Review of Marches and Parades in Scotland

5 The current legislative position: Human Rights Legislation and the Civic Government (Scotland) Act 1982

Introduction

5.1 This chapter of my report sets out the legislative framework within which decisions about marches and parades are currently taken. There is other legislation which will apply to some marches and parades and I consider this in more detail in Chapter 15 (recommendation 27 on 'How To' guides for organisers).

Human rights legislation

5.2 I consider the freedom to peaceful assembly and to freedom of expression to be fundamental rights in a democratic society. These rights are protected by international and domestic legislation. This is clearly a very complex area of legislation, the subject of considerable academic research and case law, and I do not pretend to be an expert. Many others have studied this area in more depth than I and, in preparing this chapter, I have drawn on Sir George Quigley's analysis of the human rights legislation in that chapter of his Review of the Parades Commission as well as submissions sent to me by a number of local authority lawyers.

5.3 I think it is important to give a flavour of the human rights legislation which set the work of Review in its statutory context and illustrate the framework into which my recommendations must fit. I have looked at Article 11 of the European Convention for the Protection of Human Rights which provides for the freedom of peaceful assembly and at some important opinions about the extent of the rights given by those Articles.

Human rights legislation - European Convention on Human Rights (ECHR) and the Human Rights Act 1998

General

5.4 The European Convention for the Protection of Human Rights and Freedoms sets out a range of rights from the right to life and personal liberty to the protection of privacy and family life, freedom of thought, conscience and religion, freedom of expression and freedom of assembly and association. It is a treaty of the Council of Europe and has now been ratified by 45 countries. The Convention is enforced by the European Commission on Human Rights and the European Court of Human Rights. The Human Rights Act 1998 incorporated the European Convention on Human Rights into UK law, enabling people to enforce their Convention rights in UK courts. Since October 2000, all UK public bodies have a statutory duty to undertake all their functions in conformity with the Convention.

The European Convention as it applies to marches and parades

5.5 In the context of marches and parades, Article 11 concerning the freedom of peaceful assembly is key. The text of Article 11 provides that:

'Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests;

No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interest of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration by the State.'

5.6 Many aspects of the provisions of Article 11 of the Convention have, of course, been considered in detail in cases brought to the European Commission of Human Rights. Key opinions have set out the Commission's and the Court's views:

that it is appropriate to have an authorisation procedure to consider processions;
that rights under Article 11 cover public processions and apply both to individuals and corporate bodies;
that, as long as the organisers' intention is for peaceful assembly, the possibility of violent counter-demonstrations is not reason alone for prohibiting processions;
that the rights under Article 11 cover processions which may annoy or give offence to people opposed to the ideas or claims that it is seeking to promote.
that states should protect those involved in processions and take reasonable and appropriate measures to enable lawful demonstrations can proceed peacefully; and
that rights under Article 11 do not cover processions if organisers and participants have violent intentions which result in public disorder.

Key Opinions

5.7 The Commission held in Rassemblement Jurassien and Unite Jurassienne v Switzerland (1979) (17 DR 93, 119, ECommHR) that the subjection of meeting in public thoroughfare:

'to an authorisation procedure does not normally encroach upon the essence of the right. Such a procedure is in keeping with the requirements of Article 11(1) if only in order that the authorities may be in a position to ensure that the peaceful nature of a meeting and accordingly does not as such constitute interference with the exercise of the rights.'

5.8 In Christians Against Racism and Fascism v UK (1980) (21 DR 138), the Commission stated that:

'freedom of peaceful assembly covers not only static meetings but also public processions. It is, moreover, a freedom capable of being exercised not only by the individual participants of such a demonstration but also by those organising it including a corporate body such as the applicant body.

Under Article 11(1) of the Convention, the right to freedom of peaceful assembly is secured to everyone who has the intention of organising a peaceful demonstration. In the Commission's opinion the possibility of violent counter demonstrations, or the possibility of extremists with violent intentions, not members of the organising association, joining the demonstration cannot as such take away that right. Even if there is a real risk of a public procession resulting in disorder by developments outside the control of those organising it, such a procession does not for this reason alone fall outside the scope of Article 11(1) of the Convention, but any restriction placed on such an assembly must be in conformity with the terms of paragraph 2 of that provision.'

