Supplementary Memorandum submitted by the Northern
Ireland Human Rights Commission
2. PARADES AND
A RIGHTS FRAMEWORK
The Parades Commission, established under the
Public Processions Northern Ireland Act 1998, has declared itself
to be born out of a failure to reach local accommodation over
parade disputes in a number of areas. Such failure, as we emphasised
above, is best understood against a historical backdrop of political
uncertainty and agitation. It is the legacy of an embittered and
sometimes violent past, often reduced to a zero-sum game in which
the public expression of one's own identity is perceived by others
to threaten theirs. The Guidelines published by the Parades Commission
detail the principles that the Commission will consider when deciding
whether or not to impose restrictions on a parade.
The Parades Commission Guidelines:
The Guidelines are based on the fundamental
premise that the rights to peaceful assembly and freedom of expression
as outlined in the European Convention on Human Rights are important
rights to be enjoyed equally by all. The Commission will not therefore
seek to raise obstacles to the exercise of these rights unless
there are compelling arguments to do so.
In this chapter we examine the source and content
of these rights as well as the arguments which have been made
concerning their scope.
2.1 The Right to Freedom of Peaceful Assembly
In international human rights law, the right
to freedom of peaceful assembly is guaranteed principally by Article
11 of the European Convention on Human Rights (ECHR) and Article
21 of the International Covenant on Civil and Political Rights
The right to freedom of peaceful assembly has
been recognised as one of the foundations of democratic society,
and one not to be interpreted restrictively.
It can be exercised by both individuals and corporate bodies.
The introductory section highlighted the evanescent distinction
between public assembly and public expression. Thus, in many cases,
consideration of the right to freedom of assembly cannot logically
be separated from that of the right to freedom of expression (Article
10, ECHR and Article 19(2) and (3), ICCPR) and also the right
to freedom of religion (Article 9, ECHR and Article 18, ICCPR).
Indeed, where issues under all three rights are raised, the United
Nations Human Rights Committee and both the European Court and
Commission have elected to explore the substantive issues under
the Article most relevant to the facts, and to treat the others
Article 11, European Convention on Human Rights:
(1) 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
(2) No restrictions 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. 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.
Article 21, International Covenant on Civil and
The right of peaceful assembly shall be recognised.
No restrictions may be placed on the exercise of this right other
than those imposed in conformity with the law and which are necessary
in a democratic society in the interests of national security
or public safety, public order, the protection of public health
or morals or the protection of the rights and freedoms of others.
As far as parades are concerned, freedom of
thought and freedom of expression are subsidiary to freedom of
assembly and do not require separate consideration.
Furthermore, the European Court has explicitly stated that the
Convention is to be read as a whole, and that therefore the application
of any individual Article must be in harmony with the overall
logic of the Convention.
(1) Everyone has the right to freedom of
expression. This right shall include freedom to hold opinions
and receive and impart information and ideas without interference
by public authority and regardless of frontiers. This article
shall not prevent the State from requiring the licensing of broadcasting,
television or cinema enterprises.
(2) The exercise of these freedoms, since
it carries with it duties and responsibilities, may be subject
to such formalities, conditions, restrictions or penalties as
are prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity or
public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the reputation
or rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and impartiality
of the judiciary.
Article 19(2) and (3), International Covenant
on Civil and Political Rights:
(2) Everyone shall have the right to freedom
of expression, this right shall include freedom to seek, receive
and impart information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form of art, or
through any other media of his choice.
(3) The exercise of the rights provided
for in paragraph 2 of this article carries with it special duties
and responsibilities. It may therefore be subject to certain restrictions,
but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations
(b) For the protection of national security
or of public order, of public health or morals.
Before examining how these rights have been
interpreted in the international courtsand thus, how they
might be applied in cases involving parades in Northern Irelandit
is appropriate, briefly, to outline the principles developed in
domestic courts regarding the right to peaceful assembly. The
following section, therefore, sketches the common law position
in the UK prior to incorporation of the European Convention.
2.1.1 Freedom of assembly in Domestic Law
In the English case of Director of Public
Prosecution v Jones (Margaret) and Another (1999), Lord Irvine
(in the majority) argued that UK law recognised the highway to
be a public place on which all manner of activities may occur:
Provided these activities are reasonable, do
not involve the commission of a public or private nuisance, and
do not amount to an obstruction of the highway unreasonably impeding
the primary right of the general public to pass and repass, they
should not constitute trespass. Subject to these qualifications,
therefore, there would be a public right of peaceful assembly
on the public highway....
. . . Provided an assembly is reasonable and
non-obstructive, taking into account its size duration and the
nature of the highway on which it takes place, it is irrelevant
whether it is premeditated or spontaneous: what matters is its
objective nature....These judgements are ever ones of fact and
degree for the court of trial.
Arguably, Lord Irvine's conclusions go beyond
even the protection afforded to freedom of assembly by Article
11 of the European Convention (see, in particular, the Anderson
case in 2.2.2 below regarding the right to pass and re-pass).
Certainly, his "unreasonable user" test is broader than
that relied upon in the Divisional Court and in the dissenting
judgements of Lord Slynn and Lord Hope. In their minority submissions,
they argue that the public right of assembly has been, and ought
to be, restricted merely to activities incidental or ancillary
to the right of passage. Any activity which exceeds these limits
(even if peaceful and non-obstructive) amounts to trespass. They
considered that this rule was not unduly restrictive if applied
pragmatically, for in practice, other uses of the highway are
frequently tolerated. Lord Irvine, though, asserts that "mere
toleration does not secure a fundamental right".
Unless the common law recognises that assembly
on the public highway may be lawful, the right contained in Article
11(1) of the Convention is denied.
Lord Clyde, while also in the majority, advocates
a slightly more cautious approach. Nevertheless, he notes the
express limitations on the right of assembly laid down in Article
11 of the European Convention, and gives the following example
of reasonable usage:
. . . A road may properly be used for the purposes
of a procession. It would still be a perfectly proper use of the
road if the procession was intended to serve some particular purpose,
such as commemorating some particular event or achievement. And
if an individual may properly stop at a point on the road for
any lawful purpose, so too should a group of people be entitled
to do so. All such activities seem to me to be subsidiary to the
use for passage . . .
Thus, following the majority decision in Jones,
it would certainly be tenable to suggest that the common law position
in the UK relating to freedom of assembly has evolved so as to
be entirely consonant with a rights based approach. The question
of what constitutes an "unreasonable use" of the highway
will be similar to the questions posed in any given situation
by Article 11 of the Conventiondoes that use threaten national
security, public safety, public order, the rights and freedoms
of others etc? In the words of Lord Clyde:
The test then is not one which can be defined
in general terms but has to depend upon the circumstances as a
matter of degree. It requires a careful assessment of the nature
and extent of the activity in question.
Local courts must now look to the case law of
the European Court of Human Rights for guidance when making this
assessment, and the remainder of this chapter therefore focuses
on these European cases. Just as Article 11 of the Convention
is divided into two parts, analysis of the key issues here can
be similarly arranged. The first section identifies the sorts
of demonstration which fall within the definitional confines of
"peaceful assembly". This is followed by an examination
of the circumstances in which "peaceful assembly" can
reasonably be restricted.
2.2 "Peaceful Assembly"
The right to freedom of assembly as secured
by the ECHR and ICCPR extends only to "peaceful assembly".
Likewise, the American Convention on Human Rights only covers
"peaceful assembly without arms", as does section 17
of the Bill of Rights Chapter in the South African Constitution
1996. While the African Charter on Human and Peoples' Rights and
Duties does not so limit what it terms "the right to assembly
freely with others", the preamble insists that "the
enjoyment of rights and freedoms also implies the performance
of duties on the part of everyone".
Article 15, American Convention on Human Rights:
The right of peaceful assembly, without arms,
No restrictions may be placed on the exercise
of this right other than those imposed in conformity with the
law and necessary in a democratic society in the interest of national
security, public safety or public order, or to protect public
health or morals or the rights or freedoms of others.
Section 17 of Chapter 2 (Bill of Rights), South
Everyone has the right, peacefully and unarmed,
to assemble, to demonstrate, to picket and to present petitions.
Article 11, African Charter on Human and Peoples'
Rights and Duties:
Every individual shall have the right to assembly
freely with others.
The exercise of this right shall be subject
only to necessary restrictions provided for by law in particular,
those enacted in the interest of national security, the safety,
health, ethics and rights and freedoms of others.
