House of Commons - Northern Ireland Affairs - Appendices to the Minutes of Evidence

Select Committee on Northern Ireland Affairs Appendices to the Minutes of Evidence

APPENDIX 14

Memorandum submitted by Mr William Thompson, MP

FREEDOM OF PEACEFUL ASSEMBLY: PARADES[6] IN NORTHERN IRELAND

EXECUTIVE SUMMARY

The political problem of marchers versus residents, which dominates public policy, is distinct from the legal problem: the right to freedom of peaceful assembly, broadly construed, except where limited, for specified reasons, which are construedly narrowly and proportionately.

The existing legislative framework in Northern Ireland, based on a United Kingdom public order foundation, may be incompatible with the Human Rights Act 1998. The Public Processions (Northern Ireland) Act 1998 is in need of amendment.

There is a need for the Northern Ireland Office, and Parliament, to examine the issue of parading in Northern Ireland again.

Unfortunately, little technical or substantive assistance may be expected from the Northern Ireland Human Rights Commission, though Article 11 of the European Convention on Human Rights is recognised as a right fundamental to a democratic society.

A serious appreciation of the right to peaceful assembly (with possible limitations) could contribute to an alleviation of the problem. However, all actors—the United Kingdom Government, the Loyal Orders and the residents' groups—would have to adjust their current positions.

INTRODUCTION

1. All marches etc are now regulated by the Parades Commission, under the Public Processions (Northern Ireland) Act ("PPNIA") 1998. The Human Rights Act ("HRA") 1998, however, entered into force throughout the United Kingdom on 2 October 2000. From that date, what are called Convention rights—including article 11 on freedom of peaceful assembly, and article 17 (prohibition of abuse of rights)—have been clearly justiciable.

2. It is my view, in brief, that the Northern Ireland Office ("NIO"), and public opinion, have wrongly characterized the issue as a conflict of rights between marchers and residents.[7] That's the political problem, with parades an aspect of the overall so-called peace process. From a legal point of view, the issue is the right to freedom of peaceful assembly for everyone; with no limitations placed on the exercise of this right by the government unless they are proportionate (see further below). That will be for the courts in Northern Ireland to decide, as and when cases—against the Parades Commission, or even between private parties—are brought.

3. This paper considers the human rights law, international and domestic, which will have a practical effect in the 2001 marching season.

4. I discuss the legal question of freedom of peaceful assembly in Northern Ireland law in the following sections of this paper:

— History

— Bill of Rights, 1688-89

— Public Order

— North Report, 1997

— PPNIA 1998

— Parades Commission

— Determinations

— Judicial Review

— NIO Review, 1999-2000

— Sources of Human Rights Law

— European Convention on Human Rights

— HRA 1998

— Strasbourg Jurisprudence

— Northern Ireland Courts

HISTORY

5. Parading is a traditional aspect of Northern Ireland society and politics. It may be described as communal activity, related to the sectarian control of territory. A companion activity—of more recent vintage—is marking with tribal flags (both state and otherwise), wall murals and painted kerbstones. It is a zero-sum game: this area is either protestant or catholic. And Ulster's history has been marked by such rivalry, which episodically breaks out in conflict.[8] That of the second half of the 1990s—focussed on Drumcree—is, according to the Parades Commission, a form of protestant resistance to rising nationalist aspiration.[9]

6. RUC statistics on parades begin in 1985, using the categories "loyalist" and "nationalist"; "other" dates only from 1995. The figures presented in the North Report (see below) for 1985 to 1996 are given here.[10] I have updated them using data published by the Chief Constable in his annual reports for 1996, 1997-98, 1998-99 and 1999-2000:

Year	Loyalist	Nationalist	Other	Total
1985	1,897	223		2,120
1986	1,731	219		1,950
1988	1,865	190		2,055
1989	2,099	218		2,317
1990	2,467	246		2,713
1991	2,183	196		2,379
1992	2,498	246		2,744
1993	2,411	251		2,662
1994	2,520	272		2,792
1995	2,581	302	617	3,500
1996[11]	2,405	229	527	3,161
1997-98[12]	2,583	236	503	3,322
1998-99[13]	2,694	230	548	3,472
1999-2000[14]	2,644	203	536	3,383

7. The most obvious fact is the difference between loyalist and nationalist parades (over 10 to 1 in some years); indeed, the number of nationalist parades is eclipsed by "other".[15] Loyalist parades account for about 75 per cent of the total. The number of loyalist, but not nationalist, parades has increased progressively over time.

