CAIN: Democratic Dialogue: Politics in Public - Freedom of Assembly and the right to Protest (Report No. 8)

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Politics in Public

Freedom of Assembly and the Right to Protest


General Principles

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 framework.

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 political spectrum.

  • A number of countries, including Canada, Ireland, Italy, South Africa and the USA, have a constitutional guarantee of freedom of assembly.

  • 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 practice.

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 prohibited.

  • 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 transition.

  • 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 organisations (Ireland)

3. Tradition

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 practices.

  • 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 occasions.

  • 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 very flexible.

  • 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 actions.

  • 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.

5. Notification

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 notification period.

  • 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.

6. Constraints

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 event.

  • 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 order.

  • 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 been invoked.

  • 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 other authorities.

  • 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 police.

  • 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 traffic.

  • 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.

8. Opposition

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 cause.

  • 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 religious symbols.

  • 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 assemblies.

  • 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.

11. Policing

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 determinations.

  • 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 presence.

  • 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 and Palestinians.

  • 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.

13. Alcohol

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.

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