Select Committee on Northern Ireland Affairs Minutes of Evidence

Examination of Witnesses (Questions 560 - 578)



  560. It is good to know everybody is working closely in this area. The legislation specifies 28 days notice for a procession or such a shorter period as is reasonably practical if 28 days notice is not given. What criteria does the Commission use in cases where 28 days notice has not been given in deciding whether adequate notice has been given?
  (Mr Holland) We try to be as flexible as possible because after all we are there, this sounds a bit old-fashioned, to serve the community. There was a time when I did draw the line last year when they were serving 11/1s on a Saturday afternoon for a parade on a Sunday morning, and that meant necessitating bringing in Commissioners, in some cases from outside Belfast, because they do not all live in Belfast, to sit on a Saturday afternoon, sometimes as late as 8 o'clock at night, to consider a parade for the next day. That happened, I think, two or three weeks in succession on a Saturday. I then said that I would do one and that I would come over from London to do the fourth one, with a view to not accepting it. Although it was a valid application, however I thought that one sent less than 24 hours beforehand was unreasonable. It then stopped. That was the only time we said that sending in an application was too short: normally we are very flexible.

  561. How many applications have been rejected in each of the last three year on the grounds that inadequate notice has been given, are you saying just the one?
  (Mr Holland) That is the only occasion I am aware of when I have been on the Commission. I will ensure that that answer is checked and the right answer is given if there is a different one.

  562. Do you have any record of the number of rejections of applications for protest meetings?
  (Mr Holland) I cannot answer that question, I will have to let you have the information[6].
  (Mr Magee) Would it be worth flagging up at this stage that we are a Parades Commission, we are not a no Parades commission. We try to assist in every way possible and, indeed, we try to assist that they take place without later hindrance.

Mr Burgon

  563. You made allusions to the question of the advice you received and I would like to ask two questions about that. What is the Commission's view of the status of information supplied to it by, amongst others, the RUC in relation to parades, particularly contentious parades in respect of which the making of a determination may be under consideration? Is it evidence or advice or, as the Commission's later submission suggests, expert advice? What precisely do you mean by the term "expert advice"?
  (Mr Holland) Lawyers could argue all night about this.

  564. I am not a lawyer.
  (Mr Holland) It is a difficult issue. We start off with the fact that we get information from the police in the form of 11/9s, and that is in a form we recognise. It contains not only information about location, history, what they think might happen, but what has happened in the past, what happened with the previous parade of the same organisation at the same time last year. That is all read by the Commission before making a determination. On rare occasions, particularly where it is a five star area, the police will come in, and this is where we get into the semantics of what we are about, the police come in and they will usually be answering questions that we put to them expanding on what is in these documents and we are asking them in the capacity of trained police officers, insofar as they can anticipate, what will happen if so and so happened and what might happen if that did not happen? We are putting to them different scenarios. They are advising us, it is advice at that point, as they are experts in public order, what they think will happen. If that was a court situation, the courts would say that that was probably amounting to expert evidence. In legal terms what it means is that occasionally when a court is faced with a situation it cannot resolve, it will let each side produce its own expert evidence, as an expert, about what the nature of the problem is. That is why I have used this word expert because if you were looking at a court you would say that it is open to both sides, the Commission are using the police, to give advice on law and order issues. The applicants can produce an expert, perhaps a police officer, to say what his view would be. It is very much a current situation, I am not so sure about what is the final position anyway. The final point to your answer is that sometimes the police are using intelligence they have picked up that they would not want to reveal even to us when they are giving their best opinion. It is their opinion, we do realise that, they do not have any magic material that gives them the correct answer.

  565. That links in really with the second part, how realistic is it to suppose that parade applicants can provide material of comparable status to the police expert advice? Would it not be sensible for applicants to be given access to any RUC advice so they can most effectively counter or challenge it? What is your view of that?
  (Mr Holland) In all honesty it is not realistic to say to the applicant they have an easy chance of contesting that evidence because it is current evidence of current serving officers. Even if they produce a former Chief Constable to come along, with all of the status he would carry, we would feel that he is not on the ground, he is not the local station superintendent or sergeant whatever. If the organisers were to come along and listen, at the same time as the police were there, the police have told us they would be more inhibited in what they could say to us. That is the position. I can understand why. All I can say is effectively in the end you have to rely on the objectivity and the good offices, if you like, of the people on the Commission to appreciate we are adjudicating on a matter that has strong feelings. We cannot just take the police evidence as gospel. We have not done so: there were two or three occasions I said, "No, we will override that evidence and go for it". I think it would be unfair to identify where those situations were. If you really want to know I can identify them to you later.

