Review of the 2016 Independent Report on Marches, Parades and Static Demonstrations in Scotland

Section 2: Relevant Developments 2016-2019

There have been three key developments in Scotland's experience of marches and parades since 2016. The first and most widely reported of these are rising tensions around Loyal Order parades and subsequently around Irish Republican marches in Glasgow. This has seen some public disorder, a court case, the prohibition of some parades, and has required – at times - a very substantial policing presence.

The second of these developments has been an increasing number of marches connected with support for, or opposition to, a second Scottish Independence Referendum and the likelihood of increasing numbers related to 'Brexit'. By and large these marches have passed off very successfully, but some have raised serious issues 'behind the scenes' and considerable difficulties in planning and ensuring safety for local authorities and for Police Scotland. These issues have led to criminal charges but received relatively little by way of media attention.

The third development is, to some degree, related to both the previous ones. There have been a number of counter-protests to Loyal Order, Irish Republican and pro-Independence parades. The facilitation of these complicate planning and operational issues and may have potential consequences for public order. For the most part these static demonstrations have been peaceful and orderly, but there have been occasions where they have presented concerns or developed into disorder.

These recent issues will be reflected upon further in the final sections of this report after a consideration of the progress made on the 21 recommendations in the 2016 Report. Before doing so it is worth exploring these developments carefully.

Glasgow

Glasgow has seen the most marked conjunction of these three developments. A sectarian assault on the parish priest of St Alphonsus Church by a follower of the city's main Orange parade in July 2018 provoked heightened tensions, particularly
in the East End of the city. Routes past two Catholic churches, St Alphonsus on London Road and the linked St Mary's on Abercromby Street, became highly contentious. For some people any Loyal Order parade past these churches after the assault on Canon White would be a flagrant provocation; for others this was creating a 'no-go' area and punishing organisations for the criminality of an individual they had no connection with.

One of the less appreciated aspects of this difficulty in the East End was that the route past St Alphonsus Church was not a 'traditional' one for the Loyal Orders. Historically their preferred route from the Bridgeton/Dalmarnock area into the city centre was via the Gallowgate – however, there were public order issues related to that route and on police request some years ago the route was changed to London Road. The area, then, has some 'history'.^[1]

As concerns over routes in the East End mounted some small counter-protests were held outside St Alphonsus and St Mary's. A protest group – Call It Out – was formed which called for the re-routing of all Loyal Order parades away from Catholic Churches. In May 2019 an Orange Order parade went past St Alphonsus. The Call It Out counter-protest directly outside the church was relatively large – about 200 persons – and a larger than normal number of 'followers' accompanied the parade on the pavement opposite. The police operation that day was very substantial, requiring a large number of both conventional and tactical officers, as well as a mounted section. Police Scotland noted that the same march in previous years had required 11 conventional officers: on this occasion over 100 officers, many with specialist training and equipment, were deployed. The mood was very tense indeed, with rumours of football hooligans gathered in local pubs. Police later reported some sectarian insults directed towards the protestors, though there was no disorder.

Four parades with proposed routes past St Mary's Church were notified for the first weekend in June 2019, two from the Orange Order and two from the Apprentice Boys of Derry. Given the tensions in May, the Public Processions Committee of Glasgow City Council imposed a condition that the routes should be amended to avoid Abercromby Street and St. Mary's Church. The four notifiers appealed this decision and their conjoined case was heard in the Sheriff Court on 31 May 2019. Sheriff Reid dismissed the appeal (see section 2 – 'The Reid Opinion' below).

Around this time another protest group – Scottish Protestants Against Discrimination – emerged calling for the end of what they perceived as 'no-go' areas in the city. A voluntary re-routing by the County Grand Orange Lodge of Glasgow took their Boyne parade away from St. Alphonsus church in July 2019, but community tensions manifested themselves at an Irish Republican parade down Abercromby Street in late July. A counter-protest had gathered, causing police to temporarily halt the parade whilst extra resources were called in. Subsequent social media posts relating to the flute band inflamed the situation further. On 30 August an 'Irish Unity' march, organised by another Irish Republican flute band faced a substantial Loyalist counter-protest in Govan, leading to widely publicised scenes of disorder.

