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NIPSA RESPONSE TO THE CONSULTATION ON THE DRAFT

PUBLIC ASSEMBLIES, PARADES AND PROTEST BILL

1 INTRODUCTION

1.1 NIPSA (Northern Ireland Public Service Alliance) welcomes the opportunity to
respond to the Consultation Paper on the Draft Public Assemblies, Parades and
Protest Bill.

1.2 As the largest public sector trade union in Northern Ireland representing over
46,000 members, NIPSA has a vested interest in issues affecting its members’
democratic rights to assembly, campaign or protest. As an organisation
representing workers rights, any aspect of the regulation of Public Assemblies,
Parades and Protests which has implications for the human rights and civil
liberties of members, activists, representatives and officials is of crucial
importance to NIPSA. Any proposed changes to the current regulatory system
for Public Assemblies, Parades and Protests goes to the heart of Trade Union
activities, therefore NIPSA has an obvious and direct interest in any proposals
which could impact upon the freedom of association and expression.

2 THE PROPOSALS

2.1 NIPSA’s view is that this draft legislation goes significantly beyond the remit given
to the working group established by the First Minister and deputy First Minister.

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2.2 In Section 2 of the Hillsborough Castle Agreement of 5 February 2010 it is clear

that the purpose of the working group was to come up with proposals, capable of
cross community support to deal primarily with contentious parades and related
protests.

2.3 In paragraph 3 of Section 2 it refers to respecting both rights of those who parade
whilst also respecting those who live in areas through which others seek to
parade. It goes on to make reference to the right for everyone to be free from
sectarian harassment and recognises competing rights.

2.4 In paragraph 9 of Section 2 it specifically refers to “reclassification of parades as

a transferred matter”. In paragraph 10 it refers to finding “local solutions to
contentious parades and related protests”.

2.5 In the Introduction to this draft Bill it indicates that working group members were
appointed “with experience of dealing with parading issues” and that they were
tasked with bringing “forward agreed outcomes which they believe are capable of
achieving cross community support”.

2.6 Given the above it is clear that this proposed Bill has needlessly gone beyond
that specific remit. If the intention as clearly outlined above was to deal with the
small number of contentious parades and protests which occur each year (a
small handful out of 3500) then this Bill should have been drafted as such and
designated as a “Contentious Parades and Protests Bill”.

2.7 Rather than the draft Bill being written in such a way as to bestow powers on
OFMdFM to exclude certain groups (although it fails to do so) it should rather list
those groups and/or organisations which are included and which the legislation
is enacted to deal with specifically.

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2.8 If this draft legislation was implemented as proposed any meetings of 50 people
or more, such as a Trade Union gathering or demonstration outside a workplace,
any spontaneous protest or meeting, any anti-war rallies or solidarity vigils would
all fall under the remit of the new law. NIPSA is strongly of the opinion that such
a restriction would be both undemocratic and needlessly restrictive.

3 THE CIVIL LIBERTIES DIMENSION

3.1 The central issue for consideration in relation to this proposal is the ‘freedom of
assembly and association’. It is well established through application of the
European Convention on Human Rights (ECHR) that the right to freedom of
assembly is a fundamental right and one of the key foundations of any
democratic society. There is a presumption therefore that any form of assembly
should be permitted and allowed to proceed without restrictions, in line with
ECHR Article II (1) and Article II (2), unless there are some compelling grounds
that they are absolutely necessary.

3.2 Most international human rights instruments are agreed that possible grounds for
restrictions are limited to ‘national security’, ‘public safety’, ‘health’ and the ‘rights
and freedoms of others’, or on grounds as described in the Convention as, ‘the
prevention of crime or disorder’.

4 THE IMPACT OF LEGISLATION

4.1 If the Bill were to become law, the effect of the legislation would be to bring a
wide range of Trade Unions, community, cultural and protest activity within the
remit of a new licensing framework designed for contested large-scale events that
are usually organised well in advance, often up to a year before. It would impose
on the organisers of these events a requirement to notify their intentions 37 days
in advance, with permission for a late notification being only granted if this was
“reasonable in light of unforeseen circumstances”. If notification is not given the

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assembly will be deemed unlawful and those organising it and participating in it

could face arrest and up to 6 months in prison and a large fine. This is
unacceptable.

4.2 In respect of the emergency procedure in Clause 36 it is also unacceptable that

the 3 days notice referred to in this Clause “is only intended to be used in
extreme emergency situations” (page 53).

4.3 Therefore, if for example, a group of workers gathered in sufficient numbers

outside a workplace in the immediate aftermath of the announcement of
redundancies, they would be engaging in a legitimate activity but would
nevertheless be in breach of the new law. Likewise, if a protest against some
international atrocity or serious incident which attracts more than 50 participants
(and indeed non-participants) occurs, this could also incur criminal liability, with
the organisers and participants facing arrest, prosecution, 6 months in prison, a
large fine and a criminal record.

4.4 The impact of the 37 day notification requirement would therefore be

disproportionate for groups such as Trade Unions who organise events which by
their very nature tend not to be organised so far in advance. This would result in
an erosion of the civil rights of the entire community. In effect, the community
would be gagged.

4.5 Legislation which was supposed to have been drafted for the purposes of dealing
with contentious ‘parades’ and ‘counter protests’ in this divided community has
somehow evolved into a high level of regulation and interference that is totally
unsuitable for a wide range of Trade Union, community and campaigning group
activities.

