Politics in Public
Freedom of Assembly and the Right to Protest
The case studies illustrate a number of ways of addressing the
ways and means by which freedom of assembly and the tight to demonstrate
are facilitated in practice in a diverse range of countries. While
no single example provides a clear analogy or mirror to the situation
in Northern Ireland, collectively they can he used to highlight
a number of factors relevant to the current disputes here.
At the most general level we are interested in the relationship
between law and practice, between legal and constitutional guarantees
for civil rights and how these are played our on the streets.
Constitutional tights and legal frameworks often relate to idealised
situations rather than the messy and varied issues that arise
from daily life.
On issues of public order there is always a balance to be maintained
between law enforcement and keeping the peace. Sometimes the letter
of the law must be allowed to be broken in order to maintain a
wider peace. Sometimes the law must be changed if the situation
that the law applies to changes.
There are a number of limited issues that recur when dealing with
the practice of demonstrating. There is a narrow repertoire of
problems that need to be addressed and despite the varieties of
local context there is also a narrow range of practical solutions
that can be imposed whilst still working within a human rights
In the section that follows we draw out some of these practical
solutions which appear to be of most relevance to Northern Ireland.
Not all of them may be of use here and no single country could
provide a ready-made model of a workable solution to the current
disputes. We do not hold up these practices as necessarily providing
all the answers to the disputes over the right to parade here.
Rather we use them to illustrate that there are a variety of ways
forward and we suggest that they represent current international
best practice with respect to the basic right of freedom of assembly.
Each of the countries we have surveyed has faced some degree of
difficulty over pub demonstrations and each has addressed the
problem to a greater or lesser extent. The variety of approaches
illustrates that every problem has more than one solution.
1. Constitutional Guarantees
In Northern Ireland there is no constitutional guarantee of freedom
of assembly ot ot rights to public political expression. Rights
exist only as common law in so far as that which is not prohibited
or restricted is permitted. It has been suggested that any constitutional
settlement in Northern Ireland should include a Bill of Rights.
This argument has received widespread support from across the
- A number of countries, including Canada, Ireland, Italy, South
Africa and the USA, have a constitutional guarantee of freedom
- In most of these, this freedom is qualified, by extending
that right to peaceful assembly to assembly without arms.
- Furthermore, freedom of assembly is but one of a number of
such constitutional freedoms, which are of a similar or equal
status. Freedom of assembly is thus always limited and balanced
by other constitutional freedoms.
- As a constitutional right, freedom of assembly applies equally
to all members of and all sections of society. It is not conditional,
nor subject to approval of either the majority community or minorities
within the society.
- Constitutional tights are, or can be, limited by concerns
for public order, public safety, public health (Italy) and morality
(Ireland, Italy) and 'other reasonable limits' (Canada).
- Such unspecified or unfocused restrictions may be or can be
clarified by the courts. In Italy and the USA the courts have
overturned laws which they consider unduly restrict constitutional
guarantees. In Canada and South Africa the constitutional limits
have yet to be addressed by the judiciary.
- Three of the countries (France, Israel and the United Kingdom)
that we studied provided no constitutional right to demonstrate,
although in each country such rights had been established through
2. Legal Frameworks
All countries have a range of laws that are used to govern the
practical limits of the freedom of assembly and rights to demonstrate.
In Northern Ireland the right to parade has been managed under
the 1987 Public Order (NI) Order. Much of this legislation will
be replaced by the new Public Processions (NI) Act (see Appendix
for a summary of the main provisions).
- In France and the United Kingdom the right to demonstrate
is guaranteed neither by constitution nor legal framework, but
rather through the absence of formal restrictions. Under English
common law one is allowed to do something unless it is
- Israel has a somewhat intermediate position is so far as there
is no constitutional right to freedom of assembly. However, the
Supreme Court has defined it as a 'fundamental right'. As such
the government has issued legally binding directives to define
the framework of such tights.
- In France, Ireland, Italy and the United Kingdom laws defining
or limiting the rights of assembly were introduced during periods
of political disturbances during the 1930s, when there were widespread
and recurrent clashes between political opponents of the left
and right. In each country these regulations still provide the
basis for legal constraint.
