APPENDIX 21
Social Democratic and Labour Party response
to the review of the Parades Commission
SUMMARY
The SDLP believes that this review is fundamentally
flawed and that the clear majority of its recommendations should
be rejected outright.
Just over a year before the review was commissioned,
the British Government carried out its own review of the Parades
Commission. Commenting on it, the then Secretary of State stated—
"I would like once again to pay tribute
to the magnificent work the Commission has done, often under extreme
pressure . . . They have consistently done so impartially and
in the best interests of the whole community in Northern Ireland."
10 February 2000
Clearly, then the decision to conduct this review
was merely a political concession to the UUP at Weston Park. Further,
by the British Government's own yardstick, the case for change
has not been made.
The review starts from a false premise—so
it is no surprise that it arrives at wrong conclusions. Sir George
states that no issue "has the ability to arouse more passion"
than parades. In fact, thanks to the successful work of the Parades
Commission, parades no longer top the public's list of concerns.
The current system is working—and the SDLP's strong message
to the British Government is if it ain't broke, don't fix it.
To do otherwise would undo the progress made to date and threaten
to reignite controversy surrounding parades throughout the north,
particularly at interfaces.
The Parades Commission has rightly pointed out
that:
— it has "acquired "valuable
expertise and experience in dealing with the issues"
and that an "experienced, stable Commission is of considerable
benefit to both sides in the parading conflict."
— "there is a critical mass
within the unionist community wishing the Loyal Orders to engage
more fully with the current Commission model."
— "The green shoots of resolution
are, it seems, breaking through what was once particularly stony
ground."
— "The contentiousness of parades
has steadily dropped as the Commission's framework has become
more familiar and more accepted."
Quigley does not seriously challenge this. The
SDLP is astonished therefore that he should effectively recommend
the disbandment of Commission, setting at naught much of this
progress.
Dangerously, the review also recommends that
the police should decide on public order matters. That is bad
for policing and it is bad for the public. Having the police put
back at the centre stage of parading would make their position
impossible—and would threaten to undo the huge progress
made since the Patten report in building an acceptable police
service. On at least two occasions the Chief Constable has stated
publicly that he does not want to see the police returned to deciding
on public order. The SDLP is calling on the British Government
to heed his advice and reject this reckless recommendation outright.
The report favours ignoring the impact of parades
on community relations generally. It also removes key incentives
for loyal orders and residents to engage in dialogue. At a time
when promoting dialogue and ensuring good community relations
was never more important, this is clearly unacceptable.
The report favours a far more rigid and formal
approach to decision making on parades. While the SDLP would like
to see greater transparency in Parades Commission decisions, we
believe that Quigley's proposals are impracticable and ill-conceived.
In particular, they threaten the free flow of information to the
Commission by making it far more difficult to supply information
confidentially.
The SDLP does see merit in some of Quigley's
proposals. For example, we favour a facilitation agency. Unfortunately,
Quigley also proposes giving the agency some regulatory powers—which
will serve only to undermine its standing in facilitation. We
welcome the proposal to remove traditionality as a statutory criterion
for Parades Commission decision making. We also favour bringing
protests within the parades regulation process.
The SDLP agrees that the faultlines revealed
by the parades issue reflect a deeply riven society and that addressing
people's inability to live together is the central challenge for
our devolved institutions. We are fully supportive of Quigley's
vision of an inclusive open tolerant compassionate society whose
members have the self-confidence to embrace diversity and thrive
on difference.
We regret, however, that most of the recommendations
of this report will contribute nothing to the creation of such
a society, nor to the erosion of those faultlines. Indeed, many
recommendations threaten to make them worse.
A NEEDLESS REVIEW
Before responding to the proposals of the Quigley
review, the SDLP wishes to make clear that this was a needless
and disruptive review which has done nothing to resolve the remaining
difficulties over parades and, indeed, has threatened to undermine
progress already made by encouraging those who do not wish to
cooperate with the current system.
In July 2001, the pro-Agreement parties met
at Weston Park to consider issues around the implementation of
the Good Friday Agreement. Afterwards, the British and Irish Governments
issued their joint proposals document. It included a review of
the parades commission.
As we made clear at the time, the Parades Commission
is not in the Good Friday Agreement. It was not raised with us
by any of the parties to the negotiations. Nor can any party claim
that it was impeding progress on the full implementation of the
Good Friday Agreement. We therefore do not believe that the British
Government should have agreed to it.
