Agenda Document Pack - Licensing Committee - 09/08/2023
Perth and Kinross Council · 9 August 2023
Back to Licensing Committee — 9 August 2023 and its agenda
Text extracted from the council's PDF. Layout and reading order may differ from the original.
Page 1
Securing the future… • Improving services • Enhancing quality of life • Making the best use of public resources Council Building 2 High Street Perth PH1 5PH 02/08/2023 A hybrid meeting of the Licensing Committee will be held in the Council Chamber on Wednesday, 09 August 2023 at 14:00. If you have any queries please contact Committee Services on (01738) 475000 or email Committee@pkc.gov.uk. THOMAS GLEN Chief Executive Those attending the meeting are requested to ensure that all notifications are silent on their device and other devices are in silent mode. Please note that the meeting will be broadcast online and recorded. The recording will be publicly available on the Council’s website following the meeting. Members: Bailie Mike Williamson (Convener) Councillor Iain MacPherson (Vice-Convener) Bailie Chris Ahern Councillor Keith Allan Councillor Hugh Anderson Bailie Rhona Brock Councillor Steven Carr Councillor Michelle Frampton Councillor Ken Harvey Councillor David Illingworth Councillor Crawford Reid Councillor Willie Robertson Councillor Grant Stewart Page 1 of 28
Page 2
Page 2 of 28
Page 3
Licensing Committee Wednesday, 09 August 2023 AGENDA MEMBERS ARE REMINDED OF THEIR OBLIGATION TO DECLARE ANY FINANCIAL OR NON-FINANCIAL INTEREST WHICH THEY MAY HAVE IN ANY ITEM ON THIS AGENDA IN ACCORDANCE WITH THE COUNCILLORS’ CODE OF CONDUCT. 1 WELCOME AND APOLOGIES 2 DECLARATIONS OF INTEREST 3 NOTIFICATION OF PUBLIC PROCESSION - 20 AUGUST 2023 - DISTRICT 65 COLONEL CLELAND MEMORIAL ORANGE LODGE Report by Head of Legal and Governance Services (copy herewith 23/215) 5 - 28 Page 3 of 28
Page 4
Page 4 of 28
Page 5
PERTH AND KINROSS COUNCIL – LICENSING COMMITTEE 09 AUGUST 2023 REPORT BY HEAD OF LEGAL AND GOVERNANCE SERVICES TYPE OF APPLICATION Notification of Public Procession APPLICANT David Walters 21 Duff Street Bertha Park Perth PH1 0AE District 65 Colonel Cleland Memorial Orange Lodge PREMISES (if applicable) N/A THE APPLICATION The public procession is proposed to take place at 1.15 pm on Sunday 20 August 2023 from Birnam Game Park to Dunkeld Cathedral. RELEVANT LICENSING POLICIES All notifiers of public processions are provided with the attached Public Processions Code of Conduct. LEGAL POSITION The Applicant has notified the Committee about the proposed procession. The Committee’s permission is not required to hold a public procession. Under the Civic Government Scotland Act 1982, anyone organising a parade or procession must notify the appropriate local authority and the police at least 28 days prior to the date of the event. Upon receipt of a notification, the Council has limited powers with respect to parades and processions. Relevant considerations which the Committee must take into account when considering a notification relate to public safety, public order, damage to property, and disruption to the life of the community. The aim of civic licensing and the public procession legislation is to balance the right to freedom of expression and assembly with the need to maintain public safety and order. Police Scotland and Environment Services have stated they have no objections to this application. One email of objection has been received from a member of the public regarding this application (see attached email of objection). 3 Page 5 of 28
Page 6
In deciding whether or not to grant an order preventing procession from taking place or adding conditions the Council - will take into account the following: any Objections or Representations any other relevant considerations OPTIONS The Committee can choose to take no action; It has the power to attach conditions or, under very limited circumstances, to ban the parade or procession. PROCEDURE • Identify parties. • Consider any preliminary issues. • Member of the public to speak to the objection. • Committee asks any questions to the objector. • Applicant makes a submission. • Committee asks any questions of the applicant. • Objector sums up. • Applicant sums up. • Committee makes a decision. Page 6 of 28
Page 7
3 Page 7 of 28
Page 8
Page 8 of 28
Page 9
Page 9 of 28
Page 10
Page 10 of 28
Page 11
Page 11 of 28
Page 12
Page 12 of 28
Page 13
Page 13 of 28
Page 14
Page 14 of 28
Page 15
Page 15 of 28
Page 16
Page 16 of 28
Page 17
Page 17 of 28
Page 18
Page 18 of 28
Page 19
3 Page 19 of 28
Page 20
Page 20 of 28
Page 21
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 3 Page 21 of 28
Page 22
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 Page 22 of 28
Page 23
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 Page 23 of 28
Page 24
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. Page 24 of 28
Page 25
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 Page 25 of 28
Page 26
Page 26 of 28
Page 27
1 Civic Licensing From: Tom Wilde Sent: 11 July 2023 20:38 To: Civic Licensing Subject: Objection to Orange order march in Dunkeld on 20/08/23 Dear Civic licensing team I am writing in objection to the pending application for the orange order to hold a procession through Dunkeld on the 20/08/23. I am objecting on a number of grounds. After last year's procession members of the orange order who had taken part in the parade went on to abuse local people on social media who had objected to the march. This clearly shows that the orange order group organising this are hostile to local people and allowing this procession to take place is a danger to the community. The procession has also in previous years invited onlookers sporting UDF emblems which as a terrorist group also breaches the rules set out in code for applying for a procession or parade. Yours sincerely Tom Wilde 3 Page 27 of 28
Page 28
Page 28 of 28