AS TO THE ADMISSIBILITY OF
Application No. 25522/94
by Milan RAI, Gill ALLMOND, and "NEGOTIATE NOW"
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 6 April 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 18 October 1994
by Milan Rai, Gill Allmond and "Negotiate Now" against the United
Kingdom and registered on 3 November 1994 under file No. 25522/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is a Hong Kong citizen born in 1965 and
resident in London. The second applicant is a British citizen born in
1963 and also resident in London. Both applicants are members of the
an unincorporated association "Negotiate Now", which is the third
applicant.
The applicants are represented before the Commission by Mr. John
Wadham of Liberty, a solicitor practising in London.
The facts as submitted by the applicants may be summarised as
follows.
a. Particular circumstances of the case
"Negotiate Now" is a non-partisan, non-governmental organisation
which seeks to promote peace in Northern Ireland and espouses the
policy that the Government must support peace negotiations without a
prior cease-fire.
The applicants wished to hold a rally in Trafalgar Square in
London in order to promote their views and to ask the Government
publicly to enter into negotiations without preconditions.
The third applicant contacted the Department of the National
Heritage requesting permission to hold a "stationary" rally in
Trafalgar Square on Saturday 21 May 1994 to be addressed by speakers
and stating the estimated number of participants was to be 1,000.
The Commissioner of the Metropolitan Police was informed of the
applicants' intentions and his view was that the proposed rally would
create no danger to public order. The applicants expended monies for
leaflets and posters.
On 21 April 1994, the Department of National Heritage refused
permission for the rally to take place:
"This is in accordance with Government policy on meetings in
Trafalgar Square on issues related to Northern Ireland."
On 4 May 1994, Mr. Tony Benn, Member of Parliament, requested the
Secretary of State for National Heritage to reconsider the refusal.
On 16 May 1994, the Secretary of State replied confirming the
decision not to grant permission for the rally:
"It has been the policy of successive Governments since 1972 to
refuse permission for any public demonstrations or meetings on
the issue of Northern Ireland in Trafalgar Square. This policy
has been applied in an entirely impartial way. The only, very
rare, exceptions have been approval for entirely uncontroversial
peace demonstrations, such as the Peace People in the 1970's. My
judgment is that the proposed "Negotiate Now" rally does not come
into this category."
The Secretary of State stated however that demonstrations on
Northern Ireland may be held in Hyde Park and identified the person
whom the applicants could approach to organise a demonstration in Hyde
Park.
On 17 May 1994, the applicants sought leave to bring proceedings
for judicial review to quash the decision made on 21 April 1994 and/
or 16 May 1994 refusing permission to hold a rally in Trafalgar Square.
In opposing the application, counsel for the Secretary of State
stated that permission had been refused on public order grounds and
that the rally did not fall within the narrow exception of being
"uncontroversial". Counsel stated that the applicants were:
"calling on the Government to negotiate with the Sinn Fein before
the Sinn Fein renounced its support for violence... The
controversial nature of that policy is self-evident. It is
equally self-evident that the matter is one of very great
sensitivity at the present time."
Leave was refused. The judge found that no legitimate expectation
had been created that the rally could be held and that there was no
arbitrariness or irrationality or failure to take into account relevant
considerations disclosed by the decision of refusal.
It was agreed between the parties that the applicants would not
renew their application to the Court of Appeal since the Secretary of
State agreed that no point would be taken concerning the applicants
exhausting their domestic remedies.
b. Relevant domestic law and practice
Regulatory powers concerning Trafalgar Square
Pursuant to the Trafalgar Square Act 1844 the care control
management and regulation of Trafalgar Square was placed in the hands
of Commissioners, whose functions are currently exercised by the
Secretary of State for National Heritage.
Section 2 (1) of the Parks Regulation (Amendment) Act 1926
provided the Commissioners (and their successors) with the right to
"make such regulations...as they consider necessary for securing
the proper management of [any] park and the preservation of order
and prevention of abuses therein..."
Under this provision the relevant Minister made the Trafalgar
Square Regulations 1952 (1952 SI 776), paragraph 3 of which provides
that permission is required, inter alia, to organize, conduct or take
part in any assembly, parade or procession or to make or give a public
speech or address in Trafalgar Square.
Policy concerning demonstrations in Trafalgar Square
In 1972, following the IRA bombing of Aldershot which killed 7
civilians, the Secretary of State for the Home Office issued a
statement in the House of Commons banning demonstrations in Trafalgar
Square which related to Northern Ireland:
"It has always been accepted that this is one of the best-known
places for public demonstrations, and traditionally, it is
available to any individual or organisation who wishes to use it.
