Examination of Witnesses (Questions 160
- 172)
WEDNESDAY 29 NOVEMBER 2000
DR DOMINIC
BRYAN, DR
NEIL JARMAN
AND MR
MICHAEL HAMILTON
160. That is still a very high percentage. But
I think your comparison with the Public Order (Northern Ireland)
Order is a very good one. I can recall being in Lurgan when there
was to be a Republican parade past where two policemen had been
killed by the IRA and a number of protesters came out onto the
street. The police were prepared to put the parade through until
somebody lifted a flowerpot and threw it. On that basis there
was the likelihood of disorder, so they stopped the Republicans
from coming down that area. That is putting it in the reverse,
but it shows that the threat of disorder in itself can be the
cause. Even though, if you look at the principles of the parade,
it may be justified, the threat of disorder can often be the factor
that causes the Parades Commission to make a determination against
the parade or a re-routing of the parade. Should it be thus?
(Mr Hamilton) It is a situation which has existed
before the Parades Commission came into being.
161. But is it right?
(Mr Hamilton) It is not right. The thrust of the new
legislation, if you like, was to get away from public order considerations
being the primary determinant behind the decisions of the Parades
Commission, so I think there is a desire to see public order becoming
less of a determinant. I think this Committee's remit is to look
at the situation within the current legislative framework, but
one thing that I have always wondered about is whether to allow
the Parades Commission also to take decisions regarding related
protests would help deal with the perception that the Commission
is only set up to tackle Loyal Order parades. The Commission is
implicitly considering the entire situation in any case, therefore
it would not be, to my mind, a great increase in workload if they
also took decisions on related protests.
(Dr Jarman) I do agree with you there. I think it
is a problem that threats to public order are allowed to determine
what parade or public events take place and which do not. Unfortunately,
that is the overriding principle for many Western European countries,
that the threat of public disorder is a priority over people's
right to assemble. It is the overwhelming factor in the decisions
made by the European Court of Human Rights, in adjudications over
rights to assembly. The American system seems to be somewhat different,
in that they do take the rights principle first and put the onus
on the police to maintain some order. Similarly, research we did
in Israel, talking to parade organisers, showed that even if their
parade was going to be very provocative they would expect it to
proceed. In fact they had examples where the police had protected
them, to allow them to make the protest and to annoy people, although
those examples were talking about members of the Jewish community
antagonising members of the Jewish community—it was a kind
of secular religious debate. When it came down to the ethnic dispute
between Palestinians and the Jews, then the police tended to resort
to the fear of public disorder. I think the public order issue
is one that in an ideal situation will persuade that public order
should not take priority, but in pragmatic terms public order
inevitably does seem to have taken priority.
162. One last supplementary, Chairman. Is the
great danger then not that the parade organisers find themselves
in a position where if it can then be shown that there will be
greater disorder if the parade is stopped, that they apply counter-pressure,
so that it would get to the stage in the community where you are
going to have trouble one way or the other.
(Dr Jarman) That was very much the case in 1995 and
1996. It was a question of bodies on streets at the time when
the police were making the decisions, and you did not know until
five minutes to the time the parade was due to start whether the
parade was going to go down or whether the parade was going to
stop. It seemed to very much depend on getting bodies on the street.
I think one of the ideas behind forming the Parades Commission
and encouraging them to make the determination seven days in advance
was not so that people had the time to prepare barricades and
mobilise their defences but so that there would be time for people
to take a more mediated approach to their response. It is problematic,
it is a difficulty wherever people march and demonstrate, unfortunately.
(Mr Hamilton) Just to pick up on what Neil was saying
about the European Court of Human Rights, it is such a difficult
issue and even the European Court on Human Rights has ended up
disagreeing with itself, if you like, and in the case of, for
example, Christians Against Racism and Facism v The United
Kingdom [1980] the European Commission held that it was entirely
reasonable for the authorities to use an objective test in assessing
the likelihood of disorder and the authorities were not obliged
to distinguish the source of disorder, yet in some later decisions
of the European Court, perhaps the case of Ezelin v France
(1991), a more subjective test as to the potential for disorder
has been applied and in that case the person being restricted
was held that they had to have acted reprehensibly before a restriction
should be justified, that they themselves had to have acted reprehensibly.
This is something which has to be tested in our own courts before
we really know what road the courts here are going to go down.