5.9 In Plattform 'Artze fur das Leben' v Austria (1988) (13 EHRR 204), the European Court of Human Rights stated that:

'a demonstration may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote. The participants must be able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents; such a fear would be liable to deter associations or other groups supporting common ideas or interests from openly expressing their obligations on highly controversial issues affecting the community. In a democracy the right to counter demonstrate cannot extend to inhibiting the exercise of the right to demonstrate.

Genuine effective freedom of peaceful assembly cannot, therefore, be reduced to a mere duty on the part of the state not to interfere; a purely negative conception would not be compatible with the object and purpose of Article 11. Article 11 sometimes requires positive measures to be taken even in the sphere of relations between individuals if need be.

While it is the duty of contracting states to take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully, they cannot guarantee this absolutely and have a wide discretion in the choice of the means to be used. In this area the obligation they enter into under Article 11 of the Convention is an obligation as to measures to be taken and not as to results to be achieved.'

5.10 G v Federal Republic of Germany (1989) (60 DR 256, ECommHR) made clear that Article 11 does not apply to a:

'demonstration where the organisers and participants have violent intentions which result in public disorder.'

Limitations of rights

5.11 Various rights under the European Convention on Human Rights are not without qualifications. This is an important principle as it recognises that people's rights might be in competition with each other and with public interests and there may be a need to impose restrictions. Article 11 states that restrictions are those 'prescribed by law and are necessary in a democratic society in the interest of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of rights and freedoms of others.'

5.12 The grounds for restricting rights must be relevant and sufficient. The limitation must be legal and must be 'necessary in a democratic society' which case law has clarified is a society characterised by 'pluralism, tolerance and broadmindedness' where the rights of minorities are protected. The purpose of any restriction of rights must be in line with those stated in the Convention: protecting national security or public safety, preventing disorder or crime, protecting health or morals and protecting the rights and freedoms of others. The implementation of any restriction must be proportionate to the purpose of the restriction. This ensures that any action taken to restrict a right is appropriate to the seriousness of the threat posed by exercising that right. Authorities have a measure of discretion open to them, 'the margin of appreciation', to judge the necessity of a restriction given that they are best placed to judge their national circumstances. However, that discretion is closely monitored by the Court.

5.13 The European Commission of Human Rights has given a number of opinions on the appropriateness of actions taken to limit Article 11 rights:

The Austrian authorities banned a demonstration because of the noise expected at the demonstration and the Commission held that it can: 'be regarded as 'necessary in a democratic society'' to prevent excessive noise of a demonstration and it was not disproportionate in the present case to do so by the prohibition of the demonstration rather than by its subsequent dissolution. Having regard to the previous experience, it was in no way unreasonable or arbitrary to assume that the proposed demonstration would also lead to unnecessary noise.'(Application 13812/88 by S v Austria);

The UK authorities banned a rally in Trafalgar Square as part of a general ban on demonstrations relating to Northern Ireland and the Commission held that 'Having regard to the fact that a refusal of permission [on grounds of public order] did not amount to a blanket prohibition on the holding of the applicants' rally but only prevented the use of a high profile location (other venues being available in central London)... the restriction in this present case may be regarded as proportionate and justified in a democratic society.(Application 25522/94 by Rai et al);

The UK authorities had prohibited all assemblies within a radius of four miles from the junction of roads adjoining Stonehenge Monument for four days in view of past incidents and disorder caused by Druid followers. The Commission referred to previous disorder at Stonehenge and said: 'The Commission notes that the ban did not affect groups of less than 20 people and that it was open to the applicant to practise his religion or belief in a smaller group within the four mile exclusion zone. Bearing all the factors in mind, the Commission considers that the interference with the applicant's right of freedom of assembly can be regarded as 'necessary in a democratic society... for the prevention of disorder'.(Application 31416/96 by Pendragon).

