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Mr. Andrew Hunter (Basingstoke): I entirely accept the line of argument that the hon. Gentleman is pursuing, and I ask him to entertain the proposition that the blurring that the creation of the commission creates may be part of that progressive programme of disengagement and should be seen in a wider context of the betrayal of British Ulster.
Mr. McCartney: Certainly, one of the common perceptions among the pro-Union community in Northern Ireland is that the Government are seeking to divest themselves of authority. That can also be seen in that wider context of the Government saying that nasty decisions have be taken for which Governments should in the normal course of things be taking political responsibility. If we interpose between Government and the people, on whose behalf those decisions are being taken, some other body, such as the commission, the decision or decisions are the commission's. Only in the acute situation where it is plain that the commission's
decision will be neither respected nor honoured, and there is a confrontation between the conflicting parties that requires the possible intervention of the civil arm in the form of the Chief Constable and the RUC, will any political responsibility be taken. In all other cases, there will be this shock absorber, this blurring effect of the commission.
Be that as it may, the point is that, if we are to have the commission, its functions and powers must be defined in the clearest possible way. If it is to have mediation as well as adjudicating functions, so be it; if it is to have adjudicating functions only, that is all it should have. The use of nebulous language about facilitating mediation might mean that we had the worst of both worlds. The provision would infringe the basic, accepted principle of judicial and quasi-judicial matters that someone should not mediate if he or she will also be the ultimate adjudicator. The position should be clear. Let us take the requirements for the Parades Commission to mediate and to facilitate mediation out of the Bill. The body should simply adjudicate or mediate, but it should not combine two functions that are recognised as incompatible.
Mr. Öpik:
I shall advance the fourth of the four possible positions in the debate on the amendment. I believe that we should maintain the status quo and leave the Bill as it was originally drafted. The commission should have the options to mediate or to facilitate mediation. It would be sad if we had to take away from the commission the opportunity to mediate, which should be one of its main purposes. Government amendment No. 16 would remove the opportunity for direct mediation and amendment No. 33, tabled by the hon. Member for East Londonderry (Mr. Ross), would remove the opportunity to facilitate mediation.
The North report revealed that 80 per cent. of the population want parades to be mediated. In other words, the function of mediation is a vital expectation of the people whom the commission is intended to serve. The North report states:
The commission will have to find the most effective way to mediate, and it would be premature to remove the commission's opportunity--through experimentation and trial and error--to discover whether it should mediate directly. That does not have to mean a formal process. If we expect the process always to involve facilitation, we would formalise a matter with which the commission could sometimes deal informally. That point brings us back to the difficulties of definition that the hon. and learned Member for North Down (Mr. McCartney) described.
When we consider the question of adjudication versus mediation, we should remember that the commission may have problems in performing both roles in a particular instance, but we should not prevent it from deciding to act as an adjudicator on one occasion and as a mediator
on a separate occasion. If the commission could perform both roles on different occasions, it would have more flexibility to adopt the most suitable approach for the circumstances it faced.
I do not agree with the fears expressed by the hon. and learned Member for North Down about a conspiracy theory in which the Government and political leaders would hide behind the commission to avoid taking political decisions. The Government have shown some courage in their dealings with Northern Ireland, as did the previous Administration. They did not indulge in scapegoating or hiding behind other organisations. It is a fair risk to take to assume that giving the commission the opportunity to mediate and to adjudicate on different occasions would not result in an abdication of responsibility by Westminster's representatives in Northern Ireland.
Why should the commission not be allowed to deem what sort of mediation would be appropriate, as the North report envisaged? That returns us to importance of flexibility. By taking away direct mediation from the commission's repertoire, are we not moving further away from peaceful resolution by tying the commission's hands before it has even had the opportunity to try that approach? I understand that the Minister intends mediation to be done by others, but surely who mediates will vary from circumstance to circumstance.
The difficulty of finding the right mediator in each given circumstance has been lucidly highlighted, but it cannot be insuperable. If we cannot find one among the 1.5 million people of Northern Ireland, there are other places we can go to find one. It is a red herring to assume that it is impossible to find someone who would be acceptable to both sides. The Parades Commission is given the duty of being aware of what to do in particular circumstances. The professionals involved in that role will be more than able to ensure that mediating facilitators can do the job.
Either amendment would take away from the Bill. I re-emphasise that we could not vote on both amendments together because they are mutually contradictory. If it goes to a vote, I assume that we shall have the opportunity to vote on each amendment individually.
Mr. Ingram:
The hon. Member for Montgomeryshire (Mr. Öpik) talked of the fourth dimension to the debate. In doing so, he reminded me of the debate that I have been having in trying to arrive at a conclusion about the best way forward. The Bill as it stands tries to take on board one important dimension of the issue and set out the sort of arguments that the hon. Gentleman raised about the role of mediation, facilitating mediation, and adjudication.
In the debate and in listening to representations about the precise nature of what the Parades Commission should do, I took into account the commission's view of its role. It is easy for Governments to legislate and impose powers on bodies but we must take the good advice of those who will have to carry things out. The commission has a view about that.
The hon. and learned Member for North Down (Mr. McCartney) discussed whether mediation should appear at all and whether there should be a straightforward adjudicatory role for the Parades
Commission. If he takes that view, he had the opportunity to table amendments to that effect. I do not think that he did. It is all very well arguing that principle, but he could have sought to amend the Bill. We do not have the opportunity to discuss that. It so happens that I do not accept his conclusions. If I recollect correctly, he claimed that the original intention--I assume he means of the North report--was that the commission should both mediate and adjudicate. Paragraph 29 of chapter 12 of the report recommended that the remit should include promoting and facilitating mediation and the search for local accommodation, along with the adjudication role.
Standing back from the debate, considering my earlier views about the way in which the Bill was constructed, then going back to North, listening to the arguments that were advanced, and knowing that the Parades Commission saw the need--again consistent with what was laid down in North--to place the mediation role in the hands of authorised officers who would discharge the function of mediation and get as closely engaged with the process as possible, I felt that it was desirable to move the legislation back closer to what North originally recommended. I would not say that that is easy. The report of our proceedings in Committee shows the arguments that I advanced, which were not dissimilar from those expressed by the hon. Member for Montgomeryshire. I have said consistently that it is important to listen to other opinions to try to reach the best conclusion.
"Mediation can play a crucial role in helping to resolve potential conflicts."
It also states:
"We doubt whether the Parades Commission itself would need to develop a professional mediation capability amongst its own staff."
However, we would lose nothing by giving the commission the opportunity to test that point.
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