Short Life Working Group on Facilitating Peaceful Assemblies: report

5. Decision making in relation to 'contested' or 'sensitive' parades

5.1 One key difference between a notification process and a process premised on the granting of authorisation, license or permit concerns the way in which notified processions are processed and considered by the relevant authority. In a notification paradigm, it should not be assumed that all notified processions would be subject to a formal decision-making process. There is, instead, a presumption in favour of the right of peaceful assembly. In contrast, an authorisation paradigm displaces this presumption, holding instead that an assembly must go through an affirmative approval process before the right may be exercised. The implication here is that some initial assessment must be made as to whether a procession (and perhaps also any related protest meeting) ought to trigger a formal adjudication process. In the following section, we consider how such a process might usefully operate.

5.2 When the NI Parades Commission was given the authority to make determinations on parades in 1998 it was to take the pressure off the police in making those decisions. This is related to the historic position of the Royal Ulster Constabulary, the eventual need for police reform and some very high-profile disputes over parades in Northern Ireland in the 1990s during the peace process. The context in which the NI Parades Commission came into existence is part of the peace process, related to a deeply divided society and the potential for public disorder that had a hugely significant influence on peoples' everyday lives.^[51]

5.3 The context in Scotland is very different. Nevertheless, legislation in Scotland shares with Northern Ireland the idea that decisions concerning the right of peaceful assembly should lie mainly with a form of civic authority rather than with the police.^[52] In Scotland it is a Local Authority, in Northern Ireland it is the Parades Commission. These forms of civic authority differ in a number of respects, but they share something important in common. In being granted authority to make decisions over events that are ultimately to be 'policed' mainly by the police, the authority needs to develop a relationship of trust with the police whilst at the same time remaining independent from the police and not over-relying on police submissions. It should also be noted that ultimately any decisions can be challenged in the courts.

5.4 In both contexts, legislation provides a broad context for this relationship but as can be evidenced in both jurisdictions there can be real and understandable tensions. This is clear in two particular respects: (i) the police, legitimately, provide important evidence in respect of a procession and their assessment of its likely impact against the statutory criteria (including in relation to potential disorder and/or disruption) and (ii) the police are then required to 'police' the procession, making decisions based on a human rights framework. Broadly speaking the police are well resourced, they have mechanisms for collecting information, and they have officers who have long-standing experience in policing processions.

5.5 Unsurprisingly, there is a danger both in Scotland and Northern Ireland that the decision-making authority becomes over reliant on information provided by the police. This is not a criticism of any of the institutions that we have met with but an outworking of the legitimate separation of decision-making over processions from the institution of the police.

5.6 There is therefore an important division of labour to be developed between the police and those with the authority to make decisions. This requires that the Local Authority (or the Parades Commission) has sufficient capacity, experience and robust mechanisms with which to collect information, facilitate channels of (voluntary) communication between the police and procession organisers, engage with interested parties, engage and question the police, call on community impact assessments and provide a robust mechanism for making decisions. The working group notes that in some areas of Scotland this is a relatively small function for the Local Authority, however in Glasgow, Edinburgh and a number of surrounding areas this is much more significant.

5.7 Our working groups suggests that in certain areas of Scotland, the Local Authority should have sufficient resources and capacity to undertake its adjudicatory responsibilities without relying exclusively on Police Scotland (whilst recognising too that a good working partnership with the police will often also be important).

5.8 Where Local Authority officials in Scotland are of the view that any issues about a notified procession (including concerns arising from a previous event) can be dealt with through informal contact with the organiser – either by phone or e-mail, or through a meeting with the organiser and the police – a fast-track procedure (avoiding the formal convening of a Processions or Licensing committee) is often followed. While the fast-track procedure does not absolve the Local Authority from publishing the notice and from contacting those on relevant opt-in lists, it offers organisers of a procession – providing that any issues identified have been dealt with to the satisfaction of the Local Authority (in consultation with Police Scotland) – the possibility of early confirmation that the event can go ahead, with or without conditions.^[53]

5.9 In Northern Ireland, where a procession is identified as 'sensitive', the Police Service of Northern Ireland will be asked to submit a detailed report on Form 11/9, detailing analysis of the human rights implications (including engagement of competing rights).^[54]

5.10 Without a clear understanding of what the terms 'sensitive' and 'contentious' mean, their invocation can sometimes appear subjective or speculative. Some of those to whom we spoke raised concerns about the measure used to determine contention or sensitivity. Clearly, at one level, contestation simply means that there is a level of concern in relation to, or perhaps even opposition to, a notified procession. However, given that categorising a procession as contested or sensitive has the effect of escalating its consideration within the regulatory process, we believe that it is important that any such 'filtering' of processions is undertaken in Scotland by Local Authorities against benchmarks that are transparent and that operate to amplify legitimate concerns (those that ought to be addressed) and to sift out those that are either trivial or vexatious. In this regard, we also note some of the observations made by Michael Rosie in his 2016 report:^[55]

'Relatively little guidance … is given on what kinds of comments and objections local authorities can meaningfully act upon. This would be useful since we heard the frustration from some local authority officials that many of the objections they received fell outside what could be acted upon'.^[56]