8. A turning point in the modern history of parading was the Anglo-Irish Agreement of 1985.[16] This led to further regulation by the RUC and the Secretary of State, based on the Public Order (Northern Ireland) Order 1987. This may be attributed to pressure from the Irish Government.

9. A more significant date for present purposes is 1994, the first IRA temporary ceasefire, followed by the loyalist ceasefire[17] (a date the significance of which has been confirmed by Gerry Adams[18]). The IRA ceasefire led—through a change in republican tactics—to the confrontation at Drumcree in 1995 over the Garvaghy Road (Drumcree 1), and the succession of annual confrontations now referred to as Drumcree 2 to 6. In the summer of 1996, following serious disturbances, the Secretary of State appointed the independent review of parades and marches. It reported in January 1997, but made no contribution to Drumcree 3. The result of the North Report was the PPNIA 1998, and the Parades Commission; this was created in shadow form on 27 March 1997, and given powers on 16 February 1998, in time for that year's marching season: there followed the bans on Drumcree 4, 5 and 6.

10. The reason for the difference in parading has to do with the histories of the two main communities. The North Report discussed the loyal institutions or orders first:

— the Orange Order (founded 1795);

— the Royal Black Institution (founded 1797);

— and the Apprentice Boys of Derry (c 1814).

These were reported to comprise approximately, and respectively, 70 to 75 thousand, 25 thousand and 12 thousand members; these memberships overlap (and the Orange Order is reputed to be losing members). Parades by the Loyal Orders—generally between Easter and September—were distinguished by North:

— main commemorative parades;

— feeder parades;

— church parades;

— local parades; and

— band parades (which are not organised by Loyal Orders).

11. Nationalist parading organisations were listed as:

— the Ancient Order of Hibernians (reputedly founded in 1565);

— and others, including the Irish National Foresters, the National Graves Association, Saoirse, and Sinn Féin (particularly in Belfast).

The Ancient Order of Hibernians is believed to be several thousand strong, in mainly Co Londonderry. Traditional parading, however, is much less significant in the minority community, where there is instead a history of modern political protest deriving from the civil rights marches of the late 1960s and early 1970s.

12. Parades are not synonymous with conflict. Under the Parades Commission regime (see below), with compulsory notification by organisers of public processions, the vast majority have passed without any conditions being imposed:

Year	Parades	Conditions
1998-1999[19]	3,211	119[20]
1999-2000[21]	3,403	297
2000-2001	no official figures are available yet[22]

Of particular significance is the fact that, in 1998-1999, 38 of the 119 parades where conditions were imposed related to Drumcree (32 per cent); the figures for 1999-2000 were 52 of 297 parades (17.5 per cent).

13. Drumcree has become a decisive arena of struggle for the two main communities in Northern Ireland. The outcome of Drumcree 1 to 6 (the Garvaghy Road return) has been:

1995 a customary parade, with subsequent disagreements;

1996 re-routeing by the RUC, followed by protests, and a limited parade;

1997 a customary parade;

1998 re-routeing by the Parades Commission;

1999 ditto;

2000 ditto.

BILL OF RIGHTS, 1688-89[23]

14. The Orange Order commemorates the ascent of William of Orange, and his wife, Mary, to the throne in 1688 (or 1689, allowing for the change to the Gregorian calendar in the mid eighteenth century), and the defeat of James II and the Stuarts; in particular, following the siege of Londonderry in 1689, the battle of the Boyne on 1/12 (actually 11) July 1690, which came to eclipse the decisive battle of Aughrim in 1691. "The war of the two kings in Ireland (1689-91)", wrote T W Moody in 1991, "was a conflation of three issues: between William and James as the new and deposed king of England (Mary was James's daughter); between the grand alliance and France (with the Pope against James); and between the protestants and catholics of Ireland".[24]

15. Legally, the "glorious revolution" saw the introduction of the 1688-89 bill of rights. This became the foundation of the subsequent United Kingdom (along with the Act of Settlement 1700-01), and the basis of parliamentary democracy—the constitutional monarchy of the king and/or queen in parliament. It is not possible to understand Drumcree fully, despite the protests and the violence, without appreciating the significance of this first, and only, home-grown bill of rights in what became the United Kingdom state.

16. Entitled "An Act for declaring the rights and liberties of the subject and settling the succession to the crown", it comprised a preamble on the iniquities of Jacobite rule, and a declaration of constitutional liberties.

