08/07/10

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Abstract:
Since the legislation introduced in 1998 to regulate public processions in Northern Ireland, there has been continuous dissatisfaction with the decision-making process operated by the Parades Commission. The new proposals submitted by OFM/DFM aim at rationalising the existing process without offering the required compliance of future arrangements with the principles laid down in the European Convention on Human Rights. This failure is aggravated by the extension of the proposed legislation by way of compulsory notification of open-air public meetings (already satisfactorily regulated by the Public Order (Northern Ireland) Order 1987), which should be considered as an unjustified restriction imposed on the right to freedom of peaceful assembly. The desire to see the Parades Commission removed should never be used as a pretext to consent to the implementation of new, complex arrangements, which would further restrict the fundamental rights of law-abiding people in Northern Ireland.
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The Office of the First Minister and Deputy first Minister (OFM/DFM) has published a consultation paper on Public Assemblies, Parades and Protests in Northern Ireland. The draft Bill is intended to replace the Public Processions (Northern Ireland) Act 1998, which established the Parades Commission. It would introduce modifications to the regulatory system of public assemblies comprising both public processions and public meetings, although the legislation that currently applies to the latter is absolutely satisfactory. Unfortunately it does not appear that the suggested bodies and procedures have been based on fundamental democratic principles. As a result these proposals have the potential to further undermine the right to freedom of peaceful assembly in Northern Ireland.

One of the aspects that raises concern is that the proposed regulatory process would be under the control of the First Minister and deputy First Minister. The process would therefore be under the constant and direct political influence of a divided Executive working on the basis of a permanent compromise between opposing political parties.

These proposals are part of an overall political deal, along with the devolution of policing and justice powers from Westminster to Northern Ireland.

In Part I of these submissions the five European Convention key principles defining the legal framework for public assemblies are presented and provide a means of assessing the reliability of the consultation paper proposals. Then in Part II, the five key OFM/DFM principles are analysed in the light of the European Convention key principles. In Part III, a description and an assessment of the OFM/DFM proposals contained in the consultation paper for Public Assemblies, Parades and Protests in Northern Ireland are provided. Finally, Part IV outlines some recommendations.


I. THE FIVE EUROPEAN CONVENTION KEY PRINCIPLES DEFINING THE LEGAL FRAMEWORK FOR PUBLIC ASSEMBLIES

The fundamental right to freedom of peaceful assembly is protected under the European Convention on Human Rights. This right, which can be exercised in conjunction with the right to freedom of religion and the right to freedom of expression, (1) applies only to peaceful assemblies (processions, meetings and protests). It is accepted that public assemblies may be subjected to (2) a regulation mechanism by State authorities, provided this does not constitute an interference with the exercise of the right to freedom of peaceful assembly but (3) the duty of the State is to protect the right to freedom of peaceful assembly, while (4) restrictions may be imposed on the exercise of the right to freedom of peaceful assembly provided they are prescribed by law, have a legitimate aim and are necessary in a democratic society. The Convention explicitly (5) prohibits any actions aimed at the destruction of the right to freedom of peaceful assembly.

1. The right to freedom of peaceful assembly applies only to peaceful public assemblies

The right to freedom of peaceful assembly applies to peaceful public assemblies that may be processions, meetings or protests1.

Under Article 11.1 of the ECHR, “everyone has the right to freedom of peaceful assembly”. The Convention clearly excludes any form of violent assembly, whether processions, meetings or protests. There is simply no right to freedom of violent procession, meeting or protest under the Convention, which is binding over all public authorities in Northern Ireland. Any such violent procession, meeting or protest is unlawful and must not be authorised or tolerated by State authorities.

Furthermore, the mere declaration that organisers will hold a peaceful procession, meeting or protest is not sufficient. Their intention must be taken into account since in a democratic society organisers must also intend to hold a peaceful procession, meeting or protest. Organisers who intend to hold a violent procession, meeting or protest or such assemblies to express a message promoting violence should not be given permission to do so, whatever their justification may be.

The judgement rendered by the High Court in Northern Ireland in Tweed v Parades Commission confirmed that the right to freedom of peaceful assembly may serve as a support to the exercise of the right to freedom of religion or the right to freedom of expression or both2.

The right to freedom of expression is defined in Article 10 of the European Convention as including the freedom to hold opinions and to receive and impart information. The European Court of Human Rights stated that it applies “not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no ‘democratic society’”3. However, a message that promotes violence and terrorism has the potential to destroy the framework of a democratic society and changes the nature of the procession, meeting or protest and as a result that procession must be prohibited.

Concerning the right to manifest one’s religion under Article 9 of the European Convention, the European Court stated in Kokkinakis v. Greece that “it includes in principle the right to try to convince one’s neighbour, for example through “teaching”, failing which, moreover, “freedom to change [one’s] religion or belief’, enshrined in Article 9, would be likely to remain a dead letter”4. This right can be freely implemented as long as proper and peaceful means are used5.

If a procession, meeting or protest has not been prohibited because of its peaceful nature and the peaceful intention of its organisers, it must also take place peacefully. Those who take part in a lawful peaceful procession, meeting or protest lose their right to freedom of peaceful assembly if they abandon their peaceful intention or engage in violence. It must be emphasized that the right to freedom of peaceful assembly can only be enjoyed by those who take part in a procession, meeting or protest without any intentions that are less than peaceful; and without engaging in any form of violent activity or in support of any violent message.

Conclusion: The consultation paper has not made clear the distinction between peaceful and violent processions, meetings or protests and as a result has been unable to propose a regulation process that will first deal with the prohibition of violent assemblies and secondly with the imposition of conditions.

2. The regulation mechanism by State authorities must not constitute an interference with the exercise of the right to freedom of peaceful assembly

As stated above, the European Convention proclaims that “everyone has the right to freedom of peaceful assembly”. This right is acknowledged and guaranteed to everyone who is peaceful in intent and practice and there is no requirement in a democratic society to: 1) seek permission from a public authority to exercise it; 2) to have to make a case as to why it should be permitted; 3) or to be obliged to engage with objectors or protesters within the locality and come to an agreement with them.

