House of Commons - Northern Ireland Affairs

Select Committee on Northern Ireland Affairs Written Evidence

APPENDIX 11

Memorandum submitted by Democratic Dialogue

In an earlier submission to the Northern Ireland Affairs Committee, Democratic Dialogue suggested how the Parades Commission's "Guidelines" document might be revised so as to lay down clear parameters in relation to the interpretation of the European Convention on Human Rights (ECHR)[22]. It argued that the Quigley review failed to address the question of how international human rights standards ought to be interpreted, and that it was vital that a clearly marked threshold for intervention by the determining body should be established. Moreover, it proposed that this default position should be defined in terms of:

— the type of behaviour protected by a right to freedom of "peaceful assembly";

— what is a sufficiently "pressing social need" to justify restrictions being placed upon its exercise; and

— the boundaries of the rights and freedoms of others in the context of public assembly.

The primary objective of such changes to the Commission's "Guidelines" would be to narrow the space in which the protagonists on either side of disputes are able to use the rhetoric of rights. This submission pursues that same goal. It argues, however, that revised "Guidelines", of themselves, will not maximize the contribution which "rights" can make to the long-term resolution of parade disputes. Instead, new Guidelines must be accompanied by revised procedures which prioritise the rights issues, thereby setting the agenda for any subsequent dialogue between the parties.

The proposals described below (and illustrated diagrammatically) attempt to address a number of the criticisms of the Parades Commission made by Sir George Quigley. In particular:

— the lack of transparency in the Commission's procedures;

— the Commission's failure to consistently apply the concept of "engagement".

They have also been designed with two further fundamental criticisms in mind. Namely, that the Commission's existing procedures:

— Relegate the "rights" issues almost to an afterthought.

— Restrict the capacity of mediators to intervene in complex community disputes because their remit is limited exclusively to parades.

I hope that the attached proposals will be of some assistance to the Committee in its discussions. They are intended to provide one possible alternative model to that proposed by the Quigley Review, whilst not entailing such "root and branch" reform. Most of the suggestions outlined here could be implemented by revising the Commission's "Procedural Rules" without amending the Public Processions (NI) Act 1998.

10 October 2003

AN ALTERNATIVE TO THE MODEL PROPOSED BY THE QUIGLEY REVIEW?

A COMMISSION FOR PEACEFUL ASSEMBLY (CPA)

The statutory notification period, and formal evidence gathering sessions

Following the example of the Commission's 16 evidence gathering sessions in 1998 (which were held, on average, 124 days before the date of the parade) re-introducing such sessions could provide a trigger (if one is necessary) for independent mediators to become involved. This would avoid the dramatic increase in the statutory notification period recommended by the Quigley Report. The holding of such evidence gathering sessions would also increase the overall transparency of the Commission's work. Transcriptions of each session could be provided to all interested parties, and copied to the independent mediation agency (see further below).

A Preliminary Determination on the Validity of the Parties' Rights Claims

At present, the Parades Commission's procedures introduce the provisions of the ECHR only at the final determination stage. Even then, parties often view the expository section of determinations as meaningless. These routinely cite particular rights without explaining how, precisely, they are affected in the circumstances. As was argued in Democratic Dialogue's earlier submission to the Committee, when the language of rights becomes a legal gloss which is used to render decisions immune from legal challenge, this serves only to embolden parties, encouraging them to adopt the rhetoric of rights to defend entrenched positions.

In order to maximise the contribution which a rights framework can make to the resolution of parade disputes, the parties' rights claims must be more closely scrutinised. The procedure for adjudicating on parties' claims must, therefore, provide an opportunity for such scrutiny. Moreover, this scrutiny must take place early on in the process. An initial judgement on the validity, or otherwise, of the rights claims made would help to clarify and frame the areas on which local agreement must be reached if an imposed determination is to be avoided.[23]

The procedure outlined in the attached diagram gives primacy to this initial assessment of the validity of the rights claimed by the event organiser, and the potential conflict entailed by any equally valid rights claimed by those who live or work in areas through which parades pass. It is premised on the argument that it is unsatisfactory for the adjudicatory body to play upon the indeterminacy of the legal criteria in a bid to provide an incentive for the parties to engage in dialogue (noting that successive reviews of the Parades Commission—including the Quigley Review—have criticised the Commission's use of the concept of "engagement").