Mr Thompson
163. Have the courts here or in the United Kingdom
established that where there is a threat of violence, action should
be taken against those who have threatened that violence not against
law-abiding citizens?
(Dr Bryan) I would say you have to look at the reality
of what takes place in Northern Ireland and there is a threat
of violence on both sides, and it has been revealed when parades
have been stopped that there is a threat of violence on both sides.
Could I also add an example from America which I think shows up
what we have been saying, the well-known Skokie case, where socialists
were marching through a Jewish area. It went to the Supreme Court.
There were complications to the case but, basically, they were
told that they could take their route through this Jewish area.
The reality of the day was that there were so many protesters
in that place that the police could not physically do it. That
is the reality of public order policing. It is the reason why
I do not think we can just rely on looking at rights legislation
as solving the problems we have, because the reality is that,
if on the day the public order situation is as bad as it can be
in Northern Ireland, then you have to make some very, very difficult
decisions and they can look a long way from what we would like
people's rights to be.
Mr Hunter
164. Two questions, please. First, what input
did you make to the Northern Ireland Office review of the Commission?
Secondly, what assessment do you make of the conclusions of that
review?
(Dr Bryan) I cannot remember the woman's name but
we spoke to the woman who was conducting the review and we basically
gave her all our published material at the time. From memory—and
I will look up my records and correct it if I am wrong—she
conducted an interview with us and we gave her the published material
that we had produced around the issue.
165. What is your assessment of the conclusions
that the Commission reached?
(Dr Bryan) I am trying to remember exactly what they
are, but I do seem to think that the conclusions were rather bare
and minimal, given what they were going through. We are dealing
with something which is very, very difficult and I do think that
having a constant critical review of how the Parades Commission
or any institution working around this is very, very important.
I do not think the answers are easy and I must say I found the
list of, I think, five or six recommendations rather minimalistic.
Mr Beggs
166. Good morning, gentlemen. There seems to
have been relatively few legal challenges to the Commission's
determinations and none appear to have been successful to date.
To what do you attribute this and do you think that this will
change with the Human Rights Act?
(Mr Hamilton) I think possibly the greatest reason
that you could give for the lack of success is the very nature
of judicial review proceedings of themselves, in that they are
essentially a procedural challenge and are restricted to asking
the question whether the Commission reached its decision by using
all the proper procedures, and the court has repeatedly stressed
that it will not sit as an appellate body and will not substitute
its assessment of the merits of the issue for that of the Commission
(or, indeed, the police before the Commission was instituted).
Certainly there may be a greater chance of success under the Human
Rights Act, and because there is a new freestanding ground of
view created then that may give rise to a greater number of challenges
and it will allow the courts actually to consider the merits of
the decision which the Parades Commission has reached.
167. Is there an implication then that all the
decisions of the Commission have been reasonable in all the circumstances?
(Mr Hamilton) I am sorry, are you asking whether previous
challenges to the Commission have indicated that those particular
cases were reasonable in the circumstances? Yes, that is what
the courts have held.
168. What study have you made of the Commission's
mediation role and the effectiveness of its Authorised Officers?
What evidence have you for the assertion that their work has contributed
to a "general improvement in the environment surrounding
parades in a number of areas"? Which areas have you in mind?
(Dr Bryan) This area of the role of the Parades Commission
in mediation is very, very difficult. I have to tell you that
between the three of us we have argued about whether this is done
the right way or not ourselves on a number of occasions—and
I am not sure that my views on it have not shifted as time has
gone by. Because we go out and watch many parades and because
of our involvement with the Parades Commission and our knowledge
of the mediation network—I know all of the Authorised Officers
and I am aware of much of the work that they are doing—I
think it is important to point out that they are not in themselves,
and I think the legislation does not suggest that they should
be, mediators themselves. The argument is whether the relationship
at the moment between the Mediation Network and the Parades Commission
in some sense helps or facilitates mediation. I think there are
a number of areas where the knowledge that the Authorised Officers
have gained—and I am thinking particularly of maybe Ballycastle,
perhaps Newtonbutler, I think some of the work that they have
done within Derry as well, has allowed the Commission to make
relatively informed decisions on the basis of various phases of
mediation that was taking place at the time. I also think there
is an argument around whether the relationship between these Authorised
Officers and the Parades Commission is a healthy one or should
they be totally disconnected from the Parades Commission and maybe
working through the Mediation Network. I have, I must say, mixed
feelings on that. One side of me says that those that might be
involved in mediation should not also be involved with those who
are making decisions, and that is clearly one issue that one likes
to consider. On the other hand, there is a whole range of mediators
out there and sometimes the best way of managing conflict is to
have a whole range of possibilities. Now there are plenty of possible
mediators who are completely independent of the Parades Commission,
therefore one could also argue that there is no harm in having
some mediators more closely connected to the Parades Commission
as that offers another possibility of mediation which is more
closely linked with those who are going to make the decision.
