Northern Ireland’s so-called marching season is usually petering out by now. This year looks to be different. On Sunday 27 September, after a 28-year wait and a flurry of last-minute legal challenges, the Orange Order was given permission for 35 of its members to complete the return leg of its march from Drumcree parish church along the nationalist Garvaghy Road. No march took place. The route was blocked by several hundred, at points thousands, of counterprotesters representing the nationalist community. The Police Service of Northern Ireland (PSNI) found itself caught in the middle of politics, parades and public law. The political temperature is now as high as it has been in years; there is talk that Stormont’s power-sharing executive will not survive this. This post is an attempt to unpick the public law components that, in the absence of political compromise, police have to grapple with.
Part I: How we got here
The Drumcree Sunday parade runs from Portadown to Drumcree Parish Church and back. The dispute has always been about the return leg down the Garvaghy Road, through a predominantly nationalist community, and it was the worst of the parading disputes in the ceasefire years. In 1995, the Royal Ulster Constabulary (RUC) stopped the return leg for the first time; a mediated compromise let the Orangemen walk in silence past protesting residents, which the Orangemen claimed as a victory. In 1996, the police re-routed the parade, then forced it through after four days of loyalist disorder. In 1997, 1,500 soldiers and police sealed off the Garvaghy Road at 3.30am, cleared a sit-down protest by force and let the parade through at midday; rioting followed. The Public Processions (Northern Ireland) Act 1998 gave the decision to the Parades Commission, which re-routed the parade; a week of loyalist violence followed, in which three Catholic brothers were killed by a UVF petrol bomb. Portadown District Loyal Orange Lodge has notified the return leg every year since, more than a thousand times in all, and the Commission refused every one until this month.
In August the High Court quashed this year’s Parades Commission determination because not all six commissioners had signed off the final text. The District re-notified for Sunday 27 September, and on the Friday the Commission allowed the return leg for the first time since 1998, on strict conditions: 35 participants, departure by 8am, dispersal by 9.30am, no bands and no supporters. The determination recorded that the PSNI ‘had no information indicating that the parade would result in disorder or violence’, though the police also told the Commission they had planned for every scenario, up to violent disorder, and would resource any parade with or without conditions (Re MacCionnaith’s Application [2026] [21], [24]). On the Saturday the Garvaghy Road Residents’ Coalition sought judicial review, arguing that the determination was irrational and that the Commission had misread the police evidence on the risk of disorder. Counsel for the Commission disclosed an application for a 5,000-strong protest on the road at 7am on Sunday. Smyth J granted an injunction suspending both the Lodge’s notice and the determination; that night the Court of Appeal allowed an Orangeman’s appeal, holding that the injunction had in effect decided the judicial review without a hearing on its merits, and on Sunday Humphreys J refused leave. Within hours, Garvaghy Road was filling with counterprotestors.
Part II: Three perspectives
Before turning to the law, it helps to hear the grievances of the two protagonists, and the police response, since the legal faultlines run through them. First, the Orange Order and its supporters. Portadown District’s position is that it notified a parade, the Commission allowed it, the courts upheld that decision, and it turned up on time to complete its ‘1998 parade home’, promising full compliance with the determination. At the church on Sunday morning, persons associated with the Portadown District contrasted the lawful, peaceful men of Portadown with politicians ‘illegally blocking the Garvaghy Road’. By Sunday night the District Master of the Portadown was blaming the police, disappointed and frustrated by the lack of a proper policing plan, and, asked whether the 35 would go home answered, ‘absolutely and unequivocally no’. On this view the PSNI’s failure to clear the road of nationalist counterprotestors was capitulation; the rule of law came down to the rule of numbers – whichever side brought the bigger crowd.
From the perspective of the Garvaghy Road residents, the Commission’s decision prompted shock, anger and hurt. Residents who grew up through the 1990s speak of their trauma and their determination that their children will not go through it; on Sunday morning a mother whose child died near the road 30 years ago walked to the police line carrying the child’s photograph. The residents’ fire was further directed at the PSNI, with the Chief Constable being asked why he had sought mutual aid reinforcements from Britain for a supposedly small demonstration, and whether he had misled the Commission, given the PSNI’s statement that it had no information indicating the parade would result in disorder. On Sunday, Northern Ireland’s First Minister, Michelle O’Neill, who said that ‘twenty-eight years of peace was not a problem that required a solution’, urged the crowd to stay the course. On this view, the residents are exercising their own right to peaceful assembly against a decision that was unjust.