  566. We have been dealing with the semantics, to some extent, just to pursue that further, what weight does the Commission attach to whether a parade is traditional or non-traditional and how does the Commission define a traditional event? Does the Commission seek to differentiate on the grounds of the purpose of a parade, does it accord any particular status to church parades of whatever denomination?
  (Mr Holland) The Commission does consider a church parade different from a parade band parade and it should be regarded as such. Defining traditional, I see a number of definitions, but we do not formally define it. We have the definition in the Act of course. I have seen it said that something that has been happening for more than five years would be regarded as traditional. I think that the Commission generally faces the issue where the word traditionality does not impact upon us. It is contentious areas which are important areas, they are traditional parades obviously and, therefore, we are not sitting there nitpicking saying, "That is not a traditional parade". There was one occasion when we thought it was not a traditional parade as such and therefore we could not regard it as being one, that was a rare event.
  (Sir John Pringle) It is one of the situations where the word traditional is not a word which appears in the Human Rights Act and, therefore, there is a bit of conflict between the five statutory view points and the Human Rights Act. I do not think it will be an unscalable difficulty.
  (Mr Cousins) We also need to look at traditionality differentially in terms of the two communities. One has a very pronounced culture of parading, which is the Unionist/Loyalist community. The Nationalist community does not have a parading tradition going back hundreds of years, so they might view five years as establishing traditionality whereas others might look at it in terms of decades. We have even had claims of traditionality where a parade has not taken place for ten or 15 years although it did take place previously. I would say also that traditionality as a concept does not impact very strongly on our deliberations.

Mr Clarke

  567. Good afternoon, Mr Holland again and to your colleagues. The terms of reference of the Committee's inquiry not only look at the current operation of the Commission but also ask us to consider, in light of conclusions of the review of the Commission, how effectiveness might be enhanced. I wonder if I can ask a couple of questions that relate to comments made to us during our deliberations as to how people think changes could be made to enhance the workings of the Commission. I will start by asking a question in respect of the tension, recognised in the Commission's own annual report, that exists between your education and advisory function and your power to issue determinations. Could you start by saying whether or not that tension between those two very different roles, education and advisory and determination, is still there and is increasing?
  (Mr Holland) I have not felt there is a tension in that area personally, I do not know if my Commission will agree with me, I have always felt that in relation to education and training it is not really a difficulty. We have obviously spent a great deal of money on having stewards trained. We have given money to the Loyal Orders for that purpose in particular and I have not felt the tension there. Where I have felt the tension, and it would be apparent by now to the Committee, is between mediation and negotiation and arbitration. I would love to say the solution is to do this, but I am not so convinced I can say that is possible with any certainty. After all, I have only had a year's experience, as have the Commission, and to a certain extent for the first three or four months or until September you really do not know whether you are on your head or your heels in terms of the dramatic changes you have to cope with. We have mostly been concentrating on trying to resolve these five star areas. By the time I finish on the Commission, which will be another year, I will be much more able to say this is what we should do. The other Commissioners may have a different view because they are much more familiar with the Province, particularly Billy Martin or Dr Magee.
  (Mr Martin) I think, Mr Chairman, that it was interesting that the Apprentice Boys were the only Loyal Order that took up the offer to have stewards training done and the Commission supplied the money for that to be done. It is good to report that there are some of the further education colleges that are now offering instruction in that particular direction.
  (Mr Holland) I also been reminded we have permitted training in the further education colleges and there is no tension about that.
  (Mr Magee) If I might just say, the tension is between the role of mediation and arbitration that we have to fulfil. I personally at the beginning resigned from the Commission when legislation was set in place, because the role of mediation was removed from those who were Commissioners, because I feel, and I still feel, the only way this parading dispute will be settled is by agreement and accommodation on the ground. You cannot impose a solution. I had an end at that stage but I wanted to get involved with mediating as much as I could. The difficulty comes when you have mediated in a situation and then you have to arbitrate. I thought I could have declared my hand and said, "I will not take part in this decision-making process in this area". To create a decision you are coming to on one side or the other you are corrupting the system almost.

