CARC3290

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

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IN THE MATTER OF AN APPLICATION BY DAVID ALEXANDER TWEED FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
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CARSWELL LCJ

	On 25 October 2000 the applicant David Alexander Tweed, a member of Dunloy Loyal Orange Lodge 496 and the organiser of a parade proposed to be held in Dunloy on Sunday 29 October, sought leave from the High Court to apply for judicial review of a decision of the Parades Commission (the Commission) applying restrictions on the parade.  After hearing counsel for the applicant and, by invitation of the court, counsel on behalf of the Commission, Kerr J refused leave to apply.  The applicant renewed his application to this court on 26 October and we also heard counsel for the applicant and the Commission.  At the conclusion of the hearing we gave our decision refusing leave, and stated that we would give our reasons in a written judgment at a later date.  This judgment contains our reasons for that decision.
	 On 2 October 2000 the applicant gave notice to the Commission on behalf of Dunloy LOL 496 of its intention to hold a parade on Sunday 29 October from Dunloy Orange Hall to Dunloy Presbyterian Church, via Station Road and Main Street, and back, to celebrate Reformation Sunday in the Millennium year.  The parade was to be accompanied by Dunloy Accordion Band.  Notice of the parade was given to the police on 30 September.  
On 20 October the Commission agreed a determination and issued it to the applicant.  The terms of the determination, which we set out in full, were as follows:
“DETERMINATION IN RELATION TO THE DUNLOY LOL NO 496 PARADE, DUNLOY, SUNDAY, 29 OCTOBER 2000

The following is the decision of the Parades Commission in relation to the Dunloy LOL 496 parade in Dunloy on Sunday, 29 October 2000.

Section 8(1) of the Public Processions (Northern Ireland) Act 1998 provides that:

‘The Commission may issue a determination in respect of a proposed public procession imposing on the persons organising or taking part in it such conditions as the Commission considers necessary.’

The Commission has noted the details provided on the Form 11/1 submitted on 2 October 2000 about the parade proposed by Dunloy LOL No 496 on Sunday, 29 October 2000.

The Commission has considered the need to issue a determination as outlined above, against the factors described in our Guidelines document.

Decision

The Commission has had regard to the nature of this parade as a celebration of Reformation Sunday in the year of the millennium.  Whilst recognising the fundamental importance of the right to freedom of assembly, it finds it necessary to exercise its powers under section 8 of the Public Processions (Northern Ireland) Act 1998 to prohibit the parade from entering any public place in the village of Dunloy and accordingly, has defined the limits of Dunloy as those points at which the thirty mile per hour speed limit signs are currently located on each route into the village.

In pursuing these conditions, the Commission pursues the legitimate aims laid down in Article 11(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, of seeking to prevent disorder and to protect the rights and freedoms of others.

In determining whether the conditions are necessary in a democratic society and proportionate, the Commission has regard inter alia to the criteria set down in section 8(6) of the Public Processions (Northern Ireland) Act 1998 and to its own Guidelines made under section 8(5) of the Act.

In particular the Commission considers that there would be an adverse impact on community relationships, both locally and wider afield should the parade follow its notified route.  The Commission cannot see how the adverse impact on community relationships can be mitigated without genuine dialogue between parade organisers and representatives of the local community.  Such dialogue would reflect a serious effort to take account of each other’s point of view.

The Commission has set out in previous determinations why it is important for members of each of the loyal orders proposing to parade in Dunloy to engage with local residents.  Such engagement would contribute to establishing mutual respect between themselves and the local community by acknowledging that latter community’s right to respect for private and family life and the home.  The Commission has, however, no evidence of any attempt to establish such mutual respect on the part of the organiser of this parade.

Past experience has shown the potential for contested parades in Dunloy to result in public disorder with damage to property and injury to people.  It is not a point unappreciated by the Orange Lodge who, at a time before the Commission was set up, have also chosen not to carry out parades along their notified routes in Dunloy, sensing hostility there and no doubt the likelihood of civil disorder.  It is clear that a parade taking place in the village not only without agreement, but with no prior effort made to recognise the legitimate concerns or interests of the majority of the villagers is likely to pose a real threat of violence against property and persons.

The Commission acknowledges Dunloy as a predominantly nationalist community, but it also recognises the symbolic and spiritual significance to the Protestant community of the Presbyterian Church, its adjoining graveyard and the Orange Hall, all sited within the village.  We further acknowledge the will of part of that Protestant community, on occasion, to access the church in their traditional manner, by means of a parade through the village.  To prevent a parade following a certain course to the Church is not to deny them the legitimacy of that means of expression or indeed to prevent the expression or celebration of their Christian faith.  Dunloy Residents and Parents Association have expressed a willingness to the Commission to accept parades through the village.  However, they feel that such an outcome can only result from engagement between residents and parade organisers.  At present the Association notes that those seeking to parade through the village do not live in the village, while those who have paraded in the past to the church have not all attended the subsequent church service.

