APPENDIX A[230]
APPRENTICE BOYS
OF DERRY
Evidence presented by Mr Alistair Simpson, Governor,
Mr William Hay, Spokesman and Mr David Hoey, Advisor
1. Q 178—Mr Simpson states that the Parades
Commission ". . . has turned out to be a public order commission.
. . " and that ". . . the last determination that we
got for the parade in the Lower Ormeau was under the Public Order
Act that they were dealing with (sic). . . ".
Response
Section 8(1) of the Public Processions (Northern
Ireland) Act 1998 empowers the Commission to impose conditions
on public processions. By virtue of sub-sections (5) and (6),
the Commission is obliged to have regard to:
(a) The Commission's own Guidelines;
(b) Any public disorder or damage to property
which may result from the procession;
(c) Any disruption to the life of the community
which the procession may cause;
(d) Any failure to comply with the Code of Conduct;
and
(e) The desirability of allowing a procession
customarily held along a particular route to be held along that
route.
The Court of Appeal has confirmed that the Commission
is also entitled to take into account other relevant factors.
It is self-evident from the criteria listed
above that the Commission must take due account of public order
implications, although these will always be considered together
with other factors. The Apprentice Boys may have been misled by
the re-structuring of the determination to take account of the
European Convention for the Protection of Human Rights and Fundamental
Freedoms and its references to public order.
The parade in question is, I assume, the parade
by the Belfast Walker Club ABOD in Belfast on Saturday 11 November
2000. I attach a copy of the Commission's determination in respect
of that parade at Appendix A3 for information, together with a
copy of the review of that determination, at Appendix A4.
2. Q 179—Mr Hoey comments that he was
". . . rather surprised. . . when Mr Holland said that he
would have a problem with Article 6 of the Human Rights Convention,
which actually is the right to a fair hearing". He went on
to say ". . . we would say that our members would not necessarily
receive a fair hearing within a structured programme. . . it (the
Commission) must act responsibly within the law itself."
Response
There is some considerable confusion in the
position taken by Mr Hoey. First, there is the question of whether
Article 6 of ECHR applies. Is the Commission determining civil
rights? Our legal advice is that the Commission is not.
Second, there is the question of a "fair
hearing" which in the context of the Commission's deliberations
has little to do with Article 8. It is rather a basic issue of
fairness or natural justice. The question here is whether the
process is flawed in terms of natural justice. Of course the Commission
is not a court of law. But it would be impossible for the Commission,
in terms of personnel or in any other way to deal with full adversarial
hearings of the type with which a court might deal.
Mr Watkins, representing the Northern Ireland
Office, made this point to the Committee, when in response to
Mr Beggs (Q 328) he indicated that the Parades Commission is not
equipped for full adversarial hearings, particularly in the months
of July and August. Even if it were, the police advice is "expert
advice". It is perhaps best countered or challenged by other
expert advice.
Any person, having gone through the Commission's
own review procedures, may of course test any application in a
court of law, and several have done so.
I have attached the Commission's decisions on
the three notified parades by the Belfast Walker Club, on 24 April,
12 August and 11 November 2000, and the review of the decision
in respect of 11 November, to inform the Committee as to the Commission's
reasoning on those occasions. (Appendices A1, A2, A3 and A4 refer).
3. Q 180—Mr Hay, speaking of the Commission's
response to alleged threats of violence, states that "Because
of the threat of violence from the Balkside (Bogside) residents
group, they (the Commission) have decided to ban the Ormeau Road
parade".
Response
In fact, the Commission agreed, with some reluctance,
to hear from the Bogside Residents Group, who had requested a
meeting about the Belfast Walker Club parade on 11 November 2000.
The final decision taken by the Commission to re-route the notified
parade was not taken on the basis of any alleged or inferred threat
of violence from the Bogside Residents Group. The assumption by
the Apprentice Boys of Derry, that it was, is not based on any
factual evidence. The Commission cannot, as described by Mr Hay
"ban" a parade—the parade was, as already stated,
partially re-routed.
4. Q 181—Mr Hay, commenting on the
acknowledged fact that the Apprentice Boys have continually maintained
an attitude of remaining within the law, states that ". .
. unfortunately, the Parades Commission has used that, because
the residents group who threatens violence and in fact shows violence,
they come down on the side of that group".
Response
The Parades Commission has continually made
clear over the past three years that there will not be a veto
on Loyal Order parades by residents groups or others who may be
opposed to those parades. The Commission has approved parades
despite the threat of violence by opponents of parades, in the
knowledge that the Royal Ulster Constabulary have made it clear
that they will police whatever decision the Commission makes.
