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

Section 4: Stakeholder Views 2019

In this section, some further views of various stakeholders are outlined by way of expanding upon, or adding to, the perspectives reported in Section 3. These are structured under four broad headings: Processes, Impacts, Objections, and Rights & Duties.

Processes

There was considerable discussion during this review about the processes through which decisions on marches and parades are made. For organisers this was often opaque and confusing and could lead – where relationships were already difficult or strained – to accusations of political or other bias. Such accusations contribute, in some places at some times, to a reluctance by elected Councillors to serve on committees making decisions on marches and parades. Given the very limited circumstances in which local authorities can restrict or prohibit marches, then Councillors may be wary of 'disappointing' public opinion. There are also issues about the availability of elected members, particularly in the summer months when the number of processions may peak.

The review heard some suggestions that 'independent' decision-making bodies might be set up to oversee controversial or sensitive march notifications and/or to remove the pressure on Councillors. Such a body, however, could only operate under some form of delegated authority from the Local Authority, on whom the responsibility for decision-making lies, and would probably, therefore, only serve to muddy the waters to little positive purpose. In particular, this might exacerbate concerns heard from Police Scotland that the lines of responsibility for decision-making are not always adequately clear.

One interesting suggestion made about process concerned the normal and routine negotiations between the key parties on issues such as timing and routes. Public attention generally is raised only where such negotiations break down: in the normal course of things, however, there are all manner of discussions and agreements which go unrecorded and unnoticed. Thus, a parade may change it's time (or even its date) or make alterations to its route to accommodate other events happening in the area. In such circumstances the public will be unaware of the hard work, good will and willingness of police, local authority, and organiser to be flexible. Much of this hard work proceeds through relatively informal discussions and the positive development of good relations. It might be worthwhile, therefore, for all parties to agree a short note, to be published on the relevant Local Authority website, of what agreements have developed through discussion. This should be of a light-touch nature, rather than a bureaucratically demanding process and should not interfere with informal discussions: rather it should encourage them. This will produce a more transparent and fair public documenting of the process of decision making.

Both police and local authority respondents made some comment on the existing minimum 28-day notification period, one that can be very tight to meet whilst taking into account other events, community consultation, etc. Where this does seem to have produced recent difficulties relates to large marches which opt to have a closing rally with music and other entertainment. The latter, of course, will generally require a Public Entertainment Licence (PEL), and the time required to secure this will often exceed 28 days. The suggested timeline for a temporary PEL in Glasgow, for example, is a minimum of twelve weeks.^[28] This is an issue for the Notifier to be aware of and to take appropriate action upon. To borrow from Sheriff Reid (see section 2, The Reid Opinion, above), the inability to have musical performances at a rally is unlikely to 'strike at the essence' of the right to public assembly.

On the broader issue of the 28-day Notification period it might be noted that prior to the Orr Report and the subsequent Police, Public Order and Criminal Justice (Scotland) Act 2006, the Notification period was just 7 days. In 2013 a UN Special Rapporteur recommended that the period was reduced to 'a few days'.^[29] In his follow up report the Rapporteur recommended that 'a notice period should be as short as possible, i.e., a maximum of several days and ideally 48 hours'.^[30]

Overall, the existing 28-day period seems to work well and strikes a good balance between freedom of assembly and the demands of the administrative and planning duties of local authorities and Police Scotland. It also allows a reasonable time for the public to make objections to a parade, and for the Local Authority to consider them - something that would be entirely impractical under the UN Rapporteur's proposed notice period. It is also unclear how such a short notice period would facilitate legal appeals by organisers against special conditions or prohibitions set down by the Local Authority.

The period, of course, is a minimum period, and organisers should be encouraged to submit their notifications as early as possible. Local authorities might reflect on how well they are adhering to their statutory duty to make decisions on notifications 'as early as possible ... insofar as it is reasonably practicable for them to do so'.^[31] Early clarity on likely issues, or the absence of them, would be a good incentive for organisers to give more than the 28-day minimum notice.

Impacts

Much of the discussion for this review focussed on the various impacts that marches and parades can have and how to best address these.

For example, some local authorities described different levels of anti-social behaviour, and of (in) tolerance towards such behaviours depending upon the particular nature of the event. One Local Authority noted that a large proportion of marches in their area were related to the Loyal Orders. Anti-social behaviour at these, mostly small, parades was relatively low, but they were nevertheless seen as much more 'contentious' than annual local gala parades, much larger events which saw significant increases in anti-social behaviour. A neighbouring Local Authority reported, however, that many of its larger parades (regardless of the organisation involved) saw alcohol-related anti-social behaviour some hours after the event. Such behaviour was a significant impact on the community but could not necessarily be tied directly to particular parades.

There was considerable discussion during this review of various strategies to capture community views. Some local authority officials felt that their processes were too rigid and 'quantitative' and saw the need for more informal and 'qualitative' channels and evidence. Police Scotland plan to directly refer to potential for 'disruption to the life of the community' (on which, see below) in their Community Impact Assessments where appropriate. This would allow for some element of measurable impact for those in particular communities or areas who were anxious or fearful about parades. Police Scotland routinely engage with religious communities and reported no widespread issues about marches and parades, although there may be specific instances of anxiety or concern in particular areas and/or relating to particular parades. Currently most community impact assessments relating to marches and parades are produced by Police Scotland, and they are keen that local authorities find more ways to engage other voices in the discussion.

The review heard important conversations about the difference between 'community impact' and 'disruption to the life of the community' and where the line between these could be best drawn. Every march or parade, regardless of its size or intent, will have an 'impact' on the communities it passes through, for the simple reason that it will occupy the street to the exclusion of others, not least traffic, for a particular period of time. Larger parades will, of course, bring a relatively large amount of people into towns and cities to participate and spectate. This may provide business opportunities in such areas, but it may also dissuade others from coming into such areas. It should be said, of course, that other kinds of events – sporting or entertainment – will have very similar kinds of 'community impact'.

'Disruption to the life of the community' is an important concept, not least because it forms one of the factors which local authorities should take into account in considering a notification of a march or parade:

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.^[32]

How might 'disruption' differ from 'community impact'? As the formulation of the legislation notes there would seem to be an implicit assumption here that 'disruption' would be of a similar elevated magnitude to the three other considerations: public safety, public order, damage to property. Sheriff Reid's 2019 opinion, for example, saw the demonstrable likelihood of 'criminality or disorder aggravated by religious prejudice' as amounting to 'disruption to the life of the community'. The difference then, would seem to be a distinction between 'inconvenience' and 'serious harm'.

Questions remain, however. What thresholds are applied for discerning 'disruption to the life of the community', and who should apply them? What sources of information could, and should, local authorities draw upon in assessing 'disruption'? At present the police have the duty of informing the local authority as regards to the four 'considerations' in Section 63(8)(a) of the 1982 Act, but what other sources of information could, and should, be accessed? And how is that information weighed in the balance?

Many of these question focus upon a reasonable and appropriate interpretation of the law. Local authorities might look, in the first instance, to Sheriff Reid's opinion as the most current basis for their considerations on this issue.

Marches and parades do not simply impact upon communities, they impact on all three parties involved in the processes too. For organisers the lack of clear information and guidance, and any lack of transparency in both policy and in decision making, can be a source of anxiety and concern. For one organisation, events unconnected to them nevertheless 'tarred them with the same brush', and they felt a culture of 'toxic animosity' was emerging between the key parties to marches and parades in Glasgow. There is also a concern that particular types of marches and parades – Loyal Order and Irish Republican – are being treated differently with regards to asking questions on measuring 'community impacts' which are not asked about other marches and parades, even those of considerably larger size.

For local authorities, avoidable difficulties around marches and parades can prove to be a disproportionate burden on time and resources and distract from other duties. As is apparent, marches and parades work well where there is a sense of goodwill and of shared responsibility: where this is absent there are problems. One Local Authority described the unprecedented burden placed on it at all levels – executive officers, Councillors and departments – caused by one single parade. In that case the organiser refused to attend meetings or to consider a public entertainments licence and insisted on their organisation's 'absolute' right to assembly. On the day itself, the march and event passed off peaceably, but at a very significant, and hidden, institutional cost. Another small Local Authority noted that the resources to handle difficult parading issues were limited and impacted by wider Licensing demands.

For the police, the impacts of difficulties in Glasgow have been palpable and acute. Section 2 described the vastly increased demands on police resources, particularly for specialist officers. In the context of the East End of Glasgow police resources had to be marshalled for very specific and limited flashpoints, which it might take a parade no more than several minutes to pass. We have already noted that parades which may have taken 10 conventional police officers to facilitate will require, given raised tensions and a counter-protest, around 100 conventional and tactical officers. The massive police operation required in Glasgow in September 2019 is also very notable and clearly unsustainable over any extended period of time.

The burdens on Police Scotland are not simply financial. The need to marshal an increased number of officers to points of growing tension draws officers away from other duties. But there is also a very human cost to Police Scotland. Public order training in Police Scotland is voluntary, and the pool of officers available for specialist roles where there is a potential for disorder is strictly limited. Across the summer and autumn in 2018 and, in particular, 2019 the demand for such officers to police Glasgow parades was particularly high. In practical terms this meant officers routinely having leave cancelled and working many consecutive weekends on specialist tasks. There are significant costs here to morale and to well-being and may prove a disincentive to some officers maintaining or achieving public order accreditation.

A key point here is that much of these impacts, whether on communities or upon public authorities are a key obligation of living in a democracy. The Organisation for Security and Co-operation in Europe (OSCE) of which the UK is a participating state has produced some useful and accessible summaries of freedom of peaceful assembly and the state's obligations in respect to it. For example, the OSCE's Human Rights Handbook for Policing Assemblies (2016) notes that there must be a 'presumption in favour of holding assemblies', and that the state carries a 'positive obligation to facilitate and protect peaceful assembly':

Many assemblies will also cause some degree of disruption to routine activities; they may occupy roads and thoroughfares or impact traffic, pedestrians and the business community. Such disruption caused by the exercise of fundamental freedoms must be treated with some degree of tolerance. It must be recognized that public spaces are as much for people to assemble in as they are for other types of activity, and thus the right to assemble must be facilitated.^[33]

In other words, many of the impacts of marches and parades are the necessary impacts of a democratic society. It thus becomes the responsibility of the state to ensure that sufficient resources are given over to (a) dealing with these impacts effectively, and (b) trying to resolve any difficulties and disputes that are creating added burdens. This may pose questions about police officers best suited to carrying out all of the roles they currently fulfil in regard to marches and parades? Might other agencies – Community Enforcement Officers, Traffic Wardens, for example – be mobilised and resourced to carry out duties related to some of the non-specialised aspects of facilitating marches and parades on the day? This would not reduce financial costs, but it might allow greater efficiencies in the deployment of appropriate personnel.

Objections

One concrete way to ensure community engagement is to provide robust and accessible channels for individual citizens to make comments and objections to notified processions. There is, however, an inherent and circular tension in public objections in that they are often used to express opposition, concern or outright hostility – issues that local authorities cannot act upon. Many of the objections currently received by local authorities (and, indeed, by Police Scotland and the Scottish Government) are broad complaints which oppose the general aims or character of a particular event or organisation. These are grounds on which a local authority cannot legally restrict or prohibit marches and parades: Local authorities may act, as we have seen, only where there are concerns over public safety; public order; damage to property; or disruption of the life of the community. Political, philosophical or moral objections to a march or parade have no technical merit in the existing legislation, and nor should they. As the OSCE advise:

Exercising the right to peaceful assembly is a means of collectively conveying a message or expressing an opinion; this includes the expression of diverse, critical, radical and unpopular or minority opinions. The expression of such radical and minority views may cause some level of offence to other members of the community, but must, nevertheless, be protected and facilitated as long as the actions remain peaceful.^[34]

Where local authorities – inevitably - do not act upon such objections then there is a risk that the public will feel their concerns are being ignored. There may be a risk that local authorities take a march or parade to a committee solely because of objections that they cannot act on, on the basis that objections have been received and should be heard. Such a course of action is likely to create disaffection amongst objectors ('the Local Authority did nothing') and amongst organisers called to committee ('the Local Authority wasted our time'). This is a very difficult balancing act, and one that may serve to increase anxieties around marches and parades rather than address them.

The difficulty, then, is to allow the expression of objections without unduly raising the expectations of a public generally hostile to the inconvenience of marches and parades in general and to the objectives of some marches and parades in particular. Social media has made it easier than ever before to encourage objections but has done little to inform a broader public about the kinds of objections that local authorities can concretely act upon. For one weekend of parades in 2019 Glasgow City Council received over 600 objections – but could not act on any of them. Many of the objections were based on a common template but each required careful logging and response. Other local authorities described a recent rise in objections, particularly to Loyal Order parades, but found that no objectors attended the subsequent committee hearings called to consider them.

The 2016 Report made reference to these difficulties (see 3.66 and 3.67 and Recommendation 3.68) and made some suggestions on how local authorities might 'screen' objections in a way that ensured that submissions that would not be acted upon 'are not needlessly or uncritically introduced into negotiations with organisers'. There is a clear need for this to be done sensitively so that the public will feel they still have an outlet to voice concerns. It is clear that local authorities could give this more thought.

There was also a consensus in the current review that there is not enough guidance for the public on what kinds of issues could be considered legitimate objections which local authorities could act upon, and how they can go about making such objections. The Scottish Government has not issued general guidance on marches and parades since 2006.^[35] Updates and refreshed guidance would be helpful to clarify – to the interested public as well as to the key parties involved in marches and parades - what kinds of objections and concerns local authorities may legitimately deal with.

Rights & Duties

As noted above, freedom of assembly is a fundamental human right covered by all kinds of international and domestic legislation and conventions. The State has a positive duty to facilitate and protect this freedom, and any limitations or conditions placed on these rights must be necessary and proportionate. It will be recalled that Sheriff Reid's opinion on the re-routing of four parades in Glasgow in 2019 centred around the view that the conditions were necessary and proportionate because of the specific likelihood of criminality and disorder ensuing from the circumstances of the proposed routes. The OSCE suggest that prohibitions must be exceptional:

An assembly should only be banned in exceptional circumstances. This may include a situation where there is a significant and real threat of crime or public disorder, an imminent threat to national security or where the aim of the assembly is to incite hatred or violence, intimidate or threaten others or to deliberately deny others the right to exercise their legitimate rights. ^[36]

The OSCE guidance calls into serious question the suggestions – not least by Glasgow City Council – of blanket bans or an (enforced) 'moratoria' on marches and parades (or, at least on certain types of march or parade):

A blanket prohibition of all assemblies at a certain location or for a specific period of time is likely to be a disproportionate restriction on the right to peaceful assembly. ^[37]

OSCE guidance is also very clear on the issue of costs, not least of traffic management and TTROs:

The costs of providing adequate security and safety (including policing and traffic management operations) should be fully covered by the public authorities. The state must not levy any financial charge for providing adequate policing. Organizers of non-commercial public assemblies should not be required to obtain public-liability insurance for their event.^[38]

Democratic freedoms do not, of course, consist merely of rights, but also of duties and obligations. Many of these obligations are not legally constituted but are nevertheless necessary for society to function well. As previously noted, where an organiser has a disregard for established (and well-functioning) procedures, or ignores reasonable conditions, it can create a great deal of anxiety and workload for the agencies responsible for facilitating and protecting that organiser's rights to the freedom of assembly. In essence, acting unreasonably in these regards undermines freedom of assembly. More immediately, disregard for conditions can create risks for public safety, not only of those participating in a march or parade, but for a wider public if emergency services are hindered because of unscheduled road closures.

The view of the Scottish Human Rights Commission (SHRC) is that resort to claims to human rights should ideally be seen as a last resort, as sort of 'Accident & Emergency' to rely upon when things have gone wrong and relationships have broken down. One source of 'primary care' is the Equality Act, 2010 and the Public Sector Equality Duty that it specifies. This is a useful perspective to consider some of the recent developments where things have gone wrong, and relationships have broken down.

Section 149 of the Equality Act is concerned with Public Sector Equality Duty. Note the sections highlighted here in bold:

149 Public Sector Equality Duty

(1) A public authority must, in the exercise of its functions, have due regard to the need to—

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

[…]

(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

(a) tackle prejudice, and

(b) promote understanding.

[…]

(7) The relevant protected characteristics are—

age;

disability;

gender reassignment;

pregnancy and maternity;

race;

religion or belief;

sex;

sexual orientation. ^[39]

It is noticeable that in the discussions of the tensions in Glasgow over marches and parades much has been made of the balancing of the rights of different parties (as is done very adeptly by Sheriff Reid), but there has been little or no discussion on 'fostering good relations'. This is all the more noticeable given that much of the discussions in Glasgow have centred around the appropriateness – or otherwise – of Protestant parading organisations passing Catholic churches.

A useful way of rethinking how to proceed when tensions are high and established systems are under strain is whether 'fostering good relations' – or what might be called neighbourliness - can address the situation. That is, would better relations, a willingness to be neighbourly, serve to address at least some of the issues? It may well be that the answer is 'no', but it seems incumbent on public bodies, under the Equality Act, to pursue this as one potential option. Given that Glasgow City Council has launched a major review into marches and parades in the city it will be interesting to see whether this line of action is pursued, and in what manner.