Examination of Witnesses (Questions 60
- 76)
TUESDAY 10 FEBRUARY 2004
PROFESSOR BRICE
DICKSON, PROFESSOR
TOM HADDEN
AND MR
CIARÁN Ó MAOLÁIN
Q60 Rev Smyth: Is it not a fact that
there has been some confusion in the minds of parades organisers
and residents' groups because of the diverse decisions given,
sometimes contradictory decisions, as is your interpretation of
that one 100 miles away having an impact? Has that not been one
of the difficulties in understanding the decisions already given?
Professor Dickson: You might be
right, Reverend Smyth. I do not think the Commission is in a position
to give you a definitive answer to that. We have not done a systematic
review of all the local cases in which the determinations of the
Parades Commission have been examined. We do know that there is
difficulty sometimes in the time it takes for judgments to be
issued by the courts on judicial review applications and that
is, and can be, a difficulty, but because the facts of particular
cases are so important it is often difficult for a judge or an
appeal court to issue a ruling which can be easily applied in
other situations. That may well be the case even if the European
Court of Human Rights were to make a determination, because it
is used to making very specific rulings that are not designed
to form a precedent in the English common law sense.
Q61 Mr Bailey: I would like to pursue
this issue of determination. Quigley argued that consideration
of public order concerns should be separated from consideration
of the right to parade so that the arguments about rights can
be heard solely on their own merits. Do you agree with that assertion?
Professor Dickson: No, we do not
agree. Whilst it is important to consider the rights and the balancing
of rights, it has to be borne in mind, as Article 11(2) of the
Convention makes clear, that the prospect of public disorder or
crime can be taken into account when striking that balance between
rights. As we have said earlier today, we are very much in favour
of the panel making the determinations and taking into account
the public order aspects of any application to march rather than
confining that aspect of things to the police.
Q62 Mr Bailey: So in effect there
is an inconsistency in the approach insofar as the human rights
provisions actually take into account public order consequences?
Professor Dickson: We do not see
that as an inconsistency, we see that as entirely consistent.
Q63 Mr Bailey: It is inconsistent
with the Quigley assertion that they should be dealt with totally
separately, that is what I am trying to say.
Professor Dickson: Yes, we disagree
with that view.
Professor Hadden: Sir George Quigley
has sliced Article 11(2) in two and given one bit of it to one
panel and another bit to the PSNI—and our view is that that
is likely to make matters worse rather than better because there
will then be two bodies involved in the decisions and any judicial
hearings will get even more complicated—rather than having
a single body determining the full range of Article 11 and particularly
the limitations under Article 11(2).
Mr Ó Maoláin: It
would arguably be improper for any public authority subject to
the Human Rights Act to attempt to apply only part of 11(2). It
may well be unlawful to try to arrive at a determination on the
right to parade without taking account of the public order implications.
Q64 Mr Bailey: This is getting back
to my original assertion. In effect this approach is inconsistent
with human rights legislation. Yet you have mentioned that you
would not favour the police making a determination. An option
which does not appear in the Quigley Report would be for public
order decisions to be made by the Secretary of State. How would
you consider that?
Professor Dickson: Again you must
recognise that at the end of the day it may be necessary for the
police or for the Secretary of State to take decisions dealing
with public disorder, but we remain of the view that the Parades
Commission or Rights Panel should itself, as my colleague has
just stated, fully apply the European Convention on Human Rights
which would require it to take into account public order or disorder
aspects. We would prefer the Secretary of State's role to be kept
to a minimum in these situations.
Q65 Chairman: Why do you say that
given that very often in the past—one hopes not in the future—some
of these decisions have had a highly political flavour? One of
the problems we had in the past was that the Chief Constable was
right in the middle of all of this, he was responsible for making
determinations which he was bound to do only for public order
reasons when in fact very often there were wider reasons. Is there
not an argument that says since these are political decisions
they should be taken by a politician?
Professor Dickson: There is that
argument, Chairman, but we would disagree with it. We understood
that the whole point of the North Report's recommendations was
to try to depoliticise the whole issue of parades in Northern
Ireland.
Q66 Chairman: I think you only depoliticise
them by banning them, do you not?
Professor Dickson: I think you
can depoliticise them by giving to a separate independent body
that is obliged to comply with the European Convention on Human
Rights the responsibility of taking decisions. We are in favour
of that approach and we are in favour of sidelining the role of
the police and of the Secretary of State as much as possible.
As has been indicated already, we are not aware that either the
Government or the police are keen to reclaim responsibilities
in these areas.
Q67 Chairman: I was not suggesting
that anybody would be keen, I was merely suggesting that on the
rare serious issues there is an argument for saying that the decision
should be taken by a politician who is, after all, the supreme
authority on Northern Ireland.