5. Q 189—Mr Hoey maintains that the
Commission, in upholding the freedom to a peaceful family life
as ensured by Article 8 of the Human Rights Convention, denied
freedom of assembly to those wishing to parade.
Response
It is important to differentiate between the
freedom to assemble and the right to parade, although there remains
a need for clarification on this point in legal terms. In the
determination relating to the Belfast Walker Club parade on 11
November 2000, no attempt was made to interfere with the right
of the Belfast Walker Club and other parading bodies to assemble
at the notified assembly point at Belfast City Hall. Rather the
Commission looked at the notified route of the Belfast Walker
Club to reach the city centre and, having regard to the criteria
mentioned in 1 above, decided to issue a determination.
6. Q 191—in responding to a question
from Mr Beggs as to whether the Parades Commission can espouse
both a mediation role and decisions on legally binding determinations,
Mr Hoey indicated that he saw severe problems in combining the
two roles. Mr Hoey went on to fault the Commission for setting
up a process on the Ormeau Road, which in his opinion created
difficulties with the dialogue which had been ongoing between
the Belfast Walker Club and the Lower Ormeau Concerned Community
(chaired by Avila Kilmurry). Mr Hoey later went on, (Q 201) to
speak of the Parades Commission "parachuting in" an
alternative process.
Response
The Commission was aware of what appeared to
be terminal problems in the Kilmurry process, which can be best
shown by the discussions which took place at the last meeting
between the Walker Club and the LOCC on 14 March 2000. (Pages
of the transcripts of those discussions are included with these
papers at Appendix A5). The essence of the transcript provided
is that the series of meetings between the two parties, totalling
13 meetings and over 1,100 pages of transcript, had made virtually
no progress. It was in light of this evidence that the Commission
decided to ask two people, not previously embroiled in the discussions,
to ascertain whether some form of agreement might be reached on
parades in the area in the short term. This might be regarded
as negotiations rather than discussions. Unfortunately it appears
that the latest efforts to breach the impasse on the Ormeau Road
may also have failed to achieve an agreement.
7. Q 192—Mr Hoey, commenting on the
reasons for the Apprentice Boys not having challenged determinations
in the courts, stated that ". . . with the courts largely
saying. `You may not have got to your determination the right
way. Think about having done it this way and go away and decide
whether it was the right decision after all,' and so the Commission
goes away and says, `Yes. It was the right decision after all'".
Response:
There is, with respect, an element of "fireside
law" apparent in Mr Hoey's comments. While he certainly appears
to have an idea what judicial review can, on occasion, involve,
he is totally incorrect in his summary of events. In fact, in
all cases where the Commission has been challenged in the courts,
the judicial reviews have gone in favour of the Commission. In
the case of Kilkeel, as quoted by Mr Hoey, the court's only comment
was that the Commission might reasonably have carried out more
extensive consultations prior to coming to its determination.
8. Q 204—Mr Simpson comments that
". . . on all parades of the Apprentice Boys, including the
main parade in Londonderry in August, the Parades Commission have
this habit of leaving everything until the last minute and it
heightens tension. . . I firmly and squarely put the blame on
the Parades Commission for being so long in bringing the determination
out. There should be no reason for that".
Response
The Commission is unequivocal in rejecting Mr
Simpson's perspective in this instance. The Parades Commission,
as recommended in legislation, endeavours to issue determination
five working days prior to a notified parade, and does so in the
majority of cases. However, there are occasions, and particularly
in Londonderry, when the Commission is aware that negotiations
are ongoing, frequently to the very last minute. On such occasions
it is not uncommon for the Commission to receive advice from those
most closely involved that a determination might destroy the chance
of the two parties to the disputed parade reaching an amicable
agreement. It is always the Commission's view that agreement is
preferable to what might be perceived as an arbitrary determination,
where such agreement is possible. In such cases the Commission
has indeed deferred from making a determination, but has always
made clear to the parties involved what the reasons are for such
a deferral. It is the policy of the Commission that such deferral
will normally only take place with the agreement and knowledge
of participants to any ongoing discussions.
ORANGE ORDER—GRAND
LODGE OF
IRELAND
Evidence presented by Mr George Patton, Mr Robert
Saulters, Mr Denis Watson and Rev William Bingham
1. Q 82—Mr Saulters stated that the letter
from the Chairman of the Parades Commission was a personal one,
and appeared to intimate that the letter which was forwarded to
him by Mr Holland was an attempt to put him (Mr Saulters) at odds
with the Orange Institution members.
