APPENDIX 19
Response by the Northern Ireland Human
Rights Commission to the Quigley Review on The Parades Commission
and Public Processions (Northern Ireland) Act 1998
SCOPE OF
RESPONSE
1. The NIHRC has focused its consideration
of the Quigley Review on those recommendations that have a direct
bearing on human rights issues, notably the criteria on which
determinations by the Parades Commission and related decisions
by other agencies should be based and the procedures through which
those determinations and decisions are made. It has not sought
to comment in detail on other more practical aspects of the regulation
of parades, such as the proposed arrangements for the provision
and training of marshals, the obligation to carry out risk assessments
or the regulation of bands or of paramilitary symbols.
BRINGING THE
STATUTORY CRITERIA
INTO LINE
WITH ARTICLE
11 OF THE
ECHR
The Quigley Review recommends that the criteria
on which determinations are made should be modelled precisely
on Article 11 of the European Convention on Human Rights (paras
36-37).
2. The NIHRC strongly supports this recommendation.
It would, as the Quigley Review suggests, emphasise that human
rights principles are the essential basis of decisions in this
area and help to remove any confusion over the grounds on which
determinations are made. The courts in reviewing decisions by
the Parades Commission and other agencies are in any event bound
to apply the provisions of Article 11, which in its reference
in paragraph (2) to the rights and freedoms of others incorporates
all other relevant articles of the Convention. This recommendation
is also in line with the approach which the NIHRC has consistently
taken to the regulation of parades, notably by commissioning a
report on the interpretation of the ECHR in respect of parades
and related protests, published as Parades, Protests and Policing:
A Human Rights Framework in March 2001, and by suggesting
in its Consultation Paper Making a Bill of Rights for Northern
Ireland that the provisions of Article 11 provide sufficient
protection to all those involved.
3. It is important in this context to emphasise
that all of the provisions of the Convention are of equal importance
in decisions on parades. The provisions of Article 8 are particularly
relevant in respect of the interference with family life which
may arise from the heavy security which has in the past been associated
with contested parades. So too are those of Article 10 in respect
of the right to free expression for both marchers and those who
wish to protest. The express reference to "the rights of
others" in Article 11(2) makes it clear that limitations
may and in many cases should be placed on the exercise of the
right to peaceful assembly in order to protect the rights of others
affected by a peaceful assembly, whether by unreasonable disruption
or by measures taken to preserve public order. It should also
be noted that the rights of others under the Convention also include
the provisions of Article 17, which states that nothing in the
Convention may be interpreted as implying for any State, group,
or person any right to engage in any activity or perform any act
aimed at the destruction or limitation of any of the rights and
freedoms protected by it.
ADDITION OF
A PROVISION
EMPHASISING THE
OBLIGATION TO
RESPECT THE
HONOUR AND
DIGNITY OF
ALL
The Quigley Review recommends that consideration
be given to the inclusion of the following provision (para 45):
In the exercise of their right to freedom
of peaceful assembly, all have a right to have their honour respected
and their dignity recognised and must themselves respect the honour
and recognise the dignity of others.
4. There are some advantages in relying
exclusively on the provisions of Article 11, as they have been
interpreted by the European Court of Human Rights. Its recent
decisions, notably Plattform "Arzte für das
Leben" v Austria and Stankov v Bulgaria,
have emphasised that the right to peaceful assembly is not to
be curtailed merely because it may annoy or give offence to others
or because it may give rise to tension and heated exchange between
opposing groups and that in such cases it should where practicable
be protected by the authorities rather than subordinated to considerations
of public order. The Court has also emphasised in G v Federal
Republic of Germany and Steel v United Kingdom
that the right of peaceful assembly does not cover cases where
the organisers of a demonstration have violent intentions which
may result in public disorder or where they take action which
may significantly obstruct others or which is likely to provoke
others to violence. Given the obligation imposed on courts and
public bodies under the Human Rights Act 1998 to follow the principles
established by the European Court of Human Rights, there is no
need to spell them out in national legislation.
5. On the other hand there is nothing in
the European Convention which would prevent the inclusion of more
specific provisions to emphasise these principles or to give further
guidance to those making relevant decisions in the light of the
particular circumstances in any State. Members of the Human Rights
Commission differ between themselves as to the utility of including
such provisions; the majority support their inclusion but a small
number of Commissioners hold the opposite view. The European Court
of Human Rights has consistently given a wide margin of appreciation
to national bodies to adopt measures of this kind. Additions to
the Convention are precisely what the NIHRC is called on to consider
and recommend in respect of the proposed Bill of Rights for Northern
Ireland. However, the obligation to respect the honour and dignity
of others, as suggested in the Quigley Review, would not, in the
view of the whole Commission, provide any particularly useful
guidance to the Parades Commission or other agencies in making
decisions on contested parades. If further provisions are to be
added to those in Article 11, either in the proposed legislation
or in associated guidelines or codes of conduct, they should,
in the view of those Commissioners who are in favour of such additional
provisions, be more directly focused on two issues:
(i) an obligation to tolerate the expression
of opposing views and cultures (see para 6 below), and
(ii) an obligation to refrain from any
form of provocation or harassment (see para 7).
