Action Group on Processions: report

Annex A

The Importance of Freedom of Assembly by Neil Jarman

This short paper outlines the importance of the right to peaceful assembly as a fundamental freedom and sets out some of the grounds under which the right to peaceful assembly may be legitimately restricted, based on international human rights standards.^[1]

Importance of Peaceful Assembly

The right to freedom of peaceful assembly is recognised as one of the fundamental freedoms in all major international human rights treaties, including Article 20 the Universal Declaration of Human Rights, Article 21 of the International Covenant on Civil and Political Rights, and Article 11 of the European Convention on Human Rights (ECHR). The right to assemble includes the right to gather together in static assemblies, including public meetings, rallies and pickets, and in moving assemblies, including marches, parades and processions.

Freedom of peaceful assembly is recognised as one of the cornerstones of a democratic society, and the right to gather collectively in public spaces to express opinions, protest, commemorate and celebrate history and identity is acknowledged as an opportunity for minority and marginalised groups, and those without ready access to the mass media and the political establishment to make their voices heard, share their collective values with the wider society and even to challenge existing norms and standards.

As a fundamental feature of a democratic society, freedom of peaceful assembly creates both negative and positive obligations on those in authority, including national and local governments and the police:

• There is a negative obligation on the state not to interfere in the right to assembly where there is no pressing need to do so. This is evidenced in Scotland by the fact that the organisers of static assemblies are not required to provide any advance notification of their intentions to hold a static assembly; and
• There is a positive obligation on the state to facilitate and protect peaceful assemblies and enable them to proceed as the organisers intend.

These obligations place a responsibility on authorities to aim to ensure that a peaceful assembly is able to take place at the time, place and in the manner that the organiser wishes, and it is the responsibility of the state to take the necessary actions to minimise any disruption an assembly may, or may potentially, cause while facilitating that assembly.

As a fundamental freedom, people gathering peacefully to express their views collectively have as much right to use public spaces for this purpose as do those who wish to use the space to, for example, drive motor vehicles, to shop, to trade, or to engage in business activities.

In exercising the right to peacefully assemble, the organisers and participants may cause some degree of disruption to daily routines. However, due to the essential nature of public assemblies in protecting freedom of expression, and the fact that any disruption caused will be temporary, authorities should seek to work around these to allow the procession to proceed as planned.

The right to peaceful assembly does not give those participating any right to threaten others, to provoke, incite or engage in acts of violence, or to use hate speech as part of an assembly. However, some assemblies by the nature of the issues they are addressing or views they are promoting, may be deemed to cause offence to some people, but as long as the assembly remains peaceful, and there is no incitement to hatred or violence, the assembly should be facilitated by the authorities. There is no right to not be offended and protests are often necessarily a means of highlighting minority views and radical ideas that may challenge existing norms and assumptions.

Scope for Restricting a Peaceful Assembly

The right to peaceful assembly is an important right but it is not an unlimited right and it may be restricted in certain contexts. However, any restrictions must always be prescribed by law, considered necessary in a democratic society and be a proportionate response to an identified issue and the minimum level of restraint to achieve the required objective.

These principles of legality, necessity and proportionality mean that any blanket prohibition of all assemblies, or all assemblies of a specific type, is not possible. Additionally, a blanket prohibition on specific types of assembly at certain times, in certain places or in response to specific problems that may have arisen in the past will generally be considered to be disproportionate. Any restrictions that might be imposed on an assembly must be so done in response to a specific concern about a particular assembly and each must be assessed on an individual basis.

The European Convention on Human Rights sets out a number of grounds under which an assembly may be restricted by the authorities. These are:

• in the interests of national security or public safety
• for the prevention of disorder or crime
• for the protection of health or morals
• for the protection of the rights and freedoms of others

Any legitimate restriction imposed on any assembly must be based on one or more of these grounds, but as noted above must also be lawful, necessary and proportionate.

Right to Peaceful Assembly in Scotland

In Scotland the Civic Government (Scotland) Act 1982, (as amended) sets out the legal framework for local authorities to facilitate and enable public processions. Section 62 sets out the requirements of organisers to notify the relevant local authority of their intention to hold a public procession, while Section 63 outlines the powers and responsibilities of a local authority. Section 63 (8) sets out the various grounds under which a local authority may prohibit or impose restrictions on a public procession. These include the likely effect of the holding of the procession in relation to:

• public safety
• public order
• damage to property
• disruption of the life of the community

The law also allows a local authority to consider the extent to which a procession might place an excessive burden on the police; as well as whether the organisers or participants have been involved in previous processions in the areas that were in breach of prohibitions, of any restrictions or of a local authority code of conduct.