  568. I think that is the reason for my use of the word "tension". I think the word "tension" may have been used in the Commission's annual report last year. Taking all of that into account, what would be the consequences of separating the two roles in terms of education, advice and determination? Following on from that question, could you say whether or not the Commission has a view as to whether or not such a change would be supported by its current membership?
  (Mr Holland) I cannot see a problem in saying that the Commission is no longer responsible for education and training in relation to the parading culture. It does not occupy a central role in what we are doing. We are aware there is an importance and we are particularly aware of it being emphasised. I would imagine that some of the plans we had in mind for the future, which I do not want to discuss today, because they are only plans, would be very helpful. I suppose my overall answer, which I would give both in relation to that and the other questions about changing the Commission, quite apart from the danger which I mentioned before, pulling up a plant and examining its roots, is that our major problem is the question of engagement. We believe that there are signs that that might change. As soon as you start talking about changing the modus operandi of this Commission it is a good reason to postpone out there in the Province any alteration to established attitudes. If they know we are actually here going about what we are doing and we are not going to be changed for another year or whatever, that will mean that people will engage and will realise they have to move forward. As soon as you offer the slight hope that maybe it will go away or it will change or things might alter, that is a good reason for postponing things. We are all human we like to postpone things if we can and the slightest excuse in this area would be seized upon greatly.
  (Mr Osborne) Can I make a comment on the issue of tension in the context of this. A short time ago, I will not go into the area details or names, a major voluntary organisation facilitated a meeting with some key community activists in a particularly sensitive area, that was partly an education initiative to allow us to hear about issues firsthand from people working on the ground in that area and also for those key community activists to hear from us on thinking as far as the Commission is concerned and to explore how they might be involved in, perhaps, advancing in a positive way the whole issue around parades in that area and also how they could help us understand how they pick up the pieces of what happens after a parade. I think it is important to recognise there is a not a tension there if that education activity happens; if it is done and facilitated and expanded upon it could help in the arbitration process and people coming in to give us evidence about what happens on the ground and how that clarifies certain thinking in certain people's minds and how it can expand on the number of people coming in to see us. I do not think it is a tension, I think it is quite the reverse, it can be helpful.

  569. The other possible fault line that has been mentioned to us on several occasions is that the Commission has a statutory obligation to consider parades separately.
  (Mr Holland) Individually.

  570. It has been said on a number of occasions that surely it would make sense to group either parades or to look at parades over a period of time, what would the Commission's view be on that?
  (Mr Holland) That is a very difficult area. We have discussed it a lot and from our very first meetings we have looked at it very carefully. Sometimes you think would it not be nice if we could say in this particular area one parade a year would keep everybody happy. Of course we cannot do that. The difficulty is that people regard this word "linkage", which is the word which has been used, in different ways. Some link it in terms of a particular small locality, like Smith Road, I will not give it a particular road, just an anonymous name, Smith Road, let us have one parade a year down there, let us link all of the parades together down Smith Road. Other people link it in terms of dates, there are different dates, let us link those dates together. Others will link it Province-wide and what we call feeder parades. So defining linkage is a major problem in terms of actually how you amend legislation. I think you might gain something, but I think you could also lose an awful lot and put at risk a whole range of other gains you made elsewhere. The current thinking of the Commission after a year, which is not a long time, is that it would not be helpful to have this linkage put in place. To a certain extent, Billy Martin may want to build on this, we have the preliminary view aspect which existed originally, and that has gone now, and I do not think this was a success either. However you put it, people then start arguing about the linkage or arguing about what we might or might not do. There are problems whichever solution you adopt. Nothing is perfect. What we have now is the least undesirable.
  (Mr Martin) With regard to that there is nothing which I need to add. The only thing I would say is that any individual or organisation can organise a parade or as many parades as it wants at any time providing the notice is given. We have absolutely no control over the number of parades.

  571. Can I push a tiny little bit further, I think we all accept the difficulties there would be in terms of grouping parades or grouping parades over a period of time. With particular reference to feeder parades coming together with main parades, was that something that you looked at separately or did you look at that linkage as part of your overall picture?
  (Mr Holland) We do have trouble with feeder parades and we do know that whatever we may say other people do link them together. No matter how much we say that is an individual parade down a particular piece of road for a particular purpose it is actually going to end up with those going to a third location. Whatever we may say or think we are stuck with that fact. Feeder parades do create problems. If you have linkage you would get enormous problems with feeder parades.

Mr Thompson

  572. Good afternoon, gentlemen. I think it would be right to say that the Commission has a view that it is a good thing to talk and that Loyal institutions should be talking to the residents groups.
  (Mr Holland) I think the view of the Commission is if you can and do talk to the residents it is more likely to create a situation where a parade becomes non-contentious.

  573. You have on occasions made determinations which meant that you rerouted parades because the organisers were not willing to talk to the opposition. What gives you the right to suppress the right of any person because they simply do not agree with your views?
  (Mr Holland) The right, of course, is not an absolute right and to that extent the Parades Commission operating under the statutory authority does have the right to do what it does. Parliament has given us that power.

