Brian Currin’s Opinion – engagement Parades Commission and Nationalist Residents’ groups

REPRESENTATION TO THE SPECIAL GENERAL MEETING OF 

THE GRAND ORANGE LODGE OF IRELAND

Re: engagement Parades Commission and Nationalist Residents’ groups

INTRODUCTION

The honourable Grand Master of the Grand Lodge of Ireland, Mr. Robert Saulters, County Grand Masters, County Officers, District Masters, District Officers and members, I wish to thank you for your willingness to receive from me this written representation. It follows a discussion I had earlier this year with Officers of the Grand Lodge including Mr. Saulters.

As some of you may be aware, I have been tasked by the Portadown District and the other parties to the conflict to try and find a mediated solution to the Drumcree dispute. Some of the policy issues which you will be debating and deciding upon this weekend go to the very essence of the mediation process. Your final decisions will have a bearing upon the nature and extent of participation in that process by LOL No l. Expressed in another way, your final decisions will have a huge impact on whether or not Drumcree is settled this year and for the future.

SIGNIFICANCE OF THIS MEETING

Therefore, your meeting this weekend is of monumental significance. The implications of the decisions you make regarding engagement with the Parades Commission and Residents’ Groups will be far reaching. I believe that history will judge your decisions this weekend as being of the most important decisions ever taken by the Orange Order.

Why do I say that? It is because, in my view, the future of Orange Order parades in NI is in the balance. 1 would therefore, urge you to be rational and logical in your deliberations. I make this plea not because I hold any special brief for Orangeism and its parades. I also hold no brief against Orangeism and its parades. I come from another country on another continent where we have different issues about which to have sleepless nights. I make this plea because I know that all of you are committed to the preservation of your traditions and culture. I would, therefore, hope that the decisions you take enable you to participate comprehensively and fairly in processes and debates which will undoubtedly impact on the future of Orange traditions and culture in Ulster.

FACTS WHICH MIGHT INFORM YOUR DECISIONS

In order to assist you in making these very important decisions I see it as my duty to lay before you relevant facts which might inform the decisions you take.

I am well aware of your current policy regarding engagement with both the Parades Commission and Nationalist Residents’ Groups.  I have spent sufficient time in meetings with the LOL No 1 Portadown Officers and Grand Lodge representatives to fully comprehend your reasons for this policy. It is not my intention to debate with you the moral issues which inform Grand Lodge policy. The intention of this paper is to table before you objective facts so that when you decide on future policy you do so from an informed position, having due regard to the inevitable practical consequences of your decisions

What are the facts?

The Parades Commission has, since its inception, issued a number of important determinations in respect of proposed public processions which are perceived by the Unionist/loyalist community to be anti unionist/loyalist and anti Loyal Order. A consequence of some of these determinations has been prohibitions- against parading along certain traditional routes. Understandably these determinations have gravely hurt the unionist/loyalist community. There a widespread belief that the Parades Commission was set up to pander to and satisfy nationalist aspirations. It is often referred to as unelected and illegitimate guano. The Parades Commission is accused of being partisan to such an extent that it is seen to reward violence and threats of violence by nationalist and republicans.

A belief I would want to interrogate in this paper is whether the Parades Commission really does have an anti unionist / loyalist, and Loyal Order and pro nationalist / republican agenda.   To do that I have very carefully studied:

●The Public Processions Act NI 1998 which provides for the establishment and functions of the Parades Commission;

●The Guidelines produced by the Parades Commission as to the exercise of its powers to impose conditions on public processions;

●Many of the contentious determinations issued by the Parades Commission since its inception in 1998; and

●All of the relevant cases decided by the European Commission and European Court of Human Rights dealing with the Right to Freedom of Expression and the Right to Peaceful Assembly during the past 20 years.

The Public Processions Act NI 1998, as its name suggests, does not apply in Great Britain. It is the law relating to public processions in Northern Ireland. As we all know, it was made following the North Review of 1997 which was established as a result of the widespread conflict in the summer of 1996 requiring major intervention by the police under the Public Order legislation. The broad purpose of the Act is better management of parades in Northern Ireland. It established the Parades Commission in 1998, one of its functions being to issue determinations in respect of proposed public processions. It has many other important functions, including promoting understanding by the general public of the issues concerning parades in the province and a dispute resolution function. As you all know it requires organisers of parades to give advance notice of parades. It gives the Commission power to impose conditions on parades and it instructs the Commission to have regard to certain factors before making a determination.

