Select Committee on Northern Ireland Affairs Minutes of Evidence

Examination of Witnesses (Questions 320 - 339)



  320. No, it is instructive, because, in the reading I have done on this, there is a place called Queen's Island, in Belfast, where for most of the 19th century hardly a day went by without them having some sort of a parade, march, counter-demonstration, or whatever; they were clearly slightly underoccupied in the area.
  (Mr Watkins) They were supposed to be making ships. I am rather alarmed at that.

  321. They were clearly very capable shipwrights, in that they could parade and counter-parade and build ships. I am not sure if they were the ones who built the Titanic, but I was just wondering how much of that was local and was generic, and I am very grateful for the extent of your answer. Can I just ask you a question which I fear prompts a three-volume response, so you may wish to say if it is rather too wide off your remit. Several of the witnesses we have heard have emphasised that the Parades Commission alone simply cannot solve all the problems over parading. I am just interested in what initiatives the Government plans in the broader context to help resolve the underlying problems? I appreciate the vastness of that question.
  (Mr Watkins) I think the Government would share that analysis; and indeed I have already referred to remarks frequently made by Sir Alistair Graham, the former Chairman, that when the Commission has to make determinations that is a reflection of failure. I do not think that something that reflects failure can ever be turned into a panacea. I think the Government would share that analysis. The Government's wish is that parades should be resolved amicably, to the mutual satisfaction of the various parties to the issue, at local level. The way in which I think the Government can make the biggest contribution is by promoting a more harmonious society in Northern Ireland at large, and the Government's policy to that objective is clearly enshrined in the Good Friday Agreement. I do not think I want to say a great deal more than that, other than to say that a more harmonious, a more tranquil, a more functional, in a political sense, society, I think, in the Government's view, might make a contribution to the resolution of these rather sharp issues of parading. When Direct Rule applied, the Government certainly had a programme for the promotion of community relations, Community Relations Councils and a number of various other initiatives, and my understanding is that the Executive Committee continues those. But I think it is along that sort of broader canvas that a broader solution might be found.

  Mr Pound: I will relish your response that the answer to these problems is tranquillity. It is the achievement of tranquillity I was interested by. I am grateful for you underlining the centrality of the Good Friday Agreement. Thank you.

Mr Hunter

  322. One criticism levelled at the Parades Commission is that it has both a mediation and a decision-making role. It has been suggested to us that, in some circumstances, these roles can be incompatible. Do you have a view on that?
  (Mr Watkins) The Government would share the view of the Commission itself, and indeed of the RUC, in its evidence, that clearly there is a tension. It is by no means an accident that the Act enables the Commission to facilitate and promote mediation, it does not say it should mediate, because there would clearly be an outright contradiction between the same people mediating and then sitting in judgement on those parties between whom they have failed to promote a mediated settlement. That would clearly be, I think, an irresoluble conflict of interests. Hence the Act making this, as it were, an arm's length activity on the part of the Parades Commission, that it promotes, prompts, facilitates, nurtures mediation by others, but it does not become directly involved as a Commission in those attempts. I think the emphasis, the Government thinks the emphasis, is right in that. What it enables the Commission to do is to find a variety of ways of promoting mediation, whether through the Authorised Officers, whether through the RUC, as Alan McQuillan I think explained last week, whether through community leaders, or, I think it was, in a case in Derry, business leaders. So our view is that as long as the Parades Commission promotes mediation but that mediation is conducted at arm's length from the Commission, then that inherent tension does not become insoluble.

  323. Moving on then. Now we have responsibility for decisions on parades transferred from the RUC to the Commission, has this led to a greater acceptance of the RUC in policing parades than hitherto?
  (Mr Watkins) That is an extremely difficult proposition to test. The easier answer, which I know you will not allow me to get away with, is that it should, in that the police themselves believe that they were often put in an impossible position, where they had to mediate, make a determination and then police their own determination. The police themselves are much more comfortable with being relieved from that double burden, as it were. And the only answer I am capable of giving you, Mr Hunter, at the minute, is that it would be very difficult to disentangle confidence in the police on this issue from confidence in the police at large, which, as this Committee will be very well aware, has been a subject debated in these buildings for some time, in relation to the Police Act. It would be very difficult, I would submit to you, to disentangle those factors.

