Examination of Witnesses (Questions 320
- 339)
WEDNESDAY 17 JANUARY 2001
MR DAVID
WATKINS, MRS
MARY MADDEN
AND MR
IAN KERR
320. No, it is instructive, because, in the
reading I have done on this, there is a place called Queen's Island,
in Belfast, where for most of the 19th century hardly a day went
by without them having some sort of a parade, march, counter-demonstration,
or whatever; they were clearly slightly underoccupied in the area.
(Mr Watkins) They were supposed to be making ships.
I am rather alarmed at that.
321. They were clearly very capable shipwrights,
in that they could parade and counter-parade and build ships.
I am not sure if they were the ones who built the Titanic, but
I was just wondering how much of that was local and was generic,
and I am very grateful for the extent of your answer. Can I just
ask you a question which I fear prompts a three-volume response,
so you may wish to say if it is rather too wide off your remit.
Several of the witnesses we have heard have emphasised that the
Parades Commission alone simply cannot solve all the problems
over parading. I am just interested in what initiatives the Government
plans in the broader context to help resolve the underlying problems?
I appreciate the vastness of that question.
(Mr Watkins) I think the Government would share that
analysis; and indeed I have already referred to remarks frequently
made by Sir Alistair Graham, the former Chairman, that when the
Commission has to make determinations that is a reflection of
failure. I do not think that something that reflects failure can
ever be turned into a panacea. I think the Government would share
that analysis. The Government's wish is that parades should be
resolved amicably, to the mutual satisfaction of the various parties
to the issue, at local level. The way in which I think the Government
can make the biggest contribution is by promoting a more harmonious
society in Northern Ireland at large, and the Government's policy
to that objective is clearly enshrined in the Good Friday Agreement.
I do not think I want to say a great deal more than that, other
than to say that a more harmonious, a more tranquil, a more functional,
in a political sense, society, I think, in the Government's view,
might make a contribution to the resolution of these rather sharp
issues of parading. When Direct Rule applied, the Government certainly
had a programme for the promotion of community relations, Community
Relations Councils and a number of various other initiatives,
and my understanding is that the Executive Committee continues
those. But I think it is along that sort of broader canvas that
a broader solution might be found.
Mr Pound: I will relish your response that the
answer to these problems is tranquillity. It is the achievement
of tranquillity I was interested by. I am grateful for you underlining
the centrality of the Good Friday Agreement. Thank you.
Mr Hunter
322. One criticism levelled at the Parades Commission
is that it has both a mediation and a decision-making role. It
has been suggested to us that, in some circumstances, these roles
can be incompatible. Do you have a view on that?
(Mr Watkins) The Government would share the view of
the Commission itself, and indeed of the RUC, in its evidence,
that clearly there is a tension. It is by no means an accident
that the Act enables the Commission to facilitate and promote
mediation, it does not say it should mediate, because there would
clearly be an outright contradiction between the same people mediating
and then sitting in judgement on those parties between whom they
have failed to promote a mediated settlement. That would clearly
be, I think, an irresoluble conflict of interests. Hence the Act
making this, as it were, an arm's length activity on the part
of the Parades Commission, that it promotes, prompts, facilitates,
nurtures mediation by others, but it does not become directly
involved as a Commission in those attempts. I think the emphasis,
the Government thinks the emphasis, is right in that. What it
enables the Commission to do is to find a variety of ways of promoting
mediation, whether through the Authorised Officers, whether through
the RUC, as Alan McQuillan I think explained last week, whether
through community leaders, or, I think it was, in a case in Derry,
business leaders. So our view is that as long as the Parades Commission
promotes mediation but that mediation is conducted at arm's length
from the Commission, then that inherent tension does not become
insoluble.
323. Moving on then. Now we have responsibility
for decisions on parades transferred from the RUC to the Commission,
has this led to a greater acceptance of the RUC in policing parades
than hitherto?
(Mr Watkins) That is an extremely difficult proposition
to test. The easier answer, which I know you will not allow me
to get away with, is that it should, in that the police themselves
believe that they were often put in an impossible position, where
they had to mediate, make a determination and then police their
own determination. The police themselves are much more comfortable
with being relieved from that double burden, as it were. And the
only answer I am capable of giving you, Mr Hunter, at the minute,
is that it would be very difficult to disentangle confidence in
the police on this issue from confidence in the police at large,
which, as this Committee will be very well aware, has been a subject
debated in these buildings for some time, in relation to the Police
Act. It would be very difficult, I would submit to you, to disentangle
those factors.