The grounds set out in the Scottish legislation broadly overlap with those identified in the European Convention on Human Rights, albeit they are more limited. There is no scope to consider the impact of a public procession on public health or morals, which have scarcely been considered in cases before the European Court on Human Rights (at least until the recent Covid pandemic) and the issue of national security is the responsibility of state government not devolved or local government.

The Scottish legislation also includes the potential for damage to property which would be addressed as the prevention of disorder or crime under the European Convention on Human Rights, while the Scottish concept of ‘disruption to the life of the community’ would have to be interpreted within the European Convention on Human Rights formulation of ‘the protection of the rights and freedoms of others’.

The remainder of this paper reviews the legitimacy of any forms of restriction that might be imposed on the grounds of public safety, crime and disorder, and in relation to the rights and freedoms of others.

Public safety

Public safety issues are not often invoked as a reason for banning or restricting an assembly. Public safety concerns may arise in contexts where, for example, vehicles are part of a procession, fireworks or pyrotechnics are involved or the procession takes place after dark. Any such risks however must be of a serious or significant nature and not just be raised as a potential or possible risk or danger.

The United Nation General Comment 37^[2], paragraph 43 notes that: ‘For the protection of “public safety” to be invoked as a ground for restrictions on the right of peaceful assembly, it must be established that the assembly creates a real and significant risk to the safety of persons (to life or security of person) or a similar risk of serious damage to property.’

In instances where there is a risk to public safety, it is the primary responsibility of the state or relevant public authority to take appropriate or additional precautionary measures to limit any risks to the public, rather than imposing extensive restrictions on the assembly itself. In some contexts it may be proportionate to require changes to a route of any march or procession, or to the timing of the assembly to address any safety concerns, but these must be justified by recourse to notions of legality, necessity and proportionality.

The primary responsibility for protecting public safety and security for an assembly always remains with the state. The public authorities thus have a positive obligation to provide adequately resourced policing arrangements. As part of this responsibility the public authority should also ensure there is appropriate access to medical facilities and other emergency services during an assembly.

Although the organisers may be expected to provide stewards to facilitate their assembly, the responsibility of the stewards is primarily to ensure the participants behave and proceed in a way that the organiser intends.

Prevention of Crime

The European Court of Human Rights has noted that the European Convention on Human Rights “obliges State authorities to take reasonable steps … to prevent criminal offences of which they had or ought to have had knowledge” however this “does not permit a state to protect individuals from criminal acts of a person by measures which are in breach of that person’s Convention rights”.

Preventive restrictions, in advance of any crime being committed, should only be taken in exceptional cases and where there is a clear and present danger that a crime will be committed. They should not be based exclusively on such factors as membership of an organisation, previous activities that the individual may have been involved in, or mere general suspicion that someone may commit an offence.

Furthermore, states must not criminalise the exercise of the right to peaceful assembly itself and criminal provisions should not be invoked as a pretext to restrict or prohibit an assembly with a view to preventing such crimes. This also applies to situations where assemblies were not duly notified, the European Court has emphasised that as long as an assembly remains peaceful it should be facilitated, while any failure to provide advance notification of other requirements may be addressed after the procession and through the prosecution of the organisers.

Protection of Public Order

The notion of ‘public order’ is a somewhat vague term, but is generally understood to be wider than that of ‘prevention of disorder or crime.’ However, there is broad consensus that a hypothetical risk of public disorder, or the presence of a hostile audience or counter protesters, are not, by themselves, legitimate grounds for prohibiting a peaceful assembly, nor restricting the rights of opponents of the assembly.

All assemblies will involve some degree of disruption to routine activities in the public domain, and in some cases disruption and disorder may be a legitimate aim of the assembly, in order to challenge norms and make people think. As long as the assembly remains peaceful (in so much as it does not threaten others, incite acts of violence or use hate speech and so forth) such disruption should be tolerated, since assemblies are always temporary and thus will have a limited impact on the rights of others.

The mere fact that the content or manner in which an assembly is conducted may annoy, offend, shock or disturb others, or that such assembly may cause some temporary disruptions of daily life, or temporarily affect the aesthetic appearance of a public space, does not by itself amount to a disruption of public order. For that reason, prior restrictions imposed due to the possibility of minor, isolated or sporadic incidents of disorder or even of violence are likely to be disproportionate.