The European Court and Commission have attempted
to delimit the boundaries of "peaceful" behaviour. By
and large, "peaceful" has been held to include behaviour
that may annoy or insult others, but to exclude behaviour which
actually obstructs the activities of others, or which has the
potential to incite others to violence (see further the English
case of Redmond-Bate in 220.127.116.11(d)). It is clearly a fine line
to tread. Moreover, an illegal assembly (eg one that has not satisfied
a statutory obligation to notify the relevant authorities) may
be regarded as a "peaceful" assembly, yet, as we shall
see in the later part of this chapter, even legal peaceful assemblies
can reasonably be restricted in certain circumstances.
In the case of Plattform "Ärzte
fur das Leben" v Austria (1988), which concerned a procession
and open-air service organised by anti-abortion protesters, the
European Court held that a peaceful demonstration "may annoy
or give offence to persons opposed to the ideas or claims that
it is seeking to promote".
In G v The Federal Republic of Germany (1989), however,
the European Commission stated that "peaceful assembly"
does not cover a demonstration where the organisers and participants
have violent intentions which result in public disorder.
The latter case concerned an illegal demonstration
(notice had not been given to the German authorities) in front
of the US military barracks in support of nuclear disarmament.
Demonstrators blocked the road for 12 minutes every hour, but
the sit-in still fell within the accepted definition of a "peaceful
Two "freedom of expression" cases
also shed light on what is likely to be considered "peaceful"
with regard to freedom of assembly. In the case of Steel and
others v UK (1998), the first and second applicants, who were
involved in protests against a grouse shoot and an extension to
the M11 respectively, physically impeded the activities of which
they disapproved. The European Court found that the police had
been justified in fearing that this behaviour, if persisted in,
might provoke others to violence.
In contrast, the actions of the remaining applicants
in Steel (who handed out leaflets and displayed banners
to protest against the sale of arms outside a conference on fighter
helicopters) was held to be "entirely peaceful". The
Court found no indication that these protesters "significantly
obstructed or attempted to obstruct those attending the conference,
or took any other action likely to provoke these others to violence"their
arrest and subsequent detention had violated their right
to peaceful assembly.
In another Article 10 case, Hashman and Harrap
v UK (1999), two hunt saboteurs had tried to distract hounds
by shouting and blowing a hunting horn. While the Crown Court
had previously ruled that such actions had not resulted in "violence
or threats of violence", it is less clear whether the European
Court would have described the saboteurs' protest as peaceful,
for it openly acknowledged that the protest had impeded the activities
of others. Judge Baka, although dissenting on the question of
whether the restriction was "prescribed by law", argued
that the protesters were "avowed hunt saboteurs and as such
they deliberately tried to seriously disturb other people's lawfully
organised pleasure and leisure activity or even make it impossible".
Whilst an explicit definition of "assembly"
has not been forthcoming, its interpretation has been qualified
in some important respects. The right to freedom of assembly can
only be relied upon by those assembling for a specific purpose.
In Anderson and others v UK (1997)a case concerning
the prohibition of nine individuals from entering a shopping mallthe
European Commission concluded that there is no indication "that
freedom of assembly is intended to guarantee a right to pass and
re-pass in public places, or to assemble for purely social purposes
anywhere one wishes." Article 11 was held not to apply to
the circumstances of the case because the applicants had no history
of using the shopping centre for "any form of organised assembly
In a similar vein, the Commission's decision
to deal with the issues in both W.G. v Austria (1992) and
G.S. v Austria (1992) "under the more general guarantee
of Article 10" (ie freedom of expression) suggests that an
"assembly" must be organised so as to enable the participation
of a number of people for a particular purpose. The Commission
thought it unnecessary to consider whether setting up tables from
which to distribute information to passers-by, even with the intention
of motivating persons present to take future common action, amounted
to an "assembly" within the meaning of Article 11.
Furthermore, even if purpose is established,
an assembled group still may not conform to the notion of "assembly"
as protected by the international provisions on freedom of assembly.
There is the secondary question of whether an "assembly"
must be organised and have a finite number of participants. This
was partially addressed in the case of Kivenmaa v Finland
(1994) that came before the United Nations' Human Rights Committee.
It concerned twenty-five members of an organisation, summoned
by Ms Kivenmaa for the purpose of distributing leaflets and displaying
a banner to protest against the human rights record of a visiting
foreign head of State. The 25, however, merely formed part of
a larger crowd of demonstrators, and the Human Rights Committee
had to determine whether their gathering constituted a "public
meeting" which should have been notified to the authorities.
Ms Kivenmaa argued that it was not a public
meeting but rather, simply, an exercise of her right to freedom
of expression that did not require prior notification. The Committee
agreed, concluding that a "gathering of several individuals
at the site of the welcoming ceremonies for a foreign head of
State on an official visit, publicly announced in advance by the
State party authorities, cannot be regarded as a demonstration".
Therefore, Ms. Kivenmaa's subsequent prosecution for holding a
"public meeting" without prior notification had been
in violation of both articles 19 and 21 of the Covenant (even
given that Finnish law requires only six hours notice compared,
for example, with the 14 days required for parade related protests
in Northern Ireland).
A dissenting member of the committee pursued
the issue further and cited the following commentary on Article
The term "assembly" is not defined
but rather presumed in the Covenant. Therefore, it must be interpreted
in conformity with the customary, generally accepted meaning in
national legal systems, taking into account the object and purpose
of this traditional right. It is beyond doubt that not every assembly
of individuals requires special protection. Rather, only intentional,
temporary gatherings of several persons for a specific purpose
are afforded the protection of freedom of assembly.
2.2.3 A Right to March?
In Christians Against Racism and Fascism
(CARAF) (1980), the European Commission accepted "that
the freedom of peaceful assembly covers not only static meetings,
but also public processions."
This understanding has been relied upon in a number of cases coming
before the European Commission and Court, including Plattform
Ärzte (1988) and Ezelin v France (1991). In the
latter, the Commission stated that the right to freedom of assembly
"is exercised in particular by persons taking part in public
2.2.4 A right to counter-demonstrate?
The Public Processions (Northern Ireland) Act
1998 defines "protest meeting" as a meeting held in
the vicinity of, and at about the same time as, a procession "the
purpose (or one of the purposes) of which is to demonstrate opposition
to the holding of that procession on that route or proposed route."
The right to take part in such a meeting is,
de facto, no different from the right to participate in a parade.
However, in Plattform Ärzte (1988), the European Court
noted that the right to counter-demonstrate must not be allowed
to inhibit the exercise of the right to demonstrate (see also
18.104.22.168(d) and 4.3 below). The State therefore has a duty to take
reasonable and appropriate measures to enable lawful demonstrations
to take place without participants fearing that they will be subjected
to physical violence by their opponents. In this case, participants
in the counter-demonstration (which had been prohibited) threw
clumps of grass and shouted down a recitation of the rosary. The
police, though, did not attempt to stop this behaviour, and argued
that it had neither caused serious damage nor actually prevented
the procession and religious service from taking place. The Court
held that the police had acted reasonably in the circumstances.
It could plausibly be argued that it was unnecessary
for the Court in Plattform Ärzte to make such a statement.
If a counter-demonstration becomes violent then the counter-demonstrators
have themselves already overstepped the legitimate exercise of
the right to freedom of peaceful assembly and should thus forfeit
the protection offered by that right.
Furthermore, this is one area in which the margin
of appreciation has previously allowed contracting States a wide
discretion. The Court added that the State "cannot guarantee
this absolutely and they have a wide discretion in the choice
of the means to be used".
Just as the adjective "peaceful" defies easy definition,
the level of violence which ought to be tolerated (if any), and
what should be regarded as "inhibitive", has not been
prescribed but rather left to police discretion.
Thus, the Austrian government in Chorherr
v Austria (1993) successfully argued (inter alia) that the
arrest and detention of a demonstrator who, at a military ceremony,
had worn a large banner on his rucksack (apparently blocking the
view of some spectators) and distributed leaflets calling for
a referendum on the sale of fighter aircraft, was merely in satisfaction
of this positive duty to enable legal demonstrations to take place
without interference. Interestingly, in Chorherr the European
Commission had previously ruledand three dissenting judges
in the Court followed the Commission's reasoningthat the
interference was disproportionate given that the impairment of
the spectators' view could have been remedied by less stringent
(see further 2.3.6, 22.214.171.124 and chapter 4).
2.3 Restricting the right to freedom of peaceful
Already, it is clear that neither the right
to freedom of expression, nor that of assembly, are absolute rights.
As can be seen, Articles 10(2) and 11(2) of the European Convention
and Articles 19(3) and 21 of the International Covenant outline
the conditions under which limitations may legitimately be imposed
on the exercise of these rights.
In the context of Northern Ireland, conditions
may be imposed on public processions by the Parades Commission,
the Police, and the Secretary of State under the Public Processions
Northern Ireland Act 1998. Related protests which do not take
the form of a parade may be restricted by the Police or the Secretary
of State under the Public Order Northern Ireland Order 1987. Restrictions
upon the exercise of the right to freedom of peaceful assembly
do not, though, only include sanctions by way of prior restraint
but also subsequent punitive measures such as fines and convictions
(see further 126.96.36.199(d)).
