APPENDIX 17
Supplementary memorandum submitted by
the Parades Commission
1. Further to your letter of 21 July, I
am now in a position to write back and provide you with some feedback
on the parading season in summer 2004. This was our fifth season
and although quiet it was essentially one of the trickiest despite,
by now, the Commission's considerable experience. I think that
I can speak for all the Commissioners when I say that this season
has been the most demanding for them.
2. I am pleased to have this opportunity,
because each additional year adds further to the cumulative time
period over which it is possible to make judgements about the
Public Processions Act and its operation, particularly in terms
of trends.
OVERVIEW
3. The Commission is pleased to report that,
despite increased political and media interest in parading this
year as compared to 2003, it has been another relatively peaceful
parading season, thanks to a whole range of people—community
and political representatives, police, authorised officers and
parade organisers among others—working hard on the ground.
Cross-community dialogue is of course occurring on issues that
go much wider than parading—and helpfully that dialogue
is reducing misunderstanding and strengthening relationships across
the divisions. It is also now increasingly encompassing the issue
of parades, as a facet of community life that requires to be addressed.
Secondly there is some evidence of an increased confidence in
the unionist and loyalist community, including among the Loyal
Orders, to talk to nationalists and to the Commission about parades.
4. Each year, the level of interest in parading
can vary depending on the political backdrop. This year the Commission
experienced not only the considerable media and political attention
that is the norm, but also a greater interest than previously
was the case in using parading issues for political purposes.
Nevertheless this year has also seen some real and substantive
progress, not all of it visible. This will present future challenges
and opportunities in order to bring the parading conflict closer
to the point where differences are tolerated, mediated or presented
in peaceful and democratically acceptable ways. It is important
that whatever change the future brings is not introduced in a
way that loses the threads of the work that is going on now and
where considerable progress has been made. A degree of continuity
will be vital to peaceful outcomes.
STATISTICS
5. I have attached, as Annex A, some interim
comparative figures on parading for your information. These relate
to the period 1 April to 31 August for 2003 and 2004. I have to
caution that these figures are provisional and as such are subject
to revision. The figures indicate that there has been a decrease
in the number of contentious parades this year compared to last.
Of course, a decrease in numbers of contentious parades does not
in itself mean that there has been a fall in the overall "contentiousness"
attached to parading and recently, the Commission has been hearing
from elected and community representatives that some parades that
were not considered contentious should have been.
POSITIVE DEVELOPMENTS
6. I have alluded to some positive developments
this year. Belfast is currently one of the most difficult parading
locations in Northern Ireland, particularly North and West Belfast.
But the emergence there of a Parades Forum on the unionist side,
which is willing to engage in dialogue with nationalist residents'
groups about parades and which has represented on it the Orange
Order is a particularly interesting development. The Commission
viewed and continues to view the existence of this group as a
positive indication that problems, which have occurred in the
past and occurred this year, also have a greater likelihood of
community resolution. However, it is crucial that the Forum if
it purports to discuss parades is able to demonstrate that it
includes and represents those bodies organising the parade. On
the nationalist side there has been the development of a body
called the Parades Dialogue Group in the Ardoyne area. The Commission
will support interaction and dialogue between these groups and
will facilitate this where appropriate. This exercise will not
be without problems, but I am sure you will agree that it holds
considerable potential for moving forward.
7. The Commission has in the past 12 months
met and held constructive dialogue with groups and individuals
that would not meet it in the past. Though still not officially
recognised by the Orange Order leadership, it has continued to
have contact with members of all Loyal Orders and has facilitated
mediated dialogue between nationalists and republicans and members
of parading organisations. Some of this is ongoing. Its authorised
officers also have a much wider range of contacts than would have
been possible a few years ago. The Commission's view is that this
work requires further investment, as it has enormous potential
in terms of educating, informing and building communication and
understanding, which is vital to peaceful outcomes on the ground.