Caught in the middle are the PSNI. The Chief Constable, Jon Boutcher, has described an ‘exceptionally challenging’ policing operation planned to ensure there was no violence or disorder. By Sunday evening he was explicit that police had been gathering evidence against every party, and that success meant ‘not one hair on one head gets harmed’. Throughout Sunday officers broadcast that the gathering was an unnotified protest meeting and that those present were liable to arrest, notwithstanding the application disclosed in court the day before — a discrepancy returned to below — and negotiators approached the front line. The police position seems to be that the parade is lawful and the counterprotest should disperse but that clearing several hundred people from a residential road in Portadown would risk exactly the violence the operation was designed to prevent.
Part III: The law
Let’s start on terra firma. The Orange Order will need a fresh notification before any further march. On Sunday night the District Master was still saying the 35 would not go home until they had completed their parade. This is not so straightforward. A s.8 determination by the Commission is permissive: it sets the conditions on which a notified procession is lawful, and s.8(7) makes it an offence for a participant to knowingly fail to comply with them. The conditions here were tied to a fixed window on Sunday 27 September, which has now closed. The Commission may amend or revoke a determination (s.8(4)), but cannot extend it beyond its terms; a fresh one needs a fresh notification. A procession held on a date, at a time or along a route other than that notified is itself an offence under s.6(7)(b). If Portadown District wants to walk, the lawful route is a new s.6 notification, a new determination and, very probably, a new round of litigation.
Less certain is what will follow if a new determination is made and the counterprotests return – or, indeed, if the Orange Order challenges by way of judicial review the PSNI’s failure to facilitate Sunday’s march. The Orange Order’s frustration rests in part on the claim that the police owed a duty to enforce the law and had to clear the road. Ringing in commanders’ ears, one suspects, is DB v Chief Constable of the PSNI [2017] UKSC 7, arising from the 2012–13 flag protests. There, weekly unnotified loyalist parades passed the Short Strand, and the PSNI facilitated them because it believed the protesters’ Article 11 rights and the risk of disorder left it unable to intervene. The Supreme Court held that the police had misunderstood their powers: participation in an unnotified procession is an offence under s.6, and Article 11 did not require the police to facilitate an unlawful parade. Crucially, the Court did not say the police had to stop the parades. It said their operational discretion was legitimate but had to be exercised on a correct understanding of the law. The question the police must ask, in other words, is not whether a parade or protest should take place, but whether it is taking place legally, and then how to exercise their powers (DB, [57]).
The PSNI’s core duties come from s.32 of the Police (Northern Ireland) Act 2000, which requires them to protect life and property, preserve order and prevent offences; the common law power to prevent a breach of the peace; and s.6 of the Human Rights Act, which requires them to act compatibly with Convention rights. Starting with those core duties there is no duty on the police to enforce a determination as such. The 1998 Act binds organisers and participants; it does not direct the police to deliver a parade. The Act repealed the Chief Constable’s power under art. 4 of the Public Order (Northern Ireland) Order 1987 to impose conditions where a procession may result in serious public disorder, and did not enact the North Report’s recommendation of a residual police power to intervene where a determination is defied (DB, [49]–[55]).
But here’s what the 1998 Act does do. First, it creates offences, which can then be enforced by police. The Orange Order’s parade was lawfully notified and authorised; if the counterprotest was a related protest meeting for which valid statutory notice had not been given, that is a prima facie offence. Notice of a kind was attempted: counsel disclosed an application for a 5,000-strong protest lodged for 7am on Sunday, but the news reporting on Sunday seemed to suggest no notice had been given of a protest meeting. Second, the 1998 Act preserves the police’s existing powers: s.10 provides that nothing in ss.8 or 9 or in any determination ‘affects the common law powers of a constable to take action to deal with or prevent a breach of the peace’. As determined in Laporte v CC for Gloucestershire (2006) power is engaged only where a breach is reasonably apprehended as imminent, and any preventive action must be proportionate.
