Appendix 3 - Submission by Applicant

Perth and Kinross Council · 9 August 2023
Back to Licensing Committee — 9 August 2023 and its agenda

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Oral Submission to Perth & Kinross Council ref District
L.O.L No.65 Procession and Conventicle in Dunkeld
Sunday 20 August 2023 
Freedom of Assembly The right of freedom of peaceful public assembly is included as a
fundamental right within all the major international human rights instruments, including the
European Convention on Human Rights [ECHR] which was ratified by the UK government in
1951 and entered into force in September 1953. Freedom of assembly includes the right to
parade, process, march demonstrate, rally, picket, protest and to participate in other forms of
gathering in public space to voice opinions and express views collectively. The right to
assemble is particularly important for minority and marginalised groups whose voices may
otherwise not be heard or expressed in the mass media, nor reflected in the views in the
mainstream political parties. Exercising the right to assemble and protest will often lead to
unpopular, controversial and outrageous views being expressed, and people may be
offended and challenged, but this is just one part of the wider process of debate and
discussion that drives social change. Public assemblies will almost inevitably lead to some
level of disruption to the lives of others. Sometimes disruption may be the direct aim, if for
example protesters attempt to confront opponents or to challenge assumptions, but often it is
an indirect consequence of assembling people in a public space that is otherwise used for
more mundane activities, such as shopping or traffic. But rather than seeing a protest as an
exception or an inconvenience, they should be considered as a vital part of the democratic
process and with as much claim on public space as pedestrians, car drivers and the
business community. If demonstrations are so constrained that they do not, or are not
allowed to, impinge on, or be heard by others, then they are unlikely to have any impact,
they become neutered, and the exercising of a fundamental human right will be undermined.
The right to assembly is a key civil and political right, and as such the state has a positive
obligation to protect and facilitate the exercise of the right. However, the right to assemble is
not an unlimited right. Rather it is a right that can be legitimately constrained by the state in
certain circumstances. All international human rights instruments confirm that the right only
extends to peaceful protest, there is no right to use physical violence as part of an assembly,
and thus those who use physical force are not considered to be exercising a protected right.
Article 11.2 of the ECHR sets out a number of other grounds in which the right to assemble
may be limited: “No restrictions shall be placed on the exercise of these rights other than
such are prescribed by law and are necessary in a democratic society in the interests of
national security or public safety, for the prevention of disorder or crime, for 1/8 the
protection of health and morals or for the protection of the rights and freedoms of others”.
Furthermore, while the ECHR affirms that the right to assemble applies to all without
discrimination (Article 14), it also states that exercising a human right must be done in a way
that respects the rights of others, and one cannot invoke a right to do something that is
deliberately designed to restrict other people’s rights (Article 17). Thus, what begins by being
expressed as a broad principle, ‘my right to assemble and protest’ for example, is not quite
so simple in practice. As always there is a challenge to interpret when and in what context it
is legitimate to impose restrictions and when it is the responsibility of the state to protect the
right to assemble. The ECHR outlines rights as broad principles but cannot provide
unequivocal direction for all cases; rather the principles always have to be interpreted and
reinterpreted according to the particular local context. The need to protect the right to
assemble, while balancing the rights and interests of others and the desire to maintain public
order, remains a constant challenge for the state. Furthermore, a state’s willingness to
Appendix 3

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protect and facilitate the right to assemble, remains a key indicator of its general respect of
human rights due to the way that the right to assemble is played out in the public sphere. I
would refer Perth & Kinross Council to the terms of Lord Clyde’s speech in DPP v Jones
(1999) 2 AC 240. “It seems clear that there is a public right to pass along the public road but
of course, subject to certain limitations and restrictions open to a local authority under
section 62 of the 1982 Act. This permits the local authority to propose conditions or
prohibition but requires them to base any decision on correct facts, exercise their discretion
in a reasonable manner and act within their powers”. They also require to give reasons if
they have exercised their discretion. What objectors are proposing is a restriction on the
organisers Right to Process along the route of their choosing in other words a prohibition.
