APPENDIX 14 (continued)
Memorandum submitted by Mr William Thompson,
61. Reference has been made above to the
small percentage of parades which attract Parades Commission determinations.
However, the number grew, from 119 in 1998-99, to 297 in 1999-2000;
the Drumcree-related figures being respectively 38 and 52. In
2000-01, there were 145 determinations, from 22 April 2000 up
to, and including, 28 January 2001 (the final figure is likely
to be less than in 1999-2000.) A total of 133 of these have been
loyalist parades (of which a minimum of 44 concerned Drumcree);
the remaining 14 were nationalist parades.
62. The Parades Commission's determinations
followed a format up until the entry into force of the HRA 1998
in October 2000. Indeed, they were described as "quasi-judicial".
The power in section 8(1) of the PPNIA 1998 was quoted, as was
the form 11/1 notification. There was then a standard sentence:
"We have considered the need to issue a determination . .
. against the factors described in our Guidelines document."
There then followed the decision. While the facts were stated
in summary, it was clear that the Commission, having reached a
decision, sought to justify it in terms of as many factors in
the Guidelines as possible: public disorder or damage to property;
disruption to the life of the community; and impact on relationships
within the community. Complianceor rather non-compliancewith
the Code of Conduct was noted. As was the fact of it being a traditional
parade or not (this usually being placed at the beginning of the
From a reading of the determinations, it is difficult to avoid
the conclusion that the five factors were used as a checklist.
Whatever thought may have been given as to whether there would
be a determination or not, it is clear that, where conditions
were to be imposed, the decision was reasoned mechanically.
63. Nowhere in the current year's determinations
(including 12 July 2000), and all under Tony Holland, was there
any reference to freedom of peaceful assembly, or to limitations
THE HRA 1998
64. The tenor of Parades Commission's determinations
altered for the application of the Portadown Orangemen to parade
on Sunday, 22 October 2000. Form 11/1 had been submitted on 14
October 2000, the first relevant one after the date the HRA 1998
came into force.
65. Suddenly, the Parades Commission's decision
referred to freedom of peaceful assembly. However, the exercise
of powers under section 8 of the PPNIA 1998 was justified. This
was on the basis of article 11(2) of the ECHR, the permitted limitations.
Three things are noticeable about this, and each subsequent, determination.
One, there is a gesture towards freedom of peaceful assembly,
rather than the legal architecture of a Convention right. Two,
the legal status quo of the PPNIA 1998, and dependent documents,
remains. And three, this is articulated as the legitimate limitations
permitted by article 11(2). Nowhere is there a reference to the
right being construed broadly, and the limitation narrowly. It
is the rhetoric of rights, not the reality. The PPNIA 1998 is
assumed to be compatible with the HRA 1998; in following the former,
the Parades Commission is not acting contrary to human rights.
66. In the next determinationDunloy,
Sunday 29 October 2000, where the form had been submitted on 2
October 2000the Parades Commission reverted to the simple
idea of a conflict of rights: the marchers and article 11 versus
the residents and article 8 (privacy).
Again, there is no factual analysis deploying these two rights
(and limitations), taking all the circumstancesin their
interdependenceinto account, which is the correct judicial
67. The determination in respect of the
14 nationalist parades illustrate the nature of the anti-loyal
orders protests which began after the 1994 ceasefire. The details
as to date, organisation and purpose in 2000-01 so far are given
|(1) 22 April 2000||Spirit of Freedom Flute Band, Whitewell
||New nationalist band parade in area where increasing sectarian tension. Parades Commission imposed routeing restriction.
|(2) 23 April 2000||Lower Ormeau Concerned Community
||To unveil a new mural. To commence at 1930, and disperse at 0430. Parades Commission found it was a counter demonstration, and imposed condition of dispersing at 2100.
|(3) 24 April 2000||Lower Ormeau Concerned Community
||"To reroute a sectarian march". To commence at 0445, and disperse at 1930. Parades Commission found it was intended to disrupt a loyalist parade, and imposed condition of 0600 to 0700.
|(4) 24 April 2000||South Derry Martyrs Band
||Traditional Easter commemoration in Maghera. Organiser applied to extend route. Parades Commission opposed as threat to public order.
|(5) 30 April 2000||Lower Ormeau Concerned Community
||"To reroute a sectarian march". To commence at 1230, and disperse at 1830. Parades Commission found it was intended to disrupt a loyalist parade, and imposed condition of 1100 to 1230.
|(6) 25 June 2000||Lower Ormeau Concerned Community
||"To reroute a sectarian march". To commence at 1330, and disperse at 1800. Parades Commission found it was intended to disrupt a loyalist parade, and imposed condition of 1100 to 1230.