2.3.1 The requirement to give notice
The Human Rights Committee has held that a requirement
to give notice is compatible with the permitted limitations laid
down in Article 21, ICCPR.
Similarly, the European Commission in Rassemblement Jurassien
(1979) stated that:
subjection to an authorisation procedure does
not normally encroach upon the essence of the right. Such a procedure
is in keeping with the requirements of Article 11(1), if only
in order that the authorities may be in a position to ensure the
peaceful nature of the meeting, and accordingly does not as such
constitute interference with the exercise of the right.
The Commission's decisions in two more recent
cases support this stanceW.G. v Austria (1992) and
G.S. v Austria (1992). Each applicant had disseminated
information from tables set up, respectively, on a public road
(without obstructing traffic) and in a pedestrian area. While
they had notified the police, they had not obtained prior authorisation
from the local council as required by Road Traffic Regulations.
The Commission held that the requirement of prior authorisation
"could be regarded as justified" and that the fines
for violation of the regulations were not disproportionate to
the aim pursued.
Restrictions imposed on the exercise of rights
must not be discriminatory in effect. This is itself guaranteed
by Article 14 of the European Convention and Article 26 of the
Article 14, European Convention on Human Rights
The enjoyment of the rights and freedoms set
forth in this Convention shall be secured without discrimination
on any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with
a national minority, property, birth or other status.
Article 26, International Covenant on Civil and
All persons are equal before the law and are
entitled without any discrimination to the equal protection of
the law. In this respect, the law shall prohibit any discrimination
and guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin,
property, birth or other status.
This right is always exercised in conjunction
with one or more other substantive rights such as that to freedom
of assembly, although Protocol 12 of the Convention (not yet ratified
by the UK) will make the right into a freestanding one. Furthermore,
while the Convention does not guarantee specific rights to minorities
(see 3.5 below), Article 14 does secure the enjoyment of the Convention
rights and freedoms without discrimination on any ground, including
association with a national minority.
In Pendragon v UK (1998), the prevention
of a Druidic celebration of the summer solstice at Stonehenge
was held not to discriminate against the Druidsdespite
the particular significance of both the time and place to their
beliefson the basis that there was no evidence that Druids
were treated in any way differently from any other groups of people
wishing or attempting to observe the summer solstice in the vicinity
of Stonehenge. This is precisely the same argument as was successfully
advanced in the English case of R v Tunbridge Wells Borough
Council and another ex parte Gipsy Council for Education Culture
Welfare & Civil Rights and another (2000), albeit prior
to the Human Rights Act 1998 coming into force:
Whilst the Order may disproportionately impact
on gypsies and travellers in respect of this event, it is not
in itself discriminatory in that it applies equally to any person
trespassing or intending to trespass within the area to which
the Order applies . . .
In CARAF (1980), the Commission held
that the provision in the Public Order Act 1936 which enables
a ban to be placed on all processions or on any class of public
processions in a certain area during a specified time was "designed
to ensure an even application of the law in that it aims at the
exclusion of any possibility for the taking of arbitrary measures
against a particular demonstration.
Furthermore, the Commission acceded to the judgement of the national
authorities when addressing the question of whether the exemption
from the ban of processions "customarily held within the
Metropolitan Police District" was discriminatory. The Commission
assumed that the competent national authorities must have been
"able to foresee that none of the customary processions in
London during the relevant time were likely to cause trouble .
There is no similar exemption clause for processions
"customarily held" in Northern Ireland. However, the
powers under the 1936 Act are similar to the Secretary of State's
powers contained in sections 11(2) and 11(3) of the Public Processions
Northern Ireland Act 1998.
If the criteria enumerated in those sections are satisfied, the
Secretary of State may prohibit the holding of all public processions
in any "area"
for up to 28 days. Such a ban might be argued to be discriminatory
given that in the financial year 1999-2000 the ratio of parades
classified as loyalist to those classified as nationalist was
Again, though, because of the present conjunctive nature of Article
14, the European Commission appears to have considered the proportionality
of the restrictions when deciding whether or not they were discriminatory.
Thus, if the restrictions can be shown to be proportionate to
the aim being pursued by the Secretary of State (eg for the prevention
of disorder), then they are less likely to be deemed discriminatory.
Importantly, the United Nations Human Rights
Committee has stated that Article 26 of the ICCPR does not provide
a right to see another person prosecuted, nor does the absence
of prosecution against one person render the prosecution of another
person involved in the same offence necessarily discriminatory,
in the absence of specific circumstances revealing a deliberate
policy of unequal treatment before the law.
2.3.3 The Margin of Appreciation
In determining the necessity of a restriction,
the European Court and Commission have alwys accorded a certain
margin of appreciation to the national authorities. The margin
has been said to extend in particular to the choice of reasonable
and appropriate means to be used by the authorities to ensure
that lawful manifestations can take place peacefully.
In the vast majority of cases, the European Commission and Court
have held that the restrictions imposed did fall within this margin,
and therefore, did not breach the Convention. In other words,
the European Court has been reluctant to override domestic courts
which are viewed as better placed to understand the context in
which decisions restricting particular rights have been made.
Moreover, a wider margin has been conferred on the national authorities
when dealing with politically sensitive matters,
as was the basis of the decision in Rai, Allmond & Negotiate
In the circumstances of Northern Ireland, where
sensitive and complex issues arise as to the causes of the conflict
and any possible solutions, the Government can be considered in
its general policy of banning demonstrations concerning the subject
to be pursuing the aim of preventing disorder and protecting the
rights and freedoms of others.
However, following incorporation of the ECHR
into domestic law through the Human Rights Act 1998 (which came
fully into force on 2 October 2000), the scope of the domestic
courts' review of any restrictions imposed on Convention rights
by, for example, the Parades Commission, may be significantly
greater than that exercised by the European Court. The margin
of appreciation is a fundamentally international doctrine,
and the Northern Ireland courts could, in theory, scrutinise the
necessity of any impugned measure much more closely. Indeed, rather
than blindly applying the European jurisprudence, the Courts here
could actively re-interpret those cases in which the decision
relied heavily upon the wide margin granted to national authorities
(eg Chorherr v Austria (1993) and Rai, Allmond and Negotiate
2.3.4 Prescribed by law
Any restrictions must be "prescribed by
law". The test here is whether the impugned measure has basis
in domestic law, and this itself must be formulated with sufficient
precision to enable the individualif need be, with appropriate
adviceto foresee, to a degree that is reasonable in the
circumstances, the consequences which a given action may entail.
In Hashman and Harrup v UK (1999) the order by which the
hunt saboteurs were bound over to keep the peace and not to behave
contra bonos mores (ie in a way which is wrong rather than
right, in the judgement of the majority of fellow citizens) was
held to violate Article 10, ECHR because it was not sufficiently
precise so as to be "prescribed by law".
That said, in Northern Ireland the most frequently
invoked basis for interfering with the rights of the individual
under the common law is action taken to prevent a breach of the
peace. While this does not constitute a criminal offence, the
European Court has held it to be sufficiently defined so as to
be "prescribed by law" within the terms of the Convention.
2.3.5 "Necessary in a democratic society"
Restrictions must also be "necessary in
a democratic society". "Necessary" means that any
restrictions imposed upon the exercise of the right must correspond
to a "pressing social need", and, in particular, must
be proportionate to the legitimate aim being pursued by the authorities
(see 2.3.6 below). In assessing whether the need was pressing,
the Court in Ahmed and Others v UK (2000) looked at the
extent of the national debate about the issue. In this case, the
regulation of the political activities of civil servants had been
examined in detail by the Widdecombe Committee which had concluded
that regulation was necessary. It is likely that a court examining
the need for the regulation of parades in Northern Ireland would
take similar account of the North Report and any subsequent review
of the Parades Commission.
2.3.6 Proportionalitytime, place, manner
It is sometimes said that even though there
may be a right to assembleeven a right to marchthis
in no way implies a right to assemble or march in a particular
place, or along a particular route, at a particular time. Strictly
speaking, this interpretation is incorrect. Route restrictions
have been held to be an infringement of the right to peaceful
assembly, for the right itself has not been interpreted restrictively
(see 2.1 above).