However, the European Court has recognised that the State may enforce a notification mechanism in the public interest. This mechanism should first be used to take cognisance of the nature of the assembly in order to determine whether or not it is peaceful. If it is violent, promotes violent ideas or encourages violence, the procession, meeting or protest must be prohibited, since under the Convention there is no right to violent assembly. Power to prohibit such assemblies should be given to the State authority in charge of the regulation mechanism.

If on the contrary the proposed procession, meeting or protest is acknowledged to be entirely peaceful, the mechanism should secondly enable the public authority to consider whether or not restrictions should be imposed on that peaceful assembly. These should be done provided the restrictions are prescribed by law, pursue a legitimate aim and are necessary and proportionate in a democratic society, as prescribed in Art. 11.2 of the European Convention6.

When a regulation mechanism is instituted by the State, it should ensure that the public authority in charge has the power to prohibit violent processions, meetings or protest and has also the power to impose restrictions on a peaceful procession, meeting or protest. But this mechanism should never become so burdensome as to constitute an unjustified interference or restriction.

Since the Convention proclaims that everyone has the right to freedom of peaceful assembly, it is up to the State authorities to give the reasons as to why restrictions should be imposed on a peaceful procession, meeting or protests. This implies that the regulation mechanism must be entirely open so that the assembly organisers have the opportunity to address relevant issues in full cognisance of any facts which could trigger the imposition of restrictions, and if restrictions are indeed imposed, to know the basis on which they have been decided.

Before a decision is made by the State authority imposing restrictions, the possibility of addressing relevant issues may be given to the assembly organiser. The resolution of difficulties through engagement between public assembly organisers and objectors or protesters within the locality can only take place on the basis of the three following principles:

1) The fundamental right to freedom of peaceful assembly must be acknowledged by the public assembly organiser and by any person objecting or protesting within the locality. Both the public assembly organiser and those claiming to be objectors or protesters within the locality who wish to have relevant issues considered, should first of all subscribe to Article 11.1 of the European Convention.

2) The public procession organiser and the person objecting or protesting within the locality must be free to engage or not to engage. The European Convention does not impose any requirement to engage with persons objecting or protesting within the locality on public assembly organisers, therefore they are free to engage or not to engage. This entails that no legislation or court in Northern Ireland can oblige the organiser of a public assembly to engage with objectors or protesters.

3) Engagement is solely a process to address particular issues, which specifically relate to restrictions that are necessary in a democratic society and defined by Article 11.2 of the European Convention. Only relevant issues in relation to public safety, prevention of disorder or crime, protection of health and morals and protection of the rights of others should be submitted to the public procession organiser, either verbally or in writing. The public assembly organiser can then take any practical measure that is necessary to resolve relevant issues raised by persons objecting or protesting within the locality.

Conclusion: The entirety of the proposed regulation process is geared towards compulsory local accommodation and it does not appear that OFM/DFM has considered this to be in breach of the right to freedom of peaceful assembly. In addition, the imposition of a burdensome regulation mechanism that would apply to all static public meetings not related to public processions would constitute an unjustified restriction to the right to freedom of peaceful assembly7.

3. The duty of the State is to protect the right to freedom of peaceful assembly

The duty of the State authorities is to protect the right to freedom of peaceful assembly of those who wish to exercise this right peacefully. There is a positive obligation on behalf of the State to interfere even “in the sphere of relations between individuals, if need be”8 in order to protect the right to freedom of peaceful assembly and make it effective for those who wish to exercise it.

The European Court also stated that “in a democracy the right to counter-demonstrate cannot extend to inhibiting the exercise of the right to demonstrate”9. In the case of a violent counter-protest, it is the duty of the State authorities to prohibit it before it takes place, since under the Convention only peaceful assemblies (including counter-protests) are recognised. Otherwise, if a notified peaceful counter-protest turns out to be violent in practice, it should be brought promptly to an end by the State authorities, since there is no right to violent protest under the Convention.

However, if a peaceful counter-protest unlawfully restricts a peaceful public procession or meeting, the State authorities also have a duty to interfere so as to ensure that the right to freedom of peaceful assembly of those who process or assemble is effectively exercised.

Conclusion: The regulation process proposed by OFM/DFM is based on local accommodation, which leads to a disengagement of the State, although it is the duty of the State to intervene in order to ensure that the right to freedom of peaceful assembly can be effectively exercised.

4. Any restriction imposed on a peaceful assembly must be prescribed by law, have a legitimate aim and be necessary in a democratic society

Restrictions can be imposed on the right to freedom of peaceful assembly. The restriction can only apply to a peaceful assembly since, as explained above, a violent assembly in intent or practice should not be restricted but prohibited within the context of a democratic society.

Any restriction imposed by a public authority must conform to the prescription of Art. 11.2. If the public assembly organiser is to take measures which amount to self-imposed restrictions, these should conform to the same provisions of Art. 11.2.

The restriction must be prescribed by law, which means that the legislation must be clear enough for those who are expected to abide by this legislation to know accurately what is required of them. “A legal norm must be formulated with sufficient precision so as to enable the citizen – 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.”10

The restrictions should be made in pursuance of a legitimate aim mentioned in Article 11.2 of the Convention i.e. in the interests of national security, public safety, for the protection of disorder or crime, for the protection of health or morals, for the protection of the rights and freedoms of others, which may include in particular the right to private and family life, the protection of property, the right to freedom of thought, conscience and religion and other rights that are not Convention rights.

Concerning the legitimate aim of prevention of public disorder:

Since the restriction under Article 11.2 only applies to a public assembly that is peaceful, public disorder cannot result from the public assembly itself. Only those who organise a peaceful assembly and participants who are peaceful in intent and practice can exercise their right to freedom of peaceful assembly. A violent assembly, procession or meeting, must be prohibited under the Convention. Restrictions for the prevention of public disorder only apply to peaceful assemblies when disorder originates from outside the assembly. The distinction must be clearly made so as to avoid the confusion that is maintained in the OFM/DFM proposals. Restrictions could only be imposed on the grounds of public disorder if the disorder that would be caused by, for example opponents to the assembly, cannot be controlled by security forces so that it is necessary, provided it is also proportionate in a democratic society.

