APPENDIX 8
Supplementary memorandum submitted by
the Grand Orange Lodge of Ireland
The Orange Order is the largest organisation
in Northern Ireland and Europe to exercise the right to freedom
of peaceful assembly in a number of annual events. Any legislation
regulating the exercise of this freedom particularly affects the
Orange Order and the way it carries out its activities. In this
submission the Orange Order will outline (1) the background to
the enforcement of the Public Processions (Northern Ireland) Act
1998; (2) the flaws of the Public Processions (NI) Act 1998; (3)
the reasons for opposing the proposals put forward in the Quigley
Report which would further undermine the right to freedom of peaceful
assembly; and finally (4) the recommendations for the implementation
of a proper authorisation process which would promote the right
to freedom of peaceful assembly for everyone in Northern Ireland.
1. THE BACKGROUND
TO THE
ENFORCEMENT OF
THE PUBLIC
PROCESSIONS (NORTHERN
IRELAND) ACT
1998
For the past 30 years the Republican Movement
has made great efforts to destabilise the unionist community and
destroy the institutions of Northern Ireland in order to force
the Province into becoming a part of the Irish Republic. To reach
their goal of bringing about constitutional change in Northern
Ireland, the Republican Movement devised a strategy which included
the following stages:
(a) Create friction point with the Protestant
section of the community and use the friction in order to justify
opposition and attacks against the Protestant section of the community;
(b) Provoke the Protestant section of the
community with unlawful attacks in order to trigger retaliation;
(c) Pose as victims and make a well-publicised
public protest to gain national and international sympathy once
the Protestant section of the community has reacted in some way;
(d) Use the media to vilify the Protestant
section of the community and seek changes in the law in order
to procure political advances for Irish Nationalism/Republicanism.
The strategy described above has been applied
to different aspects of social and political life in Northern
Ireland with the purpose of destroying the basis of what is a
democratic society, ie a society in which different groups of
people holding different opinions, traditions and beliefs can
have a peaceful co-existence.
Since the beginning of the 1990s the Republican
Movement has applied this strategy outlined above to the peaceful
public processions organised by the Orange Order.
The United Kingdom Government has unfortunately
given way to pressure from the Republican Movement. As a result,
on the basis of the North Report, the Public Processions (NI)
Act 1998 was passed. This Act, we submit has seriously undermined
the right to freedom of peaceful assembly in Northern Ireland,
particularly for the members of the Orange Order.
2. THE FLAWS
OF THE
PUBLIC PROCESSIONS
(NORTHERN IRELAND)
ACT 1998
The flaws of the Public Processions (NI) Act
1998 need to be analysed (A) in relation to the process leading
to restrictions being applied to a public procession and a related
protest meeting, and (B) in relation to the basis on which decisions
are made to impose restrictions on a public procession.
(A) Flaws in relation to the process leading
to restrictions being applied to a public procession and a related
protest meeting
It must be noted that one public authority deals
with a procession while another deals with the related protest
meeting, although both are notified to take place at the same
time. The Parades Commission has no power whatsoever to impose
conditions on the related protest meeting, but can only impose
conditions on the public procession. Although the PSNI has no
power to impose conditions on the public procession, it has the
power to do so concerning the related protest meeting, under the
Public Order (NI) Order 1987.
The fact that two authorities make decisions
separately is a source of difficulty. The process has been set
up so as to deal first with a public procession, which has been
duly notified. On the basis of information received, in particular
from the PSNI and the Commission's authorised officers, the Parades
Commission may decide to issue a determination imposing conditions
on the public procession. Only after conditions have been imposed
by the Parades Commission on the public procession will the PSNL
consider imposing conditions on the related protest meeting. However,
once conditions have been imposed on a public procession by the
Parades Commission, they are often such as to ensure that the
PSNI does not need to impose any conditions on the related protest
meeting. In other words the demands of the protestors have been
largely met. The decision-making process is therefore severely
imbalanced in favour of those who organise a related protest meeting,
to the detriment of those who organise a peaceful public procession.
The root of the problem leading to conditions
being imposed on the public procession is usually to be found
with residents' groups, many of whom are influenced or led by
terrorist organisations (Diagram 1). The Public Processions Act
1998 gave residents' groups extensive opportunities to interfere
with the decision-making process concerning public processions.
