Action Group on Processions: report

Annex B

Outline Guidance on Notification Requirements, International Human Rights Standards and Current Practices in Scotland by Neil Jarman

Under the current relevant legislation, Section 62 of the Civic Government (Scotland) Act 1982 (as amended), the organisers of a public procession are required to provide 28 days advance notification to the local authority in whose area it is taking place (and to all such local authorities if the procession includes more than one) and also to the police (chief constable).

The legislation also requires the organiser to provide a number of pieces of information as part of the notification and which are listed as: (1) the date and time when the procession is to be held; (2) its route; (3) the number of persons likely to take part in it; (4) the arrangements for its control being made by the person proposing to hold it; and (5) the name and address of that person.

The legislation also specifies that the local authority may, after consultation with the chief constable, accept a notification that does not comply with the 28 day notification period if the organiser so requests and that person ‘set(s) out the reason why notice of the proposal was not given in accordance with’.

Funeral processions, which are organised by a ‘funeral director acting in the ordinary course of his business’; and processions which are ‘specified in, or is within a description specified in, an order made by the Scottish Ministers’ are excluded from the requirement to provide advance notice.

Each of the local authorities in Scotland provides information on how organisers should provide notification of a planned procession on their website. However, different local authorities utilise different language in relation to the notification process; provide different levels of guidance or information to organisers; require different levels of information from organisers; and in a number of cases may require additional information in the form of a risk assessment to be undertaken and provided by the organisers.

This short paper outlines how the requirement to provide advance notification of an intended procession (or any other form of public assembly) may be understood in terms of international human rights standards. It draws on two main sources of authority – the United Nations General Comment 37 (2020) on the right of peaceful assembly (article 21)^[6] and the OSCE/ODIHR and Venice Commission Guidelines on Freedom of Peaceful Assembly (third edition, 2020).^[7] This latter document in turn draws heavily of the European Convention on Human Rights as interpreted through the jurisprudence of the European Court of Human Rights.

International Human Rights Standards relating to Advance Notification

Legitimacy of Advance Notification

International human rights standards do not require the advance notification of any procession or assembly. Some countries require no advance notification for any assembly, while others exclude certain types of assembly from the requirement. In Scotland, for example, the organisers of static assemblies and funeral processions are not required to provide advanced notice.

However, it is accepted that there may be legitimate reasons for requiring advance notification of certain types of assembly, dependent on such factors as their size, nature and location. In such a situation the aim of the notification requirements should be to enable the authorities to put in place the necessary arrangements to facilitate the procession, as well as to protect public order, public safety and the rights and freedoms of others.

Under such circumstances a notification requirement is considered to be compatible with the permissible limitations laid down in Article 11 of the European Convention on Human Rights and Article 21 of the International Covenant on Civil and Political Rights. However, on some local authority websites the rationale for the notification process is framed in terms advising / warning the public of such processions rather than on enabling the local authority to better facilitate a fundamental human right.

Notification as a Restriction

A requirement on an organiser to provide advance notice is acknowledged as a de facto interference with the right to freedom of assembly. But such a restriction is considered acceptable as long as the aim is to better able the authorities to facilitate and enable the right to assemble to be exercised. However, any form of restriction on a fundamental human right must always be prescribed by law, necessary and proportionate. In this context being ‘necessary’ means it is required to enable the authorities to meet their positive obligations to protect human rights, while ‘proportionate’ means imposing the least possible restrictions to address any issues of concern.

Notification, Authorisation, Permission

Scottish legislation uses the term ‘notification’ and makes no reference to any form of authorisation process or request for permission. However, websites of different Scottish local authorities use a number of different terms in relation to providing information in advance of a public procession. Some correctly use ‘notification’, while others use ‘authorisation’, ‘permission’ or refer to ‘licensing’. These different terms have different meanings and while the term notification is interpreted as the organiser informing the authorities of their intentions, the other terms convey notions of seeking approval from the local authorities to be able to exercise ones rights.

In some cases the local authority websites state explicitly that the process is about seeking permission for a procession. Although international human rights standards have deemed that an authorisation process may be acceptable on the presumption that all such applications will be approved and permits issued, a notification regime is the preferred approach.

Ease of Notification Procedure

International standards state that advance notification procedures should be clear and simple to follow for everyone and that submitting a notification should be possible by a variety of means (e.g. in person, by post, electronically). In Scotland, all local authorities accept notification electronically and have information and forms available on their websites. However, not all such material is always readily accessible or easily found on the relevant websites.

Scope of Information Required

The procedure for providing advance notification to the public authorities should not be onerous or overly bureaucratic. In particular, the information that is required should be kept to the minimum that is relevant to the aims of the notification process. The Scottish legislation is quite specific on the information that is required of the organiser and which is limited to the date and time of the procession; its route; the number of persons likely to take part; the arrangements for its control being made by the person proposing to hold it; and the name and address of that person. These all seem to be proportionate to the aims of the notification process and in line with international standards.

