London (21 April 2016) - I would like to once again thank the Government of the United Kingdom (UK) for inviting me to undertake this official follow-up visit from 18 to 21 April 2016, which is a follow up to my initial visit in January 20131.
This is the first follow-up mission I have conducted during my tenure as Special Rapporteur, and I commend the Government for its continued willingness to constructively engage on human rights in general and on the rights to freedom of peaceful assembly and of association in particular.
It is clear that the UK takes its role as one of the global leaders in human rights seriously. Many people around the world look to the UK as a model for democracy and human rights. The world notices when this country takes positive steps to strengthen its practice of human rights. But it notices even more when it moves in the opposite direction – restricting the space for democracy and human rights.
Let me thank the Government for its excellent cooperation in organizing the mission, short as it was. A remarkable number of meetings were set up with members of the executive and legislative branches, and independent institutions, over the past four days. The input and assistance of these officials was extremely helpful. Given the brevity of the visit, I only looked at the situation in England.
I would also like to thank the many activists, members of civil society and other non-governmental interlocutors who took time out of their busy schedules to meet with me. These individuals were a diverse group, coming from many walks of life, working on a diverse range of issues, and hailing from a multitude of different backgrounds – religious, cultural, ethnic and otherwise. I have been struck by their shared passion and commitment to making their communities better.
This kind of “unity through diversity” is what civil society is about. I believe that these individuals – and the hundreds of thousands of people like them – are the reason for many of the positive attributes that are enjoyed in this country. The UK truly should consider its civil society a national treasure.
I appreciate that the Government has made efforts to address some of the recommendations I made three years ago.
However, my impression at the conclusion of this visit is that a series of separate measures by the Government, some implemented and others proposed, are resulting in the closing of space for civil society. I am concerned that, put together, these measures suggest that Government has a negative view of civil society as a critical partner that can and should hold Government accountable.
These moves have not always made headlines and in many instances, they have been subtle and gradual. But they are as unmistakable as they are alarming.
Allow me to address a number of specific areas of concern, all of which will be covered more comprehensively in my report to the Human Rights Council in June 2017.
Freedom of Association
Countering extremism and terrorism
In my 2013 report, I expressed concern that the definition of “domestic extremism” was too broad and that peaceful protestors feared that they could be easily grouped in this category alongside real and violent extremists. From my discussions with civil society and government during this visit, I do not believe enough has been done to alleviate this concern.
The major issue today, it seems, is the Government’s focus on countering “non-violent extremism” without a narrow and explicit definition. The concerns raised by a number of interlocutors on certain aspects of the Prevent strategy are illustrative.
Prevent focuses on individuals and groups that appear contrary to the “British Values” of democracy, pluralism and tolerance and who are seen as being predisposed to respond to terrorist ideologies.
The feedback from civil society on the impact of the Prevent strategy was overwhelmingly negative. Students, activists, and members of faith-based organizations related countless anecdotes of the program being implemented in a way that translates simply into crude racial, ideological, cultural and religious profiling, with consequent effects on the right to freedom of association of some groups.
For example, the duty imposed on certain categories of public officials, including teachers, to observe, record and report individuals they may consider “extremist” has led to restrictions on student union activities and the singling out of students from minority communities. Environmentalists, anti-capitalist groups and some Members of Parliament have reportedly been provided as examples of extremists in Prevent trainings.
This lack of definitional clarity, combined with the encouragement of people to report suspicious activity, have created unease and uncertainty around what can legitimately be discussed in public. I heard reports of teachers being reported for innocuous comments in class, for example. The specter of Big Brother is so large, in fact, that I was informed that some families are afraid of even discussing the negative effects of terrorism in their own homes, fearing that their children would talk about it at school and have their intentions misconstrued.
It appears that Prevent is having the opposite of its intended effect: by dividing, stigmatizing and alienating segments of the population, Prevent could end up promoting extremism, rather than countering it.
Even more disturbingly, the Government is considering using some aspects of the Prevent “non-violent extremism” framework as a model for its forthcoming Counter-Extremism Bill. For example, the Bill reportedly may authorize the issuance of civil orders to ban “non-violent extremist groups” – defined in vague terms open to arbitrary interpretation.