324. The Commission looks on each parade as
a separate entity. Is there an argument, or not, for linkage,
either linkage over a period of time or on a given day geographically
across the Province?
(Mr Watkins) This was a proposition which actually
was put forward in the North Report itself; in fact, if I understand
it correctly, it was the only major recommendation of the North
Report that the Government decided not to proceed with. North
recommended what I think was, rather pejoratively, though not
intended to be so-called, package deals, where there would be
a package of the sort that you describe. The difficulty has been
that, in law, the Parades Commission needs to be careful not to
fetter its discretion in relation to any individual march. And
the problem with a package deal is that, if it were to forecast
the way it might respond to a parade in three months' time, when
in fact it did not know what were the conditions on the ground,
what problems might have arisen on the ground, in that immediate
vicinity, or at large, in the intervening period, it could be
fettering its discretion in law, and maybe making its own decisions
much more contentious, in the event. I would also offer the view,
if I may, that I am not sure that that sort of broad consensus,
or compromise, will actually work. I am not sure that a marching
Order in one location will say, "Well, we don't mind not
having our march, because we know our brethren, 25 miles away,
are having their march;" or "We don't mind, as residents,
not objecting to this parade, because we know that the residents
75 miles away are not having a parade imposed upon them."
In a sense, that would be an ideal sense of give and take, but
my own view is that I do not think that either the Marching Orders
or the residents would be ready, even if there were not the problem
of fettering the Commission's discretion, for that sort of broadly
balanced outcome.
325. Would linkage require legislation, or could
it be enforced under existing legislation?
(Mr Watkins) I would need to take advice on the matter,
if I may[6].
I think it would be difficult to provide for linkage in a system
which provides that a parade is notified as and, as it were, becomes
a legal personality on the date that it is notified. I think it
is quite difficult to run that system, on the one hand, against
a system where the Commission is dealing with marches which have
not yet been legally notified to them. It would require quite
a lot of adjustment to the structures envisaged by the Act.
326. One last question, Chairman, at a slight
tangent. Mr Watkins, you will be familiar with the form 11/1,
and its various sections.
(Mr Watkins) Yes.
327. Can you explain, either now or perhaps
later by correspondence, that section which requires the names
and addresses of representatives of bands? I ask this question
because the Ulster Bands Association were told by the Parades
Commission that the Parades Commission did not require that information,
that it was a police section; on the other hand, the police have
told the Ulster Bands Association that they do not require the
information because they have it already. And I ask that question
with the trouble that arose at Maghera last summer in mind.
(Mr Watkins) With your agreement, could I possibly
agree to write[7]?
I could not give you an answer that could be relied upon today,
but might I write?
Mr Hunter: Yes. Thank you.
Mr Beggs
328. Perhaps I should start, as did my colleague
previously, by registering my interest in the parading organisations,
Orange, Black and Apprentice Boys; but for the purpose of this
afternoon can I welcome the panel who are giving evidence. It
has been suggested to us that the determination process might
become more acceptable to some if there was greater disclosure
to all parties of the evidence or advice on which the Commission
was relying, and an opportunity provided to challenge it. In a
sense, this would build on the conclusion of the review that the
reasoning behind Commission determinations might be set out in
more detail in determinations. Would the Government support a
more quasi-legal basis for Parades Commission proceedings and
could a change of this nature be achieved without legislation?
(Mr Watkins) The Government's view is that the current
process is the most effective that can be devised. Given the large
number of parades in the early to middle summer months, I think
it could be extraordinarily difficult for a single Commission
of seven people to cope with hearings of a quasi-judicial nature,
such as of the character that you have described, and still hope
to give five days' notice of their decisions. And that five days'
notice of decisions is an essential part of the structure, because
it is in that period that an aggrieved party can test the adjudication
in court, and such parties have regularly done so. The Government,
I think, would be concerned that that could be put in jeopardy.
