APPENDIX 18
Memorandum submitted by the Committee
on the Administration of Justice
Thank you for your letter of 3rd September 2003
regarding the inquiry into the Parades Commission and the Public
Processions (Northern Ireland) Act 1998.
Enclosed for your information is a copy of our
submission to the Quigley Review and a copy of our response to
Sir George's final report.
WHAT IS
THE CAJ?
The Committee on the Administration of Justice
(CAJ) was established in 1981 and is an independent non-governmental
organisation affiliated to the International Federation of Human
Rights. CAJ takes no position on the constitutional status of
Northern Ireland and is firmly opposed to the use of violence
for political ends. Its membership is drawn from across the community.
The Committee seeks to ensure the highest standards
in the administration of justice in Northern Ireland by ensuring
that the government complies with its responsibilities in international
human fights law. The CAJ works closely with other domestic and
international human fights groups such as Amnesty International,
the Lawyers Committee for Human Rights and Human Rights Watch
and makes regular submissions to a number of United Nations and
European bodies established to protect human fights.
CAJs activities include—publishing reports,
conducting research, holding conferences, monitoring, campaigning
locally and internationally, individual casework and providing
legal advice. Its areas of work are extensive and include prisons,
policing, emergency laws, the criminal justice system, the use
of lethal force, children's rights gender equality, racism, religious
discrimination and advocacy for a Bill of Rights.
The organisation has been awarded several international
human rights prizes, including the Reebok Human Rights Award and
the Council of Europe Human Rights Prize.
CAJ RESPONSE TO THE QUIGLEY REVIEW ON PARADING[37]
(January 2003)
INTRODUCTION
On 27 November 2001 the Secretary of State announced
the appointment of Sir George Quigley to conduct a review of the
Parades Commission and the legislation under which it was established.
The subsequent report was submitted to government in September
2002, and circulated for consultation in November 2002. The following
commentary responds to Sir George's findings and recommendations
and, unless indicated otherwise, all paragraph or page references
relate to the Quigley report.
The Committee on the Administration of Justice
(CAJ) has worked on the human rights aspects of parading, and
the policing of such parades and associated protests, since the
mid-90s, and has published extensively on this subject. Except
where necessary, this commentary does not explore CAJ's detailed
argumentation regarding human rights and parading, but instead
restricts itself to commenting on the specific proposals made
by Sir George Quigley.
COMMENTARY
CAJ is obviously aware that many across the
community (but particularly perhaps members of the Loyal Orders)
are dissatisfied with the Parades Commission. This is presumably
in part at least why it was thought necessary to undertake a review.
What is less clear, however, and the report does not explore this
adequately, is the nature of that dissatisfaction. Without a clear
analysis of the problems, it is difficult to decide on appropriate
solutions.
Thus, for example, George Quigley comments—"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"
(para 14). This would appear to suggest that few challenge the
existence of the Parades Commission, even though they may have
concerns about the way it works. If this is in fact the case,
it is difficult to see why Sir George proposed such radical changes.
Indeed, given the radical changes that Sir George proposes, it
would have been very helpful to have a more explicit analysis
of the underlying problems that his proposals are intended to
remedy.
Options (pages 11-12)
Sir George suggests that there are three possible
options for change. CAJ would tend more to the first—which
is to rely on the current arrangements to "gradually guide
protagonists towards local accommodation". We are not particularly
sympathetic to the second option (to impose a blanket ban on some
parade routes, either permanently or semi-permanently), and we
are unconvinced that the third option, the one favoured by Sir
George (para 17), will in fact "enable a considerable acceleration
in the trend towards local accommodation". We comment on
this in more detail below.
CAJ was particularly struck by the Parades Commission's
own assessment (para 20) that "there is considerably more
engagement and that the green shoots of resolution are breaking
through what was once particularly stony ground". Given engagement,
it (the Commission) does not believe there are many circumstances
where a loss of route is inevitable. Sir George does not challenge
this analysis, and we are therefore at a loss to see why now,
when change appears to be underway at the grassroots level, that
the whole system should undergo a radical overhaul.
In our correspondence with Sir George, we drew
certain analogies between the Parades Commission and the early
experiences of the Fair Employment Agency (subsequently Fair Employment,
and then Equality Commission). As with fair employment in the
'70s and early '80s, parading and the disputes around parading
are politically contentious. Statutory bodies established to deal
with these deep conflicts are likely to be lightning-rods for
much criticism. However, with time, the Fair Employment Agency
(and later the Commission) came to be seen as acting in good faith
and as having facilitated positive and constructive change in
society. It is our belief that this may well prove to be the case
for the Parades Commission in due course. In any event, CAJ believes
that it is too early in the life of the Commission for it to be
subjected to a major overhaul.
Facilitation role (para 25)
CAJ has never had strong views as to the best
way to ensure effective facilitation but believes that this is
a matter on which the views of the immediate parties to the dispute
are of most importance. We are, however, clear that any facilitation
role should not be confused with an adjudicatory role, still less
undermine—even unwittingly—any such role. Accordingly,
CAJ would, subject to certain conditions, endorse the proposal
for a "stronger and more structured role for a facilitation
function". The minimal conditions to be met include the readiness
of all the different parties to the dispute accepting this proposal,
and the establishment of procedural safeguards such as the optional
nature of the mechanism (para 29) and non-permeable walls between
determination and facilitation (para 32). While in principle accepting
the value of facilitation, we do not, however, accept the specific
mechanisms proposed by Sir George, and we comment on this in due
course.