While it might be argued that a preliminary determination would remove the incentive for one or other party to engage (in the belief that they have already got what they want), the Commission's role ought to be the application of determinate human rights standards to local disputes, laying down clear parameters regarding "peaceful assembly" and "the rights and freedoms of others". While there can be no substitute for voluntary direct dialogue, the Commission should not be in the business of requiring parties to engage as an end in itself, irrespective of the rights issues. Indeed, the concept of engagement is devalued when dialogue is forced upon parties in situations where there is no valid rights case to answer.

It is recommended, therefore, that the adjudicatory body should aim to publish a preliminary determination on the validity of the various rights claims and on the "necessity" (in Northern Ireland's "democratic society") of imposing restrictions, within 14 days of notice having been received. In some ways, this would represent a return to the idea of issuing a preliminary view on contentious parades. Residents' groups, for example, have argued that the Commission's decision not to issue a preliminary view after 1998 "was a mistake which has encouraged the Loyal Orders to engage in last minute PR stunts rather than seriously addressing clearly defined problems associated with their parades."[24]

Referral to an Independent Mediation/Conciliation Service

There are a number of drawbacks in having a team of mediators (ie the Commission's Authorized Officers) dedicated solely to the parades issue. It is suggested that an independent agency should be tasked with pursuing the ideal of "local accommodation" on a whole range of issues pertaining to the marking of territorial boundaries (including flags, murals and other local disputes).[25] Parade disputes occur within a particular local context and cannot easily be isolated from other ongoing issues. Furthermore, dealing with such issues together could provide a more effective way of co-ordinating third-party interventions (particularly given the frequent concurrence of a number of local disputes at any given time), would mean that mediators were more in touch with local developments, and by insulating the mediators from the adjudicatory process, would increase the likelihood of meaningful engagement rather than short term positioning. One possibility, would be for the Community Relations Council (CRC) to take a more proactive role in co-ordinating such work. The CRC has itself argued that:

If—at the Preliminary Determination stage—restrictions were deemed necessary, the adjudicatory body could refer the parties to an independent mediation/conciliation service, thereby holding out the prospect of a voluntary local accommodation. This would serve to affirm "the idea of participating in mediation" whilst preventing such participation being viewed "as a box-ticking activity to curry favour with the Commission."[27]

The focus upon rights claims, however, should not be limited to the adjudication stage.[28] Rights should be seen as integral to the entire process of managing and resolving conflict around parades, including mediative interventions. While the primary purpose of mediation is not generally to educate the parties involved, such interventions could seek to build an understanding of the value and meaning of rights.[29] Mediated dialogue might then explore the "rights and freedoms of others"—how, in the particular context, are these rights being infringed, and what could be done to prevent such infringement? Indeed, it is likely that there will be more than one possible solution to any given conflict of rights—as the legal theorist, Jeremy Waldron, has stated:

Such meditative efforts might also serve to correct any misunderstandings between the parties which the Preliminary Determination may, itself, have caused.

Possible Review Hearing

If mediation/conciliation is successful in helping the parties reach an agreement about how the conflict of rights, as specified in the Preliminary Determination, can be addressed, the adjudicatory body would simply be notified that agreement had been reached, and the Preliminary Determination would be rescinded. If no agreement is found, the Preliminary Determination would be confirmed unless new material evidence (ie evidence not cited in the Preliminary Determination) was presented to the Commission. In the event of new evidence being submitted, the Commission would convene an informal hearing before deciding whether to confirm or amend the Preliminary Determination.

A decision not to impose restrictions could be challenged in the same way as a decision to impose restrictions by anyone with a sufficient interest in the case.[31] Applications for any such review should be lodged at least 5 days before the date of the event.