APPENDIX 17
Memorandum submitted by the Ulster Bands
Association
BACKGROUND
In the past, numerous unsuccessful attempts
have been made to establish an efficient association that could
adequately promote the interests of the marching bands community
in Ulster.
These failures were due mainly to:-
(a) Political differences
(b) A lack of awareness to the menace posed
to the existence of the marching band culture
(c) The fact that membership of a band is
viewed principally as a hobby.
It also led to the emergence of a number of
misconceptions relating to our culture.
In March 1998 a meeting was organised to discuss
these problems and the Ulster Bands Association formed.
Several issues were instantly identified as
requiring urgent attention.
They were:—
1. The need to explain to others the background,
ethos and unique cultural identity of the Ulster marching bands
2. The need for a coherent strategy to respond
to the growing threat to that culture
3. The need to, in some circumstances, regulate
the standard of bands
4. The creation and implementation of a Code
of Conduct.
Although the Parades Commission is viewed with
indifference and seen by our Association as a threat, the Central
Committee of the Association were able to persuade the membership
that only by meeting with the Commission could we effectively
enlighten them on our culture.
The Association has also sent a detailed dossier
of correspondence concerning an incident in which a band was prohibited
from participating in a parade, due to erroneous information being
supplied to the Parades Commission.
INTRODUCTION
Parading was once perceived as a normal peaceful
activity in Northern Ireland where people who were loyal to Queen
and Country took the opportunity to publicly demonstrate this
fact to anyone who was interested. Thanks mainly to a skilful
propaganda campaign by Republican elements of our society, these
demonstrations are now regarded by the media and the world at
large as antagonistic and triumphal demonstrations of force aimed
at the Roman Catholic sections of our community.
Nothing could be further from the truth!
As part of this propaganda campaign Sinn Féin
first mooted the idea of a Parades Tribunal in May 1985 (the current
practice then was that the Chief Constable decided as to whether
a parade could take place or not—their assertion was that
the Chief Constable was biased) and the Secretary of State for
Northern Ireland must have pigeon-holed this idea for later use.
In later years pressure mounted on the Government
particularly about the Drumcree issue and, as a means of relieving
this pressure on the Government and Chief Constable, a report
from the North Committee recommended that a Commission be set
up to supervise and regulate parading. Following publication of
this report the Secretary of State instituted the necessary changes
to the law in the form of the Public Processions (Northern Ireland)
Act 1998 which empowered the Parades Commission. Following a short
consultative period the Parades Commission hurriedly produced
a series of documents (as required by the Act), which laid out
the criteria upon which their decisions would be based. Given
that it is only the Ulster Protestant community which is based
upon the public display of loyalty and no contact was sought by
the Parades Commission with bands or their representatives (the
Loyal Orders had at that time adopted a policy of non cooperation
with the Parades Commission) a true perception of our culture
could not have been fully and faithfully represented. When the
Commission met to consider how they would achieve their objectives
an obvious inbuilt discrimination against our culture was incorporated
within the modus operandi of the Parades Commission.
During this entire procedure no attempt was
made by any party to consult with the people who would be directly
affected by their decisions, nor was there any attempt to keep
the general public advised as to the progress of the Act.
There was just an indecent haste to have the
Parades Commission up and running in time for the oncoming "marching
season" and in that haste mistakes were made.
As a consequence of these actions an Act was
empowered by Parliament that was not only as fundamentally flawed
as you could have ever hoped to see, but also was also flagrantly
discriminatory against the culture of the majority population.
What did we do about it?—What could we
do about it? We trusted our Parliament and our Members of Parliament
to look after our interests and we discovered that this trust
was misplaced and our interests were disregarded. It was within
this environment that we sought to try and salvage whatever we
could from the situation. We held our tongues and thought that
it was not as bad as we first thought. But it was!
Member bands were falsely accused of doing something
(we don't know what) and were banned from parading in Portadown.