However, it is submitted that “No restrictions may be placed on a march unless the Council
can demonstrate that it is ‘necessary’ for one of the reasons in Article 11.2. The Convention
case law makes it clear that ‘necessary’ does not mean ‘useful’ or ‘desirable’, but it implies a
‘pressing social need’, thus making it a strong word. This has been accepted in the Scottish
Courts where a Sheriff has said, in a challenge to a ban on a march that “it is for the public
authority to show that it is necessary to curtail the basic right before any such restriction will
be upheld” – Aberdeen Bon Accord Loyal Orange Lodge 701 v Aberdeen City Council 2002
SLT (Sh Ct) 52. In Novartis Pharmaceuticals UK Ltd v Stop Huntingdon Animal Cruelty
[2010] HRLR 8, the English court said: 2/8 “As the wider authorities make clear, any
restrictions on the rights of freedom of expression, and/or of freedom of assembly and
association, must be: (i) convincingly established; (ii) justified by compelling reasons; (iii)
subject to careful scrutiny; (iv) proportionate and no more than necessary.” It should be
noted that “No restrictions shall be placed” of the right to process, unless they are
“necessary” for one of the reasons in Article 11.2. The lodge contends, therefore, that if any
conditions are to be imposed on any procession that it is only lawful to impose such
conditions if the council can show that the conditions are necessary for one of the purposes
in Article 11.2; that the need has been convincingly established and is justified by compelling
reasons. If that cannot be demonstrated, then such conditions would be a breach of the
direction that “No restrictions shall be placed on the exercise of those rights”. Accordingly,
the Civic Government (Scotland) Act 1982 as amended by the Police, Public Order &
Criminal Justice (Scotland) Act 2006 must be read and understood against that background.
The Lodge has a right of freedom of peaceful assembly, which includes a right to assemble,
and that right may be exercised in any manner the Lodge wishes and this includes the
selection of places to assemble. The council’s duty is to take reasonable and appropriate
measures to enable lawful assemblies to proceed peacefully. In the case of Provincial Grand
Black Chapter of Scotland -v- West Dunbartonshire Council (August 2009), the Sheriff stated
that “it is for [the local authority] to establish that there is a necessity for intervention and that
any intervention will be proportionate to meet that need. Necessary implies the existence of
a pressing social need and proportionality has to be assessed by the standards of a
democratic society characterised by pluralism, tolerance and broadmindedness.” A Council
and its councillors have a duty, not only to their constituents, but also a duty not to act in any
way which contravenes the European Convention on Human Rights & Fundamental
Freedoms. We submit that the Loyal Orange Institution is a religious organisation within the
meaning of the Human Rights (Scotland) Act 1998, Section 13 (1) which provides that “if a
Court’s determination of any question arising under this Act might as affect the exercise by a
religious organisation (itself or its members collectively) of the Convention right to freedom of
thought, conscience and religion, IT MUST HAVE PARTICULAR REGARD TO THE
IMPORTANCE OF THAT RIGHT”. We submit further that Perth & Kinross Council is a court
within the meaning of the same statute. 3/8 Freedom of peaceful assembly is a fundamental
human right which can be enjoyed and exercised by individuals and groups, unregistered
associations, legal entities and corporate bodies. It has been recognised as one of the

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foundations of a functioning democracy. Facilitating participation in peaceful assemblies
helps ensure that all people in a society have the opportunity to express opinions which they
hold in common with others. As such, freedom of peaceful assembly facilitates dialogue
within civil society, and between civil society, political leaders and government. Freedom of
peaceful assembly can serve many purposes including (but not limited to) the expression of
views and the defence of common interests, celebration. Commemoration, picketing and
protest. The exercise of the freedom can have both symbolic and instrumental significance;
and can be an important strand in the maintenance and development of culture, and in the
preservation of minority identities. Articles 11(1) is a right with profound content. Participants
in public assemblies have as much a claim to use such sites for a reasonable period as
everyone else. Indeed, public protest, and freedom of assembly in general, should be
regarded as an equally legitimate use of public space as the more routine purposes for
which public space is used (such as commercial activity or pedestrian and vehicular traffic).
This principle has been clearly stated by the European Court of Human Rights in Balcik v.
