Submissions
FURTHER RESTRICTING THE RIGHT TO FREEDOM OF PEACEFUL ASSEMBLY
17/08/10
EXECUTIVE SUMMARYParades Organisers throughout Northern Ireland may have had high hopes that they would see the demise of the Parades Commission. Unfortunately, the Draft Bill and Draft Code of Conduct impose numerous new requirements on Parades Organisers and further restrict the right to freedom of peaceful assembly as applied to parades.
While the current Parades Commission is to be abolished, two new regulatory bodies will be established: a new Commission to adjudicate and an OFMDFM Administrative Unit.
New ‘rights’ will be introduced: ‘the right to be protected from sectarian harassment’ and the protection of ‘sensitive locations’. Once in operation these new rights are likely to generate further restrictions and difficulties for Parades Organisers.
There will be new ‘appointees’ at different stages of the process: mediators, monitors and evaluators. These new persons will make reports to the new Commission, which will also take into account reports from previous years when adjudicating.
The regulatory process will be made more complex through multiple stages and Parades Organisers will be constrained to fulfil many more requirements than is the case under the current legislation with the Parades Commission.
Parades Organisers will also be subject to new offences, and failure to comply with the demanding Code of Conduct could be used by objectors to justify their concerns and by the new Commission to impose additional requirements on future parades.
The desire to see the Parades Commission replaced should not become a pretext for consenting to the enforcement of new legislation that would inevitably result in further restricting the right to freedom of peaceful assembly in Northern Ireland.
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THE DRAFT PUBLIC ASSEMBLIES, PARADES AND PROTESTS BILL AND THE DRAFT CODE OF CONDUCT:
AN EXPLANATORY COMMENTARY
THE NEW REGULATORY REGIME AND ITS STRUCTURES
- and –
THE FURTHER REGULATORY REQUIREMENTS TO BE COMPLIED WITH BY THE PARADES ORGANISER UNDER THE PROPOSED NEW REGIME
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OUTLINE
INTRODUCTION
PART ONE: THE FIVE OFM/DFM PRINCIPLES ANALYSED IN THE LIGHT OF THE EUROPEAN CONVENTION KEY PRINCIPLES
1. ‘Local people providing local solutions’
2. ‘Respect for the rights of those who parade, and respect for the rights of those who live in the areas through which they seek to parade including the right for everyone to be free from sectarian harassment’
3. ‘Recognising that at times there are competing rights’
4. ‘Transparency, openness and fairness’
5. ‘Independent decision-making’
PART TWO: THE NEW REGULATORY STRUCTURE – AN OVERVIEW
1. New Rights - Extension to the regulatory regime
A. Protection from ‘sectarian harassment’
B. Protection of ‘sensitive locations’
2. New Adjudication Commission and other bodies
A. A new Parades Adjudication Commission
B. A new Parades Administration Unit
C. The Appointments Panel
3. New rights of information and intervention for residents and objectors
A. Public bodies and representatives
B. Residents, objectors and others
4. New periods instituted and new persons appointed with roles in the regulatory process
A. Dialogue and third parties
B. Mediation and mediators
C. Adjudication by the new Commission
D. Monitoring by appointed Monitors
E. A new required process: Evaluation with Mediator
a) Mandatory evaluation
b) ‘Voluntary’ evaluation
c) The process and outcome of evaluation (whether mandatory or ‘voluntary’)
PART THREE: THE FURTHER REGULATORY REQUIREMENTS TO BE COMPLIED WITH BY PARADES ORGANISERS UNDER THE DRAFT BILL
Stage 1 - Preparation by way of local dialogue
Stage 2 - Notification of the public parade
Stage 3 - Notice of concerns or objections
Stage 4 - Notice of a protest meeting
Stage 5 - Local dialogue
Stage 6 – Mediation
Stage 7 – Adjudication
Stage 8 - Review of a panel decision
Stage 9 - Judicial review
Stage 10 - The Parade takes place (subject to any restrictions agreed through mediation or imposed by the new Commission
Stage 11 – Evaluation
PART FOUR: NEW CRIMINAL OFFENCES TO WHICH THE PARADES ORGANISER WILL BE SUBJECT
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INTRODUCTION
This Report analyses the proposed legislation comprising the Draft Public Assemblies, Parades and Protests Bill and the Draft Code of Conduct. It sets out key legal details that derive from it, which – if enacted – will establish a new regulatory regime and regulatory structures and will impose further regulatory requirements on Parades Organisers.