Further, we do not believe that a review was
necessary, given that a review of the Commission had already been
conducted in late 1999 and early 2000. The then Secretary of State,
speaking in response to that review, stated:
"I would like once again to pay tribute
to the magnificent work the Commission has done, often under extreme
pressure . . . They have consistently done so impartially and
in the best interests of the whole community in Northern Ireland."
10 February 2000
We can only conclude that this review was a
political concession to the UUP. By the British Government's own
yardstick, the review was unnecessary and the case for major change
has not been made. We agree—and urge that most of the recommendations
of the review be rejected.
SDLP SUBMISSION TO
THE REVIEW
AND MEETING
WITH SIR
GEORGE QUIGLEY
While we did not believe that the review was
necessary, the SDLP nonetheless cooperated with it.
In our submission to the Review, the SDLP urged
a cautious approach. We pointed out the considerable success of
the Parades Commission. We argued that because of its work, parading
was no longer the contentious issue that once it was. And we expressed
the concern that this good work might be undone by the review.
We also argued that:
— a Parades Tribunal would, among other
things, encourage an adversarial approach.
— Article 11 of the European Convention
on Human Rights was already properly reflected by the Human Rights
Act, 1998.
— Section 8(6) of the Public Processions
Act did not place an unwarranted emphasis on public order.
— Section 8(6)(e), which allows traditionality
of routes to be considered and was not advocated by the North
report, should be deleted.
— The Parades Commission should keep
its current statutory role, but should appoint a designated agency
to carry out its mediation responsibilities. The agency would,
however, work closely with the Parades Commission.
— Judicial review provided an adequate
control of the Parades Commission, particularly in the light of
the Human Rights Act.
— There should be better regulation
of stewarding and marshalling, the use of alcohol, paramilitary
displays as well a requirement to post bonds and provide insurance.
— The Commission's remit should be
extended to all forms of public assembly, including demonstrations
and protests.
The SDLP also met with Sir George Quigley, as
on a separate occasion did the SDLP Leader Mark Durkan and Deputy
Leader Brid Rodgers. Throughout both meetings, the above points
from our submission were also made. The basic message to Mr Quigley
was "if it ain't broke, don't fix it". While we favoured
some minor changes, we saw no reason for a fundamental reworking
of the Parades Commission. We also cautioned strongly against
changes that would reignite the parades issue or undermine progress
made to date by the Parades Commission.
EVIDENCE OF
THE PARADES
COMMISSION
The Parades Commission in its evidence summarised
by Quigley sets out clearly its successes to date and the reasons
for no radical change (pages 141, 315-321).
It correctly points out that:
— it has acquired "valuable
expertise and experience in dealing with the issues."
— an "experienced, stable Commission
is of considerable benefit to both sides in the parading conflict."
— "there is a critical mass
within the unionist community wishing the Loyal Orders to engage
more fully with the current Commission model."
— "The green shoots of resolution
are, it seems, breaking through what was once particularly stony
ground."
— "Protest . . . is more likely
to be peaceful than in the past."
— "The contentiousness of parades
has steadily dropped as the Commission's framework has become
more familiar and more accepted."
— "Outside those closest to
the parading dispute, there is not serious concern about public
confidence in the Commission."
FACILITATION
Quigley recommends that there "should be
established a facilitation function which is located within the
regulatory machinery and directly managed by it" (page 166).
The SDLP has considered this recommendation carefully in the light
of the need identified both by us, the Parades Commission and
others not to disrupt the progress made to date.
We believe that this recommendation can help
to build on progress made provided that certain crucial conditions
are met.
First, for the reasons set out below, the regulatory
machinery in question must remain the Parades Commission. We are
vehemently opposed to the establishment of a Parades Tribunal.
Second, those carrying out the facilitation
function should be appointed by the Parades Commission itself.
They should, as Quigley recommends, operate within appropriate
procedures and codes of conduct (page 166), which should be set
by the Commission. That way, the change would not be seen as a
negative reflection on the work of the Parades Commission to date
and would not detract from its authority. In effect, there would
be a facilitation agency. As we argued in our submission to the
review, such an agency could enable those unhappy with the Commission
to begin to engage.
The SDLP is fundamentally opposed to giving
the functions of preparing guidelines, procedural rules and codes
of conduct to the facilitation agency as Quigley recommends (page
242). It is simply nonsensical to suggest that a facilitation
agency should have regulatory functions. The same applies as regards
the appointment of monitors.
Third, those involved in facilitation
should include some from the existing authorised officer cadre—something
Mr Quigley also envisages (page 167). That way, valuable experience
and expertise would not be lost.