The heart of the matter is how those powers are exercised compatibly with Article 11 of the ECHR. Where two assemblies conflict, the state owes a positive obligation to both and should look for the least restrictive means, separation in time and space, physical cordoning, that would in principle allow both to take place (Fáber v Hungary (2012), § 43); violence at similar events in the past is relevant to that assessment (Fáber, § 44). There are two dimensions to this. Firstly, the PSNI owed the marchers a positive obligation. The state must take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully, and participants must be able to march without fearing violence from their opponents (Plattform “Ärzte für das Leben” v Austria (1988): §§ 32, 34), though it is an obligation as to measures, not results. The mere existence of a risk of disorder is not enough. The authorities must evidence the potential scale of disturbance and the resources needed to meet it (Fáber v Hungary (2012), § 40; Barankevich v Russia (2007), § 33). Relevant here is what the police told the Commission: not only that they had no information indicating the parade would result in disorder, but that they had planned for every scenario and would resource any parade with or without conditions ([2026] NIKB 55, [21]). Having said so, it is awkward to rely later on disorder that materialised only because of a counterprotest the police then tolerated.
Against that, the residents’ strongest right was the Article 8 ECHR interference with their, was weighed by the Commission and, on Saturday night, held by Humphreys J to have been lawfully balanced against the Lodge’s Article 11 ECHR rights. What remains, for policing, is the different claim: a right to assemble in order to obstruct. The counterprotesters have that Article 11 right too. The Strasbourg court has repeatedly held that staging a demonstration without prior notice does not of itself justify interfering with it, and that where participants do not engage in violence the authorities must show a degree of tolerance (Kudrevičius v Lithuania [GC] (2015), § 150). So, the PSNI could not simply clear the road on the sole ground that the counterdemonstration was unnotified; what matters is why it was not authorised, what risks it presented and how the police handled it (Primov v Russia (2014), § 119). But the tolerance owed is not unlimited. Its limits depend on the duration and extent of the disturbance and on whether participants have had a sufficient opportunity to manifest their views and to leave when told to (Frumkin v Russia (2016), § 97). Kudrevičius is clear that deliberately obstructing others’ activities, though ‘peaceful’, sits outside the core of Article 11, widening the state’s margin. And Plattform is clear that the right to counterdemonstrate cannot extend to inhibiting the exercise of the right to demonstrate (§ 32).
On what is publicly known, the PSNI was working from a stronger premise than in DB. It said clearly that the counterprotesters’ assembly was unlawful, warned of arrest, held the two groups apart and recorded offences for later prosecution. Their answer, one suspects, will be that enforcement of the law is not synonymous with forcible clearance. That is a choice of method, not a refusal to act, and the courts have long declined to dictate the timing and disposition of police operations (R v Metropolitan Police Commissioner, ex p Blackburn [1968] 2 QB 118).
Two features of the weekend nonetheless invite scrutiny. The first is the gap between what the PSNI told the Commission, that it had planned for every scenario and could resource any parade, and Sunday, when the road could not be cleared. Changed circumstances is the obvious answer, since the notification of a counterprotest only surfaced in court on Saturday. But Humphreys J has found that the Commission engaged with the police’s intelligence assessments over a period, which makes the residents’ charge that it was misled harder to sustain, and the planning question sharper. The second is s.9 of the 1998 Act, under which the Secretary of State must review a determination on the application of the Chief Constable. If the police concluded that the parade could not safely be facilitated, that was the statutory mechanism to reach for. No application was made. Under s.11 the Secretary of State may prohibit a proposed procession on public interest grounds without any request. The power has never been invoked (DB, [54]), nor was it here. With neither the s.9 nor the s.11 route taken, the PSNI was left in an awkward space – one that seems to run against the grain of the 1998 Act, which moved the decision away from the police precisely so that the risk of disorder would not be decisive and threats of it would not be rewarded (DB, [50]). By neither facilitating the parade, nor invoking s.9, the effect was to make a judgment about whether the parade should take place, but not within the framework of the 1998 Act (DB, [57]).
