Short Life Working Group on Facilitating Peaceful Assemblies: report

Footnotes

1. Para 2(3), Schedule 1, Public Processions (NI) Act 1998.

2. In Scotland: Section 63(8), Civic Government (Scotland) Act 1982 (as inserted by section 71, Police, Public Order and Criminal Justice (Scotland) Act 2006); In Northern Ireland: Section 8(6) and section 9A(6), Public Processions (NI) Act 1998 in relation to public processions and related protest meetings, and article 4(2) Public Order (NI) Order 1987 in relation to other open-air public meetings; in England and Wales: sections 12(1) and 14(1) Public Order Act 1986.

3. Section 62(1)(b) Civic Government (Scotland) Act 1982.

4. Sections 8(1) and 9A of the Public Processions (NI) Act 1998 as amended by the Public Processions (Amendment) (Northern Ireland) Order 2005.

5. Sections 63(1)(i), 63(5)(b) and 63(8) Civic Government (Scotland) Act 1982.

6. See e.g. Rosie (2016), para 2.26. This licensing mindset is reinforced by the language sometimes used to describe the process (e.g. 'application', 'license', 'permit') and by the fact that the regulatory powers are exercised by council licensing teams / licensing boards. See, for example, Dundee; East Ayrshire.

7. Five Borough Bicycle Club v City of New York, 684 F. Supp. 2d 4232010.

8. See further, for example, Hamilton, M., 'Towards General Comment 37 on Article 21 ICCPR: The Right of Peaceful Assembly' (ECNL: 2020) pp.24-27.

9. For example, UN Human Rights Committee, General Comment No.37, para 70; Novikova and Others v Russia, Applications Nos 25501/07, 57569/11, 80153/12, 5790/13 and 35015/13, judgment of 26 April 2016, para 163; Navalnyy v Russia, Application Nos 29580/12, 36847/12 and 11252/13, judgment of 15 November 2018, para 100; Obote v Russia, Application No 58954/09, judgment of 19 November 2019, paras 41-43; Barseghyan v Armenia, Application No 17804/09, judgment of 21 September 2021, para 52; Bumbeș v Romania, Application No 18079/15 judgment of 3 May 2022, para 94;

10. Paragraph 3.14 (2016).

11. Section 6(1A) and s.7(1A) of the Public Processions (NI) Act 1998 (as amended).

12. Section 6(6) and section 7(5) Public Processions (NI) Act 1998.

13. The 'Advanced Search' function of the NI Parades Commission website – specifically the drop-down menus for 'Organisation Type' and 'Purpose' – helps give a sense of the spectrum of processions that fall within the statutory definition.

14. Section 62(2), Civic Government (Scotland) Act 1982 and section 6(2), Public Processions (NI) Act 1998. In Scotland, raised the notification requirement from seven days to 'no later than 28 days' beforehand (

15. Section 7(2), Public Processions (NI) Act 1998.

16. See further, Police, Public Order and Criminal Justice (Scotland) Act 2006 Explanatory Notes.

17. Orr Report, para 12.4. See further, 'Action by local authorities during the 28 day notification period', paras 12.11-12.13, and 'Risk assessment and impact analysis', paras 12.14-12.18.

18. See, for example, Jacob Zenn, 'Freedom of Assembly: Procedures of Permission and Notification' (ICNL: 2013).

19. A/HRC/23/39/Add.1, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai: Mission to the United Kingdom of Great Britain and Northern Ireland (17 June 2013).

20. s.6(2(b) Public Processions (NI) Act 1998.

21. Section 62(4) and Section 62(5). This application is to the council but 'intimated to the chief constable'.

22. In Northern Ireland, the 11/1 form (for processions) states that it is the Parades Commission who 'may refuse to accept an incomplete form', while the 11/3 notification form (for protest meetings) states that it is the police who 'may refuse to accept an incomplete form' (though this division of responsibility seems somewhat anomalous following the 2005 reforms). The relevant police District Commander (or their deputy) must give his/her views (on Form 11/4) which is forwarded to the Commission – see the PSNI Service Procedure SP14/2008 (now superseded) at para 1(10).

23. Section 62(11B), Civic Government (Scotland) Act 1982 and section 6(5), Public Processions (NI) Act 1998

24. Section 62(11B)(b), Civic Government (Scotland) Act 1982 and section 6(5)(b), Public Processions (NI) Act 1998

25. Section 62, Civic Government (Scotland) Act 1982 (by way of statutory instrument subject to the negative resolution procedure).

