APPENDIX 15
Supplementary Memorandum submitted by the Northern
Ireland Human Rights Commission
3. AFFECTED INDIVIDUALS
AND COMMUNITIES
Having established, as far as is possible, the
parameters of the right to march and the right to counter-demonstrate,
the question of what rights ought to be enjoyed by individuals
in the communities through which parades pass must be addressed.
Both Article 17 of the European Convention and Article 5 of the
International Covenant (which are always exercised in conjunction
with other substantive rights) make it clear that where freedoms
collide they are to be balanced according to the particular facts
of the case. This chapter, therefore, makes no attempt to balance
the rights enumerated here with those discussed in the previous
chapter.
Article 17, European Convention on Human Rights
Nothing in this Convention may be interpreted
as implying for any State, group or person any right to engage
in any activity or perform any act aimed at the destruction of
any of the rights and freedoms set forth herein or at their limitation
to a greater extent than is provided for in the Convention.
Article 5, International Covenant on Civil and
Political Rights
(1) Nothing in the present Covenant may
be interpreted as implying for any State, group or person any
right to engage in any activity or perform any act aimed at the
destruction of any of the rights and freedoms recognised herein
or at their limitation to a greater extent than is provided for
in the present Covenant.
(2) There shall be no restriction upon or
derogation from any of the fundamental human rights recognised
or existing in any State Party to the present Covenant pursuant
to law, conventions, regulations or custom on the pretext that
the present Covenant does not recognise such rights or that it
recognises them to a lesser extent.
3.1 A Right to Freedom from Sectarian Harassment?
One of the rights affirmed by the parties to
the Belfast (Good Friday) Agreement was that to freedom from sectarian
harassment. Building on the paragraphs in 2.3.7.4 above, and in
particular the contrasting opinions in the case of Otto-Preminger-Institut
(1994), it is clear that there is disagreement even within the
European Court as to how much protection should be afforded to
people's religious sensibilities. Certainly, there is no right
not to be offended. But the concept of "harassment"
suggests something more than mere offence.
While the concept has little by way of international
legal pedigree and discussion of its scope is therefore speculative,
some guidance may be found in the EU Code of Practice on Sexual
Harassment.[211]
In this document, "harassment" is defined as conduct
which is "unwanted, unreasonable and offensive to the recipient".
It may also create "an intimidating, hostile or humiliating
. . . environment for the recipient". Such conduct affects
the dignity of the recipient, and moreover, it is for each individual
to determine what behaviour is acceptable to them and what they
regard as offensive. Conduct becomes harassment if it is persisted
in once it has been made clear that it is regarded by the recipient
as offensive.
The rest of this chapter is confined to examination
of some of the rights and principles already enshrined in international
human rights law. These are, namely, "degrading treatment",
the right to respect for private and family life, peaceful enjoyment
of one's possessions, and the rights of minorities.
3.2 Degrading Treatment
Article 3, European Convention on Human Rights:
No one shall be subjected to torture or to inhuman
or degrading treatment or punishment.
Article 7, International Covenant on Civil and
Political Rights:
No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment. In particular, no
one shall be subjected without his free consent to medical or
scientific experimentation.
There is a high threshold to be overcome in
order for treatment to be deemed "inhuman" or "degrading".
In ECW v The Netherlands (1993), the UN's Human Rights
Committee held that the applicant's conviction for violating the
law, while protesting against the deployment of cruise missiles,
did not raise an issue under Article 7, ICCPR.
More significantly, in Smith and Grady v
UK (2000), the applicants were two homosexuals who were dismissed
form the British army. They argued that the army's policy, the
investigation procedure, and their subsequent discharge was discriminatory
treatment, contrary to Article 3, ECHR, based on crude stereotyping
and prejudice, which denied and caused affront to their individuality
and dignity. The Court stated that
Ill treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3. The assessment
of that minimum is relative and depends on all the circumstances
of the case, such as the duration of the treatment and its physical
or mental effects...Treatment may be considered degrading if it
is such as to arouse in its victims feelings of fear, anguish
and inferiority capable of humiliating and debasing them and possibly
breaking their physical or moral resistance. Moreover, it is sufficient
if the victim is humiliated in his or her own eyes.