Formal determination role (paras 35-52)
CAJ has strong views on the Quigley proposals
regarding the formal determination role to be performed. We believe
that the recommendations, if implemented, would lead to a number
of very serious problems and are therefore unacceptable.
Firstly, CAJ can see no justification for amending
current legislation to include explicit reference to article 11
of the European Convention on Human Rights (para 38). As a legal
proposal, this makes no sense at all. The European Convention
(the ECHR) is the legal framework within which all domestic legislation
must be interpreted. Its incorporation into UK law via the Human
Rights Act requires that public bodies are obliged to make all
their decisions in the context of the ECHR protections. It is
therefore merely duplication to make specific reference to article
11 of the ECHR in the Public Processions Act. There is no "value
added" in proposing something of this nature. Indeed, in
our view, such an amendment could risk undermining rather than
emphasising the importance of the right of freedom of assembly,
since it suggests that the authority for this right derives merely
from the Public Processions Act. The rights set out in article
11 are given special force by virtue of the fact that all legislation
and public acts must be assessed against the Human Rights Act.
Secondly, even if it were thought necessary
(and not undermining) to repeat this protection in the Public
Processions Act, there is no logic supplied by Sir George as to
why article 11 should alone be "privileged" in this
way. If it is thought necessary to incorporate article 11 into
the Public Processions Act, why not include 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 and 17)?
Last but far from least, having privileged article
11, Sir George then proceeds inexplicably to propose privileging
only certain parts of article 11. Article 11 of the ECHR allows
domestic law to restrict the right to freedom of assembly "in
the interests of national security or public safety, for the prevention
of disorder or crime, for the protection of health or morals or
for the protection of the rights and freedoms of others".
For some reason, the restrictions underlined in this text are
to be included in the Public Processions Act in a different provision
from the other exceptions cited and are clearly differentiated.
No such differentiation exists in the ECHR. Later in the text,
one can begin to glean some of Sir George's thinking, but he does
not explain his thinking here when the idea is first introduced.
Indeed, on the contrary, the text is misleading in that he refers
to the need for the Public Processions Act to be "modelled
precisely on Article 11". His proposal then fails to do this.
CAJ sees no reason for replicating extant legislation
by incorporating article 11 into the Public Processions Act, and
finds it even more unacceptable to incorporate some articles of
the Convention and ignore other relevant articles, and/or to incorporate
one specific article in a selective way.
GUIDELINES (PARA
40)
CAJ is in no sense convinced that the factors
cited in paragraph 40 with a view to governing the decision making
process are any clearer than those which Sir George has ruled
are too opaque. Concerns have been expressed at the lack of transparency
of current arrangements but there is little point in exchanging
one type of opacity for another. What is meant by the "nature"
of the parade, the "arrangements", or the "characteristics"
of the contested part of the route? Some detail is provided in
chapter 15, but it still leaves lots of room for uncertainty or
disagreement. If the proposal of amending the guidelines is pursued,
it would be very important to consult extensively, agree upon,
and then publish a fairly detailed interpretation of the `factors
to be considered'.
It is also not clear to CAJ what is the intended
status for the considerations that are currently included in the
guidelines—considerations such as the "impact of parade
on relationships within the community"; "disruption
to the life of the community"; and "genuine attempts
to broker local agreement". Is Sir George trying to replace
these latter considerations with those in his report, or is he
simply proposing additional considerations? The current considerations
needed interpretation over time, but they have come to have relatively
accepted meanings for all the parties concerned. CAJ believes
they serve a useful role in assisting in the balancing of rights
that is involved in the determination process. If they need further
interpretation to assist in the process of transparency, CAJ would
welcome that, but we see no argument for replacing them entirely,
or still less for replacing them with criteria that are totally
undefined.
Traditional routes (paras. 4 1-42)
CAJ could not find any grounding for the "traditional"
criterion in international human rights law and therefore opposed
reference to it in the Public Processions Act. In practice, however,
we found few problems on the ground since we have not found that
this criterion was allowed to predominate over others. We are
not, however, entirely clear of the consequences of Sir George's
proposals in this regard since he proposes deleting this provision
from the legislation (para 41), but immediately thereafter (para
42), he seems to suggest that traditionality should carry weight
in the decision making process. It may be that he is attempting
to distinguish between the rightsbased determination process and
the facilitation process (see paras 15.18-15.20, page 187/8),
but this would need to be clarified.
Frequency of parades (para 43)
CAJ sees no problem in the facilitator taking
on the role of negotiating the frequency of parades with the parading
organisation on condition that the parading organisation is made
aware of their rights to pursue their claims to peacefully assemble
in compliance with the law and any lawful restrictions placed
upon them.
Transparency of the decision making process (para
49)
CAJ argued in its submission that transparency
in the decision making process was an important issue. We certainly
share the concern of some that the decision making process, and
the published determinations flowing from that process, should
be as open as possible to allow for a full understanding of the
deliberations of the Commission.
We also however raised the concerns that had
been brought to our attention by both marchers and residents about
the importance of confidentiality. People were worried about the
possible reaction to them, both on the part of other parties to
the dispute, but also on occasion from those within their own
community or group, in the event of disagreement.
CAJ was therefore greatly surprised by Sir George's
conclusion that "it is difficult to envisage circumstances
in which many need feel any inhibitions about expressing their
views fully"—Sir George suggests that the Determining
Body can exercise discretion about the extent of confidentiality,
but it would be unsatisfactory if the various parties were uncertain
as to whether their request for confidentiality would or would
not be respected.