  324. The Commission looks on each parade as a separate entity. Is there an argument, or not, for linkage, either linkage over a period of time or on a given day geographically across the Province?
  (Mr Watkins) This was a proposition which actually was put forward in the North Report itself; in fact, if I understand it correctly, it was the only major recommendation of the North Report that the Government decided not to proceed with. North recommended what I think was, rather pejoratively, though not intended to be so-called, package deals, where there would be a package of the sort that you describe. The difficulty has been that, in law, the Parades Commission needs to be careful not to fetter its discretion in relation to any individual march. And the problem with a package deal is that, if it were to forecast the way it might respond to a parade in three months' time, when in fact it did not know what were the conditions on the ground, what problems might have arisen on the ground, in that immediate vicinity, or at large, in the intervening period, it could be fettering its discretion in law, and maybe making its own decisions much more contentious, in the event. I would also offer the view, if I may, that I am not sure that that sort of broad consensus, or compromise, will actually work. I am not sure that a marching Order in one location will say, "Well, we don't mind not having our march, because we know our brethren, 25 miles away, are having their march;" or "We don't mind, as residents, not objecting to this parade, because we know that the residents 75 miles away are not having a parade imposed upon them." In a sense, that would be an ideal sense of give and take, but my own view is that I do not think that either the Marching Orders or the residents would be ready, even if there were not the problem of fettering the Commission's discretion, for that sort of broadly balanced outcome.

  325. Would linkage require legislation, or could it be enforced under existing legislation?
  (Mr Watkins) I would need to take advice on the matter, if I may[6]. I think it would be difficult to provide for linkage in a system which provides that a parade is notified as and, as it were, becomes a legal personality on the date that it is notified. I think it is quite difficult to run that system, on the one hand, against a system where the Commission is dealing with marches which have not yet been legally notified to them. It would require quite a lot of adjustment to the structures envisaged by the Act.

  326. One last question, Chairman, at a slight tangent. Mr Watkins, you will be familiar with the form 11/1, and its various sections.
  (Mr Watkins) Yes.

  327. Can you explain, either now or perhaps later by correspondence, that section which requires the names and addresses of representatives of bands? I ask this question because the Ulster Bands Association were told by the Parades Commission that the Parades Commission did not require that information, that it was a police section; on the other hand, the police have told the Ulster Bands Association that they do not require the information because they have it already. And I ask that question with the trouble that arose at Maghera last summer in mind.
  (Mr Watkins) With your agreement, could I possibly agree to write[7]? I could not give you an answer that could be relied upon today, but might I write?

  Mr Hunter: Yes. Thank you.

Mr Beggs

  328. Perhaps I should start, as did my colleague previously, by registering my interest in the parading organisations, Orange, Black and Apprentice Boys; but for the purpose of this afternoon can I welcome the panel who are giving evidence. It has been suggested to us that the determination process might become more acceptable to some if there was greater disclosure to all parties of the evidence or advice on which the Commission was relying, and an opportunity provided to challenge it. In a sense, this would build on the conclusion of the review that the reasoning behind Commission determinations might be set out in more detail in determinations. Would the Government support a more quasi-legal basis for Parades Commission proceedings and could a change of this nature be achieved without legislation?
  (Mr Watkins) The Government's view is that the current process is the most effective that can be devised. Given the large number of parades in the early to middle summer months, I think it could be extraordinarily difficult for a single Commission of seven people to cope with hearings of a quasi-judicial nature, such as of the character that you have described, and still hope to give five days' notice of their decisions. And that five days' notice of decisions is an essential part of the structure, because it is in that period that an aggrieved party can test the adjudication in court, and such parties have regularly done so. The Government, I think, would be concerned that that could be put in jeopardy. If it were to be required, I think legislation would be required, there would certainly need to be a change in the guidelines which come before the House, but, also, I am pretty sure we would need to have a much larger Commission. If I may presume to expand a little bit, the question has arisen, and I think, indeed, you may have questioned the Chairman of the Commission last summer, about whether the process of adjudication will stand scrutiny under the Human Rights Act, and whether, in particular, the process should attract Article 6 of the European Convention, which allows, and I acknowledge I put this very crudely, in an amateurish way, for the sort of quasi-judicial hearing and testing that you describe. Our legal advice is quite clear on the point, that the rights at issue here are not such as to attract Article 6, for various technical reasons, which I will, as a non-lawyer, if you wish, try to describe, but our legal advice is quite categorical, that the rights at issue do not require the attraction of Article 6 of the ECHR, and that the Human Rights Act therefore will not require the sort of adversarial testing and quasi-judicial hearings of the sort you describe. But it is, in the first instance, for the Parades Commission to satisfy itself that it is proof against any action taken under the Human Rights Act; but, as I say, our legal advice is quite clear on the point. So, to try to summarise, if I may, the Government is satisfied with the current arrangement and would wish it to remain in place; but if a court were to find differently then, of course, we will have to consider the implications very carefully.