The right to assemble in public is the right to assemble in a peaceful manner and there is no protected right to engage in acts of violence. However, it is also important to note that an assembly is always a gathering of diverse groups and individuals and even if some people behave aggressively or violently, this does not affect the rights of others to continue to assemble peacefully. The police must always aim to police an assembly in a way that protects the rights of those who are behaving in a peaceful manner.

Protection of the Rights and Freedoms of Others

All assemblies will potentially, and often actually impact, on the rights and freedoms of those who live, work, shop, trade and carry on business in the same area. However, balancing the right to assemble and the rights of others should always aim at ensuring that assemblies are able to proceed in the manner in which the organiser desires, unless in doing so it would impose unnecessary and disproportionate burdens on others.

The United Nation General Comment 37, paragraph 47, notes that ‘assemblies are a legitimate use of public and other spaces, and since they may entail by their very nature a certain level of disruption to ordinary life, such disruptions must be accommodated, unless they impose a disproportionate burden, in which case the authorities must be able to provide detailed justification for any restrictions’.

Some degree of disruption to the rights of others must be tolerated if the right to peacefully assemble is not to be deprived of any meaning. But the General Comment refers to ‘disproportionate’ disruption which is a relatively high bar and beyond the level of disruption to daily routines that most assemblies or processions will cause. The temporary disruption or rerouting of vehicular or pedestrian traffic, nor disruption to business activities, nor public opposition to an assembly should be considered legitimate reasons to ban or impose significant restrictions on an assembly.

Nevertheless, there may be some rationale for distinguishing between assemblies that take place in central areas of a town or city, or that process along main thoroughfares, where the scope for restrictions will always be limited, and assemblies that take place in residential areas, where greater concerns for privacy or the right to enjoy family life may be necessarily invoked.

Similarly, assemblies that may potentially disrupt public services, such as education or health, due to their presence outside a school or hospital, particularly if the assembly is not focused on rights to health or education, may also be subject to legitimate restrictions.

However, in all such cases the focus should be on imposing appropriate and proportionate restrictions, such as to limit noise, restricting assemblies after dark, and ensuring ease of access to the facilities, rather than imposing a complete or blanket ban on an assembly. As noted earlier blanket bans on assemblies in specific locations are likely to be considered disproportionate.

If an assembly is restricted for the purpose of protecting the rights and freedoms of others, the relevant local authority should explain in detail:

• which specific rights and freedoms of others are engaged in the particular circumstances
• the extent to which the proposed assembly would, if unrestricted, interfere with these rights and freedoms
• how any restrictions on the proposed assembly would serve to mitigate these interferences
• why less restrictive measures would not lead to the envisaged success.

However, also note that the authorities may be allowed some degree of flexibility in their decision making (a ‘margin of appreciation’) when assessing these issues, as long as they are acting in good faith and following the principles of legality, necessity and proportionality.

Other Grounds for Restricting an Assembly in Scots Law

As noted above, under international human rights standards the public authorities have a responsibility to protect and enable an assembly to take place. The European Convention on Human Rights does not provide for the concept of an assembly imposing an ‘excessive burden’ on the police as a legitimate ground for restricting an assembly, since it is a fundamental obligation of the state to enable rights to be exercised. There may be circumstances where it is possible to argue that the burden on the police is excessive, but this would be a high threshold and would be unlikely to be reached except in exceptional circumstances.

Scots law also allows a local authority to take into consideration whether the organisers or participants had been involved in previous processions in the areas that were in breach of prohibitions, of any restrictions or of a local authority code of conduct. It may be appropriate to consider the actions and behaviours of the organisers in relation to past processions and to press on them the importance of future compliance with any restrictions, but sanctions should be imposed immediately after an assembly, rather than at some time in the future.

It is however not appropriate to hold the organisers liable for the actions of any participants in a previous assembly, unless the organisers actively encouraged the unlawful or otherwise unacceptable behaviour. Individuals are responsible for their own actions, but should not be held liable for the actions of others.

The Organization for Security and Co-operation in Europe (OSCE) / Venice Commission Guidelines on Freedom of Peaceful Assembly noted, at paragraph 197, that the ‘organisers and stewards have a responsibility to make reasonable efforts to comply with the legal requirements and to ensure their assemblies are peaceful, but they should not be held liable for failure to perform their responsibilities if they made reasonable efforts to do so’.^[3] As noted above, the police are responsible for maintaining law and order and for responding to crime, not the organiser of an assembly.