Without wanting to decry the comparisons between
Scotland and Northern Ireland, it seems to CAJ quite disingenuous
to suggest that "little adaptation" (para 50) would
be required within the two jurisdictions. Unfortunately, violence—and
even death—has been an all-too-frequent consequence of the
disputes around marching in Northern Ireland, and it is very dangerous
to minimise the risk to all parties concerned by drawing inaccurate
analogies with the situation in Scotland.
Nature of parades (para 55 and 56)
While not disputing the contention that "the
vast majority (of organisers) wish to be responsible for well-conducted
events", it seems to CAJ that the report's author does not
allow for the fact that the parade in and of itself (or the route
thereof) will be seen by some as provocative, sectarian, offensive,
or abusive. Thus, Sir George notes that "provocative, sectarian,
offensive or abusive behaviour on the part of protestors is as
reprehensible as similar behaviour on the part of those on parade",
but the problem is often not seen as one confined to the behaviour
of individual protestors or marchers.
Protests (para 59)
CAJ is undecided about Sir George's proposals
regarding protests. Is it always as clear as he implies that "parades"
and "protests" together constitute "the totality
of the event"? In 2002, for example, much of the public disorder
in North Belfast was connected to the tensions around parading,
but in only a few instances could one match a specific protest
or disturbance with a specific march or parade. In previous years,
there was a whole array of small-scale time-limited peaceful protests
that involved women and children blocking roads. Such protests
were portrayed as Drumcree-related, though they were geographically
and chronologically unconnected to the Dwmcree protest.
Public safety (para 60 on)
This is another section of the report where
CAJ disagrees strongly with Sir George's proposals. As indicated
earlier, his proposals amount to an unjustified (and, in our view,
unjustifiable) differentiation between the various elements included
within article 11.2 of the European Convention. Sir George is
proposing that the "national security, public safety, and
the prevention of disorder or crime" restrictions be cited
separately from the other restrictions listed in article 11.2,
and that the decision making process on these limitations be entirely
different from that applied to article 11 generally. The problems
with his approach are several.
Firstly, Sir George seems to draw a distinction
between "human rights considerations" and "public
safety" considerations, but all of the different considerations
he draws on are cited in article 11.2 of the European Convention
of Human Rights (and indeed replicated in several other articles
of the ECHR). Accordingly, "public safety" considerations
are amongst the human rights considerations to be examined when
trying to adjudicate between conflicting rights; there is no justification
within the Convention for treating this limitation differently
from any of the others in article 11.2. In CAJ's view, it is not
possible—and would anyway be unwise—to consider some
elements in isolation from others.
Secondly, having arbitrarily separated out public
safety considerations, and claiming, without any legal basis,
that they are "out-with" human rights considerations,
the Quigley review proposes that the police be the sole arbiters
of the public safety aspects of parade applications. This is one
of the most problematic proposals in that it returns the police
to a central role in the decision making process, similar to one
they performed in the past, before the Public Processions Act
came into force. In CAJ's view, one of the most important legislative
advances in recent years has been the clear separation made between
decision-making and policing the decisions once made. The Parades
Commission is currently responsible for the first, and the police
for the latter. This clear delineation of roles has protected
the police from some of the charges of political partisanship
of the past. This is an improvement both in natural justice terms,
and in removing the police from a highly contentious position
where marchers or protestors, and sometimes both, were angry with
the police because of their decision to allow or impede a parade.
Moreover, it is highly questionable whether
the police can in law limit their involvement to the public safety
aspect of parading. The police are subject to the Human Rights
Act like other public bodies, and their decisions therefore must
be in conformity with it. They are not free to disregard their
human rights obligations simply because these have been formally
assigned to some other decision-making body. It is therefore not
at all clear to CAJ how Sir George could conclude that "the
police would have no part to play in the evaluation of the rights-based
factors" (para 65).
Sir George's argument for this radical change
is that it would make the police more accountable. In CAJ's view,
there are many other—better—ways of doing this, and
the risk of returning the police to the invidious position they
were in previously is much too great. Oddly, Sir George gives
only one clear reason for increasing the decision-making powers
of the police in this contentious area, and that is the fact that
the police can best make judgements about how the police budget
is spent.
The review does at least recognise that there
will be concern expressed about the role that the police are being
asked to take on. Sir George claims that his recommendation would
in no sense amount to a return to the pre 1998 Act with regard
to the police role. He argues that the police would only make
a determination on the public safety aspects of parade applications
after the rights-based determination has been made. This fact,
he claims, would ensure that the police would be "involved
in the implementation, not the making, of the Determination and
would not therefore have the dual role which was regarded as an
unsatisfactory' feature of the pre-1998 Act situation" (para
65). But this claim does not bear close scrutiny. The fact that
the police come in at a second stage of the decision-making process,
rather than the preliminary stage, does not remove them from the
decision making process. Indeed, the public safety considerations
are likely on occasion to be considerable, and this stage of the
decision-making will often therefore be a very crucial one. In
reality, few marchers or residents will think of the police as
merely implementing decisions, if a determination is made authorising
or banning a parade on grounds of public safety alone.
Thirdly, and independently of who determines
and how they determine the risks posed to public safety by specific
parades or protests, CAJ believes it is quite misguided to give
such weight to this specific criterion. In a commentary in 2001[38],
we looked back over the decision making process in previous years
and noted:
"in 1996 and in 1997 fear of violent
disorder was the overwhelming criterion for decisions. Thus, in
1996, it was disorder that led to the police allowing a march
down the Garvaghy Road (despite nationalist wishes) and the threat
or disorder that led the police to deny a march down the Ormeau
Road (despite unionist wishes). (CA J's) conclusion in the past
was that such a stance undermines the concept of the rule of law,
encourages resort to violence in order to achieve one's aims,
and leaves the rights of a minority (whoever they might be) unprotected.