In response to the Govan disorder a Glasgow City Council spokesperson was reported as saying:

The scenes in Govan tonight - and those we have seen elsewhere in the city on too many occasions in the last year - are unacceptable. The Council is clear that the law expects it to facilitate public processions; including those that some people oppose or find offensive.

However, this cannot continue to be at the expense of the overwhelming majority of Glaswegians, who want nothing to do with these marches, or counter-protests.

The city needs and wants fewer marches. We are prepared to consider any action that will protect communities from morons intent on bringing mayhem to the streets of our city.^[2]

The following weekend, on 7 September, there were two further Irish Republican marches in Glasgow. Both attracted large counter-protests around the Broomielaw district and required a very substantial, perhaps unprecedented, level of policing. At the second counter-protest pyrotechnics were thrown, injuring one police officer. Later media reports suggested that the costs to Police Scotland to provide 500 specialist public order officers was around £300,000, with additional costs for conventional officers, and helicopter, mounted and river support.^[3]

Concerns about the increasing tensions in Glasgow were marked, with Cabinet Secretary for Justice, Mr Humza Yousaf, noting calls for legislation to curb public disorder:

It does frustrate me, quite a lot frankly, that we are having to talk about legislation for disorder that is committed by grown men in 2019 in a multi-cultural city like Glasgow, when they are fighting battles of centuries gone by.

I think the fact you have to think about legislating to stop these individuals from committing that disorder is a pretty depressing state.^[4]

The weekend of 14 and 15 September saw six parades scheduled, five relating to Loyal Order or related organisations, and one to an Irish Republican organisation. On 11 September these parades were called, at short notice, to a meeting of Glasgow City Council's Public Processions Committee and prohibited. Some media suggested that the Local Authority were seeking to introduce a 'moratorium' or 'blanket ban' on Loyal Order and Irish Republican marches in the city.^[5] In response to the prohibitions, and to suggestions of further bans, protestors gathered – without incident - outside the City Chambers in support of the Loyal Orders.

Notably, at this high point in tensions around marches and parades in Glasgow, neighbouring South Lanarkshire seemed to have no such problems. With Loyal Order parades prohibited in Glasgow, the Orange Order paraded in nearby Rutherglen without incident or controversy.^[6]

Four parades were planned for Saturday 21 September, most notably the Pride of Govan flute band parade, one of the largest 'band parades' in the annual calendar, with approximately 800 participants. On this occasion no prohibitions were made, although the Local Authority appeared to have wished otherwise:

The Council has been placed in an impossible position in relation to the parade in Govan.

Police Scotland has said that, should the procession not go ahead, many of the 800 people due to take part will react angrily - which could lead to violence and a significant impact on the local community.

We deeply regret that the wider community in Govan will be subject to this disruption.

However, police have made it absolutely clear that this could be made worse if these people are not allowed to march.^[7]

Police Scotland, on the other hand, took a more nuanced position with Assistant Chief Constable Bernard Higgins explaining a careful balancing of rights:

Our view is that if the processions were banned, some form of protest and disorder could still take place and the policing profile for Saturday would therefore be similar.

If the processions go ahead it would allow us to continue to engage with known organisers to ensure balanced rights were upheld and to police the events under the conditions agreed by the Council.

I need to appeal to people who plan on taking part in processions or counter protests to do so peacefully. We will have a range of policing resources, including a range of specialist assets, in attendance and will take any necessary action against anyone causing disruption.

The decision to amend the route or the timing, or to prohibit any procession is a matter for the relevant local authority.

Police Scotland is required to assist Councils to make informed decisions by making appropriate representations on notifications which could potentially significantly risk public safety, disorder, damage to property or disruption to the life of the community.^[8]

The parades passed off without any difficulty, and there were no counter-protests. It should be noted, however, that senior figures in the Loyal Orders felt that the Local Authority's statement had served to sharply increase tensions at a point where there had been meaningful inter-party discussions on the need to reduce such tensions.