26. In re CE's Application for Judicial Review[2015] NIQB 55, paras 18-21. Horner J also tentatively suggested that '[t]he box in Part 1 presently reads "name of person organising the protest" should perhaps be changed to "name of the person organising the protest or persons organising the protest if there is an organising body".'

27. Hamilton, M., 'Processions, Protests and Other Meetings' in Dickson, B. and Gormally, B. (eds.) Human Rights in Northern Ireland (Hart Publishing: 2015) pp. 179-206.

28. Rosie 2016: 3.51, 3.53-3.58.

29. Rosie 2020: 3.58.

30. Review of Parades and Marches in Northern Ireland (known as the The North Report), 1997.

31. The North Report, (1997), p.144, para.12.46.

32. HC Deb., ^4th February 1998, Col.1163.

33. Parades Commission (2000) Second Annual Report 1999-2000, pp.21-22. The 2002 Quigley Report referred to the role of the Authorised Officers as 'educating and informing' the NI Parades Commission and identified three benefits from their work: (1) reporting on local efforts to reach accommodation; (2) harvesting public perceptions of issues around parades; and (3) suggesting options for the Commission to consider. See, The Quigley Report (2002), p.215, para.16.39.

34. Parades Commission (May 2002), Procedural Rules, p.3, para.2.2.

35. Ibid., p.3, para.3.3.

36. Ibid., p.4, para.4.3.

37. This was one of the recommendations of the Northern Ireland Affairs Select Committee – 'that the Commission should not use [the Authorised Officers] to report on parades, but should employ separate staff for this purpose.' Northern Ireland Affairs Committee (2000-2001) Second Report: The Parades Commission. HC120-I, p.xx, para.78.

38. 2006 Guidance for Scottish Local Authorities pt54, p.20.

39. Review of Marches and Parades In Scotland: Guidance for Scottish Local Authorities (2006), p.20, para.53.

40. Review of Marches and Parades In Scotland: Guidance for Scottish Local Authorities (2006), p.22, para.60.

41. Rosie 2016, 3.20-3.31

42. Rosie 2016, 3.28.

43. Rosie 2016, 3.29.

44. Rosie 2016, 3.26.

45. Community Engagement Framework for Policing of Public Processions, Assemblies and Protests in Scotland, Police Scotland/Poileas Alba, ND

46. Review of marches and parades in Scotland: Guidance for Scottish Local Authorities (December 2006).

47. 2006 Guidance for Scottish Local Authorities Pt 62 p.22

48. Rosie 2016, 3.29

49. Rosie 2016, 3.29

50. https://www.gov.scot/publications/commission-future-delivery-public-services/ 'We must prioritise expenditure on public services which prevent negative outcomes from arising.'

51. Further information on the role of the PSNI in relation to processions can be found here: https://www.psni.police.uk/advice_information/parades-and-public-processions/

52. It is worth noting that, in England and Wales, decision-making in relation both to processions and other assemblies lies primarily with the police (see, sections 12 and 14, Public Order Act 1986).

53. Review of marches and parades in Scotland: Guidance for Scottish Local Authorities (December 2006), para 75.

54. Committee on the Administration of Justice (CAJ), 'How Public Order Policing Works in Northern Ireland: Standards and Accountability'(February 2016), p.5.

55. Rosie 2016: 3.64-3.68

56. Rosie 2016, 3.66

57. Rosie 2020, 3.168

58. UN Human Rights Committee, General Comment No. 37 (2020) on the right of peaceful assembly (article 21 ICCPR), 17 September 2020, para 22: 'The approach of the authorities to peaceful assemblies and any restrictions imposed must thus in principle be "content neutral" and not be based on the identity of the participants or their relationship with the authorities.'

59. The Public Processions (Amendment) (Northern Ireland) Order 2005.

60. Under section 63(5) of the Civic Government (Scotland) Act 1982, local authorities can impose conditions on funeral processions or any processions specified in an order made by Scottish Ministers under section 62(11B)(b) of the 1982 Act (neither of which are subject to a prior notification requirement). See also the Explanatory Notes to section 71(3), Police, Public Order and Criminal Justice (Scotland) Act 2006.

61. Section 14 of the Public Order Act 1986 confers on a senior police officer the power to impose conditions on assemblies 'being held' or 'intended to be held' (but not subject to a prior notification requirement).

62. See, for example, Determination made in relation to the parade-related protest by Rasharkin Residents Collective Notified to take place in Rasharkin on Friday 17 August 2018.