By 1998, the Parades Commission took a broader view of the legal
framework than had the police before them, and considered themselves
legally obliged to bear a number of important considerations in
mind alongside concerns about public safety (eg a balancing of
rights, proportionality, disruption to the community etc)."
We concluded that "it would be very unwise
if the Parades Commission were to fall into the trap of earlier
decision making processes that allowed the threat of public disorder
to take on a privileged position in the decision making".
In a commentary on the policing of marching
disputes in 1998,[39]
CAJ noted "that the poilce decided this year to exercise
control over the situation largely by a careful policy of non-intervention
and laissez-faire. This operational approach was greatly facilitated
by the fact that the decision making process as to whether to
allow a march to proceed or not was no longer solely a matter
for the police."
Sir George indicated clearly that he wanted
to avoid anything that might be equated to a "rioters' charter"
(see 15.15). Ironically, though Sir George wanted to give less
priority to the "public safety" limitation, CAJ believes
that the approach recommended (of the police focusing on this
single consideration in the last stage of the decision making
process) will ensure both that this restriction is accorded more
rather than less weight, and will exacerbate the problems of policing
any subsequent disorder.
New structures (para 6 7-72)
It was not particularly clear to CAJ how the
two distinct panels proposed here (ie an independent Rights Panel
for Parades and Protests and a Facilitation Body) would work.
It is also unclear how either or both of these entities would
relate to the police role in subsequently determining public safety
considerations.
We have already challenged the distinction between
"rights" and "public safety", but what is
the intended link between Authorised Officers and the Rights Panel?
Will the Authorised Officers be linked solely to the Facilitation
Agency? If so, how will the Rights Panel garner information of
the kind that we understand the Authorised Officers currently
provide to assist the Parades Commission in its determinations?
Who will the parade monitors "report" to? If the police
alone are to assess public safety, any concerns about response
to public safety considerations on the ground must presumably
be fed to the police—but does this not change the monitors'
role greatly from the current arrangements?
Offences (para 85)
CAJ agrees that the upholding of the rule of
law requires that those in breach of the law are held to account
before the courts. Indeed we have previously raised concerns with
the Director of Public Prosecutions on this issue, and have expressed
concern about the lack of clear statistics as to who is pursued
and why, and why those breaking the law are often not pursued.
CAJ would however caution against emphasising the penalties approach
as opposed to the value of a wider debate about creating a "culture
of rights". The two approaches are in fact complementary
rather than contradictory and should be seen as such.
BODY OF
THE REPORT
The preceding commentary focuses on the executive
summary and the main recommendations and findings of the Quigley
Review. There are, however, a number of issues in the body of
the report itself which merit brief comment.
1. It is noteworthy that as long ago as
the North review, concern was expressed at the excessive emphasis
given to the `public order' aspects of parading and the failure
of these concerns to be balanced against other concerns (para
3.18, page 55). CAJ believes that the proposals of Sir George
seriously risk returning Northern Ireland to a situation where
the `trump card' becomes the public order element of the decision
making process.
2. One of the roles of the Parades Commission
(para 3.24, page 59) is education. Elsewhere (para 3, page 71),
Sir George indicates that the "promotion of greater understanding
by the general public of issues concerning public processions"
is one of four specific duties of the Commission laid down in
the legislation. This is one arena where CAJ has been critical
of the Commission, suggesting that they could do more to promote
greater public understanding of its role, of the conflict of rights
around parading, of the need to balance rights etc. CAJ is disappointed
that Sir George did not make specific recommendations to this
effect, apart from requiring the Agency to retain an educational
function.
3. Para 3.27 and 3.28, pages 60-61, explain
the genesis of the guidelines currently used by the Parades Commission
in its determinations. The Commission is expected to consider
(i) the physical location and route; (ii) the impact on the local
community, including frequency of parades, disruption to trade,
traffic and everyday life; (iii) the purpose of the parade eg
whether it is commemorative, a Sunday church parade or band parade;
and (iv) features particular to that parade eg tradition, numbers,
past behaviour etc. The North review had also recommended that
"alongside these four elements, the (Parades) Commission
should also take into account the preparedness of the parties
to work to reach local accommodation and to look constructively
at alternative means of doing so". As noted elsewhere, Sir
George does not indicate clearly what problems have arisen with
these guidelines. There is a suggestion that they are opaque and
lacking in transparency, but this would seem to argue for more
detailed interpretation and clarification, not the imposition
of new (or supplementary?) undefined criteria.
4. Para 8.5 (page 94) indirectly highlights
a problem that Sir George did not explore in his Review at all.
He notes that "earlier days were recalled when the boot was
on the other foot and the local balance of demography and power
prevented Nationalists from marching where they wanted and where
the control of public space was used to control public expression".
This is an odd formulation, since it suggests that Sir George
thinks that the limitations on nationalist expression are merely
of historical interest. Nationalists might argue that they are
still not allowed to peacefully march through public spaces seen
to "belong" to the other community. Indeed, most commentators
would agree that it is impossible to conceive of a nationalist-organised
event being allowed by the authorities to walk down the Shankill
or indeed into the centre of Portadown. But more importantly for
the purpose of the resolution of the parading dispute is the fact
that "equivalence" is not an issue here. Parading—because
of its history and its cultural roots—has a quite different
significance for members of Loyal Orders and for Catholics or
nationalists. In a deeply divided society, people often mistakenly
look for equivalence and bargaining counters: this is not feasible
in the marching context. This makes a broader educational process
around the rights at issue all the more important.
