Examination of witness (Questions 20 -
WEDNESDAY 3 MAY 2000
20. That deflates my premise for going forward
so that will have to be for another time. As a matter of idle
curiosity, I note from the press release of the Northern Ireland
Office of 18 February last that a competition was being held for
the appointment to the new Commission of yourselves and others.
Can you tell me now that you are in post whether you actually
won or lost that competition?
(Mr Holland) Actually, I will surprise you. I think
I won it. I think I won it because of all the things I have ever
done in my life, and I have done quite a few different things
with different degrees of responsibility, I find this the most
interesting and the most rewarding. I have no regrets whatsoever.
Mr McGrady: Thank you very much.
21. Good afternoon, Mr Holland. When the Commission
was established, there was an explicit assumption that there were
such things as non-contentious parades, that there was a hope
that by concentrating on the contentious one could leave the non-contentious
to meander with a mazy motion somewhere at the edge of the frame.
I realise that it is difficult for those of us in London at this
particular time to talk about contentious and non-contentious
parades after the experience of the weekend, but has the level
of contentious parades been greater, or possibly even lesser,
than was initially expected? The impression to those of us with
very little knowledge of daily life in the Province is that every
single parade, even if it be to go to the post office to collect
your pension, appears to be contentious.
(Mr Holland) The first report of the Commission said
there were 3,200 notified parades and of that 203 were considered
to be possibly contentious and 119 had route restrictions imposed.
38 of those were imposed in relation to Drumcree, so that is roughly
a third. The latest figures up to March 2000 were that there were
3,400 as opposed to 3,200 notified paradesthis being 1
April-31 March this yearand 295 as opposed to 203 last
year were considered to be possibly contentious and of that 295
we placed restrictions on 151, that is 4.4 per cent of the total.
Of those 151, 52 related to Drumcree, so that is a third again.
The pattern is roughly the same actually. Obviously we spend nearly
all of our time, in fact the entirety of our time so far, looking
at contentious parades.
22. There is such a beast as the non-contentious
(Mr Holland) Yes, there are a lot. There is a great
cultural tradition, it seems perfectly clear to me, in the Province
that parading and parading with bands particularly is something
that is part and parcel of everyday life. Although to you and
I as English men it may seem an awful lot, it is not a lot so
far as they are concerned. There are some that are highly contentious
because of the nature of the parade or the area in which it is
23. I am sorry, I did not write down all of
the figures. The numerical increase has in fact equalled the percentage
increase but the level of non-contentious parades has not fallen.
(Mr Holland) It is roughly the same.
Mr Pound: That is very helpful, thank you.
24. Good afternoon. Your memorandum paints a
pretty bleak picture of the situation that the Commission faced
in February 1998. I wonder what has happened in the meantime?
In particular, is there any evidence that leaders have emerged
on both sides with both the interest and the authority to negotiate
compromises that will be accepted by their own sides? Is there
evidence that the existence of the Commission has encouraged such
(Mr Holland) I have no doubt that the existence of
the Commission has improved what would otherwise be an increasingly
difficult position. Having said that, there are still some areas
where it has not made a significant difference. There is a refusal
on the part of one of the loyal orders not to involve itself with
the Commission directly and that obviously makes it difficult
sometimes. Equally, there are some other areas involving residents
where there is a suspicion that their engagement is perhaps not
as full of integrity as it might be. I am trying to pick my words
carefully because I do not want to say something today that could
actually be used against the Commission or against me personally
in what may well be a difficult few months.
25. Just picking up that last sentence, do you
feel, having had your first ten weeks, that it could well be a
difficult few months and from those who have been involved in
the Commission for a longer period is there a feeling that this
year may be more difficult than last?
