The Haass / O’Sullivan Proposed Agreement on parades and flags: analysis from a human rights perspective

CAJ made two submissions to the Haass process. The first (S419) related to advocating a single mechanism to deal with the legacy of the conflict. The other sets of issues dealt with by the Panel of Parties, including “Flags, symbols, emblems and related matters” and dealing with parades and protests, were dealt with in a second CAJ submission (S418). This article provides commentary on these two issues in relation to the recently published (31 December 2013’) ‘Proposed Agreement’ ‘Among the parties of the Northern Ireland Executive’ resultant from the talks chaired by Richard Haass and  Meghan O’Sullivan.

Flags, symbols, emblems and related matters:

This topic is more quickly critiqued given that the document is clear little agreement was reached on the above matters. Instead it proposes to defer further discussion to a ‘Commission on Identity, Culture and Tradition’. As well as flags and emblems this Commission will have a broader remit also covering at least “Irish and other languages, including Ulster Scots; a Bill of Rights; gender; public holidays, possibly including a day of remembrance or reflection for Northern Ireland.” The 15 member Commission composed of political parties and independent members is to produce a report after a year and be constituted not less than three months ‘following the signing of this Agreement’. Some commentary is also included in the Proposed Agreement on two issues related to flags: namely the official display of flags and the unofficial display of flags on public property.

In relation to the former it notes panel members discussed a number of options in relation to Council flag flying but did not reach agreement. The document states that a common position will not be reached on flag flying and the display of other emblems “Without a larger consensus on the place of Britishness and Irishness—for which there must be a special and protected place alongside other identities, national or otherwise, represented within our society.” It states that this is the case as the flags and emblems are “in fact manifestations of these identities.” The document cites provisions of the Belfast/Good Friday Agreement (B/GFA) in the context of flags, including provisions on constitutional status, the right to identify yourself and be accepted as British or Irish (or both), and the B/GFA provision on symbols and emblems in new institutions promoting mutual respect rather than division. Notable by its absence however, beyond a reference to ‘parity of esteem’ in the document’s introduction, is consensus to include the most obvious – yet unimplemented – provision of the Belfast/Good Friday Agreement relevant to the subject. This is namely the statutory duty on public authorities (to be enshrined within our long awaited Bill of Rights) to promote equality of treatment for the identity and ethos of the two main communities (in a manner consistent with the rights of others – see CAJ submission S418 for further detail).

In relation to the second issue of unofficial displays of flags on public property (presumably including but not limited to, lampposts), the panel considered both formal regulation through law, and informal community dialogue based mechanisms. The panel however did not reach consensus, beyond affirming that paramilitary flags and displays should be banned. The main obstacle cited was agreement on guidelines for public display of flags and emblems and enforcement mechanisms for the same. The document does recognise, in an echo of the current largely unimplemented flags protocol, that flags can both be used to celebrate…’identity and culture’ and to mark ‘civic, historic, or other occasions’ but also to ‘demarcate territory’ or ‘intimidate individuals’. CAJ’s submission S418 advocated an ECHR centred human rights framework be “developed and applied consistently in relation to all powers to limit political expression in public space and on public property.” The lack of agreement does leave the status quo in which flag displays on lampposts (or even kerb painting), including those with the purpose or effect of sectarian intimidation, are largely tolerated whereby legislation on other forms of expression has been enforced (e.g. sanctions for publicly putting up posters on lampposts etc- with CAJ aware of cases where persons putting up posters advertising political or parent teacher association events have been fined, or threatened with fines, or in one case with anti-G8 posters, arrested). In this sense present policy at worst could be characterised as restricting minority political and other expression whilst simultaneously tolerating the sectarianisation of public space.

Whilst little progress was therefore made to date on the subject of flags and emblems, there is much more progress on the subject of parades regulation within the document. This includes proposals which have the positive potential to enshrine human rights based criteria into the decision making framework on parades.