Similarly, in our view, it is vital to ensure greater public understanding of the principles that Local Authorities rely upon when assessing the relevance and merit of concerns regarding a procession.^[57]

5.11 The regulatory system should aim to be streamlined and light-touch so as to enable the filtering-out of processions that do not require any form of adjudication. This filtering process – and any subsequent intervention by the relevant authorities – should be based on the anticipated impact of the procession (and not on who is marching or what is the message being conveyed – with the exception of messages that advocate hatred constituting incitement to discrimination, hostility or violence).^[58]

5.12 To ensure greater certainty and consistency in this regard, the Working Group considers that the initial (prima facie)measure of contestation or sensitivity should be whether or not a procession raises rights-based concerns. In other words, is there compelling evidence to suggest that a notified procession raises concerns that map onto the legitimate aims set out in Article 11(2) ECHR (principally, the prevention of disorder or crime and/or the protection of the rights and freedoms of others). In part, this assessment involves considering whether the impact of a procession on others may reach the relevant threshold such as to engage other rights (including the right to private life under Article 8 ECHR or the right to peaceful enjoyment of possessions under Article 1 of Protocol 1 ECHR – see further, section 7.7 below). Human rights considerations should be at the core of decision-making and a rights-based approach should be firmly embedded in the regulatory process (albeit in a way that avoids unduly legalistic terminology).

5.13 The Local Authority should seek to provide a summary explanation of any such concerns early in the decision-making process (not simply in a final decision or determination) so as to enable the relevant parties to take all reasonable steps to address the issues raised. As discussed (see, in particular, sections 4 and 7), and while we stress again that we have not been able to undertake a full review of the process, a multi-agency model – involving organisations with as wide a community reach as possible and who are privy to different sources of information – should be adopted so as to more comprehensively inform any rights-based assessment.

5.14 Two specific questions that would benefit from further consideration and discussion amongst stakeholders in Scotland are whether Local Authorities should have the power to impose conditions on (a) related protest meetings and (b) supporters of processions.

5.15 The Public Processions (NI) Act 1998 was amended in 2005 to confer on the NI Parades Commission the power to impose conditions on both counter-protesters and supporters of processions.^[59] While we did not hear strong views on these points in Scotland, we can see some merit in having the same regulatory body taking decisions about processions, supporters of processions and any related counter-protests (even if the latter are not required to be notified – see further, Section 2.9 above).

5.16 The question of how the Local Authority might seek to impose conditions on protest meetings not subject to an advance notification requirement is not without precedent. In this regard, it is of note that such a power already exists for Local Authorities in relation to funeral processions (for which no notification requirement exists)^[60] and also for the police in relation to assemblies 'being held' or 'intended to be held' (but similarly, not subject to a prior notification requirement).^[61] See also the discussion of the Powlesland case at Section 2.15 above).

5.17 The reason that the adjudicatory remit of the NI Parades Commission was extended to include protest-meetings and supporters of processions was to ensure that the decision-making authority possessed the requisite powers to cover different eventualities within the totality of related events. The Commission has on many occasions utilised these powers to impose conditions on related protest meetings^[62] and on supporters of a procession.^[63]

5.18 Maintaining a division of labour between Local Authorities and Police Scotland in respect of processions, protests and supporters potentially risks decisions being made on the basis of different logics and priorities (those of the local authority and those of the police, respectively). As such, the rationale for potentially extending the powers of Local Authorities to related protest meetings and supporters is not primarily about expanding the regulatory framework, but rather to firmly locate the decision-making power in a single place, reduce the risk of uncoordinated decision-making at a practical level, and crucially, to ensure that a wider knowledge base (beyond the police) is ultimately relied upon to inform decisions that are closely related and that inevitably impact on one another.

5.19 A further striking difference between Northern Ireland and Scotland is that in Northern Ireland, only the Secretary of State (and neither the police nor the Parades Commission) can prohibit a public procession^[64] – even if it has sometimes been argued by the affected parties that the conditions imposed are tantamount to a prohibition. In Scotland, the power to prohibit processions (as with the power to impose conditions) lies with Local Authorities.^[65] Notably, however, in Northern Ireland the power to prohibit processions and open-air public meetings does not reside with the NI Parades Commission but lies instead with either the Department of Justice (on the basis of serious disorder, serious disruption, or undue demands upon the police) or with the Secretary of State (on the basis of undue demands on the military).^[66] In England and Wales, the power to prohibit does not reside with the police, but involves an application by the police to the local council for a prohibition order (of up to 3 months) and the relevant council must in turn obtain the consent of the Secretary of State.^[67]

5.20 While these powers to prohibit are very rarely used, the fact that no distinction is made in Scotland between imposing conditions on and prohibiting processions (in terms of both the relevant authority and the corresponding statutory criteria) may strengthen and entrench the misplaced idea that the regulation of processions is a 'licensing' matter and serve to embolden a public perception that it is the gift of the Local Authority to grant or deny an 'application'. We suggest that there may be some advantage in locating the power to prohibit public processions outside of Local Authorities, and in creating a higher statutory threshold for prohibition than exists for imposing conditions.