Any restrictions upon the right to freedom of
peaceful assembly must, however, be proportionate to the legitimate
aim being pursued (see 2.3.7 below). Hadden and Donnelly argue
that the authorities have to "give proper consideration to
competing rights and interests involved" and that the measures
the authorities adopt should be "reasonably proportional
in relation to those rights and interests and the risks of public
Thus, in CARAF (1980), when considering whether a two month ban
on all parades within the London Police District was proportionate,
the Commission considered that the applicant's right to freedom
of assembly had not been violated as the organisation:
could have held its procession two
days after the date applied for,
could have held it on the date applied
for anywhere outside the district,
or could have held a meeting in another
form other than a public procession on that date and within the
Similarly, in Rai, Allmond and "Negotiate
Now" (1995), the Department of National Heritage's refusal
to grant permission for a demonstration in Trafalgar Square did
amount to an infringement of the organisation's right to freedom
of peaceful assembly. This infringement, however, was held to
be a proportionate one, and thus did not violate the organiser's
Convention rights. The Commission noted that "the refusal
of permission did not amount to a blanket prohibition on the holding
of the applicants' rally but only prevented the use of a high
profile location (other venues being available in central London)
. . ."
The Parades Commission's Guidelines echo
this proportionality test, stating in relation to disruption to
the life of the community and to the impact on relationships within
the community respectively:
The question the Commission must
therefore address is whether the level of disruption caused by
the exercise of the right to assembly is disproportionate to the
significance of the procession to those participating, or to the
community they claim to represent (para 3.1)
Where residents and parade organisers
are in conflict over proposals for parades to pass through individual
areas, the Commission will take account [inter alia] of
the . . .purpose of the parade and whether the route is necessary
or proportional to that; the availability of alternative routes
which are not controversial (para. 4.2)
188.8.131.52 Traditional Parades
The significance and purpose of parades is often
framed as being a function of their perceived traditionality.
As required by section 8(6)(e) of the Public Processions Northern
Ireland Act 1998, the Parades Commission must have regard to the
desirability of allowing a parade which has been customarily held
on that route to continue to be allowed to do so. In the European
case law, the importance attached by participants to the concept
of tradition has been one of the factors taken into account when
assessing the proportionality of any interference with the exercise
of the rights to freedom of assembly and expression. It has not,
though, been an overriding factor.
In both A.R.M Chappel v UK (1987) and
Pendragon v UK (1998), the Druids claimed that their being
prevented from celebrating the midsummer solstice at Stonehenge
was a violation of their rights (under Articles 9 and 11, and
articles 9, 10, 11 and 14 respectively) since they had performed
a religious ceremony at Stonehenge at sunrise on the longest day
of the year for many thousands of years. Moreover, Stonehenge
was thought to have been built by the Druids some 4,500 years
The European Commission held that the public
order implications of large numbers of visitors arriving at Stonehenge
outweighed the perceived significance of the summer solstice for
Druids. Indeed, the fact that no alternative venue could be found,
because of the unique historical and archaeological importance
of Stonehenge, did not work in the Druids' favour, but rather
led to the conclusion that closing the Stonehenge area over the
immediate period of the solstice was the only and thus the least
stringent means of preventing disorder, and was thus proportionate.
2.3.7 Legitimate Aims
The aims which may legitimately be pursued by
the authorities in restricting the exercise of any right are listed
in the particular Article securing that right. In terms of freedom
of assembly, the Convention and Covenant are virtually identical.
The exercise of the right can reasonably be restricted for the
The interest of national security
of public safety,
The prevention of disorder or crime,
The protection of health or morals,
The protection of the rights and
freedoms of others.
These are examined in greater detail below.
184.108.40.206 National Security or Public Safety
Clearly, in considering parades, public safety
is a more pertinent consideration than national security. There
is a significant overlap between public safety considerations
and those concerning the maintenance of public order, and no cases
have been decided by the European Court solely on the grounds
of public safety. Conceivably, though, should the Secretary of
State consider it "necessary in the public interest"
to invoke his/her power to prohibit public processions as outlined
by section 11 of the Public Processions Act, the aim of ensuring
public safety may become more significant. Public safety arguments
are also likely to be advanced where a large parade is notified
to take place in a confined area.
The aim of protecting public safety may prove
difficult to counter. In the English case of R v Tunbridge
Wells Borough Council and another ex parte Gipsy Council for Education
Culture Welfare & Civil Rights and another (2000) the
Divisional Court readily accepted the "official" assessment
of the threat to public safety should the Horsmonden Horse Fair
be allowed to take place, despite the serious implications for
the rights of the Romany Gypsies as protected by Articles 8 and
11 of the Convention. David Pannick QC stated:
It is quite plain, in my judgement, that the
primary concern of the Borough Council (and indeed of the Secretary
of State) is with safety implications . . .
. . . Articles eight and 11 of the Convention
recognise that a balance must be struck between the interests
of the individualin this case, the interests of the Romany
communityand the interests of society generally. This Court
sees no reason, in the circumstances of this case, to interfere
on public law grounds with the judgement of the Borough Council
and the Secretary of State in the light of the advice from the
Chief Constable that the balance has to be struck by reference
to the making of this order, and that is particularly so in the
light of the express consideration given by Mr Baxter on behalf
of the Secretary of State to whether such an order is necessary
220.127.116.11 The Prevention of Disorder or Crime
We have already sketched the boundaries of the
right to peaceful assembly. Paradoxically though, peaceful assembly
can be legitimately restricted on grounds of disorder. In G
v The Federal Republic of Germany (1989), "disorder"
was synonymous with obstruction. The Commission upheld the applicant's
conviction for participating in a sit-in protest on a public road.
In G. and E. v Norway (1983), the Commission stated that
"a demonstration by setting up a tent for several days in
an area open to public traffic must necessarily cause disorder."
The prevention of "acoustic terric"the use of
megaphones, whistles, rattles and saucepan lidsin S.
v Austria (1990) was justified (inter alia) on grounds
of disorder. And in Chorherr v Austria (1993), the European
Courtwhilst relying heavily on the doctrine of the margin
of appreciationconcluded that the behaviour of a demonstrator
who at a military ceremony blocked the view of some spectators
with his banner was also disorderly.
What is considered to be "disorderly"
thus varies according to the situation, and is contingent upon
a number of factors. As far as parades in Nothern Ireland are
concerned, the relevance of the following aspects falls to be
(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 of a parade;
(g) the current political climate;
(h) evidence of any steps taken toward a peaceful
resolution of the dispute; and
(i) the likely impact of the parade on relationships
within the community.
(a) The Message
Restrictions based entirely on the subject matter
or message of a demonstration (both verbal and symbolic) risk
confusing "disorder" with "controversy". Thus,
while the right to freedom of expression as set down in section
17 of the Bill of Rights Chapter of the South African Constitution
(ii) incitement of imminent violence, or
(iii) advocacy of hatred that is based on
race, ethnicity, gender or religion and that constitutes incitement
to cause harm,
and Article 20(2), ICCPR states that "[a]ny
advocacy of national, racial or religious hatred that constitutes
incitement to discrimination, hostility or violence shall be prohibited
by law", the ECHR does not attempt such proscription. Article
10, ECHR stresses that the exercise of the right to freedom of
expression carries with it special duties and responsibilities
(as does Article 19, ICCPR), but the European Court has severally
restated the principle that freedom of expression, subject to
. . . is applicable 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".
In Incal v Turkey (1998), the applicant's
conviction for helping to prepare a political leaflet which urged
the population of Kurdish origins to band together and "set
up Neighbourhood Committees based on the people's own strength"
was held by the European Court to have violated the applicant's
freedom of expression under Article 10. Read in context, the leaflet
could not be taken as incitement to the use of violence, hostility
or hatred between citizens.
Moreover, the Court stated that the "limits of permissible
criticism are wider with regard to the government than in relation
to a private citizen."
The First Amendment to the US Constitution
Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress
In America, judicial interpretation of the First
Amendment to the Constitution has given even greater protection
to these fundamental rights. The First Amendment has been held
to protect symbolic speech such as the burning of the national
as well as the advocacy of racist theories as propagated by groups
such as the Ku Klux Klan.
The Supreme Court has adopted the "clear and present danger"
test as the principal determinant as to whether restrictions are
justified. This test means that freedom of assembly or expression
ought to be curtailed only when the risk of public disorder is
Of particular relevance to the parades issue
is the Skokie case.
The National Socialist Party of America (NSPA)a neo-Nazi
organisationplanned a parade and demonstration in the village
of Skokie which had a largely Jewish community. The local authority
imposed a ban on the NSPA's demonstration but, on appeal, the
Supreme Court held that the restrictions were unconstitutional
and the march and rally should be allowed despite being deeply
offensive to the residents of the village. While this case is
often cited in support of an absolute right to freedom of assembly,
less attention has focused on the fact that due to the size of
the protest which gathered in the town centre on the day of the
march, the NSPA's rally was eventually held at a non-contentious
location. Of course, this does not deny the constitutional weight
attached to the right of freedom of assembly in America. More
than anything else, it merely demonstrates the practical difficulties
inherent in policing contentious demonstrations.