63. See, for example, Determination made in relation to the No.9 District Loyal Orange Lodge Parade notified to take place in Belfast on 25 June 2022, para G.

64. Section 11, Public Processions (NI) Act 1998.

65. Sections 63(1)(i), 63(5)(b) and 63(8) Civic Government (Scotland) Act 1982.

66. Article 5, Public Order (NI) Order 1987.

67. Section 13, Public Order Act 1986 (and similarly under Section 14A of the 1986 Act in relation to 'trespassory assemblies').

68. See: https://nihrc.org/publication/detail/parades-and-protests-in-northern-ireland. The Council of Europe has published a Guide on Article 6 of the European Convention on Human Rights: Right to a fair trial (civil limb) (updated to 31 December 2021) which addresses the question of the extension of Article 6 to other types of dispute.

69. Sections 8(6)(c) and 9A(6)(c).

70. 'Submission to the Northern Ireland Office on the Review of the Parades Commission from Community

Relations Council' (November 1999) in Northern Ireland Affairs Committee, The Parades Commission, HC120-II (2000–01) at 210.

71. Section 71, Police, Public Order and Criminal Justice (Scotland) Act 2006, Explanatory Notes: Powers and duties of local authorities: This section makes amendments to section 63 of the 1982 Act. It enables local authorities to consider a wider range of issues when deciding whether a procession should take place or if conditions should be placed on it, such as the risk of damage to property or disruption to the life of the community and whether the procession would place an excessive burden on the police.

72. General Comment No. 37, para 64. See also para 52.

73. General Comment No. 37, para 35.

74. See for example D. Bryan, 'The Politics of Community' Critical Review of International Social and Political Philosophy Vol. 9, No. 4, 603–617, December 2006.

75. Home Office, Review of Public Order Law (White Paper) (Cmnd 9510), London, HMSO, 1985, para. 4.22.

76. In the Matter of an Application for Judicial Review by Conor Murphy (1991).

77. UN Human Rights Committee, EN.pdf">General Comment No.37 on the right of peaceful assembly (article 21 ICCPR), 17 September 2020, para 31.

78. UN Human Rights Committee, EN.pdf">General Comment No.37, para 47.

79. UN Human Rights Committee, General Comment No. 37 para 85.

80. E.g. Fáber v Hungary Application No 40721/08, judgment of 24 July 2012, paras 18 and 56.

81. E.g. Identoba and Others v Georgia, Application No 73235/12, judgment of 12 May 2015, paras 65-81; P.F. and E.F. v the United Kingdom, Application no. 28326/09, decision of 23 November 2010, para 38.

82. Király and Dömötör v Hungary, Application no 10851/13, judgment of 17 January 2017, paras 41-43 and 60-82. See also, Vona v Hungary, Application no 35943/10, judgment of 9 July 2017, para 66 ('the reliance of an association on paramilitary demonstrations which express racial division and implicitly call for race‑based action must have an intimidating effect on members of a racial minority, especially when they are in their homes and as such constitute a captive audience'); R.B. v. Hungary Application no. 64602/12, judgment of 12 April 2016, para 99 ('the Court accepts that in certain situations the domestic authorities might be required to proceed with the dispersal of a violent and blatantly intolerant demonstration for the protection of an individual's private life under Article 8').

83. See Article 20(2) ICCPR and Article 4 ICERD. In this regard, CERD General Recommendation No 35 at para 7 makes clear that the requirements of article 4 ICERD apply to racist hate speech in whatever forms it manifests itself, 'orally or in print, or disseminated through electronic media, including the Internet and social networking sites, as well as non-verbal forms of expression such as the display of racist symbols, images and behaviour at public gatherings, including sporting events.' Moreover, in its Concluding Observations on State Reports, the Committee has addressed the subject of assemblies involving hate speech and/or 'extremist' groups on a number of occasions: for example: Japan CCPR/C/JPN/CO/6, 20 August 2014, para 12; Czech Republic, CCPR/C/CZE/CO/3 22 August 2013, para 8; Belgium CCPR/C/BEL/CO/5, 16 November 2010, para 22.

