Select Committee on Northern Ireland Affairs Written Evidence


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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