The Commission continues to explore the scope for joint activity
with the Community Relations Council, as recommended in the North
report.
JUDICIAL REVIEW
8. Legal challenge to the Commission has
come to the fore again—most notably this year from the Loyal
Order and unionist side. These constant challenges are beneficial
insofar as they serve to clarify the law for all concerned. Currently,
the Commission is awaiting the judicial review taken by Dunloy
Orangemen. It is important to set out the backdrop to that particular
judicial review, which in some respects could be the most critical
to date. The Commission's determination was made in respect of
a public procession organised by Dunloy LOL No. 496 to parade
in Dunloy on 11 April 2004.
9. Paragraph 4.4 of the Parades Commission's
Guidelines (which is a statutory instrument) states:
"Communication with the Local Community:
The Commission will also take into account any communications
between parade organisers and the local community or the absence
thereof and will assess the measures, if any, offered or taken
by parade organisers to address genuinely held relevant concerns
of members of the local community. The Commission will also consider
the stance and attitudes of local community members and representatives."
10. Further under the Parades Commission
Procedural Rules (which is also a statutory instrument), paragraph
3.3 states:
"All evidence provided to the Commission,
both oral and written, will be treated as confidential and only
for the use of the Commission, those employed by the Commission
and Authorised Officers. The Commission, however, reserves the
right to express unattributed general views heard in evidence
but only as part of an explanation of its decision."
11. The impact of these two paragraphs is
firstly that the Commission must take into consideration contacts
between the relevant communities or the absence thereof and the
impact that this has had. Secondly, and this is a particular irritant
to Loyal Orders, evidence given to the Commission must remain
confidential to the Commission, but not the gist of that information
which the Commission can share with those organisations who choose
to engage with the Commission. For those who do not have direct
contact with the Commission this creates a problem.
12. The Applicant has taken the Application
on his own behalf and on behalf of all other members of the Lodge.
Relief is sought in several areas, but he has also asked for a
declaration that paragraph 4.4 of the Parades Commission's Guidelines
is unlawful and ultra vires, and the same is requested in relation
to paragraph 3.3 of the Parades Commission's Procedural Rules.
This judicial review challenges, not just the determination that
the Commission made in Dunloy, but also much of the process used
to arrive at that determination, so it will be of considerable
interest to Government and the legislature as well as to the Commission
itself. It is unlikely that the case will come before the courts
until October. The Commission has been led to believe that at
the moment it is the applicant's intention to take the issue eventually
to the Court of Human Rights in Strasbourg and that donors have
made funding available for that exercise.
KEY PARADING
SITUATIONS IN
2004
13. After St Patrick's Day and Easter (when
there are parades from both the unionist and nationalist traditions),
the main marching season in 2004 continued with the Tour of the
North—a large contentious parade organised by the Loyal
Orders. This occurs on a Friday evening around the middle of June,
this year taking place on the 18th. The total number of participants
notified to take part was in excess of 2,000 including 23 bands.
The parade is organised by the "Belfast Orange Hall United
Districts Committee" and is referred to as the Tour of the
North because the route processed is confined to streets and roads
lying within confines of North Belfast.
14. The route varies year on year and with
this variation so changes the degree of contentiousness attached
to the parade. This year the route was less problematic than in
the previous year. The Commission did not issue a formal determination
in respect of this parade but rather issued advice in the form
of a decision to underline to the organiser the importance of
respectful behaviour in the vicinity of interface areas and drawing
to his attention the Commission's Guidance for Parade Participants
as set out in the Code of Conduct. The parade passed off without
major difficulties. There were some allegations as to the negative
behaviour of followers—an issue that has assumed greater
importance than ever in 2004. But overall, the Tour of the North
indicated that, where parades are well organised and marshalled,
the likelihood of civil upset is greatly reduced. The Commission
saw examples of this elsewhere too, for example with the Junior
Orange parade in Portadown on 29 May 2004.