Any threat of violence is reported by the PSNI, who will advise
the Parades Commission on the kind of conditions to be imposed
on a public procession. In pursuance of this advice given by the
PSNI, the Parades Commission imposes conditions on the public
procession.
The process created by the Public Processions
Act 1998 undermines the fundamental freedom of peaceful assembly
of those who wish to exercise their right peacefully and favours
those who by violence and intimidation aim at destroying the exercise
of that right by others.
Such a process also encourages a climate of
hypocrisy within the public authorities and has seriously undermined
public confidence in the Parades Commission and the PSNI. Since
risk assessments are carried out by the PSNI, its advice to the
Parades Commission is of primary importance. Because, while the
PSNI is secretly giving advice to the Parades Commission requesting
conditions on a public procession, it claims at the same time
that it is not responsible for the decision made by the Parades
Commission.
In a democratic society, a sound decision-making
process should not put public authorities in such a position and
bring discredit upon them. Moreover, sound legislation should
not be a means by which terrorist organisations are empowered
to destroy fundamental freedoms.
(B) The flaws in relation to the basis on
which decisions are made to impose restrictions on a public procession
Although the Public Processions Act 1998 gives
the Parades Commission no power to force the organisers of the
peaceful procession to engage in negotiations with objectors,
the Parades Commission has persistently insisted that they do
so. Engagement in negotiation has been presented as the only way
to solve the problem and allow the public procession to take place.
However, it must be emphasised that in a democratic
society, within the framework of the European Convention on Human
Rights (ECHR), local residents do not have the right to veto a
public procession on public roads by refusing to give their consent.
In international law there are no legal grounds for demanding
negotiation before allowing a peaceful public procession to take
place. The Orange Order cannot therefore be obliged to seek consent
from objectors in order to be able to exercise their right to
freedom of peaceful assembly.
Moreover, in a democratic society, those who
abide by the rules of democracy have the right to exercise and
enjoy the right to freedom of peaceful assembly, should not be
forced to engage in negotiating their right with residents' groups
which are often perceived to be either influenced by or led by
a terrorist organisation. It is right for those who respect democracy
and abide by the rule of law to refuse to engage in discussion
with those who use violence or the threat of violence to destroy
the rights of others, in this case the right to freedom of peaceful
assembly of the members of the Orange Order.
Nevertheless, the Orange Order does communicate
with local residents and indeed with the population at large,
as well as with designated public authorities, in order to explain
the nature, and purpose of the public processions they organise.
Public order is however a matter for the public
authorities to deal with. When confronted with residents' groups
which use violence or threatened violence to oppose peaceful public
processions, positive action is required by the public authorities
and domestic law should guarantee that such action is taken. The
PSNI or the Parades Commission cannot walk away from their responsibilities
and expect the Orange Order to deal with this issue.
It should be recalled that in the context of
a democratic society, those who disagree with the opinions, traditions
and religion of others have the right to express their disapprobation
through peaceful means, by way of peaceful counter-protest.
The main problem with the North Report, whose
proposals were introduced in the Public Processions Act 1998,
is that the very serious problem of terrorist-influenced/led residents'
groups (Diagram 1) has been completely overlooked or ignored.
Consequently, the Parades Commission does not take into account
this very serious issue but goes beyond the powers given to it
in the Public Processions Act 1998, since it demands engagement
in negotiations on those who have the right to process peacefully.
Under the present legislation the decision-making
process by which conditions are to be applied to public processions
and related protest meetings, and the basis on which decisions
are made to impose conditions on public processions, are fundamentally
flawed. Far from resolving any problems, the Public Processions
(NI) Act 1998 has resulted in an increase of so-called "contentious
parades" from 22, at the beginning of the 1990s, to 220 in
2002. The whole system needs to be rethought and replaced using
fundamental principles as a basis.
3. THE QUIGLEY
REPORT'S
PROPOSALS WOULD
FURTHER UNDERMINE
THE RIGHT
TO FREEDOM
OF PEACEFUL
ASSEMBLY
The proposals made by Sir George Quigley in
his report entitled "Review of the Parades Commission and
Public Processions (Northern Ireland) Act 1998", if implemented
in new legislation, would aggravate the situation in Northern
Ireland and reduce even further the right to freedom of peaceful
assembly. Although Sir Quigley acknowledges:
"I cannot avoid the conclusion that any
attempt to prohibit parades solely on the basis that those who
lived on, or in proximity to the relevant routes wished this to
be done, for what they believed to be compelling reasons, would
be regarded in breach of the Human Rights Act 1998 and the ECHR
which it incorporates",[9]
his proposals unfortunately would result in what
he intended to avoid.