If it were to be required, I think legislation would be required,
there would certainly need to be a change in the guidelines which
come before the House, but, also, I am pretty sure we would need
to have a much larger Commission. If I may presume to expand a
little bit, the question has arisen, and I think, indeed, you
may have questioned the Chairman of the Commission last summer,
about whether the process of adjudication will stand scrutiny
under the Human Rights Act, and whether, in particular, the process
should attract Article 6 of the European Convention, which allows,
and I acknowledge I put this very crudely, in an amateurish way,
for the sort of quasi-judicial hearing and testing that you describe.
Our legal advice is quite clear on the point, that the rights
at issue here are not such as to attract Article 6, for various
technical reasons, which I will, as a non-lawyer, if you wish,
try to describe, but our legal advice is quite categorical, that
the rights at issue do not require the attraction of Article 6
of the ECHR, and that the Human Rights Act therefore will not
require the sort of adversarial testing and quasi-judicial hearings
of the sort you describe. But it is, in the first instance, for
the Parades Commission to satisfy itself that it is proof against
any action taken under the Human Rights Act; but, as I say, our
legal advice is quite clear on the point. So, to try to summarise,
if I may, the Government is satisfied with the current arrangement
and would wish it to remain in place; but if a court were to find
differently then, of course, we will have to consider the implications
very carefully.
329. Thank you. Are any further initiatives
planned by the Government either in relation to the Parades Commission
itself or to the parading question more generally?
(Mr Watkins) The short answer, I think, is no, I do
not think Ministers have in mind any new review, for example,
of the Commission, nor, I think, is it the case that it has been
borne in upon Ministers that there ought to be such a review,
nor do Ministers believe that there need be any further debate,
review, instigated by them of the issue at large. So I think the
short answer to both points of your question is no.
330. Has any consideration been given to providing
funding for the training and developing of stewarding skills and
providing of better stewarding communications equipment to the
Loyal Orders and other organisations with parading interests?
(Mr Watkins) I am conscious, Mr Beggs, that the Parades
Commission is promoting ways in which the training of stewards
might be enhanced by encouraging Marching Orders to have stewards
trained at further education colleges, where I understand that
there are courses in that sort of skill for other purposes, I
imagine mostly football. But, whether there is actually funding
available for that, I would need to write to the Committee, if
I may[8].
331. Thank you. What do you believe to be the
main obstacle in Loyalist participation with the Parades Commission?
(Mr Watkins) I think the Government's
assessment of that is that the Loyal Orders believe that they
have an unqualified right, an absolute right, to march on the
Queen's highway, as they say, and that that right should not be
in any way interfered with and it is indeed those who interfere
on whom the law enforcement, as it were, ought to fall. I think
the Government's interpretation of their position is that it is
the restriction of that right, which North argued for, and argued
was already the case, that they take exception to, I think that
is the fundamental objection to it; though, if I may say so, others,
I am sure, are in a better position to make that assessment than
I am.
332. Both Loyalists and Nationalists, for example,
the Loyal Black Institution and the Lower Ormeau Concerned Communities,
believe that each is being victimised in order to appease the
other; this would lead us to believe that the communication of
the decisions taken by the Parades Commission are not fully explained
or understood. Could you outline to this Committee the budget
for the Parades Commission and how much is set aside for promoting
understanding of its function on decisions?
(Mr Watkins) We rather shared the view, Chairman,
in the review that we undertook, that there needed to be more
detail put into determinations, and that was, indeed, one of the
recommendations, and, indeed, when I referred to the fact that
I believed that more detail was now being provided in determinations,
I had actually in mind determinations made between the summer
and the autumn in relation to the Lower Ormeau Road, as it happened;
the one, for example, if I recall correctly, for August 2000 was
actually very detailed indeed. I know that the budget for the
Commission as a whole is just over £1 million; again, I apologise,
but I would need to write to the Committee to say how much of
that is devoted to the purpose you describe, if I may*.
333. Thank you. Would you like to explain to
this Committee the reasoning behind the abolition of preliminary
findings by the Parades Commission following the NIO review? And
could you comment on the introduction of what is felt to be subjective
criteria following the same review; for example, the replacement
of the criteria on parade organisers to reach agreement with,
to be seen to take whatever steps are reasonable to meet residents'
concerns?