The Court did not deny that treatment "grounded
upon a predisposed bias on the part of a heterosexual majority
against a homosexual minority" could, in principle, fall
within the scope of Article 3, but the Court ruled in this case
that the minimum level of severity had not been met, and there
was no violation of Article 3 (see further 4.5).
Given this minimum level, the application of
this Article to the parades dispute in Northern Ireland is perhaps
tenuous. In relation to 3.1 above, however, it would certainly
seem that "harassment" involves a lower threshold than
"degrading treatment".
3.3 Private and Family Life
In addition to the potential for disorder, one
of the factors which the Parades Commission must have regard to
when deciding whether or not to impose conditions on a parade
is the level of disruption likely to be caused to the life of
the community. Such disruption might be argued to infringe upon
the right of individuals to respect for their private and family
life.
Article 8, European Convention on Human Rights:
(1) Everyone has the right to respect for
his private and family life, his home and his correspondence.
(2) There shall be no interference by a
public authority with the exercise of this right except such as
is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or
the economic well-being of the country, 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.
Article 17, International Covenant on Civil and
Political Rights:
(1) No one shall be subjected to arbitrary
or unlawful interference with his privacy, family, home or correspondence,
nor to unlawful attacks on his honour or reputation.
(2) Everyone has the right to protection
of the law against such interference or attacks.
"Private life" covers the physical
and moral integrity of the person. Moreover, the right to private
and family life has been held (in X and Y v The Netherlands
(1985)) not merely to compel the State to abstain from arbitrary
interference with the individual, but also to include a positive
obligation to ensure effective respect for private or family life,
which may extend even in the sphere of relations between individuals.
From a different angle, in Friedl v Austria
(1995), the police had photographed a participant in a sit-in
demonstration, confirmed his identify, and compiled a record of
his details. They did so only after requesting that the demonstrators
disperse, and the European Commission held there to be no violation
of Article 8. While this fairly mild response by the police did
not constitute an infringement of Article 8, there may well be
arguments to be made under this provision concerning the proportionality
of any policing operation which imposes a virtual curfew on a
local community (see further chapter 4).
Furthermore, one of the purposes enumerated
in Article 8 of the Convention for which it is permissible to
interfere with the exercise of that right is for the economic
well-being of the country. In G and E v Norway (1983),
the Commission made no attempt to ascertain the exact extent and
nature of the interference with the applicants' rights under Article
8(1), but rather, considered only the necessity of the State's
siting of the hydro-electric power station in the particular location.
Finding that this necessity was borne out in the interests of
the country's economic well-being, the applicant's complaint under
Article 8 was declared manifestly ill-founded. In relation to
parade disputes, this could, in theory be extended to mean that
a court may dismiss any claimed violation of the right to respect
for private and family life if the necessity of a policing operation
to give effect to a determination by the Parades Commission, for
example, is borne out in the interests of the country's economic
well-being.
3.4 Peaceful enjoyment of possessions
Article 1 of Protocol 1, European Convention on
Human Rights
Every natural or legal person is entitled to
the peaceful enjoyment of his possessions. No one shall be deprived
of his possessions except in the public interest and subject to
the conditions provided for by law and by the general principles
of international law.
The preceding provisions shall not, however,
in any way impair the right of a State to enforce such laws as
it deems necessary to control the use of property in accordance
with the general interest or to secure the payment of taxes or
other contributions or penalties.
The right to peacefully enjoy one's possessions
has been strictly construed by the European institutions so as
to offer protection only to proprietary interests. In G and
E v Norway (1983), a group of people from the minority Lapp
community in Norway were protesting that their reindeer business
would be damaged as a result of the building of a hydro-electric
power plant. The European Commission found that the traditional
use of vast territories for grazing, hunting and fishing, did
not constitute a property right as protected by Article 1 of the
First Protocol. In so far as parade disputes are concerned, individuals
living in any local community are highly unlikely to be able to
demonstrate a proprietary interest in the roads along which a
parade might pass.