The Report concentrates on matters that should be of concern to Parades Organisers since the Draft Bill and Draft Code of Conduct will apply to all categories of parades, not just to those that may be deemed ‘contentious’.
Part One of this Report comments on the principles on which the Draft Public Assemblies, Parades and Protests Bill and the Draft Code of Conduct are both based.
Part Two of this Report explains some of the features of the proposed new organisations, which in effect duplicate and further complicate the existing structures.
Part Three sets out the various steps that would have to be taken by a Parades Organiser under the proposals – involving new and onerous regulatory procedures.
Part Four sets out the new offences which could affect a Parades Organiser under this legislation.
PART ONE
THE FIVE OFM/DFM PRINCIPLES ANALYSED IN THE LIGHT OF THE EUROPEAN CONVENTION KEY PRINCIPLES
The Parades Organiser should note that the Draft Bill and the Draft Code of Conduct are based on five principles chosen by OFMDFM, which in their operation as binding regulatory requirements will restrict and limit the right to the freedom of peaceful assembly. They are as follows:
(1) ‘Local people providing local solutions’, which should take into account the right to engage or not to engage; in effect this concedes statutory entitlement to residents groups;
(2) ‘Respect for the rights of those who parade, and respect for the rights of those who live in areas through which they seek to parade including the right for everyone to be free from sectarian harassment’; this new ‘right to protection from sectarian harassment’ is an ill-defined new concept open to many interpretations but likely to be developed by the Courts to impose further restrictions;
(3) ‘Recognising that at times there are competing rights’; this elevates residents and objector’s rights to contest against a parade which is entirely peaceful;
(4) ‘Transparency, openness and fairness’; as will appear later in this Report the new procedures will operate unfairly against the Parades Organiser in many important respects; and
(5) ‘Independent decision-making’; insofar as this is through the new Commission it will in fact replicate the adjudication powers of the existing Parades Commission. Insofar as it is through the new OFMDFM Administrative Unit, it will be subject to political control by the First Minister and the deputy First Minister acting jointly.
1. ‘Local people providing local solutions’
The first OFM/DFM principle is that disputes should be dealt with through ‘local people providing local solutions’ because they maintain that this should become the normal way of doing things. However, the principles underlying the right to the freedom of peaceful parading in relation to engagement between Parades Organisers and objectors require that:
1) The fundamental right to freedom of peaceful assembly must be acknowledged by both the Parades Organiser and the objector;
2) Engagement is a process to address particular issues, which specifically relate only to restrictions that are necessary in a democratic society, as defined by the European Convention;
3) The Parades Organiser and the objector within the locality are free to engage or not to engage.
These three principles on engagement have not been taken into account in the Draft Bill or in the Draft Code of Conduct.
2. ‘Respect for the rights of those who parade, and respect for the rights of those who live in the areas through which they seek to parade including the right for everyone to be free from sectarian harassment’
The second principle on which the Draft Bill and Draft Code of Conduct are based introduces the vague, unreliable and dangerous concept of ‘the right to protection from sectarian harassment’. This is likely to infringe and restrict the essential right that everyone should enjoy: the right to freedom of peaceful assembly. This right should only be restricted where the restrictions are prescribed by law and are necessary in a democratic society. The aims pursued when imposing restrictions are limited as follows (1):
o the interests of national security or public safety;
o the prevention of disorder or crime;
o the protection of health or morals;
o the protection of the rights and freedoms of others.
Those who wish to exercise their right to freedom of peaceful assembly within this framework should be able to do so without unlawfully affecting the rights of those who wish and are free to protest against them peacefully. The right to freedom of peaceful assembly is meant to be exercised with respect for the rights of others in a democratic society. However, the vague concept of ‘sectarian harassment’ may be used by objectors as a means of undermining the right to freedom of peaceful assembly of others.
