Select Committee on Northern Ireland Affairs Minutes of Evidence

Examination of Witnesses (Questions 420 - 439)



  420. Thank you very much, indeed, for those introductory remarks. I think we all appreciated that your particular interest lay in the Drumcree matter. The transcript will be extremely valuable to us in terms of subsequently taking stock. I should have welcomed Mr Campbell; it is good to see Mr Campbell here. Let me go back to one of the things you said in the memorandum, which you sent us in advance. My initial remarks are introductory. The Parades Commission was set up with four specific duties, set out in section 2(1) of the Public Processions (Northern Ireland) Act 1998, and was given (in section 2(2)) two permissive powers, to facilitate mediation and to issue determinations. You said to us in your memorandum, "The establishment of the Commission was an exercise in government abandoning its responsibility for maintaining law and order". Could you say a bit more, in what ways the powers I described as quite salient in the Act, the powers and duties, are lacking in terms of the objectives that the Act presupposes and that the government is delegating?
  (Mr Trimble) You are quite correct to say that the functions of the Commission are set out in section 2 as the duty to the public understanding, mediation and to keep itself informed and to keep under review the operation of the Act. Then the Act goes on to, as it were, transfer to the Commission all of the public order provisions with regard to processions. Notices are given to the Commission, the power to make determinations on processions is given to the Commission. The power of the Chief Constable is defined and, indeed, the power of the Secretary of State is quite limited. All of the powers that now rest with the Commission with regard to the regulation of parades, hitherto vested in the Secretary of State and Chief Constable in terms of the operation; those powers have now been effectively transferred. The Secretary of State's role is now limited to the provisions in Section 9, where he can come in if the Chief Constable asks him to review a determination. Then there is a power in section 11 to make bans on top of what the Commission does. The powers of the Secretary of State are limited. While the Acts sets out these duties with regard to facilitating mediation and understanding there is not very much that the Commission has done on these matters. As one expected, the powers with regard to issuing determinations has overridden the power to mediate. I think you have a problem in terms of promoting mediation and at the same time being the judge. The roles are different. To try and provide the role of mediator and judge to the same body does not work. The Commission will say on that, that the duty is to promote and facilitate mediation rather than be a mediator. Again, in terms of facilitating and promoting mediation there is not much they can point to in terms of the efforts that have been made on the Drumcree issue to mediate. The Commission have not facilitated them in any way. Specifically in our experience the Commission very much gave us the impression they would rather that we were not there and were not doing things. They certainly did nothing to reward those who maintained a constructive attitude to efforts to mediate. In that sense I would be critical of the Commission.

  421. You were anticipating me in coming on to Section 9, and the provision that the Chief Constable seeks a review by the Secretary of State of the decision of the Commission. Given that is how the laws stands, do you regard that as an adequate safeguard against poor decision making by the Commission?
  (Mr Trimble) It is not in any way or any respect adequate. The Chief Constable is the doorkeeper; unless the Chief Constable brings an issue to the Secretary of State he is utterly powerless. The whole structure, the tenor of the Act is one which implies that the Chief Constable only brings a decision where the Commission have failed to do that. There is no likelihood of the Chief Constable bringing a decision where a ban has been made where the Chief Constable thinks the ban is undesirable. When I did see the Chief Constable I asked him whether he would be prepared to take these matters to the Secretary of State and he made it very clear that he had no intention whatsoever of doing that. Particularly when an issue like that becomes highly charged politically, I can quite understand his position, because the Chief Constable would not want, in such a political issue, to appear to adopt an approach, whatever approach he be in favour of, on one side or the other. I can quite understand the Chief Constable not wishing to appear to take sides in such a charged issue. Putting the Chief Constable as the doorkeeper is not very sensible. We took the view when we made representations to the Government at the time of its review that there should be a simple power for the Secretary of State to review and to alter determinations. When you consider the impact that some of these issues can have on social life, economic life and public order generally, for the Secretary of State to find himself helpless—and if the Chief Constable does not move he is helpless, he can do nothing—these decisions can have massive impact in terms of the stability of society. The Secretary of State is in the hands of the Commission. Some of them might have some knowledge but, generally speaking, they are amateurs in terms of dealing with the issues that are important. That is a very serious, fundamental flaw in the whole scheme of things. These issues are too important to leave to any quango.