(Mr Holland) To be honest, I have not picked up that
feeling from the Commission. I think to a certain extent you tend
to have to live from day to day, particularly because in the case
of this Commission we took office in mid February and it was not
really until March that we could get down to work and we seemed
to be straight into a whole series of applications. When I was
first approached about this I was led to believe that March was
not too busy but we have been pretty busy ever since we started
and, therefore, to a certain extent we have not had a chance to
draw breath and that is why in May it is so important for us to
26. Mediation is clearly a central plank of
the Commission's strategy. How does the Commission go about selecting
authorised officers and mediators? What are the qualities that
(Mr Holland) We do not in the sense that we employ
the Mediation Network of Northern Ireland to do that for us, so
it is a contractual arrangement. I have not yet got myself thoroughly
around those contractual arrangements which is why we are examining
them at the moment. They choose the authorised officers, they
train them and I am bound to say that my experience of them so
far is nothing but one of full admiration for what they do and
the way they go about it. They make what is an impossible job
from the Commission's point of view appear to be much easier than
it possibly can be.
27. In the Commission's first annual report
it observes that "...there was reluctance on the part of
the loyal orders with only a very few exceptions to engage with
the local communities in order to address their concerns"
and conversely "there appeared to be little effort on the
part of the residents' groups to take any action to dispel the
view that they were motivated purely by a political agenda which
went far beyond the issue of contentious parades". In response
to this the Commission promoted the concept of "engagement".
To what extent is the act of meaningful "engagement"
as opposed to a successful outcome of "engagement",
a key determinant in the Commission's decisions? In other words,
if I am willing to talk to the other side does that materially
affect the likely outcome of your deliberations?
(Mr Holland) Defining what is "engagement"
is obviously one of the most contentious issues. Whatever I am
going to say now, as far as I am concerned, is my own personal
opinion and not that of the Commission, I would not want the Commission
to be bound by what I am saying. We are going to, of course, also,
try and expand upon the definition of engagement in our second
report which will be published during the course of May. We have
had one brief canter through the definition but we are still looking
at it. There are 101 ways you can define engagement and the Commission
established it last year. The first question is does it involve
face to face dialogue. I think the answer to that is it does not
have to involve face to face dialogue if that would be counter-productive
to the end result. After all it is the result you are looking
at rather than the way in which you engaged to get that result.
You can have talks via a third party, you can have talks via unofficial
parties. You can have an attempt to address concerns of different
groups of people in all sorts of ways. Therefore, we deliberately
have not set out to provide a list. What we do not want is a sort
of box ticking exercise done by either side. The previous Commission
took the view that, for example, consistently trying to talk to
the residents or to a particular set of parties over a period
of time was one indication that at least there was an attempt
being made to have consistent engagement. When that is coupled,
for example, with an undertaking or with an understanding that
it will continue no matter what the decision that does indicate
a certain bona fide on the part of the person saying that.
On the other hand, of course, you can, and we can all do itI
have done it myself as a lawyerengage in sterile exercises
of engagement and negotiations forever and a day. I am sure as
politicians you probably share that view.
28. Meat and drink for us.
(Mr Holland) Knowing full well that the end result
will not produce any particular result. You have to make a judgment
and we will try to in our next report give further indications
of how we come to that judgment. On the other hand, of course,
we do not want to put ourselves in a situation where we have boxed
ourselves into a corner.
29. Good afternoon, Mr Holland. I noticed during
your opening remarks you on several occasions referred to this
Commission and on another occasion to the previous Commission.
I can well understand that considering the turn around that there
has been in membership. However, in relation to the consistency
of decisions will you be following any pattern or precedents set
by the previous Commission or are you starting afresh looking
at your own criteria and making your own judgments? I notice in
your submission to this Select Committee that not only did you
claim that you would be remaining "... steadfast in our commitment
to equality of treatment..." but, presuming that it was not
a word processing error, even thought it right to embolden "equality
of treatment" indicating your view that was some priority
for the Commission. I wonder would you like, therefore, to comment
on (a) whether you are going to follow precedents and (b) how
you react to the criticism that is aimed at the Commission that
you not only have been inconsistent in many of the decisions that
have been taken but that there has been a lack of transparency
as to why those decisions have been taken?
(Mr Holland) As to consistency, it is not like a court
process where you have a body of precedent built up which you
have to follow blindly, though even the courts manage, of course,
to distinguish between decisions that they think were wrong by
finding a different set of facts. What we are involved in, as
you are aware, obviously, is trying to decide that particular
application in the light of particular circumstances in accordance
with statutory objectives laid down in Section 8 of the Act. Plainly
you could quite easily justify a decision that was made in one
set of circumstances for one particular area under Section 8 for
one year which might produce a different decision in another year
because of a change in a whole range of factors which you have
to take into account in coming to a decision under Section 8,
so that the principles are consistent but the end result may be
30. The only way we would know whether there
had been consistency or whether there had been a change of circumstances
would be if there was greater transparency as to how you made
those decisions. Can I give you an example which might be helpful.
