House of Commons - Northern Ireland Affairs - Appendices to the Minutes of Evidence

Select Committee on Northern Ireland Affairs Appendices to the Minutes of Evidence

APPENDIX 15

Supplementary Memorandum submitted by the Northern Ireland Human Rights Commission

2. PARADES AND RELATED PROTESTS: A RIGHTS FRAMEWORK

The Parades Commission, established under the Public Processions Northern Ireland Act 1998, has declared itself to be born out of a failure to reach local accommodation over parade disputes in a number of areas. Such failure, as we emphasised above, is best understood against a historical backdrop of political uncertainty and agitation. It is the legacy of an embittered and sometimes violent past, often reduced to a zero-sum game in which the public expression of one's own identity is perceived by others to threaten theirs. The Guidelines published by the Parades Commission detail the principles that the Commission will consider when deciding whether or not to impose restrictions on a parade.

The Parades Commission Guidelines:

The Guidelines are based on the fundamental premise that the rights to peaceful assembly and freedom of expression as outlined in the European Convention on Human Rights are important rights to be enjoyed equally by all. The Commission will not therefore seek to raise obstacles to the exercise of these rights unless there are compelling arguments to do so.

In this chapter we examine the source and content of these rights as well as the arguments which have been made concerning their scope.

2.1 The Right to Freedom of Peaceful Assembly

In international human rights law, the right to freedom of peaceful assembly is guaranteed principally by Article 11 of the European Convention on Human Rights (ECHR) and Article 21 of the International Covenant on Civil and Political Rights (ICCPR).

The right to freedom of peaceful assembly has been recognised as one of the foundations of democratic society, and one not to be interpreted restrictively.[124] It can be exercised by both individuals and corporate bodies.[125] The introductory section highlighted the evanescent distinction between public assembly and public expression. Thus, in many cases, consideration of the right to freedom of assembly cannot logically be separated from that of the right to freedom of expression (Article 10, ECHR and Article 19(2) and (3), ICCPR) and also the right to freedom of religion (Article 9, ECHR and Article 18, ICCPR). Indeed, where issues under all three rights are raised, the United Nations Human Rights Committee and both the European Court and Commission have elected to explore the substantive issues under the Article most relevant to the facts, and to treat the others as subsidiary.

Article 11, European Convention on Human Rights:

(1) 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.

(2) 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 interests 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 of the state.

Article 21, International Covenant on Civil and Political Rights:

The right of peaceful assembly shall be recognised. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.

As far as parades are concerned, freedom of thought and freedom of expression are subsidiary to freedom of assembly and do not require separate consideration.[126] Furthermore, the European Court has explicitly stated that the Convention is to be read as a whole, and that therefore the application of any individual Article must be in harmony with the overall logic of the Convention.[127]

(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent the State from requiring the licensing of broadcasting, television or cinema enterprises.

(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 19(2) and (3), International Covenant on Civil and Political Rights:

(2) Everyone shall have the right to freedom of expression, this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3) The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order, of public health or morals.

Before examining how these rights have been interpreted in the international courts—and thus, how they might be applied in cases involving parades in Northern Ireland—it is appropriate, briefly, to outline the principles developed in domestic courts regarding the right to peaceful assembly. The following section, therefore, sketches the common law position in the UK prior to incorporation of the European Convention.

2.1.1 Freedom of assembly in Domestic Law

In the English case of Director of Public Prosecution v Jones (Margaret) and Another (1999), Lord Irvine (in the majority) argued that UK law recognised the highway to be a public place on which all manner of activities may occur:

Provided these activities are reasonable, do not involve the commission of a public or private nuisance, and do not amount to an obstruction of the highway unreasonably impeding the primary right of the general public to pass and repass, they should not constitute trespass. Subject to these qualifications, therefore, there would be a public right of peaceful assembly on the public highway....

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Arguably, Lord Irvine's conclusions go beyond even the protection afforded to freedom of assembly by Article 11 of the European Convention (see, in particular, the Anderson case in 2.2.2 below regarding the right to pass and re-pass). Certainly, his "unreasonable user" test is broader than that relied upon in the Divisional Court and in the dissenting judgements of Lord Slynn and Lord Hope. In their minority submissions, they argue that the public right of assembly has been, and ought to be, restricted merely to activities incidental or ancillary to the right of passage. Any activity which exceeds these limits (even if peaceful and non-obstructive) amounts to trespass. They considered that this rule was not unduly restrictive if applied pragmatically, for in practice, other uses of the highway are frequently tolerated. Lord Irvine, though, asserts that "mere toleration does not secure a fundamental right".

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Lord Clyde, while also in the majority, advocates a slightly more cautious approach. Nevertheless, he notes the express limitations on the right of assembly laid down in Article 11 of the European Convention, and gives the following example of reasonable usage:

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Thus, following the majority decision in Jones, it would certainly be tenable to suggest that the common law position in the UK relating to freedom of assembly has evolved so as to be entirely consonant with a rights based approach. The question of what constitutes an "unreasonable use" of the highway will be similar to the questions posed in any given situation by Article 11 of the Convention—does that use threaten national security, public safety, public order, the rights and freedoms of others etc? In the words of Lord Clyde:

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Local courts must now look to the case law of the European Court of Human Rights for guidance when making this assessment, and the remainder of this chapter therefore focuses on these European cases. Just as Article 11 of the Convention is divided into two parts, analysis of the key issues here can be similarly arranged. The first section identifies the sorts of demonstration which fall within the definitional confines of "peaceful assembly". This is followed by an examination of the circumstances in which "peaceful assembly" can reasonably be restricted.

2.2 "Peaceful Assembly"

The right to freedom of assembly as secured by the ECHR and ICCPR extends only to "peaceful assembly". Likewise, the American Convention on Human Rights only covers "peaceful assembly without arms", as does section 17 of the Bill of Rights Chapter in the South African Constitution 1996. While the African Charter on Human and Peoples' Rights and Duties does not so limit what it terms "the right to assembly freely with others", the preamble insists that "the enjoyment of rights and freedoms also implies the performance of duties on the part of everyone".

Article 15, American Convention on Human Rights:

The right of peaceful assembly, without arms, is recognised.

No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and necessary in a democratic society in the interest of national security, public safety or public order, or to protect public health or morals or the rights or freedoms of others.

Section 17 of Chapter 2 (Bill of Rights), South African Constitution:

Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.

Article 11, African Charter on Human and Peoples' Rights and Duties:

Every individual shall have the right to assembly freely with others.

The exercise of this right shall be subject only to necessary restrictions provided for by law in particular, those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.