3. ‘Recognising that at times there are competing rights’
The third principle on which the Draft Bill and Draft Code of Conduct are based appears to require a mere acknowledgement of what the European Convention addresses when two or more rights are to be exercised in conjunction. The right to freedom of peaceful assembly is a qualified right and therefore it may be necessary to restrict it provided the restrictions are prescribed by law and are necessary and proportionate in a democratic society in the pursuance of a legitimate aim prescribed in Article 11.2 of the European Convention. However, the existence of several rights being exercised together at the same time must be made possible in a democratic society. This should not mean that any Convention rights are used in order to engage in any activity or perform any act aimed at the destruction of the right of others, in breach of Article 17 of the European Convention, in this case the right to freedom of peaceful assembly of others.
4. ‘Transparency, openness and fairness’
The fourth principle on which the Draft Bill and Draft Code of Conduct are based is ‘transparency, openness and fairness’. However, this is limited in operation and unfairly weighed against the Parades Organiser, particularly in the following respects:
· At the end of the mediation phase and if there is no resolution of the dispute, a report will be passed on by the mediator to the OFMDFM Unit, who in turn will send it to the new Commission (the Adjudication Body), without being communicated first to the Parades Organiser. During the adjudication phase, the new Commission will provide only verbal summaries of the case to the Parades Organiser to give him a right to object to the contents of the Report;
· Where monitors are appointed to report on a parade, they will submit their reports to the new Commission without first communicating them to the Parades Organiser so that he may exercise his right to object to the contents of the report;
· The Draft Bill also provides for evaluation meetings to take place within 60 days after a parade is held. The evaluator who chairs the meeting must then submit a Report to the new Commission without first communicating it to the Parades Organiser so that he may exercise his right to object to the contents of the Report;
· During the adjudication phase, the new Commission will provide verbal summaries of the case to the Parades Organiser but without full disclosure.
In all these respects the new processes breach essential principles of the right to fair procedure and natural justice: the right to know ‘the case you have to make and the case you have to meet’.
It is very disappointing that the proposals are less than fully committed to a procedure that allows the Parades Organiser access to all the information it received prior to a decision being made. The rights of the Parades Organiser in these essential matters are not protected as they should be in the new proposals. In effect they fail to make proposals for a fairer regulation process than the one currently operated by the Parades Commission.
The lack of fair procedures is one of the central defects of the operation of the current Parades Commission and it cannot be understood why the Draft Bill and the Draft Code of Conduct propose to recreate this grave error to the detriment of the Parades Organiser.
5. ‘Independent decision-making’
The fifth principle on which the Draft Bill and Draft Code of Conduct are based is ‘independent decision-making’ by the new Commission in charge of adjudication. But it must be noted that members of the new Commission will be appointed by an Appointments Panel, consisting of 4 members appointed by the First Minister and deputy First Minister. The appointment of members in the new Commission will be a compromise between the members of the Appointments Panel. There is a legitimate concern that the political division and opposition between the First Minister and the deputy First Minister will be replicated within the new Commission through the Appointments Panel.
There is no doubt that a proper adjudication body should be totally independent from political interference, but unfortunately the new proposals appear to encourage political intervention.
Furthermore, as is presently the case with the Parades Commission, the new Commission will be able to review its own decisions only if ‘significant’ new material facts emerge: whereas an appeal procedure before a separate body, providing a real opportunity to review decisions made by the new Commission, has been excluded.
It should also be borne in mind that it will not be possible to appoint members ‘favourable’ to the position of the Loyal Orders: any such appointments made are likely to be struck down through the process of judicial review.
In any case, whosoever is appointed, the new Commission is bound to follow the new law as laid down in the Draft Bill and the Draft Code of Conduct. So no member of the new Commission can ignore or disregard the various Reports from mediators, monitors and evaluators that will be presented to the Commission. It they purport to do so, such decision will be struck down by judicial review.
PART TWO
THE NEW REGULATORY STRUCTURE – AN OVERVIEW
The Draft Bill and Draft Code of Conduct propose:
1. new rights;
2. a new adjudication commission and other bodies;
3. new rights of information and intervention for residents and objectors, and new periods instituted; and
4. new persons appointed with roles in the regulatory process.
Before dealing with these points, some summary comments need to be made on the Draft Code of Conduct.
