Select Committee on Northern Ireland Affairs Minutes of Evidence

Examination of Witnesses (Questions 540 - 559)



  540. Yes.
  (Mr Holland) There are problems, which I can expand on in certain detail, without getting too technical, in relation to guidelines. It came out in what happened with the evidence given by Mr Hoey from the Apprentice Boys of Derry when they were here. We are not a court, we are a quasi judicial body having to make determinations/arbitrations. We do that by seeing individual groups of people, but not in the presence of each other. We also take advice from the police. It would not take a particularly clever lawyer to argue that that advice becomes evidence and, therefore, should be challenged by the people who are most affected, which are those, of course, who are seeking a parade. On the other hand, you will realise it would not be possible for us to have in the space of four or five days in July or August, 125 hearings which could be used to challenge evidence on a face-to-face basis, and cross-examine those people giving evidence against the whole of the parade. What we do is what we do. It does not offend Article 6 in terms of rights, because what we are dealing with are not civil rights, in that sense. It probably could be challenged on the grounds of natural justice. I have no solution to this, apart from having 100 commissioners available during two or three weeks in July and August, which would be plainly impossible. The only solution is how we do it. We are conscious of the fact it is not a perfect process, but we think we have it fairly right.

  541. That was a very interesting reply. It might be that some of the bodies who have not sent you representations, on reading our deliberations might decide to. That might be helpful in terms of the areas you feel you should get into. I think if any of them do and they do it quickly we would be interested in the responses.
  (Sir John Pringle) I think, perhaps, attention has shifted from the guidelines slightly because of the human rights question.

  Mr Barnes: I will leave some of my colleagues to press the human rights issues.

Dr Palmer

  542. Before addressing a couple of questions that we considered in advance, following up Mr Barnes's questions, I think it is clear from what you are saying that although there is very clearly a role for arbitration, which you fulfil, you feel that there is also a place for mediation which is not always totally fulfilled, you use other bodies, and you get involved a little bit yourself, but you are inhibited from going very far. I do not want to put words into your mouth—correct me if I am wrong. Would you actually recommend that another body be given further ranging powers to promote mediation in parallel to your own arbitration activities or do you feel it is best done on a sort of ad hoc basis?
  (Mr Holland) In a way, I do not know the answer to that question. You see, there is mediation, there is negotiation and there is arbitration. Now I am quite clear that we arbitrate and I am quite clear that the Mediation Network of Northern Ireland, the Authorised Officers, are very effective, in my view, at mediating. Then there is this grey area where mediation can move to negotiation but to negotiate you have to have somehow behind you the sanction of knowing what you negotiate can be upheld by an arbitrator and that is where the thing becomes very much a matter of semantics in one sense but very important differences in reality in its effect. For myself, I think that while what we have got is not a perfect process, I do not think that probably there is a perfect process in the particular context of what we are doing. The mediation that goes on has been particularly successful in certain areas. Newry was a good example actually last year and that was done by Brendan McAlister and others at the Mediation Network of Northern Ireland very successfully. There are some areas where mediation plainly does not have any effect and will not have for the time being and you have to try something else. When you then try negotiation, whether a mediation body would be able to do that if they had not got the power to uphold what it negotiated, I do not know. I am sorry to be so evasive, I am trying to be as open as I can about a very difficult process.

  543. Yes, I appreciate the openness. This is a major problem. Bearing that in mind, what research related to parades has been commissioned by the Commission over the last 12 months? What are the criteria used by the Commission in selecting research projects to support? Do you look at parades as such? Do you look at arbitration techniques, what kind of research do you do?
  (Mr Holland) I will have to let you have a written answer with all the detail of what we have done because it will set it out more clearly[4]. What I can remember very clearly is that of course you have had some of it sent to you already through Drs Bryan and Jarman and Mr Hamilton who we meet quite frequently, actually. In fact they came to our last awaydays. We have a lot of background material, of course, within our own offices on the nature of parades and the history of the parades and so on and that is available to us through our own logs, if you like, of what we have done. To inform ourselves, really I cannot say more than that, there is a lot of stuff we have done and I think I would like to let you have a proper list of that rather than try and hit it off and miss a few and not get them all together.

