Examination of Witnesses (Questions 340
- 356)
WEDNESDAY 17 JANUARY 2001
MR DAVID
WATKINS, MRS
MARY MADDEN
AND MR
IAN KERR
340. Would you also perhaps say exactly, what
is the opposing right?
(Mr Watkins) The opposing right, I think, we would
say, is enshrined in Article 8 of the ECHR, to privacy of family
and domestic life. Also an opposing right, that the exercise of
one right should not end in public disorder. Those are the two,
as it were, competing rights.
341. But would you not accept that the right
under Article 8 to privacy is absolutely nothing to do with a
parade going down a road, it is to do with a person's telephone
not being tapped, and various things like that, it never has been
applied in relation to a noise on the road, or a procession going
down the road?
(Mr Watkins) I think, so far it has been construed,
certainly by the Government, although it has not, as I understand
it, so far been tested in court, I grant you, that Article 8 does
extend to the sort of rights that I have described, and that is
the view that Ministers take. But I accept that so far it has
not been tested in law, and, indeed, if I may say so, the Lord
Chief Justice's judgement, as I understand it, as a non-lawyer,
specifically declined to say that the right to freedom of assembly
also entailed with it the right to march.
342. Would you also accept that, whatever rights
they may have, they have no right to sit down in the road and
stop the parade?
(Mr Watkins) The rights to march and the rights to
protest are defined by the determination in an individual case,
laid down under the Act, or reached under the legislation by the
Parades Commission's determination. That is what authorises a
march, lays down conditions on a march, that is what authorises
and lays down conditions and restrictions on a protest. In terms
of the law, as I understand it, it is unlawful to infringe any
of those conditions, whether the conditions are implied on the
march or on the protest.
343. In keeping the law regarding parades under
review, to what extent does the Northern Ireland Office look at
the jurisprudence of the English courts; in particular, what assessment
has been made of Lord Justice Sedley's judgement in the case of
Redmond-Bate, and are they aware of that case?
(Mr Watkins) We are aware of that case. Clearly, when
there are judgements, from time to time, whether in the Northern
Irish jurisdiction or elsewhere, we would seek, and the Parades
Commission, I believe, also would seek, to consider the relevance.
Our own assessment is that, the circumstances where, as I understand
it, in the Redmond-Bate case, it turned on the application and
the interpretation of the common law, whereas in this case Parliament
has established a framework in the Public Processions Act, which
specifies what is lawful and what is unlawful behaviour in relation
to parades, and it is compliance with the Public Procession Act
in Northern Ireland which I think takes primacy. And I am not
sure, therefore, that actually the English case that you referred
to does have any profound implications. Having said that, if a
case were taken against a Parades Commission determination which
relied on the outcome of the Redmond-Bate case, and if a court
upheld that, then, of course, the Parades Commission and the Government
would have to consider the implications of that; but no such case
so far has successfully been taken, to the best of my knowledge.
344. But you would accept that the principles
enunciated by Lord Justice Sedley are extremely important?
(Mr Watkins) They are important, but I do not believe
that the application of the common law would override the application
of statute law, as provided for in the Public Processions Act.
However, let me emphasise again, if I may, if a court found that
to be inaccurate, clearly, we would need to consider the implications
very carefully indeed.
345. Is it a concern to the Northern Ireland
Office that, on a number of occasions, the number of police required
to police a determination rerouting a parade was much more in
excess than if the parade had been allowed to go on, as requested?
And is this not a misuse of public resources?
(Mr Watkins) Of course, it is regrettable, and I mean
that more than in just the formulaic sense, when police, and may
I say Army resources, because at Drumcree the GOC has had to call
in and the Chief Constable has had to call in between three and
four additional battalions, at times, in an Army which is not
replete with battalions, of course it is regrettable that that
is the case. But the law does require that the Parades Commission,
in the failure of mediation, should make a determination, which
is a lawful instrument, and clearly Ministers ideally would wish
to reach a situation where such adjudications were not necessary,
because marches were an accepted part of the tradition of society
in Northern Ireland and were conducted on an agreed basis and
in a more harmonious atmosphere; but, short of that, the law has
to apply, and the RUC are called upon to enforce that law, as
they themselves have said.
346. Finally then, I am interested in the selection
process for both the members and the Chairman of the Commission.