Tensions in the city abated thereafter, but concerns persist that the underlying issues remain unresolved and that a third 'marching season' marked by disorder would do Glasgow great harm, not least in terms of community relations, of the city's reputation, and the strain on policing resources.

Glasgow Review

Glasgow City Council had already begun a review of their Policy and Code of Conduct for Marches and Processions, but events in the latter half of 2019 required a wider response. The Local Authority, therefore, folded that review and instead established a Councillor-led and wide-ranging exercise.

In the Report to Council by the Council Leader, Ms Susan Aitken, it was clear that a 'moratorium; had been considered but was found to have no legislative basis:

2.5 … the Chief Executive was asked to consider all options, including a moratorium on all such parades, to allow time for all stakeholders to work together to find a long-term solution. On the question of a moratorium the legal advice received is that there is no current legislative basis for the Council to impose a moratorium on processions. Therefore, whilst the proposed review is ongoing and pending any changes that may be recommended or made to the Policy, Code or indeed legislation, the Council will continue to scrutinise every notification for a procession against all available information from officers and Police Scotland before determining whether it can go ahead with or without condition(s), or should be prohibited.

In light of the events in the city:

3.2 … it is considered that a more fundamental review of the Policy and the Code of Conduct, including current and potential legislative powers, is required to look at the balancing of the rights of assembly with issues such as disruption to the community, including those living, working and visiting there, disruption to businesses, anti-social behaviour, violence, public and resident safety, and cost.

3.3 A key issue will be the cumulative impact that the number and frequency of processions have on areas and to identify what steps can be taken, working with those related organisations, to address this.

3.4 This extended review will build on what has been done to date and provide an opportunity for local residents to let us have their views on the impact of processions through consultation, but will also involve focus groups, interviews, workshops and other forms of direct engagement with a wide range of stakeholders, including importantly, procession organisers, community representatives, public agencies, transport providers and businesses.^[9]

The Glasgow review is expected to report in Spring 2020 – and will offer an in-depth and relatively localised perspective. Rather than needlessly overlap with that exercise, therefore this review will offer a broader and wider lens and consider issues across Scotland.

The Reid Opinion

A further Glasgow development of relevance to all marches and parades was the Reid Opinion issued on 1 October 2019 and relating to an appeal by Loyal Orders against a re-routing of their parades away from St Mary's Church in Glasgow (see section on 'Glasgow' above). The opinion runs to 81 pages and considers very closely many aspects of the case.^[10] The full opinion is freely available, but a short summary is useful and helps tease out some important points of policy that the opinion illuminates.

In brief the Loyal Orders ('the pursuers') had claimed that the re-routing of their parades away from St Mary's Church on Abercromby Street was an unreasonable restriction on their freedom of peaceful assembly under Article 11 of the European Convention of Human Rights (ECHR). For Reid the crucial question was whether the action of 'the defender' [Glasgow City Council] undermined the 'essence' of the pursuers' Article 11 rights. Since there was no specific argument presented for the particular route notified (beyond that parades had taken it for the previous 15 years), then Reid saw no unreasonable restriction on the aims of the parade by a 'minimal' change of route:

Nothing was offered by the pursuer to shed any light on why this procession had any interest whatsoever, still less any reason, preference, purpose or need, to follow any particular route, still less to march in proximity to St. Mary's Church … in my judgment it follows logically that the precise route must be a matter of irrelevance and immateriality to the pursuer's procession. (#64, pp27-28)

In these circumstances, Reid's opinion was that:

… the [Local Authority's] re-routing of the procession is properly characterised as de minimis. It does not strike at the essence of the pursuer's supposed right of assembly as such. (#58, p24)

Further, for Reid it was important to distinguish between a restriction on a right to march per se, and a restriction on the precise manner of how that right is facilitated and exercised:

… it is legitimate to distinguish between, on the one hand, a restriction on Convention Rights to assemble (or march) and to express one's views publicly and, on the other hand, a restriction on the manner in which those rights are exercised. (#61, p26)

One of the most important points made by Reid is that the 'interference' of the re-routing was (in his opinion) necessary and proportionate because of the specific context of the proposed processions. It was the specificity of the two twinned Churches of St Alphonsus and of St Mary's being the parochial charges of the priest assaulted in 2018; the specificity of incidents at the parade passing St Alphonsus in May 2019; and the specificity of a police report noting high tensions around the parades and their proposed routes, that undergirded the Local Authority's actions:

…. the re-routing of the procession is plainly directed at achieving a number of the permitted legitimate aims listed in Article 11(2), ECHR namely, preventing 'disorder', preventing 'crime' and at protecting the 'rights and freedoms of others'. In this context, it can be inferred that the 'rights and freedoms of others' would include the rights of churchgoers (including the parish priest) to enter and exit St Mary's Church, and to worship there, peacefully and unimpeded by disruption … The conduct which is at the core of the defender's decision (as disclosed in the Chief Constable's submission) is apprehended criminality or disorder aggravated by religious prejudice. That particular kind of aggravated criminality or disorder is of a uniquely pernicious nature. It is aptly described as being disruptive of 'the life of the community' in terms of section 63(8)(a)(iv) of the 1982 Act. ^[11] (#71, p30)

This point is a crucial one since it identifies that local authorities, in considering parade notifications must take each case upon their own merits. There is little – if any – room in such considerations for 'blanket bans' or enforced 'moratoria'. Nor is there room for directing parades away from particular routes unless the specific context of the parade and the route at the proposed day and time justifies it. The section of the 1982 Act referred to by Reid runs as follows:

63 (8) The considerations to which the local authority shall have regard when deciding whether to prohibit the holding of a procession or impose conditions on it under this section shall include -

(a) the likely effect of the holding of the procession in relation to—

(i) public safety;

(ii) public order;

(iii) damage to property;

(iv) disruption of the life of the community.^[12]

The relevant sub-section here is (iv): 'disruption of the life of the community'. Here Reid appears to set a high bar for such disruption, both in its nature and likelihood. In the specific context and recent history of that route for that purpose the Police Scotland view was that 'criminality or disorder aggravated by religious prejudice' was likely to ensue, and that could be mitigated by a re-routing which did not undercut the Article 11 rights of the pursuer.

Other marches and parades

Another development in recent years has been the emergence, or re-emergence, of other issues which have produced marches, often with a major rally at their conclusion. Key amongst these is Scottish Independence for the simple reason that pro-Independence rallies have attracted very large numbers of participants (and counter-protests of a small and modest character). The challenge of these marches lies not in their character or in the conduct, or in the likely conduct, of participants, but in the capacities and approach of some of the organisers. The groups notifying parades, including some of very significant size, may themselves be fairly small and inexperienced in organising large and complex events. Such groups often find it exceptionally difficult to plan sufficient stewards: as a rule of thumb, for a large march and rally, a ratio of one steward per 20 participants might be reasonable, though many local authorities routinely advise a ratio of 1:10. Even at the higher ratio, a march of, say 10,000 persons would require 500 stewards briefed in the arrangements of the day and in what their duties entail.

Pro-independence rallies have been relatively large, bringing high numbers of people to both cities and towns across Scotland. As some examples, the organisation 'All Under One Banner' (AUOB) have recently mobilised marches in Galashiels (organisers claiming that 5,000 persons attended), Oban (claimed 7,000), Aberdeen (claimed 12,000), Glasgow (claimed 100,000), Edinburgh (claimed 200,000). Police estimates of numbers vary very significantly – for example the event in Glasgow was estimated to be 35,000 at most, in Aberdeen around 5,000, and some reported that the march in Oban may have been less than 2,500. This is not merely the familiar issue of over- or under-inflation of estimates: predicted numbers will play a role in forward planning for both police and local authority who must consider how to safely facilitate not simply the march or parade, but also the broader area and the wider public that it will march through.

