Sheriff issues reasons for rejecting human rights challenge to re-routing of Loyalist marches

A sheriff has published his reasons for refusing an appeal by Loyalist groups against a Scottish local authority’s decision to change the routes of its marches to avoid Catholic churches.

Sheriff Stuart Reid upheld the decision by Glasgow City Council to change the route of the annual Orange Order parades after Police Scotland raised concerns about the marches and counter-protests.

‘Spitting incident’

Glasgow Sheriff Court heard that the pursuer, the Apprentice Boys of Derry Bridgeton notified the local authority defender of its intention to hold a procession along certain streets in Glasgow’s east end on Saturday 1 June 2019.

The proposed route would have taken the procession along Abercromby Street and past the front of St Mary’s Roman Catholic Church, which was close to the St Alphonsous Roman Catholic Church on London Road, where during the course of a similar march in July 2018 a man spat on a Catholic priest outside the church.

The victim of the spitting incident, Carbon Thomas White, was a priest in both churches, which were part of the same parish.

The assailant was prosecuted and sentenced to 10 months’ imprisonment.

On another similar parade in May 2019 organised by District 50, which passed the St Alphonsous Church, a counter-protest took place and when the procession passed the church the police heard shouts of “Fenian bastards” and “paedo” emanating from within supporters of the District 50 procession.

The court was told that three other Loyalist groups, Apprentice Boys of Derry Dalmarnock No Surrender Branch Club; Dalmarnock Orange and Purple District 50, and Orange and Purple District 37, had also notified the defender of their intention to hold separate processions along broadly similar routes as the Apprentice Boys of Derry Bridgeton, each passing by St Mary’s Church, all on the same weekend (one on Saturday, two on Sunday), at certain times of the day.

However, the police were concerned that the proposed procession could “substantially raise local experienced and evidenced tension” and recommended that the council should exercise its statutory power to vary the routes to avoid the Catholic church.

‘Human rights violation’

Having considered the chief constable’s submissions, the defender issued an order under section 63(1)(ii) of the Civic Government (Scotland) Act 1982 altering part of the proposed route by diverting the pursuer’s procession around and away from St Mary’s Church on Abercromby Street, on the basis that there was a “high risk of disruption to the life of the community” which would place an “excessive burden” on the police.

Similar orders were issued for the same reasons in relation to the processions of the three other associations.

All four associations lodged separate appeals to the sheriff against that decision, claiming that the re-routing of their processions breached their right of peaceful assembly under Article 11 of the European Convention on Human Rights (ECHR) and that the defender had erred in the exercise its power under the 1982 Act.

First, the defender’s decision was said to constitute a “violation of the pursuer’s right to freedom of peaceful assembly” in terms of Article 11 ECHR, because the re-routing of the procession constituted an interference that was not “necessary”.

Second, there was said to be a breach of domestic law in that (i) the defender had failed to take account of, or to attach due weight to, relevant mandatory considerations referred to in section 63(8) of the 1982 Act and (ii) the defender had erred in law in concluding that the likely effect of the pursuer’s proposed procession was the “disruption of the life of the community”.

Third, it was submitted that “no proper or adequate reasons” had been given to justify the decision.

Fourth, it was submitted that the decision to re-route the procession was “wholly unreasonable” in that it proceeded on the basis of a single isolated incident 12 months ago, namely, the spitting incident, which was not properly attributable to the pursuer.

‘Reasonable and rational decision’

However, the sheriff dismissed the appeals after ruling that the local authority‘s reasons for re-routing the processions were “reasonable and rational, with a sufficient factual foundation”.

In a written judgment, Sheriff Reid said: “In summary, I dismissed the appeals for the following reasons: (i) the pursuers failed to establish that Article 11(1), ECHR was applicable because the purpose of their processions was not disclosed in averment or submission; (ii) separately, esto article 11, ECHR was applicable, the pursuers failed to establish that the Convention Right was engaged because the defender’s alleged interference therewith was de minimis; (iii) esto the Convention Right was applicable and engaged, the interference therewith was nevertheless plainly justified in terms of Article 11(2), ECHR, because it was prescribed by law, it sought to achieve permitted legitimate aims, and it was necessary in a democratic society (a fortiori having regard to section 13 of the Human Rights Act 1998); and, further, (iv) the defender, in arriving at its decision, did not err in law, did not exercise its discretion in an unreasonable manner, and did not otherwise act beyond its powers in terms of the 1982 Act. Separately, I have offered an alternative analysis of the merits of the pursuers’ appeals predicated upon the hypothesis that certain matters fall within judicial knowledge.”

The sheriff observed that, at its core, “sectarianism is nothing more complex than hatred and intolerance, conflict and division, motivated by religious prejudice”.

He concluded: “Based on the chief constable’s submission, the defender reasonably concluded that the route of the march, unless altered, would have the likely effect of causing disruption of the life of the community, due to an apprehended risk of violent criminality or disorder aggravated by religious prejudice, and that the burden on police resources to keep the peace on that original route was excessive, based on the information, events and intelligence referred to in the chief constable’s submission. There is nothing opaque or arbitrary in the reasons.

“Secondly, the defender had a sufficient factual basis to conclude that there was likely to be disruption of the life of the community and an excessive burden placed on police resources, if the march proceeded on its original route.

“The defender had sufficient material before it, from a reliable source, to reach the same conclusion. As regards the apprehended disruption of the life of the community, I refer to my reasoning in paragraph [95] above.

“The spitting on a priest, shouts of ‘Fenian bastards’, all occurring on the steps of a Catholic church, is serious criminality aggravated by religious prejudice which, viewed in context, can properly be considered to be divisive of social cohesion and community harmony.

“Accordingly, in my judgment, in issuing its order to re-route the pursuer’s march, the defender did not fall into error, it did not exercise its discretion in an unreasonable manner, and it did not otherwise act beyond its powers. For these reasons, I dismissed the application. The same logic applies mutatis mutandis to the three conjoined applications.”

© Scottish Legal News Ltd 2020