Historically, processions and demonstrations
in the United Kingdom of a political character seem to have been
particularly susceptible to restriction, whereas those of a solely
religious character have been offered special protection. The
history of restrictions imposed on demonstrations in London is
well documented in the facts of CARAF (1980)
which itself is an interesting case given the attempts by the
organisers to have their proposed procession recognised as a religious
demonstration as between two cathedrals and led by choirs in robes.
In Rai, Allmond and Negotiate Now (1995), the Department
of National Heritage's decision (upheld by the European Commission),
not to allow the rally to take place in Trafalgar Square, was
influenced by the fact that an Apprentice Boys' "rally with
hymns" ten years previously had been used "as a political
arena" despite prior assurances to the contrary (see further
In international case law, any bias favouring
religious assemblies is not so obvious, for where the message
has affronted religious sensibilities the European Court has relied
more heavily upon the aim of protecting the rights and freedoms
of others than that of the prevention of disorder. This is therefore
examined in greater detail under that heading.
(b) Whether there are likely to be any "hangers-on"
The problem of non-participant hangers-on is
frequently encountered in parade and protest situations. In A.
R. M. Chappell v UK (1987), the applicant argued that for
80 years up until 1985 the religious ceremony known as the midsummer
solstice had taken place without interference by any public or
private body. In recent years, however, the ceremony has attracted
a large gathering of on-lookers, which developed over successive
years into an event known as the Stonehenge free festival (attended
in 1984 by an estimated 30,000 people). This event was not sanctioned
or encouraged by the Druids and formed no part of the Druids'
ritual or ceremony. More importantly, by 1983 and 1984 a group
of people known as the "peace convoy" introduced an
unruly element into the festival, and were disruptive and disrespectful
of the law. Yet despite the Druids' abdication of any responsibility
for the actions of hangers-on, the restriction upon their solstice
celebration was upheld.
(c) The Intentions of the Parade Organiser
The European Commission has often stated that
the right to freedom of peaceful assembly is guaranteed to everyone
who has the intention of organising a peaceful demonstration.
Thus, in Northern Ireland, some enquiry as to, and assessment
of, the intentions of the organisers can legitimately be made
by the police and Parades Commission.
While noting that actual objectives or intentions
may sometimes differ from those notified, unless there is evidence
of any concrete action which might belie the sincerity of the
aim declared by the organiser, the Court has previously been willing
to accept the organiser's declared intention at face value.
Peaceful intentions, though, have not necessarily
led the European Commission and Court to conclude that restrictions
placed on the right to freedom of assembly were unwarranted. In
Rai, Allmond & Negotiate Now (1995), the applicants'
peaceful intentions were not disputedmoreover, they had
offered to use stewards and co-operate with the police as to organisation
details. Notwithstanding, the restrictions placed on their proposed
Trafalgar Square demonstration were deemed necessary in a democratic
In Rassemblement Jurassien (1979), the
organisers stated that their planned demonstrations were to be
peaceful. Again the European Commissionnoting the fairly
broad margin of appreciation accorded to national authorities
when confronted with foreseeable danger affecting public safety
and public orderheld
that as there was considerable tension and serious clashes could
be foreseen, the banning order had been legitimate.
In CARAF (1980), the Commission noted
that "whilst it was clear that the applicant association
had wholly peaceful intentions it is nevertheless true that its
statutory purposes were expressly directed against the National
Front policies and it could therefore not be excluded that the
proposed procession could also give rise to disorder."
Furthermore, the central issue was the likelihood of demonstrations
to result in public disorder, irrespective of the source of such
a risk, and thus "it was not unreasonable for the authorities
to apply an objective criterion rather than a subjective test
relating to the violent or peaceful intentions of the organisers
of such demonstrations." 
This objective test, however, appears to contradict
the tests used in both Plattform Arzte (1988) and Ezelin v France
(1991), which were heard by the European Court. In the latter,
the European Commission (whose reasoning the Court followed) stated
. . . generally speaking, an individual does
not cease to enjoy the right to freedom of peaceful assembly simply
because sporadic violence or other punishable acts take place
in the course of the assembly, if he himself remains peaceful
in his intentions and behaviour.
It remains to be seen which test the European
Court will rely upon in the case of Boris Stankov v Bulgaria(1998)
and United Macedonian Organisation "ILINDEN" v Bulgaria
(1998). In the admissibility proceedings, the Bulgarian government
submitted that there had been clashes between supporters of the
applicant association and other persons in the past, whereas the
applicants insisted that it had always been the police who had
initiated the disorder. Furthermore, they stated that even if
the authorities had reason to believe that their meetings and
marches would meet opposition by other people, it was the duty
of the police to protect their right to demonstrate.
(d) Whether there is to be a related protest
In 2.2.4 above, we noted that it was largely
a question of police discretion as to what level of disorder caused
by protest activity should be tolerated, that the European Court
has often been sympathetic to the police prognosis, and that a
wide margin has previously been granted to national authorities
in deciding how to facilitate peaceful demonstrations. Thus, while
making idealistic statements of principle such as that in the
Plattform Arzte case, evidence pointing to the possibility
of a violent protest (see, for example, (e) Any history of disorder,
below), could serve to justify restrictions being placed on an
entirely peaceful and legal demonstration. The following example
extracted from the European Commission's report in CARAF
reiterates the point. The Commission held that:
. . . the right to freedom of peaceful assembly
is secured to everyone who has the intention of organising a peaceful
demonstration . . . [T]he possibility of violent counter-demonstrations,
or the possibility of extremists with violent intentions, not
members of the organising association, joining the demonstration
cannot as such take away that right. Even if there is a real risk
of a public procession resulting in disorder by developments outside
the control of those organising it, such procession does not for
this reason alone fall outside the scope of Article 11(1) . .
But the Commission then noted that restrictions
could still be imposed on such an assembly so long as they are
"in conformity with the terms of Article 11(2)" ie that
the restrictions are proportionate to the legitimate aim sought
to be achieved.
In contrast, the Court in Ezelin adopted
a much stricter test:
It is not "necessary" in a democratic
society to restrict those freedoms in any way unless the person
in question has committed a reprehensible act when exercising
Extending this principle, it would seem that
if the organisers and participants of a parade have themselves
remained peaceful, on no account may they be restricted because
of disorder threatened or caused by a related protest. The person
or group organising a parade or protest can only be restricted
if they are shown to have acted "reprehensibly" (although
no definition of "reprehensible" has been forthcoming).
The subjective Ezelin test is similar
to that used in the English case, Redmond-Bate v Director of
Public Prosecutions (1999). Three women, preaching on the
steps of Wakefield Cathedral, were arrested for a breach of the
peace when some members of the gathered crowd became hostile towards
them. The Court of Appeal held that:
If the threat of disorder or violence was coming
from passers-by who were taking the opportunity to react so as
to cause trouble . . . then it was they and not the preachers
who should be asked to desist and arrested if they would not..
Lord Justice Sedley noted that lawful conduct
should not be restricted unless it is so provocative so as to
give rise to a reasonable apprehension of violence. Moreover,
the test for provocation is not whether the message is offensive,
but rather whether the conduct in question interferes with the
rights or liberties of others:
. . . violence is not a natural consequence of
what a person does unless it clearly interferes with the rights
of others so as to make a violent reaction not wholly unreasonable.
Unfortunately, the Court of Appeal did not elaborate
any further on what might constitute clear interference with the
rights of others. Guidance, therefore, may be obtained from the
relevant European case-lawsee 18.104.22.168 below and chapter
It may, though, be significant that the "restriction"
in both Ezelin and Redmond-Bate was a retrospective sanction.
In contrast, the restriction in CARAF was by way of prior
restrainta preventative measure based upon the objective
threat of disorder. Arguably, therefore, distinguishing the source
of disorder has been more important when assessing the rectitude
of retrospective or reactive restrictions (eg an arrest for breach
of the peace) than it has been when considering the necessity
of pre-emptive restrictions (eg a ban or re-routing of a parade).
Where preventative measures are concerned, an objective assessment
of the potential for disorder would appear to suffice (see also
In any case, in explaining how the Parades Commission
will consider the factor, "disruption to the life of the
community", their Guidelines appear to adopt the more subjective
test. They pledge that "the Commission will take care to
distinguish between disruption caused by the procession itself
and disruption caused by any associated protest activity or police
action taken in response to that activity.
Furthermore, while it could be argued that Parades
Commission determinations are themselves retrospective sanctions
(based, as they often are, upon the previous conduct of the parade
organiser and participants), and that therefore, the strict Ezelin
test ought to be applied, in any determination where the Parades
Commission relies upon breaches of the Code of Conduct, the Ezelin
test will already have been satisfied (assuming that a breach
of the Code would amount to "reprehensible" behaviour
in Ezelin terms).