  544. Turning to a slightly different, perhaps slightly more academic aspect, the parades will normally have different impacts on the rights of disparate parties, and the obvious one is the marchers themselves. There are the rights of anyone who wishes to oppose the march because they dislike it, feel it is intrusive. There are the rights of residents and visitors to properties along the route to quiet enjoyment of everyday life which might be affected and have no particular view on the march themselves. There are others who might wish to use the route of the march who would be inconvenienced. Is there an a priori weighting that you look at and that you are primarily concerned with on particular routes? How do you weigh up these different types of rights? Does the weighting vary in the case of sectarian parades and any non-sectarian parade that you might be asked to look at?
  (Mr Holland) We have, first of all, a book of maps which are very, very detailed which indicate the minutiae of the particular area. If I can just take one place which is Castlederg, it is a very small place. There is a place called Ferguson Crescent which goes out into the Killeter Road. Without being too technical—and there we would be concerned in that particular instance if it was a band parade about the time of night, because they tend to go on until quite late in the evening for a residential area. That is an illustration. Take another area, Shore Road in North Belfast. On a Saturday where people are going to do-it-yourself stores and things like that, if you were to block off a motorway exit that would be tricky, so you have regard to that. Different factors apply in different circumstances and each one is to a certain extent unique, both in terms of the time of the day, the date of the particular event, whether it is a holiday or not and in relation to the location, such as a small village or a large town, or in relation to access to highway problems. We get all the advice, of course, we need from the police as well in relation to impacts it can have, and whereas I can talk to a certain extent knowledgeably about some areas I have actually been to, and you might think I know them all backwards if I trot out Shore Road, people beside me know far more detail than I do.
  (Sir John Pringle) The size of the parade is also very relevant. Some could pass in five minutes, some will take 50 or longer.
  (Mr Magee) Chairman, if I may say so, not all parades are deemed to be contentious and only those that are classified as contentious we would look at for determination.

  545. I understand.
  (Mr Osborne) Chairman, we may also look at things like the timing of the parade, the numbers on the parade, the impact upon commercial life or domestic life as well, assurances the parade organisers might have given in the past or for a particular parade coming up. There are a wide range of issues involved.


  546. Following on from the questions which Dr Palmer asked, how substantial has the effect of the 1998 Human Rights Act been on you? Then I have a question you may want to direct to Sir John in a moment but you take it first.
  (Mr Holland) Yes, I am sure Sir John is far more well qualified than I am to answer that. The Human Rights Act, of course, we technically could not anticipate. We had to wait until the Act actually applied. We tried to bear in mind what it said throughout the season. We came more and more up to speed with what it said because we had a number of meetings with lawyers and so on to discuss its implications. Once we had removed to our satisfaction the fact that what we were engaged in did not bring in to play Article 6, and was not a civil rights issue, we then had to look upon the question of Article 11, which has a particular impact, and in relation to the five elements of 11(2) which refer to what we have to take into account when looking at the Human Rights Act and Article 11. Those five elements do not coincide, of course, with the five elements in Section 8 of the Processions Act. It has had an impact, we are learning all the time on the amount of the impact. I think the first real impact it had on us was when we looked at this question in the context of Dunloy where we were judicially reviewed and where the decision of Mr Justice Kerr was appealed to Lord Justice Carswell, the Chief Justice, who upheld our decision but who, in fact, said a number of interesting things in his judgment about Dunloy which we sent you a copy of as well. We have also sent you a copy, just to fill in the background to all of this, of Brian Curran's paper that he sent to the Grand Lodge which contains a large number of comments about the Human Rights Act and which I do not want to try and precis or to sum up, but I think if I had to do so I would merely say that it effectively says that what we are doing operates in the best possible way in providing hope for the Loyal Orders for parades generally. Therefore, to that extent the Parades Commission is a better way rather than any other way.

  547. I should preface my next question by saying I am not a lawyer myself but in what way did the Act affect the legal framework or the factors relevant to your determination?
  (Sir John Pringle) I think before the Act came into operation we had been balancing rights, very much so, and then when the Act came of course we were under a duty to do that. It is a procedural matter for us maybe more than anything else, not a change of approach. Now we must get the Human Rights Act procedure correct. One sees it coming strongly through in the form the police send us when they get an application. You will see it is divided into sections, human rights sections, and must give them a lot of trouble to fill it all in. The Act is in the back of our mind but our approach is still the same, we are balancing rights, that is what we are doing and were doing before the Act came in. It has changed, because it is an absolute duty to do it. In the Chief Justice's judgment in the Dunloy case, he dealt with the five statutory guidelines, we dealt with that, and then he turned to human rights and dealt with it. We are now dealing with two things, although we had the balancing rights in mind before that.