 

These factors are: public disorder or damage to property which may result from the procession; potential disruption to the life of the community along the envisaged route; impact on community  relationships; past compliance by participants with the Commission’s Code of Conduct; and finally, the desirability of allowing a parade along a traditional route. It also imposes a duty on the Commission to issue a set of Guidelines -as to the exercise of the above functions.

As far as I have been able to establish, no other country in Europe has an extensive and detailed law of this nature dedicated solely to the issue of public processions.

The Commission Guidelines, and I quote from the guideline: “are based on the fundamental premise that the right to peaceful assembly and freedom of expression as outlined in the European Convention of Human Rights are important rights to be enjoyed by all”. The Guidelines continue then to qualify the above by stating that the right of peaceful assembly, while important, is not absolute. According to the Guidelines, the right is subject to limitations which are to be found both in the international documents (on human rights) and in the general law to protect the rights and freedoms of others or for the prevention of disorder or crime. As will become apparent later in this document, the above statement is an accurate reflection of international and European human rights law.

The Guidelines also instruct the Commission to apply itself to the issue of proportionality. In other words, how important is the parade and compare that with the amount of disruption that it is going to cause. There is also reference to location and route: Is it mainly residential or commercial? What is the demographic balance? What is the significance of Monuments or Churches in the vicinity? Finally, what is the availability of alternative routes which are not controversial? These questions regarding route are asked ‘m the context of the Guidelines recognising the premium attached by many to the concept of tradition.

The Guidelines require the Parades Commission to take account of communication between the parade organisers and the local community aimed at addressing the latter’s concerns. The body must also be aware of any long history of inter-community strife which has its roots in the broader political conflict.

The purpose of these Guidelines is to enable the Parades Commission to properly fulfil its very important function of managing controversial processions. To that end the Parades Commission is empowered to impose conditions on parades. It is appropriate to mention here that if one goes by the decisions of the European Commission and the European Court of Human Rights, the tendency in Europe is to ban controversial parades and not to manage them.

The Parades Commission has, since 1998, consistently taken into consideration: attempts by the organisers to reach accommodation with the local residents. The threat of public disorder- the demographic balance along the route and the potential restrictions on the rights -and freedoms of local residents’. Past behaviour of participants: and, the broader political conflict in Northern Ireland. Following its own Guidelines and principles of International Human Rights law the Commission does not regard the Right to Peaceful Assembly as an absolute right and has not hesitated in restricting that right whenever it believes it is justified in doing so. These decisions, which have impacted on the nature and extent of parades: numbers, bands, music, flags, banners and most importantly, traditional routes, have met the wrath of the Loyal Orders.

The question is whether the anger and passion expressed by you and others within the Loyal Orders, is justifiable.  I have no doubt that it is understandable.

THE INTEGRITY OF THE PARADES COMMISSION

The fairest and most effective way of judging the integrity of the Parades Commission would be to test its Guidelines and Determinations against the application of European Human Rights law. It is for that reason that 1 decided to research European jurisprudence on the relevant points and to that end have identified and analysed all the relevant cases over the past 20 years. For your convenience I have made summaries of these cases – 17 in all – and handed them to the Grand Master so that as an organisation you can, if you so wish, brief your own legal team for another assessment.

I found these cases extremely instructive and have come to the following conclusions:

1. The Public Processions Act NI 1998 is probably the clearest and most detailed law in Europe providing domestic guidelines on the application of Article 11 of the European Convention on Human Rights, namely the Right to Peaceful Assembly and Freedom of Association.

2. The Guidelines developed by the Parades Commission., although intended to address the unique problems associated with the right to peaceful assembly and processions in Northern Ireland, are fairly and firmly based on international human rights norms and standards.

3. Because of the unique problems associated with parades in Northern Ireland. There are, however, significant differences in application between Northern Ireland on the one hand and Great Britain and Europe on the other. Contrary to what you may have expected, the approach adopted in Northern Ireland to public processions is significantly more generous than the norm in Europe.

