Examination of Witnesses (Questions 420
- 439)
TUESDAY 6 FEBRUARY 2001
THE RT
HON DAVID
TRIMBLE, MLA, MP, AND
MR DAVID
CAMPBELL
420. Thank you very much, indeed, for those
introductory remarks. I think we all appreciated that your particular
interest lay in the Drumcree matter. The transcript will be extremely
valuable to us in terms of subsequently taking stock. I should
have welcomed Mr Campbell; it is good to see Mr Campbell here.
Let me go back to one of the things you said in the memorandum,
which you sent us in advance. My initial remarks are introductory.
The Parades Commission was set up with four specific duties, set
out in section 2(1) of the Public Processions (Northern Ireland)
Act 1998, and was given (in section 2(2)) two permissive powers,
to facilitate mediation and to issue determinations. You said
to us in your memorandum, "The establishment of the Commission
was an exercise in government abandoning its responsibility for
maintaining law and order". Could you say a bit more, in
what ways the powers I described as quite salient in the Act,
the powers and duties, are lacking in terms of the objectives
that the Act presupposes and that the government is delegating?
(Mr Trimble) You are quite correct to say that the
functions of the Commission are set out in section 2 as the duty
to the public understanding, mediation and to keep itself informed
and to keep under review the operation of the Act. Then the Act
goes on to, as it were, transfer to the Commission all of the
public order provisions with regard to processions. Notices are
given to the Commission, the power to make determinations on processions
is given to the Commission. The power of the Chief Constable is
defined and, indeed, the power of the Secretary of State is quite
limited. All of the powers that now rest with the Commission with
regard to the regulation of parades, hitherto vested in the Secretary
of State and Chief Constable in terms of the operation; those
powers have now been effectively transferred. The Secretary of
State's role is now limited to the provisions in Section 9, where
he can come in if the Chief Constable asks him to review a determination.
Then there is a power in section 11 to make bans on top of what
the Commission does. The powers of the Secretary of State are
limited. While the Acts sets out these duties with regard to facilitating
mediation and understanding there is not very much that the Commission
has done on these matters. As one expected, the powers with regard
to issuing determinations has overridden the power to mediate.
I think you have a problem in terms of promoting mediation and
at the same time being the judge. The roles are different. To
try and provide the role of mediator and judge to the same body
does not work. The Commission will say on that, that the duty
is to promote and facilitate mediation rather than be a mediator.
Again, in terms of facilitating and promoting mediation there
is not much they can point to in terms of the efforts that have
been made on the Drumcree issue to mediate. The Commission have
not facilitated them in any way. Specifically in our experience
the Commission very much gave us the impression they would rather
that we were not there and were not doing things. They certainly
did nothing to reward those who maintained a constructive attitude
to efforts to mediate. In that sense I would be critical of the
Commission.
421. You were anticipating me in coming on to
Section 9, and the provision that the Chief Constable seeks a
review by the Secretary of State of the decision of the Commission.
Given that is how the laws stands, do you regard that as an adequate
safeguard against poor decision making by the Commission?
(Mr Trimble) It is not in any way or any respect adequate.
The Chief Constable is the doorkeeper; unless the Chief Constable
brings an issue to the Secretary of State he is utterly powerless.
The whole structure, the tenor of the Act is one which implies
that the Chief Constable only brings a decision where the Commission
have failed to do that. There is no likelihood of the Chief Constable
bringing a decision where a ban has been made where the Chief
Constable thinks the ban is undesirable. When I did see the Chief
Constable I asked him whether he would be prepared to take these
matters to the Secretary of State and he made it very clear that
he had no intention whatsoever of doing that. Particularly when
an issue like that becomes highly charged politically, I can quite
understand his position, because the Chief Constable would not
want, in such a political issue, to appear to adopt an approach,
whatever approach he be in favour of, on one side or the other.
I can quite understand the Chief Constable not wishing to appear
to take sides in such a charged issue. Putting the Chief Constable
as the doorkeeper is not very sensible. We took the view when
we made representations to the Government at the time of its review
that there should be a simple power for the Secretary of State
to review and to alter determinations. When you consider the impact
that some of these issues can have on social life, economic life
and public order generally, for the Secretary of State to find
himself helpless—and if the Chief Constable does not move
he is helpless, he can do nothing—these decisions can have
massive impact in terms of the stability of society. The Secretary
of State is in the hands of the Commission. Some of them might
have some knowledge but, generally speaking, they are amateurs
in terms of dealing with the issues that are important. That is
a very serious, fundamental flaw in the whole scheme of things.