  329. Thank you. Are any further initiatives planned by the Government either in relation to the Parades Commission itself or to the parading question more generally?
  (Mr Watkins) The short answer, I think, is no, I do not think Ministers have in mind any new review, for example, of the Commission, nor, I think, is it the case that it has been borne in upon Ministers that there ought to be such a review, nor do Ministers believe that there need be any further debate, review, instigated by them of the issue at large. So I think the short answer to both points of your question is no.

  330. Has any consideration been given to providing funding for the training and developing of stewarding skills and providing of better stewarding communications equipment to the Loyal Orders and other organisations with parading interests?
  (Mr Watkins) I am conscious, Mr Beggs, that the Parades Commission is promoting ways in which the training of stewards might be enhanced by encouraging Marching Orders to have stewards trained at further education colleges, where I understand that there are courses in that sort of skill for other purposes, I imagine mostly football. But, whether there is actually funding available for that, I would need to write to the Committee, if I may[8].

  331. Thank you. What do you believe to be the main obstacle in Loyalist participation with the Parades Commission?

  (Mr Watkins) I think the Government's assessment of that is that the Loyal Orders believe that they have an unqualified right, an absolute right, to march on the Queen's highway, as they say, and that that right should not be in any way interfered with and it is indeed those who interfere on whom the law enforcement, as it were, ought to fall. I think the Government's interpretation of their position is that it is the restriction of that right, which North argued for, and argued was already the case, that they take exception to, I think that is the fundamental objection to it; though, if I may say so, others, I am sure, are in a better position to make that assessment than I am.

  332. Both Loyalists and Nationalists, for example, the Loyal Black Institution and the Lower Ormeau Concerned Communities, believe that each is being victimised in order to appease the other; this would lead us to believe that the communication of the decisions taken by the Parades Commission are not fully explained or understood. Could you outline to this Committee the budget for the Parades Commission and how much is set aside for promoting understanding of its function on decisions?
  (Mr Watkins) We rather shared the view, Chairman, in the review that we undertook, that there needed to be more detail put into determinations, and that was, indeed, one of the recommendations, and, indeed, when I referred to the fact that I believed that more detail was now being provided in determinations, I had actually in mind determinations made between the summer and the autumn in relation to the Lower Ormeau Road, as it happened; the one, for example, if I recall correctly, for August 2000 was actually very detailed indeed. I know that the budget for the Commission as a whole is just over £1 million; again, I apologise, but I would need to write to the Committee to say how much of that is devoted to the purpose you describe, if I may*.