Concerning the legitimate aim of the protection of the right to private and family life of others:

A peaceful assembly may impact on the right to private and family life of others, which are convention rights. In this case the degree of seriousness with which the rights of others is affected must be considered so as to determine whether a restriction should be imposed. Only restrictions that are necessary and proportionate in a democratic society could then be imposed on the peaceful assembly and it is up to the State authorities to prove this.

Concerning the legitimate aim of the protection of the right to freedom of others:

A peaceful public assembly may be restricted in pursuance of the legitimate aim of the protection of the rights of others.

The European Court has admitted that the rights of others comprehend rights protected by the European Convention but may also include rights that are not included in the Convention. When the right(s) is (are) not enunciated in the Convention, only an ‘indisputable imperative’ can justify interference with the enjoyment of the Convention right.11 OFM/DFM appears to view the right to freedom from sectarian harassment as a right of others that should be protected. It does not provide a definition of sectarian harassment. However, harassment is defined as a course of conduct “which has the purpose or effect of violating the individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment”12. It is submitted that if such is the purpose of an assembly, it would significantly alter the nature of that assembly that cannot then be classified as being peaceful and should as a consequence be prohibited. On the contrary, if those organising or taking part in an assembly have no intention to cause offence, the assembly is deemed peaceful. If ever people who are not part of the assembly claim to be offended by the peaceful assembly, they have no right not to be offended in a democratic society and therefore cannot argue that they are being harassed. Furthermore, in such circumstances and on such a ground there is no indisputable imperative to restrict the fundamental right of members of the community who organise and take part in peaceful assemblies.

The restriction must be necessary in a democratic society. The restrictions must correspond to a “pressing social need” that has to be addressed in order to achieve the legitimate aim pursued. The restriction must also be proportionate.

When considering the imposition of restrictions in pursuance of the prevention of disorder, the State authorities must assess the seriousness of the public disorder that may be caused by those who for example oppose the assembly. The risk of public disorder is not enough, but a restriction is only necessary if it is impossible for the security forces to control public disorder. In this case the State authorities should seek to impose the least stringent measures so as to guarantee the effectiveness of the right to freedom of peaceful assembly.

When considering imposing restrictions on a peaceful assembly in pursuance of the legitimate aim of the protection of the rights of others, the public authorities will have to balance the requirements for each right to be respected on the basis of proportionality. As a result of the balancing exercise of the requirements for the right to freedom of peaceful assembly and the rights of others to be respected, proportionate restrictions may need to be imposed on a peaceful procession.

Conclusion: OFM/DFM has failed to address the issue of the prohibition of violent processions, meetings or protests, only dealing with restrictions that may be imposed on them. The right to freedom from sectarian harassment as a new legitimate aim for imposing restrictions on a peaceful procession, meeting or protest is unconvincing and doubtful. The new proposals do not provide greater assurances than at the present moment under the Parades Commission that future restrictions imposed on a peaceful procession, meeting and/or protest will be necessary and proportionate in a democratic society.

5. The prohibition of actions aimed at the destruction of the right to freedom of peaceful assembly

Article 17 of the European Convention prescribes that “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”.

This fundamental provision of the European Convention prevents public authorities, organisations or individuals from engaging in activities using rights and freedoms with the view of destroying or limiting the rights of others in unnecessary or disproportionate manner.

As soon as an organisation or individual engages in such an activity with the aim of destroying the right to freedom of peaceful assembly, they lose the benefit of the rights and freedom enshrined in the Convention.

It does not appear at this stage that OFM/DFM has envisaged the possibility of using Article 17 in order to ensure that objectors and protesters may not use the right to private and family life with the purpose of destroying the right to freedom of peaceful assembly of those who wish to assemble peacefully either by way of procession or meeting.

Conclusion: OFM/DFM has failed so far to take into account the reality of the context within which peaceful public assemblies take place in Northern Ireland in order to efficiently apply Article 17 of the European Convention.


II. THE FIVE OFM/DFM KEY PRINCIPLES ANALYSED IN THE LIGHT OF THE EUROPEAN CONVENTION KEY PRINCIPLES

OFM/DFM has made proposals based on five key principles which fail to comply with those established in the European Convention on Human Rights, as laid out in the following: (1) “local people providing local solutions”, which should take into account the right to engage or not to engage, (2) “respect for the rights of those who parade, and respect for the rights of those who live in areas through which they seek to parade including the right for everyone to be free from sectarian harassment”, which is a vague concept open to many interpretations, (3) “recognising that at times there are competing rights”, while it should be recognised that no-one has the right to engage in any activity aimed at the destruction of the rights of others, (4) “transparency, openness and fairness”, which nevertheless does not take into account the need for a proper regulation mechanism, (5) “independent decision-making”, which is unfortunately not safeguarded against political interference.

1. Local people providing local solutions

The first OFM/DFM principle is that disputes should be dealt with through ‘local people providing local solutions’ because this should become the normal way of doing things. However, the principles derived from the European Convention in relation to engagement between procession organiser and objectors or protesters within the locality imply that: 1) the fundamental right to freedom of peaceful assembly must be acknowledged by both the procession organiser and the objector or protester; 2) engagement is a process to address particular issues, which specifically relate only to restrictions that are necessary in a democratic society, as defined by the European Convention; 3) the public procession organiser and the objector or protester within the locality are free to engage or not to engage13.

Conclusion: The three principles on engagement have not yet been taken into account by the OFM/DFM.

2. Respect for the rights of those who parade, and respect for the rights of those who live in the areas through which they seek to parade including the right for everyone to be free from sectarian harassment

The second OFM/DFM principle introduces a vague and unreliable concept of ‘sectarian harassment’. The European Convention on Human Rights declares that everyone has the right to freedom of peaceful assembly. This right is a qualified right, which can be restricted provided the restrictions are prescribed by law and are necessary in a democratic society. The aims pursued when imposing restrictions should be: the interests of national security or public safety, the prevention of disorder or crime, the protection of health or morals or the protection of the rights and freedoms of others. Those who wish to exercise their right to freedom of peaceful assembly within the framework defined in the European Convention will be able to do so without unlawfully affecting the rights of those who wish and are free to protest against them peacefully. The concept of ‘sectarian harassment’ has not been clearly defined by OFM/DFM and may well be used by objectors and protesters as a means to abusively prevent peaceful public assemblies from taking place.