6. Although there is no direct recognition
of a right to toleration, an obligation to tolerate different
religions and cultures is referred to in all the main international
human rights conventions. The European Framework Convention on
the Rights of National Minorities includes a more direct provision
requiring States to:
"encourage a spirit of tolerance and
intercultural dialogue and take effective measures to promote
mutual respect and understanding and co-operation among all persons
living on their territory . . ."
It would be possible on this basis to include
a provision in the associated guidelines or codes of conduct for
the relevant legislation requiring the Parades Commission and
other agencies to take into account, when making determinations
or imposing conditions, whether or not a spirit of tolerance for
parades or demonstrations by opposing groups had been shown by
those opposing as well as those organising contested parades.
7. It would also be possible to include
in the associated guidelines or codes of conduct for the relevant
legislation some more detailed guidance on the interpretation
of what is meant by "peaceful assembly" in the context
of contested parades. There is already a wide range of criminal
offences in the Public Order (NI) Order 1987 in respect of disorderly,
intimidating or threatening behaviour, the use of words or behaviour
likely to stir up hatred or arouse fear and provocative conduct
at a public meeting or procession and in the Public Processions
(NI) Act 1998 in respect of abusive behaviour towards a person
taking part in a lawful public procession. In addition, the "Rights"
section of the Belfast (Good Friday) Agreement includes a commitment
by the parties to "freedom from sectarian harassment".
The NIHRC has already suggested in its Consultation Paper Making
a Bill of Rights for Northern Ireland that this should not
be restricted to sectarian harassment but should include other
forms of harassment. On this basis the Parades Commission and
other agencies could be required to take into account, when making
determinations or imposing conditions, whether or not those organising
a parade or protest had taken effective measures to avoid or prevent
disorderly, threatening, intimidating or abusive behaviour or
harassment by those taking part.
8. The objective of including provisions
of this kind would be to encourage all those on either side in
respect of any contested parade to seek an accommodation and in
the longer term to promote a society in which mutual tolerance
of expressions of language and culture by other communities need
not be regarded as a threat to their own. It might also assist
in reversing the current trend in some areas and villages towards
the assertion of exclusive "ownership" by one or other
community and the exclusion of any expression, however temporary,
by another. That degree of communal separation would not in the
view of the Commission represent an acceptable vision for the
future of Northern Ireland as a whole and would run counter to
the underlying principles of the Belfast (Good Friday) Agreement.
THE SEPARATION
OF DECISIONS
ON RIGHTS
FROM THOSE
OF PUBLIC
ORDER
The Quigley Review recommends that decisions in
respect of public safety, as opposed to the rights issues to be
dealt with by the Parades Commission, should be the exclusive
responsibility of the police, subject to a reserve power for the
Secretary of State to intervene (para 63).
9. The NIHRC is strongly opposed to this
recommendation on a number of related grounds. In the first place,
it is unrealistic to separate the various considerations that
are relevant to a decision under Article 11. Issues of public
order and public safety, as well as the rights of peaceful assembly
and free expression, are an integral part of any decision on whether
or under what conditions a parade or protest is to take place.
All these matters must be taken into account by the initial decision-making
body, by national courts in appeal proceedings and ultimately
by the European Court of Human Rights, all of which are now directly
bound by the terms of the European Convention. Secondly, since
issues of public order and public safety are often a determining
factor in decisions on contested parades in Northern Ireland,
to remove these from the Parades Commission would in effect involve
a return to the situation prior to 1998 under which the effective
decision was left to the police. One of the principal advantages
of the provisions of the Public Processions (NI) Act 1998 is that
the police are now able to use their professional skills in enforcing
communally contentious decisions made by an independent body rather
than having to make and then enforce their own decisions. Thus
far the police have been able to implement the determinations
of the Parades Commission without calling for intervention by
the Secretary of State and the NIHRC is not aware of any desire
on the part of the Police Service of Northern Ireland, or any
other relevant body, to return to the pre-1998 position. Thirdly,
the police would in any event retain their common law power to
intervene to maintain public order on the ground if, as the situation
develops, it becomes impracticable to enforce a determination
or condition.
10. An additional consideration in rejecting
this recommendation is that it would add to the widespread concern
that determinations by the Parades Commission have not been made
in a sufficiently open and transparent manner, notably in that
the advice on issues of potential public disorder by the police
is not made available to other interested parties. Although it
is not entirely clear whether decisions on parades fall within
the terms of Article 6 of the ECHR, which requires decisions on
civil rights and obligations to be made by an independent and
impartial tribunal, the NIHRC considers that it is in any case
desirable for all the relevant considerations, including those
relating to potential disorder, to be made available to and open
to representations from all the parties to a contested parade
or demonstration. This can best be achieved by requiring the police
to present their advice on public order and public safety issues
to the Parades Commission. Other interested parties should then
be allowed to comment on or contest that advice, although the
views of the police would naturally be expected to be given considerable
weight.
