Review of Marches and Parades in Scotland

14 Recommendations on third element of remit - decision making

Introduction and summary

14.1 The third element of my remit was to look at the basis for determining when to restrict, refuse or reroute marches and parades. Local authorities are responsible for taking decisions on procession notifications under the current legislation, after consulting with the police and, if the procession is taking place in a National Park, the National Park authority. The processes for taking decisions vary and there is little time for a detailed analysis of notifications. Local authorities often feel constrained in the issues they can take into account. It is important to modernise and professionalise these arrangements.

14.2 My recommendations aim to improve current decision making processes by providing that local authorities continue to be responsible for taking decisions on notifications. I do not think that creating a new independent body to take decisions on procession notifications is appropriate in Scotland. In reaching decisions, local authorities should be able to take into account a wider range of variables based on evidence. They should be able to impose conditions on processions appropriate to address any concerns about its conduct. These conditions must, of course, comply with the relevant provisions in ECHR and the Human Rights Act 1998.

14.3 Generally, local authorities should respect the importance of traditional dates and organisers should be prepared where necessary to compromise over routes. The local authority should facilitate a meeting at the beginning of the process to discuss the notification with the organiser and the police, resulting in a signed outcome agreement. Local authorities should summarise the discussions, code of conduct and any conditions imposed on the procession in one document, a 'permit to process'. Recorded debriefing should follow processions, providing evidence about what happened, which can be taken into account in future notifications and inform future arrangements.

Recommendations

Who should make decisions?

14.4 Under the Civic Government (Scotland) Act 1982, local authorities are responsible for making decisions about procession notifications, requiring them to consult with the chief constable (and if relevant with a National Park authority). I consider local authorities are best placed to continue to take decisions on processions. Local authorities in Scotland are democratically accountable to their local communities. They take decisions on a wide range of issues for those communities. They are close to their communities and should act in a way that is appropriate to local circumstances, taking into account the views of their communities as they do so.

14.5 Given Scottish circumstances, therefore, I do not think that there is a need to establish an independent body, akin to the Parades Commission for Northern Ireland, for Scotland. The Parades Commission was set up following a detailed review of arrangements for processions in Northern Ireland prompted by various serious disputes in the summer of 1996 which required major intervention by the police. Previously decisions had been taken by the police. With the creation of the Parades Commission in 1998, decision making passed to a new and independent body, creating a distance between the decision making authority and the authority responsible for policing those decisions.

14.6 Clearly, the creation of the Parades Commission reflects circumstances in Northern Ireland. Its role is to make determinations on processions and also to support mediation and promote greater understanding between the different communities. Our history and culture are different. There can be no doubt that certain parades in Scotland, particularly those organised by the Loyalist Institutions, do cause issues for communities. I have heard considerable anecdotal evidence from people who have felt intimidated by parades they describe as 'sectarian' and which they feel 'promote bigotry'. However, we are fortunate that processions in Scotland have never lead to the sort of violence and tension experienced in the past in Northern Ireland. We do not have the same intensity of divisions within our society in this sphere of activity. More practically, organisers here have been receptive to compromise and prepared to enter into discussion with local authorities and the police.

14.7 I consider it would be disproportionate, given the number of processions taking place and the effects they have, to set up new and independent machinery to take decisions on processions. Nor do I think there is a role for a nationally appointed 'Parades Tzar'. Removing decision making from local authorities would lose the importance of a local link with decision making, based where communities are able to influence decisions which impact upon them. I believe it is more important to ensure that existing approaches work more effectively.

14.8 It was suggested by some during the course of the Review that decisions on processions should be taken by the police, as was the case in Northern Ireland and as is the case in England and Wales. The police have an important part to play in the overall decision making process, bringing evidence and information and taking an active part in discussions and planning. I think it is most appropriate that the decision should, however, remain with the locally elected body, as it is currently.

14.9 However, we must improve the way that the current decision making processes are implemented. I have come across too much inconsistency in approach. Local authorities need to exercise their powers responsibly and professionally and be given the right tools to support them in that duty. Organisers too need to ensure they adopt a responsible and professional approach. There are aspects of approaches elsewhere in the UK from which we can learn and we should not shut our minds to that. For example, there are aspects of the operation of the Parades Commission which could be applicable to Scotland: a recognised code of conduct; and transparent guidelines on the decision making process. Similarly, there are aspects of the approach in England, with more regular debriefing, more expert planning and better ways of telling communities that would work well in Scotland. There also needs to be some way of ensuring that an improved approach is being followed and, while I do not think that this is a role for a new national body, there does need to be effective monitoring, which I hope can be built into the responsibilities of existing bodies. I believe that the package of measures I recommend in my report, draws on the strengths of the current Scottish system but learns from others, where it is appropriate.

