Legal Framework for Peaceful Flag Protests in Northern Ireland (UK)

(4th February 2013) This document aims to provide guidance for those who organise and take part in open-air public meetings such as flag protests, unrelated to public processions, in Northern Ireland. In a democratic society everyone has the right to express his/her own ideas publicly in various ways, including public protests. The right to assemble publicly is not unfettered though, and those who wish to exercise it must always take into consideration particularly the rights and freedoms of others and public order issues related to their activities. We will first lay down (I) the principles which support the right to protest, and we will then indicate (II) the rules that should be applied in compliance with the principles before providing (III) practical guidance as to the way protests should be organised and marshalled to the satisfaction of the police and the public at large. I. The principles

There are basic principles which ensure the protection and promotion of the fundamental right to freedom of peaceful assembly, as enshrined in the European Convention on Human Rights (ECHR). These principles are the following: 1. The right to freedom of peaceful assembly only applies to peaceful protests (Article 11.1 ECHR): this right applies to static meetings, such as flag protests. Only protests that are peaceful in intent and practice can be organised in a democratic society. There is no right to organise violent protests either under the European Convention or the common law. Violent protests are illegal and must be prevented from taking place by the authorities in charge of such matters. A protest which appears to be peaceful and turns out to be violent is also illegal and must be disbanded by the police. 2. The regulation process must not constitute an interference in the exercise of the right to freedom of peaceful protest (Article 11.1 ECHR): static protests, unrelated to processions, in Northern Ireland are not submitted to any form of notification. Those who organise and take part in protests can do so wherever they wish provided they are peaceful.
1

3. The duty of the State authorities is to protect the right to freedom of peaceful protest (Article 11 ECHR): the duty of the State authorities is to ensure that the right to freedom of peaceful assembly can be exercised by those who organise and take part in peaceful protests and wish to express their ideas and/or manifest their religion using peaceful means. 4. Any restriction imposed on a peaceful protest must be prescribed by law, have a legitimate aim, and be necessary and proportionate in a democratic society (Article 11.2 ECHR): peaceful protests can be restricted (not banned) by the public authorities (PSNI and Secretary of State) provided they do so 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. In doing so, the public authorities must be able to prove that the restrictions they impose are also necessary and proportionate in a democratic society. 5. Prohibition of the abuse of rights aimed at destroying the right to freedom of peaceful assembly (Article 17 ECHR): in a democratic society no one is allowed to use a particular right such as for example the right to private life in order to annul the rights of other to exercise their right to freedom of peaceful assembly by way of protests. II. The rules

Open-air public meetings, such as flag protests, are static meetings regulated by the Public Order (Northern Ireland) Order 1987. The public authorities who have the power to impose conditions on them are the PSNI and the Secretary of State for Northern Ireland. Any restrictions imposed on flag protests must comply with the principles mentioned above. 1. The organisers of the protest should ensure that it is kept peaceful at all times and to that end: a. the protest should not be likely to result in serious public disorder, serious damage to property or serious disruption to the life of the community; b. the protest should not have the purpose of intimidating others into doing something they have the right not to do or preventing them from doing something they have the right to do. 2. There is no notification process for open-air public meetings, such as flag protests, contrary to what is required for protests related to public processions. 3. The PSNI should facilitate the holding of peaceful flag protests ensuring the safety of the protesters and of the public at large. 4. The PSNI has the right to impose conditions on a flag protests concerning: a. the place where the protest may be held or continue to be held; b. the maximum duration; c. the maximum number of persons who may take part in it;
2

d. although for each of these conditions (restrictions) the police must be able to justify that they are necessary and proportionate to prevent disorder, damage, disruption or intimidation in accordance with article 11 of the European Convention. 5. Protesters have the right: a. to remain silent at all times, while they are peaceful, if they are asked questions by a police officer, such as their identity; b. to remain silent when arrested, although they must be aware that if the police can connect them with an offence inferences may be drawn from their silence. 6. The Secretary of State: a. has the power to prohibit the holding of open-air public meetings, such as protests, in a particular area for a period not exceeding three months if there is a risk of serious public disorder, which is likely to cause undue demands to be made upon the police; b. must be able to justify that the prohibition it imposes is necessary and proportionate to prevent disorder, damage, disruption or intimidation according to article 11 of the European Convention. 7. A person who knowingly fails to comply with a condition imposed by the police or a prohibition imposed by the Secretary of State shall be guilty of an offence. III. Practical Guidance:

1. Preparation of protests Those who organise flag protests should: a. determine the purpose of the peaceful protest; b. determine the location where the peaceful protest will take place; c. prepare leaflets to inform the protesters about the purpose of the protest and what language and behaviour is expected of them during the peaceful protest; d. ensure, as far as possible, that there are a sufficient number of marshals to marshal the protesters. 2. At the start of the protest Those who organise flag protests should: a. remind the protesters verbally and/or in writing of the purpose of the peaceful protest; b. point out the means by which the expression of ideas and opinions will take place during the peaceful protest; c. indicate the location where the peaceful protest will take place so as not to disturb traffic or put themselves in danger by protesting in the middle of the

road, or preventing passers-by from going about their business using public footpaths; d. stress that proper language and behaviour (not violent, threatening or intimidating) is expected from the protestors; e. direct protesters to conform to the instructions given to them by the marshals; f. direct protesters to conform to any conditions imposed on the protest by the police, which must be in compliance with the principles and the rules mentioned above. 3. During the protest Marshals should ensure that: a. protesters remain peaceful at all time; b. any protester who causes a disturbance or disorder is brought into line and/or separated from peaceful protesters; c. the language and behaviour of protesters is at all times conform to the purpose for which the peaceful protest has been organised (not violent, threatening or intimidating); d. protesters do not interfere in any way with traffic and stay out of the road; e. protesters do not prevent passers-by from using public footpaths; f. protesters conform to any conditions imposed by police, which must be in compliance with the principles and the rules mentioned above. 4. At the end of the protest marshals should ensure that: a. protesters are asked to disperse in good order; b. the public place where they have been protesting is left in good order. 5. After the protest: a. the organisers and marshals should assemble in a quiet place to debrief; b. all issues related to the flag protest should be discussed and problems identified should be addressed so as to improve the organisation of future peaceful protests and maximise their positive impact upon society at large. Those who organise and take part in flag protests in Northern Ireland should seek to abide by the law and properly marshal their event. This should be done in order to maintain their right to freedom of peaceful assembly, without having further constraints being imposed on it by way of new legislation. By doing so they will ensure that minimum restrictions are imposed on protests by the public authorities (PSNI and Secretary of State) in the future. IF YOU FAIL TO PREPARE YOU PREPARE TO FAIL OUR MISSION To protect our Freedoms Freedom of Speech - Freedom of Religion - Freedom from Want - Freedom from Fear Through True Democracy for All the People of Northern Ireland