The Proposed Agreement and Parades Regulation

The Haass process is one of a series of initiatives resultant from crisis talks to seek an alternative framework for parades adjudication since the North Report led to the transfer of parades restriction powers from the RUC to the independent Parades Commission, whose powers were established under the Public Processions (Northern Ireland) Act 1998 (PPA). Similar attempts to reform the framework, all ultimately unsuccessful, were made by the Strategic Review on Parading (post the St Andrews Agreement) and the Working Group on Parades (post the Hillsborough Agreement). The main positive from a human rights perspective has been the gradual movement towards a more explicit human rights based framework for decision making on parades centred, as it in any case as it legally has to be, on the European Convention on Human Rights (ECHR). Under s6 of the Human Rights Act 1998 public authorities- including the Parades Commission and any successor bodies – must act in accordance with ECHR rights. This includes ECHR Articles 10 and 11 on freedom of expression and assembly, any restrictions on which must be:

•  Adequately ‘prescribed by law’ i.e. that there is a clear power and basis in law for the restriction;
• In pursuit of a one of a number of listed ‘legitimate aims’ the most relevant of which are the ‘protection of the rights or freedoms of others, ‘public safety’ and the ‘prevention of disorder’
•  ‘Necessary in a democratic society’ i.e. meet a pressing social need and be proportionate to the legitimate aim pursued;[i]

CAJ argued in our submission that decision-making on parades and their counter protests should continue to be undertaken by an independent body. We stressed the importance of everyone’s right to peaceful assembly, including the right to parade and protest, as well as recognising the importance of addressing and protecting persons from the expressions of sectarianism which are often associated and manifest, in particular, with the marching season. Our main focus was precisely to seek amendment to the PPA to align the grounds in the law for restrictions with human rights standards, under an ECHR framework:

CAJ recommends amendments to the legislation governing decision-making on restrictions on parades and their counter protests to more explicitly align the criteria with the ECHR ground of ‘protecting the rights and freedoms of others’ to move away from reliance on public order considerations, and to provide an objective framework in which we would like to see decisions taken and explained, on human rights grounds, in greater detail.[ii]

Whilst ultimately advocating such an ECHR based framework the last attempt at reform following the 2010 Hillsborough Agreement also contained significant pitfalls. The system proposed was complex, had the potential to lack independence from political decision making and controversially included a widely derided, probably unlawful  and ultimately dropped proposal to extend lengthy parade notification requirements to a vast range of other public assemblies and gatherings. In its absence the Parades Commission was retained as were the decision making criteria under the PPA.

Like Hillsborough the present proposals envisage the UK government transferring powers over parading to the devolved institutions and legislation going through the Assembly to set up a new structure. Whilst the devil will always be in the detail there are a number of positive signs as to what is being proposed, including proposed changes to decision making criteria. The following examines these and other elements of the proposals and their positives and limitations from a human rights perspective.

Two new Institutions to administer and adjudicate on parades etc

A two-tier system is now proposed to replace the Parades Commission with two new institutions auspiced under OFMDFM. The first a ‘non departmental public body’ (NDPB) is the Office for Parades, Select Commemorations, and Related Protests (‘the Office’) with what are described as administrative functions of receiving notifications, as well as facilitating dialogue and mediation. The second institution, which will be an ‘independent regulatory body’ will be the ‘Authority for Public Events Adjudication’ (the Authority) which will have the role of taking decisions on applying restrictions on events referred to it. This will be a seven member body with a legally qualified chair of ‘senior standing’. The proposals post Hillsborough had been criticised as having the potential to lack sufficient independence from political-decision making. There had also been controversy over ultimately unlawful appointments to the Parades Commission by the NIO. The present proposals seek to address these criticisms. They state that no members of the new Authority can be elected representatives, the Chair of the new Authority will be appointed by the NI Judicial Appointments Commission and the other six members, and the director of the Office, will be appointed by OFMDFM in a public appointments process consistent with the Code of Practice of the Commissioner of Public Appointments.