|(7) 30 June 2000||Down Peace Forum
||"March against sectarian parades". To commence at 1830, and disperse at 2130. Parades Commission found it was intended to disrupt a band parade, and imposed condition of 1800 to 1900.
|(8) 12 July 2000||Springfield Road Residents Action Group
||To oppose several loyalist parades on Springfield Road. There had been dignified protests in 1999. Parades and protests had degenerated on 24 June 2000, heightening tensions. Routeing restrictions imposed.
|(9) 12 July 2000||Lower Ormeau Concerned Community
||"To reroute a sectarian march". To commence at 0001, and disperse at 2030. Parades Commission found it was intended to disrupt a loyalist parade, and imposed condition of 0600 to 0700.
|(10) 9 August 2000||Sinn Féin (Greencastle)
||The notification did not comply with requirements, but was accepted. A new nationalist band parade in an area of continuing sectarian tension. Route restrictions were imposed by the Parades Commission.
|(11) 11 August 2000||Lurgan Martyrs' Republican Flute Band
||An annual commemoration of some years vintage. Conditions as to the route, and playing of no music for a part, were imposed by the Parades Commission.
|(12) 11 August 2000||Lower Ormeau Concerned Community
||A parade of 2,000 notified to begin at 1915 and end at 2359, for the "unveiling of a new mural". Parades Commission noted this parade, and the one below, were designed to coincide with a loyalist parade. Condition imposed of 1915 to 2000 only.
|(13) 12 August 2000||Lower Ormeau Concerned Community
||A parade of 2,000 notified to begin at 0000 and end at 1830, to "reroute a sectarian march". The Parades Commission regretted this counter-notification. Condition imposed of 0600 to 0700 only.
|(14) 11 November 2000||Lower Ormeau Concerned Community
||The notification did not comply with requirements, but was accepted. A "protest parade" of 2,000, linked to an intended loyalist parade. Parades Commission held that, as the latter had been banned, the parade's purpose of "rerout(ing) a sectarian march" was no longer relevant. On the basis of "advice and information" from the police about public order, a condition of 0600 to 0700 was imposed.
Other determinations reveal attempts by nationalist political
representatives to have the Parades Commission impose conditions
on loyalist parades.
68. The Procedural Rules of the Parades Commission allow
it to review a determination in the light of fresh information
or representations. This has been used a number of times, but
only minor changes have been made in a determination.
69. A major review took place as regards the Belfast
Walker Club's intended parade in Belfast on 11 November 2000 (Armistice
Day). This organisation is part of the Apprentice Boys of Derry.
And the route was the Lower Ormeau. The Belfast Walker Club is
the only loyal order to engage in dialogue with the residents.
The Parades Commission did not modify its decision.
70. However, it came under challenge from a Belfast law
firm, Cleaver Fulton Rankin, acting as legal representatives of
the Belfast Walker Club. In order to appreciate their argument,
it is necessary to set the context in full.
71. Reference has been made above to the Lower Ormeau
Concerned Community ("LOCC"), the subject of repeated
Parades Commission determinations for: 23 April 2000; 24 April
2000; 30 April 2000; 25 June 2000; 12 July 2000; 11 August 2000;
and 12 August 2000. The LOCC believes that people in a catholic
area have the right to exclude the loyal orders. An unsupervised
referendum conducted by the parish priest on 3 August 2000 produced
a result of over 95 per cent of those voting endorsing this position.
72. The Belfast Walker Club parade of 24 April 2000 had
been banned from the Lower Ormeau by the Parades Commission. The
reason given was: since August 1999, the minutes of the seven
meetings between the marchers and residents showed insufficient
engagement. The determination
read in part: "In the absence of local agreement, and following
consultation with the police, we are aware of the very real danger
of serious public disorder should the parade proceed as notified...
There would be a negative impact on relationships within the whole
73. The parade of 12 August 2000 was also banned by the
Parades Commission from the Lower Ormeau. The reason again was
the recrimination between the marchers and residents. The Commission
suggested a deal be negotiated covering the period to December
2002, and envisaged the possibility of a parade before the end
74. But the Parades Commission also linked Belfast and
Londonderry, suggesting that the former ban was necessary for
the major Apprentice Boys' parade in the latter city.
75. In its determination, the Parades Commission considered
the range of factors in Belfast: traditional paradeyes;
compliance with the Code of Conductyes; disruptionno
(except for the LOCC counter protests); public disorderyes,
but only because of the nationalist residents; community relationsno
major effect normally, but tensions were high.