You tell us that the posts were advertised on 5 November 1999,
and then you tell us that on the closing date you seemed to realise
that there were three applications that were received after the
closing date; two which you knew were coming, and one, in fact,
which came surprisingly. Two of them coming as a result of the
intervention of a political party; which political party was that?
(Mr Watkins) The Ulster Unionist Party. If I recall
correctly, the Minister of State had written to the leaders of
all the political parties in Northern Ireland, asking them to
encourage those in whom they would have confidence to nominate
themselves for the position. We had reason to believe that two
who would have the confidence of the Ulster Unionist Party were
planning to apply, but at 5 November, which I think was the determined
date, had not done so. We checked that they were still expected
to, and therefore, as it were, held the gate open, as we would
have done for other parties, and as we did for another person
whose application arrived—
347. Is it not completely irregular to be accepting
applications after the closing date?
(Mr Watkins) This was a subject of the judicial review
which was taken, and, again, in the judgement of the court, it
was not found to be unacceptable, because, and we were scrupulous
in this, we had not started the assessment process of any of the
applications received prior to 5 November. And therefore our judgement
on this was upheld by the court, well, so long as no element of
the assessment or evaluative process had started then no detriment
was suffered by anybody on account of the fact that three candidates
were allowed in late, precisely, and again the court recognised
this, in order to extend the field of application, which would
in turn help the Secretary of State improve the representativeness
of the Commission.
348. Coming to the Chairman, it appears that
you became aware that applications for the chairmanship were not
going to be too high, and therefore you increased the salary,
it would appear?
(Mr Watkins) We did.
349. But we are told that, in fact, 45 people
applied for the Chair; does not that negate that argument?
(Mr Watkins) My recollection is that actually none
had replied, or a very, very small field had replied, to the first
advertisement, and we assessed that it did not give Ministers
a wide choice, and therefore Ministers decided that we should
re-advertise offering a higher salary. I can get the figures for
you, if I may, as to how many applied on the first shot, if you
wish, as against how many applied in the second[9].
But the purpose was to extend the field a good deal more widely,
and indeed it had that outcome, I would suggest.
350. By how much did you increase the salary?
(Mr Watkins) If I may, I will write. I do not recall[10].
351. Then finally, what input did the Irish
Government have in the selection process, were they sent the names
of the applicants, and did they suggest certain applicants?
(Mr Watkins) As I think the memorandum from the Northern
Ireland Office says, we consulted the Irish Government, at the
same time as the Minister of State wrote to the leaders of all
the local parties and the churches; we consulted them, asking
them to encourage anyone they considered appropriate to apply.
That was, to the best of my knowledge, the only consultation there
was with the Irish Government; we did not, in other words, nor
would we generally, then communicate to them the list of applicants,
no.
352. So they had no input on that?
(Mr Watkins) No.
Mr Thompson: Thank you very much.
Chairman: Let me verify, before we close the
session, whether there are any other supplementary questions any
of my colleagues want to ask.
Mr Robinson
353. Can I just get clarification on a point
arising from Mr Thompson's last series of questions. Am I to understand
that the Leader of the Ulster Unionist Party submitted two names,
or asked for it to be held over so that two people could put their
names forward?
(Mr Watkins) Neither. We understood that he had suggested
that a couple of people should, he had told us that he had encouraged
a number of people to apply. When on the final day those people
had not applied we asked—
354. It was a David McNarry suggestion, was
it?
(Mr Watkins) No, no. We asked them whether, in fact,
those people were going to apply, we were told they were, we said
well they would have to apply extremely quickly, we could not
hold the door open for more than a very short period, two days,
and in that period they applied directly themselves2. It was not
Mr Trimble or anybody else applying on their behalf.
355. So the two people that he said he had encouraged
to apply did apply?
(Mr Watkins) Yes; there may have been others, but
those are the two in question. I do not know, they do not say,
whenever they apply, "I am doing so at the behest of X."
356. Were either of the two, that you suspect
came from that direction, appointed?
(Mr Watkins) One was.
Chairman: The questions have come from all corners
of the horseshoe, in that somewhat non-geographical phrase, and
you have been extremely patient in dealing with them and dealing
with them as expeditiously as you have. We are very grateful to
you for your evidence, and thank you very much indeed.
9 See also Ev p 99. Back
10
See also Ev p 100. Back
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