High Court of Justice in Northern Ireland Queen's Bench Division Decisions

The restrictions imposed on the proposed parade.

"18. In imposing these conditions, the Commission pursues the legitimate aims laid down in Article 10(2) and 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 this respect, the Commission has carefully weighed all representations and information received, including the views and advice of local police.

19. 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 5 of the Act and to which under section 8(5) it shall have regard when making a determination. The Commission genuinely believes that the restrictions, which it proposes, are the most appropriate in all the circumstances.

20. 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 to affect significantly the individual's right to assemble. 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 North Report.

(a) The right to peaceful free assembly should (subject to certain qualifications) be protected.

(b) The exercise of that right brings with it certain responsibilities; in particular, those seeking to exercise that right should take account of the likely effect of doing so on their relationships with other partes of the community and be prepared to temper their approach accordingly.

(c) All those involved should work towards resolution of difficulties through local accommodation.

(d) In the exercise of their rights and responsibilities, those involved must neither commit nor condone criminal acts or offensive behaviour.

(e) The legislation and its application must comply with the United Kingdom's obligations under international law, and provide no encouragement for those who seek to promote disorder.

(f) The structure for and process of adjudication of dispute over individual parades should be clear and apply consistently with as much openness as possible.

(g) Any procedures for handling disputes over parades and the enforcement of subsequent decisions should be proportional to the issues at stake.

Dunloy.

The Public Processions (Northern Ireland) Act 1998.

(1) 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.

(2) Without prejudice to the generality of subsection (1), the conditions imposed under that subsection may include conditions as to the route of the procession or prohibiting it from entering any place.

(3) Conditions imposed under subsection (1) may incorporate or be framed by reference to—

(a) the Code of Conduct; or

(b) any other document—

(i) prepared by the person or body organising the procession in question; and

(ii) approved by the Commission for the purposes of this section.

(4) The Commission may, in accordance with the procedural rules, amend or revoke any determination issued under this section.

(5) In considering in any particular case—

(a) whether to issue a determination under this section;

(b) whether to amend or revoke a determination issued under this section; or

(c) what conditions should be imposed by a determination (or amended determination) issued under this section,

the Commission shall have regard to the guidelines.

(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.

(7) A person who knowingly fails to comply with a condition imposed under this section shall be guilty of an offence, but it is a defence for him to prove that the failure arose—

(a) from circumstances beyond his control; or

(b) from something done by direction of a member of the Royal Ulster Constabulary not below the rank of inspector.

(8) A person who incites another to commit an offence under subsection (7) shall be guilty of an offence.

(9) A person guilty of an offence under subsection (7) or (8) shall be liable on summary conviction to imprisonment for a term not exceeding 6 months or to a fine not exceeding level 5 on the standard scale, or to both.

The grounds for judicial review.

(a) The Parades Commission has acted in breach of the applicant's rights under the European Convention contrary to its obligations under Section 6 of the Human Rights Act 1998 and has done so in particular by violating the applicant's rights –

(i) Under Articles 9, 10 or 11 of the Conventions (rights to freedom of religion, expression and peaceful assembly) by restricting the applicant's rights in pursuance of a name which is not legitimate within the terms of Articles 9(2), 10(2) and/or 11(2) of the Convention.

(ii) Under Articles 9, 10 and or 11 of the Convention by restricting the applicant's rights in a manner which is not necessary in a democratic society nor proportionate.

(iii) Under Article 6 of the Convention (or the procedural rights conferred by Articles 9, 10 and/or 11 of the Convention) by determining the applicant's civil rights in a manner so that –

(1) The applicant was not permitted to know the evidence or case against his notification for the proposed procession in order to be able to answer it.

(2) The applicant was neither informed of the representations, objectors nor the gist thereof in advance of the Parades Commission's determination such as to allow him or his representatives to make representations in relation thereto.

(3) The applicant was neither informed of the representations or advice of the Police Service of Northern Ireland nor the gist thereof in advance of the Parade Commission's determination such as to allow him or his representatives to make representations in relation thereto.

(4) The applicant was neither informed of the factors weighing against his notification in the mind of the Parades Commission or the gist thereof in advance of the Parades Commission's determination such as to allow him or his representatives to make representations in relation thereto.

(5) The applicant has not been given adequate reasons for the Parades Commission's determination and in particular has not been given any or adequate reasons as to why the Commission had public order concerns about the proposed procession.

(b) The Parades Commission's decision were taken in breach of its duty to act in a procedurally fair manner and in particular were so taken by virtue of the matters set out at sub paragraphs (a) (iii) above.