17. James II was accused of having "endeavour(ed) to subvert and extirpate the protestant religion, and the laws and liberties of this kingdom". The preamble included as a typical charge: "By levying money for and to the use of the crown, by pretence of prerogative, for other time, and in other manner, than the same was granted by parliament". Reference was also made to the following: "By causing several good subjects, being protestants, to be disarmed, at the same time when papists were both armed and employed, contrary to the law".[25] William of Orange was credited with having "deliver(ed) this kingdom from popery and arbitrary power", by inter alia summoning those entitled to sit in parliament (including only protestant peers). The declaration—which made William and Mary king and queen of England, France and Ireland—referred to "vindicating and asserting. . .ancient rights and liberties". There followed 13 articles. Article 4 read: "That levying money for or to the use of the crown, by pretence of prerogative, without grant of parliament, for longer time, or in other manner than the same is or shall be granted, is illegal". And article 7: "That the subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law". The most famous article—still litigated[26]—is article 9: "That the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament".[27]

18. The bill of rights of 1688-89—which has more to do with the constitution than individual rights—is still good law.[28] It is, thus, legitimate to refer to "ancient rights and liberties". But there is no express reference to freedom of assembly in this founding document. However, under the scheme of the English (later British) constitution, the idea of residual freedoms means that the subject has a full range of rights, except where they are limited by others or the state (parliament and the judiciary). On the question of parading in Northern Ireland, this means the common law (see below) as modified by local statute law (see below).

19. The Williamite bill of rights, despite its sectarian aspects (a protestant reaction to catholic favouritism), is an important part of the United Kingdom's constitution. It also has a particular contemporary Northern Ireland resonance. Under the first paragraph 9 of the Rights, Safeguards and Equality of Opportunity section of the Belfast Agreement (Cm 3883) ("Comparable Steps by the Irish Government"), Dublin is required to "continue to take further active steps to demonstrate its respect for the different traditions in the island of Ireland." This it is doing—it says—by developing the battle of the Boyne site as part of the state's millennium programme. However, the Northern Ireland Human Rights Commission ("NIHRC"), also set up under the Belfast Agreement, has tended to reject the majority tradition in espousing its radical brand of human rights: the chief commissioner, before appointment, wrote of "convincing people, especially, perhaps, those of a unionist disposition, that human rights are for all, not just for one particular community."[29] This is an unfortunate comment. The Northern Ireland human rights community, by being simply anti-statist at a time of terrorist violence (the 1980s and much of the 1990s), gave the widespread impression of being pro-nationalist. The progressive constitutional kernel to the overthrow of Jacobitism, like other seventeenth-century English political developments impacting on Ireland, has been denied by this local nomenclatura of the last quarter of the twentieth century.[30]

PUBLIC ORDER

20. Irrespective of the subject's ancient rights and liberties, England/Great Britain/the United Kingdom has been remarkably statist about the freedom of peaceful assembly. It has been defined, through successive legislative phases, in Great Britain and in Northern Ireland, in terms of the problem of public order, with considerable powers being given the police and the executive.

21. The legislative framework, built on the common-law notion of a breach of the peace and the offence of unlawful assembly,[31] may be set out comparatively thus:

Date	Great Britain	Ireland/Northern Ireland
C19th		Various Party Processions Acts[32]
1922 (and subsequently)		Civil Authorities (Special Powers) Acts (Northern Ireland)[33]
1936	Public Order Act[34]
1951		Public Order Act (Northern Ireland)[35]
1970		Public Order (Amendment) Act (Northern Ireland)[36]
1971		Public Order (Amendment) Act (Northern Ireland)
1981		Public Order (Northern Ireland) Order[37]
1982	Civil Government (Scotland) Act[38]
1986	Public Order Act[39]
		Public Order (Northern Ireland) Order[40]
1994	Criminal Justice and Public Order Act[41]
1997		Public Order (Amendment) (Northern Ireland) Order 1997

22. The table shows the following differences in the United Kingdom: one, special treatment for Ireland in the nineteenth century, repeated in the new Northern Ireland; two, no legislation in Great Britain until 1936, updated in 1986; three, special Westminster orders for Northern Ireland in 1981 and 1987; and four (from the footnotes to the table), a tendency towards harmonisation of provisions, but with Northern Ireland still a special case.[42]

23. The Public Order (Northern Ireland) Order 1987—which was overtaken by the PPNIA 1998—provided mainly for: one, seven days' notice, on RUC form 11/1, for public processions and counter demonstrations (funerals[43] and the Salvation Army being exempted) (article 3); two, police powers to reroute and impose conditions, on the grounds of serious public disorder, serious damage to property, or serious disruption of the life of the community or to prevent intimidation of others (the statutory criteria) (article 4); and three, the Secretary of State's power to ban all, or some, processions and open-air public meetings, in specified circumstances[44] (article 5) (this was first used, on the advice of the chief constable, to ban the Apprentice Boys' parade in Londonderry on 10 August 1996). In addition, part III created offences for acts intended or likely to stir up hatred of, or arouse fear in, a group defined in various ways (based upon part III of the Public Order Act 1986 ["Racial Hatred"] in Great Britain)[45].