2.2.1 "Peaceful"

The European Court and Commission have attempted to delimit the boundaries of "peaceful" behaviour. By and large, "peaceful" has been held to include behaviour that may annoy or insult others, but to exclude behaviour which actually obstructs the activities of others, or which has the potential to incite others to violence (see further the English case of Redmond-Bate in 2.3.7.2(d)). It is clearly a fine line to tread. Moreover, an illegal assembly (eg one that has not satisfied a statutory obligation to notify the relevant authorities) may be regarded as a "peaceful" assembly, yet, as we shall see in the later part of this chapter, even legal peaceful assemblies can reasonably be restricted in certain circumstances.

In the case of Plattform "Ärzte fur das Leben" v Austria (1988), which concerned a procession and open-air service organised by anti-abortion protesters, the European Court held that a peaceful demonstration "may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote".[132] In G v The Federal Republic of Germany (1989), however, the European Commission stated that "peaceful assembly" does not cover a demonstration where the organisers and participants have violent intentions which result in public disorder.[133]

The latter case concerned an illegal demonstration (notice had not been given to the German authorities) in front of the US military barracks in support of nuclear disarmament. Demonstrators blocked the road for 12 minutes every hour, but the sit-in still fell within the accepted definition of a "peaceful assembly".[134]

Two "freedom of expression" cases also shed light on what is likely to be considered "peaceful" with regard to freedom of assembly. In the case of Steel and others v UK (1998), the first and second applicants, who were involved in protests against a grouse shoot and an extension to the M11 respectively, physically impeded the activities of which they disapproved. The European Court found that the police had been justified in fearing that this behaviour, if persisted in, might provoke others to violence.

In contrast, the actions of the remaining applicants in Steel (who handed out leaflets and displayed banners to protest against the sale of arms outside a conference on fighter helicopters) was held to be "entirely peaceful". The Court found no indication that these protesters "significantly obstructed or attempted to obstruct those attending the conference, or took any other action likely to provoke these others to violence"[135]—their arrest and subsequent detention had violated their right to peaceful assembly.

In another Article 10 case, Hashman and Harrap v UK (1999), two hunt saboteurs had tried to distract hounds by shouting and blowing a hunting horn. While the Crown Court had previously ruled that such actions had not resulted in "violence or threats of violence", it is less clear whether the European Court would have described the saboteurs' protest as peaceful, for it openly acknowledged that the protest had impeded the activities of others. Judge Baka, although dissenting on the question of whether the restriction was "prescribed by law", argued that the protesters were "avowed hunt saboteurs and as such they deliberately tried to seriously disturb other people's lawfully organised pleasure and leisure activity or even make it impossible".

2.2.2 "Assembly"

Whilst an explicit definition of "assembly" has not been forthcoming, its interpretation has been qualified in some important respects. The right to freedom of assembly can only be relied upon by those assembling for a specific purpose. In Anderson and others v UK (1997)—a case concerning the prohibition of nine individuals from entering a shopping mall—the European Commission concluded that there is no indication "that freedom of assembly is intended to guarantee a right to pass and re-pass in public places, or to assemble for purely social purposes anywhere one wishes." Article 11 was held not to apply to the circumstances of the case because the applicants had no history of using the shopping centre for "any form of organised assembly or association".

In a similar vein, the Commission's decision to deal with the issues in both W.G. v Austria (1992) and G.S. v Austria (1992) "under the more general guarantee of Article 10" (ie freedom of expression) suggests that an "assembly" must be organised so as to enable the participation of a number of people for a particular purpose. The Commission thought it unnecessary to consider whether setting up tables from which to distribute information to passers-by, even with the intention of motivating persons present to take future common action, amounted to an "assembly" within the meaning of Article 11.

Furthermore, even if purpose is established, an assembled group still may not conform to the notion of "assembly" as protected by the international provisions on freedom of assembly. There is the secondary question of whether an "assembly" must be organised and have a finite number of participants. This was partially addressed in the case of Kivenmaa v Finland (1994) that came before the United Nations' Human Rights Committee. It concerned twenty-five members of an organisation, summoned by Ms Kivenmaa for the purpose of distributing leaflets and displaying a banner to protest against the human rights record of a visiting foreign head of State. The 25, however, merely formed part of a larger crowd of demonstrators, and the Human Rights Committee had to determine whether their gathering constituted a "public meeting" which should have been notified to the authorities.

Ms Kivenmaa argued that it was not a public meeting but rather, simply, an exercise of her right to freedom of expression that did not require prior notification. The Committee agreed, concluding that a "gathering of several individuals at the site of the welcoming ceremonies for a foreign head of State on an official visit, publicly announced in advance by the State party authorities, cannot be regarded as a demonstration".[136] Therefore, Ms. Kivenmaa's subsequent prosecution for holding a "public meeting" without prior notification had been in violation of both articles 19 and 21 of the Covenant (even given that Finnish law requires only six hours notice compared, for example, with the 14 days required for parade related protests in Northern Ireland).

A dissenting member of the committee pursued the issue further and cited the following commentary on Article 21:

intentional,

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2.2.3 A Right to March?

In Christians Against Racism and Fascism (CARAF) (1980), the European Commission accepted "that the freedom of peaceful assembly covers not only static meetings, but also public processions."[138] This understanding has been relied upon in a number of cases coming before the European Commission and Court, including Plattform Ärzte (1988) and Ezelin v France (1991). In the latter, the Commission stated that the right to freedom of assembly "is exercised in particular by persons taking part in public processions."[139]

2.2.4 A right to counter-demonstrate?

The Public Processions (Northern Ireland) Act 1998 defines "protest meeting" as a meeting held in the vicinity of, and at about the same time as, a procession "the purpose (or one of the purposes) of which is to demonstrate opposition to the holding of that procession on that route or proposed route."[140]

The right to take part in such a meeting is, de facto, no different from the right to participate in a parade. However, in Plattform Ärzte (1988), the European Court noted that the right to counter-demonstrate must not be allowed to inhibit the exercise of the right to demonstrate (see also CARAF (1980),[141] 2.3.7.2(d) and 4.3 below). The State therefore has a duty to take reasonable and appropriate measures to enable lawful demonstrations to take place without participants fearing that they will be subjected to physical violence by their opponents. In this case, participants in the counter-demonstration (which had been prohibited) threw clumps of grass and shouted down a recitation of the rosary. The police, though, did not attempt to stop this behaviour, and argued that it had neither caused serious damage nor actually prevented the procession and religious service from taking place. The Court held that the police had acted reasonably in the circumstances.

It could plausibly be argued that it was unnecessary for the Court in Plattform Ärzte to make such a statement. If a counter-demonstration becomes violent then the counter-demonstrators have themselves already overstepped the legitimate exercise of the right to freedom of peaceful assembly and should thus forfeit the protection offered by that right.

