Short Life Working Group on Facilitating Peaceful Assemblies: report

1. Introduction

1.1 The Working Group was tasked with identifying the challenges involved in the facilitation and regulation of processions, including those relating to the notification process, in Scotland. A human rights-based approach has been central to our work in seeking to identify processes capable of achieving an appropriate balance between the rights of organisers/participants and the rights of non-participants and communities impacted by these events. In considering how these challenges could be addressed, and the practical implications of making any changes, we were specifically asked to look at how the NI Parades Commission works and whether there was any learning that could be extracted from this model and adapted for Scotland. This report uses the comparison between Northern Ireland and Scotland as a basis to discuss how well the legislative framework and related processes are working in Scotland.

1.2 It is worth noting that within the United Kingdom there are three different legal frameworks governing the regulation of public processions and other assemblies: Scotland, where the Local Authority receives notifications of processions and is the central decision-making body; Northern Ireland, where the independent Parades Commission makes decisions; and England and Wales, where the police are the central decision-making body in relation to notifiable processions and other assemblies. This regional diversity offers the possibility of informative comparison.

1.3 In this report, we wanted to draw a number of comparisons between Northern Ireland and Scotland regarding the facilitation and regulation of public processions. We have had to work within a short timeframe. As such, further work would be beneficial in order to obtain a more detailed analysis of the practical operation of both legal regimes and to build upon the actual experiences of the first full summer of marches since moving out of Covid restrictions. We believe there would be value in using this report as the basis for convening further discussions with all interested parties.

1.4 We also think it is important to acknowledge the very significant amount of work on parading that has been undertaken in Scotland since The Orr Review of Marches and Parades in Scotland (2005) and in Northern Ireland since The Report of the Independent Review of Parades and Marches (1996). Indeed, the repeated examination of the way parades and protests are facilitated and regulated in both jurisdictions underlines the importance of protecting rights in democratic societies. We would particularly like to acknowledge the work that Dr Michael Rosie has undertaken in Scotland and we have provided a list of relevant studies in Appendix 1 that we have drawn upon for background information.

1.5 The legislation and institutional structures that govern the exercise of the right of peaceful assembly as it relates to processions in Northern Ireland and Scotland share a number of aspects in common (such as a 28-day notification period for processions). There are also a number of key differences, perhaps the most significant of which is that in Northern Ireland the power to regulate both processions and related protest meetings lies with an independent civic body, the NI Parades Commission. The members of this adjudicatory body (a Chairperson and up to six Commissioners) are appointed by the Secretary of State for Northern Ireland following a public recruitment process (the positions are advertised), with a view to ensuring as far as is practicable that the Commission as a whole is representative of the community in Northern Ireland.^[1] In Scotland, the power to impose conditions lies with Local Authorities and ultimately, decisions can be made by elected councillors that form a panel or committee when required. So unlike England and Wales, where the power to impose conditions on processions lies with the police, in Scotland and Northern Ireland the police provide evidence to inform decision-making by others.

1.6 While recognising that their legitimacy is often disputed, it is notable that the regulatory models in Northern Ireland and Scotland seek to draw their legitimacy from different sources – the legitimacy of the NI Parades Commission is based on its independence from political institutions and is strengthened by the involvement of civic actors whereas in Scotland, legitimacy derives from the democratically elected Local Authority in which the procession takes place.

1.7 There are also some differences in the statutory criteria upon which conditions may be imposed on processions and other assemblies.^[2] However, the Human Rights Act 1998 extends to Scotland, Northern Ireland and England and Wales, so these criteria must be interpreted in a way that is compatible with the rights in the European Convention on Human Rights (ECHR).

1.8 In the comparative discussion that follows, we identify similarities and differences between the models in Scotland and Northern Ireland, as well as a number of challenges that have arisen. We also offer some thoughts and conclusions as to how the processes in Scotland might potentially be improved. In Appendices 2 and 3, we provide diagrams that we hope might help explain the operation of the systems in Scotland and Northern Ireland.

1.9 Many of the problems in Scotland that were raised with us cannot straightforwardly be attributed to the provisions of the Civic Government (Scotland) Act 1982 itself – though we note that the primary focus of this legislative framework nonetheless contributes to a public perception that processions are licensed by Local Authorities. Many of the problems that we encountered instead concern practices of inter-agency working that have become established over time.

1.10 As such, our proposals do not suggest a fundamental overhaul of the regulatory model in Scotland. In particular, while we have found there to be many fruitful comparisons between the regulatory processes in Northern Ireland and Scotland, we have not heard evidence that would justify the transplantation of the NI Parades Commission model to Scotland. While some of our conclusions might suggest that there could be value in giving further consideration to possible amendments to primary legislation, these are broadly limited to (a) the requirement to notify the Chief Constable,^[3] (b) whether the relevant authority should be empowered to impose conditions on related protest meetings and on supporters of processions,^[4] and (c) the power and criteria in relation to the prohibition of processions.^[5]

1.11 In some Local Authority areas of Scotland, such as in Glasgow, there are significant pressures on the Local Authority in dealing with processions. In this regard, the comparison with Northern Ireland proves useful because it serves to highlight particular aspects of the notification and adjudication processes. In this document, drawing relevant comparisons with Northern Ireland, we thus highlight a number of focused areas that might improve the way in which processions are governed in particular areas of Scotland. In our short review, we have concluded that the changes required primarily involve improved capacity, a shifting of resources, and better processes. We believe such changes can be implemented within existing frameworks.