Select Committee on Northern Ireland Affairs Minutes of Evidence



  Rule 3.3 of the Procedural Rules of the Parades Commission provides as follows:

    "All evidence provided to the Commission, both oral and written, will be treated as confidential and only for the use of the Commission, those employed by the Commission and Authorised Officers. The Commission, however, reserves the right to express unattributed general views heard in evidence but only as part of an explanation of its decision".

  This rule is applied by the Parades Commission so as to deny parades' organisers any prospect of a fair hearing.

  In particular:

    —  Details of evidence obtained by the Parades Commission from other parties not provided to the parades' organisers.

    —  This evidence may be inaccurate but the parades' organisers are denied an opportunity to refute it.

    —  The parades' organisers are denied the opportunity to produce contrary or other evidence which would assist the Parades Commission in coming to a properly balanced decision.

    —  There is no procedure to allow the necessary cross-examination of any witness.

    —  There is no opportunity to make a submission as to the particular weight that the parades Commission should give to any items of evidence.

  For instance, in its decision in respect of the Lurgan parade on Saturday 12 August 2000, the Parades Commission in its determination dated 7 August 2000 stated that it heard representations from residents of the Lower William Street area and from local political representatives from the nationalist side of the community. However, the parade's organisers were not given access to this evidence. They did not have any opportunity to consider and where necessary challenge that evidence.

  The point of this submission is that procedures of the Parades Commission which deny the parades organisers access to the evidence against them are not only unfair to the parades organisers but also deny the Parades Commission itself of the benefits of a proper decision making procedure.

  A fair and proper procedure (such as that of the Planning Appeals Commission in Northern Ireland) would:

    —  Allow each party an "exchange of evidence" prior to any hearing by the Parades Commission.

    —  Each party would then have an opportunity of introducing material and making submissions on the other party's evidence.

    —  Where it was appropriate to hold a hearing, each party would be able to lead its own evidence and cross-examine the evidence of the other parties.

    —  Each party would then have the opportunity of final submission before the Parades Commission made its decision.

  By virtue of such procedures the parties would at least feel that there had been a "fair hearing"

  In addition, the Parades Commission itself would have the full and proper opportunity it needs for the fullest testing of all evidence. This is the only way in which it can properly assess the weight to be given to the evidence.

  As it stands from the perspective of the parades organisers who wish to participate in the decision making process, the Parades Commission itself denies them that opportunity. The Parades Commission considers evidence without the possibility of proper challenge and it takes its decisions in secret. This means that the Parades Commission may be making its determination on the basis of inaccurate, misleading or false evidence without the opportunity of any challenge.

  The Parades Commission is thus flouting the principle of natural justice on which its decision making process should be based.


  A classic statement of the principle of natural justice is as follows:

    "The principle of natural justice is that a man should not be removed from office, or otherwise dealt with to his material disadvantage, without fair, adequate and sufficient notice being given of what is alleged to his detriment and having an opportunity of meeting the accusations which are brought against him.[7]

  The courts are prepared to apply the principles of natural justice to the proceedings of statutory tribunals:

    "Where a statutory tribunal has been set up to decide final questions affecting parties rights and duties, if the statute is silent upon the question the courts will imply into the statutory provision that the principles of natural justice should apply.[8]

  In this case, as might be expected, Parliament in the Public Processions (Northern Ireland) Act 1998 has not imposed upon the Parades Commission any restrictions in respect of the application of the principles of natural justice.

  Accordingly, in accordance with the law, the Commission should be importing the principles of natural justice into its procedures and applying those rules in its decision making process.

  The Commission is failing to do this.

  As indicated above, Rule 3.3 of the Procedural Rules of the Parades Commission stipulates that all evidence, both oral and written will be treated as confidential and only for the use of the Parades Commission and its staff and Authorised Officers.

  Some parades' organisers have in their recent submissions to the Parades Commission protested that they are entitled to see the evidence against them and should have the opportunity to make representations on it before any decisions are made. Regrettably, the Parades Commission has ignored these representations.


  The Planning Appeals Commission in Northern Ireland has a well established set of procedures which have been in place for many years and provide for the fair resolution of disputes and for the making of recommendations in regard to major planning applications.

  Planning matters may obviously be matters of acute controversy within any community. Nevertheless, the Planning Appeals Commission is able to operate its procedures in a fair and open manner and the parties are prepared fully and vigorously to participate.

  If there are circumstances of even greater sensitivity faced by the Parades Commission in particular circumstances, then those need to be addressed by the Parades Commission in the particular circumstances as they arise in each case.

  This should be done on a case by case basis according to the particular circumstances of each witness in each case.

  There can be no proper justification for the blanket ban contained in Procedural Rule 3.3.

  Thus the Parades Commission must introduce fair and proper rules of procedure in accordance with the principles of natural justice.

  If there are to be exceptions (allowing witnesses for instance to object to the disclosure of their identity) then the Parades Commission must have procedures to strike the proper balance.

  By way of example, the decision reached in the "Bloody Sunday" Tribunal in regard to soldiers giving evidence is instructive. The Court of Appeal has held that the Tribunal failed to attach sufficient weight to the risk posed to the safety of former soldiers and their families, which the Court said was a risk which concerned the most fundamental human right, namely the right to life. Accordingly, the Court did hold in that case that the grant of anonymity to the soldiers was the only possible decision open to the Tribunal. But, the Court clearly acknowledged that this was a most limited departure from the open procedures of the Tribunal. They noted that the anonymity would only have a limited effect on the openness of the inquiry since the soldiers would still be giving their evidence in public, their names would be known by the Tribunal, their officers would be named, a particular soldier could still be named if there was reason to do so, and the Tribunal's ability to search for the truth would not be undermined.[9]

  This is by way of example only to show how a particular set of anonymity requests was or should have been dealt with.

  It is the duty of the Parades Commission to address these issues to meet its circumstances, and it is not lawful for the Parades Commission to persist with the blanket ban of Procedural Rule 3.3.

  Thus it is incumbent on the Parades Commission to adopt the necessary Procedural Rules which will meet the circumstances of any proper legitimate requests for anonymity, but which should not undermine the Commission's search for truth.

29 September 2000

7   Robson, Justice and Administrative Law Third Edition 1951 p 325. Back

8   Lord Guest in Wiseman-v-Borneman [1971] AC 297. Back

9   R v Lord Saville of Newdigate & Ors ex parte A & Ors [1999] 4 ALL ER 860. Back

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