Fourth, we do not agree, however, that
the facilitator at the end of the process should report on the
extent to which the parties had acted in good faith towards each
other and had participated in a manner that was designed to resolve
the issues involved (page 168). Mr Quigley offers no basis for
his conclusion that these words would eliminate arguments which
have developed around the present concept of "engagement."
To the contrary, we believe that they will only serve to increase
controversy by the introduction of new and poorly defined concepts.
Fifth, we vehemently disagree with the
argument that "the Report [of the Facilitator] is no more
than a recognition of honourable failure . . . to achieve settlement
by agreement" and the related dropping in the guidelines
of "communication with the local community" (pages 169
and 177). We believe that the extent to which the parties are
willing to engage in substantial sustained dialogue is relevant
to the merits of the case.
Dialogue is essential to build good community
relations and shows respect for the rights of others. Efforts
made to engage in dialogue are therefore clearly relevant. Further,
if the regulatory machinery cannot take full account of the failure
to engage in substantial sustained dialogue, those who have spurned
dialogue will have no incentive to change their position. Both
the North report and the Parades Commission's Guidelines have
rightly stressed the approach of the parties to reaching accommodation
in one form or another. That must remain the case. It would be
perverse and outrageous if at a time when government policy is
to encourage dialogue and improve community relations, these were
to be dropped as considerations in making determinations.
Quigley comments that nationalists are concerned
that determinations are used to reward parade organisers for what
are not necessarily genuine efforts at local problems regardless
of the rights issues underlying the dispute (page 169). It is
true that many nationalists share this concern. However, his proposals
do nothing to address it. Rather, they merely remove the incentive
for loyal orders to engage in dialogue at all.
We agree that agreements reached under the auspices
of the facilitation function should be registered and have the
same force as a determination (page 171).
FORMAL DETERMINATION
ROLE
Quigley proposes making explicit reference to
Article 11 of the European Convention on Human Rights in section
8(6) of the Act (page 183). The SDLP is opposed to this. First,
it is unnecessary as the Act already has to be interpreted in
the light of the European Convention on Human Rights due to the
Human Rights Act. Second, it is misleading. It suggests that Article
11 ECHR is the only provision relevant to parades. This is wrong.
Other articles are also clearly relevant, such as articles 3,
8 and 10—a point made by Mr Quigley himself (page 186).
Mr Quigley also recommends new Guidelines (page
184). As stated above, we are vehemently opposed to the dropping
of the Parades Commission Guideline on communication with the
local community. At a time when government policy is to encourage
dialogue, this is perverse. Dialogue is essential to good community
relations and shows respect for the rights of others.
Further, we cannot agree with the abandonment
of relationships within the community as a factor. Bizarrely,
Quigley lists as a factor the sensitivity of sites (page 186).
Yet sites are only sensitive because of community views of them.
How then can Mr Quigley justify considering the sensitivity of
sites, but not community views and impact on community relations
more generally? Moreover, if community views are not relevant,
how is one able to have regard to the honour and dignity of others—as
Mr Quigley proposes (page 193)? This proposal is ill-conceived
and must be rejected.
Quigley also proposes dropping section 8(6)(e)
of the Act. The SDLP agrees with this proposal. We do not believe
that the fact that a parade is traditional is significant—nor
does international human rights law suggest that it should be.
That said, as Quigley points out, traditionality has been neither
the dominant nor the determining factor in Parades Commission
decisions to date (page 187).
The SDLP agrees that the frequency of parades
is relevant and that in the imposition of restrictions traditionality
could be a factor in determining priorities as between parades
of a similar nature (page 188). But if the parades are not of
a similar nature, traditionality would not be relevant. For example,
it would be arbitrary to limit a parade against the war in Iraq
on the basis of the traditionality of an AOH parade.
THE PROCESS
FOR MAKING
DETERMINATIONS
Quigley recommends the dropping of Procedural
Rule 3.3, which provides that all evidence provided to the Commission
will be treated as confidential, and recommends a more formal
process whereby:
— objectors are offered the opportunity
formally to register their objections;
— the determining body arranges a hearing
at which parties would be obliged to present their case. The determining
body would have discretion to handle in any way it deemed appropriate
and so as to disadvantage none of the principal parties any submissions
which were made on a confidential basis.
— a determination would then be offered,
evaluating the evidence and showing clearly the reasons for conclusions
(pages 206-207).
The SDLP is opposed to this approach which would
overly formalise the Commission's procedures and impede the free
flow of information to the Commission by failing to provide adequate
guarantees of confidentiality. It would also discourage those
groups beginning to engage with the Commission on a confidential
basis and set back progress being made on parades.
