House of Commons - Northern Ireland Affairs

Select Committee on Northern Ireland Affairs Written Evidence

APPENDIX 15

Memorandum submitted by the Garvaghy Road Residents Coalition

EXECUTIVE SUMMARY

Garvaghy Road Residents Coalition is an independent community-based organisation established in Portadown in 1995. During the course of the past eight years, we have advocated and campaigned for change to the manner in which contentious marches in the North of Ireland are held and governed. During this period we have dealt directly with the current British Prime Minister and four consecutive Secretaries of State, as well as with consecutive Irish Governments, including two Taoisigh, on this matter.

We welcome this opportunity to respond to the report of the Review of the Parades Commission and the Public Processions (Northern Ireland) Act 1998. This summary contains our main proposals and the headings they are to be found under in the main body of our response.

In the rest of this submission we fully outline our concerns and proposals and we append a copy of our original proposals to the Review itself.

It will be apparent from this paper that we favour the first option outlined in paragraph 15 of the Executive Summary of the Quigley Report, which is to primarily leave things as they are and to allow the Commission more time to achieve its ends. We do not believe that the Parades Commission and its manner of operation require the substantial alteration as the Report suggests. However, we do put forward a number of proposals in this paper which, we believe, will strengthen and enhance the existing Commission and ensure its acceptance among all sections of the community.

We are also in favour of option two (paragraph 16 of the Report's Executive Summary), under certain circumstances, which is to ban certain contentious marches in specific areas for a specified length of time.

The Good Friday Agreement, human rights and proposed changes to legislation

The European Court has explicitly stated that the Convention is to be read as a whole, and that therefore the application of any individual Article must be in harmony with the overall logic of the Convention.

It is our belief that the Report's interpretation of, and its recommendations in relation to, Article 11 of the ECHR are extremely, if not fatally, flawed. In our view, the government should not countenance any such piecemeal application of the Human Rights Act which could undermine the spirit and purpose of both the Convention and the Good Friday Agreement.

We propose that, with the exception of the "traditionality" clause, the existing criteria should be retained.

We welcome the proposal at paragraph 15.18 of the Report to drop the current provision in section 8(6)(e) of 1998 Act regarding traditionality.

Ensuring confidence in the independence of the Parades Commission

We believe that the issue of the independence of the Commission can be addressed to the satisfaction of all through the following proposals:

(a) The Parades Commission:

— In order to introduce an external element into the process of recruitment and selection of Commissioners, the Irish and British Governments would jointly appoint three independent assessors to actively oversee and report on the recruitment/selection process. (In the event of the return to devolved government, the Office of the First Minister/Deputy First Minister would also be involved along with both governments);

— The independent assessors' reports would also be made available for public scrutiny;

— Membership of the Commission would last for a maximum of five years;

— In order to ensure continuity of experience, members would be selected and recruited on a rotational basis, and

— The Commission's make-up should at all times reflect the demographics of the North of Ireland.

(b) Commission staff:

— The practice of secondment of civil servants to the Commission from other government departments would totally cease, and

— All staff and personnel positions will be filled through an open recruitment policy in accordance with fair employment practice.

Engagement/facilitation/mediation

We agree, in principle, with the Report's view that the engagement or facilitation role must be strengthened and separated from the adjudication function.

We propose the creation of a dedicated unit within existing Commission structures staffed by properly trained personnel with proven expertise and wide experience in the field of facilitation/mediation and conflict resolution. This dedicated unit would act under the direction of, and report to, a senior Commissioner (possibly the vice-chairperson). In order to prevent conflict of interest and avoid duplication of roles, that senior Commissioner, as director of facilitation/mediation and conflict resolution, would play no active role in any adjudication process.

Openness and transparency

We propose that:

— All parties to a dispute, including the police, should be initially asked to present formal written submissions, setting out their areas of concern along with relevant evidence, to the Commission. The Commission would then furnish all parties to a particular dispute with consolidated and summarised copies of all submissions made by organisations and/or individuals opposing or favouring a march. While the identity of organisations should be disclosed, the identity of individuals would not be, unless with their prior agreement.

— All parties, knowing each other's position, would then be invited to individual hearings with the Commission. Not only would the Commission cross-examine each party on its own position paper, but each party would also be in the beneficial position of being able to reject or refute allegations or evidence presented to the Commission by the other party or parties.

— Having considered all evidence and rebuttals, the Commission would then adjudicate upon the matter and issue a determination including, in that, a clear and concise summary of all evidence received and substantiated by it.

— A similar process would be carried out during the review stage.

We propose:

— That the deadline for submission of notice of a parade should be extended to not less than 42 days.

— If there is to be an exception to the above, we submit that parade organisers who breach the deadline be required to show a satisfactory reason for that breach.

— That no bands are authorised to participate in a parade other than those identified at the time of submission of the formal notification.

