Review of Marches and Parades In Scotland: Guidance for Scottish Local Authorities

Section 1 Legislative changes and good practice

Legislative changes made to Part V of the Civic Government (Scotland) Act 1982

15 The legislative changes that your local authority must take account of are that:

• we have increased the minimum amount of notice that organisers must give to your local authority about their intention to march (from seven days to 28 days);
• we have removed the ability that a local authority previously had to exempt certain processions from the requirements to give notice;
• your local authority must consider a range of issues when deciding whether to prevent a procession or place conditions on it;
• your local authority must take account of whether a procession may place too much of a burden on the police;
• your local authority must take into account the effect that a previous procession had on public safety issues and how far those involved kept to any code of conduct or guidance; and
• your local authority must keep a list of processions that have been held in their area, or which have been prevented, to allow the public to see which processions happen regularly and which are likely to happen in the future.

16 We describe these changes in more detail, as follows.

Minimum period of notice

17 We have extended from seven days to 28 days the notice period which a march organiser has to give of their plans to hold a public procession in section 62 of the 1982 Act. This extension to the period not only gives your local authority more time to consider notifications and reach a decision but also allows them more time to give the public notice of forthcoming events in the area. We would also recommend that your local authority asks organisers, particularly those who are responsible for organising larger events, whether it would be helpful if they sent notifications in well before the start of the minimum period. Early notification should help speed up the time it takes to confirm whether an event can go ahead. However, you should remember that your local authority should continue to keep in touch with the organiser in case of expected circumstances which may affect the decision (such as a rearranged football fixture) and so on.

Dispensations

18 There is no change to the flexibility in section 62(4) of the 1982 Act which allows organisers to apply for a 'waiver to the legislative requirement' to give 28 days' notice. Your local authority should only waive the 28-day notice period in exceptional circumstances, for example if an organiser wants to arrange a procession in reaction to a recent decision or announcement (for example, a decision to close a factory or an unexpected announcement of redundancies).

19 There is no legal requirement to consult the community before deciding whether or not to waive the notice period for a procession. This is because we recognise that there may not be enough time in each case for your local authority to do this. However, the chief constable must be consulted before an order under section 62(4) of the 1982 Act is made. Your local authority will need to decide on the methods for publicising any order which exempts a person from giving 28 days' notice of a procession, but publicity options could include those provided in paragraph 36 below.

Exempt processions

20 All processions, no matter how small, will undoubtedly cause some disruption to the community. For example, processions can restrict the movement of local residents, restrict normal business and restrict access to public facilities. Because of this, we have removed the condition in the 1982 Act to allow your local authority to exempt organisations or certain classes of processions from giving notice.

21 All organisers (apart from funeral directors) must now give notice of their intention to hold a procession. (However, see paragraphs 23 to 25 about Ministers' ability to make an order to exempt certain processions.) This will allow your local authority and the police to get information about all the events taking place in their area, and to plan around them and let the community know, if need be.

22 This change should not be difficult to deal with. Many of the previously exempt organisations will have already been letting your local authority and the police know, in an informal way, about their intention to hold a procession. And, depending on the nature of the event, they would also contact your local authority to ask for things such as road closures or a temporary licence. There are also certain types of processions, such as cavalcades, traditional Common Ridings each year and similar festivals, which will be simpler to process than others, and where tried and tested procedures are already in place.

Section 62(11B)(b) of the Civic Government (Scotland) Act 1982: seeking formal exemption from the notification process

23 Anyone organising a procession (apart from funeral processions) will have to formally give at least 28 days' notice to your local authority, the chief constable and the National Parks Authority (if this applies) under section 62 of the 1982 Act. However, in line with section 62(11B)(b) of the 1982 Act, the Scottish Ministers can make an order at the Scottish Parliament to give details of types of processions which are excluded from the requirements to give 28 days' notice. Your local authority must present their case to the Minister for Justice as to why they think a certain procession should be exempt from providing notice.

24 It is likely that this kind of order will be made if your local authority presents their case as to why they consider that a particular procession should be excluded from the notification process. Each case will be considered on it merits. If your local authority consider that it has a good enough case for a procession to be mentioned in this order, they can write to:

The e-mail address is: scottish.ministers@scotland.gsi.gov.uk

25 The Minister will consider each request and may decide to make an order at the Scottish Parliament. The order can be amended (and further orders made) if it becomes clear at a later date that other processions should be made exempt from the notification process. We will regularly review the order to make sure that the list of exempt processions is relevant and up to date.

When to prevent a procession or place conditions on it

26 We have now withdrawn section 63(2) of the 1982 Act. We have inserted new section 63(8)(a) into the 1982 Act to give your local authority scope to consider a range of issues to help them decide whether they will need to prevent a procession or place conditions on it. They must consider the effect of holding the procession on the following factors before deciding whether to restrict a procession.

• Public safety
• Public order
• Damage to property
• Disruption to the life of the community (see paragraphs 30 to 33)

27 When reaching a decision on preventing a procession or placing conditions on it, your local authority should also take account of section 63(8)(b) of the 1982 Act and assess whether the procession (either alone or with other events) would place too much of a burden on the police. For example, it is important for your local authority to check with the police that they will be able to cope and that enough police officers will be available to patrol the march and keep order. This will be a particularly important issue to consider if several marches and feeder parades are planned to take place. Please remember that police costs are not an issue for consideration.