76. Despite the promises of the Parades Commission, the 11
November 2000 parade was also banned. The reason given was: consultations
had not progressed beyond the most preliminary stages. Reference
was made to "information and advice provided by the police":
"We have heard from senior police officers, at some length,
that the amount of public disorder which would be likely to ensue,
particularly in the light of the illegality of protests on previous
occasions, would seriously impinge on the lives and liberty of
people who live in the area."
77. Cleaver Fulton Rankin requested details of the police
evidence. It may be that the loyal order doubted the degree of
violence likely in Lower Ormeau. But the request for sight of
the police evidence was so it could make submissions. The determination
stressed that it was police advice: "That was not in the
nature of evidence particularly of the kind that should be tested
in adversarial fashion but rather advice provided for the Commission
in the context of carrying out its strategy duty." It was
stated later that "nothing material has been withheld from
the parade organisers and their legal representative." But
the organisers did not know what the police said.
78. Parades Commission determinations were challenged
by marchers or others in the courts on a very small number of
occasions: twice in 1998-99; three times in 1999-2000; and once
in 2000-01. All were unsuccessful before the coming into force
of the HRA 1998 on 2 October 2000. The one case since thenDunloy,
29 October 2000may give rise to an important human rights
point. In addition (as noted), a Garvaghy Road resident, Evelyn
White, challenged appointments to the 2000 Parades Commission,
79. The details of the six cases on determinations are:
Dunloy, Apprentice Boys, 17 May 1998 (Coghlin J, 7 August 1998)
(no report available)
Court rejected applicants' legal grounds entirely, the Apprentice
Boys seemingly having been concerned that: the Parades Commission
did not distinguish the loyal orders; an obligation had been imposed
to engage with the local community; which had fettered their discretion.
Ormeau Road, Orange Order, 13 July 1998 (CANI)
Concerning Ballynafeigh Direct LOL No 10, on which conditions
had been imposed on its outward parade; applicant Patricia Pelan
(represented by Barry Macdonald, and later Michael Lavery QC),
resident Lower Ormeau Road, sought rerouteing; Gerard Rice supporting,
alleging Parades Commission had changed its mind; Campbell J dismissed
application on 10 July 1998, and Carswell LCJ dismissed appeal
on same day (full reasons being given on 28 September 1998); both
courts rejected applicant's contention that "community"
in section 8(6) PPNIA 1998 meant only the local community; Ronald
Wetherup QC for the respondents cited the North Report in evidence;
in a dictum suggesting human-right proofing, Carswell LCJ indicated
that the Parades Commission guidelines "provide[d] a basis
for establishing what is fair, just and reasonable in relation
to any contentious parade."
Garvaghy Road, Orange Order, 29 May 1999 (CANI)
Applicant Kevin Farrell of the Garvaghy Road (represented
by Barry Macdonald), opposing Parkmount junior Orange lodge on
which conditions had not been imposed, refused leave to apply
for judicial review on 27 May 1999 by Kerr J on ground he had
not shown greatest good faith; upon successful appeal, application
dismissed by full CANI (Nicolson LJ giving reasons on 29 June
1999); affidavit of Breandán MacCionnaith in support held
by CANI to be "misleading"; on Parades Commission reasons,
the CANI held that determinations should accord with the procedural
rules generally (this led to the end of preliminary views being
issued by the Parades Commission).
Lurgan, "Long march", 3 July 1999 (CANI)
Application by Joseph McConnell for judicial review of a
Parades Commission determination imposing conditions on the "long
march" route through Lurgan, dismissed by Kerr J on 2 July
1999; an application (by Michael Lavery QC) for leave to seek
a declaration, by way of appeal, was refused by Carswell LCJ in
the CANI on 24 November 1999; the applicant had argued that the
Parades Commission should have arranged mediation; the CANI held
there was no prima facie case of illegality, leave being refused.
Kilkeel, March 2000 (no report available)
Applicant opposed to permitted parades by two nationalist
bands; application seemingly dismissed on no ground of illegality;
Dunloy, LOL No 496, 29 October 2000
Parades Commission, in banning this Reformation Sunday parade
to a protestant church in a predominantly nationalist village,
referred to the importance of engagement, and suggested that the
so-called statutory criteria were compatible with the article
11 of the ECHR. Kerr J refused leave to apply for judicial review
on 25 October 2000, and, the following day, the Court of Appeal
rejected a renewed application (reasons being given later). The
short judgment of Carswell LCJ, without fully considering the
question of the applicant's legal rights, accepted that the Parades
Commission had taken account of article 11. No submissions were
made on incompatibility between the legislation and the right,
though Declan Morgan QC did argue that some of the Parades Commission's
considerations fell outside the permitted limitations on the enjoyment
of the right. The Court of Appeal held that the decision had been
made on public order grounds.