  333. Thank you. Would you like to explain to this Committee the reasoning behind the abolition of preliminary findings by the Parades Commission following the NIO review? And could you comment on the introduction of what is felt to be subjective criteria following the same review; for example, the replacement of the criteria on parade organisers to reach agreement with, to be seen to take whatever steps are reasonable to meet residents' concerns?
  (Mr Watkins) I think I might ask you to repeat the second part of the question. On the first part of the question, the preliminary view was a proposal that the previous Parades Commission had suggested, whenever, in February 1998, they were first established and empowered, as it were. At that time, the Government's view was that for the Parades Commission to publish such a preliminary view, and we are talking about April 1998, was perhaps not going to play very well, in the public interest, in society at large, given that, at that time, the Government knew that there were very delicate, political negotiations under way. Ministers' assessment was that anything could have destabilised those negotiations, I do not think I need, Chairman, to expand on that very much, and their judgement was that a preliminary view was bound to be a source of disappointment to some, if not all, and therefore could have such a destabilising effect on the wider picture that it was not in the public interest. Since then, I am not aware that the Parades Commission, whether the current composition, or the previous, have returned to the idea. I am afraid I failed to follow your second question. Maybe you would prefer me to write, in reply.

  334. The second part of the question was the invitation to comment on the introduction of what is felt to be subjective criteria following that review; in other words, the replacement of criteria on parade organisers to reach agreement with, to be seen to take whatever steps are reasonable to meet residents' concerns?
  (Mr Watkins) I think that flows from the suggestion that we made in the review, that the Commission might want to try to articulate, perhaps in a rather more detailed way, what it meant by engagement. One of the underlying problems, in particular for the Portadown District, for example, though for Marching Orders at large, was that it felt that it had at times engaged to the maximum that it was authorised to do, and yet this did not seem to be enough, in their view, to achieve the desired outcome, namely, a march. And one of the complaints they made, including to Ministers, was that there needed to be greater clarity as to what was meant by engagement. The Commission did, indeed, on pages 15 and 16 of their last year's Annual Report, set out in more detail what it meant. I do not think there was a deliberate attempt, and certainly it was not in our mind, in making a recommendation, that there should be a switch from an objective set of tests to a subjective set of tests; but I think the Commission's suggestion is inherently, as indeed it says, at least in part, subjective, because they want, for example, to test whether the engagement is genuine, is a genuine attempt to understand and accommodate the concerns of the other sides. Now I do not think there is an objective test for that. But it was not an attempt, on our part, to switch any test from the objective to the subjective, I think there is an inherent subjectivity, which the Commission, maybe for the first time, articulated more clearly than previously.

Mr McCabe

  335. Good afternoon, Mr Watkins. Mr Watkins, one of the common criticisms of the Commission, I guess, by both sides, is the lack of transparency in decision-making. Can I ask you, first of all, would you accept that criticism; and, if so, what would you do about it?
  (Mr Watkins) I think, by implication, we did accept that criticism, because, to come back to the review again, one of the more important recommendations in the review was indeed that the Commission ought to import more detail of the reasoning behind its determinations, and the implication of that must be that it had been borne in upon a number of those whom we had consulted that indeed there needed to be greater transparency and greater clarity. As I said, in answer to earlier questions, that is a recommendation of the view that we think has been fulfilled. I am not conscious of views being regularly expressed, in response to determinations, that they are not sufficiently detailed or clear. I am also pretty confident that if there were such criticisms the Commission would be happy to respond to those, insofar as lies in their power, and indeed the implementation of the Human Rights legislation I think will probably push them further in the direction of articulating why they strike the balance in judging between rights that they do. So I think there may be a development naturally, as it were, flowing from the Human Rights Act, in that direction.

  336. Thank you. I am told that one of the factors that weighs quite heavily on the minds of the Commission when determining these things is this concept of the traditional route. Could you define for me what you understand by traditional route?
  (Mr Watkins) Can I say first that, under Section 8(6) of the Act, if my recollection serves me properly, which remarkably it does, it is actually a statutory factor, "The guidelines shall in particular (but without prejudice to the generality of (Section 5(1)) provide for the Commission to have regard to (a), (b), (c), (d) and (e), the desirability of allowing a procession customarily held along a particular route to be held along that route." So it is not, I think, just something which, as it were, subjectively, the Commission bear in mind, they are statutorily under an obligation to weigh that factor. The definition of a customary route, I think, is a matter for the Commission, but I think myself it would be one where, for a number of years, and certainly more than one, I would have thought, it had indeed been traditional to march along the route in question. Some of the routes, of course, and indeed in Drumcree, I think, go back to 1804, if I remember correctly, certainly a very long time. But it is a statutory factor.