Response
A copy of the letter is attached for the information
of members of the Committee (at Appendix A6). There was no intent
on the part of the Parades Commission to do anything other than
build a relationship with Grand Lodge. There was no personal letter.
2. Q 88—Mr Patton asserts that ".
. . there are now, what, something like 295 possibly contentious
routes".
Response
The figure quoted earlier in evidence referred
to 295 contentious parades—there are certainly nothing like
295 contentious locations. The figure relating to locations where
the Commission must consider contentious parades would be in the
region of 30.
3. Q 115—Mr Saulters states that "And
that is one thing that the Parades Commission demands, that we
talk to the residents groups. There is no point".
Response
The Commission does not insist on direct dialogue
between Loyal Orders and residents groups in every area on every
occasion. There is however little doubt that dialogue involving
a constructive exchange of views, and an inherent message that
there is an element of respect for opposing views, would be an
extremely positive factor on almost all occasions.
4. Q 115—Mr Patton was asked by Mr Grogan
about the lack of input from the Orange Order to the Commission,
and how that may have affected the Commission's ability in "promoting
the understanding by the general public of the issues concerning
public processions, promoting and facilitating mediation, and
keeping itself informed as to the conduct of public processions
and protest meetings. Responding, Mr Patton commented: "I
would have to say, in my view, they have failed in all three".
Response
The Commission has been actively involved, in
a variety of ways, in fulfilling the functions laid down by Parliament
and outlined by Mr Grogan. The degree of success attained will
obviously be open to debate, but on the question of mediation
it is true, as suggested by Mr Grogan, that the active participation
of all parties would facilitate a greater degree of mediation.
It is indisputably more difficult to mediate when one party will
not negotiate with either the mediator or the party with whom
they are in dispute. However, there have been many instances where
mediation has been employed and has had varying elements of success.
Although these "success stories" do not hit the headlines,
in part due to the detrimental effect that publicity might have
in comparison to quiet conciliation, they do take place.
5. Q 116—Mr Clarke asked whether,
given demographic changes, it was reasonable to expect that "traditional"
parade routes should be "set in stone". Responding,
Mr Patton inferred that the main contested routes were on arterial
routes which did not involve parades processing through residential
areas.
Response
The Commission has attempted to maintain a "neutrality"
about town centres, where the buildings are for the most part
commercial. However, the point made by Mr Clarke concerning demographic
changes over a period of years was well made. Difficulties have
arisen on "traditional" routes due to demographic changes
and it is the Commission's viewpoint that such difficulties should
be addressed by parade organisers if they are to be overcome.
While many parades do take place along arterial routes, parades,
by their very nature, will create an element of disruption to
those living in the vicinity.
6. Q 118—Mr Patton, responding to
a question from Mr Clarke concerning whether the Loyal Orders
would be content if nationalist parades were forced through loyalist
areas, stated that ". . . there is very, very little evidence
of opposition by loyalist and unionist people, and I dare say
none by the Orange Order, to nationalist parades".
Response
It would be fair to point out that nationalist
parades, generally speaking, do not parade outside nationalist
areas. On the few occasions that they do enter largely loyalist
areas, such as Kilkeel, there is a degree of opposition.
7. Q 122—Mr Patton comments that "I
think the power of veto that has been given to those who threaten
violence by the Parades Commission, is the single biggest factor
in the rise of the difficulties that we have had".
Response
I refer the reader to my comments under item
4 of the responses to the Apprentice Boys of Derry. The Parades
Commission has continually made clear over the past three years
that there will not be a veto on Loyal Order parades by residents
groups or others who may be opposed to those parades. The Commission
has approved parades despite the threat of violence by opponents
of parades, in the knowledge that the Royal Ulster Constabulary
have made it clear that they will police whatever decision the
Commission makes.
Q 123—Mr Watson, commenting on the unfortunate
incident last year when details of parade participants names were
inadvertently faxed to a third party, stated that ". . .
this is not the first time this has happened,. . . . We have evidence
in Portadown that it happened in 1998-99, when. . . information
of that evidence was given to IRA activists in Portadown. . .
".
Response
The Parades Commission has no knowledge of the
incident referred to.
PORTADOWN LOYAL
ORANGE LODGE
NO 1
Evidence presented by Mr Nigel Dawson, District
Secretary, Mr David Burrows, Deputy District Master and Mr Richard
Monteith, LLB Portadown District LOL No 1.