- In South Africa a new legal framework defining the structure
of management of demonstrations was introduced as a result of
a commission of inquiry into public violence following serious
violence at political demonstrations during the period of political
- In each country laws have been enacted to define or to limit
the constitutional rights with respect to concerns for public
disorder. In all cases public order is cited as a legitimate reason
for banning ot restricting a public demonstration.
- Constraints can also be legally imposed for reasons such as
support for unconstitutional demands (France has banned demonstrations
in support of the legalisation of cannabis) or support for illegal
In Northern Ireland many parades that have been held for a number
of years are considered to be 'traditional'. Some believe that
'traditional' parades have greater rights than other non-traditional
parades. At various times in the past the significance of traditional
parades has been singled out in law. Under the Public Processions
Act the Parades Commission will have to take into consideration
'the desirability of allowing a procession customarily held along
a particular route to be held along that route' as one factor
when making determinations over contentious parades.
- The concept of traditional rights was not acknowledged as
a legal category in any of the other countries that we studied.
However some informal recognition was given to longstanding parading
- Traditional rights to demonstrate, at particular times of
the year or over specific routes, are rarely invoked elsewhere.
In most cases a pragmatic and flexible approach is adopted. Routes
are varied according to circumstances and change over the years.
- In Canada and USA there is a comparable concept of grandfathering
under which long established or important events have a tight
to either a specific route or a specific date or both.
- In New York and Toronto there are a limited number of grandfathered
parades each year, although the number can increase and has done
so in recent years. Many parades are organised by distinct ethnic
communities; in neither city does any single community have mote
than one grandfathered parade a year.
- The New York St Patrick's Day parade is the longest established
parade. Under the grandfathering system only the Ancient Order
of Hibernians are permitted to organise a parade on Fifth Avenue
on 17 March. Nevertheless the route has changed on a number of
- Grandfathering does not necessarily imply a longstanding practice,
the Khalsa parade, organised by the Sikh community and the West
Indian Caribana carnival parade in Toronto are both of recent
origin, but both are now considered to have the same tights as
long established grandfathered events.
- In London and Paris there are established or favoured routes
for large demonstrations, but these are not claimed by particular
groups, nor are there specific rights to use them. In Paris there
are also favoured areas for left-wing demonstrations and others
for right-wing demonstrations, but again these traditions are
- Tradition therefore exists as a limited concept in some other
countries, but it does nor transcend other concerns for
public order or disruption to daily routines.
4. Equal Rights
It is widely acknowledged the human and civil rights should be
applied equally and without discrimination to all members and
sections of society. In many countries equal rights have been
acknowledged in law but denied in practice. In Northern Ireland
the right to demonstrate has not been extended equally to all
people and all communities. Nationalists have argued that their
rights to demonstrate have often been denied while Unionists feel
that their rights are currently under threat. Recognition of mutual
rights is an important feature of any democratic civil society.
- Whether it is guaranteed by the constitution or by the law
it is widely accepted that the right to demonstrate should
be given or permitted to all members of a society equally.
- Nevertheless in some countries specific communities or political
groups may feel that they are discriminated against over the right
to hold demonstrations. In a number of countries the gay community
have had to fight for their right to demonstrate in recent years,
although their Gay Pride parades have become established events
in many cities.
- In Israel, despite an active assertion of a general tight
to demonstrate as a fundamental right, this right is not applied
equally to both Jewish and Arab citizens of the state. Arab Israelis
believe that their civil rights to political expression and commemoration
are not upheld with equal force to those of Jewish Israelis. However,
it is felt that the situation is improving through more assertive
- In France and the United Kingdom the political patties of
the extreme tight feel that their rights to demonstrate are not
safeguarded by the state in the same way as the rights of other
political patties. In Italy similar feelings have been expressed
by federalist parties.
- There is also clearly an issue when tradition is invoked to
give one particular community rights to demonstrate that are not
offered to other communities. In many cases this is overcome by
giving each community access to traditional events.