We made representations and the ban was lifted. This happened
again the following year and again the putative ban was lifted
after representations. In all the Parades Commission has banned
the participation of our member bands on several occasions since
its formation despite our assertions that it does not have the
authority to do so and in all cases except one it has subsequently
rescinded its previous decision. It is almost as if we were playing
cat and mouse—they would ban a band to see if we noticed
and when we objected they would then alter their decision.
MEETINGS WITH
THE PARADES
COMMISSION
We have formally met with the Parades Commission
on a number of occasions and have raised a number of issues with
them. To date we have not received a satisfactory response from
any of the motions.
We do not enter into these lightly but neither
are we fools. We know when we are being fobbed off and we know
when we are being deliberately baulked. A senior official of the
Commission has in the past commented that "the Association
was not a major player" and we have found it difficult to
make substantive contact with the Commission ever since. The fact
remains that we are the only organisation representing bands that
is prepared to meet with them and to try and resolve problems.
A recent study of the conflict by Profs Jarman and Bryan of the
Ulster University placed bands and their parades as second only
to the major 12th demonstrations in size and importance, however,
it seems, that this information has yet to be digested by the
staff of the Commission. Their brief seems to be as obstructive
and as insulting as they can possibly be and one wonders as to
the motive for this attitude. Can it be that there exists an ulterior
motive behind their actions? Does the fact that our organisation
is prepared to meet with the Parades Commission rankle with someone
within that Commission and have their actions been calculated
to provoke this Association into a similar policy of non co-operation.
If our membership were to be aware of the extent of the slights
and insults that this Association has suffered from the hands
of the Parades Commission then that situation may be closer than
they think.
We met with the Commission initially to give
them a three-point submission for their consideration. We received
no response to these submissions and subsequently wrote—their
reply is attached in the Appendices[226]—it
has to be seen to be believed.
That Commission disbanded so we requested a
meeting with the Commission in its entirety.
We asked to meet the full Commission and we
asked for ample time to discuss a serious matter that had arisen
and to raise the matter of unresolved business. In view of this
fact we gave at least two months advance notice. Can you imagine
our surprise therefore, when despite this two month period of
notice hardly had our coffee cooled when the new Chairman announced
that he had a prior engagement and that the meeting would end
at eight pm (some of our members had travelled from all parts
of the Province, in some cases they had travelled directly from
work).
The submission, which we left with them, is
as yet unanswered and the deferred meeting that was promised by
the Chairman for later in the year has, after a passage of almost
12 months, yet to be finalised (despite numerous phone calls and
faxes from us). The latest news is that as of 7.2.2001 the staff
of the Parades Commission have stated that they can guarantee
no more than one Commissioner who is prepared to meet with us
on any one given evening. We requested an evening meeting because
so many of our committee are in full time employment and therefore
a daytime appointment is totally unsuitable. The Commissioners
we must add are paid for their attendance at meetings.
OUR PROBLEMS
WITH THE
PARADES COMMISSION
At the time of writing we feel that there are
four outstanding issues on which we have made written submissions
and on which the Parades Commission has taken no action. They
are:
1. The necessity of the parade organiser
to notify a responsible member of a band in writing of any determination
made by the Parades Commission in relation to any particular parade
or demonstration. This was the first point of our original submission.
At our meeting with the Commission they agreed that it would be
helpful and agreed to incorporate a sentence to that effect within
their determinations but when the matter was discussed by the
full Commission at subsequent date they decided not to require
written notification but instead the sentence was watered down
to state that "bands should be notified". That watered
down version has since disappeared from their determination leaving
bands vulnerable to prosecution.
This may not seem to be a major point within
the normal scope of problems,m but when it is considered within
the proper perspective then legal ramifications take on gargantuan
proportions.
If a band unknowingly contravenes a determination
of the Parades Commission the first thing to happen is that the
nominal head of the band would be asked to call into the police
station. There, because of the nature of the offence, he/she would
be cautioned, questioned, fingerprinted and asked to give a statement
concerning the alleged offence. Bearing in mind that these are
normal, hardworking people of average intelligence then this experience
can be traumatic. Add to that the present government's proposals
that the police should retain fingerprints etc for an indefinite
time period then the effects would be nothing less than catastrophic.
