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 (continued)

Memorandum submitted by Mr William Thompson, MP

DETERMINATIONS

61. Reference has been made above to the small percentage of parades which attract Parades Commission determinations. However, the number grew, from 119 in 1998-99, to 297 in 1999-2000; the Drumcree-related figures being respectively 38 and 52. In 2000-01, there were 145 determinations, from 22 April 2000 up to, and including, 28 January 2001 (the final figure is likely to be less than in 1999-2000.) A total of 133 of these have been loyalist parades (of which a minimum of 44 concerned Drumcree[76]); the remaining 14 were nationalist parades.

62. The Parades Commission's determinations followed a format up until the entry into force of the HRA 1998 in October 2000. Indeed, they were described as "quasi-judicial".[77] The power in section 8(1) of the PPNIA 1998 was quoted, as was the form 11/1 notification. There was then a standard sentence: "We have considered the need to issue a determination . . . against the factors described in our Guidelines document."[78] There then followed the decision. While the facts were stated in summary, it was clear that the Commission, having reached a decision, sought to justify it in terms of as many factors in the Guidelines as possible: public disorder or damage to property; disruption to the life of the community; and impact on relationships within the community. Compliance—or rather non-compliance—with the Code of Conduct was noted. As was the fact of it being a traditional parade or not (this usually being placed at the beginning of the decision).[79] From a reading of the determinations, it is difficult to avoid the conclusion that the five factors were used as a checklist. Whatever thought may have been given as to whether there would be a determination or not, it is clear that, where conditions were to be imposed, the decision was reasoned mechanically.[80]

63. Nowhere in the current year's determinations (including 12 July 2000), and all under Tony Holland, was there any reference to freedom of peaceful assembly, or to limitations imposed proportionately.

THE HRA 1998

64. The tenor of Parades Commission's determinations altered for the application of the Portadown Orangemen to parade on Sunday, 22 October 2000. Form 11/1 had been submitted on 14 October 2000, the first relevant one after the date the HRA 1998 came into force.

65. Suddenly, the Parades Commission's decision referred to freedom of peaceful assembly. However, the exercise of powers under section 8 of the PPNIA 1998 was justified. This was on the basis of article 11(2) of the ECHR, the permitted limitations. Three things are noticeable about this, and each subsequent, determination. One, there is a gesture towards freedom of peaceful assembly, rather than the legal architecture of a Convention right. Two, the legal status quo of the PPNIA 1998, and dependent documents, remains. And three, this is articulated as the legitimate limitations permitted by article 11(2). Nowhere is there a reference to the right being construed broadly, and the limitation narrowly. It is the rhetoric of rights, not the reality. The PPNIA 1998 is assumed to be compatible with the HRA 1998; in following the former, the Parades Commission is not acting contrary to human rights.

66. In the next determination—Dunloy, Sunday 29 October 2000, where the form had been submitted on 2 October 2000—the Parades Commission reverted to the simple idea of a conflict of rights: the marchers and article 11 versus the residents and article 8 (privacy).[81] Again, there is no factual analysis deploying these two rights (and limitations), taking all the circumstances—in their interdependence—into account, which is the correct judicial approach.

Nationalist parades

67. The determination in respect of the 14 nationalist parades illustrate the nature of the anti-loyal orders protests which began after the 1994 ceasefire. The details as to date, organisation and purpose in 2000-01 so far are given below:

Date	Organisation	Purpose
(1) 22 April 2000	Spirit of Freedom Flute Band, Whitewell	New nationalist band parade in area where increasing sectarian tension. Parades Commission imposed routeing restriction.
(2) 23 April 2000	Lower Ormeau Concerned Community	To unveil a new mural. To commence at 1930, and disperse at 0430. Parades Commission found it was a counter demonstration, and imposed condition of dispersing at 2100.
(3) 24 April 2000	Lower Ormeau Concerned Community	"To reroute a sectarian march". To commence at 0445, and disperse at 1930. Parades Commission found it was intended to disrupt a loyalist parade, and imposed condition of 0600 to 0700.
(4) 24 April 2000	South Derry Martyrs Band	Traditional Easter commemoration in Maghera. Organiser applied to extend route. Parades Commission opposed as threat to public order.
(5) 30 April 2000	Lower Ormeau Concerned Community	"To reroute a sectarian march". To commence at 1230, and disperse at 1830. Parades Commission found it was intended to disrupt a loyalist parade, and imposed condition of 1100 to 1230.
(6) 25 June 2000	Lower Ormeau Concerned Community	"To reroute a sectarian march". To commence at 1330, and disperse at 1800. Parades Commission found it was intended to disrupt a loyalist parade, and imposed condition of 1100 to 1230.
(7) 30 June 2000	Down Peace Forum	"March against sectarian parades". To commence at 1830, and disperse at 2130. Parades Commission found it was intended to disrupt a band parade, and imposed condition of 1800 to 1900.
(8) 12 July 2000	Springfield Road Residents Action Group	To oppose several loyalist parades on Springfield Road. There had been dignified protests in 1999. Parades and protests had degenerated on 24 June 2000, heightening tensions. Routeing restrictions imposed.
(9) 12 July 2000	Lower Ormeau Concerned Community	"To reroute a sectarian march". To commence at 0001, and disperse at 2030. Parades Commission found it was intended to disrupt a loyalist parade, and imposed condition of 0600 to 0700.
(10) 9 August 2000	Sinn Féin (Greencastle)	The notification did not comply with requirements, but was accepted. A new nationalist band parade in an area of continuing sectarian tension. Route restrictions were imposed by the Parades Commission.
(11) 11 August 2000	Lurgan Martyrs' Republican Flute Band	An annual commemoration of some years vintage. Conditions as to the route, and playing of no music for a part, were imposed by the Parades Commission.
(12) 11 August 2000	Lower Ormeau Concerned Community	A parade of 2,000 notified to begin at 1915 and end at 2359, for the "unveiling of a new mural". Parades Commission noted this parade, and the one below, were designed to coincide with a loyalist parade. Condition imposed of 1915 to 2000 only.
(13) 12 August 2000	Lower Ormeau Concerned Community	A parade of 2,000 notified to begin at 0000 and end at 1830, to "reroute a sectarian march". The Parades Commission regretted this counter-notification. Condition imposed of 0600 to 0700 only.
(14) 11 November 2000	Lower Ormeau Concerned Community	The notification did not comply with requirements, but was accepted. A "protest parade" of 2,000, linked to an intended loyalist parade. Parades Commission held that, as the latter had been banned, the parade's purpose of "rerout(ing) a sectarian march" was no longer relevant. On the basis of "advice and information" from the police about public order, a condition of 0600 to 0700 was imposed.

Other determinations reveal attempts by nationalist political representatives to have the Parades Commission impose conditions on loyalist parades.

Reviews

68. The Procedural Rules of the Parades Commission allow it to review a determination in the light of fresh information or representations. This has been used a number of times, but only minor changes have been made in a determination.

Lower Ormeau

69. A major review took place as regards the Belfast Walker Club's intended parade in Belfast on 11 November 2000 (Armistice Day). This organisation is part of the Apprentice Boys of Derry. And the route was the Lower Ormeau. The Belfast Walker Club is the only loyal order to engage in dialogue with the residents. The Parades Commission did not modify its decision.

70. However, it came under challenge from a Belfast law firm, Cleaver Fulton Rankin, acting as legal representatives of the Belfast Walker Club. In order to appreciate their argument, it is necessary to set the context in full.

71. Reference has been made above to the Lower Ormeau Concerned Community ("LOCC"), the subject of repeated Parades Commission determinations for: 23 April 2000; 24 April 2000; 30 April 2000; 25 June 2000; 12 July 2000; 11 August 2000; and 12 August 2000. The LOCC believes that people in a catholic area have the right to exclude the loyal orders. An unsupervised referendum conducted by the parish priest on 3 August 2000 produced a result of over 95 per cent of those voting endorsing this position.

72. The Belfast Walker Club parade of 24 April 2000 had been banned from the Lower Ormeau by the Parades Commission. The reason given was: since August 1999, the minutes of the seven meetings between the marchers and residents showed insufficient engagement.[82] The determination read in part: "In the absence of local agreement, and following consultation with the police, we are aware of the very real danger of serious public disorder should the parade proceed as notified... There would be a negative impact on relationships within the whole community".