- Where rights are not extended to all sections of the community
equally there is clearly an issue for the state or for the courts
to address. Similarly when one political group or community seeks
to prevent another one from exercising its civil rights the issue
should be dealt with promptly rather than be quietly ignored.
Under the new Public Processions Act organisers of parades and
demonstrations will have to give 28 clays notice of their intention
to hold a public procession. Organisers of protest meetings will
have to give 14 days notice of their intentions. Notification
is given to the police on a standard form who then forward the
information to the Parades Commission.
- In all countries surveyed, except the Republic of Ireland,
there is a requirement to notify an authority of plans to organise
a demonstration, parade ot march. In all countries surveyed exceptions
are allowed when it is not possible to give even the minimum
- In Canada, England, France, Israel, Italy and the USA notification
must be given to the local police. In Scotland and South Africa
notification is given to the elected municipal authorities that
have the responsibility of liaising with the police.
- The required period of notification varies from three days
in Italy to twenty-one days in Canada. In practice even the three
days notification period is not strictly adhered to in Italy while
in Canada the police prefer to be given even longer notice wherever
possible. In England and Scotland, local agreements mean that
the loyal orders usually give much longer notice of their intentions.
- In most jurisdictions notification is notice of intent, rather
than a request for permission to demonstrate, although in Israel
organisers must receive formal permission. The authorities require
information on the time, place and scale of the demonstration.
They also want to know the reason for the event and the name and
address of those taking responsibility for its organisation.
- Notification usually leads to a process of negotiation over
the time and route that is proposed for the demonstration. There
is no generally accepted right that one can demonstrate wherever
and whenever one wants. Some form of compromise is normally reached
between the organisers and the authorities.
- In France, Israel and Italy any decision to prohibit or restrict
a demonstration should be notified in advance of the event. In
France and Italy this is to allow time for negotiations, in Israel
it is to allow for an appeal to the courts.
- In France the police and the organisers sign formal documents
that indicate the agreed terms of the event. This imposes a responsibility
on the organisers to follow the agreed route, time etc and on
the police to protect a legal demonstration.
- If no prior notification is given of a demonstration then
the event is deemed illegal. In all countries surveyed the police
have the right to disperse such gathering while the organisers
of illegal demonstrations can be subject to prosecution. In practice
the police often facilitate illegal demonstrations in the interests
of public order.
At present the RUC have the power to impose a variety of constraints
on the organisers of demonstrations relating to the route, the
timing and the content of the procession, but only if they have
concerns for public order. Under the new legislation the Parades
Commission will take over such powers and have produced a Code
of Conduct which sets our a broad range of standards that should
be adhered to. The Parades Commission will also be expected to
consider the impact a parade will have on relationships within
the community and any disruption likely to be caused to the life
of a community before imposing constraints. The RUC will retain
the right to impose constraints due to fears for public order
on the day of a parade. Only the Secretary of State can ban one
or more parades in their entirety.
- In all countries the authorities responsible for the policing
of parades have the power to ban parades or impose conditions
on them. The total prohibition of a parade is rarely exercised,
in most cases the authorities would expect to teach some form
of negotiated compromise if there were any problems with the proposed
- The most common reason for constraining or banning public
demonstrations is concern for public order. However public order
is a poorly defined concept. It is generally accepted that public
order means an absence of violence, but it is not clear how far
it also refers either to an absence of disruption of daily life
or to what constitutes the norm of public order.
- Usually the police have considerable flexibility to determine
the limits of public order and make a judgement on what might
constitute a threat to it. However, in Israel the police
are required to have more concrete evidence of active planning
for violence before they can ban an event as a threat to public
- Often the threat of a counter-demonstration or of some form
of protest is sufficient to invoke concerns for public order and
prohibit the original event. But in Italy the courts have decided
that in such a situation the original demonstration should be
permitted and the counter-event should be banned or constrained.
- In France demonstrations can be banned by the police if they
support or advocate illegal activities. This power is rarely exercised
although a proposed pro-cannabis demonstration was banned recently.
