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


Supplementary Memorandum submitted by the Northern Ireland Human Rights Commission


  Having established, as far as is possible, the parameters of the right to march and the right to counter-demonstrate, the question of what rights ought to be enjoyed by individuals in the communities through which parades pass must be addressed. Both Article 17 of the European Convention and Article 5 of the International Covenant (which are always exercised in conjunction with other substantive rights) make it clear that where freedoms collide they are to be balanced according to the particular facts of the case. This chapter, therefore, makes no attempt to balance the rights enumerated here with those discussed in the previous chapter.

Article 17, European Convention on Human Rights

  Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

Article 5, International Covenant on Civil and Political Rights

  (1)  Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognised herein or at their limitation to a greater extent than is provided for in the present Covenant.

  (2)  There shall be no restriction upon or derogation from any of the fundamental human rights recognised or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognise such rights or that it recognises them to a lesser extent.

3.1  A Right to Freedom from Sectarian Harassment?

  One of the rights affirmed by the parties to the Belfast (Good Friday) Agreement was that to freedom from sectarian harassment. Building on the paragraphs in above, and in particular the contrasting opinions in the case of Otto-Preminger-Institut (1994), it is clear that there is disagreement even within the European Court as to how much protection should be afforded to people's religious sensibilities. Certainly, there is no right not to be offended. But the concept of "harassment" suggests something more than mere offence.

  While the concept has little by way of international legal pedigree and discussion of its scope is therefore speculative, some guidance may be found in the EU Code of Practice on Sexual Harassment.[211] In this document, "harassment" is defined as conduct which is "unwanted, unreasonable and offensive to the recipient". It may also create "an intimidating, hostile or humiliating . . . environment for the recipient". Such conduct affects the dignity of the recipient, and moreover, it is for each individual to determine what behaviour is acceptable to them and what they regard as offensive. Conduct becomes harassment if it is persisted in once it has been made clear that it is regarded by the recipient as offensive.

  The rest of this chapter is confined to examination of some of the rights and principles already enshrined in international human rights law. These are, namely, "degrading treatment", the right to respect for private and family life, peaceful enjoyment of one's possessions, and the rights of minorities.

3.2  Degrading Treatment

Article 3, European Convention on Human Rights:

  No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 7, International Covenant on Civil and Political Rights:

  No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

  There is a high threshold to be overcome in order for treatment to be deemed "inhuman" or "degrading". In ECW v The Netherlands (1993), the UN's Human Rights Committee held that the applicant's conviction for violating the law, while protesting against the deployment of cruise missiles, did not raise an issue under Article 7, ICCPR.

  More significantly, in Smith and Grady v UK (2000), the applicants were two homosexuals who were dismissed form the British army. They argued that the army's policy, the investigation procedure, and their subsequent discharge was discriminatory treatment, contrary to Article 3, ECHR, based on crude stereotyping and prejudice, which denied and caused affront to their individuality and dignity. The Court stated that

    Ill treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of that minimum is relative and depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects...Treatment may be considered degrading if it is such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance. Moreover, it is sufficient if the victim is humiliated in his or her own eyes.

  The Court did not deny that treatment "grounded upon a predisposed bias on the part of a heterosexual majority against a homosexual minority" could, in principle, fall within the scope of Article 3, but the Court ruled in this case that the minimum level of severity had not been met, and there was no violation of Article 3 (see further 4.5).

  Given this minimum level, the application of this Article to the parades dispute in Northern Ireland is perhaps tenuous. In relation to 3.1 above, however, it would certainly seem that "harassment" involves a lower threshold than "degrading treatment".

3.3  Private and Family Life

  In addition to the potential for disorder, one of the factors which the Parades Commission must have regard to when deciding whether or not to impose conditions on a parade is the level of disruption likely to be caused to the life of the community. Such disruption might be argued to infringe upon the right of individuals to respect for their private and family life.

Article 8, European Convention on Human Rights:

  (1)  Everyone has the right to respect for his private and family life, his home and his correspondence.

  (2)  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 17, International Covenant on Civil and Political Rights:

  (1)  No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation.

  (2)  Everyone has the right to protection of the law against such interference or attacks.

  "Private life" covers the physical and moral integrity of the person. Moreover, the right to private and family life has been held (in X and Y v The Netherlands (1985)) not merely to compel the State to abstain from arbitrary interference with the individual, but also to include a positive obligation to ensure effective respect for private or family life, which may extend even in the sphere of relations between individuals.

