Public meetings are important where industrial disputes exist, they are held in order to attract publicity for a cause. Processions are held to “attract the attention of the mass news media to a political or environmental cause” (Ashton et al; Constitutional Law in Scotland, Individuals Rights and Freedoms, pg 336). In Scotland traditional processions such as marches by Orange Orders still take place.
The legal situation on public protest in Scotland differs from that in England and Wales. The case of Aldred v Miller established that in Scotland, freedom of assembly only exists “to the extent that people can assemble together in circumstances which are not subject to regulations or restrictions”. The law also allows for people to gather together in groups and talk but the police can disperse them if they are obstructing the passage of others or if it is deemed likely that a breach of the peace may occur.
In Scotland public processions are regulated by the Civic Government (Scotland) Act 1982 and the Public Order Act 1986. Under the Civic Government (Scotland) Act, notification of a procession should be made to a local council official seven days in advance of the event. It is an offence in Scotland to hold a procession without permission being granted. There is a provision for processions commonly or customarily held’ not to have to give formal notification but councils are empowered to waive this provision if they so wish. In 1995 the Irish Scottish Bands Association (ISBA) were refused permission to march in Blantyre on the basis that there was trouble in previous years. They continued to apply every week for months but were told to stop applying on the grounds that in time they would be able to have a parade, which they did.
The council is required to notify the police of any planned parades. The council may prohibit the holding of a procession or impose conditions concerning the date, time and duration of the procession, the route to be taken or to prohibit it from particular public areas. In 1996, the republican bands of Paisley, made an application to march with a heading “Ban the RUC”. The council and police did not object to this until there were suggestions from the press that there would be some sectarian clashes. The council then withdrew the approval. The ISBA did not appeal to the sheriff.
The law states that it is an offence to take part in an unauthorised procession and to refuse to desist when required to do so by a policeman in uniform. Article 11 only protects assemblies which are peaceful. There is no violation of the Article if the State regulates assemblies which are not peaceful or which are unlikely to be peaceful.
In Glasgow the police are keen that there should be no parades after 1.00pm and therefore most parades start before 11.00 am and unlike in Northern Ireland, the police in Glasgow are not keen on the carrying of symbolic weapons such as swords. The council is required to give notice of any restrictions to the organisers two days prior to the event and to publicise them in such a way that participants will be made aware of the conditions.
It is an offence to contravene conditions which have been laid down, however an appeal can be made against a prohibition of a procession or any conditions imposed may be made to a sheriff on the grounds that the council has exceeded its powers.
The most significant difference with the situation in England in Wales is the involvement of the local council. The organiser of an event must complete a form in triplicate, one copy goes to the local authority, one to the police and the third, with a code of conduct on the reverse side, is retained by the organiser. The council officer informs the relevant members of the council that a parade is to be held in the area and they have the opportunity to raise any objections. In Glasgow there is a Public Processions subcommittee to address any problems. The police can make their views known to the council officer and comment on objections, but it is the local authority that makes the formal decision over any restrictions on parades. However on the day of the procession the police can invoke public order concerns to change previous conditions.
The Public Order Act grants power to the senior police officer who is present at a procession to impose conditions to prevent serious public disorder, serious damage to property or serious disruption to the life of the community. They may also take action if they think the purpose of the organised event is to intimidate others.
The restrictions which police officers and council officials impose on organised processions do not stop Scottish citizens from expressing their right to freedom of association. The restrictions are laid down in “the interests 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 the rights and freedoms of others, and therefore do not breach article 11.