These issues are too important to leave to any quango.
422. To go back, again, to the words you used
in your original memorandum, you said, "Present arrangements
prevented Government taking action itself in the event of things
going wrong". You have given us some idea of what your answer
may be to the question, what additional powers would you like
Ministers to have to vary or set aside determinations by the Commission?
(Mr Trimble) At a very fundamental level I am not
sure we want to have these powers with the Commission at all.
These issues are so important I think they should be with the
Chief Constable, the Secretary of State or the court, rather than
with a Commission which is operating in an executive role or a
judicial role. I think that is a mistake. If, however, it is considered
there has to be a Commission, for whatever reason, then at the
very least there should be power in the Secretary of State to
review either on his own motion or other people bringing the case
to him. That should be there, I think. However, if there is a
Commission we need to go right back to the basic terms of the
legislation. This legislation is drafted as public order legislation.
The whole tenor of it, the specific provisions of it, are all
public order related. It is as if the primary objective is to
maintain public order whatever the situations are. If the goal
is purely public order related then you create a situation where
the person who creates the most trouble wins, the person who brings
the greatest number to bear, creates the most difficult situation
for the security forces, wins. That is exactly what has happened
with regard to the Drumcree issue, because the Drumcree residents
said they will use force, and bring hundreds, if not more, people
on to the road, sitting down on the road, creating a situation
whereby they have to be forcibly removed and deploying the threat
of violence, and that is in the form of lethal violence. At the
time of one of the first Drumcree incidents, I was saying to a
very senior RUC officer, "Look, our objective is to move
people off the road". We are saying, "There is no reason
why the parade should not go through". He hinted that there
was a much more serious threat that could be deployed, people
throwing stones or even petrol bombs, or even the threat might
be more serious. I remember during one of the road situations
the newspapers reporting that people armed with sub-machine guns
were there. The mind recoils at the thought of anybody using firearms
to fire on people who are simply walking past on the road. That
threat was there. If the legislation was purely public order related,
then the person with the biggest threat wins. That is the situation
that has existed. We do not have a legal regime that is right
and takes regards of people's rights. It is simply that we have
a legislative structure that regards might and the exercise of
might: that is one of the serious problems.
Mr Barnes
423. Good afternoon, First Minister and Mr Campbell.
In your written statement to the Committee in referring to the
Parades Commission you state, "It created a grievance factory
for politically motivated residents' groups and has led, in areas
where such groups have been targeted, to an atmosphere of intolerance
and appeasement of a greater threat." What evidence do you
have that residents' groups have been targeted to induce them
to oppose marches by the Loyal Order?
(Mr Trimble) It is difficult to produce evidence on
this that would be admissible in a court of law, I have to say
that. One will get different views from observers as to whether
the entire operation has been manufactured or the extent to which
it has been spontaneous. Different views will exist. There is,
however, no doubt that we have a rash of residents' groups which
came into existence around the same time. The leading spokesperson
of these residents' groups were persons who had a Republican background—the
choice of spokesman or spokesperson who had records of being actively
involved in the IRA—Mr McKenna in the Drumcree area, his
involvement was part of the operation which resulted in the destruction
of the Royal British Legion hall in Portadown. As Portadown District
is led by an ex Servicemen's Lodge, one can see that it is not
unreasonable to say it looks as though his emergence as a spokesman
was designed to cause the greatest possible obstacle to a peaceful
resolution. It may be coincidence, it may not be coincidence.
It may be coincidence that the spokesperson for the three most
prominent residents' groups are all people with an IRA background.
There is the famous occasion which Mr Adam's observed, the leader
of Sinn Féin, that it was no accident that these groups
came into existence. That is not to say that the issue is entirely
artificial, it would be wrong to say that. There is no doubt that
this is an area which can generate tension within the community.