In contrast demonstrations against visiting heads of state or
important foreign visitors are often banned, heavily constrained
or subject to intensive security.
- In Italy demonstrations can be banned by the questore if there
are concerns for public health or morality, similarly in Ireland
demonstrations can be restricted on the grounds of concern for
morality. There is no indication that these concerns have ever
- In most cases the authorities are also concerned about disruption
that may be caused to daily routines. In Canada, France and the
USA there is a concern to minimise the disruption to traffic and
free movement of other users of urban areas. In Canada and the
USA the disruption to commercial life and business is also a key
factor in the timing or location of a demonstration.
- In contrast, in Israel the courts have determined that demonstrations
are an important feature of democratic life and therefore demonstrators
have as much right to use the streets as pedestrians and vehicles.
- In a number of countries demonstrations are, or can be, banned
from sensitive locations. Parliament buildings, government buildings
and courts frequently have restricted access. In New York demonstrations
are also banned from passing the United Nations building.
- In Israel demonstrations are usually banned if they are likely
to provoke religious hostility. Jewish demonstrations have been
banned from some strongly Palestinian areas, and Jews are not
allowed onto the Temple Mount in Jerusalem. Palestinian demonstrations
are generally restricted within Israel.
7. Time, Place and Manner
Under the new legislation and the Code of Conduct the Parades
Commission will be able to impose constraints on the route of
a parade, on the time of a parade and on the style and content
of a parade. Any such restrictions should only be imposed if mutual
agreement has not been reached as a result of local dialogue or
more formal negotiations.
- In the USA any restrictions imposed on the right to demonstrate
are readily challenged through the courts. Nevertheless the police
are able to invoke their right to restrict the time, place and
manner of a demonstration without limiting basic civil rights.
It is accepted that while people have the right to demonstrate
this will not always be facilitated in the time, place or manner
of their own choosing.
- While this is not explicitly formulated elsewhere, in most,
if not all, jurisdictions the authorities reserve the right to
limit the time, place and manner of a demonstration.
- Sometimes time, place and manner restrictions are imposed
because of concerns for public order or in order to avoid too
much disruption to daily life. Sometimes changes are imposed to
avoid undue restrictions on the civil rights of others. Sometimes
restrictions are imposed for the convenience of the police or
- In New York the police have imposed an arbitrary limit on
the number of parades that they will permit on Fifth Avenue each
year. As the main thoroughfare it is a popular route, but demonstrations
along it disrupt city life and make undue demands on the
- Similarly in Boston the police prefer to restrict the number
of outdoor public events that are held on any one day. Restrictions
are also imposed on the number of events held on weekdays or in
areas where they will cause too much disruption. New events are
therefore likely to be assigned the downtown commercial area on
a Sunday in winter.
- In Toronto the police will restrict the route of any demonstration
if it is likely to disrupt trade and they favour Sundays
for public assemblies.
- In London large demonstrations in the West End are encouraged
to rise 'traditional' and easily policed routes and are nor readily
allowed on weekdays because of the disruption they can cause to
- In each of these cases the right to demonstrate is upheld,
but the context of the demonstration is largely determined by
the authorities rather than by the organisers. Where possible
this is done as a result of discussions or negotiations, rather
than by arbitrary imposition.
Attempting to stop a legal demonstration is an offence under the
Public Order (NI) Order and will remain so under the new Public
Processions (NI) Act. However the RUC have often responded to
crowds of protesters by restraining a hitherto legal parade on
the grounds that to do otherwise would cause serious disruption
to public order. Unionists have complained that the police have
failed to enforce the law, nationalists have insisted on their
right to prevent parades going where they are not wanted. The
result has been to undermine faith in the rule of law.
All public demonstrations make statements about the issues a group
supports or opposes and demonstrations are, or should be able
to be, provocative. They are therefore likely to provoke opposition
or reaction from outsiders.
- While it is widely accepted that demonstrations should be
allowed to be provocative, all countries agree that there are
limits to acceptable provocation; demonstrations should not be
allowed to provoke fear or encourage violence. In many countries
sensitivity is also paid to local ethnic or racial differences
when considering the likely provocation a demonstration might
- Although many demonstrations may well provoke hostile opposition,
it is generally accepted that such opposition should not
be permitted to stop a legal demonstration.