(A) The principles upon which the new proposals
are made are contrary to those which underpin the right to freedom
of peaceful assembly, (B) the burdensome authorisation process
constitutes an unjustified and disproportionate restriction on
the right to freedom of peaceful assembly, and (C) the complexity
of the system would lead to a surge of decisions open to legal
challenge.
(A) The principles used in the Quigley Report
are contrary to those underpinning the Right to Freedom of Peaceful
Assembly
The Quigley Report proposals are based on principles
which do not comply with a sound interpretation of the right to
freedom of peaceful assembly.
The report reinforces the demand for mediation
which would have to take place between those who organise a public
procession and those who oppose them before the right to freedom
of peaceful assembly could be exercised under the control of the
Parades Facilitation Agency.[10]
A long period of at least six months, starting on 1 October of
each year,[11]
would be dedicated to a compulsory mediation stage. Procession
organisers would be expected to engage in mediation. In the eventuality
of an agreement not being reached, the procession organisers would
only be allowed to have their case examined at the next stage
by the Rights Panel for Parades and Protests if they are provided
with a "Report from the Chief Facilitation Officer"
certifying that the organiser of the parade had acted in good
faith.[12]
Compulsory mediation runs contrary to the very
concept of the right to freedom of peaceful assembly. In a democracy,
no-one should have to engage in mediation in order to be permitted
to exercise his/her rights. The right to freedom of peaceful assembly
cannot be subordinated to any form of negotiation which gives
protesters a right of veto.
The report proposes the creation of a new body:
the Rights Panel for Parades and Protests,[13]
which would render determinations on the right to freedom of peaceful
assembly and the rights and freedoms of others. Those who organise
a public procession would have to argue their case against the
objectors before this panel, similar to a court, in order to defend
their right to freedom of peaceful assembly.[14]
The Rights Panel for Parades and Protests would make its decision
and would have the power to impose restrictions on the proposed
public procession.
Article 11§1 of the European Convention
states that "everyone has the right to freedom of peaceful
assembly". This right is already recognised and proclaimed
and therefore belongs to any citizen who intends to exercise it
peacefully.[15]
No-one should be put in a position whereby he has to defend a
right which has already been granted to him. Such a requirement
is in contradiction with the right to freedom of peaceful assembly.
After a determination has been rendered, if
the objectors decide to notify a procession-related protest, the
report suggests that the police be entrusted with the duty of
assessing the situation and issuing a decision in the interests
of national security or public safety, or for the prevention of
disorder or crime. The police would have the responsibility of
imposing restrictions on the public procession, mainly on the
grounds of public safety or prevention of disorder.[16]
In a democratic society, the right to freedom
of peaceful assembly should not be allowed to be thwarted by those
who use violence or the threat of violence. Under the Quigley
proposals, the objectors would become the protesters when the
police come to assess the situation in the matter of public order.
The police would eventually impose restrictions on the peaceful
public procession (as suggested in the Report), rather than prohibit
the violent related-protest.
The right to freedom of peaceful assembly only
exists for those who exercise it and intend to exercise it peacefully.
The duty of the State authorities is clearly to suppress violent
protest and take positive measures to protect the right to peaceful
assembly of those who process peacefully.[17]
The principles which underpin the right to freedom
of peaceful assembly are that the right to freedom of peaceful
assembly is guaranteed to everyone, without prior negotiation
or proceedings, and should be protected by the State authorities
against violent protesters.
(B) The burdensome authorisation process constitutes
an unjustified and disproportionate restriction on the Right to
Freedom of Peaceful Assembly (Diagram 2)
The authorisation process for exercising the
right to freedom of peaceful assembly would be made up of four
stages, which would last for a period of at least a year.