  422. To go back, again, to the words you used in your original memorandum, you said, "Present arrangements prevented Government taking action itself in the event of things going wrong". You have given us some idea of what your answer may be to the question, what additional powers would you like Ministers to have to vary or set aside determinations by the Commission?
  (Mr Trimble) At a very fundamental level I am not sure we want to have these powers with the Commission at all. These issues are so important I think they should be with the Chief Constable, the Secretary of State or the court, rather than with a Commission which is operating in an executive role or a judicial role. I think that is a mistake. If, however, it is considered there has to be a Commission, for whatever reason, then at the very least there should be power in the Secretary of State to review either on his own motion or other people bringing the case to him. That should be there, I think. However, if there is a Commission we need to go right back to the basic terms of the legislation. This legislation is drafted as public order legislation. The whole tenor of it, the specific provisions of it, are all public order related. It is as if the primary objective is to maintain public order whatever the situations are. If the goal is purely public order related then you create a situation where the person who creates the most trouble wins, the person who brings the greatest number to bear, creates the most difficult situation for the security forces, wins. That is exactly what has happened with regard to the Drumcree issue, because the Drumcree residents said they will use force, and bring hundreds, if not more, people on to the road, sitting down on the road, creating a situation whereby they have to be forcibly removed and deploying the threat of violence, and that is in the form of lethal violence. At the time of one of the first Drumcree incidents, I was saying to a very senior RUC officer, "Look, our objective is to move people off the road". We are saying, "There is no reason why the parade should not go through". He hinted that there was a much more serious threat that could be deployed, people throwing stones or even petrol bombs, or even the threat might be more serious. I remember during one of the road situations the newspapers reporting that people armed with sub-machine guns were there. The mind recoils at the thought of anybody using firearms to fire on people who are simply walking past on the road. That threat was there. If the legislation was purely public order related, then the person with the biggest threat wins. That is the situation that has existed. We do not have a legal regime that is right and takes regards of people's rights. It is simply that we have a legislative structure that regards might and the exercise of might: that is one of the serious problems.

Mr Barnes

  423. Good afternoon, First Minister and Mr Campbell. In your written statement to the Committee in referring to the Parades Commission you state, "It created a grievance factory for politically motivated residents' groups and has led, in areas where such groups have been targeted, to an atmosphere of intolerance and appeasement of a greater threat." What evidence do you have that residents' groups have been targeted to induce them to oppose marches by the Loyal Order?
  (Mr Trimble) It is difficult to produce evidence on this that would be admissible in a court of law, I have to say that. One will get different views from observers as to whether the entire operation has been manufactured or the extent to which it has been spontaneous. Different views will exist. There is, however, no doubt that we have a rash of residents' groups which came into existence around the same time. The leading spokesperson of these residents' groups were persons who had a Republican background—the choice of spokesman or spokesperson who had records of being actively involved in the IRA—Mr McKenna in the Drumcree area, his involvement was part of the operation which resulted in the destruction of the Royal British Legion hall in Portadown. As Portadown District is led by an ex Servicemen's Lodge, one can see that it is not unreasonable to say it looks as though his emergence as a spokesman was designed to cause the greatest possible obstacle to a peaceful resolution. It may be coincidence, it may not be coincidence. It may be coincidence that the spokesperson for the three most prominent residents' groups are all people with an IRA background. There is the famous occasion which Mr Adam's observed, the leader of Sinn Féin, that it was no accident that these groups came into existence. That is not to say that the issue is entirely artificial, it would be wrong to say that. There is no doubt that this is an area which can generate tension within the community. The tension has flared up from time to time. When you consider that we have been through 30 years of terrorist violence, it is a bit strange looking back to 1972, when 480 people were killed as a result of civil disorder and terrorist violence, that the Orange parades were going all along all these disputed routes without any problems. It is only latterly when the focus has moved from outright terrorism to the tactical use of arms struggle that we see this issue coming to the fore. These may be coincidence, but most people on the ground looking at the persons involved have a fairly clear view as to what is going on.