Where public assemblies; such as political protests, picketing in the course of an industrial dispute or social conditions; take place, the police are granted powers under s.14 of the Public Order Act to regulate such events. The attending senior police officer may impose conditions concerning the location of the assembly, the duration and the maximum number of people who may attend. The conditions which may be imposed must not be more stringent than is required to prevent serious disorder, damage to property or disruption. A British case involving unlawful assembly was Beatty v. Gillbands. It saw members of the Salvation Army marching through the streets of Weston-super-mare where they were physically opposed by a rival organisation – The Skeleton Army - and disorder resulted. Complaints were made to the magistrates and Beatty, a member of the Salvation Army was restricted to refrain from assemblies to cause a breach of peace. Nevertheless the following Sunday a march was held as usual and Beatty and the other members were convicted of holding an unlawful assembly and ordered to find sureties to keep the peace for 12 months or go to prison for 3 months in default. On appeal it was held that persons acting lawfully were not to be held responsible and punished merely because others were induced to act unlawfully. Appeal was allowed and order discharged.
In the event that a meeting is held on private property the regulation of the meeting is a matter for the owner of the property. However, the law can step in and protect meetings from disruption by others under the Public Meeting Act 1908. Under the Public Meeting Act it is an offence for a person to “attend a public meeting and act in a disorderly manner for the purpose of impeding the business of the meeting”.
Lawful public assemblies and meeting held on private property are protected by many Scottish Acts however; trespassory assemblies are not protected and are not legal in Scotland. Under the Public Order Act 1984, trespassory assemblies are prohibited. A trespassory assembly is regarded as “twenty or more people assembling on land entirely in the open air, to which the public has no right or access or only limited right of access”. Any person who organises or takes part in an assembly which trespasses onto land which is prohibited commits a criminal offence. The right to public assembly is only accepted in Scotland if it is peaceful and regulated.
UK citizens have been protected by the European Convention on Human Rights since 1953. It was not until recently (1998) though that the Convention was incorporated into the legal system of the United Kingdom. And it was on 1st July 1999 that Scotland incorporated these rights by means of the Scotland Act 1998. The Scotland Act provided that an Act of the Scottish Parliament may not include provisions which are incompatible with Convention rights. The act also states that “a member of the Scottish Executive has no power to make subordinate legislation, or to do any other act, which would be incompatible with Convention rights”. (www.schoolhouse.org.uk) In effect, this means that all Acts of Scottish Parliament and actions of the Scottish Executive are open to challenge in the Scottish courts on human rights grounds.
Article 11, the right to freedom of assembly and association, is incorporated by the Scottish Act and every Scottish citizen has the right to both. The law relating to both freedom of assembly and association differs in Scotland from the laws in England and Wales but right to both is still present.
Unlike in England and Wales, the council needs to be informed in the event that a public procession is to take place in Scotland and permission must be granted. The council has the final say in whether the association should take place. The ability to do this is protected by the convention as it is lawful to impose restrictions by means of the state administration. The convention also allows for restrictions to be imposed for the protection of others to be assured. Although the right to association may be restricted it exists and is restricted only to keep in line with the convention to protect national security and public safety.
Freedom of assembly is protected in the same way and restrictions can be imposed if the assembly is not peaceful. The restrictions are put in place for the same reasons; to protect others.
The lawful imposition of these restrictions ensures that freedom of assembly and association is guaranteed for every Scottish citizen and that everyone and everything is protected from harm. Freedom of assembly and association may be restricted in many ways however, the right to both still exists in Scotland and Scottish citizens have a wide scope to exercise these freedoms.
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BibliographyBOOKS
Christina Ashton & Valerie Finch, Constitutional Law in Scotland, Edinburgh: W Green, 2000
WEBSITES
www.berwickshirehunt.org.uk
www.scotland.gov.uk
www.democraticdialogue.org
www.elc.org.uk
ACTS
Public Meeting Act 1908
European Convention on Human Rights and Fundamental Freedoms 1950
Police (Scotland) Act 1967
Civic Government (Scotland) Act 1982
Public Order Act 1984
Public Order Act 1986
Human Rights Act 1998
Scotland Act 1998
Nicola Mitchell 02/1844 Constitutional Law Valerie Finch
Duncan v. Jones [1936] 1 K.B. 218;
Civic Government (Scotland) Act 1982, s. 62
Civic Government (Scotland) Act 1982, s.63
European Convention on Human Rights, Article 11
Public Order Act 1984, s. 14 A, 14B
Public Order Act 1984, s. 14 A, 14B