In practice, some marches, because of their 'open' nature and the unknowability of factors such as the weather, are very difficult to predict. As one example, the Educational Institute of Scotland (EIS) held a march and rally in Glasgow in support of their industrial action in October 2018. Their march left Kelvingrove Park to finish with a rally at George Square. The turnout was far higher than expected – perhaps as many as 30,000 persons - and took 2 hours to clear the park.^[13] The event was a great success but was, in a technical sense, under-stewarded. The EIS is, of course, a large organisation and many of those participating would have been members, but organisers would have found it exceptionally difficult to produce extra stewards at immediate notice.

With much smaller organisations, far more loosely affiliated in terms of membership, mustering sufficient stewards even for marches where the expected numbers of participants turn up is an exceptional challenge. Facilitating such organisations' ambitious plans is a substantial challenge to the public authorities, one often obscured from public view by the colourful and successful parade itself. In other words, the disruption caused by such events are 'administrative', unseen, and, perhaps, sometimes quite unintentional. These disruptions have led to several criminal charges being brought for failing to adhere to conditions laid down by the relevant Local Authority. At an AUOB march in Glasgow, city authorities had required that the start time be brought forward so as to better manage the impact of the parade on the city centre and on traffic flows. On the day the march set off almost 3 hours after the time stipulated, at around the time the organiser had originally asked for. The organiser was subsequently charged with contravening Section 65 of the Civic Government (Scotland) Act, 1982.^[14] The same organiser was subsequently in contention with South Ayrshire Council, where AUOB refused to apply for an entertainment licence for a rally with music and stalls after a march through Ayr. After the unlicensed rally went ahead the organiser was charged.^[15]

In Aberdeen the following month another AUOB organiser was charged after failing to adhere to march conditions laid down by the City Council.^[16] In October 2018 AUOB were in dispute with Historic Environment Scotland (HES) over the use of Holyrood Park, in Edinburgh, for which HES had refused permission for a rally. AUOB proceeded to use the public park despite the objections, with Police Scotland viewing it safer to facilitate the rally than to obstruct it.^[17]

The events organised by AUOB have consistently passed off peacefully and are generally good natured and well-facilitated. That facilitation, however, has been difficult and costly to local authorities, largely through the inability of a small and inexperienced organisation to provide adequate stewarding – but also through an inflexible approach by some organisers to the established systems of notification and negotiation. That can make adequate planning – and the safety of participants and the general public – difficult because of the unpredictability of the organisation and the organisers. Freedom of Assembly does not denote freedom to march wherever one likes at any time that one wants. Rather, it comes with the duty to act responsibly and to follow well-trodden procedures and policies. This echoes Sheriff Reid's point (see above) that whilst we enjoy rights related to our freedom of assembly, it may be necessary for the authorities to balance the rights of others and to adjust the manner in which we exercise our rights.

Finally, here, we might expect further administrative challenges from ostensibly 'successful' marches and parades. For example, All Under One Banner (AUOB) has recently notified Glasgow City Council – giving little more than the minimum required 28-day notice – of its intention to march in mid-January 2020.^[18] No organisation is obliged to give more than this 28-day minimum notice, but several obvious challenges will be faced by the Council and by Police Scotland, not least that the Christmas and New Year holidays will, in practice, drastically reduce the number of working days available to make arrangements for what may be a very large demonstration (the organisation themselves have claimed they expect 100,000 participants^[19]) and to plan its safe facilitation through the city. It is not clear that the notifying organisation has the capacity to provide sufficient briefed and equipped stewards for a large event in such short time, nor will it give sufficient time for a public entertainment licence to be applied for and secured should one be required.

It is clear that the policies and procedures in place to facilitate our Convention Rights work best when all parties in a march or parade act with goodwill and seek to promote good relations. For march organisers this will include giving some thought on the size and impact of what they are organising, and how to best mitigate these in collaboration with Police Scotland and the local authority. In some cases that will entail providing as much notice as is practicable beyond the statutory minimum.