Turkey (2007) at paragraph 52, and Ashughyan v. Armenia (2008) at paragraph 90: “Any
demonstration in a public place may cause a certain level of disruption to ordinary life,
including disruption of traffic, and where demonstrators do not engage in acts of violence it is
important for the public authorities to show a certain degree of tolerance towards peaceful
gatherings if the freedom of assembly guaranteed by Article 11 ECHR is not to be deprived
of all substance”. The Lodge’s position is that this is not an application that Perth & Kinross
Council has before it but a notification. We do not seek a licence to hold a procession
because one is not required. The Lodge has particular problems with the Document attached
to the papers entitled “Report by Head of Legal Services as inter alia it fails to point out the
Council’s unequivocal duty in terms of the European Convention on Human Rights AND the
Human Rights (Scotland) Act 1998 to positively promote the fundamental right of freedom of
Peaceful Public Assembly. Your Director of Legal Services states that: - The committee has
three possible courses of action open to it in determining the notification in terms of the Civic
Government (Scotland) Act 1982, Section 63. 4/8 OPTION 1 - Accept the Notification as
received OPTION 2 – Accept the notification and make an Order imposing Conditions such
as those set out in attachment 10 to this report and any other conditions that the Committee
considers appropriate. The conditions include provision for timing, route, compliance with
Police instructions, litter disposal, marshalling and stewarding arrangements. A Code of
Conduct (see attachment 8) detailing what is expected of organisers and participants can
also be issued although this does not form part of the conditions of the Order. 9) Obtaining a
TTRO for the event. OPTION 3 - Reject the Notification and make an Order prohibiting the
holding of the procession. The Lodge would contend that this is not an accurate summary of
the legal position, apart from OPTION 1. In OPTION 2 - the final bullet point is ambiguous
as, it, at the very least, implies that the Council could impose, as a condition under Section
63 of the 1982 Act, a requirement that the Organiser obtain a Temporary Traffic Regulation
Order for the event. The Lodge submits that primary responsibility for roads rest with the
relevant road’s authority (Local Authorities and Scottish Government with regards to trunk
roads) and as such it will be for the roads authority to make a judgement as to whether this
pre-planned event requires road(s) to be closed or other restrictions imposed on the flow of
traffic to allow it to proceed safely. The Road Traffic Regulation Act 1984 (section 14 and
16A) gives powers to the relevant traffic authority to grant a TTRO and it is this order that
permits road closures and other traffic management measures to be implemented. As it is
the primary duty of the road’s authority, any police officers in the vicinity of the event will
invoke their common law powers if the roads authority fails to discharge its duty and fails to
implement the necessary TTRO’s and appropriate traffic management plans, supposing
these to be necessary. Police Scotland have not requested that a TTRO is put in place. It is
quite wrong, therefore in our opinion to suggest that the organisers of this event might be

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required to obtain a TTRO. It seems to us that there is prima facie a right for all persons to
use a public road. A TTRO is an exceptional measure which can be used to limit the right of
road users to use that road for the purpose of travel on it. Prima facie those who wish to walk
down a road, for whatever purpose, are using it for the purposes for which the road is
intended. We would ask Perth and Kinross Council to consider the Venice Commission
Guidelines on Freedom of Peaceful Assembly and Explanatory Notes which are based on
International and regional treaties and states practices as derived from national court
decisions (“VCG”) As the VCG notes: “69. “To require assembly organisers to pay such costs
would create a significant deterrent for those wishing to enjoy their right to freedom of
assembly and might actually be prohibitive for many organisers. As such, imposing onerous
financial requirements on assembly organisers is likely to constitute a disproportionate prior
restraint”. The measures need to be within the law i.e., conditions prescribed by law, and
they cannot be disproportionate. We submit that. 1. Nothing in the 1982 Act provision
contemplates any conditions which require payment. “Reasonable conditions” has content. It
cannot have unlimited scope. We see no basis for cost charging in the 19852 Act. Nor do we
see it in the TTRO regime even of that regime had application; and 2. In general Article 11
terms, imposing significant costs or arguably any costs on an organiser are likely to be
regarded as disproportionate: and 3. It is no answer as a matter of law to say that resources
(Council or otherwise) are relevant. This is because states which contract with the ECHR are
meant, as a matter of principle, to organise themselves in such a way as to ensure delivery
of respect for ECHR rights. That assumes budgets are sufficient to meet these obligations
that is why, per the guidance, resources are not a relevant consideration. Our position in this
regard is, that if Perth and Kinross Council has adopted a policy that compels a parade
organiser to commission a TTRO for a public procession then it is acting ultra vires of its
authority. So far as any requirement to meet the costs of a TTRO is concerned your Council
is advised that the Lodge formally repudiates any liability to meet any such cost. After
consulting our legal advisers and taking the advice of learned counsel, our view is that any
suggestion that the organiser of a public procession is required to commission – or is
otherwise responsible for meeting the cost of TTROs or Traffic Management Plans is a
violation of the democratic right of freedom of peaceful public assembly. 6/8 We submit that
if a TTRO is considered necessary before a procession can proceed, then the responsibility
for securing one lies with the Council or Police Scotland and not with the event organiser.