It should perhaps be noted that:
· the Code of Conduct does not have marked sections or paragraph numbering which makes all precise references to it quite difficult;
On the substance of the document there are a number of points which raise new issues and questions such as:
· the definition of ‘non-participants’ in the parade but whose presence in the vicinity of the parade may be interpreted as being for the purpose of the parade;
· the complexity of the organisation of a protest meeting about a protest meeting which is being held in relation to a parade;
· the nature and details of concerns and objections to be given by the objector;
· the possibility for the Parades Organiser to access the evidence received by the new Commission.
1. New Rights - Extension to the regulatory regime
As mentioned above the Bill is based on principles that would introduce new categories of ‘human rights’, namely protection from ‘sectarian harassment’ and protection of ‘sensitive locations’.
A. Protection from ‘sectarian harassment’
Parades and protests organisers must take measures to prevent sectarian harassment on the grounds of religious belief or political opinion or other forms of harassment of any person in the vicinity of a parade, whether or not that person is participating in the parade.
The Draft Code of Conduct introduced by the First Minister and the deputy First Minister (acting jointly) and the Draft Bill have been published for consultation. But it must be emphasised that the full parameters of the ‘right to protection from sectarian harassment’ have not been set out therein. There will accordingly be scope for the Courts to develop the concept in ways which may restrict for instance the display of flags or emblems during the parade, the playing of music and the conduct of the parade.
B. Protection of ‘sensitive locations’
Parades Organisers must respect ‘sensitive locations’ meaning locations near the proposed parade which are associated with past conflict or previous public disorder. It should be noted that the application of ‘sensitive locations’ could also be extended by the implementation of the Code of Conduct and/or the Courts in ways which might further restrict the right to freedom of peaceful assembly.
2. New Adjudication Commission and other bodies
If the Bill is enacted as legislation, it is understood this will involve the repeal of the current Public Processions (Northern Ireland) Act 1998 under which the current Parades Commission is constituted and operates (2). However, in place of the Parades Commission the following new organisations will be established:
A. A new Parades Adjudication Commission
In the Draft Bill this is called the ‘Public Assemblies, Parades and Protests Body – PAPPB’ (3). There is no schedule to the Bill for giving details of the status, powers and procedures of the new body. However, the Draft Code of Conduct reveals that the new body is to be a ‘non-departmental public body’ (4). So one can draw no conclusion other than that the new body will be constituted as a ‘Commission’ for the purpose of carrying out adjudications in respect of parades.
Accordingly, the new body should more properly be referred to as the ‘Parades Adjudication Commission’ (hereafter ‘the new Commission’) so that everyone is clear as to its status and functions before deciding whether or not to support the new proposals.
It should be noted that the proposed legislation will be completed by rules that are still to be produced and will affect the understanding we have of the organisation and functioning of the new Commission. The Bill provides that the Office of the First Minister and deputy First Minister may make rules about the proceedings of the new Commission (5) and outline the scope and purpose of the rules (6). The Bill also prescribes that the First Minister and deputy First Minister acting jointly may give guidance about the exercise of its function under the Act by the new Commission. The Code of Conduct confirms that the new Commission operates under rules established by OFMDFM (7).
B. A new Parades Administration Unit
Under the Draft Bill the First Minister and deputy First Minister acting jointly ‘must designate officials’ of OFMDFM to serve as the Administrative Body (8) and the Bill proposes that it may be called the ‘Office of Public Assemblies, Parades and Protests – OPAPP’ (9).
However, there is no provision in the Draft Bill to give the ‘designated officials’ any independence from political control exercised by the First Minister and deputy First Minister acting jointly. It appears that the designated officials would (as all officials within OFMDFM) be subject to overall control by the First Minister and deputy First Minister acting jointly. So it can only be understood that what is established is an Administrative Unit within OFMDFM for the purpose of carrying out the administrative functions currently carried out by the Parades Commission.