A simple statement by the Parades Commission to tell parade organisers
to advise bands in writing of any restrictions would go a long
way towards alleviating this problem.
2. The Commission has empowered itself in
our opinion to give itself the ability to prevent bands from taking
part in specific parades. It is our assertion that this power
is vested in the Secretary of State by the Act and only when bands
have been required by the Secretary of State to register under
section 12 of the Act.
We have made representations to the Commission
concerning this abuse of power but as yet they insist that they
are empowered by section 8 of the Act to ban specific bands from
attending parades.
There was a protest parade in Portadown last
year against the Parades Commission—they imposed a restriction
on the number of bands that were allowed to parade that night.
In another parade—also in Portadown—they imposed a
ban on bands laying wreaths at the War Memorial in honour and
memory of the fallen of the two World Wars. These should not have
been subject to Parades Commission scrutiny but who but they know
different.
When employing these disputed powers the Commission
employs a secrecy which would do justice to MI5. Allegations are
made, considered and sentence passed in private all before the
band or bands concerned knew about it. No contact is made with
bands either before, during or after deliberation. This is a shameful
way of carrying on one's business. If allegations are to be made
they should be made publicly and if a punishment is to be handed
down then the defendant should be offered the chance to defend
the charges.
The days of kangaroo courts are long gone and
for the British Government to be a party to these kangaroo courts
and similar injustices for the sake of expediency is lamentable.
When something is wrong it is wrong but to sit
complacently by and do nothing about it when you can bring about
change is even worse.
3. Having taken powers illicitly from the
Act this Commission totally ignores the rule of law as generally
accepted within the land. It is their contention that the Public
Processions (Northern Ireland) Act 1998 supersedes all legislation
prior to and since enactment. Although the Act may give them the
ability to proscribe the conduct of a parade or demonstration
at specified areas they have expanded that to cover the ability
to proscribe people from those same areas. This was not the intention
of the Act—the intention of the Act was to empower someone
to say if a parade could take place in a specified area and if
so what stipulations should be placed upon that parade for it
to proceed. They have, as said previously, expanded those powers
to cover the prohibition of bands and by implication individuals
and have done so in complete secrecy. The legal penalty imposed
by the Act is enacted under criminal law, however the Parades
Commission does not consider that the procedure, which applies
to criminal law cases, should apply to them. Ask them why and
they will cite section 3.1 not of the Act but of their procedural
rules. These rules which have not been debated in Parliament are
being given precedence over countless other Acts which have. The
highest court in the land would free a criminal who was caught
in the commission of his crime if the prosecutor flaunted the
police and criminal evidence guidelines. Not so with our Parades
Commission—the right to know what offence you are charged
with is superfluous to requirements and the right to mount a defence
is only needless delay. The fact that they have stolen powers
from the Secretary of State is an inconsequence that only expensive
litigation can remedy.
4. In the unseemly haste to have the Parades
Commission in place in time for the marching season, short cuts
were taken that are now coming home to roost. Form 11/1 was a
police form, which was to be completed and given to an officer
of at least the rank of Sergeant of the RUC prior to the formation
of the Parades Commission. The Parades Commission took this form
in its entirety and added to it. In an attempt to entangle the
procedure in a web of red tape they insisted upon some modifications,
namely:
(a) An insistence that the section relating
to the name and address of the person responsible for each band
entered on Form 11/1 be completed in its entirety even though
this information is not required by the Act and
(b) By means of coercion a statement to
be read by the police sergeant if these details are not forthcoming
threatening prosecution if the parade takes place in the absence
of this information.
Under normal circumstances there would be no
problems with this. However, these are not normal circumstances
nor is this Commission a normal body.
In the past there was no difficulty in giving
the information required by the Act to the police. In fact most
of the information was already on file through other normal dealings
with the police—completion of applications for permits etc.
By the very nature of their work they had signed the Official
Secrets Act and the likelihood of the police giving information
to the terrorists was slim to say the least.