  548. I am going back to the questions that Dr Palmer asked you: do you anticipate some of the potential conflicts as to the rights under the European Convention may have to be resolved by the courts?
  (Mr Holland) My own view is probably not, I think, in the immediate future, in the next 12 months. I think if, God forbid, we were here in five years' time then the answer might well be yes. I think the Act has to bed down into what I call the United Kingdom jurisprudence, without being too technical. Until the House of Lords starts dealing with human rights issues in this context of this jurisprudence, if I can put it like that, you have an unknown area. This is illustrated by the question of planning decisions, which really raises the whole issue about contamination of the process, when you have the Executive involved. Until they start, at the House of Lords level, it is going to make lawyers fairly cautious about going too far down the road of pronouncing final certainty. They need a lot more judicial guidance. There is a great area of uncertainty amongst lawyers.

  549. My next question may be premature, do you at present have the power to assist litigants in cases which might clarify the legal position in a particular case?
  (Mr Holland) Do we have the power to?

  550. Assist litigants?
  (Mr Holland) No. I suppose we could on a judicial review appear as what is called an amicus in English terms, I do not know whether it applies in Northern Ireland, where you can instruct counsel to appear as a friend of the court. I think I would set my mind against doing that at this stage because we would be descending in an arena where it is very uncertain.

  551. Do you think this is a question which may arise at some stage in the future?
  (Mr Holland) I have no doubt that in four or five years there will be a body of jurisprudence building up which will give lawyers a much clearer picture of where the Human Rights Act is going to be. Speaking personally, it is the biggest change to the legal system this country has ever experienced, I suspect.

  Chairman: I suspect so too.

Mr Pound

  552. When you were introducing your colleagues you used the expression that you cannot mediate as such, that it cannot be done. You have a discretionary power to facilitate mediation between parties in particular disputes, I appreciate you have touched on this already, can you give us a little more detail about how you facilitate mediation, which is very much at the core of this?
  (Mr Holland) First of all we provide the Authorised Officers on the ground, we pay their wages. We provide the Mediation Network for Northern Ireland facilities to people who want to use them, in the form of Joe Campbell and Brendan McAlister. We have, during the course of last year, and I want to be fairly certain about this, devised a plan which could have produced some solutions to some of the more difficult areas which we, of course, cannot use ourselves, but we have put in the hands of those who would best make use of that particular plan. We support very much what Brian Currin is doing. The change of tone of the decisions that we gave in relation to Portadown and the review of that, because they can ask for a decision to be reviewed, contained a lot more information than we should possibly give. There was quite a definite sea change in that context. I referred to the newsletter article which you have a copy of, which really went too far if I look back in retrospect at what it said. It was certainly pushing the bounds of mediation into almost negotiation. Other decisions that we have issued have done a similar thing. That is really what we have done, apart from an on-going process of course. All of the members of the Commission, while they are not out and about trying to negotiate or mediate, do live in the Province and obviously speak to people there, as do I, and we do not involve ourselves in mediation but we make jolly sure people know where we are coming from on certain issues.

  553. You referred to the Authorised Officers, these are shortly to come under your control, is it possible to indicate why that decision was made?
  (Mr Holland) It was more to improve the lines of communication and to also improve the way in which we obtained information from them and the way they gave information to us. It is a tricky area because when we make a determination leading to a decision we are arbitrating. At that time we do not want Authorised Officers in the room with us but we have them in beforehand to talk to us and talk us through certain areas and to indicate to us whether there would be problems. Now, the old system, whereby they used to come via the Mediation Network of Northern Ireland we thought was a bit cumbersome. We now feel sufficiently confident about our back office procedures, so it was a matter whereby the back office will deal with them and they are there all of the time. Rather than going through the Mediation Network of Northern Ireland it is more effective and efficient to do it this way. We hope we are right.

  554. It seems to me the absolute crux of the problem is that when you are, in effect, arbitrating, as you quite rightly say, you have to find someone who is perceived as well as actually impartial and objective. I appreciate that there may be only three such people in the Province, probably more.
  (Mr Holland) There are two of them on the Commission.