The whole question of the provision of TTROs arose shortly after the formation of Police
Scotland when ACC Bernard Higgins wrote to local authorities stating that Police Scotland
would no longer provide Police cover at pre-planned events and that the organisers of such
events should commission the obtaining of a TTRO.This suggestion was resisted by this
organisation (and no doubt others) as being based on an erroneous legal foundation and led
to the lodging of the action in the Sheriff Court of Perth and Kinross Sheriff Court already
mentioned. It is the understanding of the Loyal Orange Order that, earlier in 2021 ( as yet
unpublished) 'tripartite ' agreement was reached between Police Scotland,the Scottish
Government and the Convention of Scottish Local Authorities which makes it clear that the
securing of a TTRO ( on the relatively rare occasions one is actually required) is the
responsibility of the relevant roads authority which is, in the particular context of the
procession proposed for Sunday 23rd August,Perth and Kinross Council. No doubt your
Director of Legal Services will wish to check the accuracy of a TTRO was an option open to
the Committee in advance of the hearing on Tuesday 8th August. The provision of TTROs
arose in Perth and Kinross in June 2015 when the local Orange Lodge raised an action
against the Council which proceedings were settled in the Lodge’s favour (see The Courier &
Advertiser Saturday 06/06/2015. CONCLUSION What the Objectors are asking here, is that
Perth and Kinross Council restrict the Human Rights of the Orange Order because of
thematic objections to the message the objectors perceive, that the marchers wish to project.

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This, I, submit would be a discrimination and a violation of Article 1 of Protocol 12 and the
Committee is obliged to reject it on that basis. If the Licensing Committee was against me on
this proposition, then I would further submit that: The Police, Public Order and Criminal
Justice (Scotland) Act 2006 states that there are four considerations which the Council must
take into account when considering a notification received from a procession organiser and
whether it is necessary to prohibit or impose conditions on a public procession. These four
conditions are: 1. Public Safety 2. Public Order 3. Damage to property 4. Disruption to the
life of the community It is submitted that none of these four conditions is engaged by
objections of the Complainers. What risk to public safety is there if L.O.L District No.65
traverses its chosen route? What risk to public order? Is it being seriously suggested that
there is a probability of damage to property if the procession follows the organiser’s chosen
route? Perhaps the objectors will tell us how the procession is likely to disrupt the life of the
community if it goes ahead as planned? The procession has been conducted in Dunkeld for
16 years and I would put forward the proposition that if any of the four factors of risk to public
safety, public order, damage to property and disruption to the life of the community had been
encountered in the last 16 years then this would have come to the attention of the statutory
authorities and Perth & Kinross Council long before now. 7/8 There is no such report from
Police Scotland and the organiser is, therefore, entitled to conclude that, apart from the
rather nebulous comments of the objectors, there are none. We submit that our views are
consistent with the European Court of Human Rights requirements that it is “the duty of
Contracting States to take reasonable and appropriate measures to enable lawful
demonstrations to proceed peacefully”. I would ask the Licensing Committee to uphold the
democratic right of freedom of peaceful public assembly, to approve the organiser’s
procession at the time, date & routes duly submitted to the local authority, to repel the
objections of the objectors and the suggestion that a TTRO should be obtained by this
organisation.
The objections also state links to some organisation that I’ve never heard of so I would
suggest these comments be completely disregarded. 
David Walters
Event’s Organiser