Sheriff Judgements about processions in Scotland

5.14 Sheriff courts in Scotland have also considered appeals against authorities' decisions to restrict Article 11 rights and prohibit processions.

5.15 In Aberdeen Bon-Accord Loyal Orange Lodge 701 v Aberdeen City Council (September 2001) the court was of the opinion that the council's reasons for its decision were not made out and an outright ban was disproportionate. The Sheriff stated that: 'This right [under Article 11] is not restricted to those whose views accord with the majority. It is the essence of a civilised democratic society that many points of view may be expressed in public.' The Sheriff went on to indicate that the right to public assembly may be restricted in certain circumstances but that it was for the public authority to show that it was necessary to curtail that basic right before any such restriction would be upheld. The action proposed needed to be proportionate to the risks which might arise and provide a reasonable response to the perceived risk. The Sheriff considered that 'a complete prohibition requires much more than a 'concern that the procession might promote religious intolerance and might interfere with the rights of other citizens to go about their business freely and lawfully'... It is the right of individuals and groups in a civilised society to express their views as long as neither their words nor their actions contravene the law. Tolerance is what is required in a democratic society and that includes toleration of views or sentiments which may not coincide with one's own.'

5.16 In the case of the County Grand Lodge of Ayrshire, Renfrewshire and Argyll v Argyll and Bute Council it was noted that while Strathclyde police had commented that the procession may well arouse latent emotional tendencies resulting in disorder, the Sheriff stated that 'it seems quite clear that... there is a right for individuals and groups to express their views as long as neither their words nor their actions contravene the law and a mere concern that a procession might promote religious intolerance and might interfere with the rights of other citizens to go about their business freely and lawfully is not sufficient to justify a prohibition'.

5.17 Another recent case of relevance was the Wishart Arch Defenders Loyal Orange Lodge 404 v Angus Council (April 2001) where the Sheriff found that the authority's statement of reasons did not justify a restriction of Article 11 rights. The Sheriff did not consider that the Council's case had foundation in fact. He was concerned by the lack of specificity about how the proposed procession would interfere with the rights and freedoms of others and how those rights might suffer as a result of the procession. The Sheriff warned against making decisions based on 'emotion or personal feeling'. He accepted that it was appropriate to take into account local knowledge of a local area but noted that it was necessary to explain the basis of decisions taken based on that local knowledge and that the Council needed to demonstrate the foundation of their decisions including their understanding of public perception.

Statutory framework for holding public processions in Scotland: The Civic Government (Scotland) Act 1982

Background

5.18 Part V (Public Processions) of the Civic Government (Scotland) Act 1982 (referred to in the following paragraphs of this Chapter as the Act) sets out the statutory framework for the arrangements for holding public processions in Scotland. It rationalised previous provisions about powers to prohibit and impose conditions on processions. This chapter looks at the provisions of the Act in some detail. The relevant extracts from the Act are at Appendix D. I have also gathered information about the current operation of the Act which I discuss in more detail in Chapter 6. Information about the Act, its operation and people's experience of it have informed my recommendations as to the improvements that can be made in the arrangements for dealing with marches and parades in Scotland (in Chapters 12 to 16).

5.19 In general terms, the Act requires organisers to notify the local authority and the police of their intention to hold a procession seven days before that procession takes place. It sets out the information the organiser is required to provide. It sets out the processes the local authority should follow in handling the notification, including their order making powers allowing them to prohibit or set conditions on the procession after consultation with the chief constable. The Act also sets out the process for appeal against local authority decisions and the offences and enforcement powers.

Discussion of the Civic Government (Scotland) Act 1982

5.20 I have received mixed views about what the Act requires of local authorities and what degree of conditions they can impose which I explore in more detail in Chapter 6. However, the principle is clear in that in submitting a notification, organisers are not seeking local authorities' permission to process. Organisers are not therefore applying for permission or for any type of 'licence'. Rather they are informing the local authority of their intention to hold a procession. Recommendation 21 in Chapter 14 deals with this aspect of the Act.