Furthermore, this is one area in which the margin of appreciation has previously allowed contracting States a wide discretion. The Court added that the State "cannot guarantee this absolutely and they have a wide discretion in the choice of the means to be used".[142] Just as the adjective "peaceful" defies easy definition, the level of violence which ought to be tolerated (if any), and what should be regarded as "inhibitive", has not been prescribed but rather left to police discretion.

Thus, the Austrian government in Chorherr v Austria (1993) successfully argued (inter alia) that the arrest and detention of a demonstrator who, at a military ceremony, had worn a large banner on his rucksack (apparently blocking the view of some spectators) and distributed leaflets calling for a referendum on the sale of fighter aircraft, was merely in satisfaction of this positive duty to enable legal demonstrations to take place without interference. Interestingly, in Chorherr the European Commission had previously ruled—and three dissenting judges in the Court followed the Commission's reasoning—that the interference was disproportionate given that the impairment of the spectators' view could have been remedied by less stringent measures[143] (see further 2.3.6, 2.3.7.2 and chapter 4).

2.3 Restricting the right to freedom of peaceful assembly

Already, it is clear that neither the right to freedom of expression, nor that of assembly, are absolute rights. As can be seen, Articles 10(2) and 11(2) of the European Convention and Articles 19(3) and 21 of the International Covenant outline the conditions under which limitations may legitimately be imposed on the exercise of these rights.

In the context of Northern Ireland, conditions may be imposed on public processions by the Parades Commission, the Police, and the Secretary of State under the Public Processions Northern Ireland Act 1998. Related protests which do not take the form of a parade may be restricted by the Police or the Secretary of State under the Public Order Northern Ireland Order 1987. Restrictions upon the exercise of the right to freedom of peaceful assembly do not, though, only include sanctions by way of prior restraint but also subsequent punitive measures such as fines and convictions (see further 2.3.7.2(d)).[144]

2.3.1 The requirement to give notice

The Human Rights Committee has held that a requirement to give notice is compatible with the permitted limitations laid down in Article 21, ICCPR.[145] Similarly, the European Commission in Rassemblement Jurassien (1979) stated that:

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The Commission's decisions in two more recent cases support this stance—W.G. v Austria (1992) and G.S. v Austria (1992). Each applicant had disseminated information from tables set up, respectively, on a public road (without obstructing traffic) and in a pedestrian area. While they had notified the police, they had not obtained prior authorisation from the local council as required by Road Traffic Regulations. The Commission held that the requirement of prior authorisation "could be regarded as justified" and that the fines for violation of the regulations were not disproportionate to the aim pursued.

2.3.2 Non-discrimination

Restrictions imposed on the exercise of rights must not be discriminatory in effect. This is itself guaranteed by Article 14 of the European Convention and Article 26 of the Covenant.

Article 14, European Convention on Human Rights

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Article 26, International Covenant on Civil and Political Rights

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

This right is always exercised in conjunction with one or more other substantive rights such as that to freedom of assembly, although Protocol 12 of the Convention (not yet ratified by the UK) will make the right into a freestanding one. Furthermore, while the Convention does not guarantee specific rights to minorities (see 3.5 below), Article 14 does secure the enjoyment of the Convention rights and freedoms without discrimination on any ground, including association with a national minority.[147]

In Pendragon v UK (1998), the prevention of a Druidic celebration of the summer solstice at Stonehenge was held not to discriminate against the Druids—despite the particular significance of both the time and place to their beliefs—on the basis that there was no evidence that Druids were treated in any way differently from any other groups of people wishing or attempting to observe the summer solstice in the vicinity of Stonehenge. This is precisely the same argument as was successfully advanced in the English case of R v Tunbridge Wells Borough Council and another ex parte Gipsy Council for Education Culture Welfare & Civil Rights and another (2000), albeit prior to the Human Rights Act 1998 coming into force:

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In CARAF (1980), the Commission held that the provision in the Public Order Act 1936 which enables a ban to be placed on all processions or on any class of public processions in a certain area during a specified time was "designed to ensure an even application of the law in that it aims at the exclusion of any possibility for the taking of arbitrary measures against a particular demonstration.[149] Furthermore, the Commission acceded to the judgement of the national authorities when addressing the question of whether the exemption from the ban of processions "customarily held within the Metropolitan Police District" was discriminatory. The Commission assumed that the competent national authorities must have been "able to foresee that none of the customary processions in London during the relevant time were likely to cause trouble . . .[150]

There is no similar exemption clause for processions "customarily held" in Northern Ireland. However, the powers under the 1936 Act are similar to the Secretary of State's powers contained in sections 11(2) and 11(3) of the Public Processions Northern Ireland Act 1998.[151] If the criteria enumerated in those sections are satisfied, the Secretary of State may prohibit the holding of all public processions in any "area"[152] for up to 28 days. Such a ban might be argued to be discriminatory given that in the financial year 1999-2000 the ratio of parades classified as loyalist to those classified as nationalist was 13:1.[153] Again, though, because of the present conjunctive nature of Article 14, the European Commission appears to have considered the proportionality of the restrictions when deciding whether or not they were discriminatory. Thus, if the restrictions can be shown to be proportionate to the aim being pursued by the Secretary of State (eg for the prevention of disorder), then they are less likely to be deemed discriminatory.[154]

Importantly, the United Nations Human Rights Committee has stated that Article 26 of the ICCPR does not provide a right to see another person prosecuted, nor does the absence of prosecution against one person render the prosecution of another person involved in the same offence necessarily discriminatory, in the absence of specific circumstances revealing a deliberate policy of unequal treatment before the law.[155]

2.3.3 The Margin of Appreciation

In determining the necessity of a restriction, the European Court and Commission have alwys accorded a certain margin of appreciation to the national authorities. The margin has been said to extend in particular to the choice of reasonable and appropriate means to be used by the authorities to ensure that lawful manifestations can take place peacefully.[156] In the vast majority of cases, the European Commission and Court have held that the restrictions imposed did fall within this margin, and therefore, did not breach the Convention. In other words, the European Court has been reluctant to override domestic courts which are viewed as better placed to understand the context in which decisions restricting particular rights have been made. Moreover, a wider margin has been conferred on the national authorities when dealing with politically sensitive matters,[157] as was the basis of the decision in Rai, Allmond & Negotiate Now (1995):

In the circumstances of Northern Ireland, where sensitive and complex issues arise as to the causes of the conflict and any possible solutions, the Government can be considered in its general policy of banning demonstrations concerning the subject to be pursuing the aim of preventing disorder and protecting the rights and freedoms of others.

However, following incorporation of the ECHR into domestic law through the Human Rights Act 1998 (which came fully into force on 2 October 2000), the scope of the domestic courts' review of any restrictions imposed on Convention rights by, for example, the Parades Commission, may be significantly greater than that exercised by the European Court. The margin of appreciation is a fundamentally international doctrine,[158] and the Northern Ireland courts could, in theory, scrutinise the necessity of any impugned measure much more closely. Indeed, rather than blindly applying the European jurisprudence, the Courts here could actively re-interpret those cases in which the decision relied heavily upon the wide margin granted to national authorities (eg Chorherr v Austria (1993) and Rai, Allmond and Negotiate Now (1995)).