15. Another "major" parade of
the season is known locally as the "Whiterock" parade,
or at times, the "Springfield Road" parade, both referring
to aspects of its route. The parade properly is "The Annual
Whiterock Parade by No.9 District LOL to Whiterock Orange Hall
Springfield Road". The parade was notified to take place
on Saturday 26 June 2004. It is a contentious parade as part of
its notified route takes it on to what is seen by many nationalists
as a nationalist part of the Springfield Road. However, this is
an arterial route and one along which live people from both traditions,
so that it can be seen as a space that should be shared. The parade
was subject to a protest notified by Springfield Residents Action
Group.
16. The Commission's original determination
for this parade (made on 18 June 2004) placed upon it a route
restriction prohibiting it from the contentious part of the Springfield
Road and excluded the participation of a particular band. Critical
considerations for the Commission had been the lack of effort
by the organiser to take steps aimed at addressing the community
relations aspects of the parade in a way which is sensitive to
the community and a lack of confidence on the part of the Commission
that previous code of conduct breaches would not be repeated.
In 2003 there was poor behaviour during the event, which the organiser
did not address. However, as a result of the emergence on the
unionist side of the Parades Forum (as referred to in paragraph
6) which sought to address these issues through dialogue with
nationalists, the Commission was asked to review this determination
(which plainly had come as a shock to the organisers) and did
so (on 25 June 2004) in the light of new information regarding
dialogue and in addressing of some behavioural, band and emblem
related issues. The Commission, whilst understanding the concerns
of the residents group, considered that the residents had been
wrong not to follow up preliminary meetings with a full meeting
with the Parades Forum in advance of the parade. This meeting
would clearly have shown whether the emerging Parades Forum was
capable of representing the parade organiser and would have demonstrated
the genuineness and meaningfulness of the engagement on the part
of the Parades Forum in the presence of a Commission representative.
As a result, and in order to acknowledge this changed approach
by the newly formed Parades Forum, the Commission removed the
route restriction. The Parades Forum, has given guarantees to
the Commission about its readiness to go into genuine and meaningful
dialogue with residents in autumn 2004, including its Orange membership.
This now remains to be demonstrated in practice.
17. Orange Order parades on 12 July this
year were notified as usual throughout Northern Ireland. Parades
to and from the main demonstration in Belfast included a number
notified to pass along the Crumlin Road and its contentious stretch
in the area of the Ardoyne shop fronts. These parades presented
their own particular problems arising from the sense of isolation
expressed by the unionist community and the feelings of nationalists
who do not want these parades passing through their area on a
frequent basis without discussion. This was particularly the case
given previous poor behaviour by followers of the parade and also
because of the impact of the police operation on the local community.
On this occasion, the approach adopted by the police on the ground,
who faced the issue of what to do with a considerable number of
followers in the evening, chose as the best way, in their opinion,
to shepherd them past the relevant area after the parade had passed.
This led to intense anger in the nationalist community who felt
hemmed in and uninformed about the police plans. After the parade
was over, there were confrontational scenes that were widely reported
in Northern Ireland. Earlier comments by Orange Order representatives
had added to the tension by suggesting that street protest might
accompany any decision by the police not to allow the crowd of
followers to process past the Ardoyne shops.
18. The situation regarding followers has
always been a difficult one and has exercised both the Commission
and the police for some time. It gave rise to increasing concerns
this year. This issue came to finality when, from the Commission's
perspective, there was an unexpected application for leave to
apply for judicial review on the part of a single follower of
one of the bands.
19. The legal situation, briefly, is that
the applicant, identified as an intended lone follower of one
of the parades notified to pass Ardoyne shop fronts on 12 July
2004, claimed that the Commission's decision in respect of that
parade infringed her human rights. The Commission's position,
and one shared by the court, was that the Commission was empowered
to place restrictions and conditions on the parade organiser and
parade participants only. A follower, who was not a participant,
was not subject to the terms of a Commission determination. When
a follower becomes a participant is, of course, the real issue.