It is a very difficult issue. I would, however, say that those
Authorised Officers have worked in very, very difficult conditions
and have worked very, very hard, and, in my view, working from
no base at all they have put in an awful lot of effort to at least
trying to deal with the situation.
(Dr Jarman) I think as well to mediate in a situation
where one party does not necessarily want to have mediation introduced
or to work with the mediators makes the job obviously much more
difficult. I would also say that where they have been effective
there have certainly been instances where the work that the Authorised
Officers have done prior to a parade—in terms of making
contacts with participants, both paraders and protesters—has
enabled them to help reduce the conflict on the day—in crisis
management rather than full-time mediation—because they
have built up relationships with them. Because they were not the
police they were able to go in and diffuse tensions and reduce
the likelihood of public disorder and smooth over any problems.
I know of examples in Derry and in Armagh where that happened
a couple of years ago. I think they have been a useful tool of
the Commission although I think there is also room for improvement.
Mr Clarke
169. Gentlemen, I detect this area where you
say there may be a bit of dissent between yourselves. I just want
to probe a little bit further. In your memorandum you conclude
that there is indeed tension within the Commission, within the
two roles of mediation and determination, and you started to outline
there that you feel there may be a chance to split the two roles.
Could you go a little bit further, in terms of saying, if you
do believe that, should mediation be given to a separate body
or should it exist alongside what already exists within the Commission?
Could you just go a little bit further to say what you think should
replace the current status quo?
(Dr Bryan) My two friends here can answer for themselves.
I think this is where my view has changed slightly. Originally,
I felt that it may not be a good idea that there was a connection
between the Authorised Officers and the Parades Commission and
I felt that it was a very strange relationship and I perhaps felt
that the Parades Commission needed to be nearer a tribunal. However,
not only do we disagree between each other, but, as you can tell,
it is very difficult and I struggle with myself over this, I do
think that there is an argument for saying that the Parades Commission
should have fieldworkers collecting information, possibly putting
people in touch with each other, letting the Parades Commission
know of ongoing mediation that might mean that they should delay
determination, having fieldworkers who are directly involved,
is useful, and that if you took that away from the Parades Commission
you would be making it a less flexible and knowledgeable organisation.
If you did that, you would probably—and maybe this is a
way of going—have to change totally the evidence gathering
techniques that the Parades Commission use. I think if one takes
that decision, it has a range of ramifications about the processes
that the Parades Commission might take. That might be a good thing.
I have to say I am not clear in my own mind whether it would be
or would not be.
(Dr Jarman) The role of the Commission is supposed
to be to facilitate mediation rather than actually to mediate
itself. In the first Commission, probably in the 1998 season,
there was a concern that members of the Commission were doing
both mediation work and adjudication work. You need to keep those
roles separated to some extent. Whether that is a separation,
in terms of the two roles can be accommodated within the one organisation
as long as the different personnel are involved, my feeling is
that the Commission should take a more decision-making, more distanced,
more adjudicatory role. And, as Dominic is saying, the Authorised
Officers or their fieldworkers in some sense do have a positive
role to play in being out there, building relationships, encouraging
dialogue. They cannot force the dialogue, they cannot force the
communication, but to encourage work on it, and then to bring
in the appropriate people at the appropriate time if the situation
is right for it.
(Mr Hamilton) If I might just add to that as well,
and even rehearse some of the arguments that might be advanced
in supporting the separation of the two roles. There are three
main arguments that I have heard. The first is that tying the
mediation process up with the adjudicatory process actually tarnishes
the whole concept of mediation and therefore prejudices the Loyal
Orders, for example, against using mediation as a technique of
conflict resolution. Secondly, it also means that parties would
only get involved in mediation in order to curry favour with the
Parades Commission, so it becomes a box-ticking exercise and people
are really just going through the motions and that then undermines
what mediation is all about and lends itself to short-term positioning.