Recommendation 15

Local authorities should remain responsible for taking decisions on procession notifications.

Grounds for making decisions on notifications

14.10 The Civic Government (Scotland) Act 1982 empowers local authorities to prohibit or impose conditions on a notified procession after they have consulted with the chief constable. This has seemed to lead to quite a narrow and restrictive interpretation of the legislation. Many local authorities believe it is only appropriate for them to consider public order and public safety issues when reaching decisions on notifications and feel that they are very restricted in the conditions which they can impose.

14.11 The European Convention for the Protection of Human Rights and Freedoms makes clear that the right to peaceful assembly is a qualified one. This recognises that people's rights might be in competition with other people's rights and with the public interest and there may be a need to impose restrictions. The restrictions that can be imposed are those 'prescribed by law and are necessary in a democratic society in the interest 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 rights and freedoms of others'. To be necessary in a democratic society, a restriction should correspond to a 'pressing social need' should be proportionate to the aim pursued and should be justified by relevant and sufficient reasons.

14.12 Examples of the kind of restrictions that have been adopted in UK law are set out in the Public Order Act 1986. That Act provides that conditions can be imposed if there is a reasonable belief that the procession would lead to serious public disorder; serious damage to property; serious disruption to the life of the community; or intimidation.

14.13 Against that background, I consider that it is right that local authorities should properly be able to take into account a much wider range of issues than just public order and public safety when reaching their decisions on processions notifications. I think that approach fits well with the tenor of human rights legislation which is clear that the right to peaceful assembly is not an absolute one but a qualified one, where a range of restrictions can be imposed.

14.14 The information I received in written submissions and discussion generally supported me in coming to my conclusion. While considerations of public safety and public security should remain of paramount importance, most people felt there were wider considerations that should be taken into account. I found similar results in the telephone survey.

14.15 I recommend that local authorities should properly be able to take into account a wider range of issues when reaching their decisions about the conditions to be set on marches. There needs to be a consistent approach across Scotland, clarity about what those issues should be and the evidence which can be used to support decisions. A widening of the variables to be taken into account does, of course, need to be appropriate within the context of the ECHR framework.

14.16 The basis of the decision making process needs to be transparent to organisers so that they understand the types of issues that local authorities will properly be taking into account and the evidence they will be using to support the decisions. Local authorities will also need to explain their decisions and the reasons behind them to organisers and ensure that they are justified. It is also important that the decision making process is transparent to the general public so they understand how local authorities take their decisions. A longer notification period with a detailed risk assessment and impact analysis alongside the consideration of any views received from interested parties should produce factual information that can be substantiated and documented. As regular debriefings take place after each event, a record of the behaviour at processions will be built up, again contributing to the evidence base. It should be clear to organisers that the evidence of their behaviour collected as part of the debriefing process will be taken into account in considering notifications.

14.17 Many issues were suggested to me as being appropriate to be considered as part of the decision making process. I consider that it is appropriate for the following issues to be taken into account by local authorities when reaching their decisions about processions:

the risk of serious public disorder;
the risk to public safety;
the risk of serious damage to property;
the risk of serious disruption to the life of the community;
the risk of serious disruption to pedestrian and vehicular traffic;
the risk of serious disruption to business;
the risk of intimidation;
the presence of environmental hazards; and
health and safety issues.

14.18 These variables would allow local authorities to look at a much wider range of issues to consider the effects of a procession and whether imposing conditions could avoid or ameliorate some of the negative effects. For example, it would be appropriate for local authorities to consider:

under aspects of disruption - whether there were any other events or processions taking place at the same time which would have an impact; whether businesses were having important deliveries being made at the same time; the amount of disruption that numbers of processions along a particular route were regularly causing to the same community;
under intimidation - whether a route was being chosen to intimidate a particular section of the community, for example a far right group seeking to march through a community which was primarily minority ethnic or a predominantly gay area; whether a march appeared deliberately provocative; whether there were sensitive buildings on the route; or whether the organisers had peaceful intent;
under environmental hazards - whether there had been changes to road layouts, road works, demolition or building works; or whether the roads were suitable for the march in terms of width or volume of traffic; and
under aspects of the risk of public disorder - whether the risk assessment had shown a serious risk, perhaps looking at whether the relevant policing costs associated with preventing public disorder were disproportionate.