  574. Given the Human Rights Act, I just want to quote you from one extract of human rights law. It says, "The court has consistently held freedom of expression is a fundamental feature of a democratic society. It is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of difference, but particularly to those that shock, offend or disturb any sector of the population. There is no point in guaranteeing this freedom only as long as it is used in accordance with accepted opinion. It follows that in terms of Article 10(2) the right of freedom of expression may exceptionally be permitted and must be narrowly interpreted". Surely under European legislation you have no right to take away the right of a person because they disagree with you?
  (Mr Holland) I think that was from Stephen Sedley's judgment.

  575. Handiside.
  (Mr Holland) Yes. The Human Rights Legislation is as interpreted by the European Court in Strasbourg far more restrictive on the issue of parading than I believe the Loyal Orders realise. I think Brian Currin's paper, which I have sent you copies of, indicates very clearly that it is not an absolute right and that the European Court of Human Rights in Strasbourg has taken quite a proportionate approach, if I can put it like that, in deciding whether or not a parade can take place. It has been illustrated particularly in the Rai case, funnily enough it concerned Northern Ireland. Some people wanted to hold a parade around Trafalgar Square and the Home Secretary, who had the rights to control that at that time, said that that was not possible. You could have the parade anywhere else but it could not be in Trafalgar Square. That case went to the Court in Strasbourg and the Court said very clearly that the proportionality issue is crucial. If the result of the issue is that no parade at all could be held that was one thing, but where all that is being said is you can parade but not in this particular place, the grounds being that it could create some disorder, that is perfectly reasonable. That is why Brian Currin's paper is so important. In fact in many ways the more likely way of protecting the rights of the Loyal Orders is to use the route that we provide than any other way.

  576. How is the Commission going to change the perception of the Loyal institutions that you are against them and, in fact, you give in to residents groups and you give into violence and you do not allow proper parades to take place?
  (Mr Holland) I think it is very difficult to change that perception, but I fully accept that. The way that it would be changed is for them to speak to us but if they choose not to we have to realise that the only way we can communicate with them is almost through a third party or the decisions we make. That was the reason why we changed the format of our decision at Drumcree last year, where we realised there was no communication going on, there was informal communication but not the formal communication we need, so we thought we would spell out a route map in that determination over 16 pages, and that was followed up by the news letter, which was probably a little ill-advised because it went so far. That is all we can do. We cannot talk to them direct. I was a bit surprised, I am bound to say this, that unfortunately Mr Saulters saw the initial letter I wrote to him as written to him personally. I sent you a copy of the letter in the papers and you will see it was sent to him as the Grand Master at the official address. I do not really think he can say it was sent to him on a personal basis, you will see the tone of the letter I sent to him. We need to communicate.

  577. In its determination on the Belfast Walker Club, ABOD, parade on 12th August the Commission stated, "A limited, orderly Apprentice Boys' parade taking place along the Lower Ormeau Road in a peaceful and lawful atmosphere before the end of the year would enable the Lower Ormeau residents to demonstrate their readiness to acknowledge the interests and particular concerns of the Belfast Walker Club and the wider Unionist community from which it comes. We would like to see such an outcome, because we believe it would create a fair and balanced context for bringing the Commission's initiative to fruition and help to create space for sustained and genuine dialogue between the two sides". Did such a parade materialise and if not what prevented it?
  (Mr Holland) No, it did not materialise and in a way no one was more disappointed than myself. It did not materialise as we had hoped. When we wrote that in August we were optimistic that the process that had been put in place with the two gentlemen concerned, who I had spoken to I think if not the day before the day before the day before we wrote that determination, as to what was going to happen over the next two or three months in terms of that process being put in place. It was different from the previous mediation that had been going on through the Avila Kilmurray talks. We were optimistic that it would produce a solution. For whatever reason I do not think you can blame the Apprentice Boys of Derry in that context. I do not think anybody can be blamed. It was a series of unfortunate delays. The talks we had hoped would produce some kind of dialogue we could rely on did not take place. For that reason that was why the parade did not take place that they applied for on November 11th. I hope you will forgive me, Mr Thompson, I do not want to say any more about what is going to happen in the Lower Ormeau Road, it is very nearly upon us, and it would be unhelpful for me to say anything further at the moment. I hope you will forgive me for that.


  578. Thank you on behalf of the Committee for everything you have said to us. We have covered a fair amount of ground. It may be there were questions you were expecting us to ask which we have not. I will certainly not ask you what such questions might have been. We are very appreciative, just as we were on the previous occasion. You are the last witnesses from whom we are taking evidence and now it is our job to settle down and produce a report.
  (Mr Holland) Thank you very much, sir. Any help you can give us, any comments that are helpful in terms of suggestion we warmly welcome. I know the people on the Commission are doing a difficult job because they want to see it make a difference. There is no monopoly of wisdom in this particular exercise, if you share yours with us we would be very grateful. Thank you.

6   See Appendix 20, p. 300. Back

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