  424. You referred to the distinction between organised activities and spontaneity. There is a whole theoretical argument that goes back about the distinction between these two positions. Obviously people involved with organised activity, you do not get it unless you have some issues to play upon in order to seek to develop that. Do you believe that the residents have ever got serious grounds for complaint, which themselves rather arise spontaneously, which, then, those who are trying to organise the type of protests that you have in mind are able to play upon in order to develop it?
  (Mr Trimble) We are obviously moving in to quite a complex area on this. One has to say that there are different perceptions. There is the perception of the average Orangeman in my experience, who is there simply to have a good day out and is there to enjoy an expression of his identity and culture in a way that his mind is focused on that issue. Yet there are other people who have the perception of it creating a threatening triumphantness. This is largely a problem of perception, what some people see as being a pleasant day out and an enjoyment of their own identity is seen by others in a different manner. There would be differences between urban and rural areas. Rural areas are very rarely homogeneous in terms of community links, whereas towns tend to segregate. In a number of towns, particularly in Belfast, and some other towns too, there would be a high degree of residential segregation. Where that exists, you will find that then Orangemen do not organise parades in purely residential areas where people are of a different belief. It is a long, long time now since the Orange Order set foot in the Falls Road. There were once some parades there because there were people who subscribed to the Orange identity who lived there. That ceased to be the case a long time ago. In the country it is a different matter. Where you are dealing with main arterial routes it is a different matter; it is a complex issue and too big an issue to explore this afternoon.

  425. Even if residents and residents' organisations may often have misperceptions, are those misperceptions themselves quite important to take into account in terms of whether a parade should continue or the roads that a parade should pursue?
  (Mr Trimble) This is the point in which the provisions in Section 2, which the Chairman referred to, could actually be quite important, the business of promoting greater understanding concerning the issues, and promoting mediation. Here I want to speak with approval about work done by the Apprentice Boys of Derry with regard to their parades in the city of Londonderry, the initiatives they have taken and the positive things they have done, like the initiative that Portadown District undertook in 1997, at our suggestion, of actually sending a personal letter from the District to every resident in the housing estates adjacent to the Garvaghy Road, which was done deliberately in order to try to explain what their position was and to try and encourage greater understanding. I made the point earlier, there are different levels and classifications of parades. There is quite a difference between a 12th July parade and a church parade. Church parades are very, very low key parades. There are circumstances where Orangemen would say it was not appropriate to have a full scale 12th July parade in a particular area. I thought I ought to mention that.

Mr Clarke

  426. First Minister, I do not think it would be too wrong to say that having read the memorandum and in respect of your opening statement, you have a low opinion of the Parades Commission in terms of its ability to achieve its objectives?
  (Mr Trimble) It is very clear from what I said that I did not have good relations which the First Commission, it is a slightly warmer relationship with the present Parades Commission. I do not think it is making much progress in achieving its objectives. I think it is hampered by the legislation within which it is operating.

  427. With that in mind, I wonder if we can break down the Chairman's first question when he talked about the specific duties. First of all, concentrating on the duty of promoting greater understanding, in your answer to Mr Barnes you mentioned that both the Apprentice Boys and the Lodge in Portadown have written to residents in order to promote greater understanding of the issues. Would you give your assessment of the success, or otherwise, of the Commission in promoting greater understanding by the general public of issues concerning public processions?
  (Mr Trimble) I have to ask you to speak to the Commission about that. I cannot recall anything they have done that I would regard as promoting greater awareness of it. I do not want to say beyond that. It may be that they have done things I am not aware of.