Followers could be subject to direction by the police under other
legislation, most notably relating to public order or through
the exercise of common law powers. In this light, the application
for leave to apply for a judicial review was turned down. The
view of the presiding judge, Mr Justice Weatherup, is attached
for your information at Annex B. It will be seen in that appendix
that what he said then was an elaboration of what he had also
said in an earlier judicial review in July 2003 in the case of
McRoberts, when he remarked:
"As I have said before the organisers
of these events cannot continue to be absolved from the consequences
if disorder continues and there does not appear to be a method
by which control can be exerted over those who hang on, or follow,
or seek to support in some fashion these parades."
As you will see from reading the more detailed
extract from the 2004 judicial review in Appendix B, this leaves
the definition of participants very much open to prevailing circumstances;
matters of degree and fact and to the intentions of those involved
(almost, in a way and in that context, returning the issue of
parades to the "pre North" position, which, from a police
point of view may be of concern). The Commission is of the view
that there are often circumstances on the ground when followers
or supporters of a parade may become participants in the procession
itself and therefore become subject to the determinations of the
Commission, but the Commission considers the parade as notified.
The frequently stated unionist view that the Commission "lost"
a judicial review is without foundation.
20. The issue of followers is one which
we expect will require further exploration with NIO, the PSNI
and our legal advisers. There is no easy legal solution to the
problem within the current legal framework. Ultimately only a
combination of greater social responsibility on the part of parade
organisers and protesters, dialogue between the two parts of the
community and tolerance will provide the solution. If parade organisers
fail to take any responsibility for the wider impact of a parade,
it may result in even tighter conditions being necessary in future.
21. Senior politicians from across the range
of political parties provided evidence to the Commission in relation
to its decision-making in West and North Belfast this year and
this was of course taken fully into account during the relevant
decision-making processes. Political and community representatives
also made strenuous efforts on the ground to keep the peace with
a considerable measure of success in at times difficult circumstances.
This work can make a considerable difference to the success of
any parading season and, in the Commission's view did so this
year.
THE COMMISSION'S
DECISION-MAKING
22. While there are those who would prefer
determinations to be replicated in similar terms year by year,
that is neither desirable nor possible. Quite apart from human
rights issues, there are statutory implications stemming from
the Public Processions Act itself, as changing scenarios on the
ground must cause, rightly, the Commission to look at each determination
on each occasion afresh. Further, it is also not always possible
to anticipate these determinations, simply because they arise
from intense deliberation within the Commission itself (which
is a diverse cross-community body) after all the evidence, information
and advice has been received and after all representations have
been heard. Until the Commission has reviewed all the evidence,
information and advice available and heard all the representations,
it cannot be anticipated in advance what those decisions will
be. Those who do not engage with the Commission are more likely
than others to be surprised by changing circumstances and it is
less than satisfactory, not just for the Commission, but also
in terms of increased tensions on the ground, when groups who
have not engaged with the Commission at all before the original
determination at that point seek to engage through a review of
the determination.
23. The concept of the "routine determination",
which is anticipated and predictable, is not something that the
Commission can ever be comfortable with, particularly in the context
of changing circumstances in relation to code of conduct issues,
engagement or other matters. The Commission is neither prepared
to accept that parade organisers have what has been described
as a "God-given" right to parade certain routes, especially
in the absence of good behaviour or a readiness to discuss problems
about the parade with local residents or their representatives;
nor that residents have a "God-given" right to stop
parades, particularly along main thoroughfares that in the context
of genuine dialogue should constitute shared space.
24. Sometimes a more challenging determination,
that is one more demanding of tolerance, may involve a parade
being allowed along a stretch of route where a parade has not
occurred for some time. Sometimes it may involve a parade not
being allowed along a stretch of route for the first time. The
Commission constantly implores, but often in vain, protagonists
to use the post-season period to engage, not just with the Commission,
but also with each other. When this does not occur, it contributes
significantly to tension and uncertainty in the following season.
