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Section 2 The duties and powers of local authorities in the Police, Public Order and Criminal Justice (Scotland) Act 2006

Purpose

21 This section of the report sets out the legal changes that have been introduced on the back of Sir John's review. It explains the amendments made to the duties and powers that local authorities have in relation to public processions. The guidance for local authorities sets out in more detail how they will be expected to operate these new conditions. You should read this section with section 3 which sets out the steps to follow for the parts of the process which are not legal requirements. The guidance for local authorities also repeats some of what appears in this section and so you should note that there is some crossover between the two publications.

When the changes will come into force

22 The legal conditions for marches and parades are in Part V of the Civic Government (Scotland) Act 1982 (c.45) (henceforth referred to as 'the 1982 Act'). The Police, Public Order and Criminal Justice (Scotland) Act 2006 (the 2006 Act) was given royal assent (approval) on 4 July 2006. As shown in the chair's foreword, the conditions on marches and parades in sections 70 to 72 of Chapter 2 of the act will not come into force until 1 April 2007. This is because Ministers want to give local authorities, the police and the organisers enough time to consider the changes and to prepare for the new processes they will need to follow. The parts of this report which are not legal requirements (see section 3) will also not need to be in place until the new legislation comes into force.

23 With this in mind, local authorities should consider notifications received before 1 April 2007 against the existing conditions in the 1982 Act. It must consider notifications from 1 April 2007 against the new processes outlined in the 2006 Act, which amends the 1982 Act, and this report.

Main changes to the law

24 The changes in the 2006 Act amend a number of areas of the current law and are meant to:

• give local authorities the opportunity to take account of a range of issues and views when deciding whether it is appropriate to place conditions on the march;
• give local authorities, the police and organisers, a better opportunity for dialogue and more time for planning; and
• achieve a consistent approach for marches and parades across Scotland.

Summary of the new conditions

25 The 1982 act has been changed to place the following duties on local authorities.

• The amount of notice that organisers of marches and parades need to give to local authorities of their intention to march is increased from seven days to 28 days. Local authorities can decide to waive this requirement in exceptional circumstances.
• The ability of local authorities to exempt marches and parades in their area from the requirements to give notice has been removed Instead, exemptions will apply only to funeral processions organised by a funeral director and to any other processions shown in orders made by the Scottish Ministers. This will mean there will be uniform decisions on exemptions across the country.
• When deciding whether to prevent a march or place conditions on it (for example, about route or timings), a local authority can consider the likely effect the march will have on public safety, public order, damage to property and any disruption to the life of the community. Local authorities should also consider if the march may place too much of a burden on the police.
• If a march is proposed and it is the same or similar to a march held previously (for example, a yearly Orange Order march), a local authority, when considering whether to prevent the march or place conditions on it, can take account of:
  • the effect of the previous march on public safety, public order, damage to property and any disruption to the life of the community;
  • how far the previous march placed too much of a burden on police and other public services; and
  • how far people taking part followed any code of conduct or guidance issued.
• Local authorities have a duty to keep a list of processions that have been held in their area to allow the public to see which marches happen regularly and which are likely to happen in the future.

Interpreting the new processes

26 The text which follows provides some advice on how local authorities should adopt the range of new duties and powers. An explanation of each part of the new process appears under the boxed sections which contain the relevant recommendation in Sir John's report.

Notification period

Recommendation 1: Organisers should give 28 days' notification to local authorities and the police of their intention to hold a procession.

27 The notification period in section 62 of the 1982 Act has been extended in line with Sir John's recommendation that organisers must give 28 days' notice to local authorities and the police of their intention to organise a parade. The Scottish Ministers recognise that some organisations gave more notice than was needed, but take the view that extending the period of notice will generally give local authorities more time to consider notifications in more detail than may have been the case previously. The extension to the notification period will also allow local authorities more time to plan for the event and to inform and take the views of the community on what may be taking place in their area over the coming months.

Exceptions to the extended notification period

Recommendation 2: In certain circumstances, where processions are arranged in response to unforeseen events, the 28 days notification period should be waived and organisers should be able to give less notification.

28 In keeping with Sir John's recommendation, Section 62(5) of the 1982 Act has been amended but still allows local authorities the ability to decide not to enforce the notification period, if necessary. Ministers continue to expect that the notification period will not be enforced in exceptional circumstances, for example where an organiser wants to arrange a march in reaction to a recent decision or announcement (for example, if a factory is to close down).