  337. I am grateful for that. Can I just clarify, and I accept the point you make about that and the fact that it is an obligation, when the Commission are trying to weigh this up, do they seek any clarification about a traditional route? Because it does occur to me there are different ways you could approach this, some people could define it in the historical sense, that you have just done; equally, if something is custom and practice and has political support over a much shorter period it could also be described then as traditional. And I am simply wondering how people assure themselves that it is genuinely a traditional route?
  (Mr Watkins) I think the proper answer to that is that I do not know, because it is for the Commission itself to define its definition of a traditional route. I have never been at a Commission meeting when they have made a determination. I was with Jonathan Powell when we gave evidence, as I described a few minutes ago. I have never been at a Commission meeting, nor should I ever have been at a Commission meeting, whenever they reached an adjudication. So I do not know actually how they define it, or what weight they would put upon it. And, I think I would rather deflect your question to the Commission, if I may.

  338. Do you think that is the sort of thing the Commission might be likely to give greater information on in the future, so, if they do make a decision where the concept of traditional route weighs quite heavily, is that the sort of thing, in terms of transparency, we could expect to see, in their determination?
  (Mr Watkins) I think it might well be. It is a statutory factor. They may be called upon, in court, to justify why they (a) define march X as traditional, and (b) why they attach a certain weight to that. And, to come back to the advent of the Human Rights Act, the Human Rights Act, as I said in reply to an earlier question, will put greater pressure on the Commission to explain how it struck the balance in assessing competing rights, how it struck the balance it struck; and it might be that, as part of that, it will have to articulate more clearly the weight it gave to relevant factors and how it defines relevant factors. In a sense, like much else, if I may say so, the Human Rights Act puts us all on a voyage of discovery, and that may be an element of it.

  Mr McCabe: Thank you very much.

  Chairman: I grew up in Hampstead, in north London, which had been settled, I think, in the 17th century, and there were gardens where there was a right of way, across gardens of houses which had been built some time ago, where there was a right of way across them. And there was an old man who, because the law required a right of way to be maintained once every 21 years, made it his business so to maintain them. But I do remember, as a small boy, wondering what was going to happen when he became physically unable to discharge this function.

Mr Thompson

  339. Good afternoon. You have used terms, and again I want to declare an interest as a member of the Orange Institution, what you have said this evening, you have talked about balancing of competing rights, competing and qualified rights. Certainly, as a member of the Orange Institution, I know, and I think you have indicated, what we would consider to be our fundamental rights, the right to peaceably protest, process the public highway unmolested, the right of freedom to expression, the right of free assembly. What is the Northern Ireland Office view of the competing rights, what is the competing rights?
  (Mr Watkins) I would, I think, refer back to the North Report itself, whose fundamental analysis, as I understand it, was that the parades issue often invoked competing rights which were qualified. As I recall the North Report, it said there was not an absolute right either to march or to veto a march or protest against a march. It also argued very strongly that with rights went responsibilities to recognise the concerns of people who felt that their own counter-rights, as it were, were being infringed. And the Government, as I said in my opening statement, continues to think that that analysis holds. And, indeed, in the application for judicial review of the Parades Commission's determination in relation to Dunloy, in September, October, the Court of Appeal, in dismissing the application, did actually acknowledge that there was a balance of rights to be struck, and that though there may well be a right to march which can be inferred from the right of assembly, although the Lord Chief Justice specifically said he accepted, but they would not decide, that the freedom to march flowed from the freedom of assembly. But he did go on to say, as I understand the ruling, that that right had to be balanced, and indeed in Article 11, I think it is, of the ECHR, was balanced, by other factors, for example, the risk that the exercise of that right might end up in public disorder, and that therefore the right to march, in Article 11, was counterbalanced even within Article 11 by the right of a public body, such as the Parades Commission, to restrict that right. I hope I have given you a sense of the sense which we—

6   See also Ev p 99. Back

7   See also Ev p 99. Back

8   See also Ev p 99. Back

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