The proprietary issue was also at the core of
Chassagnou and Others v France (1999), a case which involved
the balancing of "a right to hunt" with "a right
to property". It concerned an attempt to compel small landowners
to transfer the hunting rights over their land to a municipal
hunting association. The European Court held that although the
applicants had not been deprived of their right to use their property,
to lease it or sell it, the compulsory transfer of hunting rights
prevented them from making use of the right to hunt, which is
directly linked to the right of property, as they saw fit. Any
interference with the right to enjoy one's possessions must be
proportionate and achieve a "fair balance" between the
demands of the general interest of the community and the requirements
of the protection of the individual's fundamental rights.
One case in which the jurisprudence could have
been further developed, with particular significance for business
owners in the vicinity of contentious parade routes, was Torgny
Gustafsson v Sweden (1995). An owner of a restaurant refused
to join the Hotel and Restaurant Workers Union (HRF) because he
objected, on principle, to collective bargaining. As a result,
HRF placed his restaurant under a blockade and declared a boycott
against it. This ultimately led to deliveries to the restaurant
being stopped and the restaurant closing. The European Commission
declared admissible the applicant's complaints that the lack of
State protection against such industrial action had violated,
inter alia, his right to the peaceful enjoyment of his possessions
(Article 1 of Protocol 1). However, because the Commission concluded
that there had been a violation of the applicant's negative freedom
of association under Article 11 (given, in particular, the financial
consequences of the boycott), it considered it unnecessary to
examine the applicant's complaint regarding the peaceful enjoyment
of his possessions.
3.5 The Rights of Minorities
In Northern Ireland, the question of whether
there is a national minority is a vexed one. So too is the question
of whether the protection afforded to minorities by international
human rights standards also extends to self-defined minority groupings
within a specific local community. The argument for such extension
is perhaps strengthened by the loose definition of the term "community"
in section 8(6) (b) and (c) of the Public Processions (Northern
Ireland) Act 1998, which was approved by the Court of Appeal in
In the Matter of An Application by Patricia Pelan for Judicial
Review. Carswell LCJ stated that:
We do not consider that it is necessary to confine
the meaning of the word "community" in such a rigid
manner. If it is construed as meaning a group of people in society,
then in any passage where it is used the breadth of that group
is determined by the context. So in paragraph (b) of section 8(6)
the disruption referred to appears to be primarily (though perhaps
not exclusively) that which may occur in the life of those members
of the community who live in the area through which the procession
is to pass. When one turns to paragraph (c), however, it seems
to us quite possible to interpret the word "community"
as referring to a wider group.[212]
Notwithstanding these questions about the relevance
of minority protection to communities affected by parades in Northern
Ireland, it should be noted that the ECHR is concerned essentially
with individual rights and "is not designed to deal with
the issues which typically arise in societies which are deeply
divided along communal lines or in which there are clearly identifiable
majority and minority communities."[213]
Article 1, ECHR obliges signatory States to secure to everyone
within their jurisdiction the rights contained in Articles 1-18
of the Convention. In guaranteeing rights to "everyone",
however, the Convention does not recognise specific rights for
minorities.[214]
In G and E v Norway (1983), the Commission concluded that:
The Convention does not guarantee any specific
rights to minorities, but disrespect of the particular life style
of minorities may raise an issue under Article 8. There is no
indication that the applicants have been treated in a manner which
could be considered as discrimination, contrary to Article 14,
nor have they been forced to abandon their lifestyle.[215]
Article 27 of the ICCPR, however, goes further
than the protection afforded to minorities by the ECHR. Furthermore,
while not enforceable in Northern Ireland courts, the European
Framework Convention on the Protection of National Minorities
(recently ratified by both the British and Irish Governments)
may be cited in support of any action.
Article 27 International Covenant on Civil
and Political Rights:
In those States in which ethnic, religious or
linguistic minorities exist, persons belonging to such minorities
shall not be denied the right, in community with the other members
of their group, to enjoy their own culture, to profess and practise
their own religion, or to use their own language.