Notification of public processions for the following
year would have to be made before 1 October of each year. The
organisers would have to go through the mediation stage under
the auspices of the Parades Facilitation Agency, which would last
for several months, then provided a Report from the Chief Facilitation
Officer (certifying that the organiser of the parade had acted
in good faith) had been delivered, the stage of proceedings before
the Rights Panel for Parades and Protests would follow. Once the
Rights Panel for Parades and Protests has issued its determination,
the police would still be able to impose new restrictions on the
grounds of prevention of disorder. After the public procession
has taken place, the Compliance Branch of the Rights Panel for
Parades and Protests would be able to issue warnings or impose
sanctions on public procession organisers.[18]
Such a burdensome process imposed on peaceful
citizens wishing to exercise their right to freedom of peaceful
assembly is exhorbitant and unjustified, especially as the root
of the problem is not dealt with and not even mentioned. The major
problem regarding public processions in Northern Ireland lies
with the residents groups, led or influenced by terrorists. Any
public authority should be able to take into account the totality
of the circumstances surrounding the event so as to make a proper
decision in relation to peaceful public processions or the related
protest meetings. It would have the power to verify the nature
of the procession and the protest and apply appropriate measures
to both if the circumstances require them.
The heavy burden of the complex authorisation
process suggested by Sir George Quigley can only be interpreted
as an illegitimate restriction imposed on the right to freedom
of peaceful assembly, in breach of the ECHR.
(C) The complexity of the system proposed
in the Quigley Report would lead to decisions open to legal challenge
The complexity of the system proposed by Sir
George Quigley would lead to the issue of four different types
of decisions for each public procession.
At the end of the first stage of mediation,
if agreement is not reached between procession organisers and
objectors, a Report certifying that the organiser of the parade
had acted in good faith would either be granted or refused to
the organisers by the Chief Facilitation Officer. If this Report
is refused, the organiser should be allowed to contest and challenge
it. If such a Report granting the procession is delivered to the
procession organisers, objectors could seek to oppose this decision.
Thus whatever decision is made by the Parades Facilitation Agency,
it may well lead to challenge and review.
At the end of the second stage, the Rights Panel
for Parades and Protests would have the power to render a determination
imposing restrictions on the public procession on the grounds
of the rights and freedoms of others. This decision would be open
to judicial review on behalf of processions organisers. If no
restrictions are imposed on the public processions, the objectors
would have the opportunity to request a judicial review of this
decision. In addition an appeal could also be lodged which would
have the potential to delay the final decision concerning the
public procession yet further.
The third stage will be concluded by a decision
made by the police on the grounds of national security or public
safety or for the prevention of disorder or crime. Under the threat
of violence initiated and carried out by protesters, the police
may well decide to impose further restrictions on the public procession.
This decision could be reviewed by the Secretary of State[19]
and would also be open to judicial review.
Finally, the Compliance Branch of the Rights
Panel for Parades and Protests would also impose sanctions on
public procession organisers. Such decisions would undoubtedly
also be open to judicial review.
In practice, the Quigley proposals would lead
to a plethora of decisions, hierarchical and judicial reviews,
which would result in making the exercise of the right to freedom
of peaceful assembly virtually impossible. The time and cost involved
in such a process would deter any organisation from even trying
to exercise their rights and freedoms. However, it would be a
perfect instrument for terrorist-related residents groups to thwart
the right to freedom of peaceful assembly of law-abiding citizens,
in breach of the ECHR. In addition an individual who objected
could get legal aid.
The Quigley proposals are based on fundamentally
flawed foundations, which run counter to the concept of freedom
of peaceful assembly in the context of a democratic society, and
do not comply with the European Convention on Human Rights. For
these reasons the Quigley proposals should be replaced by an alternative
based on recognised fundamental principles.
4. RECOMMENDATIONS
FOR AN
AUTHORISATION PROCESS
WHICH WOULD
PROMOTE THE
RIGHT TO
FREEDOM OF
PEACEFUL ASSEMBLY
FOR EVERYONE
IN NORTHERN
IRELAND
Adequate recommendations should address the
particular issues within Northern Ireland so as to promote human
rights and fundamental freedoms in Northern Ireland, and in relation
to public processions and counter-protests, the right to freedom
of peaceful assembly especially.
For over three decades, democracy in Northern
Ireland has been threatened and dangerously undermined by terrorism.
Over the past few years, more successfully than ever before, terrorists
have been able to use and abuse the democratic system to further
their own political aims, jeopardising human rights and fundamental
freedoms in Northern Ireland.
