APPENDIX 23
Supplementary memorandum submitted by
the Ulster Unionist Party
Please find attached a copy of the Party's submission
to the "Government's Consultation on the Quigley Review of
the Parades Commission".
Since compiling our document in response to
Quigley, two significant things have happened.
First, Northern Ireland enjoyed its most peaceful
summer in a decade. This was not an accident but was generated
by people being willing to accommodate the peaceful passing of
legitimate parades in previously difficult flash point areas.
We welcome the summer and hope that the work done on the ground
will continue for future summers.
Second the Government has renewed for a further
two years the remit of the Parades Commission. We do not welcome
this announcement and consider it to be counterproductive to the
type of work done in the summer. The re-appointment of the Parades
Commission can only be read in conjunction with the Northern Ireland
Office unnecessarily delaying its duty to bring forward substantive
legislation and administrative changes which effectively are a
replacement of the operation of the Parades Commission.
7 October 2003
THE ULSTER UNIONIST PARTY RESPONSE TO THE
CONSULTATION OF SIR GEORGE QUIGLEY'S REPORT ON THE REVIEW OF THE
PARADES COMMISSION MAY 8, 2003
The Quigley Report accurately reflects the paramouncy
of introducing a better way of consideration in relation to the
manner in which the control of all parades is organised.
The Party welcomes the Report's endorsement
of the UUP's view that a replacement of the operation of the Parades
Commission is vital in order to improve the prospect of fairness
and impartiality.
We recognise also that "rights issues"
remains at the heart of disputes over certain parades. Therefore
we find favour with the Report's assertion that fundamental to
the outcomes of decisions, the parade organisers in particular
be informed of the reasons why a decision was reached. We would
wish to have included in such transparency the assessments given
by the PSNI.
The Report is not clear as to how best "long-term
disputes" can be resolved through the facilitation recommendations.
It should be borne in mind that where an "indefinite
protest stance" is adopted by both the parade organisers
and the parade objectors, such as on the Garvaghy Road Route (which
has remained unresolved since 1998), the effect will have serious
repercussions across Northern Ireland. Likewise for the Ormeau
Road parade in Belfast and for the Newtownbutler parade. In such
circumstances, the Report falls short in recommending a greater
measure of facilitation to deal with disputes deemed thus far
incapable or resolution.
However, we do recognise that the Report in
general supports correction of the current operation for determinations
when it makes the valid and salient point, that: "In the
determination proceedings the dispute about rights and responsibilities
should be decided on the merits of the case".
As regards the "decision making process",
we find favour with the concept of commencing with a formal registration
of a parade and then moving to the objections. In most cases,
registering earlier than 28 days before the parade causes no problems,
but there will be circumstances when this may not be possible
and, therefore, provision should be made to facilitate such a
need, if and when it arises.
The process detailed on page 207 of the Report,
paragraphs (iii) and (iv) is acceptable with an important proviso
incorporated, namely that others offering evidence should be vetted
on the relevance of their evidence. This should ensure that this
facility should be effectively regulated. The current "revolving
door circus", mostly for media hype, occurring ritually at
the Parades Commission's office must be curtailed. The handling
of the determination proceedings as detailed on page 208 paragraph
(v) are acceptable.
We have always had major concerns about anti-parade
protests organised to manipulate violent reaction which negates
the marchers' fundamental right to peaceful association. Therefore,
we have reservations over the "engagement" recommendations
requiring a period of up to nine months in which law-abiding parade
organisers are obliged to converse with potential law breakers
who are keen to provoke a disruption of the engagement process.
From our past experiences of direct dialogue
with a residents' association, we found that a walk-out by them
was all that was necessary to prevent engagement from being favourably
considered as both real and genuine by the Parades Commission.
Whilst we would hope that parties to a dispute
would respond constructively and positively to each other in good
faith, our experience shows this expectation is rarely fulfilled.
It is our opinion that page 169 is the most
flawed on the Report in that the recommendation of the certification
and facilitation process has to be completed before the rights
based determination commences. The recommendation has no substance
within International Law nor does it recognise that, subject to
appropriate conditions, the right to a parade can be established
by the parade organiser. Placing the onus on the parade organiser
to show good faith toward the objectors and also to engage in
a manner designed to meet the demand of the objectors is susceptible
to abuse by the objectors who know that, until their demands are
satisfied, the parade cannot proceed. In tactical terms, this
means that the objectors have an effective veto in respect of
a rights based determination. It is possible that every legitimate
parade could be subjected to the demands of the objector, before
reaching the determination stage. The facilitation process needs
therefore, to be a stand-alone independent function and should
not be a pre-condition prior to the commencement of the determination
proceedings stage.
