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

APPENDIX 14 (continued)

Memorandum submitted by Mr William Thompson, MP

PPNIA 1998

  31.  The Public Processions (Northern Ireland) Act 1998—which received the Royal Assent on 16 February 1998, more than a year after North reported—was the principal outcome; it came into force finally on 2 March 1998.[55] The Act flowed from the chapter 12 recommendations on a Parades Commission (see below), but also chapter 13 on guidelines etc and chapter 14 on legislative changes.

  32.  The PPNIA 1998 also amended the Public Order (Northern Ireland) Order ("PONIO") 1987, and repealed the Public Order (Amendment) (Northern Ireland) Order 1997.

  33.  That it did not start from a clean legislative slate—following the "fundamental principles" in recommendation one of the North Report—is suggestive of the continuing public order nature of the Parades Commission solution, and the degree to which the current regime falls short of a human-rights approach.

  34.  The PPNIA 1998 deals with: the Commission; advance notice of public processions and related protest meetings; the Commission's powers to impose conditions on public processions; the Secretary of State's powers to prohibit public processions; and general regulation of public processions.

  35.  Here, I will consider the Parades Commission—a legal person—(including its duties), and then its powers (plus the Secretary of State's) as regards public processions and related protest meetings.

  36.  The Parades Commission is, under Schedule 1, a body corporate (paragraph 1(1)). The chairman and not more than six members (North recommended a chairperson and four other members) are appointed by the Secretary of State (paragraph 2(1)—(3)). Subparagraph (3) states that he must "secure that as far as is practical the membership of the Commission is representative of the community in Northern Ireland", statutory language that is used generally by the NIO[56], and was the basis, in early 2000, of an unsuccessful legal challenge by the Garvaghy Road residents to the current Commission (see below). Terms of office are not to exceed three years, and the Secretary of State has the power of removal on a number of grounds (similar to those used against David Cook and Chris Ryder, as chairman and member respectively, of the Police Authority of Northern Ireland).

  37.  The functions of the Parades Commission are: one, to promote greater understanding by the general public; two, to promote and facilitate mediation; three, to keep itself generally informed; and four, to keep the PPNIA 1998 under review (section 2(1)—all duties). Subsection (2) goes on to distinguish two powers: first, facilitate mediation between parties to particular disputes concerning proposed public processions; and second, issue determinations in respect of particular public processions. Conditions are dealt with further in section 8. (North recommended: greater understanding locally; mediation and local accommodation; conditions notified to interested parties; review; and monitoring.) While the statutory functions are premised less on the idea of balancing marchers and residents, the first power—facilitate mediation—does refer to "between parties", a term used, when not politically, legally, suggesting equivalence between freedom of peaceful assembly and objections, on whatever grounds, to a particular public procession.

  38.  The remaining sections on the Commission relate to its three statutory—but not legally binding[57]—instruments governing its work: a Code of Conduct (section 3 and schedule 2) for persons organising public processions or protest meetings; procedural rules (section 4 and schedule 2) covering the Commission's use of its section 2(2) powers (mediation and conditions) but also applying to persons or bodies dealing with the Commission; and guidelines (section 5 and schedule 2) governing the exercise of the Commission's functions under section 8 (powers to impose conditions on public processions).

  39.  These three published instruments, in addition to the existence of the Parades Commission, distinguish the PPNIA 1998 public order regime from that created by PONIO 1987.

  40.  The PONIO 1987 rules, North's recommendations, and the provisions of the PPNIA 1998 may be contrasted in tabular form:

PONIO 1987
North Report
PPNIA 1998
Advance notice of public processions   Advance notice of public processions and related protest meetings
3(1)  applies to public processions (and also counter demonstrations).     
3(3)  not less than seven days 12/69  not less than 21 days.
12/81  a notice regime for open-air public meetings, after review, if significant clashes or interference with determinations.
6(2)(a)  not less than 28 days for processions.