1. Q 477—Mr Monteith commented that ".
. . they (the Parades Commission) base their findings on, first
of all, anyone who wants to come and speak to them and present
whatever point of view they want and, secondly, their Authorised
Officers and, thirdly reports from the police. . . . If the Parades
Commission are basing their information on largely objectors and,
secondly, those Authorised Officers who supply them with information
there is no means of checking that information and it is open,
really, to what anyone wants to tell them."
Response
The inference from Mr Monteith, that unsupported
evidence from persons objecting to parades in some way counts
for more than evidence received from, for example, the police,
is untrue and unsubstantiated. The Commission will seek to verify
any claims made with other parties, often the police, and will
weigh all evidence before coming to a decision. It goes without
saying that the Commission would welcome regular and participative
input from the Loyal Orders to assist with decision making. The
Commission has, over the past year and in previous years, met
with all interested parties to the Drumcree dispute on a regular
basis, including Mr Monteith as the Portadown District LOL No
1 legal advisor, and has taken evidence from these parties.
2. Q 479—Mr Monteith asserts that
". . . there simply has not been any attempt to facilitate
mediation by the Parades Commission of Portadown whatsoever".
Response
The Commission has been particularly active
in promoting mediation in that the Chairman has had frequent meetings
with Mr Monteith, Mr Campbell and others to discuss and encourage
them in finding ways forward. These meetings culminated in proposals
that could form the basis of another party's mediation. The Commission
notes also that there has rarely been an occasion over the last
three years when some meditative effort, whether sponsored by
the Prime Minister, the Northern Ireland Office or Mr Brian Currin,
has not been active. It would have been foolish for the Commission
to undermine these efforts with a separate attempt to mediate,
particularly when there has been no willingness from the Loyal
Orders to engage with the Commission on this or any other basis.
With regard to the current efforts by Brian Currin to resolve
the Drumcree dispute, the Commission has made its support for
Mr Currin explicitly clear. As I have stated elsewhere in this
letter, the Commission, while denied the opportunity to speak
directly to the Portadown District LOL No 1, has endeavoured to
persuade them, through the media, to follow the route map outlined
in the determination on last July's main Drumcree parade, and
clarified in the Belfast News Letter on Wednesday 5 July 2000.
(Please see Appendix A7 attached).
3. Q 479—Mr Monteith affirms that
the Parades Commission affords a "veto" to the residents
groups, based on the likelihood of disorder.
Response
The same response is appropriate as pertains
to item 4 of the responses to the Apprentice Boys of Derry, and
item 5 of the responses to the Grand Orange Lodge of Ireland.
4. Q 497—Mr Dawson asserts that the
nationalist bands who notify to parade in Kilkeel do not come
from the town, and that this in some way equates to the Portadown
situation.
Response
The nationalist bands who paraded in Kilkeel
last year and throughout recent years on 17 March and 15 August
are all from the area known locally as the "Kingdom of Mourne",
and would originate in the wider Kilkeel area. The Commission
took a rights based approach. Given the demographics of the towns
and the overwhelming frequency of parading by one side of the
community. It was important to set a marker of shared space and
the need for co-existence by permitting a nationalist expression
of their belonging. Moreover the route paraded was very much a
non-residential area. It has long been a point made by the Commission
that it sets commercial areas as neutral areas.
First Minister, Mr Trimble, and his advisor Mr
David Campbell.
1. Q 428—Mr Trimble comments that he is
not directly aware of things done by the Commission to actively
mediate any specific case.
Response
First, the Commission is empowered to promote
and facilitate mediation. Much of its work is concerned with this,
whether that is in support of Brian Currin's work in Portadown
or through the work of Authorised Officers or Mediation Network
elsewhere. Even the encouragement of shorter term initiatives
as occurred in Lower Ormeau recently is with a view to progressing
to longer term mediation.
Following the Commission's determination on
Drumcree last year (Appendix A8), and the Review of that decision
(Appendix A9), the Chairman wrote in the Belfast News Letter (Appendix
A7), drawing up a "route map" which pointed a clear
path for the Portadown District LOL No 1 to take which would make
a parade more than a possibility.
In the Drumcree dispute, the Commission met
with Mr Trimble and Mr Campbell prior to the decision in an effort
to reach a better understanding of efforts which Portadown District
LOL No 1 had stated they had made to reach agreement. The Chairman
has also had meetings with Mr Trimble and Mr Campbell in a effort
to find a way forward.
230 Quotations of the oral evidence in this Appendix
are taken from uncorrected transcripts, supplied to the Commission
as a prospective witness. They may therefore differ slightly from
the corrected versions published in this volume. Back
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