That said, the SDLP believes that the Parades
Commission should be more transparent in its decision making and
show more clearly the reasons for its conclusions.
We also believe that it would be desirable to
conduct more hearings where this is appropriate and practicable.
We are conscious that it will often not be practicable and that
the great advantage of the Parades Commission has been the flexibility
of its procedures. The Parades Commission is not a tribunal, and
adoption of tribunal style adversarial procedures would be expensive
and time consuming.
We see some scope for relaxing Rule 3(3). However,
we are deeply concerned at the Quigley approach which seems to
require submissions to be made at an oral hearing. That would
cut off the flow of important information to the Commission. Northern
Ireland is not Scotland. If people cannot be guaranteed anonymity
or are required to present themselves at hearings for their submissions
to be admissible, too often out of fear they will stay away and
stay silent. In order to ensure the free flow of information to
the Commission, it must be able to receive information confidentially
and informally. It should be left to the Commission to assess
that information sensibly. In particular, the Commission should
be able to express unattributed general views at any stage in
a way that does not compromise those providing the views.
NOTICE OF
INTENTION
Mr Quigley recommends, with the possibility
of some leeway, that organisers should be required to notify intention
to parade no later than 1 October or 6 months prior to the date
of the procession, whichever is the later (page 216).
The SDLP doubts whether this is practical. Further,
we would be concerned at excessive restrictions on freedom of
assembly for public processions which do not occur annually.
COMPLIANCE
The SDLP agrees that "systems must therefore
be in place to ensure that failure to comply will have consequences"
(page 219). We support the use of bonds and believe that failure
to comply should lead to the prohibition of future parades in
serious cases. The same process should also apply to protests.
PROTESTS
The SDLP welcomes the proposal to bring protests
within the jurisdiction of the parades machinery (page 222).
PUBLIC SAFETY
The SDLP is vehemently opposed to Mr Quigley's
proposal to leave public safety considerations to the police (page
231).
First, this wrongly treats public safety as
if it were separate from human rights considerations. There is
no justification for this. Public safety considerations are among
the human rights considerations to be examined.
Second, the separation of public safety considerations
from other human rights considerations will encourage the perception
in individual cases that there is a right to parade and that the
police are wrongly limiting that right on public safety grounds
when in fact there is no such right under the European Convention
of Human Rights precisely because of public safety considerations.
That will cause dangerous confusion and division.
Third, this proposal is dangerous for policing
and for the public. On at least two occasions the Chief Constable
has stated publicly that he does not want to see the police returned
to deciding on public order. Having the police put back at the
centre stage of parading would make their position impossible—and
would threaten to undo the huge progress made since the Patten
report in building an acceptable police service. The SDLP is calling
on the British Government to heed the Chief Constable's advice
and reject this reckless recommendation outright.
Finally, instead of reducing the weight given
to the public safety criterion, this approach could in fact increase
it. That would, in turn, encourage a culture where might is right—something
which the SDLP strongly opposes.
NEW STRUCTURES
Quigley suggests an independent rights panel
for parades and protests (page 238). This means disbanding the
Parades Commission. The SDLP believes that implementation of this
proposal would be totally reckless. At a time when controversy
over parades is declining, this would be certain to reignite controversy
and undo progress made.
As the Commission rightly pointed out in its
evidence:
— an "experienced, stable Commission
is of considerable benefit to both sides in the parading conflict"
— "there is a critical mass
within the unionist community wishing the Loyal Orders to engage
more fully with the current Commission model"
— "The green shoots of resolution
are, it seems, breaking through what was once particularly stony
ground."
Quigley does not clearly challenge any of this.
We therefore cannot see how he can justify this recommendation.
The review does, however, start from the false
premise—asserted without evidence—that no issue "has
the ability to arouse more passion" than parades. In fact,
there is a widespread conviction that parades no longer top of
the public's list of concerns. The SDLP believes that this is
thanks to the work of the Parades Commission.
Our strong message to the British Government
is if it ain't broke, don't fix it. The Parades Commission must
continue its important work.
THE HISTORICAL
AND CULTURE
CONTEXT
The SDLP agrees that the faultlines revealed
by the parades issue reflect a deeply riven society and that addressing
people's inability to live together will be the central challenge
for our devolved institutions, when restored. We are fully supportive
of Quigley's vision of an inclusive open tolerant compassionate
society whose members have the self-confidence to embrace diversity
and thrive on difference.
We regret, however, that most of the recommendations
of this report will contribute nothing to the creation of such
a society, nor to the erosion of those faultlines. Indeed, many
recommendations threaten to make them worse.
June 2003
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