THE APPLICATION
OF THE
SAME RULES
TO BOTH
PARADES AND
PROTESTS
The Quigley Review recommends that the same body
should be authorised to deal with both parades and protests and
that the same criteria should be applied (para 59)
11. The NIHRC is opposed to some aspects
of this recommendation on a number of grounds. It recognises the
illogicality of the situation in which one body, the Parades Commission,
makes determinations and imposes conditions on parades under the
Public Processions (NI) Act 1998, and another, the PSNI, is left
in control all aspects of associated protests under the Public
Order (NI) Order 1987. But it is concerned that the structure
recommended by the Quigley Review may impose unreasonable requirements
in respect of prior notice for those waiting to protest against
a proposed parade. The suggestion that the organisers of protests
should give five months' prior notice of their intentions is impracticable,
given the immediacy of many parade-related issues on which protests
may legitimately be mounted. And if a broad exemption was granted
in circumstances in which it was impracticable to give the required
notice, there would be a risk of complex, time-consuming and ultimately
unproductive disputes on whether or not it had been practicable
to do so.
12. A better means of achieving the objective
of the recommendation—to apply the same criteria for restrictions
and conditions on those involved in both parades and associated
protests along the route—would be to extend the jurisdiction
of the Parades Commission in issuing its determinations and imposing
conditions to cover both the parade and any contemporaneous protest.
It would not be essential for this purpose to impose strict rules
in respect of prior notification of intended protests, since those
opposing an intended parade would have identified themselves during
the extended process for facilitation or in the hearings before
any eventual determination, as recommended by the Quigley Review.
And the police would, as already indicated, retain their common
law power to intervene to protect the peace in the event of unforeseen
disorder.
THE SEPARATION
OF THE
PROCEDURES FOR
FACILITATION AND
DETERMINATION
The Quigley Review recommends that there should
be separate bodies to facilitate local accommodations, a Parades
Facilitation Agency and, to make binding determinations, a legally
qualified and independent Rights Panel (paras 67-72).
13. The NIHRC is generally in favour of
the separation of the two functions of mediation/facilitation
and adjudication. This would be in line with recent legislation
on discrimination and equality throughout the United Kingdom and
elsewhere, which has sought to distinguish clearly between the
roles of promoting equality or fair treatment and making formal
adjudications on rights. In Northern Ireland the role of the Equality
Commission in promoting fair employment practices is formally
separated from that of the tribunals which make binding decisions
on disputed cases. The role of the NIHRC in promoting human rights
and investigating alleged violations is similarly distinct from
that of the courts in making rulings under the Human Rights Act
1998. There is no international standard on this issue. The UN's
Paris Principles on National Human Rights Institutions, for example,
accept that national human rights institutions may have a role
in making formal adjudications as well as in more general promotion
and investigation. But the recent policy in Britain and Northern
Ireland of separating the two functions has generally worked better
than the previous structures under which the roles of promotion
and adjudication were combined.
14. An additional argument in support of
this approach, as indicated above, is that it would ensure compliance
with any obligations under Article 6 of the ECHR which might be
held to apply to determinations on parades or protests. The proposed
Rights Panel with a legally qualified chair would clearly fulfil
the requirement for independence and impartiality and the opportunity
for the presentation of opposing arguments and evidence which
a formal hearing before a tribunal of this kind would involve
would fulfil the requirements of openness.
THE EXTENSION
OF PRIOR
NOTICE REQUIREMENTS
AND OF
THE DURATION
OF DETERMINATIONS
The Quigley Review recommends that the prior notice
requirement for parades should be extended to six months to allow
time for effective facilitation of local accommodations and that
duration of determinations should be extended up to five years
(paras 53-54).
15. The NIHRC is generally in favour of
an extension of the period of notice for parades, although not
as already indicated for protests. It has no strong views on the
precise timetable, provided that it allows sufficient time for
effective facilitation for each "marching season". It
is also in favour of an extension of the duration of determinations
to allow determinations to cover the whole of an annual "marching
season". This would encourage marching bodies to put forward
proposals for the whole of each year and enable the proposed Rights
Panel to impose reasonable conditions on the number of parades
in a given area. Given the disruption which large or repeated
parades necessarily involve, this is clearly a legitimate concern
for residents and businesses. It would also avoid the unnecessary
and time-consuming procedures under the current legislation for
the notification and consideration of multiple applications in
respect of the same area or route. However, the NIHRC is not in
favour of extending the potential duration of determinations for
as long as five years, given the potential for circumstances changing
from year to year in many areas and the procedural confusion which
might arise from repeated applications for amendment of extended
determinations.
13 September 2003
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