29 Local authorities do not have to consult the community (for example, gather their views and take these into account) before deciding whether or not to enforce the notification period in relation to a procession. This is because the Scottish Ministers recognise that there may not be enough time in each case for local authorities to do so. However, when there is enough time to do so, local authorities should take steps to give communities and businesses as much warning as possible. While the Scottish Ministers have not laid down any particular method for how local authorities should publicise an order which they make, methods could include those described in paragraph 36 of the guidance for local authorities.

Who should give notice of their intention to hold a procession?

Recommendation 3: All organisers should notify their intention to march to local authorities and the police.

30 Sir John's report points out that the provision in the 1982 Act which allows local authorities to exempt organisations from the notice process meant that they did not have the full picture of all the events that were taking place in their area. It also meant communities were not fully aware of some processions which might affect them.

31 As a result, the Scottish Ministers have inserted section 62(11b) into the 1982 Act to remove this inconsistency in approach by making sure all organisers (apart from funeral directors) give formal notice of their plans to hold a procession. Other exceptions can be added in an order made by the Scottish Ministers. You will find more advice on this in paragraphs 20 to 25 of the guidance for local authorities.

32 The Scottish Ministers consider that removing exemptions means that communities and local authorities will have a better picture of the processions that may be taking place in their area and can plan around them. As we said earlier in this report, we do not expect local authorities and the police to get involved in a bureaucratic operation to manage all marches. Many processions, including traditional local events, do not cause a disturbance and should be able to go ahead without local authorities placing restrictions on them.

33 If a local authority thinks that they may have a good case to add a particular procession to the list of processions to be made by order, they should write to the Minister for Justice at the address given in paragraph 24 of the guidance for local authorities. The Minister will consider any request and may decide to add processions to an order to be laid at the Scottish Parliament.

Reasons for making decisions on notifications

Recommendation 5, 16 and 17: Local authorities and the police should take certain key steps to assess notifications during the extended notification period; 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; local authorities should have discretion to impose conditions proportionate to the notification and to address the issues upon which it based its decision.

34 Under previous arrangements, local authorities had little time to consider notifications in any great detail and often restricted decisions on public-order issues and public-safety issues. Those issues are still important, but the amendments to Section 63 of the 1982 Act means local authorities must consider a range of issues on which to reach a decision after consulting the police on whether to prevent the procession or place conditions on it. Considering any risk to the public and threat to public order now covers:

• public safety;
• public order;
• damage to property;
• disruption to the life of the community;
• whether the march (either alone or with other events) would place too much of a burden on the police; and
• the effect of previous processions.

35 We note that Section 63(8)(b) of the 1982 Act allows local authorities to consider whether risks arising from holding the procession would place too much of a burden on the police. This burden is not about the financial costs associated with policing a procession but is about the general burden in terms of manpower and the other commitments that the police may have to cope with on the day of the procession. We advise that this issue is one of the main factors in deciding whether the procession should be allowed to go ahead without conditions being placed on it.

36 As is made clear in the guidance for local authorities, local authorities must examine all the factors before deciding whether it would be appropriate to prevent a procession or place conditions on it (such as re-routing this event). A local authority will need to make sure that any restrictions they place on a procession can be justified and do not affect the rights of those who want to march. As a result, any decision they make about preventing a march, or placing conditions on it, must be compatible with human rights. A local authority will only be able to place restrictions on a procession in line with what is set down in Article 11 of the Convention.

37 Ultimately, the changes to the law on marches and parades are about striking the right balance between the rights of communities and the rights of marchers and making sure that processions give proper notice, and are planned, discussed, and carried out in a modern, professional way.

We explore how practical the recommendations 5 and 16 are in more detail in section 3 of this report and the guidance for local authorities.

List of processions to be provided to the public

Recommendation 9: Local authorities should prepare an annual digest of processions with organisers at the beginning of the calendar year, and update it every quarter and ensure the digest is well publicised and accessible.

38 To make sure that communities get more information about marches before they take place, Sir John's report recommends that each local authority should produce a list of marches at the beginning of each calendar year, update it regularly and publicise it.

