Select Committee on Northern Ireland Affairs Minutes of Evidence



Examination of witness (Questions 20 - 39)

WEDNESDAY 3 MAY 2000

MR TONY HOLLAND

  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.

Mr Pound

  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 parades—this being 1 April-31 March this year—and 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 parade?
  (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 carried out.

  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.

Mr Grogan

  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 leadership?
  (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 draw breath.

  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 are important?
  (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.

Dr Palmer

  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 it—I have done it myself as a lawyer—engage in sterile exercises of engagement and negotiations forever and a day. I am sure as politicians you probably share that view.

Mr Pound

  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.

Mr Robinson

  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 different.

  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 again.

  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.

Chairman

  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.

Mr Barnes

  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.


 
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