APPENDIX 15
Supplementary Memorandum submitted by
the Northern Ireland Human Rights Commission[121]
PARADES, PROTESTS AND POLICING
Who's Right and Whose Rights?
Contents
SUMMARY
1. INTRODUCTION
1.1 The Context
1.2 International Human Rights—A brief
guide
1.2.1 The Role of the State
1.2.2 A Hierarchy of Rights
1.3 The Human Rights Act 1998
1.4 Human Rights in Northern Ireland
2. PARADES AND
RELATED PROTESTS:
A RIGHTS FRAMEWORK
2.1 The Right to Freedom of Assembly
2.1.1 Freedom of Assembly in domestic law
2.2 "Peaceful Assembly"
2.2.1 "Peaceful"
2.2.2 "Assembly"
2.2.3 A Right to March?
2.2.4 A Right to Counter Demonstrate?
2.3 Restricting the Right to Freedom of
Peaceful Assembly
2.3.1 The requirement to give notice
2.3.2 Non-discrimination
2.3.3 The Margin of Appreciation
2.3.4 Prescribed by law
2.3.5 Necessary in a democratic society
2.3.6 Proportionality—time, place,
manner and tradition
2.3.6.1 Traditional parades
2.3.7 Legitimate Aims
2.3.7.1 National Security or Public Safety
2.3.7.2 The prevention of Disorder or Crime
(a) The message of a parade
(b) Whether there are likely to be any "hangers
on"
(c) The intentions of the parade organiser
(d) Whether there is to be a related protest
(e) Any history of disorder connected with
a particular parade or location
(f) The potential for disorder in areas other
than the immediate vicinity
(g) The current political climate
(h) Evidence of steps taken towards a peaceful
resolution of a dispute
(i) The likely impact of a parade on relationships
within the community
2.3.7.3 The protection of health or morals
2.3.7.4 The protection of the rights and
freedoms of others
2.4 A Right to a Fair Hearing
2.4.1 Are the Commission's judgements pronounced
publicly?
2.4.2 Is the Parades Commission "independent
and impartial"?
2.4.3 "The opportunity to have knowledge
of and comment on the observations filed or evidence adduced by
the other party"
3. AFFECTED INDIVIDUALS
AND COMMUNITIES
3.1 A Right to Freedom from Sectarian Harassment?
3.2 Degrading Treatment
3.3 Private and Family Life
3.4 Peaceful Enjoyment of Possessions
3.5 The Rights of Minorities
3.6 A Right to be Consulted?
4. POLICING PUBLIC
ASSEMBLIES
4.1 Policing and Human Rights
4.2 Human Rights and Public Order
4.3 Policing Freedom of Assembly
4.4 Policing Protests
4.5 Use of Force by Police Officers
4.6 Right to Life and the Use of Force
4.7 Conclusions
APPENDIX: LEGAL
CASES
SUMMARY
This report explores the relevance of international
human rights standards, particularly European standards, to parades
and protests and the policing of those events in Northern Ireland.
If nothing else it reveals the complexity of the issue. There
are few simple answers and on occasion case law generated by the
European Convention on Human Rights (ECHR) appears contradictory.
Human rights legislation will not provide easy solutions to political
and community relations problems. However, human rights legislation
should make a contribution to providing structures within which
disputes can be justly resolved. We have tried to collate some
provisional conclusions as to how these human rights standards
impinge upon:
— freedom of assembly and expression;
— affected individuals and communities;
and
— the policing of public events.
The right to freedom of assembly, and effectively
the right to march, is viewed as one of the foundations of democratic
society and one not to be interpreted restrictively. Article 11
of the European Convention on Human Rights holds that "Everyone
has the right to freedom of peaceful assembly and to freedom of
association with others, including the right to form and join
trade unions for the protection of his interests". No restrictions
shall be placed on the exercise of these rights other than such
are prescribed by law and are necessary in a democratic society:
— in the interests of national security
or public safety;
— for the protection 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 of
the state.
From international human rights standards, from
legal cases referring to those standards (numbers in brackets
refer to cases in appendix), and from international practice we
can summarise the position as the following. It has to be remembered,
however, that not all the cases are recent ones and not all were
decided by the European Court of Human Rights.
Peaceful assembly includes the right to:
— peaceful protest (27, 42, 49)
— annoy or give offence to opponents
(27, 42)
— counter-demonstrate (42)
— a degree of protection from the state
to exercise right to assembly (42)
— peaceful protest even if a counter
protest threatens disorder (19)
— impede vehicular traffic and pedestrians
(23)
Peaceful assembly does not include the right to:
— assemble for an indefinite length
of time (47);
— assemble for purely social reasons
(6);
— pass and re-pass in a public place
(6);
— provoke others to violence (15, 49);
— hold a parade or protest if "hangers-on"
threaten disorder (3);
— offend religious sensibilities (39,
54);
— offend public morality (36);
Assembly can reasonably be restricted if:
— there is a fear of public disorder,
whether by those demonstrating or opponents (15, 14, 44);
— there is a recent history of violence
at the location (41);
— there is unreasonable disruption
to traffic or pedestrians (23, 47);
— the state feels it could not control
disorder (14, 42);
— a ban is imposed for a limited time
(14, 41, 44);
— a ban covers a defined geographical
area (14, 41, 44);
— the event could take place in an
alternative location (43); and
— the event could take place in an
alternative manner (41).