80. Not a great deal can be derived from these six judicial
review cases. The Northern Ireland courts, judging by the references
to Re Murphy's Application
 5 NIJB 88, 103-4 per Hutton LCJ, are still trying to explain
their supervisory jurisdiction. The six applicationsfour
by loyalists and two by nationalistswere ultimately unsuccessful.
Though four went to the CANI, only onethe Ormeau Road casewas
an appeal on a substantive point of law. The most significant
aspect is probably the dictum of Carswell LCJ in the Ormeau
Road case, that human rights were, essentially, the foundation
of the Parades Commission regime; however, this could be argued
against successfully in an appropriate case where there was an
apportunity to present the arguments.
81. Perhaps the most notable feature is the poor performance
of the leaders of the residents' groups. Gerald Rice, in the Ormeau
Road case, proferred evidence that was contradicted by the
Parades Commission. While Campbell J did not make a finding of
fact, Carswell LCJ accepted the Parades Commission's version.
As for Breandán Mac Cionnaith in the Garvaghy Road
case, his affidavit led Kerr J not to grant leave. While the CANI
heard the application, the full court found that paragraphs four,
five and six of his evidence were separately "misleading":
"Mr MacCionnaith claimed at the meeting [with the Parades
Commission] that there were videos of the disturbances that took
place on 30 May 1998 but declined to make them available to the
Commission, nothwithstanding that they were apparently in the
possession of the applicant."
NIO REVIEW, 1999-2000
82. On 8 October 1999, the then Secretary of State, Mo Mowlam,
initiated a review of the Parades Commission. The terms of reference
for the NIO officials were:
"within the existing framework of law and structures, and
taking account of views received from interested parties and the
experience of the marching seasons over the last two years, to
consider: possible ways of achieving even greater acceptance of
the approach to handling contentious parades; and, in particular,
the arrangements for mediation."
83. No account was taken of the HRA 1998, which, following
devolution, was to apply partly in Northern Ireland from 2 December
84. These terms of reference were welcomed by the then Parades
Commission, "noting that the existing framework of law and
structures, which provide[d] continuity, were not within the scope
of the Review. The
Parades Commission presented evidence, including: a guide to third-party
intervention, including mediation; clarification of the concept
of "engagement"; and ways of developing the capacity
of local communities to engage in mediation.
85. The conclusions of the review were published by the
new Secretary of State, Peter Mandelson, on 16 February 2000 (shortly
after suspension of the Executive). Local agreement was highlighted.
Mediation was emphasised. Public visibility was stressed. And
engagement was also mentioned. Two important legal recommendations
were made. One: "acceptance of the Commission's determinations
could be further improved if the reasoning behind them were set
out in more detail . . ."whatever the considerations
of public consumption, this may also have been to better protect
the Parades Commission from being judicially reviewed. Two: the
government would bring the HRA 1998 into force early, with regard
to the PPNIA 1998, to allow human rights points to be taken in
any legal challenges to determinations.
86. The Secretary of State said that "[he could]
see advantages for all sides in implementing the [Human Rights]
Act in respect of the Public Processions Act earlier". He
announced a consultation with, inter alia, the courts,
the RUC, the Parades Commission, and the NIHRC; the deadline appears
to have been 17 March 2000. Observers concludedeven though
there were republican objectionsthat
it was most likely that the HRA 1998 would come into force in
time for the 2000 marching season.
87. This was not to pass. And the Secretary of State
did not make any public announcement in the ensuing months about
a possible change of mind.
The advice of the courts is not known. The RUC would appear not
to have taken a strong view for or against.
As for the Parades Commission, it came out againstseemingly
because it had started to make determinations in the 2000 marching
88. The view of the NIHRC may be ascertained from the
minutes of its subsequent monthly meetings:
on 13 March 2000, the NIHRC considered papers by Tom Hadden and
Angela Hegarty on the issue; Brice Dickson (the chief commissioner)
had prepared "an outline response"; some points were
amended, and it was "agreed that there was no further discussion
required at this stage with the . . . NIO"; on 10 April 2000,
the NIHRC agreed to announce its investigation into "the
human rights issues that arise from parades, including the policing
of parades"; the minutes of the meeting on 15 May 2000 include:
"Brice Dickson wrote to Susan Scholefield at the Northern
Ireland Office regarding the proposed premature introduction of
the Human Rights Act with respect to parades. Susan telephoned
to say that no announcement has yet been made on this issue".
These minutes would have been approved at the June monthly meeting.
The phrase "proposed premature introduction" is intriguing.