Why, too, as the day wore on and the parade’s window had long closed, did the police not bring the protest to an end? Article 11 tolerance for an unnotified assembly is not indefinite, and by mid-afternoon there was no longer a lawful procession for the blockade to block. One suspects the PSNI’s justification, if challenged, will be framed through Article 2 of the ECHR. PSNI public order commanders have in the past described Articles 10 and 11 and Article 2 to me as ‘two sides of the scales’, and one put it more bluntly: in Northern Ireland, Article 2 ‘is always going to be a factor on our paper’. But how does Article 2 enter the legal formula? The source is In re E (a child) [2008] UKHL 66, the Holy Cross case. The House of Lords held that the police’s positive obligations to protect the children walking to school had to be assessed in context, without hindsight, and that the police were entitled to weigh the risk that forceful action against the protesters would escalate the violence. Strasbourg declared the follow-on application inadmissible on the same reasoning (PF and EF v United Kingdom (2010)), and it allows a wide discretion in the choice of means where a serious threat of violent counterdemonstration exists.
Transposed to Drumcree 2026, the argument runs like this. The Article 11 duty to facilitate is an obligation of means, not result, with a wide margin as to method. Article 2, and the planning obligation in McCann v United Kingdom (1995), require the state to design operations so as to minimise recourse to potentially lethal force. Clearing a dense crowd including children and elected representatives from a residential road, with the 1996 and 1997 precedents in mind, carried a real and immediate risk to life within Osman v United Kingdom (1998). A measure the police reasonably assessed would require force of that kind was therefore not a reasonable and appropriate measure for Article 11 purposes. The Chief Constable’s definition of success on Sunday, that not one hair on one head is harmed, is consistent with this thinking. The police did not ban the parade; they told the Orangemen the road was not clear, kept the parties apart, sent negotiators to the line, and preserved the marchers’ rights for another day. In short, Article 2 defines what Article 11 can demand.
This argument is not wholly watertight, however. First, it blurs two distinct risks. Part of the risk to life is the police’s own use of force. Given the incendiary nature of the parade, why was the route not secured beforehand, by early closure or a sterile zone, so that the choice on Sunday morning was not clearance or nothing? By Sunday night the District Master was blaming the absence of a proper policing plan. A risk the police have failed to plan for is a shaky foundation on which to argue that the same risk made facilitation impossible. Second, taken to its conclusion the argument becomes a heckler’s veto of exactly the kind Barankevich and Identoba v Georgia (2015) warn against, and the kind the 1998 Act was designed to remove. Third, there is a lesson from DB about how the argument is put. There the Article 2 justification was never properly developed or engaged with. Lord Kerr declined to treat Article 2 as the central issue and, like the House of Lords in Re E, located the risk of provoking further violence within the scope of the positive duty owed to the applicant. The courts will in any event require the risk to be real and demonstrable, as shown by Treacy J’s scepticism in DB about whether an Article 2 risk still existed. That puts the PSNI’s own risk assessments at the evidential centre of any challenge.
By way of conclusion, at the time of writing, the Orangemen are still at Drumcree refusing to leave until they complete their parade, while the Garvaghy residents are promising to stop it permanently, and the Secretary of State was embarking on talks with the Chief Constable and the residents. The Chief Constable is right that a longer-term conversation is needed. Sir John O’Hara KC’s review of the Commission’s decision-making processes is due in November. But for now, the unenviable interplay of protest, police and public law continues. Whether Smyth J’s plea that the parties be ‘big enough to step back from the abyss’ will be heeded remains to be seen.
Dr Richard Martin is an Associate Professor at LSE Law School and author of Policing Human Rights (OUP, 2021). He is grateful to the editors for comments on the draft.
(Suggested citation: R. Martin, ‘Scenes from the Garvaghy Road, 2026: Protest, Police and Public Law in Northern Ireland’, U.K. Const. L. Blog (30th September 2026) (available at https://ukconstitutionallaw.org/))
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