2.3.4 Prescribed by law

Any restrictions must be "prescribed by law". The test here is whether the impugned measure has basis in domestic law, and this itself must be formulated with sufficient precision to enable the individual—if need be, with appropriate advice—to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.[159] In Hashman and Harrup v UK (1999) the order by which the hunt saboteurs were bound over to keep the peace and not to behave contra bonos mores (ie in a way which is wrong rather than right, in the judgement of the majority of fellow citizens) was held to violate Article 10, ECHR because it was not sufficiently precise so as to be "prescribed by law".

That said, in Northern Ireland the most frequently invoked basis for interfering with the rights of the individual under the common law is action taken to prevent a breach of the peace. While this does not constitute a criminal offence, the European Court has held it to be sufficiently defined so as to be "prescribed by law" within the terms of the Convention.[160]

2.3.5 "Necessary in a democratic society"

Restrictions must also be "necessary in a democratic society". "Necessary" means that any restrictions imposed upon the exercise of the right must correspond to a "pressing social need", and, in particular, must be proportionate to the legitimate aim being pursued by the authorities (see 2.3.6 below). In assessing whether the need was pressing, the Court in Ahmed and Others v UK (2000) looked at the extent of the national debate about the issue. In this case, the regulation of the political activities of civil servants had been examined in detail by the Widdecombe Committee which had concluded that regulation was necessary. It is likely that a court examining the need for the regulation of parades in Northern Ireland would take similar account of the North Report and any subsequent review of the Parades Commission.

2.3.6 Proportionality—time, place, manner and tradition

It is sometimes said that even though there may be a right to assemble—even a right to march—this in no way implies a right to assemble or march in a particular place, or along a particular route, at a particular time. Strictly speaking, this interpretation is incorrect. Route restrictions have been held to be an infringement of the right to peaceful assembly, for the right itself has not been interpreted restrictively (see 2.1 above).

Any restrictions upon the right to freedom of peaceful assembly must, however, be proportionate to the legitimate aim being pursued (see 2.3.7 below). Hadden and Donnelly argue that the authorities have to "give proper consideration to competing rights and interests involved" and that the measures the authorities adopt should be "reasonably proportional in relation to those rights and interests and the risks of public disorder."153[161] Thus, in CARAF (1980), when considering whether a two month ban on all parades within the London Police District was proportionate, the Commission considered that the applicant's right to freedom of assembly had not been violated as the organisation:

— could have held its procession two days after the date applied for,

— could have held it on the date applied for anywhere outside the district,

— or could have held a meeting in another form other than a public procession on that date and within the London district.

Similarly, in Rai, Allmond and "Negotiate Now" (1995), the Department of National Heritage's refusal to grant permission for a demonstration in Trafalgar Square did amount to an infringement of the organisation's right to freedom of peaceful assembly. This infringement, however, was held to be a proportionate one, and thus did not violate the organiser's Convention rights. The Commission noted that "the refusal of permission 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 Parades Commission's Guidelines echo this proportionality test, stating in relation to disruption to the life of the community and to the impact on relationships within the community respectively:

— The question the Commission must therefore address is whether the level of disruption caused by the exercise of the right to assembly is disproportionate to the significance of the procession to those participating, or to the community they claim to represent (para 3.1)

inter alia

2.3.6.1 Traditional Parades

The significance and purpose of parades is often framed as being a function of their perceived traditionality. As required by section 8(6)(e) of the Public Processions Northern Ireland Act 1998, the Parades Commission must have regard to the desirability of allowing a parade which has been customarily held on that route to continue to be allowed to do so. In the European case law, the importance attached by participants to the concept of tradition has been one of the factors taken into account when assessing the proportionality of any interference with the exercise of the rights to freedom of assembly and expression. It has not, though, been an overriding factor.

In both A.R.M Chappel v UK (1987) and Pendragon v UK (1998), the Druids claimed that their being prevented from celebrating the midsummer solstice at Stonehenge was a violation of their rights (under Articles 9 and 11, and articles 9, 10, 11 and 14 respectively) since they had performed a religious ceremony at Stonehenge at sunrise on the longest day of the year for many thousands of years. Moreover, Stonehenge was thought to have been built by the Druids some 4,500 years ago.

The European Commission held that the public order implications of large numbers of visitors arriving at Stonehenge outweighed the perceived significance of the summer solstice for Druids. Indeed, the fact that no alternative venue could be found, because of the unique historical and archaeological importance of Stonehenge, did not work in the Druids' favour, but rather led to the conclusion that closing the Stonehenge area over the immediate period of the solstice was the only and thus the least stringent means of preventing disorder, and was thus proportionate.

2.3.7 Legitimate Aims

The aims which may legitimately be pursued by the authorities in restricting the exercise of any right are listed in the particular Article securing that right. In terms of freedom of assembly, the Convention and Covenant are virtually identical. The exercise of the right can reasonably be restricted for the following purposes:

— The interest of national security of public safety,

— The prevention of disorder or crime,

— The protection of health or morals, or

— The protection of the rights and freedoms of others.

These are examined in greater detail below.

2.3.7.1 National Security or Public Safety

Clearly, in considering parades, public safety is a more pertinent consideration than national security. There is a significant overlap between public safety considerations and those concerning the maintenance of public order, and no cases have been decided by the European Court solely on the grounds of public safety. Conceivably, though, should the Secretary of State consider it "necessary in the public interest" to invoke his/her power to prohibit public processions as outlined by section 11 of the Public Processions Act, the aim of ensuring public safety may become more significant. Public safety arguments are also likely to be advanced where a large parade is notified to take place in a confined area.

The aim of protecting public safety may prove difficult to counter. In the English case of R v Tunbridge Wells Borough Council and another ex parte Gipsy Council for Education Culture Welfare & Civil Rights and another (2000) the Divisional Court readily accepted the "official" assessment of the threat to public safety should the Horsmonden Horse Fair be allowed to take place, despite the serious implications for the rights of the Romany Gypsies as protected by Articles 8 and 11 of the Convention. David Pannick QC stated:

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2.3.7.2 The Prevention of Disorder or Crime

We have already sketched the boundaries of the right to peaceful assembly. Paradoxically though, peaceful assembly can be legitimately restricted on grounds of disorder. In G v The Federal Republic of Germany (1989), "disorder" was synonymous with obstruction. The Commission upheld the applicant's conviction for participating in a sit-in protest on a public road.[164] In G. and E. v Norway (1983), the Commission stated that "a demonstration by setting up a tent for several days in an area open to public traffic must necessarily cause disorder."[165] The prevention of "acoustic terric"—the use of megaphones, whistles, rattles and saucepan lids—in S. v Austria (1990) was justified (inter alia) on grounds of disorder. And in Chorherr v Austria (1993), the European Court—whilst relying heavily on the doctrine of the margin of appreciation—concluded that the behaviour of a demonstrator who at a military ceremony blocked the view of some spectators with his banner was also disorderly.