14.19 I would not expect that widening the range of issues which can be taken into account and ensuring there is clarity about those issues to lead to more bans. Clearly banning processions is a very extreme reaction in a democracy and should only be done in the rarest of circumstances. There still should be the presumption that processions should go ahead. However, I do think that a wider range of variables will allow a better balance to be struck between the rights of marchers and the rights of others. This will allow practical compromise around timings or routes based on sound reasoning and evidence.

Recommendation 16

Local authorities should be able to take into account a wider range of issues when reaching decisions on notifications. Their decisions should be evidence based and explained to the organisers.

The sorts of conditions that can be imposed?

14.20 Currently, local authorities accept most notifications and do not impose conditions on them through the order making powers they have under the legislation. In many cases, rather than making a formal order under the Act, practical issues are discussed with the police, or sometimes with the roads departments of local authorities, resulting in organisers agreeing changes before conditions need to be imposed. The range of conditions formally imposed through orders have included conditions: to avoid clashes of dates, timing and routes of other processions; to enable proper arrangements to be made for police supervision; for better traffic management; and to make changes to bus services. Orders are usually made based on police concerns although health and safety issues are also taken into account. Some local authorities feel that they are overly limited in the scope of conditions they can set and the control they have on the conduct of processions in their areas. Separately, also, a number of authorities have conditions on the behaviour and conduct of marches which could be seen to be a voluntary code of conduct that organisers follow.

14.21 It is important that local authorities have a degree of flexibility in the conditions they can set on processions. Again, these restrictions should be informed by the requirements of the ECHR framework. Local authorities should not be unduly fettered in the conditions they can set, as long as they can demonstrate that they are proportionate to the aims of the restriction and imposed for a justifiable reason, which is based on evidence, and in response to an issue they have properly taken into account in their decision making process.

Recommendation 17

Local authorities should have discretion to impose conditions proportionate to the notification and to address the issues upon which it based its decision.

The importance of dates and routes

14.22 There are certain dates that are traditionally very important to various organisations and communities. Many processions very often take place on the same date each year and are an important celebration for that community. It is important that, as far as is possible, local authorities should seek to respect these dates. For these annual events, organisers should be able to give considerably more than 28 days notice and these are the events that could form the backbone of an annual digest of marches discussed at the beginning of each calendar year.

14.23 To allow local authorities to respect the importance of traditional dates, there needs to be discussion and compromise around routes. I was pleased to note that many organisers, particularly those sometimes regarded as being intransigent over routes, recognised the importance of this compromise. For example the Grand Orange Lodge of Scotland made clear in their written submission that they would 'apply a cooperative attitude to any legitimate concerns with regard to parade dates, times or routes and make adjustments where necessary'. The Apprentice Boys of Derry gave a similar commitment. Cairde na hÉireann also recognise the need for 'genuine and voluntary negotiation' and dialogue. It is important that organisers continue to adopt this reasonable approach.

Recommendation 18

Local authorities should respect key traditional dates but organisers should be prepared to compromise over routes where necessary

Content of the notification

14.24 The current legislation makes provision for what organisers should include in their notification. It must include the date and time when the procession is to be held, its route, the number of people likely to take part, the arrangements for the control of the procession that the organiser is making and the name and address of the person who is holding that procession. Some local authorities provide forms for organisers to complete. The form is helpful in setting out clearly the information required by the authority and it often also sets out the general conditions expected for the conduct of processions. Other local authorities feel that, given the diverse nature of the processions taking place in their area, a standard form is inappropriate and written notice is requested covering the same key details about the procession. To ensure that they are able to reach a fully informed decision on the notification, some local authorities ask for other information to be provided including, the reason for the procession, the nature of the event, a check that the organiser has informed the police, whether it is an annual event, whether there will be a street collection, the assembly and dispersal arrangements, the names of any bands accompanying the procession with the named individual responsible for the band's behaviour as well as any details of a return procession. I consider a written, signed notification to be the key first step. The information in the notification should provide the basis for an initial discussion between the organiser, the local authority and the police.

Recommendation 19

Organisers should provide a written, signed notification providing the key information required by the local authority.

Discussions before a march takes place

14.25 Once the signed notification has been received, at least 28 days before the intended date of the procession, the local authority should arrange to meet with the organiser, the police and, depending on the nature and size of the procession, any other key groups it considers relevant. Such groups might include, residents associations, community councils, the NHS Health Board, other emergency services, places of worship on the route and business organisations. A wider group will not be necessary for every notification. Currently such precursory discussions only take place between the organiser and the police. As the local authority is responsible for taking the final decision on the notification, they should be facilitating and centrally involved in these early discussions.