- In the USA the police accept that a 'hostile audience' should
be allowed to protest within 'sight and sorind' of the target
of their hostility, but should not be allowed to prevent the other
demonstration from taking place.
- In Israel the police are expected to protect legal demonstrations
from hostile audiences even if the demonstration is being deliberately
offensive. Police have protected demonstrators who mocked or satirised
- In France and Italy counter-demonstrations are usually permitted
relatively near to the demonstration that they are opposing, but
are not allowed to interfere with it. In France the police
have a responsibility to protect the right of legal demonstrations
to follow their agreed route.
- However, in spite of these assertions of upholding the right
of legal demonstrations in practice counter-demonstrators are
sometimes able to stop them or force them to be rerouted. It is
nor unusual for far right or neo-Nazi demonstrations to be confronted
and stopped in France, the UK and the USA by left-wing opponents.
9. Provocation and Fear
The public order legislation in Northern Ireland makes it an offence
to incite feat, provocation and hatred towards people of different
religious beliefs, colour, race, nationality, citizenship and
ethnic and national origins, by the rise of words or behaviour
or through the display of written material in a public place.
- It is widely accepted that demonstrations can be restricted,
re-routed or banned if there is concern that there is a deliberate
attempt to provoke violence, to provoke fear or if there is a
reasonable feat of a violent reaction.
- In all countries town or city centres are usually regarded
as neutral zones and all sections of the community have a right
to demonstrate in such areas. Provocative demonstrations would
usually be tolerated in such areas.
- There are exceptions however. In France provocative demonstrations
against a foreign state are often prohibited or restricted, many
of these are planned for the centre of Paris. In Italy demonstrations
that are considered seditious or against the state can be banned.
- Residential neighbourhoods are more sensitive areas for demonstrations
and there would be more concern about the nature of any such public
- Although the US Supreme Court eventually ruled that a neo-Nazi
group should have been allowed to demonstrate in the heart of
Skokie, a largely Jewish suburb of Chicago, other countries would
be less tolerant of such behaviour.
- In South Africa the police were wary of any ANC demonstrations
that aimed to go near to Inkhata areas or vice versa.
- In Israel Jewish demonstrations are nor usually allowed to
pass through specifically Palestinian areas and, in general, caution
is given to the sanctioning of demonstrations by outsiders in
strongly Orthodox areas.
10. Appealing Constraints
At present there is no right of appeal against restrictions imposed
on parades by the RUC. Under the Public Processions Act only the
Chief Constable will have the right to appeal a determination
of the Parades Commission. Although there is a general right to
seek a judicial review of decisions concerning parades the judiciary
will only consider whether the correct procedure has been followed
and will not review the decision itself.
- All countries accept that an agent of state authority will
have power to ban or to impose constraints on a demonstration
Constraints or changes to original plans are usually arrived at
through negotiation with the organisers, however an agreed compromise
is not always possible. In most countries some means of appeal
against restrictions is possible.
- In Israel the Supreme Court has been willing to hear an appeal
against police restrictions on a demonstration at very short notice.
On a number of occasions bans or restrictions have been overturned.
The court actions have also led to clear directives being set
out by the government to define the tights and limits that should
structure police decision making.
- In South Africa the newly enacted Regulation of Gatherings
Act allows for the possibility of appeal against restrictions
on demonstrations This has not been taken up to date.
- In France, Italy and the USA appeals must go through the normal
court system and therefore can take a considerable time. In the
USA the Supreme Court has regularly overturned legal and bureaucratic
constraints on the right to demonstrate, but cases often take
several years to go through the complete judicial process.
- In each case, until the appeal process has been completed,
the original constraints on the demonstration remain in force.
- An appeal may well consolidate, establish or extend the right
of demonstrators bum because of the long time-scale involved may
have little impact on their ability to hold the demonstration
in the manner desired.
The RUC have overall and final responsibility for public order.