Other evidence received by the Commission suggests the potential for serious public disorder and community dislocation should a non-agreed parade take place.  The parade as notified by Dunloy LOL No 496, taking place within the present circumstances, could reasonably be expected to lead to violence and ill feeling which would tear communities further apart.

Having regard to the factors set out above the Commission considers that the conditions it now imposes are necessary and proportionate to the aim pursued.  The conditions are not such as seriously to affect the individual’s right to assemble.  The organisers can assemble at the Orange Hall, a place of their choosing, on a date and at a time of their choosing, to manifest their religion or beliefs as they see fit.  They are also not prevented from assembling at and attending their place of worship, on a date and at a time of their choosing, and there manifesting their religion or beliefs as they see fit.  Accordingly, the Commission believes that the conditions it imposes strike a fair balance between the needs of the Community and the rights of the individual.”

 	The Commission was constituted by the Public Processions (Northern Ireland) Act 1998 (the 1998 Act).  It has the power under section 2(2)(b) to issue determinations in respect of particular proposed processions.  Such determinations may by section 8(2) extend to imposing conditions as to the route of processions or prohibiting them from entering any place, but the power of prohibiting the holding of any procession is by section 11(1) conferred only on the Secretary of State.  Under section 8(5) the Commission, in considering whether to issue a determination and what conditions should be imposed by a determination, is bound to have regard to the guidelines issued by it pursuant to section 5.  Section 8(6) provides:
“     (6)   The guidelines shall in particular (but without prejudice to the generality of section 5(1)) provide for the Commission to have regard to –

(a)	any public disorder or damage to property which may result from the procession;

(b)	any disruption to the life of the community which the procession may cause;

(c)	any impact which the procession may have on relationships within the community;

(d)	any failure of a person of a description specified in the guidelines to comply with the Code of Conduct (whether in relation to the procession in question or any related protest meeting or in relation to any previous procession or protest meeting); and

(e)	the desirability of allowing a procession customarily held along a particular route to be held along that route.”

	The argument in the present application turned upon the relation between the requirements imposed by the 1998 Act upon the Commission and the provisions of Article 11 of the European Convention on Human Rights, which provides: 
“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.”

It is assumed by the Commission in its literature that the right to freedom of peaceful assembly extends to the holding of parades as well as meetings in public.  Neither party presented any argument to the contrary and we shall accordingly decide the present application on the footing that this is correct.  It appears to be supported by statements in the judgments of the European Court of Human Rights in Plattform “Aertze fuer das Leben” v Austria (1988) 13 EHRR 204 at paragraph 37 and Ezelin v France (1991) 14 EHRR 362 at paragraph 32.  We are not, however, to be taken as ruling either way upon this issue and it may have to be decided in some future case. 
	Nor was any issue raised that any of the provisions of the 1998 Act was incompatible with the Convention.  No notice was given of intention to raise such an issue and no argument was presented to us on incompatibility.  The burden of the argument put forward by Mr Morgan QC on behalf of the applicant was that some of the matters on which the Commission relied in reaching its determination, to which it was bound by the terms of section 8(6) of the 1998 Act to have regard, fell outside the terms of Article 11(2) of the Convention.  The impact on relationships within the community did not, he submitted, come within any of the exceptions specified in Article 11(2).  There was no recognised right or freedom of persons not to be offended by the sight of others parading in support of a cause which they opposed.  The Commission was entitled to take the possibility of disorder into account, but it was impossible to be sufficiently sure that it would have come to the same conclusion if it had restricted itself to this consideration and had not incorrectly had regard to the impact of relationships within the community in reaching its determination.  
	It is clear from the wording of the determination that the Commission had the requirements of Article 11 and the limitations of Article 11(2) in mind when it reached its conclusion.  It stated specifically in the second paragraph of the Decision that it was pursuing the legitimate aims laid down in Article 11(2), of seeking to prevent disorder and to protect the rights and freedoms of others.  It went on to say that it had regard to the criteria set out in section 8(6) of the 1998 Act in determining whether the conditions were necessary in a democratic society and proportionate.  
	We feel some doubt whether it can be said that there is a right not to be offended, and consider that there is some force in Mr Morgan’s argument on this point.  We do not find it necessary to decide the question, however, for it seems to us clear from the terms of the Commission’s determination that the basis for its conclusion was the risk that public disorder would ensue if the parade went ahead.  It 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.  
In any event, 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.  When one has to consider the impact of the Convention, however, the focus is not on the process of decision-making, but on the substance of the decision itself.  The issue then 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.
	We accordingly are of the opinion that the decision of the Commission to impose conditions preventing the parade from entering any public place in the village of Dunloy was not in breach of the provisions of Article 11 of the Convention and the Commission was not in error of law in its determination.  For these reasons we refused leave to apply for judicial review of the determination.

  IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

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IN THE MATTER OF AN APPLICATION BY DAVID ALEXANDER TWEED FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
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JUDGMENT

OF

CARSWELL LCJ

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