(c) The Parades Commission has unlawfully fettered its discretion in relation to what information or evidence might be made available to a person wishing to organise a public procession in the course of his notification.

(d) The Parades Commission has failed to give adequate reasons for its decision and in particular has failed to specific within a degree of particularity the public disorder which may result from the proposed procession being permitted or the reason why it would not be possible to control such disorder in a manner proportionate to the exercise of the applicant's rights.

(e) The Parades Commission has used its powers under Section 2(2)(b) of the Act for an improper purpose that is to require a person wishing to organise a public procession to communicate with the local community.

(f) The Parades Commission's decisions and actions were disproportionate in all the circumstances.

(g) The Parades Commission's decisions and actions were unreasonable in the Winsbury sense.

(1) The compatibility of section 8(6)(c) of the 1998 Act with Articles 9, 10 and 11 of the Convention.

(2) The validity of paragraph 4.4 of the guidelines.

(3) The purpose for which the Parades Commission made its determination.

(4) The proportionality of the interference with the applicant's rights.

(5) Procedural fairness in the making of the determination.

(1) Compatibility of section 8(6)(c ).

"4.1. As the past has shown, there is a huge potential for unresolved disputes over processions to create major lasting rifts in relationships between the communities in Northern Ireland. Often these disputes are symptoms of more deeply routed conflict but they can provide a violent response which only serves to tear communities further apart. In assessing the impact, of any, which a proposed parade may have on relationships within the community, the Commission will have regard to the following principle factors –

4.2 Location and route – Where residents and parade organisers are in conflict over proposals for parades to pass through individual areas, the Commission will take account of the –

Extent to which contested parts of the route comprise mainly residential or commercial property.

Demographic balance among the residents in the immediate area surrounding any contested parts of the route.

Presence of sites such as monuments or churches of other traditions or other sites associated with past events which give rise to sensitivity within the community.

Purpose of the parade and whether the route is necessary or proportional to that.

Availability of alternative routes which are not controversial.

4.3 Type and frequency of parades – The Commission recognises as a general principle that residents along the route of a parade have the reasonable expectation not to feel fear or a sense of intimidation because a parade is planned. Again, past events in the area will have a bearing on local sensitivities. In attempting to measure fear or sense of intimidation the Commission will take account of the –

Notified purpose of the parade.

Numbers notified to take part.

Past experience of the manner in which previous parades have been conducted.

Regalia associated with the parade.

Nature and number of bands notified to participate and the type of music it is reasonably anticipated will be played.

Frequency of such parades along the route.

4.4 Communications with the local community – The Commission will also take into account any communications between parade organisers and the local community or the absence thereof and will assess the measures, if any, offered or taken by parade organisers to address genuinely held relevant concerns of members of the local community. The Commission will also consider the stance and attitudes of local community members and representatives.

4.5 The broader context – There are other important considerations in gauging the impact of parades on relationships within the community. In some areas there has been a long history of inter community strife, much of which precedes any contention about parades and has its roots in the longer term conflict which has taken place across Northern Ireland. The Commission will have particular regard to any history of conflict associated with a given parade; including advice from the PSNI, in considering the potential impact which a proposed parade may have on relationships within both the immediate community and the wider Northern Ireland community."

"1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."

Article 10 provides for freedom of expression as follows:-

"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 States 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 11 deals with the right to freedom of assembly and association as follows –

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.

In addition, Article 17 deals with the prohibition of the abuse of rights and Article 18 with limitations on the use of restrictions on rights as follows –

"17. Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention."

18. The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed."

"So in paragraph (b) of section 8(6) the disruption referred to appears to be primarily (though not exclusively) that which may occur in the life of those members of the community who live in the area through which the procession is to pass. When one turns to paragraph (c) however, it seems to us quite possible to interpret the word "community" as referring to a wider group."

"It seems to us incontestable that the effect that the decision would have on relationships within the wider community was a factor relevant to the Commission's consideration of the application before it. In our opinion it was quite entitled to take that factor into account or to have regard to it, even if, contrary to our view it was not one of those falling within the wording of section 8(6). For this reason we consider that it is incorrect to suggest that paragraph 4.4 of the Commission's guidelines is ultra vires." (Pages 271 J to 272 B).

"[The Commission] was bound to have regard to the other matters specified in section 8(6) of the 1988 Act, but they did not form the ground for its decision to impose 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 of whether those restrictions were necessary in a democratic society and proportionate.

In any event, 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), what ever 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 as 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".

