APPENDIX 2
Supplementary memorandum submitted by
Sir George Quigley
REPORT'S PROPOSALS REGARDING POLICING
1. Judging by some media coverage and reported
comments, there is considerable misunderstanding about the impact
of my proposals for the role of the police.
2. To recap, the Report distinguishes two
questions regarding parades. First, can the right to freedom of
peaceful assembly be exercised without giving rise to the need
for some restriction in order that the rights and freedom of others
may be protected? Second, where a right is recognised by the Panel,
are there public safety etc considerations which require that
the right be restricted?
3. The Report further argues that the examination
of each of these two questions calls for a different competency.
The first question, which the Report regards as basic, since it
deals with potential conflict of rights issues between parties,
is a matter for the proposed new Rights Panel. Public safety etc
issues are for the police.
4. The North Committee recognised that the
police did not have the competence to deal with non-public order
issues but then gave the decision-making power not only on these
issues but also on public order issues to a single body, the Parades
Commission. Public order was cited by the Commission in a recent
year as a criterion for its decisions in 89% of cases and poor
community relations (often described in decisions as creating
the potential for public disorder) in 94% of cases. The question
of whether a peaceful parade would adversely affect the rights
and freedom of others is rarely directly addressed. It has therefore
been easy for those unsympathetic to the Commission to characterise
it as a Law and Order Commission, which was precisely what North
wanted to avoid.
5. Interestingly, North, followed by the
1998 Act establishing the Commission, left with the police all
issues regarding protest meetings (as distinct from protest marches)
the nature of which can be a very sensitive aspect of some parading
situations.
6. My proposals place the relevant functions
in respect of both parades and protests with those competent to
deal with them: conflict of rights with the Rights Panel and public
safety etc with the police, who would be obliged to see the Panel's
decision implemented unless they had to impose a restriction on
public safety etc grounds.
7. Before reaching my Recommendation on
this division of functions, I set out fully the reasons why I
preferred it to the alternative of preserving the current arrangements
(with all aspects handled by a single body) and I explained precisely
what the import of my Recommendation was.
8. There has, nonetheless, been confusion
and misunderstanding, typified by the comment of the Policing
Board for Northern Ireland that what I propose would place the
decision-making power back with the police. This misses the point
and is an inaccurate and misleading characterisation of my Recommendation.
The Report makes clear (p 233) that the police would be involved
in the implementation, not the making, of the decision and would
not therefore have the dual role which was regarded as an unsatisfactory
feature of the pre-Parades Commission situation.
9. It has been argued in favour of the status
quo that the police must be in a position of neutrality and that
the approval of parades cannot be devolved to the police. I support
both propositions and my proposal breaches neither.
10. Under present arrangements, the police
have a covert input to the information on which the Commission
takes its decision. The decision may or may not reflect police
advice but the police are obliged to implement the decision unless
the Chief Constable has recourse to the Secretary of State under
Section 9 of the 1998 Act.
11. Under my proposals, the police, as now,
would implement the decision of the decision-making body, which
for the future would be the Rights Panel. They would have no input
to the Panel because they have no competence on the conflict of
rights issues with which the Panel would be exclusively concerned,
just as the Panel would have no special competence on public safety
etc issues.
12. There should be a presumption that a
right recognised by the Panel would be protected. I cite authority
for that proposition at pages 225-7 of the Report, which also
indicates circumstances in which it might not be possible for
the police, on public safety etc grounds, to protect the right,
which would then have to be restricted on those grounds by the
police.
13. As the Report makes clear, a culture
of rights (which embraces the rights both of those who parade
and of those who protest) is meaningless unless underpinned by
the rule of law and a network of mutual obligation. Our support
for the notion of a culture of rights cannot be confined only
to those occasions when, in a conflict of rights situation, it
delivers what we want. The proposals in the Report, building in
as they do a statutory opportunity for objections to be registered
and a carefully structured, transparent 2-stage process for dealing
with those objections (focusing primarily on obtaining settlement
through facilitation), should create a context which progressively
nurtures on all sides respect for the culture of rights.
14. As the Chief Constable has said, the
PSNI is ideally placed to give an objective risk assessment in
regard to parades. If, having made such an assessment, the police
concluded that they could not in any particular case protect the
decision by the Rights Panel, they would (like any other Police
Service throughout the world) impose such restrictions on a parade
as they deemed necessary on public safety etc grounds. This would
not affect the existence of the right recognised by the Panel
but it would curtail its exercise. They can of course do this
at present under section lO of the 1998 Act which confirms the
common law powers of a constable to take action to deal with or
prevent a breach of the peace.
15. Under my proposals, the police would
be publicly accountable. This chimes well with the current emphasis
on the need for accountability in the new policing era.
16. Any policy issues regarding the policing
of parades (eg relating to priorities, given other pressing demands
on the PSNI budget) could be dealt with by the cross-community
Policing Board. According to recent media reports, the Board will
be reviewing the police's handling of flashpoint parades as part
of a general audit of strategy, planning and handling of public
events. The Northern Ireland Affairs Select Committee's current
inquiry will presumably cover the issue of the overall cost of
policing parades. It was clear from what I was told by the police
during my Review that in some cases the unit costs (ie total costs
in respect of a contentious parade, expressed as cost per person
parading) are much higher than would be deduced from the figure
of £20,000 cited in the Parades Commission's 5th Annual Report
as covering the policing necessary for a parade of 500 in an interface
area on a Saturday evening.
17. It has been suggested that my proposals
would increase the likelihood that those out to make trouble would
try to get at the police and set them up, leading to confrontation.
This can happen now when police have to implement an unpopular
decision of the Parades Commission. It is difficult to understand
why it should be any more likely to happen if the police were
implementing a Rights Panel decision into which (unlike Commission
decisions) they would have had no input. Logically, the likelihood
should be diminished.
18. Under my proposals, the Secretary of
State, in circumstances where the police were disposed to see
the decision of the Rights Panel implemented, would have a reserve
power to re-route a parade where he decided that this was necessary
in the interests of national security or public safety or for
the prevention of disorder or crime. This residual power should
only have to be used in the most exceptional of circumstances.
19. The Report emphasises the vital point
that neither the police nor the Secretary of State would be able
to legitimise a parade which the Rights Panel had ruled would
infringe the rights and freedom of others.
20. Since public order decisions have to
be taken close to the event, to continue having conflict of rights
and public safety etc issues dealt with by a single body would
entail continuing to cram the decision-making process into a short
period of time, thereby making it difficult to have the much more
carefully structured process, conforming to the canons of natural
justice, for which the Report argues. On my proposals, the Rights
Panel could make its decision well ahead of the event and, indeed,
for a period longer than that marching season, leaving it to the
police to take an informed view on the public safety etc situation
closer to implementation.
21. We have entered what is intended to
be a new era for policing. Unless PSNI carves out a new identity
for itself, and is prepared to take the decisions which it properly
falls to an accountable police service to take, it will not succeed.
It will gain increasing respect, acceptability and community confidence
not by evading the difficult decisions but by the professional
way it takes them and brings others along with it in taking and
implementing them in conformity with human rights standards. The
police, like all the other players, have to be compliant with
the European Convention on Human Rights.
27 January 2004
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