Thirdly—which is actually an argument that I know Mr Bingham
advanced when he gave oral evidence to you—Authorised Officers
are blamed for "bad determinations of the Commission"
and this results in undermining the whole process. I have to say
that, having considered those three arguments, I am still persuaded
that the set up that currently exists is the best workable compromise.
The point that Dominic made about the Parades Commission not having
a monopoly over mediation interventions and the point that Neil
made as well that the roles are actually already separated in
essence, because it is not mediation but the facilitation of mediation
that the Commission is statutorily obliged to do, those would
lend to support the current set up.
170. Very quickly, at the risk of upsetting
the Chairman for taking too much time, the educational role that
was seen within the Commission's work that can take part through
mediation, is that an area that you think could be separated out
in terms of the whole area of trying to educate different communities
into the traditions of each other? Is that simply part of mediation
or could that be separated out?
(Dr Bryan) It would be separated out but I would include
it as a long-term process. One of the things that I like to flag
up around this is that some of the solutions, particularly to
the most intractable places like Portadown in my view can only
be very, very long term. I hope that both the Parades Commission
and government are taking a long-term position to this and I think
most of the mediators that have been involved in that dispute
have ended up feeling exactly the same. I do think we need to
grow in understanding of parades and I think there is much work
that can still be done around that issue.
(Dr Jarman) I would agree with Dominic on that but
I also do think you could separate it out from the mediation process.
I think there is an area in which the Parades Commission's remit
has narrowly focused on adjudicating on disputes rather than the
broader sphere of aspects of providing information and supporting
educational work around those parades issues. I think there is
scope for development in that area.
Mr McGrady
171. Thank you gentlemen for sharing with us
your considerable experience and knowledge of the problem we have.
We are coming to the end of this evidence session, so could you
very briefly give us an idea of your overall assessment of the
effectiveness of the Parades Commission, particularly, of course,
how you think it could be made more effective or how it could
go about its operations to make its decisions more acceptable.
So a general sweep-up assessment of where we are at the moment
in terms of the Parades Commission.
(Dr Bryan) I think the Parades Commission has been
a relatively successful intervention in a very difficult situation.
I cannot see whatever was being done after 1996 was going to prove
widely popular with anybody and I certainly do not think that
the Parades Commission has made the situation worse. I think if
you look at the figures of the number of determinations, in trying
to judge the success of this organisation, one in a sense has
to factor out Portadown because I do not think anybody would have
created a better situation in Portadown. It is a very serious
problem, a town with great community relations problems which
needs long term solutions. If one takes Portadown away from the
figures that one looks at, one can see a moderate improvement
in quite a number of areas. Where, if you like, I would say that
it would be interesting to develop and where the Parades Commission
might be looking at is looking at some of the more successful
areas, such as Derry, where relationships have been built by fostering
what there is the Town Centre Management Group and look at the
ways that in particular towns, villages and cities you create
centres of partnership which involve more than simply the two
competing groups. In the long term, I think the Parades Commission
should look at how those operations work—there is one in
Newry and there is one in Derry—but, in the main, my perception
is that it has done a reasonable job in a very, very difficult
situation.
(Mr Hamilton) I would agree with that assessment as
well. I think the Commission can be viewed as really an institutional
stop-gap, in that it has always said that it hopes to forfeit
its raison-d'etre and it has absorbed criticism which would otherwise
have been inevitably directed at the police or the courts or whoever
was charged with making these very difficult decisions I think
one of the areas which was not raised this morning but which has
previously been raised, on which there is a need for perhaps greater
definition is on the concept of engagement. The Commission has
distinguished engagement from the idea of seeking permission for
a parade but it has variously described it as finding mutually
acceptable forms of communication and that it must be substantial,
sustained and genuine. Perhaps the blueprint would be the Apprentice
Boys' decision on the Ormeau Road in 1999, where the Commission
were actually able to read transcripts of talks which took place
between the Apprentice Boys and the residents, and were therefore
able to make a decision based on the detail and the quality of
those discussions. But in other areas engagement has been a shifting
kind of concept. It has been held to be something more than a
unilateral gesture on the part of those organising parades and
it has been held to be something more than mere compliance with
previous Commission determinations, and I think some of the messages
that might go out from some recent decisions is that the goal
posts are being moved. The question of what the threshold is is
a very difficult one and is different in different areas. At heart,
I suppose, it is about showing an awareness that others have different
views and that those views need to be respected, but I would just
end by saying that even those within the Loyal Orders who have
at times advocated, cautiously, dialogue with residents groups
or with the Parades Commission, I would imagine, are extremely
nervous about taking that stance, because, if the concept of what
engagement actually means is not defined more tightly, there is
always the possibility that even if they do engage they will not
get what they think they might and therefore will get egg thrown
in their face.