Scottish legislation does not make any reference to additional information that may be requested but nor does it appear to preclude requesting further information. Scottish Government guidance does encourage local authorities to hold precursory meetings as part of the process of facilitating public processions, at which further information may be sought.^[8] Such meetings are recognised as good practice under international human rights standards, but participation should remain voluntary for the organisers of processions.

However, in a number of cases Scottish local authorities require much more extensive information from an organiser than that specified in the legislation and which may be considered to be disproportionate and excessive. For example, the OSCE/Venice Commission Guidelines state that ‘A notification procedure may also be considered unduly bureaucratic if (the notification requires) … more than one organiser by name, the submission of identification details of others involved in the event, or the exact or predicted number of participants.’

Risk Assessment

Many local authorities require the organiser of a public procession to provide a risk assessment as part of the notification process and provide a relevant form for the organisers to complete, which appears to be based on a template included in the Scottish Government guidance document. While there is no legal requirement on organisers to complete and submit a risk assessment form, it may be reasonable to require organisers to do so, at least in some contexts. However, the risk assessment process should focus on the responsibilities of the organiser rather than on the wider management of risks to public order.

Although it is also considered good practice under international human rights standards for organisers to provide stewards to help marshal their procession, this is accepted as a voluntary process rather than a legal requirement. Stewards should always be deployed to help the organisers achieve their aims rather than for wider public order purposes. It remains the responsibility of the police and the public authorities to manage public order and any potential impact that might result from an assembly.

Local authorities should be encouraged to review their risk assessment forms and procedures to ensure that they do not impose disproportionate requirements on procession organisers and thus potentially dissuade some people from organising processions.

Timeframe for Notification

International standards state that the required period of notice before an assembly should not be ‘excessively long’ and generally not more than a few days before the planned procession. The Scottish 28 day notification requirement (which is based on the approach in Northern Ireland) is an outlier and at the extreme end of required advance notification and should be more than adequate to ensure that relevant authorities have time to plan and prepare for the procession.

Given the length of advance notification it should be reasonable and proportionate for local authorities in Scotland to be flexible wherever possible in relation to any late notification of a planned procession.

Late Notification

The Scottish legislation simply states that a local authority should consider a late notification as long as the organiser provides a reason for the lateness and after consultation with the chief constable. However, in some cases the local authority websites state that late notifications will only be accepted in ‘exceptional circumstances’. This requirement for exceptional circumstances is not included in the legislation, but is set out in page 8 of the Scottish Government guidance. Notwithstanding the guidance, local authorities should be encouraged to facilitate all notifications as far as possible.

Negative Impacts of Notification

As has been noted, any notification requirement is recognised as an interference with the right to freedom of peaceful assembly, and any process that imposes excessive or disproportionate requirements as part of the notification process may serve to discourage some potential organisers and could thus effectively serve to undermine people from exercising the right to freedom of peaceful assembly.

The requirement of advanced notification should not be used as a ‘hidden obstacle’ to limit people’s right to assemble and thus enforcement of the rules on advance notification should not become an end in itself. This means that failure to notify in accordance with the legal requirements should not render the assembly unlawful and must not by itself lead to restrictions on participants or dissolution of a peaceful assembly.

However, it should be noted that late notification makes effective engagement with the organiser more challenging and may limit the ability of local authorities to make the wider public aware of potential disruption and measures taken to contain that disruption.

Acknowledging Receipt of Notification

Although not required under Scottish law, international standards note that it is good practice for the authorities to formally acknowledge receipt of the notification to the organiser. If additional information is required from the organiser, this should not be considered as a new notification, but rather part of the original notification submission.

Meetings between Organisers and Local Authorities

Dialogue between the organisers of a procession and the local authority may be useful to ensure the smooth conduct of the assembly. But participation in discussions or negotiations on the part of the organisers should always be voluntary. A refusal by organisers to engage in dialogue with the authorities should not mean automatic prohibition of the procession, however a lack of dialogue may make it more difficult for the authorities to have due regard for considerations of public order and public safety.

Conclusion

The legal requirements under Scottish law for advance notification of a public procession fall broadly within the parameters of international human rights standards, notwithstanding the long notification period. However, the practice of some local authorities, as evidenced by the relevant sections of their websites, appears to take a somewhat different approach and adopt a harder and stricter approach to notification, one that is more akin to an authorisation model. In some cases they also impose disproportionate requirements on the organisers, which may have the effect of deterring people from exercising their rights. In contrast, there are few, if any, examples of local authorities using their websites of notification process to highlight that notification has been designed to enable them to put in place the services and resources that will facilitate and enable public processions and thereby to protect the right to peaceful assembly.