7(2)(a)  not less than 14 days for related protest meeting.
3(4)  not apply to funeral processions or where ordered by SOS.[58]   6(5)  not apply to funeral processions or where ordered by SOS.[59]
Imposing conditions on public processions and open-air public meetings   The Commission's powers to impose conditions on public processions
4(1)  senior police officer may impose conditions (including rerouteing). 12/94  responsibility transferred from RUC to Parades Commission, 8  Parades Commission may issue determination imposing conditions (including rerouteing),
on grounds of:
serious public disorder;
serious damage to property;
serious disruption to life of the community;
purpose is intimidation of others.
  Additional statutory criterion of wider impact of parade on relationships within the community, this also applying to SOS banning.   
4(2)  ditto for open-air public meetings (but including banning).     
  12/111  Parades Commission determinations legally binding, containing conditions which may be imposed by police, and having regard to past compliance with Code of Conduct. Which may be framed with reference to Code of Conduct,
  12/115  SOS may reconsider determinations if chief constable seriously concerned. [9  SOS review of Parades Commission determinations.]
     and according to procedural rules, and guidelines having regard to:
  13/34  Parades Commission guidelines to include following factors:
physical location and route of parade; impact on local community; purpose of parade; features particular to parade; approach of interested parties to local accommodation.
any public disorder or damage to property;
any disruption to life of the community;
any impact on relationships within the community;
failure to comply with Code of Conduct;
desirability of allowing procession customarily held along particular route.
ARTICLE 4(1) REPEALED 1998     
Prohibiting public processions and open-air public meetings   SOS's powers to prohibit public processions
5(1)(a)-(b)  if article 4 not effective, or procession/meeting likely to cause:
serious public disorder;
serious disruption to life of the community;
or undue demands upon police or military forces;
SOS may:
  11(1)  SOS may prohibit procession in public interest, having regard to:
any serious public disorder or serious damage to property;
any serious disruption to life of the community;
  12/94  consider new criterion of wider impact of parade (but not meeting) on relationships within community. any serious impact may have on relationships within the community;
     any undue demands made on police or military forces.
5(1)(A)-(B)  prohibit for up to three months all processions/meetings, or class of, in specified area/place, or permit a procession/meeting in a specified area/place and prevent all others for up to one month.   11(2)-(3)  banning in public interest of all processions, or of particular class, in any area for up to 28 days, having regard to above criteria.
11(4)  may exempt any procession or class of.
5(2)  SOS shall consult the Police Authority public order committee.     
ARTICLE 5(1) IN PART AND 5(2) REPEALED 1998     
Unregistered bands[60]   Registration of bands taking part in public processions
6(1)  SOS may require registration of bands. 14/41  active consideration of registration. 12  SOS may provide for registration of bands.
6(2)(a)  registration may be subject to conditions.     
Stirring up hatred or arousing fear      
Part III offences for other than in a dwelling, if intend to stir up hatred or arouse fear or, having regard to all the circumstances, either is likely.     
Interpretation   Interpretation
2(2)  "`open-air public meeting' means a public meeting held otherwise than inside a covered and enclosed structure of an immoveable nature".   17(1)  "protest meeting" means an open-air public meeting, as defined in PONIO 1987, to be held "at a place which is on or in the vicinity of the route or proposed route of a public procession" and at about the same time, the purpose being "to demonstrate opposition".
"`public place' means any street, road or highway and any place to which at the material time the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission."   "`public place' means—

any road within the meaning of the Roads (Northern Ireland) Order 1993; and
any place to which at the material time the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission".
"`public procession' means a procession in a public place, whether or not involving the use of vehicles or other conveyances".   "`public procession' means a procession in a public place, whether or nor involving the use of vehicles or other conveyances."
     17(2)  "For the purposes of this Act a protest meeting is `related' to a public procession if the purpose (or one of the purposes) of the meeting is to demonstrate opposition to the holding of that procession on its route or proposed route."

  41.  This table shows: one, a considerable strengthening of the advance notice provisions for processions and meetings (with the concept of open-air public meetings evolving into a related protest meeting); two, the transfer from the RUC to the Parades Commission of powers to impose conditions on processions only, with the replacement of the four statutory criteria of 1987 by guidelines (including a fifth criterion suggested by North), but also a recognition of traditional parades; three, the Secretary of State's banning powers for processions increased, but the period of time shortened; four, the registration of bands made more likely; five, the retention of the "stirring up hatred or arousing fear" offence; and six, further definition of "protest meeting" and "public place".


  42.  The Parades Commission (as noted) existed in shadow form during the 1997 marching season, but had full statutory powers by the following one.

  43.  Its first chairman, Alistair Graham, with a trade-union and industrial background, was from England. He submitted the first Annual Report, 1 April 1998—31 March 1999 to the Secretary of State, Mo Mowlam. His successor, appointed in February 2000, is Tony Holland, formerly senior partner in a west country law firm, later a financial ombudsman. He submitted the second Annual Report, 1 April 1999—31 March 2000 to Peter Mandelson (though Tony Holland had only recently taken over as chairman).