The Parades Commission is however a horse of
a different colour. They have been unable to offer any reassurances
as to the safety and security of their information and databases
despite our requests. In our last meeting we left a submission
dealing with that very point—we will await a reply.
To compound the issue, in July last year a Form
11/1 bearing the personal details of the responsible personnel
of the bands who paraded at Maghera was somehow given to a convicted
terrorist who is now the Sinn Féin representative for the
area. The Parades Commission said it was a mistake.
The fact remains that the Parades Commission
did not recover the form but accepted an unsubstantiated statement
that it had been destroyed.
This might be the right time to remind your
Committee that we have been embroiled in nothing less than a war
since 1969 and although there is at present a ceasefire in operation
that is all it is. It is not a cessation of hostilities nor is
it an out and out declaration of peace between our two factions.
Information as to likely targets is still being collated and this
information, so lightly disposed of by the Parades Commission,
has placed up to 48 families in serious jeopardy.
The home of a good friend of mine now resembles
a fortress since the installation of the security measures that
he has been forced to install—all thanks to a thoughtless
mistake.
What makes matters worse is the Commission's
reluctance to publicly concede that it was wrong and to rectify
the matter. The police already hold the information demanded by
the Commission, so their determination to have it repeated at
every given opportunity is hard to understand. On this point this
is the second occasion that the Commission has refused to apologise
publicly.
One of our members was the subject of a scurrilous
report from an employee of the Commission and it was accused of
something (they would not say) and was banned from attending a
parade in Portadown in one of the Commission's infamous kangaroo
courts. We made representations and the decision was reversed
but although the Commission had publicly besmirched the reputation
of this band, they have refused outright to apologise in public
to them. They have said "sorry" at one of our meetings
but that was within the confines of the room and with no audience.
It is almost as if it is beneath the Commission to acknowledge
their mistakes.
As part of their on-going campaign, Sinn Féin/IRA
are engaged in a map-making exercise within Northern Ireland.
They have embarked upon a journey to identify the religious make
up of every street and lane in Northern Ireland and laid claim
to any street which has a Roman Catholic living in it as a "Nationalist
or Republican area" despite the wishes and political views
of the residents. This is even more prevalent at interface areas
where tensions are evident every day of the year and become almost
unbearable at the height of the marching season. They come into
an area, form a "concerned residents group", bring in
their cohorts from outside the area to stage a protest and lay
claim to that street or area as another Republican street. The
Parades Commission meets, listens to their threats of violence
and civil unrest and agrees to stop the parade from entering an
area. What better source than the British Government's own Parades
Commission to support your territorial claim? Once a street has
been painted a particular colour, especially by the Government,
then the residents of the other tradition tend to up sticks and
leave.
PROPOSALS TO
MAKE THE
COMMISSION MORE
EFFECTIVE
The Commission's Workings
No one organisation and that includes the Sinn
Féin and the PIRA has done more to alienate the Northern
Ireland Protestant working man from the rule of law.
We have in the Parades Commission a government
quango, which has contributed more towards the destruction of
community relations in every area that it has legislated in than
any other body. It cannot be anything other. It lies between a
rock and a hard place and does not seem to want to move. Despite
attempts to give it a greater understanding of the nature of the
problem it has happily settled on becoming more a part of that
problem than part of the solution. It has the ability to improve
the quality of life in this country but instead of grasping the
nettle it has given sway to the threats of violence when making
its decisions. This has in turn led to threats and counter-threats
from all sections of the community each in turn blaming the other
and each in turn creating grudges, which eventually lead to ever
decreasing circles.
The Public Processions (Northern Ireland) Act
1998 created the Parades Commission and stated in Section 2
2(1) It shall be the duty of the Commission—
(a) To promote greater understanding by the
general public of issues concerning public processions
(b) To promote and facilitate mediation as
a means of resolving disputes concerning public demonstrations
(c) To keep itself generally informed as
to the conduct of public processions and protest meetings
(d) To keep under review and make such recommendations
as it thinks fit to the Secretary of State concerning the operation
of this act.