What is considered to be "disorderly" thus varies according to the situation, and is contingent upon a number of factors. As far as parades in Nothern Ireland are concerned, the relevance of the following aspects falls to be determined:

(a) the message of a parade;

(b) whether there are likely to be any "hangers-on";

(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 of a parade;

(g) the current political climate;

(h) evidence of any steps taken toward a peaceful resolution of the dispute; and

(i) the likely impact of the parade on relationships within the community.

(a) The Message

Restrictions based entirely on the subject matter or message of a demonstration (both verbal and symbolic) risk confusing "disorder" with "controversy". Thus, while the right to freedom of expression as set down in section 17 of the Bill of Rights Chapter of the South African Constitution explicitly excludes:

(i) propaganda for war,

(ii) incitement of imminent violence, or

(iii) advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm,

and Article 20(2), ICCPR states that "[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law", the ECHR does not attempt such proscription. Article 10, ECHR stresses that the exercise of the right to freedom of expression carries with it special duties and responsibilities (as does Article 19, ICCPR), but the European Court has severally restated the principle that freedom of expression, subject to Article 10(2):

166

In Incal v Turkey (1998), the applicant's conviction for helping to prepare a political leaflet which urged the population of Kurdish origins to band together and "set up Neighbourhood Committees based on the people's own strength" was held by the European Court to have violated the applicant's freedom of expression under Article 10. Read in context, the leaflet could not be taken as incitement to the use of violence, hostility or hatred between citizens.[167] Moreover, the Court stated that the "limits of permissible criticism are wider with regard to the government than in relation to a private citizen."[168]

The First Amendment to the US Constitution

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In America, judicial interpretation of the First Amendment to the Constitution has given even greater protection to these fundamental rights. The First Amendment has been held to protect symbolic speech such as the burning of the national flag.[169] as well as the advocacy of racist theories as propagated by groups such as the Ku Klux Klan.[170] The Supreme Court has adopted the "clear and present danger" test as the principal determinant as to whether restrictions are justified. This test means that freedom of assembly or expression ought to be curtailed only when the risk of public disorder is imminent.

Of particular relevance to the parades issue is the Skokie case.[171] The National Socialist Party of America (NSPA)—a neo-Nazi organisation—planned a parade and demonstration in the village of Skokie which had a largely Jewish community. The local authority imposed a ban on the NSPA's demonstration but, on appeal, the Supreme Court held that the restrictions were unconstitutional and the march and rally should be allowed despite being deeply offensive to the residents of the village. While this case is often cited in support of an absolute right to freedom of assembly, less attention has focused on the fact that due to the size of the protest which gathered in the town centre on the day of the march, the NSPA's rally was eventually held at a non-contentious location. Of course, this does not deny the constitutional weight attached to the right of freedom of assembly in America. More than anything else, it merely demonstrates the practical difficulties inherent in policing contentious demonstrations.

Historically, processions and demonstrations in the United Kingdom of a political character seem to have been particularly susceptible to restriction, whereas those of a solely religious character have been offered special protection. The history of restrictions imposed on demonstrations in London is well documented in the facts of CARAF (1980)[172] which itself is an interesting case given the attempts by the organisers to have their proposed procession recognised as a religious demonstration as between two cathedrals and led by choirs in robes. In Rai, Allmond and Negotiate Now (1995), the Department of National Heritage's decision (upheld by the European Commission), not to allow the rally to take place in Trafalgar Square, was influenced by the fact that an Apprentice Boys' "rally with hymns" ten years previously had been used "as a political arena" despite prior assurances to the contrary (see further (e) below).

In international case law, any bias favouring religious assemblies is not so obvious, for where the message has affronted religious sensibilities the European Court has relied more heavily upon the aim of protecting the rights and freedoms of others than that of the prevention of disorder. This is therefore examined in greater detail under that heading.

(b) Whether there are likely to be any "hangers-on"

The problem of non-participant hangers-on is frequently encountered in parade and protest situations. In A. R. M. Chappell v UK (1987), the applicant argued that for 80 years up until 1985 the religious ceremony known as the midsummer solstice had taken place without interference by any public or private body. In recent years, however, the ceremony has attracted a large gathering of on-lookers, which developed over successive years into an event known as the Stonehenge free festival (attended in 1984 by an estimated 30,000 people). This event was not sanctioned or encouraged by the Druids and formed no part of the Druids' ritual or ceremony. More importantly, by 1983 and 1984 a group of people known as the "peace convoy" introduced an unruly element into the festival, and were disruptive and disrespectful of the law. Yet despite the Druids' abdication of any responsibility for the actions of hangers-on, the restriction upon their solstice celebration was upheld.

The European Commission has often stated that the right to freedom of peaceful assembly is guaranteed to everyone who has the intention of organising a peaceful demonstration. Thus, in Northern Ireland, some enquiry as to, and assessment of, the intentions of the organisers can legitimately be made by the police and Parades Commission.

While noting that actual objectives or intentions may sometimes differ from those notified, unless there is evidence of any concrete action which might belie the sincerity of the aim declared by the organiser, the Court has previously been willing to accept the organiser's declared intention at face value.[173]

Peaceful intentions, though, have not necessarily led the European Commission and Court to conclude that restrictions placed on the right to freedom of assembly were unwarranted. In Rai, Allmond & Negotiate Now (1995), the applicants' peaceful intentions were not disputed—moreover, they had offered to use stewards and co-operate with the police as to organisation details. Notwithstanding, the restrictions placed on their proposed Trafalgar Square demonstration were deemed necessary in a democratic society.

In Rassemblement Jurassien (1979), the organisers stated that their planned demonstrations were to be peaceful. Again the European Commission—noting the fairly broad margin of appreciation accorded to national authorities when confronted with foreseeable danger affecting public safety and public order[174]—held that as there was considerable tension and serious clashes could be foreseen, the banning order had been legitimate.

