Short Life Working Group on Facilitating Peaceful Assemblies: report

2. Notification procedures

2.1 Reframing the licensing mentality: We were struck by the fact that the regulation of processions in Scotland is situated within a licensing paradigm. This has implications for the way in which the notification process is perceived and understood.^[6] In particular, a licensing framework sustains a misguided view that local councils can straightforwardly deny parade 'applications' and diminishes the weight properly afforded to the right of peaceful assembly.

2.2 Notification requirements are generally regarded as enabling the authorities to co-ordinate competing uses of the same space at the same time. They are a tool that can aid efficiency in the use of stretched policing resources – to borrow the words of one US judge, by helping eliminate 'resource-depleting guessing games'.^[7]

2.3 However, it is important to emphasise that a mandatory 'notification' requirement is fundamentally different from an 'authorisation' procedure. The presumption in a notification framework is that the organiser of an assembly can proceed unless and until the relevant authority intervenes. In contrast, no such presumption exists under an authorisation, licensing or permit procedure. Under the latter system, the organiser of an assembly must instead wait for positive affirmation (by way of permission, approval of an application or the granting of a license or permit) before assuming that a procession may proceed.^[8]

2.4 Both the European Court of Human Rights and the UN Human Rights Committee have said that a notification requirement can be justified only insofar as its purpose is to enable the better facilitation of the right of peaceful assembly. As such, the enforcement of a notification requirement cannot be regarded as an end in itself.^[9]

2.5 We note the observations made by Michael Rosie that a licensing mentality is 'strongly implicit on a number of local authority websites.'^[10] Likewise, in our view, there is a need to thoroughly review the language used to describe the notification process on local authority webpages and in corresponding forms and relevant guidance, replacing references to 'application' (or similar) with 'notification'.

2.6 The notification procedure (a single gateway): We underline the importance of having a clear and simple process for notification. In Northern Ireland, notification of processions via the 11/1 form is submitted to the police either in person (at the police station nearest to the proposed starting place of the procession) or by permitted electronic means.^[11] The Chief Constable has an obligation to ensure that a copy of any notice is immediately sent to the Commission.^[12] A key difference between Northern Ireland and Scotland is that, in Northern Ireland, static protest meetings related to a public procession must also be notified to the police using the 11/3 form (discussed further below).

2.7 The legislation in Scotland requires written notice to be given to the relevant local authority (or authorities if the procession will span more than one local authority area) and to the chief constable. We understand, however, that a single gateway (via the relevant council) exists in most local authority areas such that parade organisers do not also need to notify the police. In our view, section 62(1)(b) Civic Government (Scotland) Act 1982 ought to be repealed so as to remove the apparently defunct requirement for organisers to submit notification to the chief constable.

2.8 The scope of the notification requirement: We heard from several parties that the definition of 'procession in public' in section 62(12) of the Civic Government (Scotland) Act 1982 – '"procession in public" means a procession in a public place' – provides no guidance as to the kind of event that ought to be considered as a 'procession'. The corresponding definition in section 17 of the Public Processions (NI) Act 1998 – '"public procession" means a procession in a public place, whether or not involving the use of vehicles or other conveyances' – is only marginally more elaborative, but it is accepted (even if not necessarily welcomed by those concerned) that this encompasses, for example, organised running and cycling events and convoys of classic cars.^[13]

2.9 While we have considered the possibility of recommending the introduction of a 14-day notification requirement for parade-related protests in Scotland, we are not convinced that doing so is either necessary or helpful. In Northern Ireland, notification of a counter-protest has sometimes served as a proxy for registering concerns about a procession. However, rather than imposing equivalent procedural requirements on those who might wish to protest in Scotland, we believe that the better solution is to provide enhanced opportunities for those who may have concerns about a parade to be able to present their concerns to the relevant authority (see, for example, section 6.7 below).

2.10 The notification timeframe: In both Northern Ireland and Scotland, it is a legal requirement to provide 28-days advance notice for public processions.^[14] In Northern Ireland, organisers of protest meetings related to a procession must provide 14 days notification.^[15]

2.11 In Scotland, section 70 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 raised the notification requirement from seven days to 'no later than 28 days' beforehand.^[16] The stated reasons for this change (which arose from a recommendation of the 2006 report of Review of Marches and Parades in Scotland by Sir John Orr) were to give local authorities and the police time to consider notifications in more detail, complete risk assessments and impact analyses, ensure a more consistent approach to decision-making, help more effective planning of police resources, and ensure that communities have more notice of proposed processions in their areas and an opportunity to express their views.^[17]

2.12 While some of those to whom we spoke (including parade organisers) were broadly in favour of retaining the 28-day notification timeframe, we have three concerns about the potential implications of doing so:

i) Risks entrenching a bureaucratic and regulatory mindset (see also the discussion of Temporary Traffic Regulation Orders (TTROs) below). In international comparative terms, it is notable that a 28-day notification period is an outlier.^[18] In many countries, a significantly shorter notification period for processions is provided for. In this regard, following his country visit to the United Kingdom in 2013, the then UN Special Rapporteur on the Rights of Peaceful Assembly and Association, Maina Kiai, stated:

The Special Rapporteur notes that the 28-day notice period is underpinned by a desire to ensure that notifications are given due attention, facilitation of the events is effectively planned and all concerned parties are adequately consulted. He however believes that a much shorter notification period should be in place as a majority of the processions in Scotland recur annually, such as those held by the Loyal Orders, and therefore these types of processions are fairly predictable as to facilitation needs.