Professor Hadden: The object of
a rights approach to this issue is to take it out of the hands
of political decision-makers and to create a panel or a body to
say that these decisions should be made in accordance with the
European Convention rather than some political judgment of what
may or may not be the situation. As my colleague has said, it
is undesirable to slice up the decision and to give to the Secretary
of State a crucial part of decisions on public order or security
while somebody else is deciding on the rest. I am not sure that
anybody is saying that the whole of this issue should be decided
on a political basis by the Secretary of State. The argument is
that the security and public order issues should be taken out.
I think exactly the same arguments apply to slicing up Article
11(2) in respect of the Secretary of State as they apply to the
giving of that responsibility to the police. As my colleague has
said, there are serious legal problems with it as well.
Q68 Chairman: One is not suggesting
this, we are probing. There are other cases where you have this
clash of rights which we referred to earlier. So you have got
one body making a rights determination and another determining
whether there should be an exception to those rights under Article
10, for example, but in the end someone has to say, "I have
looked at all of this. This is my decision," and the question
is who is that?
Mr Ó Maoláin: Chairman,
is it not the case that if it is perceived as a purely political
decision, something that is down to the Secretary of State or
some other elected politician to determine, it is more likely
to remain a contested arena? The more it is taken out of the hands
of a politician and given to a body which has a manifest duty
to determine these issues on a rights basis the less likely it
is that those who want to engage in contested parading will feel
that if they put on a bit more political pressure they will be
able to secure something which really ought to be determined on
the basis of rights and not as a political concession.
Q69 Chairman: If everybody was content
with this system I think you would be correct. There are a lot
of people who do not accept it and who believe their rights have
been infringed and overruled. Is not that the case?
Mr Ó Maoláin: There
will always be people who are discontent.
Chairman: It is simply a question of
who you attach the blame to.
Q70 Mr Bailey: It does seem to me
that by having one body responsible for the decision or responsible
for the political fall out and political consequences of a parade
that goes wrong in effect this body is placing itself in a position
where it sits in almost Olympian-like detachment and it takes
decisions but it does not have to take the consequences of them.
Do you think that is a satisfactory way of dealing with the issue?
Professor Dickson: I do not think
that that is a fair description of the way in which the system
would work if Sir George Quigley's recommendations were implemented.
For a start, if there was a compliance branch to the new Rights
Panel or determination body it would be able to monitor the way
in which the determinations are in fact implemented or not and
one would hope the body would learn from its own experiences.
If it decides that in retrospect it ought to have imposed this
condition or that condition then it can do so in future cases.
There is a certain iterative process at work in all of this and
while no one body should have the sole responsibility and sit
in Olympian dominance over this issue, it is important that an
holistic approach be adopted to the whole of the parades issue
and that a body that takes determinations and monitors compliance
is in a position to do that. There will always be those rare cases—and
they are rare even under the present situation and were rare before
the Parades Commission was established—where the police
will have to step in at the last moment to impose restraints that
were not envisaged initially because certain circumstances have
developed, but that will always be the case.
Q71 Mr Bailey: So you would envisage
consultation and then input from the police prior to the determination
being made and in certain circumstances presumably from the Secretary
of State as well?
Professor Dickson: Yes, very much
so. We are in favour of all the relevant information from all
sources being made available to the determination panel so that
they can take as informed a decision as possible.
Q72 Mr Luke: Professor Dickson, in
an earlier reply to my colleague Reverend Smyth you raised your
concerns to do with human rights in relation to the transparency
of the determination process, which was an issue also raised by
Sir George in his report. How can transparency be improved without
either undermining the dialogue which currently takes place through
the Authorised Officers, or putting vulnerable individuals at
risk of retaliation?
Professor Dickson: I should preface
what I have to say by emphasising that the Human Rights Commission
would not want to undermine any mediation process that might take
place before a determination is issued in relation to a parade
and we are in favour of as much engagement between different sectors
of the community as possible in this and in many other areas.
We think that there would need to be in place methods of ensuring
that the identity of individuals is not revealed in situations
where their lives or physical integrity might be put at risk and
indeed Articles 2 and 3 of the European Convention would require
that, but it ought to be possible to ensure that the substance
of the objections being raised by protesters is put to the people
who want to organise the parade or the march in a way that allows
them to deal meaningfully with that substance. At the moment the
organisers of the parades are often left in the dark as to the
exact reasons why going ahead with the march would cause offence
or difficulties as regards community relations so they are not
able to answer the putative objections. We would like there to
be more openness and transparency in the whole process.
Q73 Mr Barnes: Sir George Quigley
wants adequate time for mediation to take place. He feels that
protests should be notified significantly in advance. What are
your concerns about that proposal?
Professor Dickson: We do have
some difficulties with that proposal. While we are in favour of
a reasonably long period of notice having to be given by those
who want to organise parades and marches, always allowing that
there will be exceptional situations where spontaneous assemblies
ought to be permitted, we do not think the same notice requirements
should be applied to protests. It is often very difficult for
those who want to protest to know some time in advance what the
actual parade or march will look like and to require formal notice
to be given of protests and of the form that that protest will
take is very difficult. We are in favour of protests being proportionate
and in compliance with the European Convention standards and we
are in favour of the determination panel being able to impose
conditions on protests, but we do not think that there should
be a formal notice requirement given, certainly not a five month
notice requirement which I think is the minimum required by Sir
George Quigley. We are not in favour of that.