2) The Commission may in accordance with
the following provisions of this Act—
(a) Facilitate mediation between parties
to particular disputes concerning proposed public processions
and take such other steps as appear to the Commission to be appropriate
for resolving such disputes
(b) Issue determinations in respect of particular
proposed public processions.
3) For the purposes of its functions under
this section the Commission may with the approval of the Secretary
of State—
(a) Provide financial or other assistance
to any person or body on such terms and conditions as the Commission
may determine
These aims are laudable and had the Commission
stayed within its brief then I doubt the necessity for this document.
If we were to disregard (as the Commission has done) Sections
2(1) a, b, c, & d, 2(2)(a) and 2(3) a & b of the Act this
then leaves Section 2(2) b which in all truth is what the Parades
Commission believes is its only responsibility and its raison
d'être.
In view of the fact that the Parades Commission
is empowered by an Act of Parliament and determinations issued
by the Parades Commission are legally binding under the authority
of that Act, it must therefore follow that the process of deliberation
by the Parades Commission in reaching a conclusion should be the
same as the process used by every other person who is empowered
by Act of Parliament to deliberate and give judgement upon the
matter before them.
One of the fundamental cornerstones of the British
legal system is that an individual or group of individuals is
considered to be innocent of any particular offence until proven
guilty, be that proof beyond a reasonable doubt (as in criminal
law) or on the balance of probability (as in civil cases). However
before a person is liable to punishment under the law they have
certain inalienable rights which must be rigidly observed and
maintained. Among those rights are:
(1) The right to have prior knowledge of
any allegations made against them
(2) The right to legal representation throughout
the case
(3) The right of rebuttal of the allegations
prior to, during and subsequent to proceedings.
An examination of the Parades Commission's determinations
will show they have consistently flaunted these rights both before
and subsequent to our submission on this point in 1999.
Another point of concern is the fact that the
right of appeal under the Act is severely restricted. If the police
object about a particular decision they can ask the Commission
to review it. If after review the police are still unhappy with
the decision they can refer the matter to the Chief Constable
who has the right to apply to the Secretary of State for a review
of the decision.
The general public has not been made aware of
this right of review and in their procedural document the Commission
does not refer to it at all. They simply advise the public that
the Commission are empowered to review and alter decisions.
Another case of expediency versus truth.
On the matter of review we made our views known
to the Commission—again no response has been forthcoming.
The general rule in law is "he who asserts
must prove" and in practice this puts a much heavier burden
on the accuser than on the accused. Bearing in mind the fact the
Commission constitutes its own appeal body and any review of a
determination of the Commission would in all likelihood be heard
by the same people that considered the matter initially, then
it becomes vital that not only should the Commission act with
complete openness but also that it should be seen to do so. When
a determination is made in respect of a parade then that decision
must be the correct one from the outset with all facts and facets
completely investigated and fully investigated to the standard
required by law.
There exists a burden of proof on the Commission
to show that their decisions are correct not only in law but also
in justice. The fact that so many cases have been altered upon
review shows that this is not so.
A study of decisions handed down by similarly
empowered bodies has revealed that certain fundamental principals
have emerged which govern the decision making process of these
bodies and by which they must always be guided namely:
(a) It is the duty of the Statutory Body
to reach an independent decision on the matter before them in
accordance with the law and the evidence and with due regard to
the onus of proof. The personal feelings of the members on any
particular matter have no place in the adjudication process.
(b) In exercising their functions every member
of the Commission must act judicially, impartially and within
the limits of their jurisdiction. They are bound to the Act, code
of conduct, rules and guidelines even should they disagree with
them.
(c) The Act authorises a review only in the
case of fresh evidence or representations—it has no provision
for review in the case of a mistake as to a material fact. This
restriction only serves to remind the Commission of the importance
of getting it right first time. To achieve that goal it is important
that all of the evidence has been collected and collated and is
available for the consideration of the Commission. Once in possession
of the relevant information the Commission should then be able
to issue a determination, which is correct at the outset and should
not need to be reviewed at a subsequent date.