73. The parade of 12 August 2000 was also banned by the Parades Commission from the Lower Ormeau. The reason again was the recrimination between the marchers and residents. The Commission suggested a deal be negotiated covering the period to December 2002, and envisaged the possibility of a parade before the end of 2000.

74. But the Parades Commission also linked Belfast and Londonderry, suggesting that the former ban was necessary for the major Apprentice Boys' parade in the latter city.[83]

75. In its determination, the Parades Commission considered the range of factors in Belfast: traditional parade—yes; compliance with the Code of Conduct—yes; disruption—no (except for the LOCC counter protests); public disorder—yes, but only because of the nationalist residents; community relations—no major effect normally, but tensions were high.

76. Despite the promises of the Parades Commission, the 11 November 2000 parade was also banned. The reason given was: consultations had not progressed beyond the most preliminary stages. Reference was made to "information and advice provided by the police": "We have heard from senior police officers, at some length, that the amount of public disorder which would be likely to ensue, particularly in the light of the illegality of protests on previous occasions, would seriously impinge on the lives and liberty of people who live in the area."

77. Cleaver Fulton Rankin requested details of the police evidence. It may be that the loyal order doubted the degree of violence likely in Lower Ormeau. But the request for sight of the police evidence was so it could make submissions. The determination stressed that it was police advice: "That was not in the nature of evidence particularly of the kind that should be tested in adversarial fashion but rather advice provided for the Commission in the context of carrying out its strategy duty." It was stated later that "nothing material has been withheld from the parade organisers and their legal representative." But the organisers did not know what the police said.

JUDICIAL REVIEW

78. Parades Commission determinations were challenged by marchers or others in the courts on a very small number of occasions: twice in 1998-99; three times in 1999-2000; and once in 2000-01. All were unsuccessful before the coming into force of the HRA 1998 on 2 October 2000. The one case since then—Dunloy, 29 October 2000—may give rise to an important human rights point. In addition (as noted), a Garvaghy Road resident, Evelyn White, challenged appointments to the 2000 Parades Commission, also unsuccessfully.

79. The details of the six cases on determinations are:

Dunloy, Apprentice Boys, 17 May 1998 (Coghlin J, 7 August 1998) (no report available)

Court rejected applicants' legal grounds entirely, the Apprentice Boys seemingly having been concerned that: the Parades Commission did not distinguish the loyal orders; an obligation had been imposed to engage with the local community; which had fettered their discretion.[84]

Ormeau Road, Orange Order, 13 July 1998 (CANI)

Concerning Ballynafeigh Direct LOL No 10, on which conditions had been imposed on its outward parade; applicant Patricia Pelan (represented by Barry Macdonald, and later Michael Lavery QC), resident Lower Ormeau Road, sought rerouteing; Gerard Rice supporting, alleging Parades Commission had changed its mind; Campbell J dismissed application on 10 July 1998, and Carswell LCJ dismissed appeal on same day (full reasons being given on 28 September 1998); both courts rejected applicant's contention that "community" in section 8(6) PPNIA 1998 meant only the local community; Ronald Wetherup QC for the respondents cited the North Report in evidence; in a dictum suggesting human-right proofing, Carswell LCJ indicated that the Parades Commission guidelines "provide[d] a basis for establishing what is fair, just and reasonable in relation to any contentious parade."

Garvaghy Road, Orange Order, 29 May 1999 (CANI)

Applicant Kevin Farrell of the Garvaghy Road (represented by Barry Macdonald), opposing Parkmount junior Orange lodge on which conditions had not been imposed, refused leave to apply for judicial review on 27 May 1999 by Kerr J on ground he had not shown greatest good faith; upon successful appeal, application dismissed by full CANI (Nicolson LJ giving reasons on 29 June 1999); affidavit of Breandán MacCionnaith in support held by CANI to be "misleading"; on Parades Commission reasons, the CANI held that determinations should accord with the procedural rules generally (this led to the end of preliminary views being issued by the Parades Commission).