39 We appreciate what Sir John would like to achieve and have decided that local authorities can satisfy this by keeping lists and making them available under new sections 63(9)(a) and (b) and the information that is to be kept and made available under section 63 (10) of the 1982 Act. Paragraphs 40 to 47 of this report covering recommendations 10 and 11 of Sir John Orr's report set out how local authorities should produce and publish information to record the status of processions. Paragraphs 55 to 59 of the guidance for local authorities also set out more on the responsibilities that they have to involve communities.

Recommendation 10: Local authorities should provide up-to-date information about forthcoming processions to local communities using the most appropriate means.

40 The Scottish Ministers support Sir John's recommendation and would emphasise that letting communities know about processions is part of the new processes. Scottish Ministers have decided not to place any requirements on local authorities which would mean that they would have to consult community organisations about each proposed procession within their area, but they would ask that they pay particular attention to paragraphs 55 to 59 of the guidance to local authorities.

41 Local authorities will be responsible for regularly updating the lists needed under the 1982 Act and for rolling them forward. We would recommend that to meet the requirements of Section 63(10) of the 1982 Act that a local authority keep a list of processions for current notifications and says in the list that they need to receive any representations about holding any particular march or parade within a set time. (Each local authority would decide on this time limit, but we suggest giving at least two weeks before the date of each procession.)

42 We suggest that it may be helpful to provide advice on how the information for the lists should be laid out. This could be achieved by creating a simple-to-read table which could give the public the following details.

For lists kept under Section 63(9) of the 1982 Act

• The reference number of the notification.
• The date the notification was made.
• The name of the organisation which applied to hold the procession.
• Whether a decision was taken to prevent the procession or restrict it.
• If the procession was not allowed to go ahead, the reasons why it was prevented.
• The date the procession was held, if appropriate.
• The route the procession took, if appropriate.
• The number of marchers who took part, if appropriate.

For lists that local authorities may want to keep of current notifications under section 63(10) of the 2006 Act

• The reference number of the notification.
• The date the notification was made.
• The proposed date of the procession.
• The name of the organisation proposing to hold the procession.
• The proposed route of the procession;
• The expected number of marchers involved;
• The date by which they want comments from the public, if appropriate. (See paragraph 54 of the guidance to local authorities.)
• The current status of the notification.

Recommendation 11: Local authorities should maintain an 'opt-in' list for organisations to receive information about processions.

43 Sir John's report states that it is important for local authorities to make sure that some important groups receive regular updates about processions. This would allow these groups to plan better and work around any problems that could be caused by the procession. It would also make sure that the public are better informed of forthcoming events.

44 The Scottish Ministers welcome this recommendation. Section 63(10) of the 1982 Act will help to make sure that any person, organisation or other group who makes a request can receive information about processions which are to, or might, be held in their area. We suggest that local authorities create opt-in lists to let those on the list know about processions which are about to be held using e-mails or by letter. We provide an example in annex A of the guidance of the type of letter that local authorities could send to relevant organisations on the opt-in lists. You can find more information on opt-in lists in paragraphs 51 to 54 of the guidance for local authorities.

45 We would also recommend that each local authority's website provides a note of the list of the groups held on their opt-in list so that other interested individuals and organisations know that a list exists so that they could get in touch and ask to have their names added. Given that Section 63(10) of the 1982 Act places a duty on local authorities to give, if asked, any person or group information about processions, it may also be appropriate to keep a note of those who have asked for the information on processions. A local authority could then ask if they would want their name added to the opt-in list for future mail-outs.

46 It is for each local authority to decide which organisations they should include on their opt-in list. However, we have given some thought to the types of organisations which we consider might be the most appropriate for receiving information on scheduled marches. We do not provide a full list as each local authority will know who to contact as a matter of routine. However, general organisations could include:

• groups like local-authority committees;
• authority-wide groups like the Local Hotels'Association and bus companies;
• local groups like residents' and tenants' associations; and
• others like relevant MP or MSP constituency offices, voluntary organisations, tourist information centres and so on.

47 On community consultation generally, the community planning process, which local authorities must follow under the Local Government in Scotland Act 2003, can also be used as a basis for considering how public services can be provided for public processions which take place regularly in certain local authority areas. The Community Planning Partnership can decide what priorities to set for the local area, but if processions are discussed as part of this process, local authorities should involve communities in line with their existing community planning arrangements. The community planning process does not mean that local authorities have to consult the community every time that someone sends them a notification of a proposed procession. You will find more information on involving the community included in the Statutory Guidance on Community Planning (see paragraph 64).

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