  44.  The leadership of the 1997 and 2000 Commissions (as they may be described) may be contrasted as a shift from an industrial relations to a more legal approach. As for the other six members, David Hewitt (a solicitor) and Frank Guckian were appointed in 1997. Rose Anne McCormick (a barrister) and Aidan Canavan (a solicitor) joined them in 1998, as did Barbara Erwin and Bill Martin. The six members appointed in February 2000 (apparently two places remain to be filled) are: John Cousins; Rev Roy Magee (who had been a member in 1997, but resigned along with Glen Barr—leaving loyalists without a voice); Bill Martin (reappointed); Peter Osborne, Sir John Pringle (a retired high court judge, and former deputy chairman of the Boundary Commission); and Peter Quinn, belatedly appointed (see below). The number of practising lawyers—not including Sir John Pringle—is less. Rev Roy Magee and Peter Quinn were facilitators in Drumcree talks in 1998 and 1999.

  45.  The appointment of the 2000 Commission by the NIO was the subject of a judicial review by a Garvaghy Road resident, Evelyn White (represented by Barry Macdonald[61]). The positions had been advertised in early October 1999, less the chairman's. The applicant in this judicial review application objected to the absence of women on the new Parades Commission (though the question of catholics and nationalists was also aired). The Secretary of State (represented by Ronald Wetherup QC) argued that, while he had intended to appoint a woman, it had not been practical.[62] The application was heard by Carswell LCJ and dismissed, a written judgment being handed down on 18 May 2000. He construed the requirement, that membership "as far as is practicable...[should be] representative of the community"[63], as referring to sectarian balance.[64] The case was noted for the Court's refusal to allow the NIHRC to intervene in support of the applicant, Carswell LCJ, in rejecting also its written submissions, expressing the hope that any such future contributions would be relevant.

  46.  The shadow Commission of March 1997 engaged immediately in a "learning exercise", using the North Report as a backcloth. "That exercise entailed a comprehensive programme of meetings and discussions with representatives of political parties, public bodies, the RUC, the churches, loyal orders, residents groups, community groups, and other interested parties."[65]

  47.  Work then ensued on the Code of Conduct, the procedural rules, and the third instrument provided for by statute, the guidelines in, seemingly, the second half of 1997. (By this time, the Human Rights Bill—due to apply to the Parades Commission as a public authority—was being introduced in Parliament.[66]) The first (undated) issue of the three instruments was 3 March 1998.[67] They were reviewed in January 1999 (the Human Rights Act having received the Royal Assent on 9 November 1998), and reissued on 31 July 1999.[68] (I will refer henceforth to the 1998 and 1999 issues.) The most obvious difference between the two sets is the removal of forewords by Alistair Graham.

  48.  The Code of Conduct—for persons organising public processions or protest meetings—follows from sections 6(4) and 7(4) of the PPNIA 1998, which specifies the information an organiser must provide to the RUC when giving advance notice: date and time; route or place; number of persons likely to take part; names of any bands in a procession[69]; arrangements for the control of the procession or protest meeting.

  49.  The 1998 issue requires organisers to consider the following factors, even when organising a traditional parade along a customary route (as permitted by section 8(6)(e) of the PPNIA 1998): disruption of high commercial activity; passing churches and other places of worship; passing through a residential area; a main road or arterial route. In the case of residential areas, in particular "where people of another cultural identity live", organisers are advised to make themselves available to "representatives of the local community". Organisers are urged to take whatever steps are reasonable to meet residents' concerns, including furling of banners and adjustments to the music but also "alternative routes". The objective—following North—is local accommodation.[70] There is no similar prescription in the body of the instrument for organisers of protest meetings, other than the statement that they must be conducted within the law.

  50.  The 1999 issue, in contrast, makes clear that the Code of Conduct provides guidance to organisers (the wording in section 3(1)(a) of the PPNIA 1998). It also refers to "regulating the conduct of persons organising or taking part in a public procession or protest meetings" (the wording of section 3(1)(b)). The same four categories are discussed under route. However, in the case of residential areas, reference is made to "an area where the majority population [is] of a different tradition, or . . . an interface area". Here, "efforts should be made to meet the reasonable concerns of residents." The status of local representatives is not mentioned, and examples of accommodation are not given. This represents a significant shift from the political balancing of rights vision to one of parading within the law. However, residential territory (only) is still crucially designated in terms of a different tradition or an interface area. The text on protest action—now protest meetings—remains the same, with the addition: "The police, and not the Parades Commission, are responsible for adjudicating on notifications of protest meetings." The wording in appendix B is also altered: "Participants should refrain from conduct, words, music or behaviour which could reasonably be perceived as intentionally sectarian, provocative, threatening, abusive, insulting or lewd." Perception on one side (seemingly readily indulged) is countered by intention on the other (though it is not clear whether this is legally subjective or objective).