Notification Requirements

A notification requirement of around 25 workings days is proposed for parades.  A more flexible system for submitting notifications is also proposed with online and postal facilities planned as well as being able to take notifications directly to the new Office.  The Office will have the power to return incomplete notifications to organisers. As at present there is also a shorter notification period for counter-protests to parades, although under the present proposals it is a brief window of five working days from when the notification is published.

The PPA does allow for exemptions, including funerals, and it is proposed to maintain this.  Whilst the proposals do not follow the controversial attempts under the Strategic Review and Hillsborough to extend parade notification requirements to a vast range of other public assemblies, they do anticipate an extension to what are termed ‘select commemorations’.  These are ultimately defined as ‘events’ (moving or static) marking events of public significance that ‘occurred in’ or have a ‘clear connection’ with Northern Ireland.  Although it does not explicitly say these are outdoor events on a road, the definition is qualified only to include events which have the potential to ‘disrupt normal public services’ (cited as traffic, public access to any location and other factors). This extension is much more limited than those previously mooted and does avoid the pitfall imposing notification requirements on a much broader range of protests. There is however notably no explanation as to the rationale for this extension (e.g. demonstrating that it is justified by evidence of the same rights based considerations applied to parades also applying to ‘select commemorations’) and there will no doubt will be debate as to what the proposed definition will capture. Another matter that will only become clear under draft legislation is whether this will remove the PSNI power under public order legislation to impose restrictions on ‘open air public meetings’ from those which are ‘select commemorations’. If so such legislation may wish to also address the issue of the PSNI powers under public order legislation to restrict those protests and other assemblies which rightly do not require notification. At present such legislation could also merit amendment to more closely align its provisions for restrictions with the ‘legitimate aims’ criteria under the ECHR.

The proposals also redefine parade-related protests to include protests against counter protests to parades. This means such ‘counter-counter’ protests will fall within the remit of the new system.

Whilst legislation would clarify the detail, the provisions for late notification seem to be more complex than the existing formulation under the PPA permitting late notification when it is not ‘reasonably practicable’ to meet the time scale. The current proposals will allow late notification in ‘unusual circumstances’ cited in the context of ‘unforeseen developments’ and organisers are to set out the ‘exceptional circumstances’ which led to late notification on their notification form. This will be forwarded to the adjudication Authority, the Authority is then to judge if the late notification was justified. If it decides it was not justified it is to issue a ‘summary ruling’ banning the event. Notwithstanding the need to ensure event organisers do not flout reasonable administrative requirements for no good reason rendering the system pointless, the gravity of this particular blanket sanction does engage issues of ECHR compliance. A ban in many circumstances is likely to be regarded as a disproportionate sanction, particularly if an event proceeds regardless and there are multiple prosecutions in contexts where the event in question does not impinge on the rights of others or lead to disorder. As the notification is to be passed to the Office and then to the Authority for adjudication it also is not clear if there is any provision for spontaneous marches. This is an area that could be further considered as the proposals develop to build in a proportionality element to sanctions.

Sanctions under the new arrangements

The proposals state that all parades/ counter protests/ select commemorations which lack an excepted notification “shall be illegal and should not normally proceed, and all those participating shall be liable to prosecution” with the PSNI being responsible for enforcing the provisions, as is currently the case. It also states that “Any variation in the event materially departing from the terms of the notification shall be unlawful.” The actual sanctions are not yet detailed; under the PPA they can include a fine or up to six months imprisonment.

The above provisions are similar to the current powers under the PPA but the new proposals do not address some of the problems of legal certainty as to how and when the powers will be exercised by the PSNI. There will be circumstances when both banning the event and/or mass prosecuting participants will be disproportionate and itself be unlawful under the ECHR.[iii] There should therefore be further delineation and proportionality criteria set in accordance with ECHR requirements, which make clear the types of circumstances when charges are likely to be levied and against whom.

It would also be helpful if implementation legislation provided for the use of the powers of sanction to be monitored, including on equality grounds, as such monitoring and the following of objective criteria can mitigate against the potential for actual or perceived bias in application.

