Sheriff Court upholds ban on Orange Lodge parade through Stonehaven

On 8th January the Dunnottar Martyrs’ Memorial Loyal Orange Lodge 1685 had given the council notice of its intention to hold the parade, under section 62 of the Civic Government (Scotland) Act 1982. The council’s Kincardine and Mearns Area Committee heard representations on 5th March, and on 8th March issued the prohibition order in the exercise of its powers under section 63 of the Act. The Lodge had promptly appealed to the Sheriff under section 64.

The appeal was heard on 15th March, the day before the parade was planned to take place on Saturday 16th March. The sheriff refused the appeal at the conclusion of the hearing, at 5 p.m. that afternoon, and handed down the court’s written reasons on 28th March.

The Lodge invoked article 11 of the ECHR and contended that the council had committed an error of law. However, the Sheriff agreed with the council that, since it was not suggested that the scope of the council’s discretion and power under section 63 were inconsistent with the Convention, the appellant had to demonstrate that the council had in some way acted inconsistently with section 63. Section 63(8) provides that in such a case an authority must have regard to the likely effect of the holding of a procession in relation to public safety, public order, damage to property, disruption of the life of the community, and the extent to which the containment of risks arising from the procession would place an excessive burden on the police. The Sheriff held that the appellant had not pled that in that regard the council had failed to duly apply section 63, so the appeal was irrelevant.

In any event, while the Lodge had challenged the adequacy of the committee’s stated reasons for its decision, it could not readily be seen how that had the character of an error of law within the scheme of sections 63 and 64. A particular criticism of lack of explanation of what weight had been given to representations made by Police Scotland did not necessarily mean that the committee’s reasons had not been adequately explained: its statement of its reasons met the test stated in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345.

The Lodge had argued that article 11 had been contravened, because the committee had had inadequate evidence to justify the order; failed to hold the role of the police to be to protect their article 11 rights; taken an erroneous view of what public safety required; and failed to have regard to the facts that most such processions passed off peacefully, and could benefit local businesses. However, the Sheriff sustained the council’s response that the committee had had a significant body of evidence before it, and that the appeal irrelevantly took issue with its assessment of matters of fact, rather than identifying any error of law.

Greg Sanders, advocate, appeared for the appellant, and Michael Upton, advocate, for the council.