It should also be noted that this Administrative Unit must act in accordance with guidelines that are yet to be published by OFMDFM (10). In addition, the Office of First Minister and deputy First Minister may give guidance to the new Unit about the exercise of its functions (11). The Administrative Unit will be responsible for the administration of the new levels of control and regulation which the Draft Bill proposes to impose on Parades Organisers, such as:
o the information to be given on the form for notifying a parade (12);
o the publication on its website and communication to interested persons of the notice of parade (13);
o aiding discussion between the Parades Organiser and objector (14);
o arrangements for mediation between the Parades Organiser and the objector using a listed mediator (15);
o referral of a dispute to the new Commission (16);
o holding of a meeting in case of voluntary evaluation (17).
Accordingly, the new Unit should more properly be referred to as the ‘OFMDFM Parades Administration Unit’ (hereafter ‘the OFMDFM Unit’) so that everyone is clear as to its status and functions before deciding whether or not to support the new proposals.
C. The Appointments Panel
The First Minister and deputy First Minister acting jointly will appoint an Appointments Panel of 4 persons (18). It should be noted that a member of the panel may be dismissed if he has been convicted of a criminal offence since appointment (19). This suggests that a person who has been convicted of a criminal offence before appointment can still be a member of the Appointments Panel.
The Appointments Panel will then make the appointments of the 11 members of the new Commission (20). In making the appointments the Panel must, in particular, have regard to guidance given by the First Minister and deputy First Minister (21), since guidance may be given to them by OFMDFM (22). Considering that this guidance is at this stage not known we cannot have a complete understanding of how appointments will be made. It should be also noted here that the Appointments Panel may remove a member from the new Commission if satisfied that the person has been convicted of a criminal offence since appointment (23). The same conclusion can be drawn here as in the case of the Appointments Panel. Someone who has been convicted of an offence before appointment can still be appointed as a member of the Adjudication Commission.
3. New rights of information and intervention for residents and objectors
The Draft Bill proposes an extensive list of persons and organisations who will qualify as ‘interested persons’ who acquire rights of information and participation in the new regulatory processes (24). There are two categories, public bodies and representatives on the one hand and residents and objectors and others on the other hand as follows:
A. Public bodies and representatives
The following are listed:
o the new Commission;
o the PSNI;
o the fire and rescue and ambulance services;
o the local Member of Parliament;
o the local Members of the Northern Ireland Assembly;
o the local district council.
B. Residents, objectors and others
Anyone may notify the OFMDFM Unit that he or she (25) desires to receive copies of any parades notification form (26), any ‘notice of concerns or objections’ and any ‘notice of protest meeting’ (27). On the basis of the present legislation, persons living in Armagh who are on the list of the OFMDFM Unit may be entitled to receive copies of notices for parades taking place in Belfast for example. It should be noted that it is not clear whether this is limited to persons in Northern Ireland or applies to anyone on a worldwide basis.
The OFMDFM Unit must keep and publish a list of all such persons who apply to receive copies of these notices. But the list must exclude the name of any individual who notifies the Unit that his/her name is not to be published in the list (28). So the Parades Organiser will not be entitled to know the names of all individuals who are ‘interested persons’ to whom the parades notification form must be sent.
4. New periods instituted and new persons appointed with roles in the regulatory process
A. Dialogue and third parties
The whole legislation and particularly the Draft Code of Conduct emphasise the importance and the necessity to engage in dialogue in order to resolve issues. The Code of Conduct is based on the principle that disputes should ideally be resolved by the parties involved as quickly and efficiently as possible (29). Dialogue is strongly encouraged to take place as early as possible even before the formal process starts with the notification (30). The Code makes it clear on several occasions that maximum emphasis has been placed on local contact and local agreement in the early stages (31). Face-to-face engagement during the facilitation of dialogue period will be the norm and encouraged as such (32) to reach local agreement on any issue raised, even if it does not relate to human rights or the Code of Conduct. Indeed, the assessment of whether or not the issue raised relates to human rights or the Code of Conduct will only be done by the new Commission at the end of the dialogue period (33). This implies that the Parades Organiser may have to consider issues at the stage of dialogue that he should not be asked to deal with under the new legislation at the stage of mediation and adjudication.
It must be noted that the Parades Organiser who does not enter into face-to-face engagement must fully justify the exceptional circumstances that prevent him from engaging, to the satisfaction of the new Commission (34). This may prove to be a major hurdle for the Parades Organiser to overcome, since if he does not reach the standard of exceptionality required (which is not yet defined) to justify not engaging he will be in breach of the Code of Conduct. Undoubtedly Parades Organisers should give full consideration to that new requirement before making their decision as to giving support to this new legislation.