The destruction of the right to freedom of peaceful
assembly by the Loyal Orders has been one of the goals actively
pursued by terrorist organisations. The protection of this right
to freedom requires that (A) basic principles be upheld in order
to enable the right to freedom of peaceful assembly to be exercised,
(B) that a robust and fair process governing the exercise of this
right be implemented, and that (C) decisions made by the public
authority in charge be in compliance with these principles.
(A) Basic principles must be upheld in order
to enable the right to freedom of peaceful assembly to be exercised
The framework for the exercise of the right
to freedom of peaceful assembly should be based on basic principles.
(1) First principle: the right to freedom of peaceful assembly
only applies to peaceful public processions and peaceful counter-protests.
(2) Second principle: the authorisation process must not constitute
an interference in the exercise of the freedom. (3) Third principle:
the duty of the State is to protect the right to freedom of peaceful
assembly. (4) Fourth principle: any restriction imposed on a peaceful
assembly must be prescribed by law, have a legitimate aim, and
be necessary in a democratic society. (5) Fifth principle: the
prohibition of the abuse of rights with the aim of destroying
the right to freedom of peaceful assembly.
(1) First Principle: The right to freedom of
peaceful assembly only applies to peaceful public processions
and peaceful counter-protests (Article 11§1 ECHR)
It should constantly be recalled and emphasised
that the right to freedom of peaceful assembly can only be enjoyed
by those who organise and take part in a peaceful public procession
or a peaceful counter-protest. There is no right to freedom of
peaceful assembly for those who organise and/or take part in violent
public processions or violent counter-protests, or who organise
and/or take part with a violent intention. Such public processions
or counter-protests should therefore be prohibited by the public
authorities.
(2) Second Principle: The authorisation process
must not constitute an interference in the exercise of the freedom
(Article 11§1 ECHR)
In order to guarantee the proper exercise of
the right to freedom of peaceful assembly, an authorisation process
for public processions and counter-protests should be implemented
by the public authorities. This process must be as simple as possible
in order to enable the public authorities: first, to control the
nature of the proposed public processions and counter-protests;
and secondly, to impose restrictions, if necessary in a democratic
society. A burdensome, lengthy, costly authorisation process,
which amounts to an illegitimate restriction on the exercise of
the right to freedom of peaceful assembly, must be ruled out.
(3) Third Principle: The duty of the state is
to protect the right to freedom of peaceful assembly[20]
In order to protect the freedom of peaceful
assembly, the duty of the State is not only to abstain from interfering
with the exercise of this freedom, but in some circumstances to
take positive measures to uphold it. Both negative and positive
aspects of the duty of the State must be used to guarantee effective
freedom of peaceful assembly.
(4) Fourth Principle: Any restriction imposed
on a peaceful assembly must be prescribed by law, have a legitimate
aim, and be necessary in a democratic society (Article 11§2
ECHR)
The legal norms referred to in order to impose
restrictions must be sufficiently precise for citizens to understand
what their actions would entail. The legitimate aim of a restriction
must strictly conform to those enunciated in Article 11§2:
"in the interests of national security and 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". Any restriction imposed on a public assembly
must also be necessary in a democratic society and must therefore
correspond to a pressing social need, be proportionate to the
legitimate aim pursued and be justified by relevant and sufficient
reasons.
(5) Fifth Principle: Prohibition of the abuse
of rights with the aim of destroying the right to freedom of peaceful
assembly (Article 17 ECHR)
No public authority, organisation or individual
should be allowed to exploit in their favour the principles enshrined
in the European Convention in order to engage in any activity
or perform any act aimed at the destruction of the rights and
freedoms stated in the Convention.
(B) A robust and fair process governing the
exercise of the right to freedom of peaceful assembly (Diagram
3)
The process governing the exercise of the right
to freedom of peaceful assembly should have (1) a single public
authority in charge of public assemblies; (2) prior notification
of both public processions and counter-protests should be made
compulsory; (3) the procedure should be simple and open to the
organisers of public processions and counter-protests; and (4)
the decisions made by the public authority should be open to review
by the Secretary of State or by the courts.
(1) A Single Public Authority in charge of public
assemblies
There would be one authority in charge of making
decisions in relation to both public processions and counter-protests.
We suggest a Freedom of Peaceful Assembly Commission, the "FreedomPAC".
It would have the means of taking into account the totality of
the circumstances surrounding the event in order to make informed
and reasoned decisions, concerning on one hand the public procession
and on the other the counter-protest. A sole authority would avoid
disparity of treatment between those who organise and take part
in public processions and those who organise and take part in
counter-protests, and favour consistency.