5. Para 10.1, page 110, "With a few
exceptions, there was no demand for a return to the pre-1998 Act
situation when the regulatory function was discharged by the police
or when politicians had a role in decisionmaking". This finding
does not surprise CAJ; we, however, believe that Sir George's
proposed changes will in fact bring about this very situation,
and will—albeit inadvertently—put the police in the
position of decision- makers once again. Indeed, given the potential
for the police decision to be hotly contested (from either or
both sides of the political spectrum) it is also likely that these
disputes will in time be argued out in the Policing Board. In
this way, elected politicians, as well as the police, will be
brought back into the maelstrom of the parading dispute.
6. Para 10.2, page 115, CAJ notes support
for the idea that "appointments to the Board should pay regard
to the need for gender balance". The Parades Commission is
required to be "as far as practicable . . . representative
of the community in Northern Ireland" (article 2 (3) of Schedule
I of the Public Processions (NI) Act 1998). Given this requirement,
CAJ believes that it is quite unacceptable that it currently consists
of seven men and no women. Despite the fact that a review was
underway, we were disappointed that the government did not remedy
this situation at the earliest possible opportunity. Instead in
December 2002, government re-appointed all of the current members
for a further year.
7. Para 12.5, page 127, Sir George refers
to "the rights most frequently referred to in the context
of the parades issue" and provides the full text of articles
8, 9, 10, 11, 14, 17, 18 and article 1 of the First Protocol.
He does not in fact refer to article 3[40],
which has been referred to by some commentators. This appendix
(with the addition of article 3) highlights CAJ's own contention
that there are several rights in the ECHR relevant to this debate.
Accordingly, since the Human Rights Act incorporates all of these
ECHR rights into domestic law, there is no logic to "privilege"
article 11 alone, as in Sir George's proposals.
8. Para 13.11, page 145: while Sir George
is understandably disappointed that steps towards engagement have
been so tentative, he himself noted earlier the long lineage of
the disputes involved "No decade between 1850 and 1940 lacked
at least one summer of serious rioting" (para 9.4). This
is obviously not an argument for complacency, but a recognition
that solutions will neither be quick nor easy, in ensuring that
in future the rights of all are fully respected.
9. Para 20.11, page 229: CAJ has commented
at length on the risk of engaging the police actively again into
the formal decision making process. We recognise the important
role of the police in providing information to the Commission,
and no-one would suggest that their insights and advice should
be disregarded by the Commission in arriving at its decision.
Indeed, Sir George seems to indicate that no serious problems
have arisen to date in the working relationships between the police
and the current Parades Commission, and that "there is no
reason to believe that the Commission do not operate with the
utmost responsibility in the use they make of police advice".
Given the apparent lack of problems in this area, one must wonder
why such a radical change is being proposed?
10. CAJ has no problem in principle with
the fact that "it is possible under current arrangements
for the Commission to make a Determination which in effect runs
counter to (police) advice". Firstly, we think that public
order (which will inevitably be a primary concern for the police)
should not be the decisive criterion, and the Parades Commission
should have the power to over-ride police advice. Secondly, we
think that the other considerations that must be assessed alongside
public order require a balancing of rights that is best done by
an independent body and not the police. Thirdly, the main argument
that Sir George gives for assigning formal decision-making on
public order grounds to the police is the responsibility they
must exercise over police priorities and determining scarce police
resources. Any special focus on the budgetary consequences of
allowing or prohibiting a parade would need to be very carefully
monitored, to ascertain that the rights of all parties were being
adequately ensured. Again, we think that this function is best
carried out by the police working with the Parades Commission,
not working alone.
CONCLUSIONS
While CAJ believes that improvements could be
made in the current functioning of the Parades Commission, we
do not believe that Sir George has made a cogent argument for
the radical over-haul that he is proposing.
Unfortunately, CAJ has had to conclude that
the recommendations do not provide an acceptable building block
for the future of parading in Northern Ireland, and risk exacerbating
the situation. We believe that the changes proposed are fundamentally
flawed for a variety of reasons: they flow from a mis-reading
of international human rights law; they will not improve the situation
on the ground; they could undermine the consensus that is building
up around the need to respect the rights of all involved; and
they risk placing the police in an invidious and unacceptable
position.
CAJ SUBMISSION TO THE REVIEW OF THE PARADES
COMMISSION BEING CARRIED OUT BY SIR GEORGE QUIGLEY, 2002
INTRODUCTION
The Committee on the Administration of Justice
(CAJ) is an independent nongovernmental group that works to protect
and promote human rights in Northern Ireland. CAJ works across
the gamut of civil, political, economic, social and cultural rights
as defined in international human rights law. Since its inception
in 1981 the organisation has worked on conflict related issues
such as policing, criminal justice, emergency legislation, and
prisoners, but also broader non-conflict related issues such as
gender equality, disability, race discrimination etc. The organisation
was awarded the Council of Europe Human Rights Prize in 1998.