The protest notification should not be held
back until the formal issue of the determination. Experience shows
that in most cases the organisers of a protest and those objecting
are virtually identical and with the same intentions. It is important
therefore that both the facilitation proceedings and the determination
proceedings are made aware in advance of the intentions of the
objectors and are given adequate time closely to scrutinise the
good faith of those formally objecting to a parade.
The Ulster Unionist Party, in its submission
to the Quigley Review, indicated the pressing need to move beyond
the present Parades Commission regime to a "rights-based
approach". The submission noted that, "the Public Processions
Act does not adequately reflect the freedom of assembly guaranteed
by Article 11" of ECHR. Consequently, we welcome and strongly
support the Report's view that it is necessary that the Public
Processions Act "be amended to affirm that everyone has the
right to freedom of peaceful assembly", and that the restrictions
placed on this right should be "in line with Article 11 (2)".
It should be a matter of the gravest concern that Parliament adopted
legislation which, as the Report states, clearly breached the
fundamental rights of citizens: revision of the Public Processions
Act, as indicated by the Report, is therefore urgently required.
Moreover, any forthcoming Bill of Rights for Northern Ireland
should incorporate the right to parade with specifics and limited
reservations.
The Report rightly notes that it is "illogical"
for protests to be considered under different legislation and
under a different regulatory regime from processions. Existing
legislation and present practice have been discriminatory, treating
certain assemblies (protests) more favourably than other assemblies
(processions). We therefore welcome and support the Report's recommendation
that a Determining Body, with a Chairman appointed by the Lord
Chancellor, undertakes such a function. It is particularly important
that the legislation establishing the Determining Body should
adhere to the Report's recommendations that its ability to place
restrictions on the right to freedom of peaceful assembly should
be defined solely in terms of Article 11. The Report's proposal
stands in stark contrast to the present remit and operation of
the Parades Commission, wherein the issue of rights is of lesser
concern that its interpretation of political and social factors.
In welcoming the recommendations to create a Determining Body,
we would also urge that it should enjoy a status akin to judicial
independence. In this regard, while we support the Report's recommendation
that the Chairman "would be required to have legal qualifications
and experience and be appointed by the Lord Chancellor's we are
compelled to reject the proposal that the two remaining members
of the Body—having no similar requirements of legal qualification—would
be appointed by the NIO. According to the Report, the Determining
Body's sole function is to consider and pass judgement on the
application of Article 11 to specific assemblies. Since the Determining
Body is clearly intended to perform a quasijudicial role, NIO
appointees with no legal experience should not be passing judgement
on the exercise of the fundamental human rights of other citizens.
Consequently, we wish to see all three members
of the Determining Body having legal qualifications and experience
and being nominated by the Lord Chancellor.
The Report's recommendation that judgements
concerning public safety should not be a matter for the Determining
Body, but should be addressed solely by the police, is in need
of clearer definition in light of the positive responsibilities
of the state (outlined in the Report) to protect and uphold the
right to freedom of peaceful assembly. Sir George Quigley states
that "the police would simply be required to protect the
decision resulting from the rights-based process or to decide
in terms of what is necessary in a democratic society that, on
public safety grounds, they could not do so, noting that "the
police are obliged to have regard to the ECHR". This "regard
to the ECHR" should be more firmly enshrined in the legislation
concerning assemblies in order to ensure that the Determining
Body is not made irrelevant by routine police decisions contrary
to the judgement of the Determining Body; some measure of accountability
in order to protect Article 11 rights must be considered. If,
on Article 11 grounds alone, the police decide to restrict an
assembly contrary to the judgement of the Determining Body, the
police must publish a written report to the Determining Body indicating
the reasons for this restriction within Article 11 (2).
The Party submission to the Quigley review urged
that a new legislative framework, upholding the right to freedom
of peaceful assembly, avail itself of the relevant jurisprudence
of the United States by incorporating the US Constitution's commitment
not to abridge "the right of the people peaceably to assembly".
The Quigley Report is a step towards political and administrative
culture in Northern Ireland which promotes and protects this fundamental
right.
It is a Report with shortcomings and in need
of amendment. That said, it nevertheless makes an important contribution
by its recognition that existing legislation and practice unacceptably
breaches the right of the people to peaceably assembly. The steps
it takes towards protecting and promoting this right are to be
welcomed. They must now lead to substantive legislation and administrative
changes to secure the right to freedom of peaceful assembly.
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