Examination of Witnesses (Questions 560
- 578)
WEDNESDAY 28 FEBRUARY 2001
MR TONY
HOLLAND, SIR
JOHN PRINGLE,
MR JOHN
COUSINS, MR
ROY MAGEE,
MR PETER
OSBORNE AND
MR BILLY
MARTIN
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.
Chairman
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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