“some of the draft Bill’s restrictions to the freedom of assembly are not proportionate or necessary”

We’ve seen opposition from the Orange Order’s Grand Lodge, and from Queen’s University law lecturer Vicky Conway, and from Newry and Mourne Council [Adds – And from Residents Groups].  And, as wj pointed out, the Committee on the Administration of Justice [CAJ] have published their submission to the consultation on the Sinn Féin/DUP drafted Public Assemblies, Parades and Protests Bill [pdf file].

Here are some extracted paragraphs from the submission [pdf file]

On “Disproportionate Restrictions to Freedom of Assembly”

Although we recognise the particular difficulties surrounding parades in Northern Ireland, CAJ believes that some of the draft Bill’s restrictions to the freedom of assembly are not proportionate or necessary, and have not been justified within the consultation document. As such we question its compatibility with the ECHR, and thus the legislative competency of the Assembly in relation to those restrictions. [added emphasis]

On the “Inclusion of Public Meetings”

The consultation document does not provide any justification for this wide application of the draft Bill. Further, we are not aware of any public meetings causing serious issues in the past that could adversely affect national security, public safety, health or morals, or the rights and freedoms of others to the extent that would require such limitations. As such, we do not believe that the inclusion of public meetings in the Draft Bill, and the resulting restriction on the freedom of assembly, is either proportionate or necessary.

We understand that the proposal may arise out of a political imperative to broaden the canvas of events to be dealt with under the rubric of the legislation. Mindful of the legitimate political impetus, we have considered whether altering some of the criteria of ‘public meeting’ such as increasing the number of people might mitigate the infringement of the current fairly open right to organise a public meeting. However, it remains our view that the case has not been made for such a major restriction to a fundamental right and freedom.

It may be that public meetings are intended to avail of the late notice and emergency procedures. However, the inappropriate use of emergency procedures would create inconsistency of approach and further confusion. It would be particularly problematic if used for parades that have previously been contentious but have now settled down. Fundamentally, this wide use of discretion would create much uncertainty and, once on the statute book, would be open to abuse. [added emphasis]

Here, and in many other places in the draft Bill, there is a lack of clarity and consistency. This lack of clarity could in itself run contrary to ECHR, in so far as the restrictions to freedom of assembly are not sufficiently ‘prescribed by law’ (as per article 11(2)). In this regard we would highlight that ‘if individual terms are too vague or the framework as a whole suffers from a lack of coherence it will not be possible to regard the restrictions which it is supposed to authorise as being sufficiently prescribed by law as to justify their imposition.’

Public assembly is a vital tool in a vibrant democracy for people to campaign or protest. Significantly, the Human Rights Joint Committee ‘recommended against retaining the present system of compulsory prior notification of protests around Parliament. We see no reason to introduce such a requirement elsewhere in the UK. In our view, insisting on prior notification of protests is a disproportionate interference with the right to protest and is more likely to discourage some protestors from cooperating with the police than to encourage effective dialogue’.

On “Excessive Notice Period”

We are aware that in many instances it is both appropriate and necessary to provide the authorities with advance notification of public assemblies, for reasons of public safety, other individuals’ right to free movement, and practical needs, such as the forward planning of road closures. However, we believe that increasing the notice period to 37 days for all public assemblies is both unnecessary and disproportionate.

On the “Wide Application of Criminal Penalties”

We believe that it would be disproportionate for a notice-giver of an informal group to be made criminally responsible for the behaviour of participants over which s/he has no control. Similarly, the imposition of a criminal offence for lack of proper notice when a public meeting unexpectedly passes the 50 person threshold seems unduly severe. Both of these possible consequences could dissuade individuals from exercising their right to freedom of assembly. Finally, we are concerned that the definition of ‘non-participant’ is too broad (see s9). The ODIHR/OSCE Guidelines on Freedom of Peaceful Assembly state that ‘law enforcement officials should differentiate between participants and non- participants. The policing of public assemblies should be sensitive to the possibility of non-participants (such as bystanders or observers) being present in the vicinity of an assembly.’ The draft legislation does not adequately discern between bystanders and active participants.

There are other objections in the submission, but here’s CAJ’s conclusion

6. Conclusion

CAJ believes that the proposed restrictions on the right to freedom of assembly, in relation particularly to public meetings, are not compliant with Article 11(2) of the European Convention on Human Rights. We would highlight that section 6(2)(c) of the Northern Ireland Act 1998 renders any provision of Assembly legislation that is incompatible with any of the Convention rights outside the legislative competency of the Assembly. As such, we believe these proposals need to be revisited. [added emphasis]

Update Thanks again to wj.  NIPSA make some similar points in their submission, but notably add

However, rather than outline these objections in detail, which may give the impression that this Bill is redeemable if changes were made, NIPSA is of the firm opinion that this draft proposal is fundamentally flawed and not capable of amendment. [added emphasis]