The previous Commission had been pressed on occasions, as had
the police, to extend a parade in Kilkeel to go past a Presbyterian
church, to go past a war memorial, to go past the graves of people
murdered by the Provisional IRA and had resisted that. This Commission,
however, not only allowed the traditional Ancient Order of Hibernians
Parade to proceed but allowed them to extend it past the Presbyterian
church, the war memorial and the graves of the people murdered
by the Provisional IRA. I think everybody knows what the outcome
was in terms of confrontation within the community. Clearly there
was no consistency in the decision taken between the previous
Commission and this Commission. I looked in great detail at the
fairly scant statements that came from the Parades Commission
attempting to justify their decision and there was nothing that
would have suggested that the decision taken was right because
of some change which had taken place from the previous consideration
of the matter.
(Mr Holland) Two things I should say about that. First
of all, I do not think it is right for me to try and unpick decisions
made either by the previous Commission or, indeed, by this Commission.
It would be quite wrong for me to do so because we are a quasi
judicial body. If a decision is challenged, as it can be, by judicial
review, that is the place where it should be unpicked. From my
point of view, I would also be disadvantaged in this particular
case because that particular decision, although I fully support
it, was made in my absence when I was in Australia.
31. Nonetheless the issue remains the same,
that a different decision was given by the Commission on a parade
without any justification as to why a different decision should
be given. Irrespective of the lack of consistency there was a
lack of transparency as to why it had taken place. Are you aiming
to change that?
(Mr Holland) On the question of transparency, it is
perfectly clear that every decision must, when read by the applicant
for that parade, be clear to the applicants as to why that decision
was arrived at. We always try to set out in our decision why we
came to a particular decision, giving our reasons and explaining
what they are. The applicants, of course, have full cognisance
of the guidelines which are contained in the Guidelines brochure
and we refer sometimes in abbreviated form to those guidelines
because it makes a lot more sense to set out in that way the reference
to the guidelines rather than to set them out in extenso
in the actual decision. I do not accept actually that a decision
made by the Commission is unintelligible or not transparent. However,
if there have been occasions when it has not been transparent
I would regret those and endeavour to ensure it did not happen
32. Can I ask you about the Northern Ireland
Office review and how it relates to the issue of the implementation
of the Human Rights Act. The Northern Ireland Office have indicated
in that review that they would attempt to advance the implementation
of the Human Rights Act ahead of the marching season this year.
Do you support that?
(Mr Holland) No. The first thing we encountered, I
think almost in the first meeting, was that there should be some
selective implementation initially of the Human Rights Act 1998.
We were against the selective advancement. Then I think it changed,
in fact, to the advancement as a whole. We then became quite clearly
of the view that to do so when we had started making decisions,
right in the middle of the marching season, would be counter-productive
and the Commission as a whole took the view that it made no sense
at all to suddenly introduce the Human Rights Act into the decision
making process once we had started making decisions during this
current season. The Commission however, and I personally am very
supportive of it as a former Chairman of the Executive Board of
Justice, is entirely in favour of the Human Rights Act and believe
that its implementation will be of benefit. We do now believe
that we fully comply with what it contains. There is one particular
problem it could give rise to, which I will expand on later if
you want me to, in relation to Article 6, not Articles 8 or 11
but Article 6 could cause a problem. I will not go into that unless
I am asked to.
33. You have indicated that you do support the
widening of the court's role in relation to parades. Will this
limit or make redundant the life of the Parades Commission?
(Mr Holland) No, I do not think so because we have
to deliver our decisions in accordance with the Act. In my view,
the Commission is compliant with the Human Rights Act and we ourselves,
even now, comply with the Human Rights Act in the way in which
we address the issues that have to be addressed when we make our
decision, subject to this point about Article 6.