24. Between 1987 and 1997, there were fewer than ten applications for judicial review of decisions made under the order; most came from nationalists concerned about loyal orders parading. The Northern Ireland courts, following a 1980 green paper rejection in Great Britain of a test of offensiveness, continued to hold that—in exercising their supervisory jurisdiction as to the legality of a decision—the question of causing offence (as between marchers and residents) was not relevant.[46]

25. Unfortunately, this important point has been lost in more recent responses to the problem of loyalist parades.

NORTH REPORT, 1997

26. The Report of the Independent Review of Parades and Marches, comprising Dr Peter North of Oxford University (the chairman), Fr Oliver Crilly and Rev John Dunlop, published in Belfast on 30 January 1997 ("the North Report"), had been commissioned by the Secretary of State in August 1996 following Drumcree 2.

27. The terms of reference for North were couched in a public order paradigm: "To review . . . the current arrangements for handling public processions and open-air public meetings and associated public order issues...including the adequacy of the current legal provisions, and in particular the adequacy of the statutory criteria used in making decisions on public processions and open-air public meetings, the powers and responsibilities of the Secretary of State, police and others...".[47] The terms of reference went on to point Dr North and his colleagues towards "the possible need for new machinery, both formal and informal... and the possible role for and composition of Codes of Practice for organisers and participants...". It is quite extraordinary that, in the late summer of 1996, when human rights points were already being taken in United Kingdom courts, freedom of peaceful assembly had no apparent bearing on loyal orders, nationalist and other parades in Northern Ireland.

28. The members of the review stated in their foreword (a letter to the secretary of state) that "the public order and human rights dimensions took us into areas of fundamental importance for government that...require most careful consideration."[48] They thanked Prof A.T.H. Smith, professor of criminal and public laws at Cambridge University, author of The Offences against Public Order (1987), for "most authoritative legal advice". The report is in four parts: introduction; the setting up of the review and the evidence; the law and its application; and towards resolution. Parts one and two are a—religiously inclined—lay person's exploration of the parades issue, with chapter 5 entitled "Where Freedoms Collide" (from the philosopher John Rawls): the actors are the loyal orders and the residents' groups; with religious and civil liberty[49] counterposed to the rights of local communities.

29. Part three deals expressly with the law on parades. Chapter 8 covers the United Kingdom legal framework (public order), which has been considered above. And chapter 11 discusses policing public order, essentially Drumcree 2—when the RUC under Sir Hugh Annesley was caught in the middle, and was seen to be responding to the residents (with its rerouteing condition) and then the marchers when it succumbed to the widespread pro-Orange Order protests.

30. Wedged between the two is chapter 9 (plus appendix 3) on the wider human rights framework. It lacks a thorough legal approach, either to the United Kingdom case law on peaceful assembly, or to the Strasbourg jurisprudence on the article 11 freedom. Part A on the European Convention on Human Rights ("ECHR") presents relevant articles, but falls into the political trap of balancing rights[50], as opposed to looking at the right—peaceful assembly—as containing inherent limitations. Part B on the 1966 International Covenant on Civil and Political Rights (article 21 deals with peaceful assembly) contains no discussion on treaty law, customary international law, and incorporation/transformation into domestic United Kingdom law. Part C on the Framework Convention on the Protection of National Minorities—anticipating a provision of the Belfast Agreement[51]—refers abstractly to "parity of esteem for the constituent parts of the community". And Part D on anti-discrimination law further blends statutory protection in Northern Ireland[52], and the article 14 protection of the ECHR (even though no one has ever sought to claim there should be one law for loyalists and another for nationalists when it comes to freedom of peaceful assembly). The chapter's conclusion—"that the various international legal obligations must be taken into account when formulating any proposals for change, whether of a legislative nature or otherwise, relating to public order"[53]—is wholly inadequate, leaving the false impression that the recommendations of the North Report were human-rights proofed by the chairman and his two colleagues.[54]