Lurgan, "Long march", 3 July 1999 (CANI)

Application by Joseph McConnell for judicial review of a Parades Commission determination imposing conditions on the "long march" route through Lurgan, dismissed by Kerr J on 2 July 1999; an application (by Michael Lavery QC) for leave to seek a declaration, by way of appeal, was refused by Carswell LCJ in the CANI on 24 November 1999; the applicant had argued that the Parades Commission should have arranged mediation; the CANI held there was no prima facie case of illegality, leave being refused.

Kilkeel, March 2000 (no report available)

Applicant opposed to permitted parades by two nationalist bands; application seemingly dismissed on no ground of illegality;[85]

Dunloy, LOL No 496, 29 October 2000

Parades Commission, in banning this Reformation Sunday parade to a protestant church in a predominantly nationalist village, referred to the importance of engagement, and suggested that the so-called statutory criteria were compatible with the article 11 of the ECHR. Kerr J refused leave to apply for judicial review on 25 October 2000, and, the following day, the Court of Appeal rejected a renewed application (reasons being given later). The short judgment of Carswell LCJ, without fully considering the question of the applicant's legal rights, accepted that the Parades Commission had taken account of article 11. No submissions were made on incompatibility between the legislation and the right, though Declan Morgan QC did argue that some of the Parades Commission's considerations fell outside the permitted limitations on the enjoyment of the right. The Court of Appeal held that the decision had been made on public order grounds.

80. Not a great deal can be derived from these six judicial review cases. The Northern Ireland courts, judging by the references to Re Murphy's[86] Application [1991] 5 NIJB 88, 103-4 per Hutton LCJ, are still trying to explain their supervisory jurisdiction. The six applications—four by loyalists and two by nationalists—were ultimately unsuccessful. Though four went to the CANI, only one—the Ormeau Road case—was an appeal on a substantive point of law. The most significant aspect is probably the dictum of Carswell LCJ in the Ormeau Road case, that human rights were, essentially, the foundation of the Parades Commission regime; however, this could be argued against successfully in an appropriate case where there was an apportunity to present the arguments.

81. Perhaps the most notable feature is the poor performance of the leaders of the residents' groups. Gerald Rice, in the Ormeau Road case, proferred evidence that was contradicted by the Parades Commission. While Campbell J did not make a finding of fact, Carswell LCJ accepted the Parades Commission's version. As for Breandán Mac Cionnaith in the Garvaghy Road case, his affidavit led Kerr J not to grant leave. While the CANI heard the application, the full court found that paragraphs four, five and six of his evidence were separately "misleading": "Mr MacCionnaith claimed at the meeting [with the Parades Commission] that there were videos of the disturbances that took place on 30 May 1998 but declined to make them available to the Commission, nothwithstanding that they were apparently in the possession of the applicant."

NIO REVIEW, 1999-2000

82. On 8 October 1999, the then Secretary of State, Mo Mowlam, initiated a review of the Parades Commission. The terms of reference for the NIO officials were:[87] "within the existing framework of law and structures, and taking account of views received from interested parties and the experience of the marching seasons over the last two years, to consider: possible ways of achieving even greater acceptance of the approach to handling contentious parades; and, in particular, the arrangements for mediation."

83. No account was taken of the HRA 1998, which, following devolution, was to apply partly in Northern Ireland from 2 December 1999.[88]

84. These terms of reference were welcomed by the then Parades Commission, "noting that the existing framework of law and structures, which provide[d] continuity, were not within the scope of the Review.[89] The Parades Commission presented evidence, including: a guide to third-party intervention, including mediation; clarification of the concept of "engagement"; and ways of developing the capacity of local communities to engage in mediation.

85. The conclusions of the review were published by the new Secretary of State, Peter Mandelson, on 16 February 2000 (shortly after suspension of the Executive). Local agreement was highlighted. Mediation was emphasised. Public visibility was stressed. And engagement was also mentioned. Two important legal recommendations were made. One: "acceptance of the Commission's determinations could be further improved if the reasoning behind them were set out in more detail . . ."—whatever the considerations of public consumption, this may also have been to better protect the Parades Commission from being judicially reviewed. Two: the government would bring the HRA 1998 into force early, with regard to the PPNIA 1998, to allow human rights points to be taken in any legal challenges to determinations.[90]

86. The Secretary of State said that "[he could] see advantages for all sides in implementing the [Human Rights] Act in respect of the Public Processions Act earlier". He announced a consultation with, inter alia, the courts, the RUC, the Parades Commission, and the NIHRC; the deadline appears to have been 17 March 2000. Observers concluded—even though there were republican objections[91]—that it was most likely that the HRA 1998 would come into force in time for the 2000 marching season.