4. Procession organisers in England are treated more strictly in the application of English law than their counterparts in Northern Ireland.

5. The special reference to traditional routes and the premium attached to them in the Parades Commission Guidelines is not a factor which enjoys any special consideration by the European- Commission or the European Court of Human Rights

APPROACH BY EUROPEAN COMMISSION AND EUROPEAN COURT

To help- you understand the basis for these conclusions, I set out in this, document the standard approach adopted by the European Commission and Court when deciding whether or not the provisions of Article 11 of the European Convention on Human Rights has been violated by the State arty. There is certainly nothing creative or robust in their approach.

They begin by quoting the relevant Article from the Convention.

Article 11[1]

Everyone has the right to freedom of peaceful assembly and freedom of association with others … … .. … …

Article 11[2]

No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests Of national security or public safety for the protection of disorder or crime, for the protection of health or morals or for the protection of rights and freedoms of others … … …

There is always then the assertion that the right to peaceful assembly is a fundamental one in a democratic society. This statement is immediately qualified with reference to the restrictions in article 11 [2]. The Commission or Court thereafter proceeds to assess whether or not the ban or restriction imposed on the peaceful assembly or procession by the member State is a violation of the right in question. If the answer is yes then Article 11 [2] is applied. If the ban or restriction was not prescribed by law, then it would be unlawful. If it was prescribed by law then there is an investigation into the reasons for the restriction. The question is whether the measures taken by Government were in pursuit of legitimate aims in relation to Article 11 [2]: public safety, the prevention of disorder or for the protection of rights and freedoms of others.

The next question is whether, given the reasons for the restriction – e.g. the prevention of disorder – the measures were necessary. It is not the job of either the European Commission or Court to substitute its judgement on this issue for that of the Government involved. It merely assesses whether the latter exercised its discretion in good faith and in terms of Article 11 [21. In determining the issue of necessity, the principle of proportionality is applied. In other words were the measures taken by Government to restrict or ban the procession excessive in the circumstances, taking into account the importance of the event and the reasons for restricting it?

What struck me in particular when reading these decisions is the ease with which both the European Commission and the Court uphold total bans on peaceful processions where in my view member States have not made out particularly strong cases of public disorder or the need to protect the rights of others.  It is instructive that in every single one of the 17 cases studied, Government’s- -decision to restrict or totally ban peaceful processions was upheld by either the European Commission or Court.

CONCLUSION

My own conclusion is that in Europe the right to peaceful assembly is a fairly soft right. The interests of public safety, the prevention of disorder and the protection of the rights of others take relatively easy preference. Now that the European Convention on Human Rights is applicable in the United Kingdom, determinations issued by the Parades Commission and decisions by Courts in Northern Ireland will have to comply with the relevant European law. That means the right to peaceful assembly in Northern Ireland will similarly be subject to the interests of public safety, the prevention of disorder and the protection of the rights of others – which in any event is how the Parades Commission has approached its mandate since 1998.

However, it is my view that the Public Processions Act NI 1998 and the Guidelines of the Parades Commission, although in compliance with the principles of relevant European law, are nevertheless both creative and progressive. Broadly speaking they are aimed, not only at managing contentious parades, but also, in the process of doing that, at promoting cross community tolerance and mutual respect for traditions and cultures. There is an obvious reason for this later objective and that reason is to be found in the provisions of Article 11 [21 of the European Convention dealing with restrictions. The stark reality is that the right to peaceful assembly, which covers public processions, is not enforceable in an environment where processions will inevitably result in serious public disorder. The only way of neutralising the basis for such restrictions is through trust building for tolerance and mutual respect.

In my respectful view, the Public Processions NI Act of 1998 and the body it created, the Parades Commission provide a key to the preservation of cultural diversity in Northern Ireland. If that key is thrown away, the consequences for Orangeism, its culture and traditions will be dire.

Ironically from your perspective, given the approach to freedom of assembly in Europe, the Parades Commission could be the saviour rather than the destroyer of the parading tradition in NI. However, for that to happen the approach to parades in NI will have to be a collaborative one, involving both traditions, the Parades Commission and Government.

Brian Currin

February 1, 2001

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