Select Committee on Northern Ireland Affairs Minutes of Evidence

Examination of Witnesses (Questions 160 - 172)



  160. That is still a very high percentage. But I think your comparison with the Public Order (Northern Ireland) Order is a very good one. I can recall being in Lurgan when there was to be a Republican parade past where two policemen had been killed by the IRA and a number of protesters came out onto the street. The police were prepared to put the parade through until somebody lifted a flowerpot and threw it. On that basis there was the likelihood of disorder, so they stopped the Republicans from coming down that area. That is putting it in the reverse, but it shows that the threat of disorder in itself can be the cause. Even though, if you look at the principles of the parade, it may be justified, the threat of disorder can often be the factor that causes the Parades Commission to make a determination against the parade or a re-routing of the parade. Should it be thus?
  (Mr Hamilton) It is a situation which has existed before the Parades Commission came into being.

  161. But is it right?
  (Mr Hamilton) It is not right. The thrust of the new legislation, if you like, was to get away from public order considerations being the primary determinant behind the decisions of the Parades Commission, so I think there is a desire to see public order becoming less of a determinant. I think this Committee's remit is to look at the situation within the current legislative framework, but one thing that I have always wondered about is whether to allow the Parades Commission also to take decisions regarding related protests would help deal with the perception that the Commission is only set up to tackle Loyal Order parades. The Commission is implicitly considering the entire situation in any case, therefore it would not be, to my mind, a great increase in workload if they also took decisions on related protests.
  (Dr Jarman) I do agree with you there. I think it is a problem that threats to public order are allowed to determine what parade or public events take place and which do not. Unfortunately, that is the overriding principle for many Western European countries, that the threat of public disorder is a priority over people's right to assemble. It is the overwhelming factor in the decisions made by the European Court of Human Rights, in adjudications over rights to assembly. The American system seems to be somewhat different, in that they do take the rights principle first and put the onus on the police to maintain some order. Similarly, research we did in Israel, talking to parade organisers, showed that even if their parade was going to be very provocative they would expect it to proceed. In fact they had examples where the police had protected them, to allow them to make the protest and to annoy people, although those examples were talking about members of the Jewish community antagonising members of the Jewish community—it was a kind of secular religious debate. When it came down to the ethnic dispute between Palestinians and the Jews, then the police tended to resort to the fear of public disorder. I think the public order issue is one that in an ideal situation will persuade that public order should not take priority, but in pragmatic terms public order inevitably does seem to have taken priority.

  162. One last supplementary, Chairman. Is the great danger then not that the parade organisers find themselves in a position where if it can then be shown that there will be greater disorder if the parade is stopped, that they apply counter-pressure, so that it would get to the stage in the community where you are going to have trouble one way or the other.
  (Dr Jarman) That was very much the case in 1995 and 1996. It was a question of bodies on streets at the time when the police were making the decisions, and you did not know until five minutes to the time the parade was due to start whether the parade was going to go down or whether the parade was going to stop. It seemed to very much depend on getting bodies on the street. I think one of the ideas behind forming the Parades Commission and encouraging them to make the determination seven days in advance was not so that people had the time to prepare barricades and mobilise their defences but so that there would be time for people to take a more mediated approach to their response. It is problematic, it is a difficulty wherever people march and demonstrate, unfortunately.
  (Mr Hamilton) Just to pick up on what Neil was saying about the European Court of Human Rights, it is such a difficult issue and even the European Court on Human Rights has ended up disagreeing with itself, if you like, and in the case of, for example, Christians Against Racism and Facism v The United Kingdom [1980] the European Commission held that it was entirely reasonable for the authorities to use an objective test in assessing the likelihood of disorder and the authorities were not obliged to distinguish the source of disorder, yet in some later decisions of the European Court, perhaps the case of Ezelin v France (1991), a more subjective test as to the potential for disorder has been applied and in that case the person being restricted was held that they had to have acted reprehensibly before a restriction should be justified, that they themselves had to have acted reprehensibly. This is something which has to be tested in our own courts before we really know what road the courts here are going to go down.