172. Thank you. Dr Bryan, and, indeed, to an
extent Mr Hamilton, you emphasised the need to interface differing
opinions and you seem to predicate the future resolution of problems
mainly in terms of dialogue which is in fact translated into community
relations. How do you see the community relations aspect, either
the agency or the ad hoc arrangement of community relations, is
it underfunded, is it properly staffed, have we the expertise
actually to go out and engage in establishing community relations
in this context of parades?
(Dr Bryan) I think you are right. I think the answer
to these problems in the end is not to be found in courts and
in human rights legislation. I think these are political or community
problems which we have to try to come to terms with. I think the
crucial thing is that government concentrates long term in dealing
with issues, and, if you like, long term we have less funding
on Land Rovers and more funding on community development. It is
a difficult world and it is very difficult directly to evaluate
how well community relations are being developed in projects.
I have looked at this myself and it is not easy to evaluate. But
long term the situation in Portadown and Lower Ormeau and Derry
cannot be solved until we create a community relations climate
which allows these issues to be more easily dealt with. That,
to my mind needs government policy and intervention, not legal
cases.
(Dr Jarman) May I just add, in terms of the benefits
of the Parades Commission, I think you should not underestimate
the benefit it has been to the RUC over the last four or five
years. Their status after Drumcree 1996 was probably at an all-time
low. They had antagonised both communities within the space of
a few days in terms of making one decision and then reversing
it. I think, subsequently, from conversations with senior police
officers who were initially sceptical of the value of the Parades
Commission, they have felt that it has taken a burden off their
shoulders and allowed them to get on with policing decisions rather
than actually making those decisions. I do not think we should
under-estimate that. In terms of other work that the Parades Commission
does, I think we should just flag up briefly the support it has
given to steward training and encouragement of responsibility
I think it should not be underestimated that some of the positive
examples we have highlighted in relation to the Apprentice Boys,
both in terms of the intensive discussions on the Ormeau Road
and their willingness to take up the issue of responsibility and
engage with that. I think that, while there has been a lot of
talking about people's rights, the counterpoint to rights is in
terms of exercising responsibility and exercising rights within
a socially responsible context and I think the Apprentice Boys
is a very good example in some of the positive steps that have
been taking place and that the Parades Commission has encouraged
and supported.
Chairman: I have a couple of footnotes, one
related to Trafalgar Square and one relating to Mr Clarke's question
about whether a parade is unreasonable if there is no-one there
to witness it—and I am paraphrasing slightly—but those
I will provide in writing hereafter in order that we do not encroach
further on time. The Trafalgar Square one, however, is relevant
in terms of historical background. I wonder if Dr Jarman would
be kind enough to add a short note himself on the historical data
he was giving us about the 19th century because I think that would
be helpful to have and it would incidentally also be helpful if
he felt able to give us a short note on the kind of international
data he was quoting in relation to the United States and Israel
and indeed any other he thought relevant[3].
I hope I speak on behalf of the whole committee when I say I thought
this was evidence outstandingly given and that the occasional
disagreement among you was actively constructive from our point
of view, even the occasions when it seemed to me that Dr Bryan
was disagreeing with himself. There was a memorable Member of
Parliament when I first entered the House for Burnley who would
periodically in speeches surprise the House by saying, "Mr
Speaker, I must intervene on myself". The same spirit was
present in some of Dr Bryan's evidence. If I may say so, the evidence
was the more helpful because it had not been diluted by being
necessary to reach a common view. If we do ask any written supplementary
questions—and we might—please do not hesitate to answer
the questions individually rather than collectively, if you choose
to do so, and finally—and I would have asked this in real
time but for the fact that we really have run out of time—if
there are questions you are surprised we did not ask, do not hesitate
to provide us with answers, the answers you would have given had
we asked the questions. We are extremely grateful to you for the
evidence you have given, which has been profoundly helpful to
us.
3 See list of unprinted papers, p viii. Back
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