(2) Prior notification of both public processions
and counter-protests should be made compulsory
Public processions which have not been exempted
by law (eg funerals) should be notified 21 days in advance. All
notifications would be made directly to the FreedomPAC. All counter-protests
would have to be notified to the FreedoniPAC 14 days in advance.
These notifications would enable the FreedomPAC to take into consideration
both assemblies at the same time, so as to be able to make appropriate
decisions. The FreedomPAC would have the power to cany out investigations
into any matter where public processions or counter-protests have
taken place without advance notice, and power to refer these to
the police so that offenders (organisers and participants) be
prosecuted.
(3) The procedure should be simple and open to
the organisers of public processions and counter-protests (Diagram
4)
(a) The fair administrative procedure to
be used before the FreedonPAC should be as simple as possible.
The FreedomPAC should be an effective body, accessible to both
organisers of peaceful public processions and those of peaceful
counter-protests.
(b) Once a notification has been made to
the FreedomPAC it would immediately be sent to the police, who
would have the responsibility of providing any relevant or useful
information concerning a proposed public procession or counter-protest.
In providing information, the police will have to give primary
importance to their duty to protect the right to freedom of peaceful
assembly.
(c) The FreedomPAC would first have regard
to the violent or non-violent nature of the public procession
or counter-protest. In the case of a public procession or a counter-protest
of a violent nature, or organised with violent intention, or organised
by those who adhere to anti-democratic principles, the FreedomPAC
would have to issue a decision prohibiting the violent public
assembly.
(d) If the public procession and/or counter-protest
is deemed peaceful, the FreedomPAC could then organise a meeting
to which the police, procession and counter-protest organisers
entirely committed to democratic principles would be convened.
During this meeting those attending could have the right to ask
others questions and would also be asked to answer questions put
to them. All relevant information considered by the FreedomPAC
would be disclosed to the meeting so that all involved would know
the basis on which the decision is made.
(e) Following this meeting, the FreedomPAC
would issue two separate decisions, one concerning the public
procession and another concerning the counter-protest, seven days
before the assemblies are due to take place.
(4) The decisions made by the public authority
could be reviewed by the Secretary of State or by the courts
The decisions made by the FreedomPAC would be
open to review by the Secretary of State in case of emergency
for the protection of public safety. The organisers of public
processions or counter-protests would have the right to challenge
the decision made by the FreedomPAC in the courts.
(C) The power of the public authority to make
decisions in compliance with the basic principles (Diagram 5)
The FreedomPAC would be given (1) the power
to prohibit any violent public procession or counter-protest which
is not peaceful. It would then have the power to impose restrictions
(2) on a proposed peaceful public procession and also (3) on a
proposed peaceful counter-protest. However, any such conditions
would have to be within the terms of Article 11 of the ECHR.
(1) The power to prohibit violent public processions
or counter-protests
(a) The FreedomPAC would have the duty to
verify the nature of any public procession or counter-protest
duly notified. It would assess all information at its disposal,
in particular from the police, in order to determine whether or
not the public procession and/or the counter-protest are peaceful
and organised with a peaceful intention and organised by those
who are entirely committed to democratic principles. In providing
information to the FreedomPAC, the police would have to give primary
importance to its duty to protect the right to freedom of peaceful
assembly. All such information would have to be disclosed to the
organisers of any such procession or protest, save where the police
had legitimate security grounds for withholding such information
from the public domain. (In such cases a court would have the
right to review the matter to determine if it was legitimate in
the public interest to withhold the information.)
(b) In the case when the public procession
and/or the counter-protest are violent, or organised with a violent
intention, or organised by those who adhere to anti-democratic
principles, the FreedomPAC would have the power to prohibit these
assemblies from taking place. Only public processions and counter-protests
recognised as peaceful would then be further considered and could
eventually be subjected to restrictions imposed in compliance
with the provisions of Article 11§2 of the ECHR.
(2) The power to impose restrictions on a proposed
peaceful public procession
(a) The FreedomPAC would have the power to
impose restrictions on peaceful public processions. Any restrictions
would have to be prescribed by law and would need to be in pursuit
of a legitimate aim and be necessary in a democratic society.
(b) The legitimate aim pursued would be one
or several of those mentioned in Article 11§2 of the ECHR.