The intimidating character of an assembly may be taken into account by the authorities if the repeated organisation of assemblies was considered capable of intimidating others and therefore of affecting their rights, especially in view of their location. However, there is no right not to be offended and therefore opposition to an otherwise peaceful assembly because of a dislike for the organising body or the message being conveyed by the assembly should not be considered as legitimate grounds for banning or restricting the assembly in some way.

Assemblies should not be aimed at the destruction of the rights of others. International standards set limits on the exercise of the right to freedom of peaceful assembly when it is aimed at the destruction of other rights and freedoms as set out in Article 17 of the European Convention on Human Rights. This means, for example, that counter-demonstrations organised with the purpose of physically disrupting or preventing another peaceful assembly are not permissible. As this intention may be very difficult to detect ahead of an assembly, it may be possible for the authorities to prohibit an assembly when, based on previous experiences, there appears a serious risk that it may aim to disrupt or prevent another peaceful assembly.

Cumulative Impact of Processions in a Locality

The report of the SLWG on Facilitating Peaceful Assemblies in Scotland raised the issue of the potential cumulative impact of a number of processions in a locality as an issue that may legitimately be considered in some contexts:^[4]

The Working Group is of the view that the cumulative impact of processions on the rights of others in a particular locality is one of a number of factors that may legitimately be taken into account in assessing the impact of a procession on the rights and freedoms of others so long as it is not accorded undue significance, and even if the processions in question are organised by different bodies and/or have different participants. We make this point because the impact on the rights of others occurs irrespective of who is organising or participating in the processions. As such, the State’s positive obligation to protect these other rights and freedoms arises independently of who is organising or participating in each procession (para 7.8).

While it may be possible to look at the impact of a number of processions in any specific locality as one factor when considering the imposition of restrictions or a ban on a procession, the arguments would have to reach a high threshold to ensure any restrictions were legitimate, necessary and proportionate. The following outlines some of the issues that would have to be considered when reflecting on the cumulative impact of public processions in any given locality.

1. Cumulative Impact: The SLWG on Facilitating Peaceful Assemblies in Scotland report is not clear what the working group thought might be a threshold for consideration of a cumulative impact. In particular, how many processions and over what period of time would be included in the numbers being viewed as acceptable? There could be a value in preparing some form of guidance in relation to the number of processions over a fixed period of time that could be used by local authorities when the issue of cumulative impact might be a legitimate consideration.

2. Issue of Concern: It would be important to clarify that the issue of concern was simply the number of processions taking place rather than factors relating to the number of people attending or supporting the procession, the behaviour of participants and spectators, the messages being communicated, or other factors such as noise or timing, and which might be addressed through discussion between the authorities and the specific organisers. Any decision would also have to take into consideration the scale of any opposition to any procession, as opposed to those who supported the procession or expressed no opposition. However, if people are exercising their right to assemble in a peaceful manner, then, as noted above, the scope for restriction would always be limited and the right should be facilitated by the authorities.

3. Locality: The SLWG on Facilitating Peaceful Assemblies in Scotland report suggests the issue to be considered relates to the number of processions held in a locality, but it is not clear what might be meant by the term 'locality'. There would need to be some understanding of the nature and size of the area that was being considered and this would have to be quite specific, it could not be a town centre or other main urban area as this would have the potential to lead to a blanket restriction on processions and the Groups report is clear that it is not about potential quotas for processions (paragraph 7.9).

Given the right to peaceful assembly is a fundamental freedom there is limited scope for restricting assemblies on major thoroughfares or central urban areas, and even if processions are frequent, they are always of a temporary nature and short lived.

There may however be some scope for considering the cumulative impact of public processions in a residential area, and which might be seen as having a negative impact on the rights to privacy; peaceful enjoyment of one’s possessions and property; and freedom of movement.^[5] However, in all contexts some degree of disruption to daily routines must be tolerated if the essence of the right to peacefully assemble is not to be deprived of any meaning.

4. Organisers v Numbers: The SLWG on Facilitating Peaceful Assemblies in Scotland report suggests that a decision could be based on the gross number of processions rather than processions by any single organiser or organising body. But this could mean that an individual or organiser was prevented from exercising their rights simply because someone else had exercised their rights on a previous occasion. Such a restriction could appear to be discriminatory. Furthermore, the European Court has always argued that each assembly should be considered on its own merits rather than as one of a number of processions.

Any decision that focused on the negative cumulative impact of public processions on a locality would have to be very clearly thought through before imposing restrictions on any such assembly. There is a risk that ‘cumulative impact’ restrictions on a public procession in a specified area would be regarded as little more than a means to limit or ban certain types of assembly rather than as a legitimate and proportionate restraint.