The tension has flared up from time to time. When you consider
that we have been through 30 years of terrorist violence, it is
a bit strange looking back to 1972, when 480 people were killed
as a result of civil disorder and terrorist violence, that the
Orange parades were going all along all these disputed routes
without any problems. It is only latterly when the focus has moved
from outright terrorism to the tactical use of arms struggle that
we see this issue coming to the fore. These may be coincidence,
but most people on the ground looking at the persons involved
have a fairly clear view as to what is going on.
424. You referred to the distinction between
organised activities and spontaneity. There is a whole theoretical
argument that goes back about the distinction between these two
positions. Obviously people involved with organised activity,
you do not get it unless you have some issues to play upon in
order to seek to develop that. Do you believe that the residents
have ever got serious grounds for complaint, which themselves
rather arise spontaneously, which, then, those who are trying
to organise the type of protests that you have in mind are able
to play upon in order to develop it?
(Mr Trimble) We are obviously moving in to quite a
complex area on this. One has to say that there are different
perceptions. There is the perception of the average Orangeman
in my experience, who is there simply to have a good day out and
is there to enjoy an expression of his identity and culture in
a way that his mind is focused on that issue. Yet there are other
people who have the perception of it creating a threatening triumphantness.
This is largely a problem of perception, what some people see
as being a pleasant day out and an enjoyment of their own identity
is seen by others in a different manner. There would be differences
between urban and rural areas. Rural areas are very rarely homogeneous
in terms of community links, whereas towns tend to segregate.
In a number of towns, particularly in Belfast, and some other
towns too, there would be a high degree of residential segregation.
Where that exists, you will find that then Orangemen do not organise
parades in purely residential areas where people are of a different
belief. It is a long, long time now since the Orange Order set
foot in the Falls Road. There were once some parades there because
there were people who subscribed to the Orange identity who lived
there. That ceased to be the case a long time ago. In the country
it is a different matter. Where you are dealing with main arterial
routes it is a different matter; it is a complex issue and too
big an issue to explore this afternoon.
425. Even if residents and residents' organisations
may often have misperceptions, are those misperceptions themselves
quite important to take into account in terms of whether a parade
should continue or the roads that a parade should pursue?
(Mr Trimble) This is the point in which the provisions
in Section 2, which the Chairman referred to, could actually be
quite important, the business of promoting greater understanding
concerning the issues, and promoting mediation. Here I want to
speak with approval about work done by the Apprentice Boys of
Derry with regard to their parades in the city of Londonderry,
the initiatives they have taken and the positive things they have
done, like the initiative that Portadown District undertook in
1997, at our suggestion, of actually sending a personal letter
from the District to every resident in the housing estates adjacent
to the Garvaghy Road, which was done deliberately in order to
try to explain what their position was and to try and encourage
greater understanding. I made the point earlier, there are different
levels and classifications of parades. There is quite a difference
between a 12th July parade and a church parade. Church parades
are very, very low key parades. There are circumstances where
Orangemen would say it was not appropriate to have a full scale
12th July parade in a particular area. I thought I ought to mention
that.
Mr Clarke
426. First Minister, I do not think it would
be too wrong to say that having read the memorandum and in respect
of your opening statement, you have a low opinion of the Parades
Commission in terms of its ability to achieve its objectives?
(Mr Trimble) It is very clear from what I said that
I did not have good relations which the First Commission, it is
a slightly warmer relationship with the present Parades Commission.
I do not think it is making much progress in achieving its objectives.
I think it is hampered by the legislation within which it is operating.
427. With that in mind, I wonder if we can break
down the Chairman's first question when he talked about the specific
duties. First of all, concentrating on the duty of promoting greater
understanding, in your answer to Mr Barnes you mentioned that
both the Apprentice Boys and the Lodge in Portadown have written
to residents in order to promote greater understanding of the
issues. Would you give your assessment of the success, or otherwise,
of the Commission in promoting greater understanding by the general
public of issues concerning public processions?
(Mr Trimble) I have to ask you to speak to the Commission
about that. I cannot recall anything they have done that I would
regard as promoting greater awareness of it. I do not want to
say beyond that. It may be that they have done things I am not
aware of.
428. Moving on, then, to a question in a similar
vein, that may result in a similar answer. You mentioned earlier
on the failing of the Commission or the difficulty that the Commission
had in being both responsible for facilitating and promoting mediation,
I wonder if it would be possible to give us an assessment on their
successful value there in terms of their duty to promote mediation
and also to facilitate?
