Europe’s human rights watchdog has raised concerns about the policing of protests in the UK following arrests over the ban on Palestine Action, and called for broader protest laws to be reviewed.
In a letter to Home Secretary Shabana Mahmood, Council of Europe human rights commissioner Michael O’Flaherty said law changes had allowed authorities to “impose excessive limits on freedom of assembly”.
Responding in a statement, Mahmood said the right to protest was “a fundamental freedom” but had to be balanced with the right of people to live “without fear”.
O’Flaherty also wrote to two chairs of parliamentary committees expressing “concern about the current climate for trans people in the UK”.
As commissioner, Mr O’Flaherty is tasked with identifying potential shortcomings in human rights law in countries that are signed up to the 1950 European Convention on Human Rights, including the UK.
The Conservative Party recently announced it would leave the convention if it wins the next general election, while the Labour government has said it is reviewing how it is applied in UK law in relation to asylum cases.
It is understood the home secretary plans to respond to Mr O’Flaherty’s letter, which was sent last month and published by the commissioner on Tuesday.
A government source said Mahmood took a “dim view of the arguments” and “fundamentally disagrees with the assessment”.
“It doesn’t help sustain public confidence in the European Convention when the council is seen to intervene in domestic politics and national security in this way.”
Allies of Mahmood also said that she considers the Supreme Court’s judgement on the issue of trans rights to be “beyond reproach”.
In his letter to Mahmood, sent following a five-day visit to the UK over the summer, O’Flaherty said two laws passed under the previous government – the Police, Crime, Sentencing and Courts Act 2022 and the Public Order Act 2023 – raised questions under the European Convention on Human Rights.
The Public Order Act was in part passed to counter environmental groups such as Just Stop Oil and Extinction Rebellion, which deployed tactics aimed at causing disruption such as gluing themselves to roads.
Mr O’Flaherty said the laws “allow authorities to impose excessive limits on freedom of assembly and expression, and risk over-policing”.
He recommended that “a comprehensive review of the compliance of the current legislation on the policing of protests with the United Kingdom’s human rights obligations be undertaken”.
He also expressed concern about measures in Labour’s Crime and Policing Bill – which is currently being debated in Parliament – that would ban protesters from wearing face coverings in particular locations.
He said such a ban should not be enforced unless there was “evidence of imminent violence”.
The bill would also put restrictions on gatherings “in the vicinity of a place of worship” – a move the government has said is in response to a series of “intimidating protests” near synagogues and mosques.
O’Flaherty argued that the term “vicinity” was “undefined” and could make it “impossible in practice to organise protests in large cities or towns” and urged ministers to reconsider the measure.
The government has recently announced other changes including allowing police officers to instruct protest organisers to hold events in a different place, if a site has been the location of repeated demonstrations.
It has also said it could consider further restrictions, including targeting some chants used at pro-Palestinian protests.
Defend Our Juries, a group campaigning against the government’s decision to ban Palestine Action as a terrorist organisation, has accused ministers of pursuing an “anti-democratic agenda”.
Hundreds of people have been arrested at protests against the ban, where some people have held up placards reading: “I oppose genocide, I support Palestine Action.”
Noting the large number of arrests, O’Flaherty said domestic laws “designed to counter ‘terrorism’ or ‘violent extremism’ must not impose any limitations on fundamental rights and freedoms, including the right to freedom of peaceful assembly, that are not strictly necessary for the protection of national security and the rights and freedoms of others”.
In a statement, Mahmood defended the government’s approach saying: “Large, repeated protests can leave sections of our country, particularly religious communities, feeling unsafe, intimidated and scared to leave their homes. 
“This has been particularly evident in relation to the considerable fear within the Jewish community, which has been expressed to me on many occasions in these recent difficult days.”
Separately, O’Flaherty has written to the Chair of the Women and Equalities Committee Sarah Owen and Chair of the Joint Committee on Human Rights Lord Alton to warn against creating legal uncertainty for transgender people as the UK government implements a Supreme Court judgement made earlier this year.
In April, the court unanimously ruled that a woman is defined by biological sex under the 2010 Equality Act, which applies across Britain.
Following the judgement, Britain’s equalities watchdog issued new guidance which says that in places such as hospitals, shops and restaurants “trans women (biological men) should not be permitted to use the women’s facilities”.
The guidance has been submitted to Equalities Minister Bridget Phillipson and is awaiting UK government approval.
O’Flaherty said the European Convention of Human Rights “guarantees the right of trans people to personal development and to physical and moral security”.
He argued that in the process of implementing new guidance, the government should “avoid a situation where a person’s legal gender recognition is voided of practical meaning, to the extent that it leaves trans people in an unacceptable ‘intermediate zone'”.
He said the new guidance should be clear on “how inclusion of trans people can be achieved across all areas, and how exclusion can be minimised to situations in which this would be strictly necessary and proportionate”.
Asked about the letter, Downing Street said: “We are clear that there are laws in place to protect trans people from discrimination and harassment, and we proudly uphold a robust legislative framework.
“But we have never supported self-ID and we have a process in place when it comes to someone changing their legal sex.”