  51.  The procedural rules—for the Commission in facilitating mediation and/or issuing determinations, and other persons and bodies dealing with the Commission—increased the profile of mediation between 1998 and 1999: "The Commission recognises that disputes over parades are best resolved at a local level." Again, the political balancing approach is evident in both issues: the Parades Commission is to "hear the views of supporters and opposers of parades". Under "gathering information", the Commission stated its authorised officers would acquire details of "the demographic mix of the local community both on the parade route and in the immediate vicinity of the parade".

  52.  Finally, the guidelines—relating to the Commission's functions under section 8—is the only one of the three instruments to mention human rights. Alistair Graham's foreword in 1998 (dropped in 1999) states that, "in drawing up these guidelines we have worked on the fundamental premise that the rights to peaceful assembly and freedom of expression . . . are important rights to be enjoyed equally by all." He continued: "We will not therefore seek to raise obstacles to the exercise of these rights unless there are compelling arguments to do so; arguments, for example, about the extent to which the exercise of those rights infringes upon the rights of others." This is the only instance of the Parades Commission couching any question of the rights of others in terms of the structure of a Convention right.[71] The 1998 issue went on—somewhat inconsistently—to quote North's first recommendation ("fundamental principles") in full. Alistair Graham's words (but not his foreword) plus the North fundamental principles were repeated in 1999 in paragraphs 1.4 and 1.5. Paradoxically, however, there was an evident desire to concentrate only upon the provisions of the PPNIA 1998 while suggesting they had been human-rights proofed.[72]

  53.  Whereas the 1998 issue referred to "the factors", namely those in section 8(6) of the PPNIA 1998, this was dropped in 1999. No doubt, this was because the four statutory grounds of the PONIO 1987 (section 4(1)-(2)), plus the fifth recommended successfully by North (see above), became, under section 8 of the PPNIA 1998, conditions imposed by the Parades Commission on a procession which "may incorporate or be framed by reference to"[73]:

    —  the Code of Conduct (or other approved document);

    —  the guidelines, to which the Commission "shall have regard", providing for the Commission "to have regard to" the following:

      —  any public disorder or damage to property;

      —  any disruption to the life of the community;

      —  any impact on relationships within the community;

      —  any past or present failure to comply with the Code of Conduct;

      —  the desirability of allowing a procession customarily held along a particular route to be held along that route.

  54.  These are the five factors—the word being dropped in 1999—which are considered at length in the Guidelines.[74]

  55.  On public disorder and damage to property, the Commission is dependent upon the advice of the RUC. On disruption to the life of the community, the Commission has imposed a test of proportionality: "whether the level of disruption caused by the exercise of the right to assembly is disproportionate to the significance of the procession to those participating, or to the community they claim to represent." No doubt marchers will justify any disruption in terms of the important end they cherish. But why the additional reference to "community"? (The factors taken into account in measuring disruption were widened in 1999.) On the impact on relationships within the community, there were important changes between 1998 and 1999. In the 1998 issue, the commercial centres of towns and cities were regarded as "neutral zones". Where there were conflicts between marchers and residents, a number of factors—including "the availability of alternative routes which are non-controversial"—were to be taken into account. The idea of neutral zones was dropped in 1999. The factors, however, remained. A passage under "Type and Frequency of Parades", which gave a role to residents, was toned down between the two issues, to be more objective. On the desirability of customary routes, the Commission undertook to weigh a long-standing route along with other factors (in 1999, "material factors").

  56.  Giving evidence to the Northern Ireland Affairs Committee, which had decided in February 2000 to hold an inquiry into the Parades Commission, Tony Holland (who was accompanied by Sir John Pringle and John Cousins, plus the temporary secretary, David Hill) told MPs on 3 May 2000: "We do now believe that we fully comply with that [the Human Rights Act 1998] contains."

  57.  This I doubt, for two reasons: what the chairman said; and what he did not say.

  58.  Tony Holland went on to mention an article 6 problem (right to a fair trail).[75] Article 6(1) begins: "In the determination of his civil rights and obligations or of any criminal charges against him, . . .". It goes on to refer to "a fair and public hearing", "within a reasonable time" and "an independent and impartial tribunal established by law." I doubt that article 6, dealing with procedural fairness, applies to Parades Commission determinations. These are public law matters. And article 6 is about private-law rights in civil litigation.