The organisation has been active on issues relating
to parading and associated protests since 1995, both because of
the conflict of rights that marching gives rise to, and because
of the lessons these events hold for public order policing. Apart
from regular items in the organisation's monthly newsletter Just
News, and extensive correspondence with a wide variety of public
authorities, marching organisations and residents' groups, a variety
of publications and submissions have been placed in the public
domain outlining the organisation's findings, for example—
— Policing and Public Order in Northern
Ireland: summary 1996-2000
— Submission to the Progress Review
on the work of the Parades Commission (November 1999)
— Public Order Policing, December 1998
— CAJ response to the Guidelines, Code
of Practice and Procedural Rules issued by the Parades Commission,
February 1998
— CAJ comments on the Public Processions
etc.(NI) Bill, November 1997
— Policing the Police, November 1907
— Commentary by CAJ on the 1996 Primary
Inspection Report by HMIC with reference to the RUC, March 1997
— The Misrule of Law, October 1996
— Review of Parades and Marches, October
1996
The documents listed above have all been made
available to the Review. The following paper seeks to answer the
various questions posed by Sir George Quigley in his questionnaire,
and in so doing draws extensively on our work over several years
and on the different public commentaries cited above.
CAJ is a human rights organisation. As such,
it is interested only in the human rights aspect of the parades
issue: the assertion of rights by the different parties to the
dispute, the state's responsibility to adjudicate fairly between
these competing rights, and the responsibility to police impartially
the adjudication and any resultant public order problems that
may arise. There are a number of issues which are raised in the
questionnaire which do not raise human rights concerns and therefore
CAJ has nothing to contribute on these issues. We expect that
others will address these issues in some detail.
Question 3: should there be a regulatory machinery
and what form should it take?
CAJ never argued explicitly for a Parades Commission
per se, but after the debacle of 1996, where the government
had in advance eschewed all responsibility for the impending crisis
in Portadown, we argued that—
— The government had a responsibility
to create some form of regulatory mechanism to prevent serious
disorder;
— this mechanism should be quite distinct
from the police who have responsibility for policing the eventual
decision and should not also have responsibility for the decision
itself;
— any adjudicatory mechanism should
be independent of government;
— and be representative of the broader
society.
On this latter point "representative"
can be, in our view, either a body which consists of representatives
of all the different perspectives (residents and marchers), or
one that consists of none of them. It would be unacceptable for
the adjudicatory body to consist of only some of the contentious
perspectives. In response to the specific issues raised in the
questionnaire, CAJ believes that the current legislative provisions
relating to the composition of the Board are acceptable, with
the possible exception of the confusion which surrounds the concept
of the board being "representative", and we have commented
on this above.
As to whether the Parades Commission should
also engage in mediation, we would refer Sir George Quigley in
particular to CAJ's response to the Northern Ireland Office review
which is in our "Submission to the Progress Review of the
work of the Parades Commission" (5.95, November 1999). In
our very earliest comments on the draft legislation (see S.61,
November 1997) CAJ had recommended that a mediation function not
be included. VVe obviously think that the mediation function is
a very important one, but we believed that this function should
not be performed by the Parades Commission since it needed to
adjudicate between conflicting positions and there might be a
conflict of interest if adjudication and mediation were carried
out by the same body. Our concerns were not apparently shared
and the Commission was given both mediation and adjudication roles.
In reality, CAJ found there to be less conflict
of interest arising between the functions of adjudication and
mediation than we had feared. Accordingly, when the NIO carried
out its study in 1999, we indicated that we had experienced few
direct problems. We nevertheless noted that the actors more directly
concerned (both residents and marchers) had on occasion expressed
concerns that such a conflict might arise, or might be perceived
as having arisen. Throughout these exchanges, CAJ was quite clear
that, if a choice had to be made between adjudication and mediation,
the Parades Commission must retain the former role. Adjudication
requires statutory powers and cannot easily be performed by anyone
other than something akin to the current Parades Commission, whereas
there are a variety of groups and mechanisms which might be established
to carry out a mediation role.
At earlier stages, CAJ commented at length on
the criteria for making determinations and argued in particular
that they should draw on international human rights law. We are
reasonably satisfied that the agreed criteria do in fact now reflect
good international practice, though we had previously (CAJ, s.61)
noted some reservations about the importance accorded to the extent
to which a route was considered "traditional", since
we saw no grounding for it in international law. Indeed, since
human rights law puts the emphasis on protecting minorities from
an abuse of majoritarian rule, "traditional" routes—which
may reflect the legacy of past power relationships—arguably
runs counter to good human rights practice. In practice, however,
we have had few serious criticisms to make of the criteria being
applied to determinations.
As to the process to be followed in coming to
its decisions, it is obviously vital that the process be open
and transparent. Moreover, the Commission must be prepared, when
necessary, to answer for its decisions before the judiciary when
those affected feel that due process has not been respected.
Question 4: Direct experience of the operation
of the Parades Commission
The best way to respond to this question is
to refer to CAJ's commentary on the Commission's work dated July
2001 which comments in detail on the Commission's annual report
and the Northern Ireland Affairs Committee's assessment of the
Parades Commission (copy enclosed herewith).
Question 5: Any changes to be proposed in areas
such as:
a. Criteria governing appointments:
As indicated above, CAJ believes that the legislation should
define "representative" more clearly.
e-f Protest meetings: CAJ has not
previously commented on the extent to which protest meetings should
be regulated and has not given this issue sufficient consideration
to comment helpfully at this stage. (This is also true for question
11 regarding "other" parades and whether or not there
are issues here to be raised. In our commentary on the legislation
in 1997, however, we did oppose extending the Parades Commission
remit much beyond the issue of contentious parades—see S.61.)
g&j Commission's power to impose conditions
and penalise offences: To date, one of the problems that CAJ has
been aware of is the failure of the Commission to monitor the
extent to which conditions imposed were in fact complied with.