14.26 The basis of the precursory discussion should be the signed notification. Each aspect of the notification should be considered confirming the organisers, the purpose of the event, the assembly arrangements, the route of the procession, the timings of the procession and the dispersal arrangements. Such early discussion will uncover any initial practical problems - for example a clash with other arranged events, road works on the proposed route - and allow them to be considered, and if possible addressed. It might be that local authorities require more information from the organisers at this stage. For example, to establish the nature and purpose of the procession, the authority might want to consider the organisation's constitution.

14.27 The precursory meeting will also provide an opportunity to discuss wider issues about the notification, such as:

the organiser's plans for public safety, such as the arrangements for control and coordination during the procession, whether there are any specific safety provisions and whether they have appointed a specific public safety officer;
the organiser's plans for stewarding, the level of stewarding, the chief steward, head stewards, numbers of other stewards, their methods of communication, how they will be briefed on their role and their means of identification; and
the organiser's plans for contingencies, such as the provisions for a delayed start, the provisions for discontinuing the procession, how to communicate any emergency route changes should they be necessary, alternative arrangements in the case of foul weather.

14.28 Clearly, this will require the organiser to have thought carefully about the arrangements for the procession. In most cases, before attending this meeting, the organiser will have completed a risk assessment for the procession which he might want to share with the local authority and the police. The precursory meeting will also give the local authority and the police an opportunity to go through aspects of the code of conduct that will be included as part of the 'permit to process' (see recommendation 21).

14.29 The outcome of the discussion should be agreed by all present and result in a signed agreement so that all are clear about the outcome. Should there be later disputes about what was agreed, this document will provide evidence of what was agreed. The local authority will then be able to consider the agreed record of the discussion as part of their consideration of the notification.

Recommendation 20

There should be a precursory meeting following the submission of a signed notification facilitated by the local authority, involving at least the organiser and the police, resulting in a signed outcome agreement.

A 'permit to process'

14.30 Under the current legislation, organisers are required to submit a notification of their intention to organise a procession. It is a key principle of the legislation that they are not applying for permission to exercise their right to peaceful assembly but simply notifying the local authority and the police of their intention to do so. I considered whether, in fact, organisers should be applying for permission to process. I concluded, given the framework of the human rights legislation, that it is not appropriate to require people to seek approval from local authorities to exercise their right to peaceful assembly. However, the right it is a qualified one and there has been opinion by the European Commission on Human Rights that states it is appropriate for authorities to set up an authorisation process for processions on the public thoroughfare to ensure that processions are peaceful. The Civic Government (Scotland) Act 1982 sets out that authorisation process in Scotland. My recommendations are designed to improve and refresh that system building on its principles.

14.31 Under the existing legislation, the local authority has the power to accept the notification, set conditions on processions, or to prohibit them. I consider that local authorities should continue to have formal order-making powers to prohibit or impose conditions on processions. The provisions allowing such orders to be varied, revoked or appealed to the sheriff should also continue. However, in the vast majority of cases, the local authority accepts the notification and the procession goes ahead. Some local authorities acknowledge to the organisers that they have considered the notification and do not intend to impose conditions. I have ascertained that some local authorities do not inform organisers who are required to assume that their notification has been considered and accepted as they have not been advised to the contrary. This can be confusing to the organisers. I think that it is important that local authorities inform organisers in all cases that their notification has been considered and of the outcome of that consideration.

14.32 I think it would be helpful to local authorities, the police and to organisers, if the outcome of the consideration of the notification was recorded in a consistent and more standard way. Such a document, which I describe as a 'permit to process', could bring together the key strands of the notification process. The document could record what was agreed following the notification and the precursory meeting and set out the code of conduct that organisers and participants were expected to follow. In the very small minority of cases, where local authorities had exercised their powers to make an order setting formal conditions on the procession, the 'permit' could also record those conditions. This will ensure clarity on what had been agreed and what was expected - in effect, summarising the organisers' responsibilities.

14.33 In implementing this recommendation, further thought will need to be given to how breaches of aspects of the 'permit' (other than the conditions imposed by local authorities order-making powers) should be treated and whether there should be formal sanctions attached to breaches of agreements or the code of conduct. I consider that organisations' willingness to ensure they follow what was agreed and the code of conduct should be one aspect of the debriefing process (see recommendation 23). Local authorities should be able to take into account previous behaviour when considering future applications. Organisers who had not followed the 'permit' should expect to be required to prove for future notifications that they had taken action to address those areas of concern. For example, had the organisers' stewarding not proved effective, they might be expected to demonstrate that they had taken action to improve their arrangements.

Recommendation 21

Once the notification has been considered by the local authority, the authority should issue organisers with a 'permit to process' outlining what had been agreed and what was expected.