I urge the Government to carefully consider the negative unintended consequences of such provisions. It is difficult to define the term “non-violent extremist” without treading into the territory of policing thought and opinion. Innocent individuals will be targeted. Many more will fear that they may be targeted – whether because of their skin color, religion or political persuasion – and be fearful of exercising their rights. Both outcomes are unacceptable.
It is the duty of the Government – and indeed all States – to do all it can to prevent, limit and mitigate potential terrorist attacks that could arise from extremism. But I believe that the existing legal framework is robust enough to deal with any issues of extremism and related intolerance that could give rise to terrorism.
Similarly, as I noted in my 2013 report, Muslim organizations and other charities operating in countries deemed sensitive face serious difficulties in transferring and spending funds. The Charity Commission informed me that charities are provided guidance to help them identify and mitigate risks of abuse for extremist purposes or terrorism financing. The Commission is also working with sections of Government and the banking sector to raise concerns about the impact of de-risking and de-banking on the sector. I would urge all agencies concerned to do more to ensure that charities and other groups are not subjected to de-risking or de-banking where there are options of mitigating or managing risk. Charities that work in high risk areas often serve the most vulnerable and desperate, often doing what Governments’ ask of them. De-risking has serious consequences not just on the rights of association of charities but also on the rights of their beneficiaries. Moreover, it is in the Government’s interest – in the name of public safety – to keep charities within the official banking system, and not push them into the underground economy.
Furthermore, I remain concerned about the Investigatory Powers Bill, particularly the provisions on Internet surveillance and thematic warrants. These are strong powers that, if not exercised with restraint, could have a grave impact on the rights to freedom of peaceful assembly and association. I urge the Government to proceed cautiously in this area.
Anti-lobbying and anti-advocacy clauses
The Transparency in Lobbying, Non-Party Campaigning and Trade Union Administration Act or the Lobbying Act has had a chilling effect on the work of charities during election periods, with many opting for silence on issues they work on. The Act requires campaigners, including charities, to register with the Electoral Commission if their spending during an election period passes a certain threshold, and if their activities could be perceived as intended to influence how people vote. Charities were reluctant to register, fearing that this would be misunderstood as engaging in prohibited party political activity.
The recent announcement that a new clause will be inserted in all new and renewed Government grant agreements, prohibiting these funds from being used to lobby Government has also caused confusion and uncertainty within the sector. It is far from clear what mischief the clause intends to address or what activities are envisioned as constituting “influence or attempting to influence government”, but it is clear that this is being read by Charities as an effort to further silence them if they receive Government funds. I was informed by the Cabinet Office that they are currently consulting on the clause, and it is my hope that a thorough and open examination of the clause and its impact is carried out.
The Charity Commission’s guidance for charities ahead of the EU Referendum was also described as confusing by members of civil society that I spoke to. Taken together, these developments have had the effect of charities refraining from engaging in activities they normally would, especially when their engagement is most needed such as during elections or the referendum.
Beyond the UK’s borders, these measures are likely to have serious ramifications if adopted by less democratic states whose intention is to repress civil society. As mentioned earlier, the UK is regarded as a model in democracy and human rights, and actively works at the UN Human Rights Council to support efforts for broader enabling environments for civil society. It is imperative that the same standards that the UK calls for internationally on civil society space are implemented domestically.
My major concern in the area of labour rights centers on the Trade Union Bill, which is now in Parliament with a deadline for passage of 19 May. The International Labour Organization issued a report last February highlighting a number of serious issues with the Bill. I share these concerns, and understand that some of them have been addressed. But many obstacles remain.
Chief among them are the new threshold requirements regarding industrial action by unions in “important public services.” As it stands, the Bill would require that 50% of members turn out to vote on industrial action, and that at least 40% of the entire membership – assuming the 50% minimum turnout met – votes in favour of the action.
The Government has suggested that this requirement is necessary because industrial actions have an impact upon wider society, beyond workers and employers. They frame it as a more democratic approach. I see it as the opposite: it is profoundly undemocratic. Anyone who doubts this should ask themselves how they would feel if similar requirements were imposed for UK general elections.
Would it also be more democratic if the Government required a 50% turnout of voters, and 40% approval of the all eligible voters, in order for the results of the upcoming EU referendum to be valid? The logic behind this requirement is disingenuous.