By contrast, processions and assemblies taking place for the first time constitute a minority of the events for which prior notification is required. Even in these cases, it cannot be presumed that a 28-day notification period is necessary. Notification procedures should be subject to a proportionality assessment. This implies that the period within which a prior notification is required to be submitted should be proportionate to the objective the notification is supposed to achieve. A 28-day notification is inordinately long considering that processions in Scotland do not raise overly complex questions for resolution. A waiver of this notice period can be granted only in exceptional circumstances and therefore does not ease this requirement.^[19]

ii) Encourages short-term dialogue and sets unrealistic expectations of what this can achieve: The 28-day timeframe creates the impression that 28 days somehow allows sufficient opportunity for dialogue (mediated or otherwise) and unhelpfully ties such dialogue to the notification process. In our view, this potentially becomes an obstacle to developing a broader culture of dialogue enabling relationships that are built on trust and capable of sustaining ways of dealing with contention in the long term.

iii) Increases the risk (or perception) of inconsistency in responding to late notifications: The 28-day timeframe is primarily designed to accommodate parades that take place annually on a cyclical basis and is not well suited to other types of procession. In consequence, organisers of such processions might struggle to provide the requisite notice – and may then have to explain why it was not reasonably practicable to provide 28-days' notice. In Northern Ireland, if not reasonably practicable to give 28-days' notice, notice must be given 'as soon as it is reasonably practicable' to do so.^[20] In Scotland, a local authority may, in exceptional circumstances after consulting with the Chief Constable, dispense with the notification requirement if a person proposing to hold a procession applies to the authority setting out the reasons why timely notification was not provided).^[21]

Neither in Northern Ireland nor in Scotland does the legislation specify who should assess whether or not timely notification was 'practicable' or decide whether or not to accept a late notification^[22] and no guidance is provided in terms of how late notifications are dealt with. As such, waiving the notification requirement gives rise to concerns regarding consistency. In this regard, to insist on the 28-day requirement would be in tension with the permitted justification for notification requirements – i.e. that they may be imposed only to enable the better facilitation of the right of peaceful assembly.

2.13 Exemptions: Funeral processions are exempted from the notification requirement in both jurisdictions.^[23] In Northern Ireland, the Secretary of State may specify a class or description of procession that is exempt from the notification requirement (and Salvation Army parades have been exempted in this way).^[24] Similarly, in Scotland, Scottish Ministers can make an order specifying other processions or class of processions to which the notification requirement does not apply.^[25]

2.14 Incomplete notification: The specific issue arose in Northern Ireland in July 2005 of whether the notification form needed to specify an individual organiser, or whether instead a number of persons could be listed as de facto organisers jointly. The Orange Order argued that no single person in an Orange Lodge should be held individually responsible. In the face of a legal challenge, ultimately the NI Parades Commission decided to accept the form with multiple names listed. A more recent challenge was brought where the name of the organiser was omitted from the notification form for a parade related protest meeting. Here, the Court held that it was entirely correct for the NI Parades Commission to accept and consider even incomplete notifications. The Court concluded that '… the legislature did not intend that any failure to comply to the letter with the completion of the form would render it invalid and/or void and/or incapable of being accepted either by the PSNI or by the Parades Commission.'^[26]

2.15 Non-notification: The powers of the Local Authority under section 63 Civic Government (Scotland) Act 1982 can only be exercised in relation to a procession that has been notified or where notice 'falls to be treated as having been given in accordance with s.62(1)'. The NI Parades Commission's Procedural Rules (para.5.3) suggest that a Commission meeting and decision would follow only after 'notification'. In our view, Local Authorities in Scotland should be able to rule on unnotified processions. This argument is afforded some support by the English case of Powlesland v Director of Public Prosecutions (2013). Here, the court rejected an argument that the police had no power to impose conditions on a procession (a critical mass bicycle ride) simply because its route had not been formally notified. The Court emphasised that the purpose of section 12 of the Public Order Act 1986 (which, like section 63 of the Civic Government (Scotland) Act 1982, provides the statutory foundation for the imposition of restrictions on public processions) was 'to enable an advance precautionary direction to be given for processions which are proposed, notified or not…' The court stated that '[t]here is no purpose in excluding unnotified processions from the scope of the power to give an advance precautionary direction.'^[27]