  From a different angle, in Friedl v Austria (1995), the police had photographed a participant in a sit-in demonstration, confirmed his identify, and compiled a record of his details. They did so only after requesting that the demonstrators disperse, and the European Commission held there to be no violation of Article 8. While this fairly mild response by the police did not constitute an infringement of Article 8, there may well be arguments to be made under this provision concerning the proportionality of any policing operation which imposes a virtual curfew on a local community (see further chapter 4).

  Furthermore, one of the purposes enumerated in Article 8 of the Convention for which it is permissible to interfere with the exercise of that right is for the economic well-being of the country. In G and E v Norway (1983), the Commission made no attempt to ascertain the exact extent and nature of the interference with the applicants' rights under Article 8(1), but rather, considered only the necessity of the State's siting of the hydro-electric power station in the particular location. Finding that this necessity was borne out in the interests of the country's economic well-being, the applicant's complaint under Article 8 was declared manifestly ill-founded. In relation to parade disputes, this could, in theory be extended to mean that a court may dismiss any claimed violation of the right to respect for private and family life if the necessity of a policing operation to give effect to a determination by the Parades Commission, for example, is borne out in the interests of the country's economic well-being.

3.4  Peaceful enjoyment of possessions

Article 1 of Protocol 1, European Convention on Human Rights

  Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

  The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

  The right to peacefully enjoy one's possessions has been strictly construed by the European institutions so as to offer protection only to proprietary interests. In G and E v Norway (1983), a group of people from the minority Lapp community in Norway were protesting that their reindeer business would be damaged as a result of the building of a hydro-electric power plant. The European Commission found that the traditional use of vast territories for grazing, hunting and fishing, did not constitute a property right as protected by Article 1 of the First Protocol. In so far as parade disputes are concerned, individuals living in any local community are highly unlikely to be able to demonstrate a proprietary interest in the roads along which a parade might pass.

  The proprietary issue was also at the core of Chassagnou and Others v France (1999), a case which involved the balancing of "a right to hunt" with "a right to property". It concerned an attempt to compel small landowners to transfer the hunting rights over their land to a municipal hunting association. The European Court held that although the applicants had not been deprived of their right to use their property, to lease it or sell it, the compulsory transfer of hunting rights prevented them from making use of the right to hunt, which is directly linked to the right of property, as they saw fit. Any interference with the right to enjoy one's possessions must be proportionate and achieve a "fair balance" between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights.

  One case in which the jurisprudence could have been further developed, with particular significance for business owners in the vicinity of contentious parade routes, was Torgny Gustafsson v Sweden (1995). An owner of a restaurant refused to join the Hotel and Restaurant Workers Union (HRF) because he objected, on principle, to collective bargaining. As a result, HRF placed his restaurant under a blockade and declared a boycott against it. This ultimately led to deliveries to the restaurant being stopped and the restaurant closing. The European Commission declared admissible the applicant's complaints that the lack of State protection against such industrial action had violated, inter alia, his right to the peaceful enjoyment of his possessions (Article 1 of Protocol 1). However, because the Commission concluded that there had been a violation of the applicant's negative freedom of association under Article 11 (given, in particular, the financial consequences of the boycott), it considered it unnecessary to examine the applicant's complaint regarding the peaceful enjoyment of his possessions.

3.5  The Rights of Minorities

  In Northern Ireland, the question of whether there is a national minority is a vexed one. So too is the question of whether the protection afforded to minorities by international human rights standards also extends to self-defined minority groupings within a specific local community. The argument for such extension is perhaps strengthened by the loose definition of the term "community" in section 8(6) (b) and (c) of the Public Processions (Northern Ireland) Act 1998, which was approved by the Court of Appeal in In the Matter of An Application by Patricia Pelan for Judicial Review. Carswell LCJ stated that:

    We do not consider that it is necessary to confine the meaning of the word "community" in such a rigid manner. If it is construed as meaning a group of people in society, then in any passage where it is used the breadth of that group is determined by the context. So in paragraph (b) of section 8(6) the disruption referred to appears to be primarily (though perhaps not exclusively) that which may occur in the life of those members of the community who live in the area through which the procession is to pass. When one turns to paragraph (c), however, it seems to us quite possible to interpret the word "community" as referring to a wider group.[212]

  Notwithstanding these questions about the relevance of minority protection to communities affected by parades in Northern Ireland, it should be noted that the ECHR is concerned essentially with individual rights and "is not designed to deal with the issues which typically arise in societies which are deeply divided along communal lines or in which there are clearly identifiable majority and minority communities."[213] Article 1, ECHR obliges signatory States to secure to everyone within their jurisdiction the rights contained in Articles 1-18 of the Convention. In guaranteeing rights to "everyone", however, the Convention does not recognise specific rights for minorities.[214] In G and E v Norway (1983), the Commission concluded that:

    The Convention does not guarantee any specific rights to minorities, but disrespect of the particular life style of minorities may raise an issue under Article 8. There is no indication that the applicants have been treated in a manner which could be considered as discrimination, contrary to Article 14, nor have they been forced to abandon their lifestyle.[215]

  Article 27 of the ICCPR, however, goes further than the protection afforded to minorities by the ECHR. Furthermore, while not enforceable in Northern Ireland courts, the European Framework Convention on the Protection of National Minorities (recently ratified by both the British and Irish Governments) may be cited in support of any action.

Article 27  International Covenant on Civil and Political Rights:

  In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

Article 6  Framework Convention for the Protection of National Minorities:

  (1)  The Parties shall encourage a spirit of tolerance and intercultural dialogue and take effective measures to promote mutual respect and understanding and co-operation among all persons living on their territory, irrespective of those persons' ethnic, cultural, linguistic or religious identity, in particular in the fields of education, culture and the media.

  (2)  The Parties undertake to take appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity.

  In the case of Jouni E Lansman et al v Finland (1996), the UN Human Rights Committee found that the Finnish Central Forestry Board's plans to approve logging and the construction of roads in an area covering 3,000 hectares which was used by reindeer breeders of Sami ethnic origin did not constitute a violation of Article 27. In their reasoning, the Committee held that "measures that have a certain limited impact on the way of life and the livelihood of persons belonging to a minority will not necessarily amount to a denial of the rights under article 27"[216] although the cumulative impact of successive measures will be taken into account.[217]

3.6  A right to be consulted?

  In their deliberations in the La­nsman case, the Human Rights Committee gave serious consideration to the extent to which the minority community had effectively participated in the decision affecting them. This was important particularly where the consequences of any decision would create considerable, long-lasting or even permanent harm.[218] The fact that the consultation process was felt to be unsatisfactory by the applicants did not sway the Committee's decision. In terms of communities in Northern Ireland which are affected by parades, this would appear to be particularly relevant to the consultation process and evidence gathering procedure conducted by the Parades Commission. Because such a consultation process exists, mere dissatisfaction with it and any consequent decision cannot of itself constitute a violation of minority rights.

  Indeed, the possibility of "a right to be consulted" has already been given limited consideration in three judicial review proceedings involving the Parades Commission.[219] One of the three grounds for judicial review is that of procedural irregularity.[220] This draws upon the principle of audi alteram partem which provides that a person should not be denied the opportunity to make representations, or to a fair hearing, where they might be deemed to have a "legitimate expectation" of being heard. [221] It does not, however, require that the hearings be oral, as opportunity to make written representations might be sufficiently fair. The fact that a parade route has not been changed for a number of years, for example, may give rise to a legitimate expectation on the part of residents in the area that they be consulted before any changes are made.

  The Druid applicant in A.R.M. Chappell v UK (1987) contended that the Druids had had a reasonable expectation of consultation with the Commissioner of English Heritage before the making of any decision to ban the Druids and the festival from Stonehenge at the time of the midsummer solstice. The judge in the judicial review proceedings stated that he had dealt with the case on the basis of the fundamental rights of individuals including Article 9 of the Convention. In this light, he noted that the opportunity for consultation had been given more than once by the Commissioner and that the Commissioner could not be faulted for not offering further opportunities for consultation. The European Commission did not question the judge's findings on this account.

211   Commission Recommendation of 27 November 1991 on the protection of the dignity of women and men at work (92/131/EEC). Back

212   28 September 1998, p 18. Back

213   Northern Ireland Human Rights Commission- "A Bill of Rights-your questions answered". Back

214   G and E v Norway. Back

215   At p 38. Back

216   Para 10.3. Back

217   Para 10.7. Back

218   Paras 6.14 and 7.15. Back

219   In the Matter of an Application by Kevin Farrell for Judicial Review (regarding Parkmount Junior Orange Lodge No 150 parade on 29 May 1999); In the Matter of an Application by Joseph McConnell for Judicial Review (regarding the section of "The Long March" in Lurgan on 3 July 1999); and In the Matter of an Application by Rachel Campbell for Judicial Review (regarding the AOH Pipe Band Glassdrumman and Holy Cross Accordian Band parade in Kilkeel on 17 March 2000). Back

220   per Lord Diplock in Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374. Back

221   per Lord Denning in Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149; Cinnamond v British Airports Authority [1980] 1 WLR 582. Back

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