There are other concerns with the Bill as well: provisions which allow the replacement of some striking workers; provisions which restrict picketing in a way that ordinary peaceful assemblies are not restricted; and restrictions on electronic voting.
The fate of this Bill will be decided well before I submit my final report to the Human Rights Council next year, but let me say this: it is clear that unions and a sizeable portion of the public are very upset by the Bill. Meanwhile, the Government itself informed me that it was rushed to Parliament last year and that extensive litigation over various provisions is likely. I find this vexing, because the process of drafting legislation should be a meticulous one, where time is taken to ensure both inclusiveness and clarity. The process surrounding the Trade Union Bill process seems to be taking the opposite approach. Sometimes, when you do not get it right, it is better to step back and start from scratch.
Freedom of Peaceful Assembly
I welcome the ongoing public enquiry on the use of undercover policing, following my recommendation in 2013. Undercover policing certainly serves a vital function in gathering intelligence among criminal groups such as terrorists and violent gangs. However, its use against protest movements, leftist groups, and so on, which exercise their legitimate rights to dissent and freely assemble, is not justifiable.
In order for this enquiry to be truly meaningful, it should not be shrouded in secrecy, especially in relation to undercover policing of protest groups. This would negate the very purpose of this exercise, and I note the statement of the Home Office that it does not support a blanket restriction on disclosure in this regard. It is crucial that the views of the victims, rather than those of the police, are given priority in this enquiry.
I call on the authorities to release the undercover identities of all officers who spied on peaceful activists. Victims have a right to know that they were wrongfully spied upon, how intelligence collected may still be disrupting their lives, and if they were convicted, whether they may be able to overturn that conviction.
This dark episode in the UK’s history has caused profound damage – to the victims, to people’s comfort with exercising their assembly and association rights, and in many cases for the officers who were called upon to be spies. This damage can partly be remedied by imposing real accountability and transparency for the victims.
I note the statement of the police that since 2013, they have tightened up procedures for authorizing undercover policing, and that the related oversight mechanism has been strengthened. This should translate now to mean that the police will no longer deploy undercover officers within non-violent activists groups.
In a number of instances, the police have continued to use force against protestors in an excessive manner. The Greater Manchester Police, for example, reportedly took violent action against anti-fracking protestors at the Barton Moss Camp from November 2013 to April 2014. The College of Policing’s code of ethics, a laudable initiative which refers to the use of force, among other principles and standards of professional behavior for the police, should be abided by. I further urge them to read the joint report I presented to the UN Human Rights Council last month with Christof Heyns, Special Rapporteur on extrajudicial, summary or arbitrary executions2. The report, which is a compilation of practical recommendations for the proper management of assemblies, contains a number of recommendations that are of particular relevance to this situation.
I note with satisfaction that the protest liaison officers’ programme has been instrumental in ensuring the smooth running of many protests. There is indeed great value in ensuring open and conducive dialogue between protestors and the police. I remain concerned, however, about striking a balance between these liaison functions and the officers’ duty to gather intelligence on protests, which if not carefully managed, may erode trust.
My attention was also drawn to the alleged collusion between law enforcement authorities and private companies in the context of protests against businesses. I was informed that protesters have been arrested, forced to provide their names and addresses, and then found their names as targets of injunctions by the companies against further protest activity. This was for instance the case in relation to the “no dash for gas” protest at a gas power station in 2014 and at some anti-fracking protests. I find this alleged practice troubling, and fail to see its legal justification.
I also heard allegations that the police have continued to resort on several occasions to mass arrests and stop and search powers in the context of protests, most notably anti-fracking demonstrations, with a view to gathering intelligence on protestors. I want to underscore the chilling effect of such practice among protestors.
In conclusion, I would like to reiterate my appreciation for the renewed excellent co-operation I received during this visit. I offer these observations and recommendations once again in a spirit of constructive dialogue. I look forward to a continued dialogue with the British Government, and I stand ready to offer technical assistance with a view to consolidating the exercise of the rights to freedom of peaceful assembly and of association in the country.
1. See the Special Rapporteur’s report on his 2013 visit to the UK: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A-HRC-23-39-Add1_en.pdf; and the comments from the British Government to this report: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A.HRC.23.39.Add.3_AV.pdf
2. Joint report available at: http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/31/66