The RUC will be expected to advise the Parades Commission of their
assessment of the public order implications of any parade. The
Chief Constable, alone, has the tight to appeal to the Secretary
of State against a determination of the Parades Commission. The
RUC also have the tight to invoke concerns for public order on
the day of a parade and so overturn otherwise legally binding
- In all jurisdictions the police are responsible both for maintaining
public order and for facilitating the right of public assembly.
They also have a duty to minimise disruption caused by demonstrations.
- Policing demonstrations often also involves balancing concerns
for law enforcement with those of public order. As a result illegal
demonstrations sometimes have to be facilitated in order to minimise
the risk of inure serious disorder.
- In an ideal situation the involvement of police at demonstrations
should be kept to a minimum level. In many cases the police do
little more than control the traffic and maintain a discrete visible
- Ideal policing also involves working in conjunction with the
organisers of a demonstration. Good lines of communication are
an essential factor. In New York officers from the community relations
department act as intermediaries between demonstrators and the
front line police. In France the organisers of a demonstration
are expected to be at irs head where they can be easily contacted.
- In New York the police also have lawyers present to ensure
that their officers comply with the letter of the law and that
the rights of demonstrators are nor ignored.
- Given their responsibilities for public order, the police
must always be ready to deal with potential trouble. In all countries
there are either special riot police units or specific riot training
is given to all officers. Usually riot police are kept in reserve,
at a distance or our of sight until or unless they are required.
- A limited repertoire of weapons is used for riot control.
The standard equipment includes helmets, shields and barons. Tear
gas and water cannons are also available in a number of countries.
- At times live ammunition is, or has been, used against demonstrators
or protesters. In Israel live ammunition is used against Palestinian
demonstrators, but never against Jewish Israelis. In South Africa
live ammunition was used under the apartheid regime, and was available
in Italy until the early 1980s.
- Only the Israeli security forces rise rubber or plastic bullets.
They have never been considered as an option in Italy. In France
they were tried, but were considered too dangerous.
- In situations of serious political or social conflict the
police are often regarded as partial and are identified by demonstrators
as an opponent. Police action or even their presence at demonstrations
can therefore provoke rather than restrain rioting and other violence.
- Violent clashes between demonstrators and police occurred
frequently in Italy in the late 1940s and early l950s and again
during the l970s; in South Africa in the late l980s and early
1990s and clashes continue between the Israeli security forces
- In Italy the reform and demilitarisation of the police in
1981 was a factor in reducing the political violence. Similarly
in South Africa reform and restructuring of the police force has
been an essential part of the transition from apartheid to democracy.
Consumption of alcohol has been acknowledged as one source of
problems am parades and it is widely accepted that this issue
needs to be dealt with. To date the RUC appear to have been reluctant
to address this problem. Under the new legislation the police
will have greater powers to confiscate alcohol being carried or
consumed in the vicinity of a parade route and to stop and search
vehicles going to parades if it is suspected that they are carrying
alcohol. It remains to be seen whether such powers will be exercised.
- The consumption of alcohol is a prominent feature of many
public celebrations. Some degree of licence is given to public
drinking am demonstrations on public holidays and carnival or
carnival-like events. However, there is always a fragile balance
between acceptable use and over-consumption and abuse.
- In both Boston and New York excessive public drinking on St
Patrick's Day had become a serious problem by the 1980s. Drunkenness
led to extensive violence and attacks on police officers.
- In the late 1980s new regimes were introduced to prohibit
on street drinking and police were empowered to confiscate alcohol
in the vicinity of the parades. The police feel that within a
few years the nature of the parades had changed and had become
more family orientated and publicly acceptable events.
- In Toronto similar problems were associated with the West
Indian Caribana parade and festival. While less severe restrictions
were imposed, the police were able to constrain the sale and consumption
of alcohol to specific areas of the celebrations.
- There is also an issue of the consumption of illegal drugs
at some events like the Toronto Carabana festival and the Notting
Hill Carnival. In both cities police have said that they are conscious
of the potential for charges of racial harassment in such situations
and accept that some degree of licence must be given.