87. This was not to pass. And the Secretary of State did not make any public announcement in the ensuing months about a possible change of mind.[92] The advice of the courts is not known. The RUC would appear not to have taken a strong view for or against.[93] As for the Parades Commission, it came out against—seemingly because it had started to make determinations in the 2000 marching season.[94]

88. The view of the NIHRC may be ascertained from the minutes of its subsequent monthly meetings[95]: on 13 March 2000, the NIHRC considered papers by Tom Hadden and Angela Hegarty on the issue; Brice Dickson (the chief commissioner) had prepared "an outline response"; some points were amended, and it was "agreed that there was no further discussion required at this stage with the . . . NIO"; on 10 April 2000, the NIHRC agreed to announce its investigation into "the human rights issues that arise from parades, including the policing of parades"; the minutes of the meeting on 15 May 2000 include: "Brice Dickson wrote to Susan Scholefield at the Northern Ireland Office regarding the proposed premature introduction of the Human Rights Act with respect to parades. Susan telephoned to say that no announcement has yet been made on this issue". These minutes would have been approved at the June monthly meeting. The phrase "proposed premature introduction" is intriguing. It was not used in earlier minutes. And the word "premature" contains a suggestion that the NIHRC, for whatever reason, may have turned against the HRA 1998 coming into force during the 2000 marching season. No one noted that the NIHRC, otherwise concerned to promote all sorts of human rights, had gone silent on freedom of peaceful assembly, at the point at which the loyal orders might have benefited from it.

89. There is also evidence that the NIO understood the Orange Order did not want the HRA 1998 applied early.[96]

90. The stand of the NIHRC was subsequently admitted by Prof Brice Dickson, the Chief Commissioner. In the supplement to a practitioners' book on human rights, he wrote: "The [NIHRC] advised the Government against introducing the Human Rights Act in [a] piecemeal fashion and the Government abandoned the idea."[97] But the HRA was already partly in force, as regards the devolved institutions, and this occasioned no criticism from the NIHRC.[98] In any case, it was not the advice of the NIHRC which was decisive.

SOURCES OF HUMAN RIGHTS LAW

91. The right of peaceful assembly may be derived from four legal sources, which are progressively related:

— the common law in Northern Ireland;

— statute law;

— the Human Rights Act 1998 (from 2 October 2000); and

— the European Convention on Human Rights ("ECHR or the Convention").

76 The Portadown Orangemen would appear to have adopted the tactic of making applications to the Parades Commission for a procession each week. All have been rejected. Weekly applications seems to have become the strategy from August 2000. Back

77 Second Annual Report, 1 April 1999-31 March 2000, p 19; frequently asked questions: www.paradescommission.org. Back

78 "The guidelines themselves do not represent a prescriptive framework to be applied rigidly to every situation" (First Annual Report, 1 April 1998-31 March 1999, p 8). Back

79 Tony Holland referred to these-incorrectly-on 3 July 2000 as "statutory criteria". (http://www.paradescommission.org) See also Parades Commission memorandum to Northern Ireland Affairs Committee, Parades Commission, Minutes of Evidence, 3 May 2000, p 3. Back

80 "Given the Commission's analysis of the problem as an issue of relationships, the majority of decisions turned on the factor of the impact that a parade might have on relationships within the community." (First Annual Report, 1 April 1998-31 March 1999, pp 19-20)

The 20 or more Drumcree determinations up to 12 July 2000 need to be distinguished. The format used was: "Having considered the notification against the criteria contained in the statutory documents, having taken account of all of the evidence presented to us, and in the continuing absence of any meaningful engagement which might lead to local accommodation, we are still unable to see how a parade could proceed down the Garvaghy Road at this time without the risk of serious public disorder and without having an adverse impact on community relationships both locally and more widely across Northern Ireland." Back