(Mr Watkins) I think I might ask you to repeat the
second part of the question. On the first part of the question,
the preliminary view was a proposal that the previous Parades
Commission had suggested, whenever, in February 1998, they were
first established and empowered, as it were. At that time, the
Government's view was that for the Parades Commission to publish
such a preliminary view, and we are talking about April 1998,
was perhaps not going to play very well, in the public interest,
in society at large, given that, at that time, the Government
knew that there were very delicate, political negotiations under
way. Ministers' assessment was that anything could have destabilised
those negotiations, I do not think I need, Chairman, to expand
on that very much, and their judgement was that a preliminary
view was bound to be a source of disappointment to some, if not
all, and therefore could have such a destabilising effect on the
wider picture that it was not in the public interest. Since then,
I am not aware that the Parades Commission, whether the current
composition, or the previous, have returned to the idea. I am
afraid I failed to follow your second question. Maybe you would
prefer me to write, in reply.
334. The second part of the question was the
invitation to comment on the introduction of what is felt to be
subjective criteria following that review; in other words, the
replacement of criteria on parade organisers to reach agreement
with, to be seen to take whatever steps are reasonable to meet
residents' concerns?
(Mr Watkins) I think that flows from the suggestion
that we made in the review, that the Commission might want to
try to articulate, perhaps in a rather more detailed way, what
it meant by engagement. One of the underlying problems, in particular
for the Portadown District, for example, though for Marching Orders
at large, was that it felt that it had at times engaged to the
maximum that it was authorised to do, and yet this did not seem
to be enough, in their view, to achieve the desired outcome, namely,
a march. And one of the complaints they made, including to Ministers,
was that there needed to be greater clarity as to what was meant
by engagement. The Commission did, indeed, on pages 15 and 16
of their last year's Annual Report, set out in more detail what
it meant. I do not think there was a deliberate attempt, and certainly
it was not in our mind, in making a recommendation, that there
should be a switch from an objective set of tests to a subjective
set of tests; but I think the Commission's suggestion is inherently,
as indeed it says, at least in part, subjective, because they
want, for example, to test whether the engagement is genuine,
is a genuine attempt to understand and accommodate the concerns
of the other sides. Now I do not think there is an objective test
for that. But it was not an attempt, on our part, to switch any
test from the objective to the subjective, I think there is an
inherent subjectivity, which the Commission, maybe for the first
time, articulated more clearly than previously.
Mr McCabe
335. Good afternoon, Mr Watkins. Mr Watkins,
one of the common criticisms of the Commission, I guess, by both
sides, is the lack of transparency in decision-making. Can I ask
you, first of all, would you accept that criticism; and, if so,
what would you do about it?
(Mr Watkins) I think, by implication, we did accept
that criticism, because, to come back to the review again, one
of the more important recommendations in the review was indeed
that the Commission ought to import more detail of the reasoning
behind its determinations, and the implication of that must be
that it had been borne in upon a number of those whom we had consulted
that indeed there needed to be greater transparency and greater
clarity. As I said, in answer to earlier questions, that is a
recommendation of the view that we think has been fulfilled. I
am not conscious of views being regularly expressed, in response
to determinations, that they are not sufficiently detailed or
clear. I am also pretty confident that if there were such criticisms
the Commission would be happy to respond to those, insofar as
lies in their power, and indeed the implementation of the Human
Rights legislation I think will probably push them further in
the direction of articulating why they strike the balance in judging
between rights that they do. So I think there may be a development
naturally, as it were, flowing from the Human Rights Act, in that
direction.
336. Thank you. I am told that one of the factors
that weighs quite heavily on the minds of the Commission when
determining these things is this concept of the traditional route.
Could you define for me what you understand by traditional route?
(Mr Watkins) Can I say first that, under Section 8(6)
of the Act, if my recollection serves me properly, which remarkably
it does, it is actually a statutory factor, "The guidelines
shall in particular (but without prejudice to the generality of
(Section 5(1)) provide for the Commission to have regard to (a),
(b), (c), (d) and (e), the desirability of allowing a procession
customarily held along a particular route to be held along that
route." So it is not, I think, just something which, as it
were, subjectively, the Commission bear in mind, they are statutorily
under an obligation to weigh that factor. The definition of a
customary route, I think, is a matter for the Commission, but
I think myself it would be one where, for a number of years, and
certainly more than one, I would have thought, it had indeed been
traditional to march along the route in question. Some of the
routes, of course, and indeed in Drumcree, I think, go back to
1804, if I remember correctly, certainly a very long time. But
it is a statutory factor.