Q74 Mr Barnes: Earlier on you said
that you wanted protest reasons to be more obvious than they sometimes
are. Might it not be the case that if a reason for protest has
to be put in at an early stage, even if it is not fully worked
out in detail, it actually begins to get clarified during the
process of negotiations and so people's views and their rights
on that side are more clearly understood within the negotiations?
Professor Dickson: I am not saying
that people who want to protest should be unable to give notice
ahead of time if they want to, indeed they should be engaged to
give as much notice as possible. I think it is important to make
a distinction between people who want to register their objections
to a proposed parade or a march, which is a perfectly legitimate
thing to do and if they find that their objections are not accepted
they might then tolerate the march going ahead regardless, and
a situation where people want to organise a protest against a
march or a parade with which they disagree and we think that they
ought to be free to do so subject to the requirements of law and
to any conditions which are imposed by the determination panel,
but those conditions could be imposed much later in the day than
is the case for the proposed parade itself.
Mr Ó Maoláin: There
is a great deal that can happen between the date when permission
is given for a parade and the date of any possible protest against
it. In an ideal world I am sure those who are parading would not
wish there to be a protest and so they may engage in some positive
diplomacy that could avert the protest. Alternatively, things
that happen 100 miles down the road can influence the atmosphere.
When we have had particularly bad Drumcree years, that can certainly
influence the nature and temperature of counter-protests in places
far away from the Drumcree area. The treatment of protests as
different from parades is partly to acknowledge the necessity
of making maximum use of the space between the approval of a parade
and the date on which it takes place to allow for some positive
approaches to resolve the differences around it.
Q75 Mr Barnes: There seems to be
a habit in Northern Ireland of decisions being made at the eleventh
hour when crises are around. Is not time helpful in terms of reconciling
conflicting interests? If there is a parade and then a protest
that is proposed in connection with it, being able to get through
all those difficulties might be something that requires considerable
discussion and negotiation and involvement from people on both
sides.
Professor Dickson: Yes, we would
not disagree with that. It is just that we have a difficulty with
a legal obligation to notify the Parades Commission or the Rights
Panel that a protest will take place. We think that is a disproportionate
requirement. It may be one that the European Court of Human Rights
itself would consider to be in breach of Article 11. The six month
requirement for parades themselves may be questionable under Article
11. We just do not know until there is a more general ruling from
that Court.
Professor Hadden: One of the things
that we think would be helpful is to allow determinations to be
made over the whole marching season or even over two years so
that everybody knows roughly what is going to be permitted by
the Rights Panel and can organise themselves accordingly. One
of the difficulties with the present regime is that because a
determination has to be made in respect of each individual application
you get repeated applications, particularly in the Drumcree area
and that is an awful waste of time and energy for everybody. In
our view it would be better if the Rights Panel were given the
authority to say, "Over the next year so many parades will
be permitted. We think this is reasonable in this particular area,"
rather than having each individual application dealt with. That
kind of approach will allow those objectors, as my colleagues
have said, to make their case well in advance of any possible
march and to allow all the mediation operations that you are talking
about to take place. We think that is the way to go. We would
extend the period of the determination rather than extending the
period of notice.
Mr Ó Maoláin: Even
when there is not formal notice given of an intention to protest
it is usually fairly easy to tell who would protest. Those who
objected to the initial parade are likely to be the people who
are influential in determining whether there is any protest. So
there is still an opportunity to engage, to head off protests
or to minimise their impact even before there is formal notice
given of an intention to protest.
Q76 Rev Smyth: We have been dealing
primarily with protesters and I understand the situation there.
Is the law not being devalued when the law concerning notice for
parades has been ignored by people and there have been no follow-up
prosecution cases? That is one question we have to answer. Professor
Hadden made reference to a period of notice. With the bulk of
parades people know when they are going to be held and there have
been few changes of routes for decades and the same dates come
up every year. There is no real difficulty in dealing with what
Professor Hadden has said, but there is difficulty when people
apply the law and abide by the law and discover their neighbours
up the street have actually had a parade and given no notice of
it and there has been no notice taken thereof. Is that not devaluing
the law?
Professor Dickson: It would be
if that indeed is happening. The Human Rights Commission has not
been monitoring the incidents of what you have described. We do
not know if it is common practice that certain parades take place
without due notice being given, but obviously we would encourage
the law enforcement authorities to ensure that the law is properly
applied in all cases.
Chairman: Professor Dickson, gentlemen,
thank you very much. That is the end of the questions that we
have for you. The Committee will now break very briefly while
we change the cast and we look forward to seeing the Ulster Bands
Association representatives in your place. Thank you very much.
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