Conclusion: The right to freedom of peaceful assembly is meant to be exercised with respect for the rights of others in a democratic society. The vague concept of sectarian harassment may be used by objectors and protesters as a means of undermining the right to freedom of peaceful assembly of others.

3. Recognising that at times there are competing rights

The third OFM/DFM principle appears to require a mere acknowledgement of what the European Convention addresses when two or more rights are to be exercised in conjunction. The right to freedom of peaceful assembly is a qualified right and therefore it may be necessary to restrict it provided the restrictions are prescribed by law and are necessary and proportionate in a democratic society in the pursuance of a legitimate aim prescribed in article 11.2 of the European Convention. However, the existence of several rights being exercised together at the same time must be made possible in a democratic society. This should not mean that any Convention rights are used in order to engage in any activity or perform any act aimed at the destruction of the right of others in breach of Article 17.

Conclusion: The right to freedom of peaceful assembly is a qualified right. No-one should be allowed to use any of the Convention rights with the aim of destroying the exercise of the right to freedom to peaceful assembly of others.

4. Transparency, openness and fairness

The fourth OFM/DFM principle is ‘transparency, openness and fairness’. Although at the phase of notification and dialogue organised by OPAPP the process appears to be open, this does not follow for the subsequent phases. At the end of the mediation phase and if there is no resolution of the dispute, information will be passed on by the mediator to OPAPP, who in turn will send it to PAPPB, without being communicated first to the organiser and the protester. During the adjudication phase, PAPPB will provide verbal summaries of the case to the organiser, the objector and the protester but without full disclosure. The basic condition for ensuring transparency, openness and fairness concerning PAPPB under Article 11 of the ECHR is that it must be committed to a procedure that allows the public assembly organiser access to all the information considered by the adjudication body prior to a decision being made. This is not mentioned in the current proposals, which appear to refer to the possibility of disclosure only in compliance with the High Court case law interpreting the Public Processions (Northern Ireland) Act 1998.

Conclusion: OFM/DFM has failed to make proposals for a fair regulation process that would be effectively more open, transparent and fair than the one operated by the Parades Commission in compliance with Article 11 of the European Convention.

5. Independent decision-making

The fifth OFM/DFM principle is ‘independent decision-making’ by PAPPB, the adjudication body. Since members of PAPPB will be appointed by the Appointment Panel, consisting of 4 members appointed by the First Minister and deputy First Minister, this does not seem conducive to independence. The appointment of members on the adjudication body will be a compromise between the members of the Appointment Panel. There is a legitimate concern that the political division and opposition between the First Minister and the deputy First Minister will be replicated within the adjudication body through the Appointment Panel. There is no doubt that a proper adjudication body should be totally independent from political interference, but unfortunately the new proposals appears to encourage political intervention. Furthermore, as is presently the case with the Parades Commission, PAPPB will be able to review its own decisions only if significant new material facts emerge: whereas an appeal procedure before a separate body, providing a real opportunity to review decisions made by PAPPB, has been excluded.

Conclusion: OFM/DFM has failed to suggest a regulation mechanism that would be truly independent of political interference in order to be able and to be seen to be able to make decisions in compliance with the European Convention.


III. DESCRIPTION AND ASSESSMENT OF OFM/DFM PROPOSALS CONTAINED IN THE CONSULTATION PAPER FOR PUBLIC ASSEMBLIES, PARADES AND PROTESTS IN NORTHERN IRELAND

In order to better understand the OFM/DFM proposals and draw a comparison with the present legislation, different aspects of the new system will be considered: (1) the notifications required, (2) the bodies in charge of the regulation mechanism, (3) the phases of the process, (4) the decision-making process and finally (5) the evaluation procedure.

1. The notifications required

The notification process is made more complex as a result of making it a requirement to notify not only (A) public processions but also public meetings, (B) introducing the notification of concerns or objections, (C) imposing notification of a protest meeting not only in respect of public processions but also of public meetings, (D) adding the notification of concerns and objections to a protest meeting and (E) the notification of counter-protest meetings.

A) Notice of public processions and public meetings (Section 13)

Under the present legislation, the Public Processions (Northern Ireland) Act 1998, notification must be given by the organisers of public processions and of related protest meetings only. Open-air public meetings are regulated by the Public Order (Northern Ireland) Order 1987, and the organiser of such a meeting has no obligation to notify it, whatever the number of participants.

Under the new proposals, notification will become compulsory for the organiser of a public procession, but also for the organiser of a public meeting of 50 or more persons. Since there has never been any particular issue in relation to open-air public meetings in Northern Ireland, the reasons for imposing notification should be explained. If there is no compelling reason for making notification compulsory, the new requirement should be considered as an unjustified restriction on the right to freedom of peaceful assembly.

Another question arises as to those who should be counted as taking part in the public meeting. Should members of the public who are invited to attend be counted in the number of “50 or more persons” so as to determine when notification for that meeting is required?

The public meeting that is held in a “public place” must be notified. Public place is defined as a road or footway or any other place to which the public or a section of the public has access. This would include gardens and fields, which may be private properties where people are given expressed or implied permission to enter (Section 7 (2)). No doubt such a definition of ‘public place’ as applied to private properties would impinge on the right to freedom of peaceful assembly and the right to private and family life.

Notification must be given by the organiser of a public procession or a public meeting to OPAPP 37 days before the proposed date of the procession or meeting. The form on which notification will have to be made will be issued by OPAPP. The information given on the form will include the date and time of the proposed procession or meeting, the categories of persons taking part and any other information required in accordance with guidance given by OFM/DFM under section 3(3). OFM/DFM will have the power at any time to change the requirements that should be provided on the notification form.

The notice given by the organiser must be published by OPAPP on the date of receipt. As soon as possible OPAPP will also send copy of the notice to “the interested persons” who are: the Public Assemblies, Parades and Protests Body (PAPPB), the PSNI, the fire and rescue ambulance services, the local Member of Parliament, the local members of the Northern Ireland Assembly, the local district council and other persons who notify OPAPP that they want to receive copies of the notices. These persons have the right to ask that their name be kept confidential (Section 16 (4)).