  428. Moving on, then, to a question in a similar vein, that may result in a similar answer. You mentioned earlier on the failing of the Commission or the difficulty that the Commission had in being both responsible for facilitating and promoting mediation, I wonder if it would be possible to give us an assessment on their successful value there in terms of their duty to promote mediation and also to facilitate?
  (Mr Trimble) Again, there is not much I can say. As I said, there is an inconsistency between the two roles. If you are cast in the role of the judge then it is difficult to get involved in mediation because, inevitably, people will not respond to you as a mediator when you are also a judge. Again, I have to say I am not directly aware of things that they have done to actually mediate in any specific case. I may be doing them an injustice in saying that: you will have to speak to the Commission. Of my own knowledge I cannot give an assessment of that because I do not know what they have done.

  429. In this evidence session and in other evidence sessions, we looked at a time beyond the Commission, if the Commission were not there the RUC would take up certain duties. Without the Commission being there, who do you think would be best fitted to take on that role in promoting mediation and facilitating mediation?
  (Mr Trimble) A Commission of that nature charged simply with mediation and the promotion of information and understanding could have a role. Indeed, that was one of the arguments about the creation of the Commission, whether it should operate purely as a mediator, promoting understanding and mediating those disputes or not. I think there could be a role for a body of some sort that was concerned simply to mediate and to promote understanding. There could be a role there. I think the role of the person who has to take a decision, which may be of a judicial character or which may have to be done with response to whatever is expedient on the ground to maintain order, those roles are quite different and should be exercised. I can see the need for promoting mediation and promoting understanding and that can be done and may be better done in a structured way rather than simply relying on ad hoc arrangements. If you were to rely on ad hoc arrangements whenever you have a hot spot that may not be the best way of doing it. There is a certain expertise with regard to the process of mediation and the need to have, as it were, a body of knowledge about the organisations that are involved in terms of their own structures and their origin and in terms of their local practice on the ground. A lot of these things have custom and practice, and custom and practice counts for a lot. It has historically been the way in which solutions have evolved in particular localities and so the knowledge of the local custom and practice is important. If one simply has a series of ad hoc arrangements that may be a problem. It might be better to have a body which is existing purely for that purpose.

Mr Hunter

  430. First Minister, in thinking with the scenario where a positive determination has happened and a parade takes place, I am wondering what your perception is or what evidence you have of the extent to which the Commission will make itself aware of the conduct of a particular procession or a protest meeting, for instance, for example, the events in Londonderry last December where there was seven or eight little fracas after the cathedral service. Do you believe that the Commission is making itself aware of what is happening at these parades?
  (Mr Trimble) The Commission has a number of Authorised Officers whom it relies on to, as it were, provide information on areas and generally to give it the background to particular circumstances and to give it reports. Of course it will have available to it police reports and it is common for the Commission to take advice—advice might be too strong a word in this case—reports from the police on matters. In many of these cases there is plenty of coverage in the media of it. Essentially from the point of view of the Commission's operation it relies on its Authorised Officers and police.

  431. This is not an area of the Commission's activities that gives you cause for concern?
  (Mr Trimble) Again, I am hesitant to say, because my contact with Authorised Officers is very limited. I have not had direct experience with dealing with specific parade applications. I have heard some comments about the Authorised Officers generally, but I do not know if those comments are fair or accurate. It is a matter you should look at from the point of view of what is done in order to ensure that Authorised Officers have the appropriate training and that they are themselves are fairly detached and objective in terms of how they are operating. A point I made earlier, there are a lot of customs and practices and what is custom and practice, what people do in particular localities and if the Commission is not given that information from the Authorised Officers that could cause a problem. I have heard people refer to particular incidents and particular parades and say that the Commission ruling ignored what was local custom and practice. I have limited direct knowledge of that.