Mr Thompson

  163. Have the courts here or in the United Kingdom established that where there is a threat of violence, action should be taken against those who have threatened that violence not against law-abiding citizens?
  (Dr Bryan) I would say you have to look at the reality of what takes place in Northern Ireland and there is a threat of violence on both sides, and it has been revealed when parades have been stopped that there is a threat of violence on both sides. Could I also add an example from America which I think shows up what we have been saying, the well-known Skokie case, where socialists were marching through a Jewish area. It went to the Supreme Court. There were complications to the case but, basically, they were told that they could take their route through this Jewish area. The reality of the day was that there were so many protesters in that place that the police could not physically do it. That is the reality of public order policing. It is the reason why I do not think we can just rely on looking at rights legislation as solving the problems we have, because the reality is that, if on the day the public order situation is as bad as it can be in Northern Ireland, then you have to make some very, very difficult decisions and they can look a long way from what we would like people's rights to be.

Mr Hunter

  164. Two questions, please. First, what input did you make to the Northern Ireland Office review of the Commission? Secondly, what assessment do you make of the conclusions of that review?
  (Dr Bryan) I cannot remember the woman's name but we spoke to the woman who was conducting the review and we basically gave her all our published material at the time. From memory—and I will look up my records and correct it if I am wrong—she conducted an interview with us and we gave her the published material that we had produced around the issue.

  165. What is your assessment of the conclusions that the Commission reached?
  (Dr Bryan) I am trying to remember exactly what they are, but I do seem to think that the conclusions were rather bare and minimal, given what they were going through. We are dealing with something which is very, very difficult and I do think that having a constant critical review of how the Parades Commission or any institution working around this is very, very important. I do not think the answers are easy and I must say I found the list of, I think, five or six recommendations rather minimalistic.

Mr Beggs

  166. Good morning, gentlemen. There seems to have been relatively few legal challenges to the Commission's determinations and none appear to have been successful to date. To what do you attribute this and do you think that this will change with the Human Rights Act?
  (Mr Hamilton) I think possibly the greatest reason that you could give for the lack of success is the very nature of judicial review proceedings of themselves, in that they are essentially a procedural challenge and are restricted to asking the question whether the Commission reached its decision by using all the proper procedures, and the court has repeatedly stressed that it will not sit as an appellate body and will not substitute its assessment of the merits of the issue for that of the Commission (or, indeed, the police before the Commission was instituted). Certainly there may be a greater chance of success under the Human Rights Act, and because there is a new freestanding ground of view created then that may give rise to a greater number of challenges and it will allow the courts actually to consider the merits of the decision which the Parades Commission has reached.

  167. Is there an implication then that all the decisions of the Commission have been reasonable in all the circumstances?
  (Mr Hamilton) I am sorry, are you asking whether previous challenges to the Commission have indicated that those particular cases were reasonable in the circumstances? Yes, that is what the courts have held.