A fee for a 'permit to process'?

14.34 The principle of paying fees for licences from local authorities is a well established one. For example, amongst others, taxis drivers, street traders, marker operators and metal detailers pay a fee for a licence. There are also fees for temporary licences such as for a funfair or public entertainment. The fees are set at a level which covers the application process, including the appeals process. People suggested that organisers of processions should also be required to pay a fee. There is, however, an important principle at stake here and I do not think there is a valid straightforward comparison to be made with the local authority licensing regime. In requiring organisers of processions to pay a fee, there would be a real risk of establishing a two tier system of those who could afford to pay to process and those who could not.

Recommendation 22

Organisers should not be required to pay a fee for a notification to organise a procession.

Regular debriefing after processions

14.35 Very little regular debriefing involving the police, the local authority and the organiser currently takes place. Some local authorities said that they would only organise a debriefing if something had gone wrong during a procession and that had not yet occurred. One local authority carries out debriefing for larger events, run by a professional events company, such as events around Hogmanay. Some police forces also carry out internal debriefing, requiring the relevant officer to report on events which occurred at a procession, including the number of people arrested or reported, the number of police involved and general comments about the conduct of the procession. These reports are sent to operational planning units to be collated. Occasionally, if particular issues arise, then the police will discuss it locally with the organiser. Copies of the debriefing report are kept by the police and will be considered if there is a future notification from the same organiser.

14.36 I consider it essential to develop this system of informal debriefing, to formalise and regularise it. Debriefing provides an excellent opportunity for those involved in processions to exchange their experiences of the event from their own perspectives. An open discussion will allow grievances to be aired and successful outcomes to be shared. It allows those involved to consider what went well and what could be improved. Debriefing will also provide valuable information to improve the handling of future processions. However, there should be scope for the local authority, the police and the organiser to agree that no debriefing is necessary. This might be the case for small, annual events where there is little to be learnt or for one off events unlikely to be repeated. In most cases, there should be a presumption towards debriefing taking place.

14.37 Debriefing provides an opportunity to look at the conduct of the procession to see whether the organisers met the agreed conditions as set out in their 'permit to process'. If there were any difficulties associated with the march, it allows those involved to discuss that in detail and identify whether it was the participants involved in the march responsible or whether it was caused by onlookers, not formally participating in the march. There would be an opportunity to examine how that could be addressed in the future - for example, was the stewarding effective and did the police and stewards work cooperatively. It would also allow other issues to be explored. For example, organisers have reported to me that sometimes they feel that events have been over-policed. During a debriefing those concerns could be explored and the reasons for the level of deployed police resources explained. It will then help to inform operational police planning for future processions.

14.38 I would expect a record of the debriefing meeting to be prepared and signed by all those present. It might be necessary to record a divergence of views as those involved could have different perspectives but I would hope that in most cases there will be agreement around what had occurred at the procession.

14.39 Information collected as part of the debriefing process will be helpful in forming an evidence base against which future notifications can be assessed. Building reliable evidence is important to inform local authorities' consideration of future notifications, moving away from relying on anecdote or recollection. Organisers will be clear that that information will be retained and considered in future applications. For organisations which arrange processions in many local authority areas, it might be valuable to share such debriefing reports more widely to allow better planning and preparation. For annual processions, it will help local authorities, the police and organisers to plan more effectively for future events.

Recommendation 23

Debriefing meetings should be held after processions with the organisers, local authority and the police and other relevant groups resulting in a signed record of what occurred.

Third element of remit: decision making - summary of recommendations

Recommendation 15

Local authorities should remain responsible for taking decisions on procession notifications.

Recommendation 16

Local authorities should be able to take into account a wider range of issues when reaching decisions on notifications. Their decisions should be evidence based and explained to the organisers.

Recommendation 17

Local authorities should have discretion to impose conditions proportionate to the notification and to address the issues upon which it based its decision.

Recommendation 18

Local authorities should respect key traditional dates but organisers should be prepared to compromise over routes where necessary.

Recommendation 19

Organisers should provide a written, signed notification providing the key information required by the local authority.

Recommendation 20

There should be a precursory meeting following the submission of a signed notification facilitated by the local authority, involving at least the organiser and the police, resulting in a signed outcome agreement.

Recommendation 21

Once the notification has been considered by the local authority, the authority should issue organisers with a 'permit to process' outlining what had been agreed and what was expected.

Recommendation 22

Organisers should not be required to pay a fee for a notification to organise a procession.

Recommendation 23

Debriefing meetings should be held after processions with the organisers, local authority and the police and other relevant groups resulting in a signed record of what occurred.

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