Mr Grogan

  432. First Minister, do you think that the Commission would be more effective and be more knowledgeable if the Loyal Orders engaged with it as a matter of course?
  (Mr Trimble) Yes, I have no doubt about that at all and it would be desirable. The comment I just made to Mr Hunter, where there may be key cases where the Commission was not aware of the local customs and practices, the Commission's response to that would be, "How are we to know if we do not hear and people do not speak to us", and all the rest of it. A lot of the difficulty here goes back to the circumstances in which the Commission came into existence, in terms of the nature of the report and the nature of the legislation; it was seen by the Loyal Orders as being an active operation and it took a position. I have personally said to people in the Loyal Orders, "Irrespective of whatever view you take of the body, the body has the powers and you are better trying speak to them in terms of one's case". As I say, the Apprentice Boys have been quite forthcoming in this matter, not just speaking to the Commission but also they engaged with the community of which they are part. Again, I understand the Loyal Orders' reluctance to get involved with residents' groups of whom they are suspicious of individuals and have very good reasons for not wishing to meet with them. That should not prevent them from engaging with the local community and addressing the public in wider terms. There is a problem here. Part of the difficulty is that the Loyal Orders do not have the resources for training to cope with the situation which they are dealing with. The organisations are all decentralised and rely very much on people in the locality who have found an issue dropped on their laps, which is an extremely complex and difficult one to deal with. There is a problem on that side. There is a gap in terms of expertise and resources in this respect. It would be better for all concerned if Loyal Orders engaged with society in a broader way in order to promote an understanding of what they are doing rather than allowing themselves to be boxed into a corner.

  433. You described your own frosty relationship with the Commission when you made interventions in relation to contentious parades. Do you get the impression that the Commission is resentful of such intervention, whether it is from you or from the Government? I suppose, might they have a point, because is there any evidence that any of these interventions have ever produced fruit?
  (Mr Trimble) I think you are right to say that the Commission appears historically to be resentful, not just of its own efforts and that of the Government as well but, as against that, in the absence of anybody else dealing with the issue, somebody has to do it. The difficulty is that if everybody tries to solve the issue it is perceived by one party as coming from a different direction, particularly when the Parades Commission themselves were not directed to mediate. While there may have been some resentment there, I think that, in that sense, subjectively they might understand it, but objectively it was a problem. The difficulty in producing a resolution is because of the way the Parades Commission operates; it has given a veto to some of the people and that also prevents effective mediation. If prior to entering into some mediation process one party is assured, rightly or wrongly, that that party will have a decision in its favour then, if doing something is going to involve some compromise, there is a serious problem.

Mr Hunter

  434. In your memorandum, you comment that the Commission is not representative of the general community in Northern Ireland. I wonder if you could expand on that and in what respect is that so? Are we to infer from that statement that you think a different constituted Commission might come to different conclusions?
  (Mr Trimble) I did welcome the reformation of the Commission because I think it took some steps towards becoming better balanced. The Commission originally was not representative of views, and efforts have been made to try and produce a greater balance. Even so, I think there would be very real perception they have not achieved that.

Mr Beggs

  435. In the memorandum and, indeed, in your introductory remarks, you state that you concluded that the Portadown District would never receive a fair hearing from the Parades Commission. Why would this be—the personal bias of the Commissioners or the structural features of the Commission? Could you demonstrate this by reference to initiatives you yourself have taken to seek to resolve, say the Drumcree difficulties?
  (Mr Trimble) As I said in my introductory remarks, that is a conclusion I came to, particularly after the considerable effort in the spring and summer of 1999 to try to produce a mediation, that succeeded in producing direct discussions and direct engagement between the representatives of Portadown District and the residents, something which previous decisions said was essential, and the Commission said they wanted. We produced a direct engagement. We also demonstrated very clearly which party was making an effort to reach agreement and which party was acting in a purely constructive manner. Despite that, we then encountered the hostility of the Commission when we were trying to report to them what happened. These conclusions, obviously, are subjective, but the very strong impression I received from those efforts, from the Commission at the time, led me to conclude, as I did in 1999, that that Commission would not give Portadown in particular, a fair hearing. I think the reasons for that are, I have to say, not entirely justified. Some personal members of Commission may have approached the issue but that problem was exacerbated by the difficulties we had on the ground in the Drumcree area in the summer of 1998, and to a lesser extent in 1999, that heavily influenced the position. That is why after the experience of the summer of 1999 I pressed the Government to review the works of the Commission in the hope that we could then have a fresh start.