Permission to use the Square is usually given unless it seems
likely that the assembly will result in breaches of the law or
in grave disorder.. the decision is that of the Secretary of
State for the Environment who invariably consults the appropriate
Government Departments and always consults the Commissioner of
Metropolitan Police.
The position with regard to applications this year in relation
to demonstrations concerned with the Irish situation is that such
application had to be considered against the background of the
terrorist campaign by the IRA in Northern Ireland and the
appalling carnage at Aldershot. In those circumstances in view
of the situation in Northern Ireland the Government had to
decide whether it would be fitting to permit the use of the
Square by any organisation that had declared its support for the
perpetrators of violence of that kind and they had no hesitation
in deciding that it would be an affront to the British people to
do so.
The Government having made the decision, it would be wrong to
attempt to distinguish between different organisations. The right
decision therefore -regrettable as it may be- was to refuse to
grant permission to any demonstration on the issue of Northern
Ireland in Trafalgar Square until further notice."
In 1976 the Peace People and in 1978 the Better Life for All
campaigners were allowed to hold rallies in Trafalgar Square.
In 1984 a rally was also held in the Square by the Apprentice
Boys of Derry, which was addressed by the Reverend Ian Paisley, leader
of the Ulster Democratic Party who is well known to be a committed
Unionist and militant anti-Republican. A letter from the Department of
the Environment to "Information on Ireland" (3.2.86) stated:
"It is true that Dr. Ian Paisley addressed a meeting in Trafalgar
Square on 17 November 1984. The Apprentice Boys of Derry...asked
for permission to hold a rally with hymns and a speaker from one
of their visiting clubs. The Rally was to follow a march from
Temple East via Whitehall were two wreaths were to be placed at
the Cenotaph in remembrance of all the members of the Apprentice
Boys of Derry who died in the two world wars. The organiser
categorically stated that the meeting was not to be a political
rally. It was only after giving considerable thought to the terms
of the application that the rally was allowed to go ahead. As you
know despite the assurances were given, the rally was used as a
political arena. We have every intention of avoiding any
repetition of that sort of incident."
On 1 October 1991, Baroness Blatch, as spokeswoman for the
Department of the Environment, described the justification for the
exceptions to the ban:
"Two exceptions have been made to the ban: in 1976 for the Peace
People and in 1978 for the Better Life for All campaign organised
by the Northern Ireland Committee of the Irish Congress of Trade
Unions. Both were regarded as special exceptions for
demonstrations that were non-controversial and non-partisan."
In 1993 a rally was held in Trafalgar Square by a group called
"Peace 93" formed after the Warrington bombing by the IRA in which two
children died.
Permission to hold rallies or meetings in Trafalgar Square was
refused to the Anti-Internment League (1972), Sinn Fein (1972), Clann
na hEireann (1972,1973 and 1974), British Constitution Defence
Committee (1972), Connolly Association (1972), Grand Orange Lodge of
England (1973), Irish Civil Rights Association (1973), Troops out
Movement (1974, 1975 and 1977), British Peace Committee and Troops out
of Ireland (1974), British Peace Committee (1975), Bloody Sunday
Commemoration Committee (1978), United Troops Out Movement (1978),
Committee for Withdrawal from Northern Ireland (1980), May 7th
Committee (1983), Irish Republican Socialist Party (1984) August 18th
Committee (1984), Co-ordinating Committee for British Withdrawal from
Ireland (1986).
COMPLAINTS
The applicants submit that the ban on their demonstration
infringes their freedom to manifest their beliefs in public, their
right to freedom of expression and their right to freedom of peaceful
assembly. They invoke Articles 9, 10 and 11 of the Convention.
They submit, inter alia, that the right to freedom of assembly
is a fundamental right in a democratic society and that Article 11
imposes an obligation on States to take reasonable and appropriate
steps to allow peaceful demonstrations to proceed. The interference in
this case was not prescribed by law since the discretion conferred
under the 1952 regulations is so broad and undefined that it did not
enable the applicants to regulate their conduct or to foresee the
decision. The purpose of the interference which bans any demonstration
which is not "uncontroversial" does not, in their view, constitute a
legitimate aim permitted under the second paragraph. In this context
the applicants refer to Article 18 of the Convention on the basis that
their rights have been interfered with because they are alleged to
offend or shock rather than in pursuance of any legitimate aim set out
in the second paragraph of Article 11. The applicants further submit
that the restriction is not necessary in a democratic society and is
not proportionate since, inter alia, there was no foreseeable danger
to public safety, a demonstration would have been possible in Hyde Park
and it could not be said that a demonstration in Trafalgar Square would
make it more liable to violence and any potential problems could have
been regulated in co-operation with the police and with the use of
stewards for example.