  168. What study have you made of the Commission's mediation role and the effectiveness of its Authorised Officers? What evidence have you for the assertion that their work has contributed to a "general improvement in the environment surrounding parades in a number of areas"? Which areas have you in mind?
  (Dr Bryan) This area of the role of the Parades Commission in mediation is very, very difficult. I have to tell you that between the three of us we have argued about whether this is done the right way or not ourselves on a number of occasions—and I am not sure that my views on it have not shifted as time has gone by. Because we go out and watch many parades and because of our involvement with the Parades Commission and our knowledge of the mediation network—I know all of the Authorised Officers and I am aware of much of the work that they are doing—I think it is important to point out that they are not in themselves, and I think the legislation does not suggest that they should be, mediators themselves. The argument is whether the relationship at the moment between the Mediation Network and the Parades Commission in some sense helps or facilitates mediation. I think there are a number of areas where the knowledge that the Authorised Officers have gained—and I am thinking particularly of maybe Ballycastle, perhaps Newtonbutler, I think some of the work that they have done within Derry as well, has allowed the Commission to make relatively informed decisions on the basis of various phases of mediation that was taking place at the time. I also think there is an argument around whether the relationship between these Authorised Officers and the Parades Commission is a healthy one or should they be totally disconnected from the Parades Commission and maybe working through the Mediation Network. I have, I must say, mixed feelings on that. One side of me says that those that might be involved in mediation should not also be involved with those who are making decisions, and that is clearly one issue that one likes to consider. On the other hand, there is a whole range of mediators out there and sometimes the best way of managing conflict is to have a whole range of possibilities. Now there are plenty of possible mediators who are completely independent of the Parades Commission, therefore one could also argue that there is no harm in having some mediators more closely connected to the Parades Commission as that offers another possibility of mediation which is more closely linked with those who are going to make the decision. It is a very difficult issue. I would, however, say that those Authorised Officers have worked in very, very difficult conditions and have worked very, very hard, and, in my view, working from no base at all they have put in an awful lot of effort to at least trying to deal with the situation.
  (Dr Jarman) I think as well to mediate in a situation where one party does not necessarily want to have mediation introduced or to work with the mediators makes the job obviously much more difficult. I would also say that where they have been effective there have certainly been instances where the work that the Authorised Officers have done prior to a parade—in terms of making contacts with participants, both paraders and protesters—has enabled them to help reduce the conflict on the day—in crisis management rather than full-time mediation—because they have built up relationships with them. Because they were not the police they were able to go in and diffuse tensions and reduce the likelihood of public disorder and smooth over any problems. I know of examples in Derry and in Armagh where that happened a couple of years ago. I think they have been a useful tool of the Commission although I think there is also room for improvement.

Mr Clarke

  169. Gentlemen, I detect this area where you say there may be a bit of dissent between yourselves. I just want to probe a little bit further. In your memorandum you conclude that there is indeed tension within the Commission, within the two roles of mediation and determination, and you started to outline there that you feel there may be a chance to split the two roles. Could you go a little bit further, in terms of saying, if you do believe that, should mediation be given to a separate body or should it exist alongside what already exists within the Commission? Could you just go a little bit further to say what you think should replace the current status quo?
  (Dr Bryan) My two friends here can answer for themselves. I think this is where my view has changed slightly. Originally, I felt that it may not be a good idea that there was a connection between the Authorised Officers and the Parades Commission and I felt that it was a very strange relationship and I perhaps felt that the Parades Commission needed to be nearer a tribunal. However, not only do we disagree between each other, but, as you can tell, it is very difficult and I struggle with myself over this, I do think that there is an argument for saying that the Parades Commission should have fieldworkers collecting information, possibly putting people in touch with each other, letting the Parades Commission know of ongoing mediation that might mean that they should delay determination, having fieldworkers who are directly involved, is useful, and that if you took that away from the Parades Commission you would be making it a less flexible and knowledgeable organisation. If you did that, you would probably—and maybe this is a way of going—have to change totally the evidence gathering techniques that the Parades Commission use. I think if one takes that decision, it has a range of ramifications about the processes that the Parades Commission might take. That might be a good thing. I have to say I am not clear in my own mind whether it would be or would not be.
  (Dr Jarman) The role of the Commission is supposed to be to facilitate mediation rather than actually to mediate itself. In the first Commission, probably in the 1998 season, there was a concern that members of the Commission were doing both mediation work and adjudication work. You need to keep those roles separated to some extent. Whether that is a separation, in terms of the two roles can be accommodated within the one organisation as long as the different personnel are involved, my feeling is that the Commission should take a more decision-making, more distanced, more adjudicatory role. And, as Dominic is saying, the Authorised Officers or their fieldworkers in some sense do have a positive role to play in being out there, building relationships, encouraging dialogue. They cannot force the dialogue, they cannot force the communication, but to encourage work on it, and then to bring in the appropriate people at the appropriate time if the situation is right for it.
  (Mr Hamilton) If I might just add to that as well, and even rehearse some of the arguments that might be advanced in supporting the separation of the two roles. There are three main arguments that I have heard. The first is that tying the mediation process up with the adjudicatory process actually tarnishes the whole concept of mediation and therefore prejudices the Loyal Orders, for example, against using mediation as a technique of conflict resolution. Secondly, it also means that parties would only get involved in mediation in order to curry favour with the Parades Commission, so it becomes a box-ticking exercise and people are really just going through the motions and that then undermines what mediation is all about and lends itself to short-term positioning. Thirdly—which is actually an argument that I know Mr Bingham advanced when he gave oral evidence to you—Authorised Officers are blamed for "bad determinations of the Commission" and this results in undermining the whole process. I have to say that, having considered those three arguments, I am still persuaded that the set up that currently exists is the best workable compromise. The point that Dominic made about the Parades Commission not having a monopoly over mediation interventions and the point that Neil made as well that the roles are actually already separated in essence, because it is not mediation but the facilitation of mediation that the Commission is statutorily obliged to do, those would lend to support the current set up.

  170. Very quickly, at the risk of upsetting the Chairman for taking too much time, the educational role that was seen within the Commission's work that can take part through mediation, is that an area that you think could be separated out in terms of the whole area of trying to educate different communities into the traditions of each other? Is that simply part of mediation or could that be separated out?
  (Dr Bryan) It would be separated out but I would include it as a long-term process. One of the things that I like to flag up around this is that some of the solutions, particularly to the most intractable places like Portadown in my view can only be very, very long term. I hope that both the Parades Commission and government are taking a long-term position to this and I think most of the mediators that have been involved in that dispute have ended up feeling exactly the same. I do think we need to grow in understanding of parades and I think there is much work that can still be done around that issue.
  (Dr Jarman) I would agree with Dominic on that but I also do think you could separate it out from the mediation process. I think there is an area in which the Parades Commission's remit has narrowly focused on adjudicating on disputes rather than the broader sphere of aspects of providing information and supporting educational work around those parades issues. I think there is scope for development in that area.

Mr McGrady

  171. Thank you gentlemen for sharing with us your considerable experience and knowledge of the problem we have. We are coming to the end of this evidence session, so could you very briefly give us an idea of your overall assessment of the effectiveness of the Parades Commission, particularly, of course, how you think it could be made more effective or how it could go about its operations to make its decisions more acceptable. So a general sweep-up assessment of where we are at the moment in terms of the Parades Commission.
  (Dr Bryan) I think the Parades Commission has been a relatively successful intervention in a very difficult situation. I cannot see whatever was being done after 1996 was going to prove widely popular with anybody and I certainly do not think that the Parades Commission has made the situation worse. I think if you look at the figures of the number of determinations, in trying to judge the success of this organisation, one in a sense has to factor out Portadown because I do not think anybody would have created a better situation in Portadown. It is a very serious problem, a town with great community relations problems which needs long term solutions. If one takes Portadown away from the figures that one looks at, one can see a moderate improvement in quite a number of areas. Where, if you like, I would say that it would be interesting to develop and where the Parades Commission might be looking at is looking at some of the more successful areas, such as Derry, where relationships have been built by fostering what there is the Town Centre Management Group and look at the ways that in particular towns, villages and cities you create centres of partnership which involve more than simply the two competing groups. In the long term, I think the Parades Commission should look at how those operations work—there is one in Newry and there is one in Derry—but, in the main, my perception is that it has done a reasonable job in a very, very difficult situation.
  (Mr Hamilton) I would agree with that assessment as well. I think the Commission can be viewed as really an institutional stop-gap, in that it has always said that it hopes to forfeit its raison-d'etre and it has absorbed criticism which would otherwise have been inevitably directed at the police or the courts or whoever was charged with making these very difficult decisions I think one of the areas which was not raised this morning but which has previously been raised, on which there is a need for perhaps greater definition is on the concept of engagement. The Commission has distinguished engagement from the idea of seeking permission for a parade but it has variously described it as finding mutually acceptable forms of communication and that it must be substantial, sustained and genuine. Perhaps the blueprint would be the Apprentice Boys' decision on the Ormeau Road in 1999, where the Commission were actually able to read transcripts of talks which took place between the Apprentice Boys and the residents, and were therefore able to make a decision based on the detail and the quality of those discussions. But in other areas engagement has been a shifting kind of concept. It has been held to be something more than a unilateral gesture on the part of those organising parades and it has been held to be something more than mere compliance with previous Commission determinations, and I think some of the messages that might go out from some recent decisions is that the goal posts are being moved. The question of what the threshold is is a very difficult one and is different in different areas. At heart, I suppose, it is about showing an awareness that others have different views and that those views need to be respected, but I would just end by saying that even those within the Loyal Orders who have at times advocated, cautiously, dialogue with residents groups or with the Parades Commission, I would imagine, are extremely nervous about taking that stance, because, if the concept of what engagement actually means is not defined more tightly, there is always the possibility that even if they do engage they will not get what they think they might and therefore will get egg thrown in their face.