  555. I was going to suggest all three of them actually. One of the advantages of having the Authorised Officers outside the line of control and demand was there was a perception of independence. Do you feel there is a problem with the dynamics there? Are people saying to you they are now within the tent, they are, therefore, part of the process, or do you feel your reputation for objectivity, which I pay credit to, it is recognised by all of us here, extends to those Authorised Officers?
  (Mr Holland) I think those who thought they were our creatures will still think they are our creatures and, perhaps, with better reason for doing so.

  556. That is a remarkably honest answer.
  (Mr Holland) I always believe in being open and honest. Those who believe in what they are doing will know that on the ground they are no one's creatures. They do perform extraordinarily well a very difficult role. Unfortunately we are losing two of them this year, I regret that bitterly. They are leaving us now not because they are fed up with us but because they are going to do other things which are more worthy. I do not believe that what we are about in this exercise will make it any worse, I think you will improve the efficiency of what we are doing.

  Mr Pound: I am extremely grateful for those answers. Thank you very much, indeed.

Mr Beggs

  557. Good afternoon. What factors determine the acceptability of the Commission's Authorised Officers, or otherwise, of course, as parties who can assist in bringing together people associated with contentious parades?
  (Mr Holland) Every comment I have heard from either the Loyal Orders or either side in the parading issue has never actually, with one or two exceptions, been against the efforts of the Authorised Officers. They have not come along and said "We think so and so is an absolute dead loss, or they are biased or wholly lacking objectivity". I think their qualities are recognised. Obviously there are degrees of recognition because some are exceptionally good and some are just good. To my mind they are an intrinsic part of what we are about. I think it would be fair to say that sometimes the parties in some areas particularly may have a spat with an Authorised Officer but that usually will be resolved in the end and they have the confidence of the parties generally. I have never got the impression that was other than the case all the times I have met them and I have met them a lot of times and seen them a lot of times, both socially and of course officially at the Commission. We try to keep a very close confidence. John?
  (Mr Cousins) Just to reinforce what the Chairman has said. I think one of the strengths of the Authorised Officers is that they do not work for us in a full time capacity. They have other relationships in the community where they come from. I think two, if not three of them, are ministers of religion, for example. I think in terms of mediation and the definition of mediation you need to look from the perspective of the Authorised Officers as in a role which is pre-mediation. In other words, they have a communication responsibility to enable communities to communicate with each other who have no other means, or seek no other means, of doing so. In that sense they build up the confidence of communities to the point where they can then act as mediators so that we can suggest mediators can go in and do the job. Essentially mediation is an enabling process to allow people to reach mutually acceptable decisions. In that sense, that is how the Authorised Officers work, but they are of the community, they are not solely the creatures of the Commission.

  558. How do you go about selecting the personnel to be involved as your Authorised Officers and what qualities are you actually looking for?
  (Mr Holland) None of the current Authorised Officers was selected, of course, by the Commission. They were selected by the Mediation Network of Northern Ireland. That will continue to be the process because they will train them as well. We will have no direct involvement in their selection and/or training. We will soon have, of course, a direct involvement as to how they perform their duties, but we do not select them and we did not select them before.

  559. Have you made any attempt to determine to what extent they, as a body, for example, are representative of the various parading traditions in Northern Ireland?
  (Mr Holland) I personally have not, Sir, no. I can find out what steps have been taken in the past and write that information to the Committee[5].
  (Mr Magee) Would Mr Beggs mind if I just came in on this? I think one of the problems that has arisen is the standard attitude that has pertained up to the present in relation to the Loyal Orders' attitude to the Parades Commission. That has sometimes kept Authorised Officers in some areas at arm's length from the parading orders but they are working hard. They have inroads to unofficial members of the Loyal Orders and they are doing a fantastic job with them. The other thing I would say is that in the region where maybe some of the residents groups do not trust the Royal Ulster Constabulary or the Police Service of Northern Ireland, as it is now, there is a great go-between on the part of the Authorised Officers, the people on the ground and the police in trying to get a situation that accommodates both police and people.
  (Mr Martin) Chairman, in response to Mr Beggs, it has been the practice as far as possible that they always work in pairs and usually there would be a Protestant and a Roman Catholic Authorised Officer working together on each area.

4   See Appendix 20, p 298. Back

5   See Appendix 20, p 298. Back

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