In CARAF (1980), the Commission noted that "whilst it was clear that the applicant association had wholly peaceful intentions it is nevertheless true that its statutory purposes were expressly directed against the National Front policies and it could therefore not be excluded that the proposed procession could also give rise to disorder."[175] Furthermore, the central issue was the likelihood of demonstrations to result in public disorder, irrespective of the source of such a risk, and thus "it was not unreasonable for the authorities to apply an objective criterion rather than a subjective test relating to the violent or peaceful intentions of the organisers of such demonstrations." [176]

This objective test, however, appears to contradict the tests used in both Plattform Arzte (1988) and Ezelin v France (1991), which were heard by the European Court. In the latter, the European Commission (whose reasoning the Court followed) stated that:

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It remains to be seen which test the European Court will rely upon in the case of Boris Stankov v Bulgaria(1998) and United Macedonian Organisation "ILINDEN" v Bulgaria (1998). In the admissibility proceedings, the Bulgarian government submitted that there had been clashes between supporters of the applicant association and other persons in the past, whereas the applicants insisted that it had always been the police who had initiated the disorder. Furthermore, they stated that even if the authorities had reason to believe that their meetings and marches would meet opposition by other people, it was the duty of the police to protect their right to demonstrate.

(d) Whether there is to be a related protest

In 2.2.4 above, we noted that it was largely a question of police discretion as to what level of disorder caused by protest activity should be tolerated, that the European Court has often been sympathetic to the police prognosis, and that a wide margin has previously been granted to national authorities in deciding how to facilitate peaceful demonstrations. Thus, while making idealistic statements of principle such as that in the Plattform Arzte case, evidence pointing to the possibility of a violent protest (see, for example, (e) Any history of disorder, below), could serve to justify restrictions being placed on an entirely peaceful and legal demonstration. The following example extracted from the European Commission's report in CARAF reiterates the point. The Commission held that:

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But the Commission then noted that restrictions could still be imposed on such an assembly so long as they are "in conformity with the terms of Article 11(2)" ie that the restrictions are proportionate to the legitimate aim sought to be achieved.

In contrast, the Court in Ezelin adopted a much stricter test:

179

Extending this principle, it would seem that if the organisers and participants of a parade have themselves remained peaceful, on no account may they be restricted because of disorder threatened or caused by a related protest. The person or group organising a parade or protest can only be restricted if they are shown to have acted "reprehensibly" (although no definition of "reprehensible" has been forthcoming).

The subjective Ezelin test is similar to that used in the English case, Redmond-Bate v Director of Public Prosecutions (1999). Three women, preaching on the steps of Wakefield Cathedral, were arrested for a breach of the peace when some members of the gathered crowd became hostile towards them. The Court of Appeal held that:

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Lord Justice Sedley noted that lawful conduct should not be restricted unless it is so provocative so as to give rise to a reasonable apprehension of violence. Moreover, the test for provocation is not whether the message is offensive, but rather whether the conduct in question interferes with the rights or liberties of others:

181

Unfortunately, the Court of Appeal did not elaborate any further on what might constitute clear interference with the rights of others. Guidance, therefore, may be obtained from the relevant European case-law—see 2.3.7.4 below and chapter 3 generally.

It may, though, be significant that the "restriction" in both Ezelin and Redmond-Bate was a retrospective sanction. In contrast, the restriction in CARAF was by way of prior restraint—a preventative measure based upon the objective threat of disorder. Arguably, therefore, distinguishing the source of disorder has been more important when assessing the rectitude of retrospective or reactive restrictions (eg an arrest for breach of the peace) than it has been when considering the necessity of pre-emptive restrictions (eg a ban or re-routing of a parade). Where preventative measures are concerned, an objective assessment of the potential for disorder would appear to suffice (see also (c) above).

In any case, in explaining how the Parades Commission will consider the factor, "disruption to the life of the community", their Guidelines appear to adopt the more subjective test. They pledge that "the Commission will take care to distinguish between disruption caused by the procession itself and disruption caused by any associated protest activity or police action taken in response to that activity.[182]

Furthermore, while it could be argued that Parades Commission determinations are themselves retrospective sanctions (based, as they often are, upon the previous conduct of the parade organiser and participants), and that therefore, the strict Ezelin test ought to be applied, in any determination where the Parades Commission relies upon breaches of the Code of Conduct, the Ezelin test will already have been satisfied (assuming that a breach of the Code would amount to "reprehensible" behaviour in Ezelin terms).

(e) Any history of disorder connected with a particular parade or location

The European Commission noted in both A. R. M Chappell v UK (1987) and Pendragon v UK (1998) that there had been serious disorder at Stonehenge in previous years. In this light, neither an absolute ban in the case of the former, nor a four day ban for four miles around Stonehenge in the latter, were considered disproportionate. Similarly, in S v Austria (1990), a protest to criticise the courts was banned on the grounds of public order and the protection of the rights and freedoms of others. This was justified because of the disorder and disruption caused by previous similar demonstrations where shouting, megaphones, whistles, rattles and saucepan lids had been used.

In another case, Rassemblement Jurassien (1979), the Commission held that the Government's banning of all political demonstrations for two days in the town of Moutier—which had "always been a trouble spot, where latent tension was particularly high"[183]—was not disproportionate. It may be that what is proportionate in one town might be considered disproportionate in another.

Of particular relevance to Northern Ireland, Rai, Allmond and "Negotiate Now" (1995) concerned the Government's refusal of an application by "Negotiate Now" to hold a rally in Trafalgar Square, the purpose of which was to publicly ask the Government to enter into peace negotiations in Northern Ireland without a prior cease-fire. The Commission noted that in 1984 an Apprentice Boys rally had been allowed in Trafalgar Square, and despite assurances given by the parade organiser that the meeting would not be political, it was used as a political arena. The British Government argued that they were anxious to avoid a repetition of this, and the Commission did not question the fact that the Government's assessments of the history of rallies in Trafalgar Square were not confined to previous parades organised by the same organiser or even with the same participants. This would appear to support an argument that any history of disorder or derogation from conditions imposed on a rally or parade in a particular location, irrespective of the persons involved, may legitimately be taken into account when considering future parades and assemblies there.

(f) The potential for disorder in areas other than the immediate vicinity of a specific parade

In CARAF (1980) the Commission considered the "proportionality" of the ban on all processions in London in light of "the situation existing in England at the time". This was "characterised by a tense atmosphere resulting from a series of riots and disturbances, having been occasioned by public processions of the National Front and counter-demonstrations in connection therewith.[184] This would suggest that disorder related to a parade dispute in one part of Northern Ireland may legitimately be considered in determining the conditions to be imposed on parades elsewhere in Northern Ireland.

(g) The current political climate

Likewise, in Rassemblement Jurassien (1979), a decision to ban all political meetings taken because of "the present tension which has arisen in a climate of provocation" (following, in particular, two referenda to revise the Canton constitution) in order to "avoid clashes whose consequences would be unforeseeable"[185] was held by the Commission to be proportional and not to violate Article 11. The prevailing political climate would also appear to be a legitimate consideration in determining the necessity of a restriction.