  59.  Procedural fairness has, however, always applied to judicial review by the courts, and this is reinforced by section 6(3)(a) of the HRA 1998.

  60.  The fact that Tony Holland has raised article 6 in this way reinforces my point above about his neglect of article 11. And the failure to discuss the freedom of peaceful assembly is my second reason for doubting the chairman's claim in evidence to the Committee.

55   Public Processions (Northern Ireland) Act 1998 (Commencement) Order 1998, SI 1998/717. Back

56   Northern Ireland Act 1998 ss 68(3) & 73(4) (with modification). Back

57   The instruments are drafted by the Parades Commission, but approved by the Secretary of State. The drafts are laid before each House of Parliament (following the positive resolution procedure initially in 1998, and also subsequently in 1999), and come into operation by order of the Secretary of State. The instruments are admissible in evidence in civil and criminal proceedings, and shall-if relevant-be taken into account in determining any question. (Schedule 2 and section 16) Back

58   The Salvation Army was exempted. Back

59   The Salvation Army has been excepted: Public Processions (Northern Ireland) Act 1998 (Notice of Processions) (Exceptions) Order 1998, SI 1998/956, coming into force on 1 May 1998. This revoked an earlier order of 24 February 1998, SI 1998/583. Back

60   This provision dates from 1971. Back

61   Now Queen's Counsel. Back

62   A catholic woman had been offered a position, which was due to be announced on 7 February 2000. On 4 February 2000, she pulled out. The commission would have comprised four protestant men, one catholic man and one catholic woman. The Secretary of State filled her position with Peter Quinn, who was directly approached. The commissioner for public appointments approved the proposed commission. Back

63   PPNIA 1998 sch 1 para 2(3). Back

64   This is not part of the ratio decidendiBack

65   Annual Report, 1 April 1998-31 March 1999, p 8. Back

66   Second reading in the House of Lords was on 3 November 1997. Back

67   Public Processions (Northern Ireland) Act 1998 (Code of Conduct) Order 1998, SI 1998/525; Public Processions (Northern Ireland) Act 1998 (Procedural Rules) Order 1998, SI 1998/526; Public Processions (Northern Ireland) Act 1998 (Guidelines) Order 1998, SI 1998/527. Back

68   Public Processions (Northern Ireland) Act 1998 (Code of Conduct) Order 1999, SI 1999/2116; Public Processions (Northern Ireland) Act 1998 (Procedural Rules) Order 1999, SI 1999/2117; Public Processions (Northern Ireland) Act 1998 (Guidelines) Order 1999, SI 1999/2115. Back

69   This does not apply to a protest meeting. Back

70   See also appendix B, which deals inter alia with where the majority population is of a different tradition: "Conduct, words or music likely to cause offence or sectarian antagonism are prohibited." Back

71   See also, the frequently asked questions document on its website: "Why does the Parades Commission allow parades in areas where they are not wanted? The Commission operates from the fundamental premise that the rights to freedom of assembly and freedom of expression are important rights to be enjoyed equally by all. It acknowledges, however, that these rights are not absolute and in considering whether to place restrictions on a parade the Commission is legally required to consider the criteria in our Guidelines document." ( Back

72   "The Guidelines are based on the fundamental premise that the rights to peaceful assembly and freedom of expression as outlined in the European Convention on Human Rights are important rights to be enjoyed equally by all. The Commission will not therefore see to raise obstacles to the exercise of these rights unless there are compelling arguments to do so; arguments, for example, about the extent to which the exercise of those rights infringes upon the rights of others. The Guidelines are therefore designed to provide the Commission with a means of testing the validity of those counter arguments. In effect, they will provide a basis for establishing what is fair, just and reasonable in relation to any contentious parade." (paragraph 1.4, 1991 issue) See also the Parades Commission memorandum to the Northern Ireland Affairs Committee, Parades Commission, Minutes of Evidence, 3 May 2000, p 5: "The Commission's position on human rights is set out clearly in its Guidelines document, and also in its determination of 28 June 1999 in respect of the 1999 Drumcree church parade." The latter is not available on the Parades Commission website. Back

73   This does not prevent the Parades Commission from taking other factors into account . . . Back

74   "These Guidelines provide a framework intended to govern the decisions of the Parades Commission and are vital in understanding how the Commission operates. They do not represent a prescriptive framework to be applied rigidly to every situation, but they will help ensure that the issues are considered in a wider and longer term framework." (paragraph 1.3, 1999 issue) Back

75   Minutes of Evidence, 3 May 2000, p 11, Q32. Back

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