The applicants also contend that they have no effective remedy
for their complaints as required by Article 13 of the Convention.
Judicial review proceedings allow such decisions to be challenged only
on the basis of irrationality and could not directly address the issues
in the case.
Finally, the applicants complain that they have been
discriminated against on the ground of political opinion, namely an
unwillingness to permit the voicing of views that were contrary to
Government policy.
THE LAW
1. The applicants have complained of the refusal of permission to
hold a rally in Trafalgar Square. They have invoked Article 9
(Art. 9) (freedom of thought, conscience and religion), Article 10
(Art. 10) (freedom of expression) and Article 11 (Art. 11) (freedom of
peaceful assembly) of the Convention.
The Commission notes that the applicants make their submissions
principally under Article 11 (Art. 11) of the Convention. The problems
of freedom of thought and belief and freedom of expression cannot in
this case be separated from that of freedom of assembly. The Commission
therefore considers that Article 11 (Art. 11) takes precedence as the
lex specialis for assemblies and will in its examination under this
provision have regard to Articles 9 and 10 (Art. 9, 10) in interpreting
Article 11 (Art. 11) (see eg. No. 10126/82, Dec. 17.10.85, D.R. 44
p. 65).
Article 11 (Art. 11) of the Convention provides:
"1. Everyone has the right to freedom of peaceful assembly and
to freedom of association with others, including the right to
form and to join trade unions for the protection of his
interests.
2. No restrictions shall be placed on the exercise of these
rights other than such as 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 the
protection of health or morals or for the protection of the
rights and freedoms of others. This Article shall not prevent
the imposition of lawful restrictions on the exercise of these
rights by members of the armed forces, of the police or of the
administration of the State."
The Commission's case-law establishes that the right to freedom
of peaceful assembly, which is a fundamental right in a democratic
society, is guaranteed to everyone who has the intention of organising
a peaceful demonstration (see eg. No. 8440/78, D.R. 21 p. 138). The
applicants' intention to hold a peaceful rally was not disputed in the
domestic proceedings. The Commission finds that the refusal of
permission to the applicants to hold their rally in Trafalgar Square
constitutes a restriction on their rights as guaranteed under the first
paragraph of Article 11 (Art. 11).
The Commission has therefore examined whether this restriction
was justified under Article 11 para. 2 (Art. 11-2) of the Convention,
in particular, whether it was "prescribed by law", pursued one or more
of the aims enumerated and was "necessary in a democratic society" to
achieve that or those aims.
As regards the criterion of "prescribed by law", the applicants
have argued that the discretion conferred on the authorities regulating
the use of Trafalgar Square is so broad and undefined as to render them
unable to regulate their conduct or foresee the outcome of their
request.
The Commission recalls that a law which confers a discretion is
not in itself inconsistent with the requirement of foreseeability
inherent in this concept, provided that the scope of the discretion and
the manner of its exercise are indicated with sufficient clarity to
give the individual protection against arbitrary interference ( see eg.
Eur. Court H.R., Olsson judgment 24 March 1988, Series A no. 130).
While the power to regulate the use of the Square for assemblies is not
subject to defined restrictions, the Commission notes that the policy
of excepting demonstrations relating to Northern Ireland was the
subject of a public statement in the House of Commons and that numerous
refusals of demonstrations occurred subsequent to this. It is
compatible with the requirements of foreseeability that terms which are
on their face general and unlimited are explained by executive or
administrative statements, since it is the provision of sufficiently
precise guidance to individuals to regulate their conduct rather than
the source of that guidance which is of relevance (See eg. Eur. Court
H.R. Silver judgment of 25 March 1983, Series A no. 61, pp. 33-34,
paras. 88-89).
The Commission accordingly finds that the scope and manner of the
exercise of the power to regulate assemblies in Trafalgar Square are
indicated with the requisite degree of certainty to satisfy the minimum
requirements of the criterion of "prescribed by law".
The applicants have contested that the restriction pursued one
of the legitimate aims listed in the second paragraph of Article 11
(Art. 11). The applicants argue that their assembly was banned in
Trafalgar Square because it was "controversial" and liable to shock or
offend rather than for any reason of public safety or possible
disorder.