— That in the case of contentious parades, original determinations by the Parades Commission shall be decided and made public no less than 21 days prior to the date of any proposed march.

— In order to permit citizens the exercise of their right to legal remedy or redress through the courts, the Parades Commission should have the power to review its earlier conclusions, provided that such a review should be completed and the conclusions made public no less than 14 days before a proposed march.

— That the powers of Chief Constable and the Secretary of State be amended as follows:

(a) The intervention powers of the Chief Constable be removed.

(b) If the Secretary of State has reason to be seriously concerned about a determination of the Parades Commission, it would be open to the Secretary of State to reconsider the Parades Commission's determination under the same statutory criteria as that body had applied and to issue a revised determination. Such a revised decision must be reached no later than seven full days before a proposed march in order to permit citizens the exercise of their right to legal remedy or redress through the courts.

(c) Before the Secretary of State issues a revised determination, he must consult with the Parades Commission and all other interested parties.

Monitoring of parades and policing of parades

We propose:

— That the work and membership of the monitoring team be extended to ensure the effective monitoring of compliance and non-compliance with determinations, and the reporting, in writing, of all incidents of non-compliance with determinations by parades organisers, participants or supporters, to the Commission. In order to ensure transparency and openness, copies of these reports should be open for public inspection at the Commission's offices.

— That these parade monitors work completely independently of the police, as monitoring of policing operations before, during and after parades should form part of their duties. In this regard, and where breaches of legally-binding determinations have occurred, it will be part of this team's tasks to monitor any immediate or follow-up actions by the police (including establishing if any processes for prosecution are initiated) and to fully report their findings, in writing, to the Parades Commission. Again, these reports should be open for public inspection at the Commission's offices.

— That these reports be accepted by the Commission as evidence with regard to future applications for parades.

We propose amending the appropriate legislation to extend the remit and powers of the Police Ombudsman's office in order to examine police operational matters in this regard.

We also propose that a permanent member of that office's staff be appointed to liase with the Parades Commission in order to deal with complaints or issues raised through that forum.

Enforcement

We propose that:

— Where there have been repeated instances of non-compliance with determinations and/or the code of conduct, and/or violence by march participants, the Parade's Commission should be empowered to reach and promulgate conclusions in relation to one or more parades in an area and to do so where appropriate for a minimum period of one year and a maximum period of five years.

— That it be a legal requirement for the Parades Commission and Police Ombudsman's Office to record information on parades in detail and monitor the police force's impartiality, fairness and effectiveness in ensuring compliance with the Commission's determinations.

Public safety

— We are fundamentally opposed to the proposal that the police, rather than the Parades Commission, should decide whether or not restrictions should be placed on a parade on public safety grounds, with the Secretary of State being empowered to review the police decision.

INTRODUCTION

We welcome this opportunity to respond to the report on the Review of the Parades Commission and the Public Processions (Northern Ireland) Act 1998. However, we again express our previously published concerns that the review itself appears not to have been motivated by any real need for a review of the existing Parades Commission or associated legislation, but that it arose out of the Weston Park talks in 2001 as a concession to those Unionist parties who oppose any restrictions on the small percentage of loyal order marches in Northern ireland that have been contentious.

We also note that this Review conducted by Sir George Quigley followed a similar review conducted in 2000. On the surface, this seems at odds with the two Governments' publicly stated view that the Commission has enjoyed "four successful years of operation against a difficult background".

We broadly welcomed the Report of Independent Review on Parades and Marches in 1996 that was established as a result of events that occurred primarily in Portadown, but also elsewhere, in July 1996. GRRC also expressed some scepticism about the need for a Parades Commission, believing that Government was merely abdicating from its responsibility and duty in law to uphold and protect the rights of minority communities from the threat of fear, and violence.

Nevertheless, in our view, the Parades Commission has succeeded in introducing an element of fairness and consistency into decisions about contentious parades that was noticeably absent when such decisions were taken by the RUC, the Secretary of State, or the courts prior to the setting up of the Commission. That is not to say that we have totally agreed with determinations made in relation to contentious marches in Portadown or elsewhere. While GRRC, and other residents' groups, have unsuccessfully taken judicial reviews of several of the Commission's determinations, it is noticeable that none have been instigated by the legal representatives of the Orange Order in Portadown—the most vociferous opponents of the Parades Commission—even though the Commission's reasons have been set out so fully, and when published within the requisite period, to allow for a challenge. We believe that our failure in those judicial reviews may have been due to a reluctance and lack of will on the part of the judiciary to interfere in what they saw as primarily a political problem. Others could equally argue that this lack of censure by the courts is evidence of the efficiency of the Parades Commission.

Nevertheless, there can be no doubt whatsoever that the Commission has succeeded in changing the climate in which such contentious marches occur. Prior to 1998 when the Commission became operational, decisions previously made by the RUC, the Secretary of State, and the courts were clearly improperly influenced by political considerations in relation to contentious marches which had been a focus for sectarian tensions and violence over successive generations. Had that not been the case, there would have been no need for the British Government to establish the Independent Review of Parades and Marches in 1996, or for the subsequent establishment of the Parades Commission.

It is against this background that we have considered the present review to be unnecessary and largely unhelpful.

We are also in of favour option two (paragraph 16 of the Report's Executive Summary), under certain circumstances, which is to ban certain contentious marches in specific areas for a specified length of time. Indeed, this view is entirely consistent with one of the original recommendations arising from the Independent Review of Parades and Marches. The Parade's Commission should be empowered to reach and issue determinations in relation to one or more parades in an area and to do so where appropriate for a minimum period of one year and a maximum period of five years, as the ultimate sanction against non-compliance with legally-binding determinations. We deal with this and the issue of penalties for non-compliance in Section 7.

As for the third option, change as described in paragraph 17 of the Report's Executive Summary, we regret to say that the proposals contained in the report will not, in our view, achieve the "considerable acceleration in the trend towards local accommodation" that the report envisages. Nor do we believe that a suitable or viable alternative to the existing independent Parades Commission has been brought forward by this Report. Instead, we fear that the majority of proposals, if adopted, will lead to a return of the pre-1998 situation, will only serve deepen existing tensions and will re-create the potential for widespread inter-communal unrest during the "marching season".

We do, however, support the objective of strengthening the facilitation/mediation role in relation to contentious parades, but we differ from the Report on how this can be achieved.

In the rest of this submission we outline our concerns and proposals in detail.

1. THE GOOD FRIDAY AGREEMENT, HUMAN RIGHTS AND PROPOSED CHANGES TO LEGISLATION

The importance of the Good Friday Agreement—with its principles of equality and parity of esteem defining the nature of democracy in the North of Ireland and its progress towards conciliation between the traditions—must be the constitutional context and framework within which all legislation must be applied and interpreted. We are of the view that, in relation to any consideration of changes in legislation dealing with the governance of contentious marches in the North of Ireland, the British Government must give full consideration at all times to the Agreement signed between it and the Irish Government in 1998.

In particular, the government should be mindful of its stated duty in that document to ensure the protection of the right of people to live free from sectarian harassment, in the same manner that the rights of ethnic communities to live free from racial harassment are protected by law in England, Scotland and Wales.

Although the Quigley Report correctly identifies the fact that a number of different human rights are concerned in the issues raised by contentious parades, and that some of these rights conflict, we disagree with the Report's approach to and analysis of human rights issues.

We firmly believe that the recommendation contained in paragraph 15.13 to amend section 8 (6) of the Public Processions (Northern Ireland) Act 1998 and so protect, by law, "the right to march" will not "simplify" the position as the report claims. On the contrary, this will serve only to muddy the waters and result in greater disagreement than has been the case since the Commission came into existence. Leaving aside the fact that this could well open the door for even greater numbers of new contentious marches (a nationalist parade through a loyalist residential area of Portadown, for example), there are several grounds for objecting to this proposal.

First, the Human Rights Act 1998 already applies the European Convention on Human Rights,[35] to the Public Processions Act as it does to all other legislation in the North. We can see no apparent cause or other over-riding legal necessity to incorporate Article 11 of the ECHR into the Public Processions Act.

Secondly, the Report itself offers no rationale for incorporating Article 11 alone into the Public Processions Act, to the exclusion of all other relevant articles. Indeed, the European Court has explicitly stated that the Convention is to be read as a whole, and that therefore the application of any individual Article must be in harmony with the overall logic of the Convention.[36] If it is thought necessary to incorporate Article 11 into the Public Processions Act, why not recommend the inclusion of all the other articles of the Convention that are relevant to the parading dispute and which have been called upon at different times and by different parties (eg Articles 3, 8, 9, 10, 14, 17, 18 and Article 1 of the First Protocol)?

Thirdly, the report controversially proposes to split up paragraph 2 of Article 11. This means that the principle enshrined in Article 11 that the right to freedom of assembly can be restricted "for the protection of the rights and freedoms of others" is unnecessarily separated from Article 11's restrictions based on "public safety" and "the prevention of disorder or crime". This is certainly not "precisely" modelled on Article 11, as claimed at paragraph 38 of the Report's Executive Summary. Moreover, the only reason we can see for making this distinction, which is not made within the European Convention itself, is to facilitate the Report's other somewhat questionable proposals set out in Chapter 20 permitting the RUC/PSNI alone to make decisions on grounds of public safety and disorder.

The Report's recommendations in this regard would have the actual impact of encouraging the threat and actual use of violence, including murder, by marchers and their supporters as occurred in Portadown and which spread rapidly across the North during 1996. That surely is not a situation which the Government would seek to have reemerge.

The Report in paragraph 15.16 deals with proposed new guidelines and criteria for assessing whether the rights and freedoms of others would be affected by a parade. While they repeat and re-order many of the criteria contained in the existing guidelines, they do not create the effect of "balancing competing rights". Rather they inject an unfair imbalance into the process so that the emphasis falls in favour on the rights of the marchers and against the rights of residents, whom the report constantly describes as "objectors". Residents of areas affected by contentious marches are exactly that—residents—men, women and children with human and civil rights who happen to reside in a particular locality.

This fallacy of seeing residents as mere "objectors" or "counter-demonstrators" forms a large part of the flawed conclusions of the Report. We believe that this derives from a misplaced interpretation of the nature of Orange parades and that of residents' objections. It is a not a simple case of one group demonstrating support for a particular and explicit cause, countered by another group opposing that cause. What we are dealing with here is a much more subtle and unspoken message—often disingenuously denied by marchers, yet only too plainly apprehended by residents—conveyed in the very act of parading through (one might say "temporarily occupying") particular areas where that message causes most offence. It is a classic case of the medium being the message. The Report fails to identify or recognise that message in its analysis, and so inevitably presents itself as partial in many of its conclusions. This imbalance is particularly apparent in any examination of the criteria found under the five headings in 15.16:

— the nature of the parade;

— arrangements for the parade;

— characteristics of contested part of route;

— potential for disruption; and

— any other matter concerning the parade which arises under any Article of the ECHR or any other international human rights agreement to which the UK is a party or under the general law which affects the rights and freedoms of others.

Only the last two of these headings reflect the residents' main concerns, and the last criterion is merely a catch-all. The heading concerning disruption introduces a new criterion, "effect of parade on traffic flow", undermining the significance of more important criteria in that section, such as the effect on residents' freedom of movement and access to public amenities and to places of worship. For example, in 1997, Catholic residents of the Garvaghy Road were physically prevented by the RUC and military from attending their weekly Sunday Masses held in St John the Baptist Catholic Church on the Garvaghy Road at 8, 10, or 12 o'clock because of a contentious march.

Furthermore, essential important principles and criteria from the current guidelines, such as "Disruption to the life of the community", "Impact of the Procession on Relationships within the Community", and "Compliance with the Code of Conduct" are very noticeably omitted. This omission further exacerbates the unfair imbalance injected into the process in favour of the rights of the marchers. Only the last of these three appears under the heading "Arrangements for the parade" and is downgraded to "Extent of Conformity to the Code of Conduct". The effect is that, rather than the determining body being obliged to ensure a proper balancing between the rights of marchers and those of residents, residents are forced to make their own case. Indeed, with regard to compliance with past determinations (in effect compliance with the law), the Quigley Report makes no stated reference whatsoever to the repeated and often violent breaches of, and non-compliance with, determinations on over two hundred occasions by march organisers and march participants in Portadown alone. The Report's recommendations reverse the relative burdens placed on marchers and residents.

— We propose that, with the exception of the "traditionality" clause, the existing criteria should be retained.

We do not understand how the proposed new set of criteria, which specifically includes "the potential for disruption", is supposed to eradicate the perception that "the fundamental reason underlying the imposition of conditions on processions (and particularly re-routeing) is the threat of violence on the part of those who object to the procession (paragraph 39). Once again, as happens throughout the Report, the very real threat and actual use of violence by marchers and their supporters in favour of the procession, is ignored.

It has always been our position that residents do not object to the right to march per se, but they do object to oppressive, triumphalist or abusive marches that disrupt their right to peacefully go about their normal business. It is worth pointing out that public assemblies and marches are treated differently in Britain than in the North of Ireland.

The North's Parades Commission can only impose route and/or behavioural limitations upon contentious marches. This is in marked contrast to the situation whereby the British Government exercises a more robust approach in dealing with the imposition of limitations upon contentious assemblies in England than it does in the North.

Blanket bans on all outdoor public assemblies due to racial uurest in Bradford, Burnley and Nottingham for periods of up to three months in recent years are evidence of this fact.

Even when march organisers in the North stated that they did not intend to accept, or to abide by, the Commission's rulings, this outright banning capacity was not resorted to by Government nor was it sought by the Chief Constable, for example, at Drumcree in 1998 or since.

However, while we highlight this discrepancy, we do not seek the widespread imposition of such draconian measures. Instead, as will be seen in Section 7, we believe that the imposition of complete bans should be available as an option of last resort, particularly in cases where there has been repeated non-compliance with determinations and restrictions. Nationalists have sought merely to have route restrictions imposed upon contentious parades and marches which impinge upon the rights and freedoms of citizens residing, or carrying out business, in those areas affected by these contentious marches.

While we urge that the Orange Order's right to assembly be limited, we do respect that the right, as defined by Article 11 and within the overall application of the ECUR, exists. Indeed, it should be noted that in Portadown, the Orange Order's right to freedom of assembly has been upheld. No complete or outright bans on that right of assembly have been recommended by the Commission, or imposed by the British Government, even in view of the extensive violence which has emanated from members and supporters of the Orange Order.

Independent observers, including Irish, British, Canadian and South African parliamentarians, of certain contentious parades prior to the setting up of the Parades Commission reported appalling scenes of sectarian abuse by marchers against residents. Residents were also subjected to violence from state forces on those same occasions and placed under, what were to all intents and purposes, periods of martial law and lengthy curfews. To characterise the need for regulation of such marches as nothing more than a caving in to the threat of violence from residents is a gross distortion of historical and proven facts that requires challenge rather than repetition.

We welcome the proposal at paragraph 15.18 of the Report to drop the current provision in section 8(6)(e) of 1998 Act regarding traditionality. Not only does this criterion have no foundation in human rights law, but also, past bad practice is not a sound basis for organising or permitting contentious marches to proceed through areas that have undergone radical demographic change or have suffered the worst extremes of violence over the years. The need for the deletion of this factor is further reinforced by the Parades Commission's own annual report dated June 2000. According to that report, 70% of people surveyed by Research and Evaluation Services with regard public perceptions and the situation regarding parades considered that "the changing religious mix of an area should be taken into consideration by those organising parades."

We are not, however, entirely clear of the intention of Sir George's proposals in this regard since, after proposing the deletion of this provision from the legislation, he immediately thereafter (para 15.19) seems to suggest that traditionality should carry weight in the decision making process. In a truly rights-based approach, this would not be case.

2. ENSURING CONFIDENCE IN THE INDEPENDENCE OF THE PARADES COMMISSION

Rightly or wrongly and at various times, the Parades Commission has been charged with a lack of independence from government. We believe that the issue of the independence of the Commission can be addressed to the satisfaction of all through the following proposals:

(a) The Parades Commission:

— in order to introduce an external element into the process of recruitment and selection of Commissioners, the Irish and British Governments would jointly appoint three independent assessors to actively oversee and report on the recruitment/selection process. (In the event of the return to devolved government, the Office of the First Minister/Deputy First Minister would also be involved along with both governments);

— the independent assessors' reports would also be made available for public scrutiny;

— Membership of the Commission would last for a maximum of five years;

— in order to ensure continuity of experience, members would be selected and recruited on a rotational basis, and

— the Commission's make-up should at all times reflect the demographics of the North of Ireland.

(b) Commission staff:

— the practice of secondment of civil servants to the Commission from other government departments would totally cease, and

— all staff and personnel positions will be filled through an open recruitment policy in accordance with fair employment practice.

We believe the latter two proposals to be in keeping with the precedent already set by the Oversight Commissioners office.

3. ENGAGEMENT/FACILITATION/MEDIATION

It seems to us that, from any objective standpoint, those who wish to march through an area, particularly a residential district, where they are not welcome and where there is overwhelming public opposition to such a march, are under a greater burden to make their case than the residents of that area, not least of all because all marches are to some extent disruptive. Indeed, one can draw a comparison here between the pros and cons of certain assemblies, perceived to be racist, taking place near or through ethnic minority neighbourhoods in Britain. This is not to say that residents are not under an obligation to be reasonable, but in deciding upon whether a march may proceed along a particular street it seems to us that there should be more regard to the efforts, or absence of them, on the part of the marchers, to gain acceptance from the residents, rather than to the willingness or otherwise of the residents to be persuaded. Residents, in areas where there has been sectarian violence and murders, who, in the past, have been subjected to sectarian abuse and violence by marchers and fellow-travellers at parades, will rightly object to any pressure not to oppose further such parades without clear evidence of a radical change in attitude and, most importantly, behaviour, on the part of the marchers. In the absence of such change, residents will understandably withstand pressure put on them to change from their position.

By saying this we do not seek to absolve Nationalists in the North of Ireland, or ethnic minorities in Britain, from their social responsibilities, but those responsibilities do not extend to puffing up with further sectarian or racial abuse.

On page 169, with regards facilitation, the Report states "failure to achieve direct contact should not in itself prevent the issue of a positive report" by the Facilitating Agency "certifying that the organiser of the parade had satisfied the requirements" at paragraph 14.22 (v) of acting in good faith and "had participated in a manner that was designed to resolve the issues involved" to the Rights Panel. This is clearly in conflict with paragraph 15.31, where Sir George drafts the following clause, which he would like to see included into Public Processions legislation—"In the exercise of their right to freedom of assembly, all have a right to have their honour respected and their dignity recognised and must themselves respect the honour and recognise the dignity of others". We would argue that it is reasonable that there should be more regard to the efforts, or absence of them, on the part of the marchers, to gain acceptance from the residents. Therefore, failing to engage in direct contact and so refusing to "respect the honour and recognise the dignity of others" should logically prevent the issue of any positive report.

However, it remains unclear throughout the Report as to how the two totally separate structures envisaged (the Rights Panel and the Facilitation Agency) would relate to one another, or how the proposed Rights Panel would take account of the outcome of the efforts of the Facilitation Agency.

We agree, in principle, with the Report's view that the engagement or facilitation role must be strengthened and separated from the adjudication function. Our understanding is that the two functions are currently separate within the workings of the Parades Commission. Unless the Commission can present strong objections to enhancing that separation, there can be no valid reasons for not enhancing that separation within its own internal structures even further.

— We propose the creation of a dedicated unit within existing Commission structures staffed by properly trained personnel with proven expertise and wide experience in the field of facilitation/mediation and conflict resolution. This dedicated unit would act under the direction of, and report to, a senior Commissioner (possibly the vice-chairperson). In order to prevent conflict of interest and avoid duplication of roles, that senior Commissioner, as director of facilitation/mediation and conflict resolution, would play no active role in any adjudication process. This would be broadly in keeping with Report's recommendations in 14.22.

The quality, expertise and experience of those personnel involved in this internal unit will obviously be the most crucial aspect to be addressed by the Commission and by government. The ability to recruit personnel with international conflict resolution experience from outside the North of Ireland should not be excluded.

4. CONFIDENTIALITY

The Report's contends that "it is difficult to envisage circumstances in which many need feel any inhibitions about expressing their views fully" (paragraph 16.26). Factual evidence exists which completely disproves this assertion. Two members of the GRRC and at least two other members of other residents groupings, along with one lawyer, have all been included in the NIO's Key Persons Protection Scheme as a result of the level of active threat from Loyalist paramilitaries against them due to their profile in relation to the issue of contentious marches. Rosemary Nelson, murdered four years ago by loyalist assassins, acted as legal representative to the GRRC, and along with the GRRC's main spokesperson, was the subject of a loyalist pro-march hate campaign before her death. In the light of these very real dangers, other individuals, unless protected by confidentiality, would indeed be inhibited from frankly voicing their views and, especially, their fears.

The key issue here, in our view, is not any supposed conflict between transparency and confidentiality, but a truthful examination of whether or not the Commission is making fair and proper decisions; whether that can be discerned from their published decisions; and whether or not there is due regard given to the need to protect the confidentiality, and thus the safety, of individuals. Given the reality of life in the North of Ireland, it seems to us essential that the process of determining whether or not restrictions need to be placed on any given parade should not itself deepen the tensions that already exist. In our view, the report's proposal (paragraph 16.27) that "objectors" objections be served on parade organisers and that open adversarial hearings should be held between "parties directly in dispute" is a recipe for disaster. This will not lead to greater fairness. Indeed, it is most unlikely to reassure those who feel that the decision-making process is unfair. Instead, it will create a forum in which differences between marchers and residents will be heightened, affitudes will harden, and the Commission's task in the future will be made even more difficult. It will also dissuade those individuals who have genuine concerns about contentious parades from coming forward, for fear that being publicly identified will result in their being targeted for violence.

The Report's proposals will heighten tensions not only between communities, but conceivably within communities as well. The report's depiction of two "sides" in a "dispute" ignores the reality that there are many shades of opinion within all communities and organisations. There are clearly some members of the loyal orders who take a very dim view of the activities of their fellow brethren and their loyalist "supporters", but who may not be prepared to say so publicly because of their own safety concerns. Equally, some members of nationalist communities may not be prepared to repeat in public views that diverge from those of the majority of their community.

We also believe that in the case of organisations such as the Loyal Orders, residents organisations, political parties, trade unions, Chambers of Commerce, etc, submissions made by them to the Commission for consideration should be made available to each of the other parties in the particular dispute. (We deal further with this in Section 5.)

It follows from the above that the confidentiality rule serves a real purpose and, when properly applied, should enable the Commission to make better rather than worse decisions.

5. OPENNESS AND TRANSPARENCY

Although the report asserts that "both sides allege lack of openness and transparency" on the part of the Commission, it fails to produce any firm evidence to substantiate this broad assertion.

From a Nationalist viewpoint, the main lack of transparency arises from the content of "secret" briefings given to the Commission by the RUC/PSNI. We believe that evidence and "intelligence reports" given during such briefings, which remain unseen and cannot be challenged, is inconsistent with the right to a fair hearing. On the other hand, some of those connected to the Loyal Orders would contend that they do not know of the reasons behind Nationalist objections to their marches.

Without resorting to the open adversarial type of process put forward in the Report and referred to in the previous section of this paper, there are ways and means by which greater openness and transparency can be introduced to the workings of the Commission, particularly during the pre-determination, determination, pre-review and review processes. We propose that:

— A similar process would be carried out during the review stage.

Without question, the above would necessitate changes to the time-scales for notification, adjudication, review, etc. We believe that the following timescales, contained in our original submission to the Quigley Review, will facilitate such a process. We propose:

— That the deadline for submission of notice of a parade should be extended to not less than 42 days.

— If there is to be an exception to the above, we submit that parade organisers who breach the deadline be required to show a satisfactory reason for that breach.

— That no bands are authorised to participate in a parade other than those identified at the time of submission of the formal notification. (As parades are often an annual event, usually taking place around the same date and times each year, and are often organised well in advance, it should not be too difficult to introduce this. It also means that the Commission and other interested parties will know if a parade applied for will have 5, 10 or 35, bands participating)

— That in the case of contentious parades, original determinations by the Parades Commission shall be decided and made public no less than 21 days prior to the date of any proposed march.

— That the powers of Chief Constable and the Secretary of State be amended as follows:

(a) The intervention powers of the Chief Constable be removed. While this will not prevent the police from making submissions to the Commission, it will avoid a position where they can effectively overrule a legal determination.

(b) If the Secretary of State has reason to be seriously concerned about a particular determination of the Parades Commission, it would be open to the Secretary of State to reconsider the Parades Commission's determination under the same statutory criteria as that body had applied and to issue a revised determination. Such a revised decision must be reached no later than seven full days before a proposed march in order to permit citizens the exercise of their right to legal remedy or redress through the courts.

(c) Before the Secretary of State issues a revised determination, he must consult with the Parades Commission and all other interested parties.

6. MONITORING OF PARADES AND POLICING OF PARADES

We welcome the proposal that any issues raised by the policing of parades should be drawn to the Commission's attention. However, the Report is unclear what is meant by "those monitoring parades", or by what is meant by proposing to place them under an obligation to report policing issues to the Commission.

At the present time, the Commission does have a small team of parade monitors. We welcome the Report's view that this work should be enhanced. We propose:

— That these reports be accepted by the Commission as evidence with regard to future applications for parades.

From our experience, there is no dedicated body that routinely monitors the policing of parades. Non-governmental organisations such as the Committee on the Administration of Justice, the Pat Finucane Centre and the US-based PeaceWatch have attempted to monitor the policing of certain specific parades. None of these organisations have either the resources or statutory powers to conduct such monitoring on a regular basis.

However, when these organisations have monitored parades in the past, they have published the results and drawn them to the attention of all interested parties. Anyone who has any concerns about the policing of any specific parade, or parades generally, should be able to voice those concerns to the Parades Commission. However, for that to happen, the Commission should be given the means to ensure proper and full investigation of such complaints.

— We propose amending the appropriate legislation to extend the remit and powers of the Police Ombudsman's office in order to examine police operational matters in this regard.

— We also propose that a permanent member of that office's staff be appointed to liaise with the Parades Commission in order to deal with complaints or issues raised through that forum.

7. ENFORCEMENT

While there is ample, hard evidence which can be produced to demonstrate repeated breaches and clear cases of non-compliance with Parades Commission determinations, few, if any, examples can be produced to show how those responsible for these actions have been punished or penalised by the Parades Commission or the police. For example, while the main Drumcree determination is made once each year, 51 other separate weekly applications have been made annually by march organisers to proceed along Garvaghy Road. By July 2003, well in excess of over 250 determinations will have been made in respect of this one area. Since the issuing of the original determination in July 1998, there have been repeated instances of failure by march organisers and participants in Portadown to abide by the Code Of Conduct, or to fully comply with the restrictions imposed by determinations, during legally notified parades. There were also numerous illegal demonstrations and parades organised by the Orange Order in Portadown during the same period. On many occasions, participants in both legally notified and illegal Orange Order parades in Portadown resorted to the use of violence.

Non-enforcement, rather than effective enforcement, of the law appears to have been the norm in relation to all the foregoing. To reverse this inadequacy will be part of the task for the parade monitors and the Police Ombudsman's Office as set out in Section 6 of this paper.

However, if the Parades Commission is to govern and adjudicate on parades and marches in an effective manner, then it must also be equipped with the wherewithal necessary for proper enforcement.

Therefore, we propose that:

— In the case of contentious parades, (ie those which are referred to the Commission for consideration) it will be a further requirement for organisers of such parades to post bonds and provide proof of insurance, etc. (Organisers of public events, such as festivals, concerts, etc, are already obliged to produce such documentation).

— Unless through the intervention of the courts, a determination of the Parades Commission, or a revised determination issued either by the Commission or by the Secretary of State, shall be legally binding on all parties, including the police force. (Experience has shown that breaches of determinations have occurred and, moreover, that the police force failed to act to ensure compliance, on the part of organisers and participants, with conditions imposed by the Commission).

— Legislation be introduced empowering the Commission to impose fines and penalties for breaches of determinations and/or the Code of Conduct upon the named individual organiser, the local organisational body and upon individual participants. Where the local organisational body is part of a larger organisation, and where repeat offences have occurred, that the power to sequestrate the funds or property of the larger organisation be conferred upon the Parades Commission. (Financial sanctions are often applied when organisations or individuals fail to comply with statutory requirements throughout a broad spectrum of activities in public life. Parade organisers or participants should not be treated differently).

— Where there have been repeated instances of non-compliance with determinations and/or the code of conduct, and/or violence by march participants, the Parades Commission should be empowered to reach and promulgate conclusions in relation to one or more parades in an area and to do so, where appropriate, for a minimum period of one year and a maximum period of five years. This proposal is similar to the Report's own recommendation at 15.25-15.26.

8. PUBLIC SAFETY

We are fundamentally opposed to the proposal that the police, rather than the Parades Commission, should decide whether or not restrictions should be placed on a parade on public safety grounds, with the Secretary of State being empowered to review the police decision (chapter 20). Such a proposal would, in our view, signal a return to the bad old days of pre-1998, despite the report's assertion to the contrary. We believe that such a proposal arises from a misplaced sense of complacency caused, ironically, by the Commission's good work in creating an improved climate around the most contentious marches. The Report fails to recognise or acknowledge the potential for future widespread unrest during the marching season which this actual proposal could cause.

Sir George Quigley is at pains to assert that his proposal would not be a return to a pre-1998 situation. Yet, his report is abundantly clear with regard to the effective outcome of this proposal in paragraph 20.13(ii) "Legislation could empower the police to make the public safety decision and to impose such conditions as that decision required. The result would be precisely the same as if the Determining Body were confined to rubber stamping police advice on public safety". The result of this proposal would be such that any human rights' approach would be completely undermined by the police's ability to intervene, and the determining body would then in effect become totally subordinate to purely policing considerations.

The abject failure of the RUC to act in an impartial, fair and balanced manner on the issue of contentious marches was one of the main reasons that led to the establishment of the original Independent Review on Parades and Marches in 1996. Problems identified with the policing of such parades by the then RUC included: a failure to effectively enforce reasonable restrictions imposed on parades; a failure to treat each and every application for parades in a fair and equitable manner; the use of indiscriminate and discriminatory violence and firing of plastic bullets; and the imposition of lengthy curfews on residents. It is also no secret that many members of the RUC were also members of or had close family ties with, those very organisations whose parades they were being asked to decide upon and police. The role of successive Secretaries of State, who clearly took political decisions on contentious marches based solely on political considerations, merely helped reinforce the need for an independent commission.

As the report itself notes, "Most of those who gave evidence (including some who were very critical of the operation of the existing arrangements) accepted that independent third party regulatory machinery was probably a fact of life . . ." (paragraph 14). This, together with the Irish and British Governments' publicly stated view expressed when announcing this Review that the Parades Commission had enjoyed "four successful years of operation against a difficult background" is a measure of the success of the Parades Commission and its ability to minimise the public order element.

Removing the public safety element from the Parades Commission's decision-making process would once again make the public order element a potentially explosive issue, instead of it being merely one factor amongst many that needs to be weighed and balanced.

To make public safety issues the sole preserve of the police would give the police, and ultimately the Secretary of State, the power to overrule the determining body.

In our view, it is much better to maintain the existing Parades Commission and therefore have one body weigh up all the considerations relating to a parade and make a rounded decision. The alternative will be to create a situation where the determining body, having considered everything except public safety, decides to impose restrictions on a parade to preserve the rights of others but the RUC/PSNI decides to remove those restrictions on public safety grounds. That was the basis of the dubious scenario in response to the Drumcree stand-off in 1996. The threat and actual use of violence, including murder, by marchers and their supporters over a five-day period in Portadown and elsewhere was used to overthrow an initial rerouting order.

Even with the ongoing implementation of the Patten Report, the current PSNI is a long way yet from shaking off its mainly Protestant/unionist make-up, or its reputation for sympathy with, if not membership of, the loyal orders. Its attempts to become a police service representative of, and at the service of, all the community can only be assisted by the removal from the PSNI of the extremely contentious responsibility for decisions on parades. Re-instating that responsibility would only be a retrograde step and, would no doubt, have far-reaching repercussions extending into the Policing Board and beyond into the wider community in the North.

Even if a fully representative policing service becomes established in the North at some time in the future, we are of the opinion that no consideration should be given to conferring such powers upon it.

30 March 2004

35 Article 13 being one exception. Back

36 Otto-Preminger-Institut v Austria (1994), paragraph 47. Back



© Parliamentary copyright 2005	Prepared 11 January 2005