CAJ was aware of several situations when the imposed conditions
were not met, and it was not clear what action, if any, the Commission
had taken. Clearly, over time, the failure of the Commission to
ensure that its conditions are met could undermine its credibility.
This therefore needs to be remedied and presumably the appointment
of parade monitors will assist in this work in the future.
h. The powers of the Secretary of State
and Chief Constable:In the drafting stage of the powers of
the Commission, CAJ was very critical of the retention by the
Secretary of State and the Chief Constable of the power to intervene
and in essence countermand rulings by the Parades Commission.
In practice, this power has not been formally exerted. Indeed,
on one occasion when there was extensive public speculation as
to the extent that the Parades Commission was succumbing to political
pressure from government on a specific decision, public reaction
was extremely negative (from all political corners). At the same
time, it would be wrong to be overly complacent. The very existence
of the legislative provision means that practice can change with
a change of personnel, and CAJ still believes that this provision
should be removed.
We do recognise, however, that on very
rare occasions it is conceivable that the police might simply
be overwhelmed by force and be unable to comply with the Parades
Commission ruling. While expressing the hope that such incidents
would be extremely rare, CAJ recommended that the legislation
provide for such a situation by placing an obligation on the Chief
Constable in such situations to make a full report to the Parades
Commission of the reasons for his/her action as soon as practicable
thereafter.
m. Educational role of the Commission:
In its comments on the Commission's Annual Report, CAJ commented
on the importance of the Parades Commission seeking to inform
the wider general public of its own role, and the centrality of
rights to the parading dispute. We believe that they could make
greater efforts in this regard. It is our sense that the current
Parades Commission is much less known and much less visible to
the general public in Northern Ireland. While to some extent that
is a welcome development, suggesting that parades and the disputes
surrounding them are not as much centre-stage as they were even
just a few years ago, we believe that it is unfortunate that the
periods between high activity and high tension were not used to
promote a greater understanding in the general public about the
work of the Commission.
n. Parades Monitors: This is a new
phenomenon and as yet largely untried. We look forward with interest
to seeing how this system works. CAJ was very active in sending
out observers to monitor the policing of parades in the mid-90s,
and believes that many lessons have been learnt in consequence.
It is not our intention to continue to perform this function on
a routine basis if statutory bodies such as the Parades Commission,
the NI Human Rights Commission, the Police Ombudsman, and the
Policing Board carry out their respective responsibilities in
this domain.
With regard to the Commission's Annual Report,
we have already alluded to our earlier commentary on the document
which is attached herewith.
Question 6-8 the role of other interests in civil
society:
Society as a whole has a contribution to make
to the resolution of this problem. CAJ, as a human rights group,
brings international human rights perspectives to the debate and
has sought to influence the legislation and the policing of these
situations. We believe that the Parades Commission has a difficult
enough task seeking to adjudicate and manage disputes around parades
and protests without taking on responsibility for tackling the
even more fundamental causes that often underlie these problems—social
disadvantage, political alienation, a legacy of discrimination
and major social and economic inequalities. Community forums could
be an important way of addressing some of these fundamental problems
but, if and when they are created, they should feed into the work
of the Commission and be aware of the work of the Commission,
but should not be seen as an alternative to it.
There is also much of interest in the Patten
report in the context of community policing that could be relevant
here since the intention is to find ways in which to ensure "the
[community and the police] working together: mob/using resources
to solve problems affecting public safety over the longer term
rather than the police, alone, reacting short term to incidents
as they occur" (para 7.3, A New Beginning to Policing in
Northern Ireland").
Question 9: does the parades regime established
by the 1998 Act assign an appropriate role to the police?
CAJ believes that one of the key elements which
gravely undermined public confidence in policing in the summer
of 1996 was the fact that the police had a dual role to play in
the unfolding crisis. The police were both responsible for determining
whether or not a particular parade would be allowed to take place,
and what limitations might be imposed on it, and subsequently
the police were responsible for ensuring that their ruling was
fully complied with. These two functions have the potential for
posing a conflict of interest and, in practice, have done so,
with serious negative consequences for the impartial upholding
of the rule of law.
CAJ has consistently argued that the two functions
of (a) parade adjudication and (b) public order policing, must
be kept quite distinct. We are satisfied that this is the case
under the current legislation, and believe that any move to change
this situation would be retrograde. As with all other aspects
of criminal justice, the police should enforce the law or—in
this case—the decisions of the legally constituted Parades
Commission, not determine what the law or the decisions themselves
should be. CAJ notes that when the Northern Ireland Affairs Committee
discussed this matter in 2001, they agreed that the role assigned
by law to the police should not be changed (recommendation h).
Moreover, we should take this opportunity to
note that CAJ's experience of observing many parades and protests
over the last few years has been that the police role on the ground
can and does play an important role in either exacerbating or
defusing tensions around the events themselves. We believe that
Sir George Quigley should comment on this issue, since often the
parades dispute is thought of only in terms of the immediate protagonists
(marchers and protesters). It is CAJ's experience that the police
handling of the situation is of at least equal significance in
determining whether or not the rule of law is effectively and
properly upheld.
Documentation already supplied to the review
and in the public domain indicates that there are many issues
which are crucial to effective public order policing. For example:
— police advance planning;
— communications on the ground;
— operational decisions (when and how
to deploy officers, when and how to deploy riot police in particular,
response to illegal activities whether peaceful or violent, resort
to plastic bullets etc.);
— mechanisms for subsequent accountability.