The Commission notes that counsel for the Secretary of State
claimed that the refusal was on grounds of public order. While the
applicants contend that the police anticipated no problems with public
safety arising out of the proposed rally, the Commission recalls that
the policy of banning demonstrations relating to Northern Ireland is
founded on the concern to avoid the use of the square by those
supporting the use of violence and that, in order not to discriminate
between different organisations, the decision was taken to refuse all
requests. The Commission finds that, in the circumstances of Northern
Ireland where sensitive and complex issues arise as to the causes of
the conflict and any possible solutions, the Government can be
considered in its general policy of banning demonstrations concerning
the subject to be pursuing the aim of preventing disorder and
protecting the rights and freedoms of others.
The question remains whether the restriction is necessary in a
democratic society. The case-law of the Convention organs establishes
that the notion of necessity corresponds to a pressing social need and
in particular that it is proportionate to the legitimate aim pursued.
In this assessment, a margin of appreciation is left to the Contracting
States (see eg. Eur. Court H.R. W. v the United Kingdom judgment of
8 July 1987, Series A no. 121, p. 27, para. 60).
The applicants submit that the restriction was not "necessary"
and was not proportionate, referring to the lack of real risk of
disorder, the granting of permission to several other groups and the
possibility of avoiding any potential problems by using for example
stewards and co-operating with the police as to organisational details.
The Commission does not doubt the peaceful intention of the
applicants in the present case and it has had regard to the fact that
the refusal of permission for the assembly has repercussions also on
their freedom to express their views and beliefs as to the necessity
for the parties to the conflict in Northern Ireland to enter into
negotiations without pre-conditions such as a prior cease-fire. The
assessment as to whether this policy of unconditional negotiation was
"controversial" or not when compared to the permission previously and
exceptionally granted to three non-partisan groups falls, in the
Commission's view, within the Government's margin of appreciation. It
notes that the Government had previously granted permission to a group
-the Apprentice Boys of Derry- which had, contrary to their assertions
beforehand, used the occasion for political propaganda purposes and
that there was a concern to avoid a repetition of this. It finds no
indication of any element of arbitrariness or bias on the part of the
authorities in deciding not to extend exceptional permission to the
applicants.
Having regard to the fact that the refusal of permission did not
amount to a blanket prohibition on the holding of the applicants' rally
but only prevented the use of a high profile location (other venues
being available in central London) the Commission concludes that the
restriction in the present case may be regarded as proportionate and
justified as necessary in a democratic society within the meaning of
Article 8 paragraph 2 (Art. 8-2) of the Convention.
It follows that this part of the application must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicants have invoked Article 18 (Art. 18) of the
Convention which provides:
"The restrictions permitted under this Convention to the said
rights and freedoms shall not be applied for any purpose other
than those for which they have been prescribed."
Having regard to its findings above, the Commission considers
that the circumstances of the present case do not disclose any
indication that the restriction in the present case was applied for a
purpose not prescribed by the provisions of the Convention.
It follows that this complaint must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicants complain that they have been discriminated against
on the basis of political opinion. They invoke Article 14 (Art. 14) of
the Convention which provides:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The applicants contend that they have been discriminated against
by the Government on the ground of political opinion, namely an
unwillingness to permit the voicing of views that were contrary to
Government policy.
The Commission recalls however that the authorities apply a
general policy of banning demonstrations in Trafalgar Square concerning
the situation in Northern Ireland and only grant permission
exceptionally where the meeting is "uncontroversial". From the material
submitted it appears that numerous requests for meetings in Trafalgar
Square from many different groups concerned with the Northern Ireland
situation have been refused. While permission has been granted on four
occasions since 1972, three involved peace groups with no political
overtones and the fourth, involving the Apprentice Boys of Derry, was
intended to be a commemorative event for the two world wars but
degenerated into a political rally despite firm assurances to the
authorities by its organisers.
In light of the above, the Commission finds that the applicants
have not established that they have been subject to any difference of
treatment on the ground of political opinion.
It follows that this complaint must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The applicants finally invoke Article 13 (Art. 13) of the
Convention, which provides that:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Commission recalls however that Article 13 (Art. 13) does not
require a remedy under domestic law in respect of any alleged violation
of the Convention. It only applies if the individual can be said to
have an "arguable claim" of a violation of the Convention (Eur. Court
H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131,
p. 23, para. 52).
The Commission finds that the applicants cannot be said, in light
of its findings above to have an "arguable claim" of a violation of
their Convention rights.
It follows that this complaint must be dismissed as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy