Examination of Witnesses (Questions 120
- 139)
WEDNESDAY 3 MARCH 2004
DR DUNCAN
MORROW, MR
PAUL MAGEEAN,
MS MAGGIE
BEIRNE, DR
DOMINIC BRYAN
AND DR
MICHAEL HAMILTON
Q120 Mr Bailey: You propose that
an independent agency should be charged with pursuing local accommodation
on a range of issues ". . . pertaining to the marking of
territorial boundaries (including flags, murals and other local
disputes)". What importance do you think the communities
attribute to territorial issues in relation to parades?
Dr Bryan: I have been doing some
work recently on flags and emblems and the flying of official
and unofficial flags as well. The marking of public space and
how public space is demarcated is just a key issue in Northern
Ireland. If we look at the way the conflict developed in the late
1960s and early 1970s, the way the civil rights parades at that
point started to create insecurity by the fact that they seemed
to be taking space which large parades which were oppositional
to the government had not done prior to that, in many ways the
feeling of space and security are right at the heart of the conflict
in Northern Ireland. For those reasons I have been personally
very impressed by the way the authorised officers have conducted
themselves in very difficult conditions. There is an argument
that a body, possibly the Community Relations Council, could run
field officers who were working on a whole range of disputes.
With issues such as flags and emblems and official flags flown
on lamp posts, it is really difficult to tell whose responsibility
it is at the moment and councils are going through the issues
and I know that the Deputy First Minister's office is looking
at the issue as well at the moment. It seems to me that if you
had a body which made it its job to look at a number of these
issues, that would be quite a powerful and useful body which would
replicate what the authorised officers have done and maybe expand
the sort of work they do.
Q121 Mr Bailey: I am a little unclear.
You have talked about the importance of mediators. You have also
highlighted the need for, in effect, a more independent body to
adjudicate over a wider range of issues. Are you saying that an
independent body should take over the role of the mediators or
that the role of the mediators should be expanded?
Dr Bryan: Yes. It is a little
more complicated than that. I would not want to designate who
the mediators are. The role the authorised officers take is often
not as mediators but to be aware of the mediation processes which
might be taking place. Sometimes they have been mediators, sometimes
they have not. The role that I see an authorised officer playing
at the moment, this large role, would be as a field worker or
field officer, who may be able to encourage, may be able to pull
parts together. There may be particular bodies which could usefully
do it; often it could be a local minister or priest who is the
ideal mediator. I certainly would not want to tie mediation down
to being one body and only they could do it. The field workers
need to have a broader perspective than that.
Q122 Mr Bailey: If I may deduce,
there should be an authorised body which could use mediators as
appropriate in particular circumstances.
Dr Bryan: Yes. The issue then
becomes on the parades issue, if they write a report on it, what
status that report has in any determination which might then be
made and the difficult issue is whether it has some sort of a
role or whether the mediation process simply stays within the
mediation body.
Q123 Mr Bailey: My last question
has to a certain extent been pre-empted by the comments of the
Community Relations Council representative before. Basically the
Democratic Dialogue have suggested that there should be a more
proactive role in co-ordinating the work with an independent agency.
Would you be prepared to take that on? I would gather from your
comments that you would be sympathetically inclined towards it.
Dr Morrow: Yes, we would. We are
not making a pitch for it, but we would. I think though that the
connection has to be that reports from such a body would be written;
they will write reports. The weight to be attached to them has
to be determined by the parading decisions. They may take them
into account. It is "will write" and "may take
into account".
Q124 Mr Beggs: My question would
be to the Community Relations Council. Sir George Quigley recommends
that the process for dealing with contentious parades should have
a stronger focus on rights and, to this end, recommends the creation
of an independent rights panel for parades and protests. You express
concern about the new organisational structures proposed under
Quigley, Is it possible that the communities would have greater
trust or confidence in a rights panel than they have in the Parades
Commission? Do you think it could improve community relations?
Dr Morrow: It is a complicated
matter and in a sense it depends on the process as much as on
what happens. It is clear that whatever body takes a view on parades
should evolve in the direction of rights in the sense that what
they are really trying to do is educate or bring Northern Ireland
along to where the rights balance is and how that actually works
and that there is a consistency between cases, not just a case
approach. In that way we all concur that is appropriate. The question
at hand in Quigley is whether the two functions should be separated
and my broad view would be that you could go either way on that.
The danger in it and the concern we have is that the process of
changing this may undo the current work that the Parades Commission
is involved in, that the Parades Commission is new and evolving
and that there are different ways to skin a cat. In other words,
the loss of power in the process of reform will do it now. The
question is whether the Parades Commission has lost all credibility.
In my view it has not. In terms of time it is evolving. Should
it be more rights based? Yes. Should mediation eventually be separated
out in a clearer way? Yes. It strikes me that to undertake that
reform now has certain dangers. If it looks as though it is undermining
the evolution of the Commission towards rights, that is really
the concern we have. If it is currently functioning, the reform
should not actually undermine that.
Q125 Mr Beggs: Why do you consider
that it could take up to two years to establish the new bodies?
Dr Morrow: That is a kind of inference
from the fact that the current Commission was given two years'
further life and, looking at the legislative timetable for change,
that it probably would take that kind of time. Obviously once
a decision is reached, that can be implemented, but the reality
is, as anybody in Northern Ireland knows, if there is any delay
there is another year of decisions to be taken; the thing is a
moving picture. It strikes me that even within Quigley the position
on parades from 2001 when he began is no longer the position on
parades now; this is a moving picture. Time spent tightening up
the procedures of the Parades Commission might be better than
focusing on rebuilding it, if it takes a long time and we go back
to any doubts in these areas.
Ms Beirne: Part of your question
was also about perception—that there is a strong feeling
in certain parts of the community that the Parades Commission
either has no credibility or no legitimacy, or there are concerns
around the actual operation of the Parades Commission and the
question is whether that would change if a different body—a
rights panel—were created. In a sense there would be the
same potential problems regardless of the model. The rights panel
would have to look at exactly the same issues in terms of the
application of the Human Rights Act to the parading dispute. The
particular concern we have about Quigley is that it is separating
out the public order considerations from other considerations
which are part and parcel of what should be considered as part
of the rights debate. We in our written submission referred to
the problems which existed around the creation of the Fair Employment
Agency, as it then was, and there were really a lot of antagonism
around its creation and it was seen to be working in an extremely
contentious and difficult area. Obviously there have been changes
in the legislation and the nature of the body, but over time people
see that it actually made a positive contribution to moving forward
in Northern Ireland. To some extent our expectation is that may
be true of the Parades Commission in due course too. It is difficult
to look ahead into the future but the Parades Commission is at
a rather early stage. A rights panel is going to be looking at
the application of the Human Rights Act to these issues and in
that sense it is not automatically going to change the agenda
which is being addressed by the current actors.
Dr Hamilton: There is nobody on
the panel who is arguing that the Parades Commission should be
abolished, rather the charge is that it could do better in some
respects. The question was about whether a rights approach might
increase confidence in the community as to the role of the Commission.
My feeling would be that what the Commission can contribute, both
through its determinations and through its statutory documents,
which would include its guidelines document, would be a very explicit
and clear explanation of how the different rights issues involved
in parades disputes could be understood. Rather than blandly asserting
in each of its determinations that the Commission has taken into
account the various rights, it should actually set out the evidence
and facts of the case in relation to the specific rights and also
that in relation to the guidelines that it should lay down clear
and prospective guidelines which affirm what considerations the
Commission has taken into account in reaching its decisions.
Q126 Mr Beggs: The question I was
going to put to CAJ and Democratic Dialogue has more or less been
covered. Is there anything you want to add further? I was going
to ask what your views were on Sir George Quigley's recommendations
to replace the Parades Commission with a parades facilitation
agency and an independent panel for parades and protests?
Mr Mageean: We have probably pretty
much addressed that.
Dr Hamilton: We are all very much
in agreement on that.
Q127 Mr Barnes: My question is for
Democratic Dialogue, at least initially. Sir George Quigley recommends
an increase in the statutory notification period for parades.
What are your concerns about this recommendation?
Dr Bryan: We broadly felt it was
unnecessary. This issue has quite an extraordinary history. I
seem to remember that when the legislation changed in 1987 the
degree of notification was moved from one day to three days and
there was a big furore. We are now up to 28 days and people have
accepted that. I feel that in a democratic system, where you want
to give people the opportunity to hold parades and demonstrations,
the bureaucratic system which processes those notifications should
be able to work in a reasonable period of time. I personally think
28 days is as long as one should reasonably expect organisers
to have to put that in. The reason that the Quigley report has
suggested it be longer is firstly that we know when many of the
parades are taking place; that of course is true. Secondly, that
then creates a situation where mediation then takes place. It
puts the process through. My feeling is that the very fact we
know the issues over many of these parades makes that unnecessary
and the process of mediation should and can be taking place before
notifications are put in. We see no reason why there should be
an extension beyond 28 days.
Dr Morrow: My feeling would be
that to insist on that might in itself be open to challenge on
freedom of assembly. The second issue is that it may indeed, if
it is too long, preclude the possibility of changing things for
accommodative reasons; it might actually make that impossible,
because they had not been indicated. So that would be a down side
to anything which is overly rigid.
Q128 Mr Barnes: How far is Democratic
Dialogue looking for an alternative in reintroducing evidence
gathering sessions which would trigger the provision of mediators?
Dr Hamilton: It is not so much
looking for an alternative, because the Parades Commission as
it stands would have evidence gathering situations. It perhaps
does not do what it did in the initial couple of years in going
out to different areas, although it has done that too in recent
years. Because one of the charges levelled against the Commission
has been this idea that its processes are not transparent, that
is one way of triggering the process as well, but also of increasing
transparency in the work it undertakes. It is not re-introducing
something which has fallen off, but it would be a way of increasing
the transparency of the process.
Dr Bryan: It might also be worth
adding that the role the authorised officers now play is to gather
evidence and to be aware of what is taking place in the areas
they cover. We would see that sort of role as being enhanced.
There is nothing taking place now. The idea is that these field
workers, the authorised officers would be involved on an all-year-round
basis; indeed there might be an argument that they would be full-time
posts rather than the part-time posts they are at present.
Dr Hamilton: It is not that Democratic
Dialogue is arguing for absolute transparency in this respect,
that there would be the possibility of closed evidence-gathering
sessions. Some of the initiatives that the Commission have proposed
themselves, such as providing post-mortem reports on parades to
the organisers, or providing a summary of the objections which
are raised against parades, those things of themselves, if they
were combined with greater opportunities for parties to raise
concerns about parades, would obviate against the charge that
it is not being transparent at the moment.
Q129 Mr Barnes: Does the nature of
the way that the Parades Commission operates impact back on your
feelings about the length of notification required? Does the way
the Parades Commission functions, the degree of transparency in
different types of circumstances, the way it might make use of
mediators, influence your attitude towards notification periods?
Would some pattern of the way the Parades Commission operated
mean that there should be longer notification than other patterns?
Dr Bryan: From a bureaucratic
point of view, depending upon the processes the Commission feels
it needs to go through, the notification period has to be longer.
However, if you look round the world—I am trying to think
of the places of which I am aware—certainly South Africa
and the US would be two examples, we would already have a longer
notification period than many of these countries. I am aware of
these countries and in South Africa they have a process where
they enforce people; they ask that people meet and almost force
a process of mediation. In the South African system, they do it
in days. I cannot remember the exact figure, but I think it is
something like 10 days, it may be fewer.
Dr Hamilton: The Goldstone Commission
specifically addressed this question of whether notification should
be extended and they said there was no need because you can have
mediative process prior to official notification in any case.
Dr Morrow: My own feeling on this
is that parades do not exist in a vacuum. In other words, the
role of what we are calling the mediation body is not just to
mediate a specific march, it is to have a range of different possibilities
which require long-running relationships, not just immediate short-run
relationships. Any individual parade and the problems around it
grow out of a wider context. One of the problems I have is that
the length of time for any individual parade is actually a secondary
point. The key point is the establishment over a longer period.
Already what is happening in Northern Ireland, in my experience,
is because most of the parades happen in the period between April
and September; nearly all parades happen between April and September.
There is a period outside the marching period which is already
critical for any meaningful dialogue to be generated and it is
not actually impacted by the length of time of notification given
by any particular event.
Q130 Mr Pound: I have listened with
great interest and some concern. It seems to me almost as though
there is an unbridgeable gap between fundamental rights and conflicting
rights, but fortunately people with far more between their ears
than I are wrestling with that and I am grateful for that. Sir
George Quigley recommends that the amended guidelines in fact
be reduced almost to public order as the predominant issue with
rights as a secondary issue. Democratic Dialogue have suggested
that there should be much clearer guidelines in relation to the
rights issue as opposed to the simple public order issue. How
would you like to see this prioritised?
Dr Hamilton: I am not sure from
where Sir George Quigley takes the headings he has in his report
for prospective new guidelines, because they do not seem to relate
to any existing legislative criteria or human rights convention.
Our perspective on the guidelines would be that they are to explain
further the criteria on which the Commission must make its decisions.
The headings naturally come from the European Convention on Human
Rights. I would see the guidelines being quite explicit about
the section in Article 11(1) about what is peaceful assembly and
that is a crucial question: what constitutes peaceful assembly?
In terms of moving beyond that to Article 11(2): when is it necessary
in a democratic society and in Northern Ireland's democratic society,
for restrictions to be imposed? In that respect, other concepts
such as reciprocal tolerance and a capacity or a willingness to
recognise that others have rights, could be brought in. Beyond
that, the specific rights and freedoms of others and what those
rights are, whether it is Article 8 of the European Convention,
Article 1 of Protocol 1, how exactly the Commission is going to
assess the impact of a parade on those rights, is what the function
of guidelines would be.
Q131 Mr Pound: I love the expression
"reciprocal tolerance". I am not sure whether you can
point to any examples of what has actually occurred. Are you aware
of a growth of reciprocal tolerance anywhere?
Dr Morrow: In the world?
Q132 Mr Pound: No, I was thinking
of Northern Ireland particularly.
Dr Morrow: I have to say for example
that there have been specific marching situations involving situations
where things are possible which were impossible before. The example
I would want to give is the White Rock parade last year. As a
result of various conversations which were had and as a result
of important interventions there was a fundamental agreement which
allowed it to happen with a very low level of policing and with
a counter-demonstration which was entirely peaceful, with no intervening
police line, in which the march went ahead as proposed. Restrictions
were imposed on various symbols which various people had to bring
and certainly in terms of costs and in terms of a willingness
to engage next year and in terms of a recognition that there is
a right to peaceful assembly on all sides, there was a measurable
improvement last year and the previous year where, if you look
at it, it was much worse and there is hope that will knock on
into this year. I also think there have been particularly difficult
circumstances emerging in East Belfast around Short Strand and
the end of the Newtownards Road. As a result of conversations
which were had the police have been able to get them to agree
procedures which allow the main march in the Newtownards Road
to pass peacefully right through the summer. If that is called
"reciprocal tolerance", there may be some doubts there
if you dig too heavily.
Q133 Mr Pound: Painful acceptance
rather than tolerance.
Dr Morrow: Painful acceptance
may be the first stage of reciprocal tolerance in Northern Ireland
and if the alternative is reciprocal rioting—
Chairman: We ought not to pursue that.
There is not a lot of it about in Westminster, is there, except
in this Committee?
Q134 Mr Pound: May I ask the CAJ
about the recommendations in Sir George's guidelines that they
should be made more specific. What type of considerations would
you ideally like to see included in the guidelines?
Mr Mageean: First of all the issue
of separating out this issue of public order is really a recipe
for disaster. That is what we had in the past and when the focus
pre-Parades Commission seemed to be predominantly on the issue
of public order. Not surprisingly this tempts both sides to up
the ante in terms of increasing the likelihood of public order,
thinking that might be a way of getting their way. Since we have
had the Parades Commission and with the expansion of the relevant
criteria, and particularly since the incorporation of the Human
Rights Act, this has meant that the public order criterion has
lessened in importance. We also believe that it is important that
all of the criteria in Article 11 and in the other rights in the
Convention which are relevant—and there are certainly at
least five or six other rights which may be relevant (and indeed,
from our point of view as a human rights organisation other relevant
international human rights conventions)—should be taken
into account as well. Our view is that we would very much favour
a rights based approach. Public order is clearly a part of that
and that is something which the relevant authorities need to take
into account, but it should not be the predominant factor. It
is one of a series of factors and most of those are articulated
in Article 11 and in the other Convention articles.
Q135 Mr Clarke: In all three submissions
there are comments in respect of the need for greater transparency
and in particular in the CAJ's submission there is acknowledgement
of the importance of confidentiality. How do we square this in
terms of the greater the transparency the greater the risk that
individuals will be put at risk? Obviously there are two types
of transparency: there is transparency of the process, but you
also mention transparency in respect of the determination. Could
you comment in terms of how we can improve transparency whilst
at the same time maintaining the confidence of those who give
evidence that they will not, as a result, be under threat and/or
the victims of a crime themselves?
Mr Mageean: From CAJ's point of
view, this is clearly a difficult question. Certainly when we
say we would like to see increased transparency, that still needs
to be seen against the need for proper respect for the right to
life of individuals and the right to security of individuals.
Individual names are something which the relevant authorities
would need to consider withholding if that were appropriate. On
the other hand, I think when you look particularly at the determinations,
you do get the sense that they are rather formulaic and that it
is not often the case that the Parades Commission goes into the
particular problems with particular marches or indeed engages
in a meaningful way with some of the human rights arguments. From
an outsider's point of view it tends to look as if this is rather
a box-ticking exercise. If in the determinations there could be
more information about exactly what some of the objections are
and also how those feed into a rights based analysis of the decision,
that would increase transparency and presumably lead to the parties
understanding more about what the reasoning was behind the decision.
One of the other issues we have in relation to transparency is
around issues dealing with compliance. This concern relates both
to compliance with decisions which have been made on restrictions
on parades, how those have been complied with on a year to year
basis—there does not seem to be a lot of information around
about that—and also, and this is certainly something we
have pursued, what have been the statistics in relation to the
police action and subsequent prosecutions related to particular
marches or particular public disorder situations. That is something
we have pursued with both the police and the Director of Public
Prosecutions, but from our point of view there is precious little
transparency in relation to that and that is something which should
be looked at.
Dr Morrow: The primary transparency
is in time, in terms of development of consistency, so people
can see the ongoing basis on which decisions are taken and the
transparency around that; rather than that this is a politicised
body against anyone, this is actually an independent body judging
on something about rights. It is critical that it is not seen
as belonging to one party. So transparency is about the consistency
of the basis of decisions and how they relate to one another;
transparency in relation to process, so that at least you know
what the process of engagement is, how the Parades Commission
reaches its decisions and how to interject. Guidelines from the
Parades Commission in relation to stuff, what they mean in terms
of the nature of a parade, the arrangements, the characteristics,
the impact of a parade on relationships and what those actually
mean could be made clearer because that is what transparency is
about: clarity. Also, in terms of the code of conduct, I think
there could be consistency issues around making sure what the
Parades Commission is actually about. What the Parades Commission
is actually about is ensuring that the rights in relation to parading
and public order and freedom of assembly are, as far as it is
possible in the context of Northern Ireland, applied fairly and
without favour to the people they apply to and that is the basis
on which that has to be maintained.
Q136 Reverend Smyth: May I ask the
CAJ whether you have done any study on the concept of transparency
or whether you have any information on the transparency of the
administration of justice on those who have organised parades
in flagrant disobedience of the law?
Mr Mageean: This is one of the
issues we have tried to raise with the authorities, both with
the police and the Director of Public Prosecutions, not perhaps
in those exact terms, but we have asked, around the issue generally
of parades and protests, about the extent to which they can give
us information about the number of people they have arrested,
the number of people who have been charged, with what offences,
in what geographical areas and the number of people who have been
convicted. Generally the response we had on that is that that
is not information they hold. That is the information we have
been given by the relevant authorities.
Q137 Reverend Smyth: Would you accept
that there has been a tendency to turn a blind eye to those which
have been illegally held, which has caused a reaction amongst
those who have sought to abide by the law and give proper notification?
Mr Mageean: We have asked for
this information from the authorities so that we will be in a
position to make those sorts of determinations, but in the absence
of any information we cannot really come to a conclusion.
Q138 Chairman: Lady and gentlemen,
thank you very much indeed for coming to help us. It has been
a useful session.
Ms Beirne: May I raise one issue
which has not come up very much so far: the concern about the
role of the police in the Quigley report. Because of his proposal
to separate out public order from other rights issues, CAJ, having
read the PSNI submission, and I gather you will be hearing from
them separately, are quite concerned that this puts the police
right back in the hot seat.
Q139 Chairman: We have had representations
to that effect.
Ms Beirne: I just wanted to make
sure that was very much on your agenda and it is a concern which
we certainly feel very strongly about.
Chairman: Thank you all very much indeed
for coming over and helping us with our inquiry.
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