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NIPSA RESPONSE TO THE CONSULTATION ON THE DRAFT PUBLIC ASSEMBLIES, PARADES AND PROTEST BILL
1 1.1 INTRODUCTION 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 2.1 THE PROPOSALS 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.
2 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.
3 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 3.1 THE CIVIL LIBERTIES DIMENSION 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 4.1 THE IMPACT OF LEGISLATION 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
4 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. 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. This is
5 5 5.1 PROPORTIONATE REGULATION 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 6.1 VIOLATING THE RIGHTS OF A DEMOCRATIC SOCIETY 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.
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.
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.
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;
7 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 7.1 CONCLUSION – A DEEPLY FLAWED PROPOSAL 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.
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.
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.
There is no evidence that an EQIA was undertaken in advance of drafting this Bill or in advance of the consultation.
7.8 8 8.1
For these reasons NIPSA totally rejects the draft Bill in its entirety. THE WAY FORWARD 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.
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.
An EQIA should be undertaken before any new draft Bill is presented for public consultation.
9 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. welcome an invitation to such a process. NIPSA would
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