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


Supplementary Memorandum submitted by the Northern Ireland Human Rights Commission[121]


Who's Right and Whose Rights?




  1.1  The Context

  1.2  International Human Rights—A brief guide

  1.2.1  The Role of the State

  1.2.2  A Hierarchy of Rights

  1.3  The Human Rights Act 1998

  1.4  Human Rights in Northern Ireland


  2.1  The Right to Freedom of Assembly

  2.1.1  Freedom of Assembly in domestic law

  2.2  "Peaceful Assembly"

  2.2.1  "Peaceful"

  2.2.2  "Assembly"

  2.2.3  A Right to March?

  2.2.4  A Right to Counter Demonstrate?

  2.3  Restricting the Right to Freedom of Peaceful Assembly

  2.3.1  The requirement to give notice

  2.3.2  Non-discrimination

  2.3.3  The Margin of Appreciation

  2.3.4  Prescribed by law

  2.3.5  Necessary in a democratic society

  2.3.6  Proportionality—time, place, manner and tradition  Traditional parades

  2.3.7  Legitimate Aims  National Security or Public Safety  The prevention of Disorder or Crime

    (a)  The message of a parade

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

    (c)  The intentions of the parade organiser

    (d)  Whether there is to be a related protest

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

    (f)  The potential for disorder in areas other than the immediate vicinity

    (g)  The current political climate

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

    (i)  The likely impact of a parade on relationships within the community  The protection of health or morals  The protection of the rights and freedoms of others

  2.4  A Right to a Fair Hearing

  2.4.1  Are the Commission's judgements pronounced publicly?

  2.4.2  Is the Parades Commission "independent and impartial"?

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


  3.1  A Right to Freedom from Sectarian Harassment?

  3.2  Degrading Treatment

  3.3  Private and Family Life

  3.4  Peaceful Enjoyment of Possessions

  3.5  The Rights of Minorities

  3.6  A Right to be Consulted?


  4.1  Policing and Human Rights

  4.2  Human Rights and Public Order

  4.3  Policing Freedom of Assembly

  4.4  Policing Protests

  4.5  Use of Force by Police Officers

  4.6  Right to Life and the Use of Force

  4.7  Conclusions



  This report explores the relevance of international human rights standards, particularly European standards, to parades and protests and the policing of those events in Northern Ireland. If nothing else it reveals the complexity of the issue. There are few simple answers and on occasion case law generated by the European Convention on Human Rights (ECHR) appears contradictory. Human rights legislation will not provide easy solutions to political and community relations problems. However, human rights legislation should make a contribution to providing structures within which disputes can be justly resolved. We have tried to collate some provisional conclusions as to how these human rights standards impinge upon:

    —  freedom of assembly and expression;

    —  affected individuals and communities; and

    —  the policing of public events.

  The right to freedom of assembly, and effectively the right to march, is viewed as one of the foundations of democratic society and one not to be interpreted restrictively. Article 11 of the European Convention on Human Rights holds that "Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and join trade unions for the protection of his interests". No restrictions shall be placed on the exercise of these rights other than such are prescribed by law and are necessary in a democratic society:

    —  in the interests of national security or public safety;

    —  for the protection of disorder or crime;

    —  for the protection of health or morals;

    —  or for the protection of the rights and freedoms of others.

  This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.

  From international human rights standards, from legal cases referring to those standards (numbers in brackets refer to cases in appendix), and from international practice we can summarise the position as the following. It has to be remembered, however, that not all the cases are recent ones and not all were decided by the European Court of Human Rights.

Peaceful assembly includes the right to:

    —  peaceful protest (27, 42, 49)

    —  annoy or give offence to opponents (27, 42)

    —  parade (14, 19, 42)

    —  counter-demonstrate (42)

    —  a degree of protection from the state to exercise right to assembly (42)

    —  peaceful protest even if a counter protest threatens disorder (19)

    —  impede vehicular traffic and pedestrians (23)

Peaceful assembly does not include the right to:

    —  assemble for an indefinite length of time (47);

    —  assemble for purely social reasons (6);

    —  pass and re-pass in a public place (6);

    —  provoke others to violence (15, 49);

    —  hold a parade or protest if "hangers-on" threaten disorder (3);

    —  offend religious sensibilities (39, 54);

    —  offend public morality (36);

Assembly can reasonably be restricted if:

    —  there is a fear of public disorder, whether by those demonstrating or opponents (15, 14, 44);

    —  there is a recent history of violence at the location (41);

    —  there is unreasonable disruption to traffic or pedestrians (23, 47);

    —  the state feels it could not control disorder (14, 42);

    —  a ban is imposed for a limited time (14, 41, 44);

    —  a ban covers a defined geographical area (14, 41, 44);

    —  the event could take place in an alternative location (43); and

    —  the event could take place in an alternative manner (41).

