Short Life Working Group on Facilitating Peaceful Assemblies: report

7. Interpreting the statutory criteria

7.1 The Public Processions (NI) Act 1998 extended the statutory criteria for determining whether conditions should be imposed on a parade in Northern Ireland. This was done in an attempt to move away from decisions based primarily on public order because such decision-making can itself escalate the potential for disorder (with groups seeking to threaten ever greater violence unless the others' rights are restricted). The Public Processions (NI) Act thus provides for the Parades Commission to have regard to 'any impact which the procession [or meeting] may have on relationships within the community.'^[69] This criterion has however faced criticism, including from the Community Relations Council in Northern Ireland:

'There is no indication of how [the impact of a parade on community relations] is monitored, either before or after the event, so that outcomes can inform future decisions. Nor is there any indication of a base line used in the setting of judgements.'^[70]

Given the different socio-political circumstances in Northern Ireland and Scotland, and moreover the need to enhance the clarity of decisions, we do not believe there is a convincing argument for extending this criterion to Scotland.

7.2 Section 71 Police, Public Order and Criminal Justice (Scotland) Act 2006^[71] amended section 63 of the Civic Government (Scotland) Act 1982 by, amongst other things, specifying the considerations (in section 63(8)) to which the local authority shall have regard when deciding whether to prohibit the holding of a procession or impose conditions on it:

• the likely effect of holding the procession on public safety, public order, damage to property, and disruption of community life;
• the extent to which the containment of risks arising from the procession would (whether by itself or in combination with any other circumstances) place an excessive burden on the police;
• whether the organiser(s) or some of the likely participants have taken part in a previous procession(s) in the same local authority area which
  • breachedany conditions or prohibition imposed,
  • did not follow any local authority code of conduct,
  • had the effect of multiplying either the risks to public safety, public order, damage to property, and disruption of community life or the burdens placed on the police in containing the risks arising from the procession.

7.3 The UN Human Rights Committee's General Comment No.37 should inform the interpretation of these criteria. For example, the criterion in section 63(8)(b) of the 1982 Act – the extent to which the containment of risks arising from the procession would … place an excessive burden on the police – must be read in light of the State's obligations to cover the costs of policing and security and other public services associated with peaceful assemblies.^[72] CCPR/Shared%20Documents/1_Global/CCPR_C_GC_37_9233_E.docx">General Comment No.37 also emphasises that States must 'ensure adequate training and resources for officials involved in these decisions at all levels of government.'^[73]

7.4 A number of stakeholders spoke of the difficulty of interpreting the 'disruption of the life of the community' criterion.^[74] It is noteworthy that the Westminster government's intention in relation to the similarly worded provision in the 1986 Public Order Act (albeit, there further qualified as 'serious disruption') was to enable the police 'to limit traffic congestion, or to prevent a bridge from being blocked, or to reduce the severe disruption sometimes suffered by pedestrians, business and commerce'. The examples cited were of 'marches being held through shopping centres on Saturdays, or through city centres in the rush hour.'^[75]

7.5 The leading case in Northern Ireland concerning the interpretation of the equivalent 'disruption' provision there predates the establishment of the Parades Commission. It concerned the police decision not to issue any direction under article 4 of the Public Order (NI) Order 1987 (which also has the qualification 'serious disruption') to restrict an Orange parade on 12th July, 1991 in Pomeroy.^[76] The applicant argued that the parade may result in serious public disorder, serious damage to property or serious disruption to the life of the community. Interpreting the latter provision for the first time in Northern Ireland, McCollum J stated that (amongst other factors) the effect of the parade on shops and other commercial activities in the village, and on the liberty and movement of the population, should be considered. Furthermore, the level of disruption might be affected by the demographic makeup of the majority population (and the fact that very few members of the community would wish to take part in or be associated with the parade). Although an appeal by the Chief Constable led to McCollum J's ruling being overturned on the basis that the police had taken the relevant considerations into account, the then Lord Chief Justice, Sir Brian Hutton, affirmed the lower court's broad interpretation of the 'disruption' criterion:

In applying those words it is appropriate … to take account, not only of physical matters such as the disruption of traffic and the blocking of streets, but also of the annoyance and upset which may be caused to a community by a procession passing through it, if it is shown that as a consequence there is disruption to life in that community.

7.6 Fundamentally, this criterion must be viewed through the lens of human rights law. In this regard, General Comment 37 notes that '… broader society may be expected to accept some level of disruption as a result of the exercise of the right [of peaceful assembly].'^[77] Moreover, '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 have to be accommodated, unless they impose a disproportionate burden, in which case the authorities must be able to provide detailed justification for any restrictions'.^[78] Crucially, '[a]n assembly that remains peaceful while nevertheless causing a high level of disruption, such as the extended blocking of traffic, may be dispersed, as a rule, only if the disruption is "serious and sustained".'^[79]This cumulative requirement of disruption being both 'serious and sustained' is specifically intended to preclude dispersal in cases involving either serious disruption that is short-lived or long-term disruption that does not meet the requisite threshold of seriousness.

7.7 International human rights law also establishes a number of crucial legal threshold tests concerning intimidation,^[80] inhuman and degrading treatment,^[81] conduct interfering with private life,^[82] and hate speech.^[83] States also have a positive obligation to investigate in an effective manner whether speech or conduct (including materials posted online by private individuals) constitutes incitement to hatred and violence.^[84]

7.8 The relevance of previous processions in the same local authority area involving the same organiser and/or some of the same participants is expressly provided for in s.63(8)(c)(iii) of the Civic Government (Scotland) Act 1982. We recommend that further consideration be given to the factors relevant to the interpretation of the 'disruption of the life of the community' criterion (in section 63(8)(a)(iv) of the 1982 Act). In making this recommendation, the Working Group is of the view that the cumulative impact of processions on the rights of others in a particular locality is a factor 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.^[85] This is 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.

7.9 Emphatically, this is not to suggest that blanket restrictions (such as a quota on processions in a particular locality) could be imposed – and it does not detract in any way from the need to consider each notification on its own terms.^[86] It is simply to say that the frequency and cumulative impact of parades in an area is one factor amongst many that the relevant authority may legitimately take into account as it seeks also to uphold the rights of those who live and work in an area.