LEGAL NOTE ON THE PROCEDURES OF THE PARADES
COMMISSION
INTRODUCTION
Rule 3.3 of the Procedural Rules of the Parades
Commission provides as follows:
"All evidence provided to the Commission,
both oral and written, will be treated as confidential and only
for the use of the Commission, those employed by the Commission
and Authorised Officers. The Commission, however, reserves the
right to express unattributed general views heard in evidence
but only as part of an explanation of its decision".
This rule is applied by the Parades Commission
so as to deny parades' organisers any prospect of a fair hearing.
In particular:
— Details of evidence obtained by the
Parades Commission from other parties not provided to the parades'
organisers.
— This evidence may be inaccurate but
the parades' organisers are denied an opportunity to refute it.
— The parades' organisers are denied
the opportunity to produce contrary or other evidence which would
assist the Parades Commission in coming to a properly balanced
decision.
— There is no procedure to allow the
necessary cross-examination of any witness.
— There is no opportunity to make a
submission as to the particular weight that the parades Commission
should give to any items of evidence.
For instance, in its decision in respect of
the Lurgan parade on Saturday 12 August 2000, the Parades Commission
in its determination dated 7 August 2000 stated that it heard
representations from residents of the Lower William Street area
and from local political representatives from the nationalist
side of the community. However, the parade's organisers were not
given access to this evidence. They did not have any opportunity
to consider and where necessary challenge that evidence.
The point of this submission is that procedures
of the Parades Commission which deny the parades organisers access
to the evidence against them are not only unfair to the parades
organisers but also deny the Parades Commission itself of the
benefits of a proper decision making procedure.
A fair and proper procedure (such as that of
the Planning Appeals Commission in Northern Ireland) would:
— Allow each party an "exchange
of evidence" prior to any hearing by the Parades Commission.
— Each party would then have an opportunity
of introducing material and making submissions on the other party's
evidence.
— Where it was appropriate to hold
a hearing, each party would be able to lead its own evidence and
cross-examine the evidence of the other parties.
— Each party would then have the opportunity
of final submission before the Parades Commission made its decision.
By virtue of such procedures the parties would
at least feel that there had been a "fair hearing"
In addition, the Parades Commission itself would
have the full and proper opportunity it needs for the fullest
testing of all evidence. This is the only way in which it can
properly assess the weight to be given to the evidence.
As it stands from the perspective of the parades
organisers who wish to participate in the decision making process,
the Parades Commission itself denies them that opportunity. The
Parades Commission considers evidence without the possibility
of proper challenge and it takes its decisions in secret. This
means that the Parades Commission may be making its determination
on the basis of inaccurate, misleading or false evidence without
the opportunity of any challenge.
The Parades Commission is thus flouting the
principle of natural justice on which its decision making process
should be based.
THE PRINCIPLE
OF NATURAL
JUSTICE
A classic statement of the principle of natural
justice is as follows:
"The principle of natural justice is that
a man should not be removed from office, or otherwise dealt with
to his material disadvantage, without fair, adequate and sufficient
notice being given of what is alleged to his detriment and having
an opportunity of meeting the accusations which are brought against
him.[7]
The courts are prepared to apply the principles
of natural justice to the proceedings of statutory tribunals:
"Where a statutory tribunal has been set
up to decide final questions affecting parties rights and duties,
if the statute is silent upon the question the courts will imply
into the statutory provision that the principles of natural justice
should apply.[8]
In this case, as might be expected, Parliament
in the Public Processions (Northern Ireland) Act 1998 has not
imposed upon the Parades Commission any restrictions in respect
of the application of the principles of natural justice.
Accordingly, in accordance with the law, the
Commission should be importing the principles of natural justice
into its procedures and applying those rules in its decision making
process.
The Commission is failing to do this.
As indicated above, Rule 3.3 of the Procedural
Rules of the Parades Commission stipulates that all evidence,
both oral and written will be treated as confidential and only
for the use of the Parades Commission and its staff and Authorised
Officers.
Some parades' organisers have in their recent
submissions to the Parades Commission protested that they are
entitled to see the evidence against them and should have the
opportunity to make representations on it before any decisions
are made. Regrettably, the Parades Commission has ignored these
representations.
PROCEDURES TO
BE ADOPTED
The Planning Appeals Commission in Northern
Ireland has a well established set of procedures which have been
in place for many years and provide for the fair resolution of
disputes and for the making of recommendations in regard to major
planning applications.
Planning matters may obviously be matters of
acute controversy within any community. Nevertheless, the Planning
Appeals Commission is able to operate its procedures in a fair
and open manner and the parties are prepared fully and vigorously
to participate.
If there are circumstances of even greater sensitivity
faced by the Parades Commission in particular circumstances, then
those need to be addressed by the Parades Commission in the particular
circumstances as they arise in each case.
This should be done on a case by case basis
according to the particular circumstances of each witness in each
case.
There can be no proper justification for the
blanket ban contained in Procedural Rule 3.3.
Thus the Parades Commission must introduce fair
and proper rules of procedure in accordance with the principles
of natural justice.
If there are to be exceptions (allowing witnesses
for instance to object to the disclosure of their identity) then
the Parades Commission must have procedures to strike the proper
balance.
By way of example, the decision reached in the
"Bloody Sunday" Tribunal in regard to soldiers giving
evidence is instructive. The Court of Appeal has held that the
Tribunal failed to attach sufficient weight to the risk posed
to the safety of former soldiers and their families, which the
Court said was a risk which concerned the most fundamental human
right, namely the right to life. Accordingly, the Court did hold
in that case that the grant of anonymity to the soldiers was the
only possible decision open to the Tribunal. But, the Court clearly
acknowledged that this was a most limited departure from the open
procedures of the Tribunal. They noted that the anonymity would
only have a limited effect on the openness of the inquiry since
the soldiers would still be giving their evidence in public, their
names would be known by the Tribunal, their officers would be
named, a particular soldier could still be named if there was
reason to do so, and the Tribunal's ability to search for the
truth would not be undermined.[9]
This is by way of example only to show how a
particular set of anonymity requests was or should have been dealt
with.
It is the duty of the Parades Commission to
address these issues to meet its circumstances, and it is not
lawful for the Parades Commission to persist with the blanket
ban of Procedural Rule 3.3.
Thus it is incumbent on the Parades Commission
to adopt the necessary Procedural Rules which will meet the circumstances
of any proper legitimate requests for anonymity, but which should
not undermine the Commission's search for truth.
29 September 2000
7 Robson, Justice and Administrative Law Third Edition
1951 p 325. Back
8
Lord Guest in Wiseman-v-Borneman [1971] AC 297. Back
9
R v Lord Saville of Newdigate & Ors ex parte A & Ors [1999]
4 ALL ER 860. Back
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