5.21 The Act gives local authorities power to prohibit or impose conditions on the march. These powers can only be exercised after consultation with the chief constable. Local authorities have interpreted this as meaning that the initiative for a ban must come from the chief constable. Like previous local legislation governing processions (for example local legislation like section 385 of the Burgh Police (Scotland) Act 1892 and the Edinburgh Corporation Order Confirmation Act 1967) the Act is, in fact, silent on when the powers to prohibit or set conditions can be exercised. This is very different from the provisions in the Public Order Act 1936 giving the chief constable powers to issue directions to regulate or ban processions only when he considers that serious public disorder may be occasioned. The Public Order Act 1986 widens the circumstances in which the chief constable can make directions to prevent serious damage to property, serious disruption to the life of the community and intimidation to others. Those are police powers and can only be exercised in Scotland when the procession assembles or is underway. The Civic Government (Scotland) Act 1982 empowers the local authority to set conditions in advance of the procession.

5.22 Provisions in the Act must be applied within the framework of the rights set out in the European Convention of Human Rights. It is clearly established that the existence of an authorisation process does not in itself constitute an interference with those rights. Article 11 is a qualified right and recognises that the right to peaceful assembly is not an absolute right and other factors in the interest of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of rights and freedoms of others can be considered.

Detailed provisions of the Civic Government (Scotland) Act 1982

5.23 This section looks in detail at the provisions in Part V of the Act.

Detailed provisions: Section 62 - Notifications of Public Processions

Requirements on organisers to give notice of their intentions to hold a parade

5.24 Under sections 62(1), (2) and (3) of the Act a person proposing to hold a procession is required to give advance written notice of the proposal both to the local authority where the procession is to be held and to the chief constable. If the procession is to be held to any extent in a National Park, the organiser must also notify the National Park authority. The notice must be given no later than seven days before the date of the proposed procession. The notice should specify:

the date and time when the procession is to be held;
its route;
the number of people likely to take part;
the arrangements for the control of the procession that the person holding the procession is making; and
the name and address of the person who is holding the procession.

Changes to the notification period

5.25 Section 62(4) gives the local authority discretion to make an order to dispense with the seven days notice period. This recognises the immediacy of some processions. While the timescale may be changed, under section 62(5) the same information should be provided. Section 62(9) requires the local authority must consult the chief constable before exercising these order-making powers.

Exempt groups

5.26 Section 62(6) gives the local authority power to make an order exempting people from the requirement to give notice of their intention to hold a procession. They may do this as the result of an application or at their own discretion. Section 62(8) gives the local authority discretion to set conditions on exempted parades (eg such as size), an ability to classify processions according to any factor or factors whatsoever and to vary or revoke any orders made. Section 62(9) requires the local authority to consult the chief constable before exercising these order-making powers.

Customary processions

5.27 While section 62 does not apply in relation to processions commonly or customarily held, a local authority can make an order under section 62(7) to apply section 62 to customary processions. Section 62(8) gives the local authority discretion to set conditions on customary processions, an ability to classify processions according to any factor or factors whatsoever and to vary or revoke any orders made. Section 62(9) requires the local authority to consult the chief constable before exercising these order-making powers.

Publicising Orders made under the Act

5.28 If a local authority makes, varies or revokes an order about exempt groups or customary processions, section 62(11) requires them to give public notice of that fact through a newspaper or newspapers circulating in their area.

Definitions

5.29 Section 62(12) provides definitions. 'Procession in public' is simply defined as 'a procession in a public place'. This is the same definition used in the Public Order Act 1986 (section 16). I understand that those drafting the legislation at the time did not consider it 'practicable to define the term procession' itself. 'Chief constable' is defined as being 'the chief constable of the police force for the area which comprises of or includes the area of the local authority'. 'Public place' is also defined as having the same meaning as in Part II of the Public Order Act 1986 which includes 'a road and any place to which the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied'.