(h) Evidence of steps taken towards a peaceful resolution of the dispute

Again in Rassemblement Jurassien, the Government was allowed to ban all political demonstrations despite the fact that the local council had already imposed conditions on the proposed demonstration which, moreover, the organisers had accepted. However, a demonstration, organised in Moutier by the same group one month after the banned demonstration, was allowed to take place and did so peacefully. The applicants argued that the decision not to allow the earlier demonstration but to allow the later demonstration was irrational. The Commission did not dispute the Government's justification for allowing the second demonstration—namely that it was taken in fundamentally different circumstances, including the fact that it followed a tripartite meeting and the establishment of a round-table conference to which the parties concerned had been invited to settle arrangements for the demonstrations.[186]

When balancing the right to freedom of assembly with the objective possibility of disorder, it therefore seems that the European Court has taken account of the commitment and resolve of the organisers to ensure that disorder will not result. In the context of Northern Ireland, any requirement imposed by the Parades Commission that organisers of a parade engage in dialogue with residents may conceivably be interpreted under Article 11(2) as a means of diffusing tension, and therefore as necessary in a democratic society for the prevention of disorder (see also (i) below).

Clear guidance as to what is expected of those organising parades and protests might be drawn from the joint dissenting opinion (which included the current Vice-President of the Court) in Otto-Preminger-Institut) (1994). This case, though, relates to freedom of expression rather than freedom of assembly directly:

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(i) The likely impact of the parade on relationships within the community

While this is one of the factors to which the Parades Commission is to have regard under the Public Processions Act 1998, none of the European cases has considered the relevance of this factor, and it is not one of the legitimate aims listed in Article 11(2) of the European Convention.[188] As such, it has already been the subject of a judicial review of a Parades Commission determination.[189]

The application for judicial review concerned the Commission's determination preventing the Dunloy LOL No. 496 parade from entering the village of Dunloy on Sunday, 29 October 2000. This determination relied upon two of the statutory criteria in the Public Processions Act—the potential for disorder and the likely impact on relationships within the community (both locally and wider afield)[190] should the parade proceed as notified.

Counsel for the applicant accepted that there would have been no case to answer had the Parades Commission relied exclusively on the potential for disorder, this being one of the legitimate aims in Article 11(2). He argued, however, that the Commission was not entitled to take into account factors other than those contained in Article 11(2), and that included both the impact of the parade on relationships within the community, and the fact that the Orange Order had not engaged with local residents.

Kerr J dismissed the application, stating first that the nexus between the potential for disorder and the absence of agreement was clear, and second, that the principal reason for the Commission's decision was the significant risk of the potential for disorder. The applicants appealed, and in the appeal judgement, Carswell LCJ similarly stated that:

[The Commission] was bound to have regard to the other matters specified in section 8(6) of the 1998 Act, but they did not form the ground for its decision to impose the restrictions, which was placed firmly on the prevention of public disorder. The other considerations came into play in that part of the Commission's decision which was concerned with the issue whether those restrictions were necessary in a democratic society and proportionate.

Preventing a breakdown in relationships within the community, therefore, cannot be an aim of the Commission but rather only a factor to be considered when gauging whether any restriction corresponds to a pressing social need and is proportionate (see 2.3.5 and 2.3.6 above). Carswell LCJ continued:

. . . even if it can be said that the Commission, in reaching its decision had regard to factors other than those specified in Article 11(2) of the Convention, that does not necessarily invalidate it. In domestic law the decision must be made by reference to the correct factors, and this requirement was satisfied in the present case . . . The issue is whether the restriction imposed on the parade can properly be said to be justified on one of the grounds specified in Article 11(2), whatever factors the Commission may have taken into account in reaching its decision. We are quite satisfied that the restrictions in the present case were necessary in a democratic society for the prevention of disorder, and that they were proportionate. We therefore consider that on this basis also the Commission's determination was a valid exercise of its powers and was not in breach of Article 11.

Like steps taken to reach a peaceful resolution, or the lack of them (see (h) above), it would appear that concerns about a parade having an adverse impact on community relations cannot, themselves, be used to justify the imposition of restrictions on freedom of assembly. Instead, they are relegated to being a litmus test of the potential for disorder. Ultimately, though, this remains to be decided by the courts. Indeed, no attempt was made in the proceedings to argue that this provision of the Public Processions Act is incompatible with the Convention.

2.3.7.3 The Protection of Health or Morals

The protection of morals are of limited relevance to parade disputes. In any case, Hashman and Harrup v UK (1999) serves as a reminder that any restrictions must have a basis in domestic law which is sufficiently clear and precise so as to satisfy the requirement of "prescribed by law" (see 2.3.4 above). It is not enough for behaviour merely to offend morality, but it must be behaviour which is deemed criminal and has been defined by Parliament as such.

While entirely speculative, there is perhaps an argument to be made around the health implications of living in an area where parades are contentious and where the dispute has been sustained at a particularly high and consistent level. None of the freedom of expression or assembly cases have relied upon this proviso.

2.3.7.4 The Protection of the Rights and Freedoms of Others

No individual or group in society (majority of minority) ought to be able to deny others the freedom to exercise their right to peaceful assembly. A policy of communal consent, whereby marches through residential areas would be permitted only if the march organiser had obtained the consent of the residents, has no basis in international human rights law. It runs counter to the principles of tolerance and pluralism which can be adduced from the international jurisprudence.

Nonetheless, given the "trickle-down" effect of public order considerations, efforts to solicit and take into account the views of local residents or even a requirement that parade organisers engage in dialogue with them may ultimately be related back to the aim of preventing disorder. Judge Pettiti, in Wingrove v UK (1996), argues that the same decision could have been reached on grounds such as the prevention of public disorder rather than blasphemy and the rights and freedoms of others.

As already mentioned, the aim of protecting the rights and freedoms of others tends to be relied upon to a greater extent where people's religious identities are offended. This was explained in the European Court's majority judgement in Wingrove:

191

Yet, despite granting such latitude to national authorities where the rights and freedoms of others are concerned, reliance on this aim has sometimes sparked disagreement within the European Court itself. Some judges appear to have relied on it as a means of giving extra protection to religious groupings, whereas other judges have argued that to give such special protection runs counter to the spirit of the Convention.

In Wingrove, the British Board of Film Classification rejected an application for a distribution certificate for the film, "Visions of Ecstasy". The film director argued that "the rights of others" in Article 10(2) must mean an actual positive right not to be offended rather than a mere hypothetical right at the prospect of some people possibly being offended.[192] The European Court dismissed the director's argument, and held that the Board's aim, which was to protect against the treatment of a religious subject which was bound to (irrespective of how it was intended) outrage those who have an understanding of, sympathy towards and support for the Christian story was legitimate and entirely consonant with the protection of the rights of others within the meaning of Article 10(2).[193]

Translating this argument to a parades scenario, irrespective of the intention of either a parade or protest organiser, anything which is bound to offend the religious sensibilities of the other community may, on this understanding, be restricted to protect the rights and freedoms of others.