  172. Thank you. Dr Bryan, and, indeed, to an extent Mr Hamilton, you emphasised the need to interface differing opinions and you seem to predicate the future resolution of problems mainly in terms of dialogue which is in fact translated into community relations. How do you see the community relations aspect, either the agency or the ad hoc arrangement of community relations, is it underfunded, is it properly staffed, have we the expertise actually to go out and engage in establishing community relations in this context of parades?
  (Dr Bryan) I think you are right. I think the answer to these problems in the end is not to be found in courts and in human rights legislation. I think these are political or community problems which we have to try to come to terms with. I think the crucial thing is that government concentrates long term in dealing with issues, and, if you like, long term we have less funding on Land Rovers and more funding on community development. It is a difficult world and it is very difficult directly to evaluate how well community relations are being developed in projects. I have looked at this myself and it is not easy to evaluate. But long term the situation in Portadown and Lower Ormeau and Derry cannot be solved until we create a community relations climate which allows these issues to be more easily dealt with. That, to my mind needs government policy and intervention, not legal cases.
  (Dr Jarman) May I just add, in terms of the benefits of the Parades Commission, I think you should not underestimate the benefit it has been to the RUC over the last four or five years. Their status after Drumcree 1996 was probably at an all-time low. They had antagonised both communities within the space of a few days in terms of making one decision and then reversing it. I think, subsequently, from conversations with senior police officers who were initially sceptical of the value of the Parades Commission, they have felt that it has taken a burden off their shoulders and allowed them to get on with policing decisions rather than actually making those decisions. I do not think we should under-estimate that. In terms of other work that the Parades Commission does, I think we should just flag up briefly the support it has given to steward training and encouragement of responsibility I think it should not be underestimated that some of the positive examples we have highlighted in relation to the Apprentice Boys, both in terms of the intensive discussions on the Ormeau Road and their willingness to take up the issue of responsibility and engage with that. I think that, while there has been a lot of talking about people's rights, the counterpoint to rights is in terms of exercising responsibility and exercising rights within a socially responsible context and I think the Apprentice Boys is a very good example in some of the positive steps that have been taking place and that the Parades Commission has encouraged and supported.

  Chairman: I have a couple of footnotes, one related to Trafalgar Square and one relating to Mr Clarke's question about whether a parade is unreasonable if there is no-one there to witness it—and I am paraphrasing slightly—but those I will provide in writing hereafter in order that we do not encroach further on time. The Trafalgar Square one, however, is relevant in terms of historical background. I wonder if Dr Jarman would be kind enough to add a short note himself on the historical data he was giving us about the 19th century because I think that would be helpful to have and it would incidentally also be helpful if he felt able to give us a short note on the kind of international data he was quoting in relation to the United States and Israel and indeed any other he thought relevant[3]. I hope I speak on behalf of the whole committee when I say I thought this was evidence outstandingly given and that the occasional disagreement among you was actively constructive from our point of view, even the occasions when it seemed to me that Dr Bryan was disagreeing with himself. There was a memorable Member of Parliament when I first entered the House for Burnley who would periodically in speeches surprise the House by saying, "Mr Speaker, I must intervene on myself". The same spirit was present in some of Dr Bryan's evidence. If I may say so, the evidence was the more helpful because it had not been diluted by being necessary to reach a common view. If we do ask any written supplementary questions—and we might—please do not hesitate to answer the questions individually rather than collectively, if you choose to do so, and finally—and I would have asked this in real time but for the fact that we really have run out of time—if there are questions you are surprised we did not ask, do not hesitate to provide us with answers, the answers you would have given had we asked the questions. We are extremely grateful to you for the evidence you have given, which has been profoundly helpful to us.

3   See list of unprinted papers, p viii. Back

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