Detailed provisions: Section 63 - Functions of Local Authorities in Relation to Processions

Local authority order-making powers in response to notifications

5.30 Section 63 of the Act sets out the process for handling notifications. Under section 63(1), the local authority may, after consulting the chief constable, make an order prohibiting the holding of the procession or imposing conditions on the holding of it. There is no requirement on the local authority to make an order. Once an order is made, section 63(1A) provides that a local authority, after consulting the chief constable, may vary or revoke the order or make a new order. If the procession is to be held in a National Park, they should consult the National Park authority as well.

5.31 Section 63(2) sets out the conditions that the local authority may impose on the holding of the procession. These may include conditions:

on the date, time and duration of the procession;
on its route; and/or
prohibiting its entry into any public place specified in the order.

5.32 Section 63(3) provides that a local authority must deliver at least two days before the proposed date of a procession, to the person who gave the notice:

where they have made an order, a copy of it and a written statement of the reasons for it (section 63(3)(a)(i));
where they decide not to make an order or to revoke an order already made, notification of that fact (section 63(3)(a)(ii));
where they have varied an order, a copy of the order as varied and a written statement of the reasons for the change (section 63(3)(a)(iii)).

5.33 Section 63(3)(b) provides that where a local authority makes an order prohibiting a procession or imposing conditions on it they must make arrangements to ensure that the people who might take or are taking part in the procession are made aware of the fact that an order has been made (and if the order has been varied, that it has been varied) and of its effect. Section 63(4) requires the local authority to comply with subsection (3) as early as is practicable rather than, for example, waiting two days if they had been given more notice.

Detailed provisions: Section 64 - Appeals against orders under Section 63

5.34 Section 64 makes provision for appeals to the sheriff against an order made by a local authority prohibiting or imposing conditions on the holding of a procession, or against a variation of such an order.

Who can appeal?

5.35 Section 64(1) provides that the person who has or falls to be treated as having given notice of a proposal to hold a procession in public can appeal against the local authority order or any variation of it.

Process of appeal

5.36 Section 64(2) provides that an appeal under section 64 shall be made by way of summary application and shall be lodged with the sheriff clerk within 14 days from the date on which the copy of the order and statement of reasons for it were received by the appellant. Section 64(3) provides that the sheriff can hear an appeal after the expiry of the 14 day period if good cause is shown.

Grounds of appeal

5.37 Section 64(4) provides the grounds of appeal upon which the sheriff may uphold the appeal. The grounds are that the local authority erred in law; based their decision on any incorrect material fact; exercised their discretion in an unreasonable manner or otherwise acted beyond their powers. Section 64(5) empowers the sheriff in considering an appeal to hear evidence by or on behalf of any party to the appeal.

Upholding or dismissing an appeal

5.38 Under section 64(6) the sheriff may uphold the appeal and either remit the case to the local authority to reconsider their decision or, if there is insufficient time, he can vary the local authority's order or make a different order. The sheriff may specify a date by which the local authority must reconsider their decision and to modify any procedural steps which would otherwise be required to be taken so that reconsideration can take place more quickly, for example to vary the local authority's standing orders. The sheriff may also dismiss the appeal under section 64(6). Before exercising any of his powers in relation to the appeal, under section 64(7), the sheriff must make sure that all reasonable steps have been take to secure that the local authority which made the order has been given notice of the appeal and an opportunity of being heard. Under section 64(8) the sheriff may include in his decision provision about expenses.

Appeals against the sheriff's judgement

5.39 Section 64(9) provides that the parties to an appeal to the sheriff may appeal to the Court of Session against the sheriff's decision but only on a point of law. The appeal must be made within 28 days of the date of the decision.

Detailed provisions: Section 65 - Offences and Enforcement

5.40 Section 65 specifies offences in relation to both the holding of a procession in public and participating in certain such procession and specifies the penalties for such offences. It also makes provision for a power of arrest in relation to these offences.

5.41 Section 65(1) creates four offences for the holding of a procession:

holding a procession without having given at least seven days notice (or giving notice if the local authority has dispensed with the time limits for giving notice) and without there being an exempting order in force;
holding a procession in contravention of an order made by the local authority or the sheriff prohibiting the holding of the procession;
holding a procession otherwise than in accordance with a condition imposed by an order made by the local authority or the sheriff in relation to the procession; and
holding a procession otherwise than in accordance with the particulars of its date, time and route specified in the notice given or application for an order made under section 62.

