the UK and the impact of ‘kettling’

Much international attention is devoted to violations of the rights to peaceful assembly and freedom of association in the developing world, but here I wish to bring to light the regressive steps taken in this regard by developed democracies like the United Kingdom. This is aimed at ensuring that the standards on civil society space that countries like the UK demand abroad are also applied domestically.

As the supposed standard-bearers for the protection of fundamental human rights, some introspective reflection would reveal how Western police practices like ‘kettling’ are intrinsically detrimental to the exercise of the right to freedom of peaceful assembly and association. These are instances where the police deploy a cordon around a crowd of protestors, and in so doing determine their route or ability to leave. The kind of behaviour fostered by these suffocating methods represents one of the greatest threats to the expression of the right of freedom of assembly and association in the UK today. To maintain the high democratic standards countries like the UK set for themselves, the practice of kettling must be rigorously reviewed at the highest levels of human rights protection.

The importance of civil society and the right to peaceful assembly and freedom of association

Article 20 of the Universal Declaration of Human Rights (UDHR) stipulates the universal, indivisible and interdependent nature of the right to peaceful assembly and freedom of association. Moreover, the way this right is interrelated with other key rights makes it relevant in ways that may not be immediately obvious. The fact that it enables the exercise of many civil, political, economic, and social rights means that its violation can have severe repercussions on the degree to which people regard themselves as free more generally. If the right to peaceful assembly and freedom of association is encouraged adequately, people become empowered to express their opinions and engage in debate, providing alternative perspectives to long-established interests. With a stronger civil society, there emerges a stronger, more united state.

For those societies whose democracies have flourished as a result of these freedoms, there is an increasing danger of complacency reversing the progress achieved until now. Worse still, there are strong elements of hypocrisy in the complaints of various UK politicians. While calling for young people to be more engaged and aware of key political and social issues, they fail to provide them with the adequate means of expressing it, even deliberately making the task more difficult through tactics like kettling.

The threats to peaceful assembly and freedom of association in the UK

Whether they be overt or covert, attempts to infringe on the right to peaceful assembly and freedom of association in the UK are being observed at a worrying pace. Examples of the latter include the infiltration of law-abiding groups like Earth First by undercover police, which have left behind lasting trauma and suspicion. More broadly, there is a lack of transparency in the intelligence-gathering procedures by authorities during protests and assemblies. People who are not committing any kind of offence effectively run the risk of their information being harvested for no specified purpose, not just by the government but by private security companies too. The outcome – fear of what attending a protest may mean for one’s private freedoms – is a damning indictment of the efforts being made to encourage civic activity.

The primary issue at hand here, however, is the prevalence of kettling at demonstrations in the UK over a number of years. This is an overt course of action which is indiscriminate and disproportionate in nature in almost every single instance, meaning that the practice has come under numerous legal challenges all over the world. In the UK, a ruling which had deemed it illegal after the G20 protests in 2009 was overturned in 2012 – symptomatic of the lack of clarity over the issue. There is no clear level of actual or perceived violence which is deemed enough to impose a kettle; no defined threshold past which a restriction of liberty becomes a deprivation of liberty; no fair way of determining who to release from the containment; and no sensible balancing of the distress caused to ordinary citizens against the risk of disorder caused by others.

In theory police guidelines discourage kettling as a first port of call, yet the recent track record paints a different picture. At G20 summits in 2009, student tuition fee protests in 2010, austerity protests in 2011, and allegedly at the University of Birmingham campus in 2014, the repeated use of kettling at high-profile gatherings has accumulatively damaged the positive civic aspects of protest. Even more recently in the United States, journalists following President Trump’s inauguration and the St. Louis protests of 2017 have spoken of how routinely they may be kettled by virtue of doing their job. It means that people must prepare to be ‘kettled’ when heading to a protest, possibly trapped in a tight space for hours on end often without access to food, water, or sanitation facilities. This is an example of the damaging behavioural effects that kettling can have on would-be demonstrators. The threat of being kettled, and understanding all the deeply unpleasant experiences that it will bring, seriously undermines the relationship of trust between peaceful protestors and the police. The consequence is that people begin thinking twice about exercising one of their most fundamental civic freedoms, putting at severe risk the status of UK civil society as a national treasure. The unity fostered by civil society is indispensable in holding governments to account, and thereby ensuring that people are able to enjoy the numerous other rights laid down in the UDHR without fear or favour.

The concerning behavioural effects of kettling are evident from the perspective of the police as well as the protestors. By its very nature, kettling puts the police in a position whereby there is no incentive to discriminate amongst protestors. It encourages a more dominant and brutal approach even towards peaceful bystanders. Having undue control over the path protestors are allowed to walk facilitates the emergence of de facto hostage situations: at the 2009 G20 protests in London protestors were being required by police to give names and photos in order to leave and threatened with a return to the pen if they refused. Where the ‘bargaining power’ in a protest is tipped too far in the favour of the police, as it is with the practice of kettling, the authorities are emboldened to act in ways which infringe disproportionately on the right to peaceful assembly and freedom of association. If police forces are not directly encouraged to do otherwise, then they will continue to resort to this tactic, leading to indiscriminate arrests and violations of human rights standards.

Developed democracies like the UK must continuously be reminded that freedom of assembly and association is a right rather than a privilege, and ensure that their police forces act on that premise. People should not have to fear exercising this right, nor experience any extreme discomfort when they do. It is clear that the focus of the legal framework on freedom of peaceful assembly and association in the UK is geared more towards public order than human rights. I recognise that striking this balance is not a simple task, but emphasise that it has gone too far in the direction of the former recently. We must hold to account those governments usually perceived to be the bastions of human rights and freedoms.

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