Article 6 Framework Convention for the Protection
of National Minorities:
(1) The Parties shall encourage a spirit
of tolerance and intercultural dialogue and take effective measures
to promote mutual respect and understanding and co-operation among
all persons living on their territory, irrespective of those persons'
ethnic, cultural, linguistic or religious identity, in particular
in the fields of education, culture and the media.
(2) The Parties undertake to take appropriate
measures to protect persons who may be subject to threats or acts
of discrimination, hostility or violence as a result of their
ethnic, cultural, linguistic or religious identity.
In the case of Jouni E Lansman et al v Finland
(1996), the UN Human Rights Committee found that the Finnish Central
Forestry Board's plans to approve logging and the construction
of roads in an area covering 3,000 hectares which was used by
reindeer breeders of Sami ethnic origin did not constitute a violation
of Article 27. In their reasoning, the Committee held that "measures
that have a certain limited impact on the way of life and the
livelihood of persons belonging to a minority will not necessarily
amount to a denial of the rights under article 27"[216]
although the cumulative impact of successive measures will be
taken into account.[217]
3.6 A right to be consulted?
In their deliberations in the Lansman
case, the Human Rights Committee gave serious consideration to
the extent to which the minority community had effectively participated
in the decision affecting them. This was important particularly
where the consequences of any decision would create considerable,
long-lasting or even permanent harm.[218]
The fact that the consultation process was felt to be unsatisfactory
by the applicants did not sway the Committee's decision. In terms
of communities in Northern Ireland which are affected by parades,
this would appear to be particularly relevant to the consultation
process and evidence gathering procedure conducted by the Parades
Commission. Because such a consultation process exists, mere dissatisfaction
with it and any consequent decision cannot of itself constitute
a violation of minority rights.
Indeed, the possibility of "a right to
be consulted" has already been given limited consideration
in three judicial review proceedings involving the Parades Commission.[219]
One of the three grounds for judicial review is that of procedural
irregularity.[220]
This draws upon the principle of audi alteram partem which
provides that a person should not be denied the opportunity to
make representations, or to a fair hearing, where they might be
deemed to have a "legitimate expectation" of being heard.
[221]
It does not, however, require that the hearings be oral, as opportunity
to make written representations might be sufficiently fair. The
fact that a parade route has not been changed for a number of
years, for example, may give rise to a legitimate expectation
on the part of residents in the area that they be consulted before
any changes are made.
The Druid applicant in A.R.M. Chappell v
UK (1987) contended that the Druids had had a reasonable expectation
of consultation with the Commissioner of English Heritage before
the making of any decision to ban the Druids and the festival
from Stonehenge at the time of the midsummer solstice. The judge
in the judicial review proceedings stated that he had dealt with
the case on the basis of the fundamental rights of individuals
including Article 9 of the Convention. In this light, he noted
that the opportunity for consultation had been given more than
once by the Commissioner and that the Commissioner could not be
faulted for not offering further opportunities for consultation.
The European Commission did not question the judge's findings
on this account.
211 Commission Recommendation of 27 November 1991
on the protection of the dignity of women and men at work (92/131/EEC). Back
212
28 September 1998, p 18. Back
213
Northern Ireland Human Rights Commission- "A Bill of Rights-your
questions answered". Back
214
G and E v Norway. Back
215
At p 38. Back
216
Para 10.3. Back
217
Para 10.7. Back
218
Paras 6.14 and 7.15. Back
219
In the Matter of an Application by Kevin Farrell for Judicial
Review (regarding Parkmount Junior Orange Lodge No 150 parade
on 29 May 1999); In the Matter of an Application by Joseph
McConnell for Judicial Review (regarding the section of "The
Long March" in Lurgan on 3 July 1999); and In the Matter
of an Application by Rachel Campbell for Judicial Review (regarding
the AOH Pipe Band Glassdrumman and Holy Cross Accordian Band parade
in Kilkeel on 17 March 2000). Back
220
per Lord Diplock in Council for Civil Service Unions v Minister
for the Civil Service [1985] AC 374. Back
221
per Lord Denning in Schmidt v Secretary of State for Home
Affairs [1969] 2 Ch 149; Cinnamond v British Airports Authority
[1980] 1 WLR 582. Back
| 