There are also duties on organisers to take reasonable steps to limit numbers to those notified, discourage bad behaviour by participants and make them aware of the Code of Conduct. The Code of Conduct itself is also planned to be set out in legislation “in order to give it the full force of the law.” It is not clear to what extent breach of its provisions would be actionable – though the document states its inclusion legislation would “allow for its enforcement by the PSNI” which implies that not abiding by its provisions could lead to criminal sanctions. Breaches of the Code, as is presently the case, could also presumably result in restrictions on future events. However should it be intended that not abiding by a provision of the code could itself lead to criminal sanctions this raises clear issues of ECHR compatibility in relation to both proportionality and each provision needing to be justified under a ‘legitimate aim’ under the EHCR. This is further discussed below.

Community dialogue and mediation

As has been the case with the previous reform proposals the Proposed Agreement places significant emphasis on dialogue and mediation with a call for “all parties involved in related disputes to engage in sustained and meaningful dialogue as a matter of priority and with due regard for the rights and responsibilities of all sides.” The proposals encourage ongoing dialogue but also plan a formal process whereby there are ten working days to lodge an objection to a parade /select commemoration, and during which it is expected that the parties themselves engage in ‘sustained and meaningful’ dialogue to resolve differences over the conduct of the event. The Office will not be involved in this unless there is a request for facilitation of the practical arrangements (arranging meeting venues etc). If community dialogue does not resolve matters there is a provision for external mediation in which the Office refers parties to qualified mediators (or will assign one if there is no agreement). Where no agreement is reached the mediator would file a ‘factual report’ on the same.

The proposals do state that the failure of an individual to engage in dialogue ‘shall not be used against the notified event’ albeit the participation or otherwise of parties on a corporate basis in dialogue and mediation can be factors in any decision to impose restrictions. The references to individual and corporate dialogue appear to relate back to a curious provision whereby event organisers can object to meeting a particular individual from a group objecting to their event. A situation the proposals envisage being addressed by event organisers meeting other people from the same organisation. There is at present no proviso limiting this to prevent objections to individuals on the basis of protected anti-discrimination grounds. Instead the document only makes reference to where personal circumstances mean persons may not feel comfortable with particular individuals.

In terms of the human rights basis for dialogue, as set out in the Human Rights Commission’s recent report, Parades and Protests in Northern Ireland, intercultural dialogue in general, which can often take place in the context of parade disputes, is something states are to encourage. The Commission draws attention to Article 6(1) of the Council of Europe Framework Convention for National Minorities which provides that states should “Encourage a spirit of tolerance and intercultural dialogue and take effective measure to promote mutual respect and understanding and co-operation among all persons living on their territory...” As set out in detail by Michael Hamilton in a recent post on this blog in the context of a ‘human rights based approach,’ dialogue on parades etc should be closely tied to discussing and seeking resolution of specific rights-based concerns, that other parties may have. As legitimate restrictions can only be imposed on assemblies when rights based concerns are engaged it follows that the only legitimate concerns that can be raised and acted on are those which engage recognised human rights. Further detail on the terms of the Proposed Agreement may tease out the extent to which the purpose of dialogue and mediation will follow this approach. The following passage gives mixed indications:

• “We further agree that while the right and ability to object to or protest against an event should be protected, not all objections should be presumed to be equally valid, depending on such factors as the actual harm to be suffered by the objector and the degree to which the objection represents the views of those who stand to be directly affected along the route or at the location notified.”

The legislation and guidance could be more specific to tie concepts such as ‘actual harm’ to engagement and interference with the recognised ‘rights of others’ under human rights standards.  It is the case that at times those ‘directly affected’ can have specific standing in relation to their rights being infringed, see for example an earlier post on the restriction of anti-Roma marches in Vona v Hungary. In particular note the concept of ‘captive audience’ elaborated on by the Court in this case whereby Roma residents, given the location of parades, were effectively involuntarily subjected to the racist expression the parades conveyed against them. Notwithstanding the importance of this, it would be problematic to only determine that objections were legitimate only if it is judged the objectors are both ‘directly affected’ and ‘represent’ the views of a local community. Rather it is the legitimacy or otherwise of the rights based concern that should be determinate. It is not just those against whom sectarianism/racism/intimidation is directly targeted who are entitled to be legitimately concerned about its impact.