Similarly, in Otto-Preminger-Institut (1994), the majority of the Court stated that it could not disregard the fact that the proportion of Roman Catholic believers in the Tyrolean region of Austria (where the film, "Council in Heaven", was advertised and scheduled to be shown) was as high as 87 per cent. The cinema operator's right to freedom of expression had to be balanced with the community's right to proper respect for their freedom of thought, conscience and religion under Article 9 of the ECHR:

194

The Court—over-ruling the decision of the Commission by a majority of 6-3—accepted the Government's submission that there was a pressing social need for the preservation of religious peace, and held that it had not overstepped its margin of appreciation in confiscating the film. This sits well with the Swiss Government's assertion in Rassemblement Jurassien (1979) that "the public interest in the freedom of peaceful assembly was bound temporarily to take second place to the equally legitimate public interest in harmonious community life among citizens in a democratic society."[195] The European Commission did not debate this argument.

However, in contrast, the minority dissenting opinion in Otto-Preminger-Institut argued that:

196

This dissenting opinion accords with the rationale in Ezelin v France (1991) where the Commission stated that a sanction based on the impression that the applicant's behaviour might have given is incompatible with the strict requirement of a "pressing social need" and is, thus, insufficient to justify restricting the applicant's freedom.

Further consideration of the rights and freedoms of others is contained in the next chapter.

2.4 The Right to a Fair Hearing

The scope of this right, as guaranteed by Article 6, ECHR, and Article 14, ICCPR, extends beyond the formal court system and applies to any "independent and impartial" quasi-judicial or administrative hearing in which a person's civil rights and obligations are being determined. Consequently, such bodies as the Gaming Board,[197] Patent Office,[198] Board of Visitors[199] and Pensions Review Board[200] have all been held to be bound by the requirements of Article 6(1), ECHR or Article 14 (1), ICCPR on the grounds that they were the designated adjudicatory forums in relation to a particular right within the respective legal systems. Articles 6(2) and 6(3), ECHR and 14(2) and 14(3), ICCPR, are concerned only with persons charged with a criminal offence and therefore are not relevant here.

Article 6(1), European Convention on Human Rights

1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

Article 14(1), International Covenant on Civil and Political Rights

1) All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

In terms of applicability, the Parades Commission is clearly involved in the determination of "civil rights and obligations" [201] and has been established by law for that very purpose. There are, though, a number of different issues which arise in relation to its compliance.

2.4.1 Are the Commission's Judgements Pronounced Publicly?

The Commission's determinations, which are first communicated to the parties involved and later posted on the internet, will likely satisfy the demand that they are publicly announced. In the Axen case (1983), the European Court considered "that in each case the form of publicity to be given to the "judgement" under the domestic law of the respondent State must be assessed in the light of the special features of the proceedings in question and by reference to the object and purpose of Article 6(1)." [202]

2.4.2 Is the Parades Commission "Independent and Impartial"?

Given the power of the Secretary of State under section 9 of the Public Processions Act 1998 to review a determination issued by the Commission, it is not clear whether the Parades Commission of itself has the requisite degree of independence so as to satisfy the requirements of Article 6(1). In Bryan v UK (1995), the European Court held that a planning inspector whose powers could be revoked by the Secretary of State "notwithstanding the limited exercise of the power in practice", for that reason alone, was not sufficiently independent:

203

The Court, however, then stated that even where an adjudicatory body does not comply with Article 6(1) in this respect, "no violation of the Convention can be found if the proceedings before that body are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6.1."[204] Thus, the judicial body must be able to quash the impugned decision and to remit the case for a new decision. Judicial review was considered in Kingsley v UK to fulfil that requirement.[205] The sufficiency of the review will further depend on:

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2.4.3 "The opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party"

Because there is the fall-back of both the Parades Commission's own review procedure (under rule 6.1 of its Procedural Rules), and the subsequent judicial control by way of judicial review, the question arises as to whether the procedures involved at the Commission's initial decision making stage are in any way constrained by the demands of the right to a fair hearing.

In Ruiz-Mateos v Spain (1993), where the tribunal of first instance was a constitutional court (separate from and with different rules to the civil and criminal courts), these demands were held to include the right to an adversarial trial, whereupon the parties must be given the opportunity to have knowledge of and comment on the observation filed or evidence adduced by the other party.[207]

In McMichael v UK (1995), the refusal to disclose vital social documents, which were considered by the children's hearing, to a party in that hearing was held to be in breach of Article 6(1). The European Court did not consider it necessary to differentiate between the different stages of hearing and appeal, but rather viewed the care proceedings as a whole.[208]

Rule 3.3 of the Parades Commission's Procedural Rules:

3.3 All evidence provided to the Commission, both oral and written, will be treated as confidential and only for the use of the Commission, those employed by the Commission and Authorised Officers. The Commission, however, reserves the right to express unattributed general views heard in evidence but only as part of an explanation of its decision.

In this light, it might be argued that rule 3.3 of the Commission's Procedural Rules places parties to the dispute at a substantial disadvantage on three accounts:[209]

— in respect of influencing the outcome of the Commission's initial decision;

— in assessing their prospects of bringing an appeal; and

— in the subsequent presentation of any appeal.

The right to a fair hearing raises sensitive issues about anonymity and the non-disclosure of witnesses' identities. The interests of witnesses, however, must be seen as being protected by other substantive provisions of the Convention, and so the interests of fair trial are to be balanced against those of witnesses.[210]

124 Rassemblement Jurassien & Unité Jurassian v Switzerland (1979) at p 119, Christians Against Racism and Facism v UK (CARAF) (1980) at p 148; G v The Federal Republic of Germany (1989) at p 263; Anderson et al v UK (1997). Back

125 CARAF at p 148. Similarly, Article 9 can be exercised by a church body, or an association with religious and philosophical objects, ARM Chappell v UK (1987) at p 246. Back

126 Ciraklar v Turkey (1995), Platform "Ärzte für das Leben" v Austria (1988). Back

127 Otto-Preminger-Institut v Austria (1994), para 47. Back

128 [1999] 2 All ER 257 at 263A; 265F. Considered in Birch v Director of Public Prosecutions [2000] Crim LR 301. Back

129 [1999] 2 All ER 257 at 267B-C. Back

130 Ibid, at 286J. Back

131 Ibid, at 287C-D. Back

132 Para 32. Back

133 At p 262. Back

134 As explained below, however, the Commission held that the blocking of a road caused more obstruction than would normally arise from the exercise of the right of peaceful assembly, and that therefore, the applicant's conviction did not constitute a violation of his right-an example of peaceful assembly being reasonably restricted (or an unreasonable exercise of the right). Back

135 Paragraph 64. Back