B) Notice of concerns or objections to a public procession and public meeting (Section 14)

A person may give OPAPP a notice of concerns or objections to a public procession or a public meeting.

The notice must be given within seven days after the publication of the notice of a public procession or a public meeting. The form of the notice will be prepared by OPAPP in accordance with guidance given by the OFM/DFM under section 3(3). The OFM/DFM will have power to change the requirements for information that should be given by the objector.

The objector will have to state why he/she had concerns or objections about the proposed assembly in relation to human rights or compliance with the code of conduct as prepared by the OFM/DFM (Section 2).

The notice of concerns or objections must be published by OPAPP on the date of receipt. As soon as possible OPAPP will also send copy of the notice to “the interested persons” who are the Public Assemblies, Parades and Protests Body (PAPPB), the PSNI, the fire and rescue ambulance services, the local Member of Parliament, the local members of the Northern Ireland Assembly, the local district council and persons who notify OPAPP that they want to receive copies of the notices. These persons have the right to ask that their name be kept confidential (Section 16 (4)).

C) Notice of protest meetings in relation to a public procession or public meeting (Section 15)

A person who gave a notice of concerns or objections as described above can propose to organise a protest meeting in relation to the proposed public procession or public meeting.

The notice for the protest meeting must be given to OPAPP 22 days before the proposed date for the protest meeting. The notice will be in the form prescribed by OPAPP. It should provide the date, time, categories of person expected to attend and any other information required in accordance with guidance given by the OFM/DFM to OPAPP under Section 3 (3).

The notice must be published on the date of receipt and copies of the notice must be sent to the organiser of the public procession or the public meeting and the “interested persons” as for the other notifications.

D) Notice of concerns or objections to a protest meeting (Section 14)

A person may give OPAPP a notice of concerns or objections to a protest meeting in respect of a public assembly of which notice has been given under section 15.

The notice must be given within 7 days after the date of publication of the notice of the protest meeting. The notice will be on a form prescribed by OPAPP in accordance with guidance given by the OFM/DFM under Section 3 (3). The notice must state the reasons in relation to human rights or compliance with the code of conduct. The notice must be published on the date of receipt and a copy sent to the organiser of the protest meeting and the “interested persons” as for the other notifications.

E) Notice of counter protest meetings (section 15)

A person who gave a notice of concerns or objections as mentioned above can give notice to OPAPP that he/she proposes to organise a counter-protest meeting.

The notification must be given at least 22 days before the proposed date of the protest meeting. The notice must be in the form prescribed by OPAPP in accordance with guidance given by the OFM/DFM under section 3(3).

The notice must be published on the date of receipt and copies sent to the organiser of the protest meeting and “the interested persons” as for all other notifications.


Procedure in relation to a public procession / meeting:

(1) Notice of public procession / meeting
(2) Notice of concerns and objections
(3) Notice of protest meeting against the public procession / meeting
(4) Notice of concerns and objections about the protest meeting
(5) Notice of counter-protest meeting.

2. The bodies in charge of the notification mechanism

The proposals create three new bodies, (A) the Office of Public Assemblies, Parades and Protests (OPAPP), (B) the Public Assemblies, Parades and Protests Appointments Panel, (C) the Public Assemblies, Parades and Protests Body (PAPPB) and prescribe (D) mediators and (E) monitors.

A) The Office of Public Assemblies, Parades and Protests (OPAPP) (Administrative Body) (Section 3)

The members of OPAPP, the Administrative Body, are designated by the First Minister and the deputy First Minister from among the officials of their Office. OPAPP exercises its functions under OFM/DFM who may give them guidance.

OPAPP deals with all the notifications. It receives all the notices and sends copies of them to the interested persons.

It takes all required steps to aid the proposed discussions between the organiser of the public procession or the public meeting and the objectors (Section 17.2).

OPAPP makes arrangements for mediation and establishes a list of mediators (Sections 10 (3) and 18). The reports prepared by mediators are sent to OPAPP.

It receives reports from monitors within 7 days after the assembly has taken place. It publishes the report and sends it to PAPPB on request.

B) The Public Assemblies, Parades and Protests Body Appointment Panel (Appointments Panel) (Section 20)

In order to appoint members of PAPPB there will be the Public Assemblies, Parades and Protests Appointments Panel. It will be composed of 4 members appointed by the First Minister and the deputy First Minister for 5 years who may be reappointed once for the same duration.

The First Minister and deputy First Minister may remove a person from office if he has been convicted of a criminal offence since appointment. This seems to indicate that someone who has a conviction for past activities may be appointed and can only be dismissed if he is convicted after he has been appointed.

The members of the Appointments Panel will in turn appoint the members of the Adjudication Body. In making its decision the Appointments Panel must have regard to guidance given by the First Minister and deputy First Minister (Section 4 (2)). The decision made by the Panel must be unanimous.

C) The Public Assemblies, Parades and Protests Body (PAPPB) (Adjudication Body) (Section 21 and 22)

The Public Assemblies, Parades and Protests Body (PAPPB) consists of 11 members who are all equal and it has no chair. Among the 11 members, 3 must have relevant legal expertise in the Appointments Panel’s opinion (signifying that they do not need to be lawyers) and the body must be representative of the community in Northern Ireland.

Each member is to be appointed for 3 years and may be reappointed once for the same duration.

A member may be removed from office if he is convicted of a criminal offence since appointment. This seems to indicate that a member may be appointed to be a member of the adjudication body even if he has a conviction in the past and may only be dismissed if he is convicted after his appointment.

The adjudication body will be made up of two panels of 5 members each. One of the members will remain available to stand in for a member of either panel if necessary. The panels will be re-established every 3 months.

Reviews of decisions made by the panels will take place before the full body, made up of at least 7 members. Under the Parades Commission Procedural Rules, a request for review of a determination is dealt with by the Commission itself. The only difference with the new arrangements is that the review must take place before the full body. As is the case with the Parades Commission, the review will still be carried out by the same body. Of course, there would be the possibility to request a judicial review of a decision made by PAPPB before the High Court, but this option is long and onerous.