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5 PROPORTIONATE REGULATION

5.1 A major objection to the proposed extension of parades notification and

adjudication to a range of Trade Union, community and campaigning assemblies
is that it is totally inappropriate to treat those assemblies in the same way as
‘traditional’ parades and counter protests, which are in essence demonstrations
of national identity, either British or Irish.

5.2 No reason or justification is provided for requiring the same amount of notice and
regulation for all public assemblies when it is clear that not all public assemblies
occur within a similar context in relation to potential interference with the rights
and freedoms of others and the likelihood of disorder. A notification duty of 37
days is not likely to cause any problems at all for organisers of large or annual
parades or events. For a number of other public assemblies organised by Trade
Unions or the community however it clearly would.

5.3 There already exists a significant corpus of legislation regulating public

assemblies and public order. In addition to the 1987 Order and the 1998 Act, the
Protection from Harassment (NI) Order 1997 provides strict public order
legislative and institutional regime. Therefore, it is NIPSA’s view that there is no
need for this new regime.

6 VIOLATING THE RIGHTS OF A DEMOCRATIC SOCIETY

6.1 There is no doubt that the Bill if passed would infringe upon Article 11 of the
European Convention on Human Rights. Article 11 (1) states that “Everyone has
the right to freedom of peaceful assembly”. Despite the qualifications to this right
contained in Article 11(2) (paragraph 4.2 above) e.g. limited grounds on the basis
of national security, the prevention of crime or disorder, etc, the Bill could prevent
legitimate Assemblies, Parades and Protests by the Trade Union movement,
communities and interest groups.

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6.2 Public assemblies, parades and protests are already tightly regulated as
highlighted above. This Bill could be interpreted as an attempt by OFMdFM to
silence the ability of the Trade Union movement et al to freely assemble and
express their legitimate views in what is supposed to be a modern democratic
society.

6.3 There are a number of alarming proposals in the Bill which are also totally
unacceptable. For example, the draft Bill implies that a non-participant could be
arrested for being in ‘proximity’ to an Assembly, Parade or Protest. This is a
nonsense and would be almost impossible to police or implement. Also, under
Clause 39(2), ‘Disruption’, it states that, ‘it is an offence if… annoying…persons
who are taking part in … a lawful public assembly’. In reality, definition of
“proximity” and “annoying” would be highly subjective and undoubtedly lead to
endless challenges and a pointless drain on public resources through court
interventions.

6.4 There are a significant number of other proposals contained in the draft Bill which
are also unacceptable. The list of these objections include references in relation
to:

the Office of the Public Assemblies Parades and Protests (OPAPP);

the Public Assembles, Parades and Protests Body (PAPPB);

the Prohibition clause;

definitions of participants and non-participants;

the make up of the OPAPP and PAPPB;

some of the draconian powers this draft would give to the Police Service;

the rationale for selecting 50 people as the arbitrary figure (with the
unchallengeable ability of OFMdFM to amend unilaterally);

the accountability and scrutiny of these proposed bodies;

the costs of any new bodies;

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the evaluation proposals; and

the imposition of 3 separate penalties of up to 6 months imprisonment
and/or £5000 fines for each.

6.5 However, rather than outline these objections in detail, which may give the
impression that this Bill is redeemable if changes were made, NIPSA is of the firm
opinion that this draft proposal is fundamentally flawed and not capable of
amendment.

7 CONCLUSION – A DEEPLY FLAWED PROPOSAL

7.1 In summary of the above, NIPSA totally rejects the proposed Bill for the following
reasons:

7.2 The Bill is a direct assault on the freedoms of Trade Unions and others to
conduct and participate in legitimate Assemblies, Parades and Protests. It
appears to be an attempt to silence the Trade Union movement who are
permitted by the democratic will of their members to voice their concerns at public
settings.

7.3 The Bill is not needed. There already exists a significant corpus of legislation
regulating public meetings as noted above.

7.4 The Bill appears to have been intended to deal with contentious public meetings
in the context of contentious parades, gatherings and protests. There is no
acknowledgement however for the special category of Public Meetings,
Assemblies, Parades, and Protests that NIPSA and other Trade Unions and
community groups partake in. Trade Union public gatherings are not contentious
in the narrow political sense of “community differences” and should be totally
excluded from the remit of any Bill which was intended to deal with contentious
parades and protests.

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7.5 Any attempt to criminalise the legitimate activities of Trade Union members,
activists, representatives, officials and supporters with the threat of criminal
sanctions is a direct attack on the Trade Union movement that is totally
unwarranted. It is also a fundamental assault on individuals’ human rights and
civil liberties.

7.6 The Panel and Adjudications Body could/would be vulnerable to political

interference, duress and undue influence. There is a lack of judicial oversight
with no reference to decision making being open to Judicial Review.

7.7 There is no evidence that an EQIA was undertaken in advance of drafting this Bill
or in advance of the consultation.

7.8 For these reasons NIPSA totally rejects the draft Bill in its entirety.

8 THE WAY FORWARD

8.1 NIPSA would urge OFMdFM to reconsider the whole issue of contentious
parades and protests and concentrate on drafting a Bill, if it considers this
necessary, to solely deal with those small number of contentious parades and
protests which plague our community on an annual basis.

8.2 In advance of redrafting any proposed Bill there should be public consultation to
seek the views of all those interested parties who may be impacted by any new
legislation.

8.3 An EQIA should be undertaken before any new draft Bill is presented for public
consultation.

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8.4 OFMdFM has an opportunity to demonstrate that they do actually value the views
of the community and their Civil Service Officials should now engage with civic
society in advance of bringing forward any new proposals. NIPSA would
welcome an invitation to such a process.

July 2010