  436. What difference has the coming into effect of the human rights legislation had on the Parades Commission? Will this legislation assist in reviewing what you perceive to be anti-Loyal Orders bias of the Commission, and does this not provide the unpinning you wish to see of the right to assemble and parade peacefully?
  (Mr Trimble) I hope that that would make a positive change. The matters I am a little concerned about are some comments in the media about what I think is a rather unusual interpretation of the European Convention in this respect. The case law of the European Court of Human Rights is one that I would have thought would be positive. It is focusing on the rights of people rather than public order. I see a clear distinction between an approach obtaining public order and an approach that has rights at the end of that approach. I think a rights-based approach would produce a fair result. I cannot say I have seen any evidence of that so far. I am a little concerned about the interpretation of comparatives based on the power of the European Convention in this respect. I certainly wish to encourage people generally to explore further what happens in terms of what would be consistent with the European Convention. I regret the fact that we have not yet had any case law here in Northern Ireland in which the rights aspect, the impact of the European Convention on the operation of the current legislation, could have been explored.

Mr Thompson

  437. Good afternoon, First Minister and Mr Campbell. If the Parades Commission were to remain what changes would you suggest in the legal framework?
  (Mr Trimble) Mr Thompson, as I mentioned earlier, if one retains a Commission with the power to make determinations to a parade then I would like to see the functions of the Commission put explicitly in the rights based approach rather than the public order approach. I would like to see a general power on the part of the Secretary of State to review decisions. Those two things would be essential. I would have to say if I was in a position to rewrite the legislation completely then the Commission would be directed towards a role of mediation and understanding.

  438. You expressed regret that the review of the Parades Commission, "Did not make such change to the Commission's operation as to lead to it becoming acceptable to the entire community." What changes do you believe should be made to make the Commission acceptable to the entire community, unionist and nationalist?
  (Mr Trimble) At the time I pressed for a review, I wanted a broadly based review that enabled one to look at the act rather than focusing on the Commission. At one stage, having thought I had obtained agreement, when the terms of reference emerged after consultation with the Northern Ireland Office, the terms of the review become narrow. Basically we thought it was a fairly limited, small-scale review, the chief result of which was the appointment of a new Commission. While one does not want to end up with some sort of crude head count, one would like to see if there is such a Commission which is broad enough to draw some degree of acknowledgment from all sections of the community. That then interacts with the difficulty that such a body is going to have in terms of the willingness of the community to participate with it. One would like to see a Commission that has some experience of the view of a greater number of people in Northern Ireland, particularly those who identify with the Loyal Orders. There is a chicken and egg problem here. The history of this issue over the last few years, which is adopted by the law and order, is not conducive to obtaining the broader base one would like to see. I think in terms of getting a broadly based body, while I would be critical of the appointments made to the Commission in some respects, in seeing the matters resolved, there is something the Loyal Orders can do themselves in terms of encouraging people to apply for the Commission. You are making clear that the people who are appointed are not under a degree of social pressure.

  439. If you look at the determinations of the Commission, the decision to impose restrictions, many times, is because the organisations have not communicated with the other side, for example, residents' groups, and if they have communicated they have not arrived at an agreement. Do you think that it is proper for the Commission to put restrictions upon the parades merely because they have not consulted with the other side? It is not entering into a political field by the Commission, it is trying to impose a certain political idea that they have.
  (Mr Trimble) In a very broad sense virtually all of the work of the Commission is political, it may not be party political but certainly in the broad sense in terms of the issues they are dealing with it is political. One would deprecate imposing conditions simply, as it were, to teach somebody a lesson because they had not communicated. There is a problem because of the failure of the Orange Order to interact with the Commission. That has caused a problem and I can understand that people can see in some respects restrictions imposed, as it were, to compel people to interact with them. Be that as it may, I think it would be in the interests of the Loyal Orders to engage with the Commission and to engage with the community in which they reside, even if they have difficulty dealing with specific individuals. I think more can be done in a proactive way to spread understanding and to spread the Commission.

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