Although OPAPP is separate from PAPPB, they remain closely linked. The Parades Commission appears to have been split into two bodies, with OPAPP being entrusted with administrative duties and PAPPB delivering adjudication duties, necessarily involving more public funding.

D) Mediators (Section 10)

OPAPP must establish and maintain a list of mediators that may be used at the stage of mediation and evaluation.

Mediators would intervene during the mediation phase, which is after the dialogue phase and before adjudication. They must provide a report to OPAPP. It seems that mediators would replace the Authorised Officers who operated for the Parades Commission.

Mediators will be required at the phase of evaluation after the public assembly has taken place, to chair meetings organised by OPAPP.

E) Monitors (Section 11)

Monitors are appointed by PAPPB to monitor a public assembly, procession or public meeting. The decision to have a public assembly monitored may be decided at the dialogue, mediation or adjudication phase. Monitors will issue reports that will be sent to OPAPP within 7 days after the public assembly has taken place.

OPAPP publishes the report and sends it to PAPPB on request.

Under the present arrangements, the Parades Commission uses monitors who make reports on the basis of which conditions may be imposed on future processions or related protest meetings.

3. The phases of the process

The different phases of the process after notification are: (A) dialogue, (B) mediation, (C) adjudication, (D) monitoring and (E) evaluation.

A) The phase of dialogue (Section 17)

Once there has been notification of a public procession or a public meeting, and a person has given notice of concerns or objections, the period of dialogue is 7 days and begins with the publication of the notice of concerns and objections. The organiser and the objector may request that OPAPP help them discuss the issues in dispute. OPAPP must take any reasonable steps to help discussions and pay the reasonable cost for providing a venue for meeting for dialogue.

During this period, the organiser and the objector may resolve the issue in dispute. If there is agreement, the organiser and the objector must inform OPAPP, who will then publish a report and a copy of it will be sent to the interested persons. The organiser and the objector may agree that the public assembly is to be monitored. In this case PAPPB must appoint monitors.

If after 7 days there is no agreement, a new period of 7 days opens for mediation initiated by OPAPP. It is also possible that the organiser or objector do not participate in a meeting to address the issues in dispute. The absence of participation may be a factor taken into account by PAPPB at the stage of adjudication.

B) The phase of mediation (Section 18)

The period of mediation begins once the 7-day period for dialogue has expired. OPAPP must make arrangements for mediation using a mediator approved by the organiser and the objector. If the outcome of mediation is the resolution of the issues in dispute, the mediator must report to OPAPP, who in turn publishes a report that is sent to the interested persons.

All assemblies that have been referred to mediation, whether successful or not, must be monitored and monitors are appointed by PAPPB.

If the outcome of mediation does not allow resolution of the dispute, the public assembly must be referred for adjudication. There is only one exception to referral for mediation, i.e. when PAPPB decides that the notice of concerns or objections is to be dismissed because it does not raise any issues relating to human rights or compliance with the code of conduct.

C) The phase of adjudication

The dispute may be referred to the adjudication body by the mediator, OPAPP or the parties.

a) Referral by the mediator (Section 23)
If the mediation phase, which started with a notice of concerns or objections, ends at the beginning of the “relevant period” (the period of 15 days ending with the proposed date of the public assembly) without resolution of the dispute, the mediator must refer the matter to PAPPB. He will also provide PAPPB with a report on the mediation phase. The mediator will send a copy of this report to the organiser and the objector who can then contest it. However, mediation may still continue and if successful, the information will be given to PAPPB and the proceedings before PAPPB will cease.

b) Referral by OPAPP (Section 24)
OPAPP must refer the dispute to PAPPB if the organiser and objector do not agree on mediation before the beginning of the “relevant period” (i.e. the period of 15 days ending with the proposed date of the public assembly). PAPPB will decide whether conditions should be imposed on the public assembly before it can take place.
However, the organiser and the objector may agree a mediator during the relevant period and the mediation may continue towards resolution of the issue.

c) Referral by the parties (Section 25)

When there has been notification of a public assembly and a notice of concerns or objections has been given, the organiser or objector may refer the dispute directly to PAPPB. In this case there will be no dialogue or mediation phases. If ever dialogue or mediation has been initiated, they must be stopped.

The decision must be made 7 days before the proposed date of the public assembly. PAPPB can issue requirements imposing restrictions on a public assembly. While making its decision, PAPPB must have regard to human rights and the failure to comply with the code of conduct. Reasons must be given with the decision and the decision will be published with the reasoning attached, as does the Parades Commission at present. The assembly will have to be monitored by monitors appointed by PAPPB. A review may be carried out by PAPPB at the request of the organiser of a proposed assembly. PAPPB would have to issue its decision before the period of 4 working days, ending with the date of the proposed assembly.

A few indications have been provided as to the key aspects of PAPPB’s decision-making process. In addition, rules may be issued in the future by OFM/DFM describing how PAPPB should operate in practice.

Under the present arrangements, all evidence received by the Parades Commission is kept confidential and for the use of its members only. The gist of the evidence can be given to the public procession organiser orally but access to the documentation detained by the Parades Commission is denied. In the explanatory Guide to the Draft Bill it is stated concerning the new arrangements: “Parties to a dispute, i.e. organisers, objectors and protesters, will be told in advance of the panel’s hearing what each party’s case is and will be given an opportunity to respond to it”14. Although the legislation prescribes that PAPPB operates in an accessible and transparent manner, there is no mention of evidence being given to the organisers. The rule of confidentiality may well be enforced in the future just as it is at present by the Parades Commission. Disclosure of evidence will come after the decision has been made unless the High Court determines that it is not in the public interest to do so.

When making its decision, PAPPB will take into account the information provided in notices made to OPAPP, information provided by the PSNI, factual reports by mediators and monitors and evaluation reports. The members of PAPPB will make a decision about a dispute but will have no part to play in relation to it. There will be a clear distinction between mediation and adjudication.

D) The phase of monitoring

The decision to monitor a public assembly may be decided at the phase of dialogue, mediation or adjudication.

The organiser of the public assembly and the objector at the phase of dialogue may decide that the assembly should be monitored. In this case the organiser must inform OPAPP who in turn informs PAPPB, who must then appoint monitors (Section 17 (5)).