THE PARADES
COMMISSION MUST
BE PROPERLY
REDIRECTED AND
THE TRUE
INTENT OF
THE ACT
MUST BE
MADE EVIDENT
TO THE
EMPLOYEES AND
MEMBERS OF
THE COMMISSION
The Commission's Secrecy
One of the biggest problems surrounding the
Parades Commission is finding out why they acted in the manner
in which they did. They are good at telling you what to do but
not why you should do it. When you try to discover it for yourself
you are met with a mantle of secrecy that proves impossible to
break down. Ask a question and you are told that information given
to the Commission is confidential and cannot be disclosed. This
is understandable in relation to the source of the information
but surely not with the content.
WE THINK
THAT THE
PARADES COMMISSION
MUST BE
TRANSPARENT CONCERNING
ITS DECISIONS
AND ITS
DECISION-MAKING
PROCESS
The Commission's Staff
The Commission is empowered to employ staff
to assist in the daily running of their affairs. In this in particular
they have shown something that at best can only be described as
naivety and at worst mendacity.
In recent years we have encountered occasions
when the Parades Commission has been compromised by the actions
of its paid employees. In short I think it fair to say that we
are fairly unimpressed by the quality of the vetting performed
by the Parades Commission relating to its employees.
One senior member of staff has categorically
shown prejudice when he stated that this Association is "not
a major player" and as such was not worthy of serious consideration.
This despite the fact that we have never claimed to be of any
particular status but we have been consistent in the fact that
we are the only organisation representing bands which has offered
any sort of voluntary contact with the Parades Commission. In
any event is it only large organisations that have good ideas?
One observer identified a band that was not
at a parade as a culprit of some misdemeanour or other leading
to an incorrect proscription of that band. That decision had to
be reviewed.
One employee wrongly divulged information to
Sinn Féin/IRA concerning the identities of leading band
members.
Another employee could not bring himself to
seek the return of that document but accepted unsubstantiated
reports of the destruction of the document.
Another observer was seen in Maghera being collected
at the site of a contentious parade by the Sinn Féin member
of the Assembly for the area.
These people, suffice to say, have a duty to
be honest and impartial in the standard and content of their reporting.
We cannot be assured of this.
THE PARADES
COMMISSION MUST
ENSURE THAT
ONLY STAFF
OF THE
HIGHEST CALIBRE
ARE EMPLOYED
AND THAT
A COPY
OF ANY
REPORTS IN
RELATION TO
PARTICULAR PARADES
SHOULD BE
MADE AVAILABLE
TO THE
ORGANISERS
The Composition of the Commission
Much was said during the infancy of this Act
concerning the nature and composition of the Commission.
It was said that the Commission would be equally
balanced with a Chairman who would have a professional qualification
and at least six members—two from the Catholic tradition,
two from the Protestant tradition and two professional members
who presumably had no axe to grind. All fairly and evenly balanced—except—from
which Protestant tradition were the two representatives selected
. . . the part of Protestant culture that does not take part in
the marching tradition (usually the professional classes) or the
normal working man's section of our culture? It is the latter
that has the necessary understanding of our culture but inevitably
it is the former that will receive the appointment.
Hardly fair representation. This situation is
further compounded when one discovers that nowhere within the
legislation is this check and balance incorporated. Further reading
of the Act discloses that again the balance of the Commission
is not protected in the same manner as say our Assembly and decisions
can be taken when Commissioners from one side or other are in
the ascendancy. Again the secrecy of the Commissions workings
is highlighted by the fact that it is not made public who was
present and who was not, or how many Commissioners made the decision
or which side was represented. It is the uncertainty, which erodes
the decision—the right decision might be given for the right
reasons but unless the people are trusted with the truth we have
no way of knowing.
IT IS
OUR CONTENTION
THAT MEMBERSHIP
OF THE
PARADES COMMISSION
SHOULD NOT
BE A
POLITICAL AWARD
BUT RATHER
MEMBERS SHOULD
BE ELECTED
BY OUR
REPRESENTATIVES AT
STORMONT AND
SHOULD BE
ACCOUNTABLE TO
THE ASSEMBLY
AND THE
SECRETARY OF
STATE
226 Not reported. Back
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