It was not used in earlier minutes. And the word "premature"
contains a suggestion that the NIHRC, for whatever reason, may
have turned against the HRA 1998 coming into force during the
2000 marching season. No one noted that the NIHRC, otherwise concerned
to promote all sorts of human rights, had gone silent on freedom
of peaceful assembly, at the point at which the loyal orders might
have benefited from it.
89. There is also evidence that the NIO understood the
Orange Order did not want the HRA 1998 applied early.
90. The stand of the NIHRC was subsequently admitted
by Prof Brice Dickson, the Chief Commissioner. In the supplement
to a practitioners' book on human rights, he wrote: "The
[NIHRC] advised the Government against introducing the Human Rights
Act in [a] piecemeal fashion and the Government abandoned the
idea." But the
HRA was already partly in force, as regards the devolved institutions,
and this occasioned no criticism from the NIHRC.
In any case, it was not the advice of the NIHRC which was decisive.
91. The right of peaceful assembly may be derived from
four legal sources, which are progressively related:
the common law in Northern Ireland;
the Human Rights Act 1998 (from 2 October 2000);
the European Convention on Human Rights ("ECHR
or the Convention").
The Portadown Orangemen would appear to have adopted the tactic
of making applications to the Parades Commission for a procession
each week. All have been rejected. Weekly applications seems to
have become the strategy from August 2000. Back
Second Annual Report, 1 April 1999-31 March 2000, p 19;
frequently asked questions: www.paradescommission.org. Back
"The guidelines themselves do not represent a prescriptive
framework to be applied rigidly to every situation" (First
Annual Report, 1 April 1998-31 March 1999, p 8). Back
Tony Holland referred to these-incorrectly-on 3 July 2000 as
"statutory criteria". (http://www.paradescommission.org)
See also Parades Commission memorandum to Northern Ireland Affairs
Committee, Parades Commission, Minutes of Evidence, 3 May 2000,
p 3. Back
"Given the Commission's analysis of the problem as an issue
of relationships, the majority of decisions turned on the factor
of the impact that a parade might have on relationships within
the community." (First Annual Report, 1 April 1998-31
March 1999, pp 19-20)
The 20 or more Drumcree determinations
up to 12 July 2000 need to be distinguished. The format used was:
"Having considered the notification against the criteria
contained in the statutory documents, having taken account of
all of the evidence presented to us, and in the continuing absence
of any meaningful engagement which might lead to local accommodation,
we are still unable to see how a parade could proceed down the
Garvaghy Road at this time without the risk of serious public
disorder and without having an adverse impact on community relationships
both locally and more widely across Northern Ireland." Back
Article 1 of Protocol 1 was added in the determination on the
Lower Ormeau for 11 November 2000. Back
Engagement had been recommended by the Parades Commission in
a document of 3 April 1998. It allowed a parade on 14 August 1999:
"We note that the parade was conducted with dignity and that
it was the unlawful action of persons sitting on the road so as
to block the passage of the parade that caused the intervention
of the police". Back
This was also to be an important consideration in November 2000,
when the Bogside Residents Group spoke to the Parades Commission. Back
Parades Commission, First Annual Report, 1 April 1998-31 March
1999, p 41. Back
Parades Commission, Second Annual Report, 1 April 1999-31
March 2000, p 14. Back
Now Conor Murphy MLA. Back
Their identities were not disclosed. Back
Northern Ireland Act 1998 Schedule 14 paragraph 1. Back
Second Annual Report, 1 April 1999-31 March 2000, p 18. Back
"The Government would assist in clarifying these by bringing
forward the implementation of the Human Rights Act in respect
of decisions on contested parades. This would enable either side
to rely on any of their Convention rights when challenging in
court decisions by the Commission or Secretary of State under
the Public Processions Act. This aim would be to ensure implementation
in this area in time for this year's marching season." Back
Ruth Dudley Edwards, The Faithful Tribe: an intimate portrait
of the loyal institutions, London 2000, p 567. Back
The decision-or rather non decision-was confirmed on 25 July
2000: House of Commons, Hansard, Vol 354, Col 571W. Back
88 "Although this issue was discussed with the police, it
was determined that whatever decision was made, it would not have
any implications on their current position on the policing of
parades." (House of Commons, Hansard, 354, 571W, 25
July 2000) Back
Northern Ireland Affairs Committee, Parades Commission, Minutes
of Evidence, 3 May 2000, Tony Holland, Q32. Back
Available at: www.nihrc.org. Back
Confidential information. Back
Lord Lester & David Pannick, eds, Human Rights Law and
Practice, supplement to the first edition, London 2000, p
Ibid, p 88. Back