337. I am grateful for that. Can I just clarify,
and I accept the point you make about that and the fact that it
is an obligation, when the Commission are trying to weigh this
up, do they seek any clarification about a traditional route?
Because it does occur to me there are different ways you could
approach this, some people could define it in the historical sense,
that you have just done; equally, if something is custom and practice
and has political support over a much shorter period it could
also be described then as traditional. And I am simply wondering
how people assure themselves that it is genuinely a traditional
route?
(Mr Watkins) I think the proper answer to that is
that I do not know, because it is for the Commission itself to
define its definition of a traditional route. I have never been
at a Commission meeting when they have made a determination. I
was with Jonathan Powell when we gave evidence, as I described
a few minutes ago. I have never been at a Commission meeting,
nor should I ever have been at a Commission meeting, whenever
they reached an adjudication. So I do not know actually how they
define it, or what weight they would put upon it. And, I think
I would rather deflect your question to the Commission, if I may.
338. Do you think that is the sort of thing
the Commission might be likely to give greater information on
in the future, so, if they do make a decision where the concept
of traditional route weighs quite heavily, is that the sort of
thing, in terms of transparency, we could expect to see, in their
determination?
(Mr Watkins) I think it might well be. It is a statutory
factor. They may be called upon, in court, to justify why they
(a) define march X as traditional, and (b) why they attach a certain
weight to that. And, to come back to the advent of the Human Rights
Act, the Human Rights Act, as I said in reply to an earlier question,
will put greater pressure on the Commission to explain how it
struck the balance in assessing competing rights, how it struck
the balance it struck; and it might be that, as part of that,
it will have to articulate more clearly the weight it gave to
relevant factors and how it defines relevant factors. In a sense,
like much else, if I may say so, the Human Rights Act puts us
all on a voyage of discovery, and that may be an element of it.
Mr McCabe: Thank you very much.
Chairman: I grew up in Hampstead, in north London,
which had been settled, I think, in the 17th century, and there
were gardens where there was a right of way, across gardens of
houses which had been built some time ago, where there was a right
of way across them. And there was an old man who, because the
law required a right of way to be maintained once every 21 years,
made it his business so to maintain them. But I do remember, as
a small boy, wondering what was going to happen when he became
physically unable to discharge this function.
Mr Thompson
339. Good afternoon. You have used terms, and
again I want to declare an interest as a member of the Orange
Institution, what you have said this evening, you have talked
about balancing of competing rights, competing and qualified rights.
Certainly, as a member of the Orange Institution, I know, and
I think you have indicated, what we would consider to be our fundamental
rights, the right to peaceably protest, process the public highway
unmolested, the right of freedom to expression, the right of free
assembly. What is the Northern Ireland Office view of the competing
rights, what is the competing rights?
(Mr Watkins) I would, I think, refer back to the North
Report itself, whose fundamental analysis, as I understand it,
was that the parades issue often invoked competing rights which
were qualified. As I recall the North Report, it said there was
not an absolute right either to march or to veto a march or protest
against a march. It also argued very strongly that with rights
went responsibilities to recognise the concerns of people who
felt that their own counter-rights, as it were, were being infringed.
And the Government, as I said in my opening statement, continues
to think that that analysis holds. And, indeed, in the application
for judicial review of the Parades Commission's determination
in relation to Dunloy, in September, October, the Court of Appeal,
in dismissing the application, did actually acknowledge that there
was a balance of rights to be struck, and that though there may
well be a right to march which can be inferred from the right
of assembly, although the Lord Chief Justice specifically said
he accepted, but they would not decide, that the freedom to march
flowed from the freedom of assembly. But he did go on to say,
as I understand the ruling, that that right had to be balanced,
and indeed in Article 11, I think it is, of the ECHR, was balanced,
by other factors, for example, the risk that the exercise of that
right might end up in public disorder, and that therefore the
right to march, in Article 11, was counterbalanced even within
Article 11 by the right of a public body, such as the Parades
Commission, to restrict that right. I hope I have given you a
sense of the sense which we—
6 See also Ev p 99. Back
7
See also Ev p 99. Back
8
See also Ev p 99. Back
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