Examination of Witnesses (Questions 540
- 559)
WEDNESDAY 28 FEBRUARY 2001
MR TONY
HOLLAND, SIR
JOHN PRINGLE,
MR JOHN
COUSINS, MR
ROY MAGEE,
MR PETER
OSBORNE AND
MR BILLY
MARTIN
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.
Chairman
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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