34. I noticed in the figures that you gave us
in relation to the number of contentious parades that they had
increased by about 40-45 per cent. Is there not a real danger
that the existence of the Parades Commission and the role that
they are adopting is going to encourage parades to become contentious
because they become contentious when people object to them and
they object to them if they believe that either one side or the
other is being favoured by what the Parades Commission is doing
and they will seek to redress the balance. Is that not the reason
why there are more contentious parades now than before?
(Mr Holland) I think I am ill-equipped to answer that
question, it seems to be more political. I happen to believe,
otherwise I would not be here, in what the Commission is about.
It is an Act of Parliament that I think deserves support. Whether
or not it fits into the framework of the political background
to Northern Ireland I would not like to answer.
35. The figures that you have given us would
support the view that the existence of the Parades Commission
has at least come in parallel with an increase in the number of
parades that are judged to be contentious.
(Mr Holland) The number of parades in themselves have
increased from 3,200 to 3,400. I accept that is not the same proportion
in relation to the contentious parades but, as I say, I think
I am ill-equipped to say whether the Parades Commission is the
cause of that.
36. Before I call Mr Barnes, and I think it
is as much for the benefit of those behind you as yourself, it
would be helpful to have a note on the Article 6 point to which
you made reference in answer to Mr Robinson.
(Mr Holland) I will happily do it now because it is
not a particularly complicated point. Article 6 says in effect
that everyone is entitled to a fair and public hearing in relation
to the exercise of civil rights and the determination of civil
obligations. What we are about, of course, is determining obliquely
civil rights. At the moment we do not have what I call public
hearings, we take evidence but not from both sides at the same
time. We are taking legal advice about this. There is a suggestion
that perhaps Article 6 will impose upon us an obligation to do
this with all parties in the room or at least aware of what the
other parties have said in detail. These are problems that we
are going to have to address before October and that is a point
that needs to be addressed. I just highlight it in case anybody
is interested but if it would help I can provide more detail.
37. My recollection is within the Ombudsman
role, from which you came, a similar problem is in front of them.
(Mr Holland) That is absolutely right, we are completely
caught by Article 6. I am very much up to speed on that issue
for this reason. We are going to have hearings which, of course,
is the last thing we wanted to have as an Ombudsman service.
38. Mr Holland, over the period of the troubles
there have been tremendous movements of population in Northern
Ireland and people being burnt out of one community and moving
into others, so the demographic map of Northern Ireland has changed
dramatically. Has this had an impact upon parades, about what
is contentious and what is not contentious?
(Mr Holland) I do not know enough about the demographics
but I suspect that because of the change in demographics, parades
that took place in areas that previously would not have caused
a problem may now lead to a problem or will be leading to a problem
in the foreseeable future, and by that I mean over the next two
or three years. There is certainly the demographic impact that
you have referred to which in my view does impact on the increasing
number of contentious parades but I am saying that without any
scientific knowledge or back-up to justify it.
39. In terms of contentious parades, are there
numbers of them which because of these changes that have taken
place mean that, say, a Loyalist parade takes place through a
Catholic area but it is not an area of dispute, it falls into
the non-contentious camp? Is there any way you can work the statistics
out on this as to whether it is because people are going through
what is seen as Catholic territory, or new Catholic territory,
that the problem arises?
(Mr Holland) Yes, certainly some parades do take place
which appear to be going through areas which have recently become
Nationalist areas than previously was the case, and then you have
what are called interface areas where they overlook Nationalist
areas and with the change in population obviously those areas
can change. It is an interesting job because we tend to look first
of all at what I call the broad space of principles and then suddenly
you are down to the nitty gritty of a particular road in a particular
area and how it impacts upon the people in the adjacent road.
You have to be very detailed in the way you look at maps and you
obviously have to go to inspect the areas sometimes. Then again
you have to be very careful about the disruption, I do not mean
disorder but the straightforward disruption to traders, to people
going about their activities on a bank holiday or whatever who
perhaps do not want to see, let us say, a slice of a motorway
access road closed off for a long parade. Yes, there are quite
a lot of individual matters we look at in the context of deciding
whether a route should be changed and we spend a lot of time doing
that. It takes a great deal of our time actually.