5.42 The penalties for those guilty of an offence under section 65(1) are, on summary conviction, a fine not exceeding level 4 on the standard scale (currently 2,500) or imprisonment for up to three months or both.

5.43 Section 65(2) sets out similar offences for people participating in those processions which fall under section 65(1). However, the offence is not simply of participating but of participating and refusing to desist when required to do so by a constable. The penalty for those guilty of an offence under section 65(2) is, on summary conviction, a fine not exceeding level 3 on the standard scale (currently 1,000).

5.44 Section 65(4) gives a constable a power to arrest without warrant a person whom he reasonably suspects of committing or having committed an offence under section 65.

Detailed provisions: Section 66 - Relationship of Sections 62 to 65 with the Public Order Act 1986

5.45 Arrangements for processions in England and Wales are governed by the Public Order Act 1986. That Act requires organisers to give notice to the police six clear days before the date of the procession. The police have powers to impose conditions on a procession and the local authority does not have the same formal role as in Scotland. However, Section 12 of the Public Order Act 1986 gives powers to the police to give directions imposing conditions on those organising or taking part in the procession conditions to prevent serious public disorder, serious damage to property or serious disruption to the life of the community or intimidation of others. Section 12 extends to Scotland and therefore gives the police the same powers to impose directions on processions in Scotland. Section 66 of the Civic Government (Scotland) Act 1982 generally provides that sections 62 to 65 of the 1982 Act are subject to the Public Order Act 1986. It further provides that any order made under those sections shall be subject to any directions given under section 12 of the 1986 Act insofar as they relate to the same matters. Anything done in conformity with any such directions or omitted, in conformity therewith, to be done shall not be an offence under section 65 of the 1982 Act.

Other legislation which might apply to marches and parades

5.46 There is other legislation which might apply to marches and parades depending on the particular facts and circumstances of each march/parade. I consider this legislation in more detail in Chapter 15 (recommendation 27 on 'How To' guides for organisers). In summary, the following legislation may be relevant:

Common law - organisers have a common law duty of care to take reasonable care not to cause foreseeable death, injury, illness or damage etc. Failure to take reasonable care could result in civil action and claims for damages from third parties against the organisers for injury or loss to person;
Health and Safety at Work etc Act 1974 and its associated Regulations apply particularly where people are employed to work at the event. Under the Management of Health and Safety at Work Regulations 1999, organisers have a duty to carry out risk assessments which should determine any control measures necessary to avoid risk or to reduce it to acceptable levels. This legislation may also apply to major events and place a responsibility on local authorities to ensure as far as is reasonable and practicable, the safety of its employees and members of the public. There is also a legal requirement to carry employer's liability insurance;
Food Safety Act 1990 applies where food is provided or sold;
Occupiers Liability Scotland Act 1960 - duty of care - may impose liabilities on the landlord or tenant of the venue;
Licences, permits, certifications - depending on the nature of a march or parade some will require licences, permits or certifications, for example: a public entertainment licence; a liquor licence; a theatre licence; a street trader's licence; a lottery permit; or a market operator's licence. If the event involves the use of a regulated spectator stand (over 500 spectator capacity) or requires the erection of a temporary stand or raised platform with public access, a Special Safety Certificate is required;
Traffic Legislation - such as the Road Traffic Regulation Act 1984 as amended by the Road Traffic (Temporary Restrictions) Act 1991 and the Road Traffic Regulation (Special Events) Act 1994. If there is a requirement for restrictions such as road closures, diversions, signs or cones then a Temporary Traffic Regulations Order (TTRO) may be needed;
Control of Pollution Act 1974 - provisions about use of loud speakers;
Public Order Act 1936 - prohibition of the wearing of uniforms etc signifying association with any proscribed organisation;
Public Order Act 1986 - already discussed in this Chapter; and
Terrorism Act 2000 - provisions relating to membership and support of and fundraising for a proscribed organisation must also be observed.

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