In most cases the FreedomPAC would have to consider imposing restrictions
on the grounds of the prevention of disorder or crime, or the
protection of the rights and freedoms of others.
(c) When dealing with the issue of the prevention
of disorder or crime, the FreedomPAC would especially have to
take fully into account the positive duty of the State to protect
the right to freedom of peaceful assembly. Restrictions would
have to be imposed only if serious public disorder caused by protesters
could not be prevented by the police. In this case, whatever restrictions
imposed should be proportionate to the aim pursued, ie the prevention
of disorder or crime.
(d) When taking into account the protection
of the rights of others, the FreedomPAC would need to have regard
to the right to private and family life (Article 8 of the ECHR)
and the protection of property (Article 1 of the First Protocol
to the Convention). The requirements for a peaceful public procession
to be allowed to proceed would need to be balanced with the requirements
necessary to ensure that the rights to private and family life
and property are protected.
(e) Having given the proper and greater weight
to the requirements for the right to freedom of peaceful assembly
to be maintained, the FreedomPAC would be able to impose restrictions
on the public procession as long as they are necessary in a democratic
society, ie proportionate to the aim pursued by the retrictions
and justified by relevant and sufficient reasons.
(3) The power to impose restrictions on a proposed
peaceful counter-protest
(a) The FreedomPAC would have the power to
impose restrictions on peaceful counter-protests, under the same
criteria as those imposed on peaceful public processions.
(b) Since the public procession would have
been authorised on the grounds that it was peaceful and there
would be no threat of violence from the procession, there should
therefore be no requirement for restrictions to be imposed on
the peaceful counter-protest, in pursuance of the legitimate aim
of prevention of disorder or crime.
(c) The FreedomPAC would therefore usually
only have to consider imposing restrictions on a peaceful counter-protest
on the grounds of the protection of the rights or freedoms of
others. The rights of others, in the case of those who organise
and/or take part in the peaceful public procession, include the
right to freedom of peaceful assembly (Article 11 ECHR), the right
to freedom of expression (Article 10 ECHR) and the right to freedom
of religion (Article 9 ECHR).
(d) The requirements for these rights to
be respected would have to be balanced with the requirements for
the right to freedom of peaceful assembly of those who organise
and/or take part in a counter-protest, but the right to organise
a counter-protest must not be allowed to result in inhibiting
the right to freedom of peaceful assembly of the procession organisers/participants.[21]
The requirements for the rights and freedoms of the procession
organisers/participants must therefore be given greater weight
than those of counter-protest organisers/participants. Any restrictions
imposed on the counter-protest would of course have to be proportionate
to the aim pursued.
CONCLUSION
The present recommendations, if implemented,
would ensure that the right to freedom of peaceful assembly is
upheld in Northern Ireland in compliance with the European Convention
on Human Rights, and would prevent this fundamental right from
being undermined by the activities of terrorist organisations.
9 Review of the Parades Commission and the Public
Processions (Northern Ireland) Act 1998, Report by Sir George
Quigley 2002, p 124 para 11.14. Back
10
Idem p 242 para 21.20. Back
11
ldem p 2l6 para 17.3. Back
12
Idem p 169 para 14.22(vi). Back
13
Idem p 238 para 21.1. Back
14
Idem p 206 para 16.27. Back
15
ECmHR: Christian Against Racism And Facism against United Kingdom,
Decision 16 July 1980, (Application No 8440/78). Back
16
Review of the Parades Commission and the Public Processions (Northern
Ireland) Act 1998, Report by Sir George Quigley 2002, p 230 para
20.13(ii) and p 231 para 20.14. Back
17
ECtHR: Plattform "Arzte Für das Leben"
v Austria 21 June 1988, Series A, No 139, para 32. Back
18
Review of the Parades Commission and the Public Processions (Northern
Ireland) Act 1998, Report by Sir George Quigley 2002, p 218-219
para 18.3. Back
19
Review of the Parades Commission and the Public Processions (Northern
Ireland) Act 1998, Report by Sir George Quigley 2002, p 231, para
20.13 (ii). Back
20
ECtHR Plattform "Arzte für das Leben"
v Austria, 21 June 1988, Series A, No 139 para 32. Back
21
ECtHR: Plattform "Arzte für das Leben"
v Austria, 21 June 1988, Series A, No 139 para 32. Back
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