Sheriff issues written opinion on decision to refuse Stonehaven Orange Lodge march appeal

About this case:

• Citation:
  [2024] SC ABE 22
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Ian Miller

The Dunottar Martyrs Memorial Loyal Orange Lodge 1685 appealed a Prohibition Order made by the Kincardine and Mearns Committee of Aberdeenshire Council. The group averred that the decision to prohibit a march interfered with their rights under Article 11 ECHR.

The appeal was heard by Sheriff Ian Miller at Aberdeen Sheriff Court. Sanders, advocate, appeared for the appellants and Upton, advocate, for the respondents.

Disruption to the community

It was averred by the appellants that they wished to hold a 30-minute procession to commemorate the opening of a new Orange Lodge in Stonehaven, and in January 2024 submitted notice of their proposal to the respondents. The Constable of Police Scotland made representations on 14 February stating that Police Scotland had of no objections subject to observations. However, the respondents refused permission on grounds of safety fears and a belief that it would place an excessive burden on local policing.

Counsel for the appellants submitted that the Committee decision was in breach of Article 11 ECJR, as there could be no prohibition unless the Committee could prove that prohibition was necessary for the prevention of disorder or crime or for the protection of the rights and freedoms of others. The Committee had insufficient material to warrant a restriction of the appellant’s rights based on the test of necessity, and if there were a potential point of conflict created by persons other than members of the appellants that was for Police Scotland to address.

It was further submitted that the Committee’s reasoning was inadequate and lacking in transparency. Concerns about public safety and disruption to local business were ill-founded, and the presence of approximately 200 visitors to Stonehaven would enhance the businesses of those in the town that stayed open. They had done everything they should have done and in the right way, thus the refusal was a very serious breach of their rights.

For the respondents it was submitted that it was factually incorrect to say the Committee had insufficient material before it. Counsel quoted from 28 representations, including two MSPs, from which he instanced the repeated concerns expressed about public safety, public order, damage to property and disruption to the life of the community of Stonehaven and its businesses. The decision made by the Committee was made after an honest and careful assessment of what was before it which included a significant body of evidence and submissions.

Counsel for the respondents also noted that the appellants had not pled that section 63 of the Civic Government (Scotland) Act 1982, which covered the functions of regional councils in relation to processions, was in breach of Article 11. As a result, it must be held to be compliant. In the absence of such an averment, there was a gaping hole in the middle of the appeal.

Lacks essential ground

In his written opinion, Sheriff Miller said of the relevant parts of the 1982 Act: “When a person, individual or legal, has a legitimate and enforceable legal interest in questioning the decision of a local authority as being a failure to carry out its statutory function of regulating a procession, that person must ground his assertion in a statement of the respect in which the authority has failed to comply with its function as regulator. That failure has to be of a provision in section 63 and most likely of section 63(8).”

He continued: “Any such appeal has to be presented under and in terms of section 64 and making use of whichever ground or grounds of appeal set out in section 64(4) apply. Section 63 provides the right to challenge a decision while section 64 provides the means whereby that right is exercised and the grounds that must be used. It is section 63 that triggers the right of appeal not section 64.”

Asking whether the appellants had done that in this case, the sheriff said: “All four references in character are informative as to the powers and duties of the respondents but go no further than that. They do not individually or in cumulo amount to a case stated in express terms against the respondents that is founded in section 63. That means that the appellant’s case against the respondents lacks that essential ground of action. It is therefore irrelevant so far as pled under the 1982 Act.”

On what he would have done if he had been asked to decide on the facts, he concluded: “The standard of criticism that the appellants have to achieve is that the reasons are inadequate. I would not have been satisfied that the appellants had succeeded in that. I would have been satisfied that the reasons given by the Committee in the exercise of its wide discretion are adequate in the whole and extensive circumstances known to it at the point in time when it made its decision to prohibit the procession.”

Accordingly, the appeal was refused.