28 Your local authority should examine all the factors before deciding whether it would be appropriate to prevent a procession or place conditions on it (such as re-routing the event). Your local authority must also make sure that they can justify any restrictions which are placed on a march in line with the ECHR, and that the nature of the restriction is in proportion to the aim which it is trying to tackle.

Managing traffic

29 Your local authority should also examine the effect on public roads if a procession is allowed, including the safety of all road users, spectators and those involved, and whether traffic can be controlled well enough by police. You can get the relevant guidance 'Galas and Events Affecting Public Roads - Guidance to Organisers' from our website. The web link is www.scotland.gov.uk/Publications/2005/07/14155315/53182. It may be the case that your local authority will want to recover some or all of their costs from organisers to help meet certain obligations associated with holding marches and parades. For example, your local authority and the police might recommend that a traffic management consultant is appointed to prepare a traffic management plan. Your local authority may also want to ask the organiser to contribute to the cost, if this is reasonable. To avoid any misunderstanding, it is important that the local authority lets the organiser know their policy on these issues as early as possible or, at the very least, at the precursory meeting.

Disrupting the life of the community

30 All processions, no matter how small, will cause some degree of disruption to communities and businesses. That is an inevitable consequence of holding processions. However, the degree of disruption may not, by itself (or with other events), be enough to prevent people from holding a procession, or from placing conditions on it. Your local authority will need to consider the circumstances of each notification and assess how far the procession would affect the community or any individual or organisation who can reasonably be considered to be part of a community affected by the notification, and to attach weight accordingly.

31 However, the most important question which your local authority need to tackle is whether the level of disruption which will or may be caused by a procession will be far greater than the right to free assembly and this means they need to place a restriction on the march.

32 As mentioned earlier in this guidance, any decision to make an order which prevents a procession or places a condition on a procession will have to keep to the ECHR. As a result, it is important that any order which is made about a procession is a proportionate response to the level of disruption to the community that this event may cause.

33 In considering whether an order should be made to place restrictions or prevent a procession, your local authority should consider the effect of a number of factors. While your local authority need to consider the circumstances of each procession on a case-by-case basis, some factors which may disrupt the life of the community may include:

• where restrictions are placed on them because roads are closed;
• a re-routed or restricted bus service or lots of shops being closed; or
• if the community cannot have access to the streets for a period of time.

Considerations against previous processions

34 Your local authority must also take account of section 63(8)(c) of the 1982 Act. They should assess the current notification against any previous processions held by the organiser, or those in which people who took part in the past are likely to take part in the proposed procession. For example, if there was a violation of a condition placed on the earlier procession, your local authority should take this into account when reaching a decision on the current notification. Again, any restriction placed on a march must be in line with Article 11 of the ECHR.

Lists of processions to be provided to the public

35 Section 63(9) of the 1982 Act places a duty on your local authority to put together and make available a list of processions which have been held in their area and processions which have been prohibited. This list must be made available free of charge. These arrangements will allow the public to find out which marches happen regularly and which ones are likely to happen in the future. They can then send your local authority any representations.

36 Your local authority can decide how best to meet this legislative requirement, but we think it would be good practice to keep and regularly update a list of processions on their website. Options could include:

• passing information to local libraries;
• publicising information in council offices;
• publicising information in council publications;
• putting lists on lamp-posts;
• circulating lists to community representatives, those on your local authority's opt-in list, interest groups and so on (electronically, wherever possible);
• press releases to local newspapers and freesheets; and
• placing lists on your local authority's website.

37 We would recommend that your local authority lay out the information for the list in a simple-to-read table which could give the public details of processions which have taken place in their area. Paragraph 42 of the working group's report provides detailed information on what these lists might contain. Your authority will be responsible for updating their lists regularly and for rolling them forward.

Receiving representations to a procession

38 Your local authority may want to give communities the chance to comment on processions which are or might be held in their area. Although, Part V of the 1982 Act does not insist that a local authority must consult the community, and gather their views before each march takes place, section 63 (10)of the 1982 Act does place a duty on a local authority to give certain information to those who ask for it. Paragraph 41 of the working group's report recommends that to meet the requirements of section 63(10) of the 1982 Act your local authority should put together lists of processions which are or might be held in the area. The second set of bullet points in paragraph 42 of the report provides suggestions on what these lists might contain. Your local authority may want to say that representations to any particular march or parade on its list should be made to the appropriate contact within a certain time. The time frame will be for your local authority to decide, but we would suggest that they will want representations lodged with them at least two weeks before the date of holding the procession.

Making sure that the statutory period of notice is given

39 The period of notice that your local authority must give organisers of what decisions have been made about a march under section 63(3)(a) of the 1982 Act has not changed. In most cases, your local authority will be able to give the organiser considerably more notice than the minimum needed. However, we know that there will be a few occasions where your local authority will not be able to give a decision until very close to the day of the event itself. This can give the organiser very little time to prepare any appeal. As a result, we would recommend, unless there is very good reason why they cannot do so, that your local authority tries to give their decisions to organisers at least one full week before the march is to be held.