(e) Any history of disorder connected with a
particular parade or location
The European Commission noted in both A.
R. M Chappell v UK (1987) and Pendragon v UK (1998) that there
had been serious disorder at Stonehenge in previous years. In
this light, neither an absolute ban in the case of the former,
nor a four day ban for four miles around Stonehenge in the latter,
were considered disproportionate. Similarly, in S v Austria (1990),
a protest to criticise the courts was banned on the grounds of
public order and the protection of the rights and freedoms of
others. This was justified because of the disorder and disruption
caused by previous similar demonstrations where shouting, megaphones,
whistles, rattles and saucepan lids had been used.
In another case, Rassemblement Jurassien (1979),
the Commission held that the Government's banning of all political
demonstrations for two days in the town of Moutierwhich
had "always been a trouble spot, where latent tension was
not disproportionate. It may be that what is proportionate in
one town might be considered disproportionate in another.
Of particular relevance to Northern Ireland,
Rai, Allmond and "Negotiate Now" (1995) concerned
the Government's refusal of an application by "Negotiate
Now" to hold a rally in Trafalgar Square, the purpose of
which was to publicly ask the Government to enter into peace negotiations
in Northern Ireland without a prior cease-fire. The Commission
noted that in 1984 an Apprentice Boys rally had been allowed in
Trafalgar Square, and despite assurances given by the parade organiser
that the meeting would not be political, it was used as a political
arena. The British Government argued that they were anxious to
avoid a repetition of this, and the Commission did not question
the fact that the Government's assessments of the history of rallies
in Trafalgar Square were not confined to previous parades organised
by the same organiser or even with the same participants. This
would appear to support an argument that any history of disorder
or derogation from conditions imposed on a rally or parade in
a particular location, irrespective of the persons involved, may
legitimately be taken into account when considering future parades
and assemblies there.
(f) The potential for disorder in areas other
than the immediate vicinity of a specific parade
In CARAF (1980) the Commission considered
the "proportionality" of the ban on all processions
in London in light of "the situation existing in England
at the time". This was "characterised by a tense atmosphere
resulting from a series of riots and disturbances, having been
occasioned by public processions of the National Front and counter-demonstrations
in connection therewith.
This would suggest that disorder related to a parade dispute in
one part of Northern Ireland may legitimately be considered in
determining the conditions to be imposed on parades elsewhere
in Northern Ireland.
(g) The current political climate
Likewise, in Rassemblement Jurassien
(1979), a decision to ban all political meetings taken because
of "the present tension which has arisen in a climate of
provocation" (following, in particular, two referenda to
revise the Canton constitution) in order to "avoid clashes
whose consequences would be unforeseeable"
was held by the Commission to be proportional and not to violate
Article 11. The prevailing political climate would also appear
to be a legitimate consideration in determining the necessity
of a restriction.
(h) Evidence of steps taken towards a peaceful
resolution of the dispute
Again in Rassemblement Jurassien, the
Government was allowed to ban all political demonstrations despite
the fact that the local council had already imposed conditions
on the proposed demonstration which, moreover, the organisers
had accepted. However, a demonstration, organised in Moutier by
the same group one month after the banned demonstration, was allowed
to take place and did so peacefully. The applicants argued that
the decision not to allow the earlier demonstration but to allow
the later demonstration was irrational. The Commission did not
dispute the Government's justification for allowing the second
demonstrationnamely that it was taken in fundamentally
different circumstances, including the fact that it followed a
tripartite meeting and the establishment of a round-table conference
to which the parties concerned had been invited to settle arrangements
for the demonstrations.
When balancing the right to freedom of assembly
with the objective possibility of disorder, it therefore seems
that the European Court has taken account of the commitment and
resolve of the organisers to ensure that disorder will not result.
In the context of Northern Ireland, any requirement imposed by
the Parades Commission that organisers of a parade engage in dialogue
with residents may conceivably be interpreted under Article 11(2)
as a means of diffusing tension, and therefore as necessary in
a democratic society for the prevention of disorder (see also
Clear guidance as to what is expected of those
organising parades and protests might be drawn from the joint
dissenting opinion (which included the current Vice-President
of the Court) in Otto-Preminger-Institut) (1994). This
case, though, relates to freedom of expression rather than freedom
of assembly directly:
The duty and the responsibility of a person seeking
to avail himself of his freedom of expression should be to limit,
as far as he can reasonably be expected to, the offence that his
statement may cause to others. Only if he fails to take necessary
action, or if such action is shown to be insufficient, may the
State step in.
(i) The likely impact of the parade on relationships
within the community
While this is one of the factors to which the
Parades Commission is to have regard under the Public Processions
Act 1998, none of the European cases has considered the relevance
of this factor, and it is not one of the legitimate aims listed
in Article 11(2) of the European Convention.
As such, it has already been the subject of a judicial review
of a Parades Commission determination.
The application for judicial review concerned
the Commission's determination preventing the Dunloy LOL No. 496
parade from entering the village of Dunloy on Sunday, 29 October
2000. This determination relied upon two of the statutory criteria
in the Public Processions Actthe potential for disorder
and the likely impact on relationships within the community (both
locally and wider afield)
should the parade proceed as notified.
Counsel for the applicant accepted that there
would have been no case to answer had the Parades Commission relied
exclusively on the potential for disorder, this being one of the
legitimate aims in Article 11(2). He argued, however, that the
Commission was not entitled to take into account factors other
than those contained in Article 11(2), and that included both
the impact of the parade on relationships within the community,
and the fact that the Orange Order had not engaged with local
Kerr J dismissed the application, stating first
that the nexus between the potential for disorder and the absence
of agreement was clear, and second, that the principal reason
for the Commission's decision was the significant risk of the
potential for disorder. The applicants appealed, and in the appeal
judgement, Carswell LCJ similarly stated that:
[The Commission] was bound to have regard to
the other matters specified in section 8(6) of the 1998 Act, but
they did not form the ground for its decision to impose the restrictions,
which was placed firmly on the prevention of public disorder.
The other considerations came into play in that part of the Commission's
decision which was concerned with the issue whether those restrictions
were necessary in a democratic society and proportionate.
Preventing a breakdown in relationships within
the community, therefore, cannot be an aim of the Commission but
rather only a factor to be considered when gauging whether any
restriction corresponds to a pressing social need and is proportionate
(see 2.3.5 and 2.3.6 above). Carswell LCJ continued:
. . . even if it can be said that the Commission,
in reaching its decision had regard to factors other than those
specified in Article 11(2) of the Convention, that does not necessarily
invalidate it. In domestic law the decision must be made by reference
to the correct factors, and this requirement was satisfied in
the present case . . . The issue is whether the restriction imposed
on the parade can properly be said to be justified on one of the
grounds specified in Article 11(2), whatever factors the Commission
may have taken into account in reaching its decision. We are quite
satisfied that the restrictions in the present case were necessary
in a democratic society for the prevention of disorder, and that
they were proportionate. We therefore consider that on this basis
also the Commission's determination was a valid exercise of its
powers and was not in breach of Article 11.
Like steps taken to reach a peaceful resolution,
or the lack of them (see (h) above), it would appear that concerns
about a parade having an adverse impact on community relations
cannot, themselves, be used to justify the imposition of restrictions
on freedom of assembly. Instead, they are relegated to being a
litmus test of the potential for disorder. Ultimately, though,
this remains to be decided by the courts. Indeed, no attempt was
made in the proceedings to argue that this provision of the Public
Processions Act is incompatible with the Convention.
22.214.171.124 The Protection of Health or Morals
The protection of morals are of limited relevance
to parade disputes. In any case, Hashman and Harrup v UK (1999)
serves as a reminder that any restrictions must have a basis in
domestic law which is sufficiently clear and precise so as to
satisfy the requirement of "prescribed by law" (see
2.3.4 above). It is not enough for behaviour merely to offend
morality, but it must be behaviour which is deemed criminal and
has been defined by Parliament as such.
While entirely speculative, there is perhaps
an argument to be made around the health implications of living
in an area where parades are contentious and where the dispute
has been sustained at a particularly high and consistent level.
None of the freedom of expression or assembly cases have relied
upon this proviso.
126.96.36.199 The Protection of the Rights and Freedoms
No individual or group in society (majority
of minority) ought to be able to deny others the freedom to exercise
their right to peaceful assembly. A policy of communal consent,
whereby marches through residential areas would be permitted only
if the march organiser had obtained the consent of the residents,
has no basis in international human rights law. It runs counter
to the principles of tolerance and pluralism which can be adduced
from the international jurisprudence.