All too often, CAJ has witnessed highly questionable
decisions being made by individual police officers, or by senior
officers, which have fuelled rather than defused tension. While
many improvements have been made in recent years, and these have
been commented on positively by us in our reports, CAJ has also
expressed the concern that some of the changes may be as much
due to different policing problems on the ground as to any active
learning or change on the part of the police.
It is to be hoped that the positive changes
that have been recorded on the ground can be maintained and indeed
reinforced by the many new structural and institutional mechanisms
recently introduced. The new arrangements put in place pursuant
to the Patten report (devolved commands within the PSNI, a greater
emphasis on human rights protections in police training and codes
of conduct, greater emphasis on community policing, a new Policing
Board, an Oversight Commissioner) together with the independent
Police Ombudsman, the Parades Commission and the NI Human Rights
Commission provide an array of mechanisms which should facilitate
the police in carrying out their important responsibilities of
upholding the law.
Question 10: has the incorporation of the European
Convention of Human Rights into law (ie the passage of the Human
Rights Act) improved the prospects of resolving the issue of contentious
parades?
There are several different issues that arise
in the context of this question. Some people, for example, will
argue that the reliance of different parties to any dispute on
their rights, and on legally enforceable duties flowing from those
rights, is divisive, unhelpful and fuels rather than defuses tensions.
This is not the stance of CAJ. We believe that the language and
concepts of rights, and the responsibility that this imposes on
people to respect the rights of others as well, provides a context
within which dialogue can begin to take place. While we recognise
that the discussion may initially take place in the relatively
adversarial setting of the courts—and that face-to-face
exchanges between the affected parties would be even better—there
is at least the beginning of a rational exchange of views and
arguments. In due course, any genuine engagement with the language
and concepts of rights focuses attention on our common humanity
rather than only on our differences, and facilitates thinking
about win-win scenarios in which everyone's rights are respected.
Our expectation therefore in the longer term is that people who
engage with the rights construct will seek mutually respectful
solutions.
There are, however, gains in the shorter term
also. CAJ has argued at every stage of the debate that the language
and concepts of human rights had a lot to offer to the resolution
and regulation of disputes. In our commentary on the 1996 public
disorder and in our various commentaries on the North Review,
the subsequent draft legislation, and the Parades Commission set
up by that legislation, CAJ emphasised the centrality of rights
to the dispute. We argued for active government engagement in
resolving the problem, and we argued for clear and fair decision-making
processes that would reflect international human rights principles.
Long before the Human Rights Act became a formal part of UK legislation,
government was of course subject to the provisions of the European
Convention on Human Rights (ECHR), and we and others therefore
drew upon this treaty in advising on the way forward. It was a
close study of the ECHR and other international and regional human
rights standards which clarified that (a) all the different parties
had rights which had to be effectively respected; (b) no party
could lay claim to any `absolute right; (c) there was therefore
a genuine conflict of rights which needed to be adjudicated in
a fair and transparent manner; (d) that international standards
offered criteria such as the importance of the protected right,
the need to promote tolerance and broad-mindedness, the weight
and significance of the interests that the state was seeking to
protect by interfering with the protected right, and the need
for proportionality; and (e) that there should be remedies in
law for those who felt aggrieved.
These standards were argued for, and were by
and large included, in domestic legislation in advance of the
passage of the Human Rights Act. Nevertheless, the passage of
the Human Rights Act has had an important impact in at least two
regards. Firstly, the arguments made in the courts in Northern
Ireland can now draw more specifically upon the European standards.
Secondly, the general public is more aware of the human rights
dimensions of the parading dispute because of increasingly frequent
allusions to the operation of the Human Rights Act. The Parades
Commission in choosing, since the passage of the Human Rights
Act, to argue its decisions on the basis of specific articles
of the European Convention has further assisted both in getting
the courts to rely increasingly on human rights standards and
in the process of wider public awareness.
It must be said, however, that government initiatives
around the introduction of the Human Rights Act created some problems
that may hold long term consequences for the resolution of the
parading dispute. The government suggested in early/mid 2000 that
certain aspects of the Human Rights Act could perhaps be fast-tracked.
It was thought that article 11, which protects the freedom of
peaceful assembly and association, could be privileged over other
rights and introduced before the October 2000 date, when the whole
Act was due to be introduced. Human rights activists argued that
it would be acceptable to fast-track the introduction of the whole
Act, but not specific Articles in isolation; any such selective
fast-tracking was seen as essentially using the Act for political
ends.
The general assumption was that government was
proposing fast-tracking the provisions of the Human Rights Act
that were thought by the Loyal Orders to advantage their concerns.
CAJ is of the view that if this was the case, it was misguided,
since Article 11 says specifically that restrictions can be imposed
on the right to peaceful assembly "for the protection of
the rights and freedoms of others". In the end, no action
was taken, so government manoeuvring seems to achieve nothing
other than an undermining of respect for international and domestic
human rights instruments.
September 2004
37 Full title: Review of the Parades commission and
Public Processions (Northern ireland) Act 1998, Sir George Quigley,
GB, PhD, submitted to government on 27 September 2002, published
by Northern Ireland Office with cover letter dated 7 November
2002. Back
38
Policing and Public Order in Northern Ireland 1996-2000, some
CAJ reflections: CAJ, May 2001, SAil. Back
39
Public Order Policing 1998, CAJ, S 80. Back
40
"No-one shall be subjected to torture or to inhuman or degrading
treatment or punishment". Back
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