84. Beizaras and Levickas v Lithuania, Application No 41288/15, judgment of 14 January 2020, para 129.

85. A similar point was accepted in the non-protest case of Mayor and Burgesses of the London Borough of Bromley v Persons Unknown [2020] EWCA Civ 12, paras 78-79. Here, in assessing the potential impact on the Gypsy and Traveller community of an injunction prohibiting encampment on or occupation of public spaces in one local authority area, Coulson LJ (with whom Haddon-Cave LJ agreed) held that even though each case must be looked at on its own merits, the cumulative impact of injunctions in other local authority areas was a material consideration in assessing the proportionality of an injunction in a specific local authority area, albeit one that should not be afforded undue weight or significance. In that case, the potential interference with the right to private and family life arose because of the imposition of injunctions prohibiting encampment (wheresoever they were imposed). For our purposes, the potential interference with the Article 8 right arises because of the impact of processions (irrespective of who is the organiser). In pointing to this non-protest case, we are not drawing any equivalence between the substantive impact of those injunctions and the substantive impact of processions: this must always be determined on the facts of each case and based on an assessment of what rights are engaged. Indeed, it seems to us logical also to recognise that a similar cumulative argument could be raised by those seeking to exercise their right of peaceful assembly: for example, that in assessing the proportionality of any restrictions on a particular procession, one material consideration (which again, should not be afforded undue weight or significance) would be the impact of restrictions on processions organised by the same organiser across different local authority areas.

86. The 2006 Guidance to local authorities provides that: 'Your local authority will need to consider the circumstances of each notification and assess how far the procession would affect the community or any individual or organisation who can reasonably be considered to be part of a community affected by the notification, and to attach weight accordingly.'

87. https://londonderrybandsforum.com/resources/#maiden-city-accord

88. https://museumoffreederry.org/introducing-the-derry-model/

89. Hamilton, M and Bryan, D (2006) 'Deepening Democracy: Dispute System Design and the Mediation of Contested Parades in Northern Ireland', Ohio State University Journal on Dispute Resolution. Vol.22 Issue 1, pp.133-187.

90. Hamilton, M and Bryan, D (2006) 'Deepening Democracy: Dispute System Design and the Mediation of Contested Parades in Northern Ireland', Ohio State Journal of Dispute Resolution. Vol.22 Issue 1, pp.133-187.

91. https://www.newsletter.co.uk/heritage-and-retro/heritage/warning-from-senior-orangeman-on-formation-of-scottish-parades-commission-3395938

92. Northern Ireland Act 1998, Schedule 3, para 10.

93. The Haass-O'Sullivan Report – Proposed agreement of 31 December 2013.

94. https://www.gov.scot/publications/local-authorities-factsheet/

95. See also, 'Temporary Traffic Regulation Orders (TTRO) Case Study,' in HMICS, Thematic Inspection of the Scottish Police Authority (September 2019) p.29.

https://www.hmics.scot/sites/default/files/publications/HMICS20190926PUB%28acc%29.pdf

96. Rosie 2016, 3.69-3.91.

97. Police Scotland and COSLA, Position Statement on Marches, Parades and Static Demonstrations – Road Traffic (2020).

98. Inserted by section 6 Roads (Miscellaneous Provision) Act (Northern Ireland) 2010. The relevant authority is the local council in which the road is located (unless it is a motorway in which case the Department for Infrastructure is responsible). A review of the 2010 law was initiated by the Department of Infrastructure on 27 July 2020 with a closing date for responses of 24 September. See further: https://www.theyworkforyou.com/ni/?id=2021-11-22.5.1 (Oral Answers to Questions, 22 November 2021).

99. Contrast paragraph 1(3) of Schedule 3A of the Road Traffic Regulation (NI) Order 1997 with section 16A(4) of the Road Traffic Regulation Act 1984. Curiously, open-air 'public meetings' (whether related to a procession or not) are not excluded from Schedule 3A. Notably too, the provision in s.16A(3) of the legislation applicable in Scotland – that '[b]efore making an order … the authority shall satisfy themselves that it is not reasonably practicable for the event to be held otherwise than on a road' – is not contained in the Northern Ireland legislation.

100. Paragraph 4 of Schedule 3A

101. General Comment No. 37, Para 24.

102. General Comment No.37, para 64.

103. In a manner not dissimilar to the arguments put forward by the Hungarian authorities in Patyi and others v Hungary (2008), para 12.

104. Bryan, D (2007) 'The Anthropology of Ritual: Monitoring and Stewarding Demonstrations in Northern Ireland' in Anthropology in Action. Vol.13:1-2 pp.22-32.

105. https://londonderrybandsforum.com/resources/#maiden-city-accord

106. https://museumoffreederry.org/introducing-the-derry-model/

107. Rosie 2016: 2.46-2.49