(Mr Trimble) Again, there is not much I can say. As
I said, there is an inconsistency between the two roles. If you
are cast in the role of the judge then it is difficult to get
involved in mediation because, inevitably, people will not respond
to you as a mediator when you are also a judge. Again, I have
to say I am not directly aware of things that they have done to
actually mediate in any specific case. I may be doing them an
injustice in saying that: you will have to speak to the Commission.
Of my own knowledge I cannot give an assessment of that because
I do not know what they have done.
429. In this evidence session and in other evidence
sessions, we looked at a time beyond the Commission, if the Commission
were not there the RUC would take up certain duties. Without the
Commission being there, who do you think would be best fitted
to take on that role in promoting mediation and facilitating mediation?
(Mr Trimble) A Commission of that nature charged simply
with mediation and the promotion of information and understanding
could have a role. Indeed, that was one of the arguments about
the creation of the Commission, whether it should operate purely
as a mediator, promoting understanding and mediating those disputes
or not. I think there could be a role for a body of some sort
that was concerned simply to mediate and to promote understanding.
There could be a role there. I think the role of the person who
has to take a decision, which may be of a judicial character or
which may have to be done with response to whatever is expedient
on the ground to maintain order, those roles are quite different
and should be exercised. I can see the need for promoting mediation
and promoting understanding and that can be done and may be better
done in a structured way rather than simply relying on ad hoc
arrangements. If you were to rely on ad hoc arrangements
whenever you have a hot spot that may not be the best way of doing
it. There is a certain expertise with regard to the process of
mediation and the need to have, as it were, a body of knowledge
about the organisations that are involved in terms of their own
structures and their origin and in terms of their local practice
on the ground. A lot of these things have custom and practice,
and custom and practice counts for a lot. It has historically
been the way in which solutions have evolved in particular localities
and so the knowledge of the local custom and practice is important.
If one simply has a series of ad hoc arrangements that
may be a problem. It might be better to have a body which is existing
purely for that purpose.
Mr Hunter
430. First Minister, in thinking with the scenario
where a positive determination has happened and a parade takes
place, I am wondering what your perception is or what evidence
you have of the extent to which the Commission will make itself
aware of the conduct of a particular procession or a protest meeting,
for instance, for example, the events in Londonderry last December
where there was seven or eight little fracas after the cathedral
service. Do you believe that the Commission is making itself aware
of what is happening at these parades?
(Mr Trimble) The Commission has a number of Authorised
Officers whom it relies on to, as it were, provide information
on areas and generally to give it the background to particular
circumstances and to give it reports. Of course it will have available
to it police reports and it is common for the Commission to take
advice—advice might be too strong a word in this case—reports
from the police on matters. In many of these cases there is plenty
of coverage in the media of it. Essentially from the point of
view of the Commission's operation it relies on its Authorised
Officers and police.
431. This is not an area of the Commission's
activities that gives you cause for concern?
(Mr Trimble) Again, I am hesitant to say, because
my contact with Authorised Officers is very limited. I have not
had direct experience with dealing with specific parade applications.
I have heard some comments about the Authorised Officers generally,
but I do not know if those comments are fair or accurate. It is
a matter you should look at from the point of view of what is
done in order to ensure that Authorised Officers have the appropriate
training and that they are themselves are fairly detached and
objective in terms of how they are operating. A point I made earlier,
there are a lot of customs and practices and what is custom and
practice, what people do in particular localities and if the Commission
is not given that information from the Authorised Officers that
could cause a problem. I have heard people refer to particular
incidents and particular parades and say that the Commission ruling
ignored what was local custom and practice. I have limited direct
knowledge of that.
Mr Grogan
432. First Minister, do you think that the Commission
would be more effective and be more knowledgeable if the Loyal
Orders engaged with it as a matter of course?
(Mr Trimble) Yes, I have no doubt about that at all
and it would be desirable. The comment I just made to Mr Hunter,
where there may be key cases where the Commission was not aware
of the local customs and practices, the Commission's response
to that would be, "How are we to know if we do not hear and
people do not speak to us", and all the rest of it. A lot
of the difficulty here goes back to the circumstances in which
the Commission came into existence, in terms of the nature of
the report and the nature of the legislation; it was seen by the
Loyal Orders as being an active operation and it took a position.