25. There is now in general much greater
compliance of Commission determinations throughout the community,
even when, as this year showed, some of those determinations place
significant challenge on community and political leaders involved.
In a number of locations, there is a stronger sense of cross-community
contact on parades or other issues, and these contacts have helped
the understanding that one community has for the other's difficulties.
Many of the old attitudes and lack of tolerance remain; sometimes
too there is a degree of paranoia about the perceived motives
for some Commission decisions—and this can so easily be
fuelled by media speculation; but, despite this, leaders in both
communities rose to the challenge of controlling difficult situations
in 2004. The Commission does not under-estimate the leadership
challenges that its determinations present within communities
and appreciates the intense frustration that some leaders within
communities or parading organisations may feel when things do
not go their way.
26. The Commission believes strongly that
there is much to be done between now and the 2005 season to ensure
that the parading scene continues to be an improving one. Areas
where the Commission considers that considerable work is needed
include most particularly Belfast, but also Craigavon and a number
of rural towns and villages, where issues require to be resolved.
PARTNERSHIP WITH
THE POLICE
27. The Commission is appreciative of the
difficulties that the implementation of its determinations presents
for those most affected on the ground not just parade organisers
and local communities, but also, despite the difficulties they
faced this year in relation to a small number of parades, the
Police Service. The police have at times a difficult job in managing
parades and protests, but the Commission has, again this year,
seen professional and creative work by police in reducing the
scope for public disorder at parades. The Commission has noted
examples of situations where the actions of police officers have
significantly improved a parading situation and the Commission
would wish to pay tribute to this. The success or failure of the
Parades Commission in achieving continued progress in relation
to parading issues will continue to be closely tied not only to
the quality of advice it receives from police officers before
a parade, but also to the demonstration of fairness, openness
and overall professionalism of the police in the delivery of controlled
parading situations on the ground. It is for this reason that
the Commission will continue to work to develop further the close
partnership that it has with the police and will exhort all involved
in parades disputes to engage constructively with the police and
vice versa to minimise problems at contentious parades.
FURTHER WORK
28. The Commission is currently planning
its workload for the out-of-season period. A range of interests
have expressed a desire to engage with the Commission at the end
of the season, and the Commission looks forward to this opportunity
to seek to develop understanding and explore ways to make progress
in a range of locations.
29. The Commission would be delighted in
particular to review the season with representatives of all political
parties to see if there is any scope for a shared vision about
parading in general terms and to seek out ways of ensuring that
2005 is even less problematic than 2004 so that the continuous
progress made so far can be sustained. The current situation in
a number of locations will not stand still and without concerted
effort by both communities there remains scope for an increase
in the level of contentiousness of at least some parading situations
in Belfast and beyond.
SUMMARY
30. In summary, the key points that the
Commission would wish to register with the Northern Ireland Affairs
Committee are:
(a) 2004 has been a largely peaceful parading
season with the Commission continuing to build on successes in
previous years.
(b) There were fewer parades marked "contentious"
in 2004.
(c) There is increased practical, constructive
contact by key interests with the Commission and its authorised
officers, though official stances remain.
(d) Greater early engagement by key interests
would reduce considerably the sense of surprise when Commission
determinations change.
(e) The issue of followers is one not adequately
addressed by the Public Processions (Northern Ireland) Act 1998
and is one that needs careful consideration.
(f) There is greater cross-community contact,
which has made a significant difference in a number of locations.
(g) An important judicial review is due
to take place later in the year, which challenges aspects of the
Commission's process.
(h) Close partnership with the police is
vital to the success of the Commission in reducing the contentiousness
of parading situations.
(i) Further constructive work by all
interested parties is needed this autunm to address concerns that
could otherwise feed through into 2005.
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