“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]

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  • Obelisk

    Should this monstrosity actually become law does anyone know if it could be appealed to the Supreme Court in London and struck down?

  • Lionel Hutz

    I posted this on the other thread.

    This is from the HRA 1998. This would be the fundamental right enjoyed by the Orange Order and their members which allows them to march.

    “Article 11 Freedom of assembly and association

    1 Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

    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.

    Paragraph 2 indicates that this is a qualified right and any qualification or infringement can only be lawful if proportionate. This means that any restriction imposed by the state must:
    – be imposed in the pursuit of a legitmate aim.
    – it must achieve that aim
    – it must be the least intrusive means of achieving that aim.

    In the case of a march through a genuine public space (town centres etc), that fact that it is contenious may not be enough to warrant stopping the march, particularly as it could be argued that the a Police Presence could allow the march to pass of peacefully.

    It is in residential areas where there is a genuine conflict BETWEEN rights.

    “Article 8 Right to respect for private and family life

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

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

    AND

    Part II The First Protocol
    Article 1 Protection of property

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

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

    It is ofcourse arguable that the effective lockdown of a residential area during a march is an abuse of these two rights. Also the common law tort of nuisance would indicate that residents are entitled to peaceful enjoyment of their homes free from nuisance, intimidation etc etc.

    In this case the Right to public assembly may be curtailed lawfully.

    I see the logic in not wishing to differentiate between marches and other forms of assembly. In fact, given the religious and cultural context of parading, to do so would be an infringement of the following:

    Article 14 Prohibition of discrimination

    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 14 is not a stand alone right, it operates in conjunction with the other rights. There are numerous examples of where this has been used to rule laws as incompatible where courts have shied away from calling a measure incompatible by being simply disproportioante. For example the detention without trial law ruled incompatible not because of the wider infirngement on the right of liberty or a fair trial but because it applied to foreign nationals only and was therfore discriminatory.

    The same conditions should apply to all forms of assembly, the executive has no choice but to do this. This means that our politicians must be more creative that they have hitherto been. I believe that this can be best done by drawing a distinction between all forms of assembly that are in town centres or public space and all forms of assembly which are in residential areas. The latter can have more restrictions imposed with a eye kept on the contentious nature, the likelihood of violence etc.

  • From Belfast Telegraph July 1st

    There will be a civil rights march in Derry on October 5th. The march will assemble at 2.30pm at Waterside station and proceed along Duke Street, Craigavon Bridge, Carlisle Road, the Diamond and Shipquay Street to Guildhall Square, where prominent speakers will address a rally.
    It has been explained to Sinn Fein and the DUP that any ban on the march will be defied.
    Some say it’s always wrong to break the law. But when a law is undemocratic and has been introduced in an underhand way, and when the parties behind the measure show disdain for anyone choosing to object, then defiance is not just a permissible tactic but a democratic imperative.
    It will be recalled that the proposed Public Assembly, Parades and Protests Bill emerged from the DUP-Sinn Fein Hillsborough talks last February on devolution of policing and justice. The abolition the Parades Commission was the DUP’s price for agreement. So, a working group to devise a new parades mechanism was established under the auspices of the Office of First Minister and deputy First Minster, comprising Nelson McCausland, Stephen Moutray and Jeffrey Donaldson (DUP) and John O’Dowd, Michelle Gildernew and Gerry Kelly (Sinn Fein). The draft legislation drawn up by these six was published on April 20th.

    The group’s mandate had been to deal with contentious parades. But the proposal they came up covered public meetings of all sorts. “Public meeting” was defined as “a meeting of 50 or more persons held in a public place to which the public or a section of the public are invited to attend”.
    An OFMdFM “explanatory guide” specified the sort of gathering the law had in mind: “If a group wanted to protest against the closure of a local sports facility, this…would fall under the definition of a public meeting” – and thus would require notice of 37 working days.
    There is provision in “extreme emergency” for applications to be lodged within three working days. Organisers “must leave a copy of the notice with a member of the PSNI not below the rank of sergeant”. This officer must refer the application to the chief constable who in turn must ensure that it is referred to a proposed new 11-member Public Assemblies, Parades and Protests Body, five of whom will meet and issue a directive.

    Recent gatherings which would have fallen foul of the proposed new law include the instant protests against the Israeli attack on Gaza in December 2008, the walkout and meeting at Visteon in Belfast after the announcement of the factory’s closure, the demonstrations against violence against Roma in south Belfast last year and car-park protests against the closure of A&E departments.

    Under the DUP/SF proposals, any member of the PSNI could arrest without warrant anyone suspected of breaching the law by going ahead with such events. Conviction could result in jail terms of up to six months and fines of up to £5,000.
    This represents a serious assault on the right of assembly which wouldn’t have been out of place in the old Special Powers Act which the first civil rights movement managed to get rid of.
    The main response of Sinn Feiners to criticism of the draft has been to accuse objectors of having no concern for Nationalist communities living in apprehension of Loyal Order parades. In a discussion on Hearts and Minds, John O’Dowd was explicit that the provision for 37 working days notice had been inserted at the urging of residents’ groups.

    This wouldn’t begin to explain or justify the extension of the provision to public meetings: and anyway, it’s not true.

    It emerged at a public meeting in the Bogside last week that the local residents’ group had had no input into the draft. This week, Garvaghy Road and Lower Ormeau residents groups issued a joint statement declaring that, “Far from solving the issue caused by contentious parades in Portadown, south Belfast and elsewhere…the Bill creates a whole new range of problems…Instead of specifically dealing with the minority of marches that are problematic, the new legislation proposes to treat all parades and outdoor gatherings as if they were the same…Those responsible for the bill should go back to the drawing-board to create a workable solution based on common sense and human rights.”

    Sinn Fein appears taken aback by the hostility of response to the proposal. (The DUP has, wisely perhaps, kept its head down and its lip buttoned.) The indications are that the party will bow to the pressure and back off when the draft comes before the OFMdFM Assembly committee.

    Perhaps in the course of debate, Mr. O’Dowd, Mr. Kelly or Ms. Gildernew will explain how and why they decided to issue such draconian proposals in the first place. Maybe it was the casual incompetence that comes from a guaranteed position in government. Maybe the lethargy of facing no parliamentary opposition lulled them to sleep on the job. Maybe an
    authoritarian instinct shared with the DUP came inevitably to the surface.

    Whatever. If they are reading the runes right, they will already be on their bikes perfecting their back-pedalling technique.

    That stuff about a civil rights march on October 5th if the proposal hasn’t been binned? Not a joke.

    ((Note: There is now a suggestion that the march should begin at the DUP office at Dales Corner and proceed via the treaditional October 5 route to the SF office at Rathmor.)

  • wj

    NIPSA have published their response at http://www.nipsa.org.uk/Docs/Nipsa-Latest/2010/THE-NIPSA-RESPONSE-TO-THE-CONSULTATION-ON-THE-PUBL

    “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.”

  • Pete Baker

    Thanks again wj.

    I’ve added that point to the original post.

  • Lionel Hutz

    Pete,

    In view of the way you have commented on this issue alot, I was wondering if you had any ideas on how to solve the issue.

    I ask you genuinly. Although I sometimes get a bit frustrated with some of your posts, you are one of the most concientious posters from the unionest background so far as I can see.

    The way I see it, the executive most create laws for parading in general, they cannot single out Orange Order marches for the reasons I posted above. The distinction must be between town centres and residential areas.