It is clear from the above lists that decisions
over the right of assembly can be very difficult. A parade or
protest is allowed to impede vehicular traffic and pedestrians
but not cause unreasonable disruption. A parade or protest is
allowed to annoy or offend opponents but not to provoke violence.
If there is a parade and a counter protest how does one decide
on where the threat of violence is coming from? What level of
disorder should be tolerated before the state intervenes to restrict
peoples' rights? These issues can only be resolved in the context
of each case. However, from the cases we have looked at we can
draw some basic conclusions:
Decisions taken by the European Court have
often given a wide "margin of appreciation" to national
governments over freedom of assembly. In other words, the
court has preferred to find in favour of the institutions of the
state rather than the applicant who has complained of an infringement
by the state. The Court has argued that the state is best placed
to adjudicate over the local context. With the incorporation of
the ECHR into domestic law under the Human Rights Act 1998 local
courts could actively re-interpret decisions when a "wide
margin of appreciation" has been relied upon.
Freedom of assembly covers not only static
meetings, but also public processions. The state has a positive
obligation to enable peaceful demonstrations to take place and
should take reasonable and appropriate measures to facilitate
this.
There is no absolute right to assemble or
parade. While central to the democratic process, the state
can place restrictions upon the right as long as those restrictions
are seen to be proportionate in the circumstances.
Local communities do not have a right to
withhold consent to an assembly or parade. However, it could
be argued that there is a responsibility on event organisers to
create conditions in which an assembly might take place peacefully,
and this could include liaising with local communities.
Route restrictions have been held to be an
infringement of the right to peaceful assembly. But restrictions
can be made if they are proportionate to the legitimate aim being
pursued. This includes securing public safety and the prevention
of disorder.
The likelihood of public disorder at an event
has been a central issue for the European Court. It has frequently
made adjudications that accept the decision made by the local
courts in restricting freedom of assembly, particularly if it
can be shown that violence is possible, or there has been a history
of violence, from any party involved.
The police have a dual role to protect people's
rights and to adjudicate between those rights. They therefore
have the responsibility to facilitate the exercise of human rights
and the authority to restrict such practice. This is particularly
pertinent with regard to issues related to freedom of assembly
and maintaining public order.
The police have the authority to prevent
or to disperse any assemblies that might create unreasonable disruption,
that threaten to disturb public order or that have the potential
to provoke violence from others because they interfere with their
rights and freedoms.
In dispersing assemblies the police should
always attempt to use peaceful means in the first instance. The
police do have the right to use force to disperse assemblies but
such force must always be both proportionate and necessary in
the circumstances. Police should only use firearms to disperse
violent demonstrations in so far as it is necessary for self-defence,
to protect others from threat of death or serious injury, or to
facilitate the arrest or prevent the escape of someone presenting
such dangers.
The police also have a positive obligation
to protect life and they have a responsibility to ensure that
all operations are prepared and planned with this in mind. Preparation
may extend to the training given and equipment supplied to police
officers.
In relation to making decisions on peaceful
assembly account should be taken of the right to a fair hearing.
In relation to policing peaceful assembly
account should be taken of the right not to be subjected to inhuman
or degrading treatment or punishment.
Issues over the protection of religious sensibilities
and minority rights remain problematic in Northern Ireland.
This report considers whether and how the following
factors should influence decisions that involve restricting the
right to freedom of assembly in Northen Ireland:
— the message of a parade;
— whether there are likely to be any
"hangers-on";
— the intentions of the parade organiser;
— whether there is to be a related
protest;
— any history of disorder connected
with a particular parade or location;
— the potential for disorder in areas
other than the immediate vicinity of a parade;
— the current political climate;
— evidence of any steps taken towards
a peaceful resolution of the dispute; and
— the likely impact of the parade on
relationships within the community.
It reveals that, whilst the ECHR, and the cases
that have been taken, offer some guidance to the problems around
peaceful assembly in Northern Ireland, the lessons to be drawn
are often inconclusive. Since the ECHR became fully incorporated
into UK law on 2 October 2000, the "margin of appreciation"
that existed in the cases we have examined will not be as significant.
This opens the possibility of local jurisprudence developing around
this issue which can give far greater guidance. The answer to
"Who's right and whose rights?" may thus become clearer
when cases are brought before Northern Ireland's courts. However,
the courts cannot solve all the problems. A long-term resolution
of the parades issue will depend on a greater understanding of
rights and responsibilities, improved community relations and
political accommodation.
121 A revised version of the substance of this memorandum
has already been published by the Northern Ireland Human Rights
Commission. Back
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