I have personally said to people in the Loyal Orders, "Irrespective
of whatever view you take of the body, the body has the powers
and you are better trying speak to them in terms of one's case".
As I say, the Apprentice Boys have been quite forthcoming in this
matter, not just speaking to the Commission but also they engaged
with the community of which they are part. Again, I understand
the Loyal Orders' reluctance to get involved with residents' groups
of whom they are suspicious of individuals and have very good
reasons for not wishing to meet with them. That should not prevent
them from engaging with the local community and addressing the
public in wider terms. There is a problem here. Part of the difficulty
is that the Loyal Orders do not have the resources for training
to cope with the situation which they are dealing with. The organisations
are all decentralised and rely very much on people in the locality
who have found an issue dropped on their laps, which is an extremely
complex and difficult one to deal with. There is a problem on
that side. There is a gap in terms of expertise and resources
in this respect. It would be better for all concerned if Loyal
Orders engaged with society in a broader way in order to promote
an understanding of what they are doing rather than allowing themselves
to be boxed into a corner.
433. You described your own frosty relationship
with the Commission when you made interventions in relation to
contentious parades. Do you get the impression that the Commission
is resentful of such intervention, whether it is from you or from
the Government? I suppose, might they have a point, because is
there any evidence that any of these interventions have ever produced
fruit?
(Mr Trimble) I think you are right to say that the
Commission appears historically to be resentful, not just of its
own efforts and that of the Government as well but, as against
that, in the absence of anybody else dealing with the issue, somebody
has to do it. The difficulty is that if everybody tries to solve
the issue it is perceived by one party as coming from a different
direction, particularly when the Parades Commission themselves
were not directed to mediate. While there may have been some resentment
there, I think that, in that sense, subjectively they might understand
it, but objectively it was a problem. The difficulty in producing
a resolution is because of the way the Parades Commission operates;
it has given a veto to some of the people and that also prevents
effective mediation. If prior to entering into some mediation
process one party is assured, rightly or wrongly, that that party
will have a decision in its favour then, if doing something is
going to involve some compromise, there is a serious problem.
Mr Hunter
434. In your memorandum, you comment that the
Commission is not representative of the general community in Northern
Ireland. I wonder if you could expand on that and in what respect
is that so? Are we to infer from that statement that you think
a different constituted Commission might come to different conclusions?
(Mr Trimble) I did welcome the reformation of the
Commission because I think it took some steps towards becoming
better balanced. The Commission originally was not representative
of views, and efforts have been made to try and produce a greater
balance. Even so, I think there would be very real perception
they have not achieved that.
Mr Beggs
435. In the memorandum and, indeed, in your
introductory remarks, you state that you concluded that the Portadown
District would never receive a fair hearing from the Parades Commission.
Why would this be—the personal bias of the Commissioners
or the structural features of the Commission? Could you demonstrate
this by reference to initiatives you yourself have taken to seek
to resolve, say the Drumcree difficulties?
(Mr Trimble) As I said in my introductory remarks,
that is a conclusion I came to, particularly after the considerable
effort in the spring and summer of 1999 to try to produce a mediation,
that succeeded in producing direct discussions and direct engagement
between the representatives of Portadown District and the residents,
something which previous decisions said was essential, and the
Commission said they wanted. We produced a direct engagement.
We also demonstrated very clearly which party was making an effort
to reach agreement and which party was acting in a purely constructive
manner. Despite that, we then encountered the hostility of the
Commission when we were trying to report to them what happened.
These conclusions, obviously, are subjective, but the very strong
impression I received from those efforts, from the Commission
at the time, led me to conclude, as I did in 1999, that that Commission
would not give Portadown in particular, a fair hearing. I think
the reasons for that are, I have to say, not entirely justified.
Some personal members of Commission may have approached the issue
but that problem was exacerbated by the difficulties we had on
the ground in the Drumcree area in the summer of 1998, and to
a lesser extent in 1999, that heavily influenced the position.
That is why after the experience of the summer of 1999 I pressed
the Government to review the works of the Commission in the hope
that we could then have a fresh start.