Nonetheless, given the "trickle-down"
effect of public order considerations, efforts to solicit and
take into account the views of local residents or even a requirement
that parade organisers engage in dialogue with them may ultimately
be related back to the aim of preventing disorder. Judge Pettiti,
in Wingrove v UK (1996), argues that the same decision could have
been reached on grounds such as the prevention of public disorder
rather than blasphemy and the rights and freedoms of others.
As already mentioned, the aim of protecting
the rights and freedoms of others tends to be relied upon to a
greater extent where people's religious identities are offended.
This was explained in the European Court's majority judgement
. . . there is little scope under Article 10(2)
of the Convention for restrictions on political speech or on debate
of questions of public interest...a wider margin of appreciation
is generally available to the Contracting States when regulating
freedom of expression in relation to matters liable to offend
intimate personal convictions within the sphere of morals or,
especially, religion. Moreover, as in the field of morals, and
perhaps to an even greater degree, there is no uniform European
conception of the requirements of "the protection of the
rights of others" in relation to attacks on their religious
Yet, despite granting such latitude to national
authorities where the rights and freedoms of others are concerned,
reliance on this aim has sometimes sparked disagreement within
the European Court itself. Some judges appear to have relied on
it as a means of giving extra protection to religious groupings,
whereas other judges have argued that to give such special protection
runs counter to the spirit of the Convention.
In Wingrove, the British Board of Film
Classification rejected an application for a distribution certificate
for the film, "Visions of Ecstasy". The film director
argued that "the rights of others" in Article 10(2)
must mean an actual positive right not to be offended rather than
a mere hypothetical right at the prospect of some people possibly
The European Court dismissed the director's argument, and held
that the Board's aim, which was to protect against the treatment
of a religious subject which was bound to (irrespective of how
it was intended) outrage those who have an understanding of, sympathy
towards and support for the Christian story was legitimate and
entirely consonant with the protection of the rights of others
within the meaning of Article 10(2).
Translating this argument to a parades scenario,
irrespective of the intention of either a parade or protest organiser,
anything which is bound to offend the religious sensibilities
of the other community may, on this understanding, be restricted
to protect the rights and freedoms of others.
Similarly, in Otto-Preminger-Institut
(1994), the majority of the Court stated that it could not disregard
the fact that the proportion of Roman Catholic believers in the
Tyrolean region of Austria (where the film, "Council in Heaven",
was advertised and scheduled to be shown) was as high as 87 per
cent. The cinema operator's right to freedom of expression had
to be balanced with the community's right to proper respect for
their freedom of thought, conscience and religion under Article
9 of the ECHR:
Those who choose to exercise the freedom to manifest
their religion, irrespective of whether they do so as members
of a religious majority or minority, cannot reasonably expect
to be exempt from all criticism. They must tolerate and accept
the denial by others of their religious beliefs and even the propagation
by others of doctrines hostile to their faith. However, the manner
in which religious beliefs and doctrines are opposed or denied
is a matter which may engage the responsibility of the State,
notably its responsibility to ensure the peaceful enjoyment of
the right guaranteed under Article 9 to the holders of those beliefs
and doctrines. Indeed, in extreme cases the effect of particular
methods of opposing or denying religious beliefs can be such as
to inhibit those who hold such beliefs from exercising their freedom
to hold and express them.
The Courtover-ruling the decision of
the Commission by a majority of 6-3accepted the Government's
submission that there was a pressing social need for the preservation
of religious peace, and held that it had not overstepped its margin
of appreciation in confiscating the film. This sits well with
the Swiss Government's assertion in Rassemblement Jurassien (1979)
that "the public interest in the freedom of peaceful assembly
was bound temporarily to take second place to the equally legitimate
public interest in harmonious community life among citizens in
a democratic society."
The European Commission did not debate this argument.
However, in contrast, the minority dissenting
opinion in Otto-Preminger-Institut argued that:
The Convention does not, in terms, guarantee
a right to protection of religious feelings. More particularly,
such a right cannot be derived from the right to freedom of religion,
which in effect includes a right to express views critical of
the religious opinions of others.
This dissenting opinion accords with the rationale
in Ezelin v France (1991) where the Commission stated that a sanction
based on the impression that the applicant's behaviour might have
given is incompatible with the strict requirement of a "pressing
social need" and is, thus, insufficient to justify restricting
the applicant's freedom.
Further consideration of the rights and freedoms
of others is contained in the next chapter.
2.4 The Right to a Fair Hearing
The scope of this right, as guaranteed by Article
6, ECHR, and Article 14, ICCPR, extends beyond the formal court
system and applies to any "independent and impartial"
quasi-judicial or administrative hearing in which a person's civil
rights and obligations are being determined. Consequently, such
bodies as the Gaming Board,
Board of Visitors
and Pensions Review Board
have all been held to be bound by the requirements of Article
6(1), ECHR or Article 14 (1), ICCPR on the grounds that they were
the designated adjudicatory forums in relation to a particular
right within the respective legal systems. Articles 6(2) and 6(3),
ECHR and 14(2) and 14(3), ICCPR, are concerned only with persons
charged with a criminal offence and therefore are not relevant
Article 6(1), European Convention on Human Rights
1) In the determination of his civil rights
and obligations or of any criminal charge against him, everyone
is entitled to a fair and public hearing within a reasonable time
by an independent and impartial tribunal established by law. Judgement
shall be pronounced publicly but the press and public may be excluded
from all or part of the trial in the interests of morals, public
order or national security in a democratic society, where the
interests of juveniles or the protection of the private life of
the parties so require, or to the extent strictly necessary in
the opinion of the court in special circumstances where publicity
would prejudice the interests of justice.
Article 14(1), International Covenant on Civil
and Political Rights
1) All persons shall be equal before the
courts and tribunals. In the determination of any criminal charge
against him, or of his rights and obligations in a suit of law,
everyone shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law. The press
and the public may be excluded from all or part of a trial for
reasons of morals, public order or national security in a democratic
society, or when the interest of the private lives of the parties
so requires, or to the extent strictly necessary in the opinion
of the court in special circumstances where publicity would prejudice
the interests of justice; but any judgement rendered in a criminal
case or in a suit at law shall be made public except where the
interest of juvenile persons otherwise requires or the proceedings
concern matrimonial disputes or the guardianship of children.
In terms of applicability, the Parades Commission
is clearly involved in the determination of "civil rights
and obligations" 
and has been established by law for that very purpose. There are,
though, a number of different issues which arise in relation to
2.4.1 Are the Commission's Judgements Pronounced
The Commission's determinations, which are first
communicated to the parties involved and later posted on the internet,
will likely satisfy the demand that they are publicly announced.
In the Axen case (1983), the European Court considered "that
in each case the form of publicity to be given to the "judgement"
under the domestic law of the respondent State must be assessed
in the light of the special features of the proceedings in question
and by reference to the object and purpose of Article 6(1)."
2.4.2 Is the Parades Commission "Independent
Given the power of the Secretary of State under
section 9 of the Public Processions Act 1998 to review a determination
issued by the Commission, it is not clear whether the Parades
Commission of itself has the requisite degree of independence
so as to satisfy the requirements of Article 6(1). In Bryan v
UK (1995), the European Court held that a planning inspector whose
powers could be revoked by the Secretary of State "notwithstanding
the limited exercise of the power in practice", for that
reason alone, was not sufficiently independent:
In order to establish whether a body can be considered
"independent", regard must be had, inter alia, to the
manner of appointment of its members and to their term of office,
to the existence of guarantees against outside pressures and to
the question of whether the body presents an appearance of independence.
The Court, however, then stated that even where
an adjudicatory body does not comply with Article 6(1) in this
respect, "no violation of the Convention can be found if
the proceedings before that body are subject to subsequent control
by a judicial body that has full jurisdiction and does provide
the guarantees of Article 6.1."
Thus, the judicial body must be able to quash the impugned decision
and to remit the case for a new decision. Judicial review was
considered in Kingsley v UK to fulfil that requirement.
The sufficiency of the review will further depend on:
...matters such as the subject-matter of the
decision appealed against, the manner in which that decision was
arrived at, and the content of the dispute, including the desired
and actual grounds of appeal.
2.4.3 "The opportunity to have knowledge
of and comment on the observations filed or evidence adduced by
the other party"
Because there is the fall-back of both the Parades
Commission's own review procedure (under rule 6.1 of its Procedural
Rules), and the subsequent judicial control by way of judicial
review, the question arises as to whether the procedures involved
at the Commission's initial decision making stage are in any way
constrained by the demands of the right to a fair hearing.