Decision making body ‘the Authority’

The new Authority for Public Events Adjudication will have powers similar to the Parades Commission to impose restrictions on events, including route and conduct restrictions. It will also subsume the power, currently held by the NIO, to ban parades. The latter will appropriately only be exercised on an exceptional basis.

The new Authority will only make adjudications on restrictions in certain limited circumstances when cases are referred to it. This is namely those parades/select commemorations to which objections have been raised and not resolved through dialogue and mediation. This means the vast majority of parades will no longer come under the purview of a decision making body that can impose restrictions. On the one hand this removes a broad number of events which raise no ‘rights of others’ or disorder concerns from the potential of restriction. However, this also does allow a problematic scenario whereby a blatantly sectarian/racist march, e.g. against a new minority in a housing development, could proceed regardless of its intimidatory impact with the Authority entirely powerless to impose any restrictions on it in the absence of any organised group able and willing to lodge an objection. This could be remedied by a power for the Authority to exercise its powers in circumstances whereby a planned event with serious rights implications comes to its attention otherwise than through an objection.

In terms of evidence gathering the document does set out that before coming to a decision the Authority will invite written or oral representations from event organisers and objectors, the PSNI, any mediators, or anyone else who wishes to, for which there will be a time frame of three working days. What is less clear in the proposals is the extent to which the Authority itself will deploy monitors, or otherwise gather information as to what has taken place at events to inform its determinations on future events.

Decision making framework for the Authority

There are a range of welcome commitments to the decision-making framework on any restrictions being firmly rooted in international human rights standards and in particular the ECHR. The Agreement states the Authority will “adopt an approach compliant with the European Convention on Human Rights and other international conventions”. Its determinations are to pay ‘full regard’ to the ECHR, with a recognition that restrictions can only ensue for clear and legitimate reasons. The introduction is specific about referencing ECHR Articles 10 and 11 of ECHR (on freedom of expression and assembly) and the B/GFA and Hillsborough provision for ‘freedom from sectarian harassment.’ The document also refers to the list of relevant rights from the ECHR and other international treaties provided in the aforementioned Human Rights Commission report, singling out in particular ECHR Article 8 in the context of the rights of others affected by assemblies. A further welcome development is a commitment to “full and transparent explanations for the Authority’s decision, including specific justifications, citing relevant legislation and jurisprudence where applicable, for any restrictions placed on an event.” This would help highlight which rights based issues had been considered in reaching the determination. Aggrieved parties would be afforded a right of appeal (‘review’) restricted to where new evidence emerges relevant to the factors cited in the decision.

The Proposed Agreement then sets out a list of other minimum criteria which the Authority, will consider “along with the relevant human rights standards” in reaching determinations. It is the case however that all such criteria, as material factors in decisions, will have to fit under one of the aforementioned legitimate aims ECHR under art 11(2) the most relevant of which are public order, public safety and  the protection of the rights and freedoms of others.

Some of the enlisted criteria e.g. impacts on public order and freedom of movement of others, are easier to accommodate under such headings than others, such as a generalised impact on community relations. The list could benefit from greater explanation and refining to ensure it relates to ECHR compliance.  This is also the case with the aforementioned Code of Conduct some of whose provisions can be more clearly linked to ECHR permitted grounds than others (including avoiding sectarian/racist words or behaviour). Take the following provision:

• “Respectful behaviour by everyone involved in parades, select commemorations, and related protests, with due regard for the rights and traditions of others and with particular sensitivity at such locations as interface areas, places of worship, war memorials, and cemeteries;”

The language of ‘rights of others’ echoes the ECHR and there is clearly greater potential to engage such rights at particular locations. However a seemingly benign blanket provision for ‘respectful behaviour’, in particular if it is legally binding, runs the risk of subjective interpretation in a manner not compatible with the right to freedom of expression, which protects, for example, politically controversial expression.