[28] Thus the decision in Tweed rejected the applicant's challenge on the basis first of all that the decision to impose restrictions was based on the ground of public disorder and that consideration of relationships within the community related to the different issue of the necessity for restrictions and secondly that in considering the impact of the Convention the focus was on the substance of the decision, where the Court was satisfied that the restrictions were justified. As to the substance of the decision in the present case I refer to the discussion of ground (4) "Justification and Proportionality" below.

(2) Paragraph 4.4 of the Guidelines.

(3) The Commission's Purpose.

First a public procession report prepared by the Police Service on 24 March 2004. This is a comprehensive document that sets out recent parading history, public disorder or damaged property which had previously occurred, a community impact assessment and a consideration of various Convention rights.

Secondly a situation report dated 24 March 2004 prepared by the Commission after discussions. It referred to the "communications strategy" adopted by the Orange Order in County Antrim and noted that a representative of the residents group in Dunloy considered that the communication strategy fell short of engagement with the local community.

Thirdly a Commission Secretariat paper of 30 March 2004 assessed criteria that were stated to be traditionality, impact on community relations, disruption to the life of the community, public order, disorder and damaged property and compliance with the code of conduct.

Fourthly a further situation report dated 2 April 2004 discussed a meeting with residents on 31 March. The applicant attached particular significance to a passage that indicated that a symbolic parade around the perimeter of the Orange Hall grounds would be acceptable to Dunloy residents. This was in effect the extent of the parade permitted by the Commission's determination. The paper noted that the residents resisted any parade into the village unless the Orange Order first engaged in dialogue with residents. The report stated -

"The view was expressed that if a parade was permitted without prior dialogue between the Orange Order and residents, then the residents group which has the support of most residents along the proposed route would be effectively disenfranchised."

(4) Justification and Proportionality.

"31. As enshrined in Article 9 freedom of thought, conscience and religion is one of the foundations of a `democratic society' within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.

While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to `manifest (one's) religion'. Bearing witness in words and deeds is bound up with the existence of religious convictions.

According to Article 9, freedom to manifest one's religion is not only exercisable in community with others, `in public' and within the circle of those whose faith one shares, but can also be asserted `alone' and `in private'; furthermore, it includes in principle the right to try to convince one's neighbour, for example through `teaching', failing which, moreover, `freedom to change (one's) religion or belief', enshrined in Article 9, would be likely to remain a dead letter."

"Whether (1) the legislative objective is sufficiently important to justify limiting a fundamental right;

(2) the measures designed to meet the legislative objective are rationally connected to it; and

(3) the means used to impair the right or freedom or no more than is necessary to accomplish the objective."

"Hand in hand with proportionality principles is a concept of 'latitude', which recognises that the Court does not become the primary decision-maker on matters of policy, judgment and discretion, so that public authorities should be left with room to make legitimate choices. The width of the latitude (and the intensity of review which it dictates) can change, depending on the context and circumstances. In other words, proportionality is a 'flexi-principle'. The latitude connotes the degree of deference by court to public body."

(1) The overarching need to balance the interests of society with those of individuals and groups.

(2) The recognition of the latitude that must be accorded to legislative and executive choices in relation to the balance of public and private interests.

(3) The legislative objective being sufficiently important to justify limiting the fundamental right.

(4) The measures designed to meet the legislative objective being rationally connected to it, that is, the measures must not be arbitrary, unfair or based on irrational considerations.

(5) The need for proportionate means being used so as to impair the right or freedom no more than necessary to accomplish the objective, that is, that the measures are the least intrusive, in light of both the legislative objective and the infringed right. The Court should consider whether the measures fall within a range of reasonable alternatives, rather than seeking to ascertain whether a lesser degree of interference is a possibility.

(6) The need for proportionate effect in relation to the detrimental effects and the advantageous effects of the measures and the importance of the objective.

(5) Procedural Fairness.

"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."

The applicant seeks a declaration that Rule 3.3 is unlawful ultra vires and of no force or effect.

"If the applicant or the lodge had attended a meeting with Commission in the context of the proposed procession, he and the lodge would have been provided with a summary of the material information, views and representations it had received. Such would have been discussed in general terms without prejudice to the operation of procedural Rule 3.3 discussed above."

The applicant contends that had such summary of material information, views and representations been received it would in any event have been insufficient to enable the applicant to address properly the adverse considerations. In the alternative the applicant contends that the respondent could have provided the summary to the applicant in written form.

"Where it is reasonable practicable to do so, the Commission will provide a summary of the grounds for its decision."

The written determination of the Commission of 11 April 2004 sets out the conditions placed on the organiser and participants in the proposed parade and the 20 paragraphs of text attached to the determination sets out the reasons.

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."