In Ruiz-Mateos v Spain (1993), where
the tribunal of first instance was a constitutional court (separate
from and with different rules to the civil and criminal courts),
these demands were held to include the right to an adversarial
trial, whereupon the parties must be given the opportunity to
have knowledge of and comment on the observation filed or evidence
adduced by the other party.
In McMichael v UK (1995), the refusal
to disclose vital social documents, which were considered by the
children's hearing, to a party in that hearing was held to be
in breach of Article 6(1). The European Court did not consider
it necessary to differentiate between the different stages of
hearing and appeal, but rather viewed the care proceedings as
Rule 3.3 of the Parades Commission's Procedural
3.3 All evidence provided to the Commission,
both oral and written, will be treated as confidential and only
for the use of the Commission, those employed by the Commission
and Authorised Officers. The Commission, however, reserves the
right to express unattributed general views heard in evidence
but only as part of an explanation of its decision.
In this light, it might be argued that rule
3.3 of the Commission's Procedural Rules places parties to the
dispute at a substantial disadvantage on three accounts:
in respect of influencing the outcome
of the Commission's initial decision;
in assessing their prospects of bringing
an appeal; and
in the subsequent presentation of
The right to a fair hearing raises sensitive
issues about anonymity and the non-disclosure of witnesses' identities.
The interests of witnesses, however, must be seen as being protected
by other substantive provisions of the Convention, and so the
interests of fair trial are to be balanced against those of witnesses.
124 Rassemblement Jurassien & Unité
Jurassian v Switzerland (1979) at p 119, Christians Against
Racism and Facism v UK (CARAF) (1980) at p 148; G v The
Federal Republic of Germany (1989) at p 263; Anderson et
al v UK (1997). Back
CARAF at p 148. Similarly, Article 9 can be exercised
by a church body, or an association with religious and philosophical
objects, ARM Chappell v UK (1987) at p 246. Back
Ciraklar v Turkey (1995), Platform "Ärzte
für das Leben" v Austria (1988). Back
Otto-Preminger-Institut v Austria (1994), para 47. Back
 2 All ER 257 at 263A; 265F. Considered in Birch v Director
of Public Prosecutions  Crim LR 301. Back
 2 All ER 257 at 267B-C. Back
Ibid, at 286J. Back
Ibid, at 287C-D. Back
Para 32. Back
At p 262. Back
As explained below, however, the Commission held that the blocking
of a road caused more obstruction than would normally arise from
the exercise of the right of peaceful assembly, and that therefore,
the applicant's conviction did not constitute a violation of his
right-an example of peaceful assembly being reasonably restricted
(or an unreasonable exercise of the right). Back
Paragraph 64. Back
Para 9.2. Back
Nowak, Manfred, U.N. Covenant on Civil and Political Rights,
CCPR Commentary, Engel Publisher, Kehl-Strasbourg-Arlington, 1993,
p 373. Back
At p 146, para 4. Back
Commission, para 32. Back
Section 17 Back
At p 148. Back
Para 34. Back
See particularly, Commission, para 47. Back
See eg Ezelin v France, (1991), Court, para 39. Back
Kivenmaa v Finland (1994). Back
At p 119. Back
G and E v Norway (1983), p 35. Back
7 September 2000, Judgement of David Pannick QC, paragraph 11,
citing paragraph 9 of the submission made by Mr Stewart Baxter,
senior officer of the public order section of the Home Office. Back
At p 148. Back
At p 150. Back
Although, the Secretary of State may also prohibit the holding
of any individual procession under s11(1) of the Act. Back
Defined under section 17 of Act as "The Whole or any part
of Northern Ireland". Back
In the year 1 April 1999 to 31 March 2000, there were 2,644 loyalist
and 203 nationalist parades; Report of the Chief Constable, 1999-2000,
p 99. Back
Pendragon v UK (1998), G and E v Norway (1983); CARAF
(1980) p 152. Back
Leonardus Johannes Maria de Groot v The Netherlands, Communication
No 578/1994, UN Doc CCPR/C/54/D/578/1994 (1995) at para 4.6. Back
Plattform Ärzte fur das Leben v Austria (1988), Court,
para 34; Chorherr v Austria (1993), Court, para 32. Back
See further Prebensen, Soren C, "The Margin of Appreciation
and Articles 9, 10 and 11 of the Convention" 19.1 Human
Rights Law Journal (30 April 1988) pp 13-17, at 17. Also,
Schokkenbroek, Jeroen, "The Basis, Nature and Application
of the Margin of Appreciation Doctrine in the Case Law of the
European Court of Human Rights" pp 30-36, at 34. Back
See Fenwick, Helen "The Right to Protest, the Human Rights
Act and the Margin of Appreciation" (1999) 62.4 Modern
Law Review 491-514. Also R v D.P.P ex-parte Kebilene
(1999) 3 W.L.R per Lord Hope. "This technique is not available
to the national courts when they are considering Convention issues
arising within their own countries", although "[i]n
some circumstances it will be appropriate for the courts to recognise
that there is an area of judgement within which the judiciary
will defer, on democratic grounds, to the considered opinion of
the elected body or person whose act or decision is said to be
incompatible with the Convention" (emphasis added). Back
See, for example, Ezelin v France (1991), Court, para
See Steel and Others v UK (1998), Hashman and Harrup
v UK (1999). Back
Hadden, T and Donnelly, A. The Legal Regulation of Marches
in Northern Ireland, Community Relations Council, (1997),
p 50. Back
7 September 2000, paragraph 17. It is noteworthy that this case
was heard prior to the full implementation of the Human Rights
Act 1998. Back
Para 32. Back
At p 262. Back
At p 37. Back
Handyside v The United Kingdom (1976), para 49. Applied
in Incal v Turkey (1998), para 46; Otto-Preminger-Institut
v Austria (1994), para 49, and joint dissenting judgement
para 3; Müller and Others v Switzerland (1988), para
33; Observer and Guardian v United Kingdom (1991), para
59; Chorherr v Austria (1993), Commission, para 39. Back
para 50. Back
para 54. Back
Texas v Johnson 109 S. Ct. 2533 (1989); Eichman v US
110 S. Ct.2004 (1990). Back
Brandenburg v Ohio, 395 US 444 (1969). Back
Village of Skokie v National Socialist Party of America,
363 N.E. 2d 347 (1977) and 373 N.E. 2d 21 (1978); Also Collin
v Smith 447 F. Supp. 676 (1978). Back
At p 143. Back
Incal v Turkey, para 51; United Communist Party of
Turkey and Others, para 58; Back
At p 118. Back
At p 149. Back
At p 150. Back
Commission, para 34. Back
At pp 148-49. Back
14 EHRR 362 at 363. Back
Para 18. Back
Para 16 [emphasis added]. Back
Para 3.1. Back
At p. 112 Back
At p 148. Back
At p 109. Back
At pp113-4, para/16, and p 121, para 11. Back
Joint Dissenting Opinion of Judges Palm, Pekkanen and Makarczyk,
para 7. Back
Section 8(6)(c). Back
In the matter of an Application by David Alexander Tweed for
Leave to Apply for Judicial Review. Heard by Kerr J in the High
Court on 25 October 2000, and by the Court of Appeal on 26 October
2000. Written judgement delivered by Carswell LCJ. Back
See the definition of "community" approved by the High
Court in 3.5 below. Back
Para 58. See also Otto-Preminger-Institut v Austria (1994), para
50; Muller and Others v Switzerland (1988), paras 30 and 35. Back
Para 45. Back
Para 48; also para 57. Back
Paras 52 and 55. Back
At p 115, para 20. Back
Joint Dissenting Opinion, para 6. Back
Kingsley v UK, 7/11/2000. Back
British-American Tobacco Company Ltd v The Netherlands, 20/11/95. Back
Campbell and Fell v UK, 28/6/84, para 76. Back
Y.L v Canada, UN Human Rights Committee, 112/1981-despite the
fact that Article 14, ICCPR is ostensibly restricted to hearings
involving a criminal charge or the determination of a person's
rights and obligations in a suit of law. Back
See, for example, Zander v Sweden, 25/11/93, para 27; Bryan
v UK, 23/5/95, para 31; Kingsley v UK, 7/11/2000, paras
The Axen Case, 25/10/83, para 31. Back
Bryan v UK (1995), paras 37-8. See also Kingsley v UK (2000),
paras 46-7. Back
Albert and Le Compte v Belgium (1983), para 29; Bryan v UK (1995),
para 40; Kingsley v UK (2000), para 51. Back
Para 58. Back
Bryan v UK (1995), para 45. Back
Ruitz-Mateos v Spain, 23/6/93, para 63. Back
McMichael v UK (1995), para 78. Back
See McMichael, paras 80 and 82. Back
Doorson v The Netherlands, 26/3/96, p 470, para 70. Back