  It is clear from the above lists that decisions over the right of assembly can be very difficult. A parade or protest is allowed to impede vehicular traffic and pedestrians but not cause unreasonable disruption. A parade or protest is allowed to annoy or offend opponents but not to provoke violence. If there is a parade and a counter protest how does one decide on where the threat of violence is coming from? What level of disorder should be tolerated before the state intervenes to restrict peoples' rights? These issues can only be resolved in the context of each case. However, from the cases we have looked at we can draw some basic conclusions:

  Decisions taken by the European Court have often given a wide "margin of appreciation" to national governments over freedom of assembly. In other words, the court has preferred to find in favour of the institutions of the state rather than the applicant who has complained of an infringement by the state. The Court has argued that the state is best placed to adjudicate over the local context. With the incorporation of the ECHR into domestic law under the Human Rights Act 1998 local courts could actively re-interpret decisions when a "wide margin of appreciation" has been relied upon.

  Freedom of assembly covers not only static meetings, but also public processions. The state has a positive obligation to enable peaceful demonstrations to take place and should take reasonable and appropriate measures to facilitate this.

  There is no absolute right to assemble or parade. While central to the democratic process, the state can place restrictions upon the right as long as those restrictions are seen to be proportionate in the circumstances.

  Local communities do not have a right to withhold consent to an assembly or parade. However, it could be argued that there is a responsibility on event organisers to create conditions in which an assembly might take place peacefully, and this could include liaising with local communities.

  Route restrictions have been held to be an infringement of the right to peaceful assembly. But restrictions can be made if they are proportionate to the legitimate aim being pursued. This includes securing public safety and the prevention of disorder.

  The likelihood of public disorder at an event has been a central issue for the European Court. It has frequently made adjudications that accept the decision made by the local courts in restricting freedom of assembly, particularly if it can be shown that violence is possible, or there has been a history of violence, from any party involved.

  The police have a dual role to protect people's rights and to adjudicate between those rights. They therefore have the responsibility to facilitate the exercise of human rights and the authority to restrict such practice. This is particularly pertinent with regard to issues related to freedom of assembly and maintaining public order.

  The police have the authority to prevent or to disperse any assemblies that might create unreasonable disruption, that threaten to disturb public order or that have the potential to provoke violence from others because they interfere with their rights and freedoms.

  In dispersing assemblies the police should always attempt to use peaceful means in the first instance. The police do have the right to use force to disperse assemblies but such force must always be both proportionate and necessary in the circumstances. Police should only use firearms to disperse violent demonstrations in so far as it is necessary for self-defence, to protect others from threat of death or serious injury, or to facilitate the arrest or prevent the escape of someone presenting such dangers.

  The police also have a positive obligation to protect life and they have a responsibility to ensure that all operations are prepared and planned with this in mind. Preparation may extend to the training given and equipment supplied to police officers.

  In relation to making decisions on peaceful assembly account should be taken of the right to a fair hearing.

  In relation to policing peaceful assembly account should be taken of the right not to be subjected to inhuman or degrading treatment or punishment.

  Issues over the protection of religious sensibilities and minority rights remain problematic in Northern Ireland.

  This report considers whether and how the following factors should influence decisions that involve restricting the right to freedom of assembly in Northen Ireland:

    —  the message of a parade;

    —  whether there are likely to be any "hangers-on";

    —  the intentions of the parade organiser;

    —  whether there is to be a related protest;

    —  any history of disorder connected with a particular parade or location;

    —  the potential for disorder in areas other than the immediate vicinity of a parade;

    —  the current political climate;

    —  evidence of any steps taken towards a peaceful resolution of the dispute; and

    —  the likely impact of the parade on relationships within the community.

  It reveals that, whilst the ECHR, and the cases that have been taken, offer some guidance to the problems around peaceful assembly in Northern Ireland, the lessons to be drawn are often inconclusive. Since the ECHR became fully incorporated into UK law on 2 October 2000, the "margin of appreciation" that existed in the cases we have examined will not be as significant. This opens the possibility of local jurisprudence developing around this issue which can give far greater guidance. The answer to "Who's right and whose rights?" may thus become clearer when cases are brought before Northern Ireland's courts. However, the courts cannot solve all the problems. A long-term resolution of the parades issue will depend on a greater understanding of rights and responsibilities, improved community relations and political accommodation.

121   A revised version of the substance of this memorandum has already been published by the Northern Ireland Human Rights Commission. Back

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Prepared 19 July 2001