436. What difference has the coming into effect
of the human rights legislation had on the Parades Commission?
Will this legislation assist in reviewing what you perceive to
be anti-Loyal Orders bias of the Commission, and does this not
provide the unpinning you wish to see of the right to assemble
and parade peacefully?
(Mr Trimble) I hope that that would make a positive
change. The matters I am a little concerned about are some comments
in the media about what I think is a rather unusual interpretation
of the European Convention in this respect. The case law of the
European Court of Human Rights is one that I would have thought
would be positive. It is focusing on the rights of people rather
than public order. I see a clear distinction between an approach
obtaining public order and an approach that has rights at the
end of that approach. I think a rights-based approach would produce
a fair result. I cannot say I have seen any evidence of that so
far. I am a little concerned about the interpretation of comparatives
based on the power of the European Convention in this respect.
I certainly wish to encourage people generally to explore further
what happens in terms of what would be consistent with the European
Convention. I regret the fact that we have not yet had any case
law here in Northern Ireland in which the rights aspect, the impact
of the European Convention on the operation of the current legislation,
could have been explored.
Mr Thompson
437. Good afternoon, First Minister and Mr Campbell.
If the Parades Commission were to remain what changes would you
suggest in the legal framework?
(Mr Trimble) Mr Thompson, as I mentioned earlier,
if one retains a Commission with the power to make determinations
to a parade then I would like to see the functions of the Commission
put explicitly in the rights based approach rather than the public
order approach. I would like to see a general power on the part
of the Secretary of State to review decisions. Those two things
would be essential. I would have to say if I was in a position
to rewrite the legislation completely then the Commission would
be directed towards a role of mediation and understanding.
438. You expressed regret that the review of
the Parades Commission, "Did not make such change to the
Commission's operation as to lead to it becoming acceptable to
the entire community." What changes do you believe should
be made to make the Commission acceptable to the entire community,
unionist and nationalist?
(Mr Trimble) At the time I pressed for a review, I
wanted a broadly based review that enabled one to look at the
act rather than focusing on the Commission. At one stage, having
thought I had obtained agreement, when the terms of reference
emerged after consultation with the Northern Ireland Office, the
terms of the review become narrow. Basically we thought it was
a fairly limited, small-scale review, the chief result of which
was the appointment of a new Commission. While one does not want
to end up with some sort of crude head count, one would like to
see if there is such a Commission which is broad enough to draw
some degree of acknowledgment from all sections of the community.
That then interacts with the difficulty that such a body is going
to have in terms of the willingness of the community to participate
with it. One would like to see a Commission that has some experience
of the view of a greater number of people in Northern Ireland,
particularly those who identify with the Loyal Orders. There is
a chicken and egg problem here. The history of this issue over
the last few years, which is adopted by the law and order, is
not conducive to obtaining the broader base one would like to
see. I think in terms of getting a broadly based body, while I
would be critical of the appointments made to the Commission in
some respects, in seeing the matters resolved, there is something
the Loyal Orders can do themselves in terms of encouraging people
to apply for the Commission. You are making clear that the people
who are appointed are not under a degree of social pressure.
439. If you look at the determinations of the
Commission, the decision to impose restrictions, many times, is
because the organisations have not communicated with the other
side, for example, residents' groups, and if they have communicated
they have not arrived at an agreement. Do you think that it is
proper for the Commission to put restrictions upon the parades
merely because they have not consulted with the other side? It
is not entering into a political field by the Commission, it is
trying to impose a certain political idea that they have.
(Mr Trimble) In a very broad sense virtually all of
the work of the Commission is political, it may not be party political
but certainly in the broad sense in terms of the issues they are
dealing with it is political. One would deprecate imposing conditions
simply, as it were, to teach somebody a lesson because they had
not communicated. There is a problem because of the failure of
the Orange Order to interact with the Commission. That has caused
a problem and I can understand that people can see in some respects
restrictions imposed, as it were, to compel people to interact
with them. Be that as it may, I think it would be in the interests
of the Loyal Orders to engage with the Commission and to engage
with the community in which they reside, even if they have difficulty
dealing with specific individuals. I think more can be done in
a proactive way to spread understanding and to spread the Commission.
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