When a dispute is referred to mediation the public assembly must be monitored and PAPPB must appoint monitors (Section 19 (3)).

Where PAPPB makes a decision in relation to a public assembly the assembly must be monitored and PAPPB must appoint monitors (Section 26 (10)).

Monitors will issue reports that will be sent to OPAPP within 7 days after the public assembly has taken place. OPAPP publishes the report and sends it to PAPPB on request (Section 11). At the phase of evaluation, whether mandatory or voluntary, any monitor’s report is considered (Section 32 (2)).

E) The phase of evaluation

Under the present arrangements, the Parades Commission sends letters of compliance to the organiser of a public procession or related protest meeting on the basis of information received from its monitors. It asks the organiser questions with a view to clarifying what happened during the procession, making clear that it may take into account what occurred the previous year in order to impose conditions on a future procession.

Under the new proposals, evaluation can be either mandatory or voluntary.

a) Mandatory evaluation (Section 30)

If PAPPB makes a decision in relation to a proposed public assembly, OPAPP must make arrangements for a meeting after the assembly has taken place in order to evaluate it. This evaluation meeting must take place within 60 days after the assembly. Will be convened to the meeting the organisers of the public assembly, procession or protest meeting, those who gave notice of concerns or objections and a representative of the PSNI.

b) Voluntary evaluation (Section 31)

Any person who organises a public assembly or lodges a notice of concerns or objections, or the PSNI, may request that OPAPP hold a meeting to evaluate a public assembly. The request may be made before or within the period of 7 days after the public assembly takes place and PAPPB must organise the meeting within 60 days after the assembly has taken place. OPAPP organises the meeting with the organisers, those who lodged a notice of concerns or objections and a representative of the PSNI.

The evaluation meeting is to be chaired by a mediator registered with OPAPP and will consider the monitor’s report and of course the views of those attending.

4. Assessment of the OFM/DFM proposals

A) Concerning guidance and rules

- Apart from the code of conduct that has now been issued, there are a number of rules which are not yet known which means that at this stage the full picture of what the new system would look like cannot be given;

- The First Minister and deputy First Minister have the power to give guidance about the exercise of functions by a number of bodies:
. The Appointments Panel;
. PAPPB;
. Mediators;
. Monitors (Section 46);

- The First Minister and deputy First Minister have the power to give guidance to OPAPP in order to determine the information that should be provided on notices from:
. The organiser of a public procession and public meeting (Section 13 (3) (d));
. The objector who has concerns and objections about a public assembly (Section 14 (3));
. The protester organising a protest against a public assembly (Section 15 (4) (d));
. The objector who has concerns and objections about a protest meeting (Section 14 (3));
. The protester who organises a counter-protest (Section 15 (4) (d));

- The First Minister and deputy First Minister also have power to issue rules in relation to the proceedings implemented by PAPPB (Section 22 (1));

- OFM/DFM have the power to review the Act and change the guidance and rules.

B) Concerning notifications

- The number of notifications, which used to be for public processions and related protest meetings would now be multiplied by three as they would be required for:
. Public processions;
. Public meetings in a public place and private premises where public may have access;
. Concerns and objections to public processions and public meetings;
. Protest meetings in respect of public processions and public meetings;
. Concerns and objections to protest meetings;
. Counter-Protest meetings;

- The multiplication and complication of these regulations would not only use public funds perhaps unnecessarily, but inevitably exacerbate, perpetuate and incrust community divisions;

- Copies of notifications would be sent to a number of interested people mentioned in section 16 (PAPPB, the PSNI, the fire and rescue ambulance services, the local Member of Parliament, the local members of the Northern Ireland Assembly, the local district council and persons who notify OPAPP that they want to receive copies of the notices);

- Open-air public meetings of 50 persons or more held in public places, which could be private locations to which the public or a section of the public has access, such as Gospel meetings, would have to be notified;

- The necessity of imposing the new formality of notification of public meetings should be considered as being an unjustified restriction imposed on the right to freedom of peaceful assembly, since there is no imperative requirement to make it compulsory and the present legislation, the Public Order (Northern Ireland) Order 1987, is entirely satisfactory;

- The First Minister and deputy First Minister would have the power to increase or decrease the number of people for which notification is required for public meetings;

- Guidance would be issued by OFM/DFM in relation to the information that needs to be provided in the notices for public processions and public meetings, concerns and objections, protest meetings and counter-protests;

- OFM/DFM would have the power to change the requirements of what needs to be provided in the notification forms at any time.

C) Concerning the new bodies which operate the mechanism

- The Parades Commission, which used to exercise both administration and adjudication functions, appears to be split into two bodies, OPAPP and PAPPB;

- OPAPP, the Office of Public Assemblies, Parades and Protests, is the administrative body dealing with notifications, the facilitation of dialogue, the appointment of mediators, the information to be provided to PAPPB in relation to the regulation mechanism so as to enable it to adjudicate on disputes;

- PAPPB, the Public Assemblies, Parades and Protests Body, is the adjudication body dealing with disputes that have not been resolved at the phases of dialogue and mediation and also deals with reviews of its own decisions;

- OPAPP and PAPPB would be inter-dependent in practice, as OPAPP would be relying on PAPPB to deal with disputes at the phase of adjudication and PAPPB would be relying on OPAPP to be provided with the notifications, information and reports to carry out its function;

- The 4 members of the Appointments Panel in charge of appointing the 11 members of PAPPB may be appointed by the First Minister and deputy First Minister, even if they have previous convictions (only convictions since their appointment may lead to dismissal);

- The members of PAPPB may be appointed by the Appointments Panel even if they have previous convictions;

- Mediators registered with OPAPP dealing with a dispute between the organiser of a public assembly and objectors appear to replace the Parades Commission Authorised Officers;

- Monitors who used to be appointed by the Parades Commission would now be appointed by PAPPB;

- What used to be the compliance stage enforced by the Parades Commission would become the evaluation phase.