 

Overall, notwithstanding the limitations mentioned, which could be addressed as the proposals are developed, the new framework provided in the Proposed Agreement does provide potential to maintain and further human rights compliance based approaches in regulating assemblies. The devil, as always, will be in the detail.

This includes how the ECHR decision-making framework is further developed into minimum criteria such as those listed above, and the indicators the Authority uses to determine if such criteria have been met. As a contribution to this debate the appendix below teases out, from international standards and jurisprudence, indicators which could be used to inform such decision making on the key issue of preventing manifestations of sectarianism/racism at public assemblies.

Appendix: A checklist of factors for restricting parade -related sectarian/racist expression

A first step in developing such a check list and addressing the ‘threshold question’ of when public authorities are permitted, or duty-bound to intervene, in facilitating or restricting parade-linked expression, is to distinguish between what is protected freedom of expression on the one hand and unprotected expression, e.g. that which is racist/sectarian etc on the other. Certain types of expression, although they offend or make others uneasy are protected under the ECHR. There is no ‘right not to be offended’ that can be derived from the ECHR. In a general sense expression which merely ‘shocks, offends or disturbs’ [iv] or is capable of ‘creating a feeling of uneasiness in groups of citizens or because some may perceive them as disrespectful’[v] is protected expression which should not be restricted. However expression which ‘spreads, incites, promotes or justifies hatred based on intolerance’[vi] or matters such as ‘the promotion of discrimination or ethnic division’[vii] can be restricted by public authorities,  in some circumstances  there may be a positive obligation to do so. It has been held that freedom from such expression is a ‘right of others’ in its own right.[viii] In addition it has been held that in certain circumstances there is a positive duty on the state to protect persons from racist expression under Article 8 (private and family life).[ix]

The tentative framework below, which has been under discussion in CAJ, sets out a number of indicators which could be used to determine circumstances when parades and parade related protests could or should be restricted. The framework, drawn from international human rights standards, is designed for universal application rather than only for our local circumstances. It is in part drawn from UN standards in identifying advocacy of national, racial or religious hatred (the Rabat Plan of Action) – which pertains to a higher threshold of conduct that itself should be prohibited by law, but nevertheless provides transferable indicators.[x] ECHR case law is also drawn on particularly the aforementioned case of Vona v Hungary. The framework provides a six stage list of indicators to help inform decisions on the need for intervention:

1: Context:  The social and political context prevalent at the time and place of the assembly have significant bearing on the intent and likelihood of unprotected expression; factors include if there is a context of violence/ clashes/conflicts and/or existence and history of institutionalised discrimination against an affected group or groups.

2: Actors: The type of organisation/groups organising and participating in the assembly in relation to any affected groups. Encompasses both the power relationships and relative vulnerability of groups, but also the nature and goals of groups in light of all the circumstances whether explicitly stated in constitutional documents or not.

3: Content or form: Whether there are indications of likely racist/sectarian etc content of speeches, banners, placards, songs and related matters or to whom the expression is targeted. Also relevant is the extent to which an assembly is militaristic and/or a demonstration of power capable of threatening others, and hence could be considered as large scale intimidation, or as conveying a discriminatory message that could be backed by paramilitary force.

4: Intent: the goals of the organisers and likely participants in a particular assembly including the particular locations, routes, and timings as well as overall objectives in light of all the circumstances.

5: Likelihood The need to take preventative measures in light of the probability of some kind of potential imminent harm to rights of an affected group (e.g. harassment, intimidation, hatred, discrimination, hostility). Includes whether a target group will be an involuntary ‘captive audience’ given the location of the assembly.

6: Extent Size, duration, frequency and magnitude of the expression in relation to its likely impact;