D) Concerning the decision-making-process

- It appears that the current process would be made more systematic and radical;

- The emphasis would be put on dialogue and mediation to resolve disputes between the organiser, the objector and the protester, as is the case under the present legislation;

- When making its decision, as is the case at present with the Parades Commission, PAPPB may take into account a refusal to enter into engagement, though this should not be a main or key determining factor;

- Evidence would not be made available to the organiser, as is the case at present with the Parades Commission;

- Parties to a dispute, organiser, objector and protester, would be told in advance of the panel’s hearing what each party’s case is and would be given an opportunity to respond to this, as is the case under the Parades Commission Procedural rules;

- Any disclosure of evidence would happen only within the constraints decided by the High Court on a similar basis as at present;

- In making its decision PAPPB must have regard to human rights and any relevant previous failure to comply with the statutory code of conduct or determination made by the Parades Commission, including the previous code of conduct;

- PAPPB decisions would be made on the basis of the same elements as are at present provided by the organiser, objectors, any interested person, the PSNI, mediators or monitors, in the same way as decisions are presently made by the Parades Commission;

- PAPPB, like the Parades Commission, would have no power to prohibit violent public assemblies and this is a major weakness in the regulation mechanism;

- The emphasis in decisions made by PAPPB is likely to be put on local sensitivities and the vague concept of sectarian harassment, which is open to various interpretations;

- PAPPB would carry out reviews of its own decisions itself, as does the Parades Commission;

- The requirements imposed on a public assembly by PAPPB would be of the same nature as those imposed at present by the Parades Commission;

- The possible involvement of politicians, who would receive copies of notices given in relation to public assemblies that would be organised in their constituency, could make the regulation mechanism subject to continual political pressure.


IV. RECOMMENDATIONS

It is regrettable that an opportunity to improve the legislation applying to the regulation of peaceful public processions in Northern Ireland has so far been missed. OFM/DFM has made proposals that rely on temporary political opportunism, a compromise between two antagonistic political approaches, which it is feared, if ever implemented would further undermine the Convention right to freedom of peaceful assembly of law-abiding people in Northern Ireland.

It is therefore submitted that OFM/DFM should endeavour to modify its proposals taking into account the following recommendations:

1. The new proposals should be made exclusively on the basis of the fundamental principles mentioned in Part I to ensure the protection and promotion of the fundamental right to freedom of peaceful assembly, as enshrined in the European Convention on Human Rights. These principles are the following:

- The right to freedom of peaceful assembly only applies to peaceful public processions and peaceful protests (Article 11.1 ECHR);

- The regulation process must not constitute an interference in the exercise of the freedom (Article 11.1 ECHR);

- The duty of the State is to protect the right to freedom of peaceful assembly (Article 11 ECHR);

- Any restriction imposed on a peaceful assembly must be prescribed by law, have a legitimate aim, and be necessary and proportionate in a democratic society (Article 11.2 ECHR);

- Prohibition of the abuse of rights with the aim of destroying the right to freedom of peaceful assembly (Article 17 ECHR).

2. The structures and procedures of the regulation mechanism should be in accordance with the principles enshrined in the European Convention on Human Rights.

3. The powers given to the new public authority in charge of the regulation mechanism should be in accordance with European Convention principles, allowing them to assess first the peaceful nature of the assembly and secondly the necessity of imposing restrictions in the public interest.

4. The regulation mechanism should only apply to public processions and protest meetings but need not apply to public meetings that are already satisfactorily regulated as a result of the Public Order (Northern Ireland) Order 1987.

5. The extension of the new legislation to open-air public meetings must be considered as being an unjustified restriction imposed on the right to freedom of peaceful assembly and the corresponding provisions should be immediately removed from the Draft Bill;

6. The definition of public place in relation to public meetings should be modified so as to exclude the possibility of any interpretation leading to the inclusion of private properties;

7. Any proposal for ‘local solutions’ and ‘dialogue’ must not become a requirement for local agreement because it would undoubtedly undermine the right to freedom of peaceful assembly by giving any opponents a de facto veto against that right. Engagement could take place on the basis of the following principles in compliance with the European Convention:

- The fundamental right to freedom of peaceful assembly must be acknowledged by the public procession organiser and by any interested persons within the locality;

- The public procession organiser and interested persons within the locality must be free to engage or not to engage;

- Engagement is solely a process to address particular issues that specifically relate to restrictions that are necessary in a democratic society and defined by Article 11.2 of the European Convention.

8. If responsibilities are to be undertaken by PAPPB for dealing with adjudication, all decisions taken must be subject to rigorous legal conditions and controls.

9. Any appointment made by the First Minister and deputy First Minister, must be made under rigorous legal conditions and controls and their duties must be carried out in compliance with the European Convention.

10. Appointments to any form of Adjudication Body must be independent from the First Minister and deputy First Minister and political influence, and must be subject to rigorous legal conditions and controls and their decision must seek to implement as best as possible the principles enshrined in the European Convention.
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Endnotes:

(1) ECmHR, Christians Against Racism and Facism v. UK, Decision of 16 July 1980 (Application no. 8440/78).
(2) In the matter of an application by David Tweed for Judicial Review, 2007, NIQB 69, 12 September 2007, para. 45.
(3) ECtHR: Handyside v. UK (1976), para 49.
(4) ECtHR: Kokkinakis v. Greece, 25 May 1993, Series A, no 60A, para. 31.
(5) ECtHR: idem, para. 48.
(6) "No restriction 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 ..." (Article 11.2 of the European Convention on Human Rights).
(7) The consultation paper extends the notification mechanism to all static assemblies of 50 or more people, such as evangelistic meetings organised by churches. This would unnecessarily restrict the freedom of peaceful assembly of those who organise open-air public meetings, which are presently satisfactorily regulated by way of the Public Order (Northern Ireland) Order 1987.
(8) ECtHR: Plattform "Artze fur das Leben" v. Austria, 21 June 1988, Series A, no. 139, para. 32.
(9) ECtHR: idem.
(10) ECtHR: Ezelin v. France, 26 April 1991, Series A, no. 202, para. 45.
(11) Chassagnou v. France (1999), 29 EHRR 615, para. 113.
(12) Protection from Harrassment (N.I.) Order 1997; Article 2(2).
(13) See Part I para. 2.
(14) Explanatory Guide to the draft Public Assemblies, Parades and Protests Bill (Northern Ireland) (page 44).
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