The OFMDFM Unit must take all reasonable steps that are requested by the Parades Organiser and the objector to aid them in discussing the issues in dispute (35). It must provide a venue and pay its cost 936). The meeting can take place and be chaired by a third party agreed between the Parades Organiser and those who have raised concerns (37).
The Parades Organiser should note that the new Commission may take into account his/her level of participation during the period allocated for dialogue. As is the case with the Parades Commission at present, the new Commission will not make a decision at the adjudication stage on the grounds of non-participation alone (38). Nevertheless, this will undoubtedly be a factor which will weigh against the Parades Organiser.
If the meeting leads to a resolution of any issue between the organiser and objector, the OFMDFM Unit will publish a report of the outcome and send it to the interested persons (39). If the organiser and the objector agree that the assembly is to be monitored, monitors must be appointed by the new Commission (40). If there is no agreement by way of dialogue the process will move on to the stage of mediation.
B. Mediation and mediators
The mediation period will start when the 7 days allocated for dialogue have elapsed without agreement between the Parades Organiser and the objector. It should be noted that arrangements for mediation will not be made by the OFMDFM Unit if the new Commission decides at the end of the dialogue period that the concerns or objections made do not raise any issue relating to human rights or compliance with the Code of Conduct (41). However, it should also be immediately added that the new Commission would only check whether or not the concerns or objections are based on valid human rights and Code of Conduct grounds and not on the merits of the arguments raised on these grounds (42).
The OFMDFM Unit will have a list of ‘trained and impartial’ mediators (43). Presumably the Unit will appoint people to be on the list, although this is not specified in the Draft Bill, nor are the qualifications to be a mediator or the process for appointment specified. These are major gaps in the Draft Bill.
The role of the mediators is to attempt through mediation to resolve disputes between Parades Organisers and objectors and help them to reach their own agreement (44). Any refusal to take part in mediation may be taken into account by the new Commission at the stage of adjudication (45). If issues are resolved by way of mediation, the mediator must report to the OFMDFM Unit. A report will be published and sent to interested persons by the Unit (46).
Where the mediation is not successful, the mediator must refer the matter to the new Commission and must also provide a factual Report to the new Commission (47) and send a copy to the Parades Organiser and the objector. But note that there is no requirement for the mediator to let the Parades Organiser know if it is intended to make adverse comment in regard to the Parades Organiser or to the processing organisation in the mediation report to the Commission, nor is there any obligation to consult with the Parades Organiser in any respect before issuing the mediation report. This means that the organiser will be on the back foot. His only remedy will be to seek to challenge the report before the new Commission if it is inaccurate or raises unwarranted issues (48). This is an abuse of fair process and natural justice.
This is a worrying aspect of the legislation and the lack of a fair procedure should be of serious concern to Parades Organisers, given the importance of such mediation reports. In particular the rules of procedure for the new Commission, which are to be drawn up by the First Minister and the deputy First Minister acting jointly (49), are to provide for the Commission, when adjudicating on a proposed parade, to take into account the mediator’s reports along with monitoring reports and evaluation reports (50).
C. Adjudication by the new Commission
Referral to the new Commission can be made by the mediator, the parties or the OFMDFM Unit (51). Referral can be made either when the time allocated for mediation has elapsed, or the parties, whether the Parades Organiser or the objector, decide to refer the dispute to the new Commission (52).
The new Commission will have the power to impose requirements on the parades, the associated protest, persons who are not participants in the parade or protest such as management and stewarding, behaviour, route, size of the assembly etc. (53). In making its decision the new Commission will take into account:
o the notice forms;
o reports submitted by the mediator;
o the monitor’s reports;
o the evaluator’s reports;
o evidence from any person with an interest in the parade;
o any information provided to it by the PSNI (54).
When making its decision, the new Commission will have regard to human rights as does the parades Commission at present but also to any relevant failure to comply with the Code of Conduct (55). For example, if the Parades Organiser refuses to engage with objectors at the stage of dialogue without justifying exceptional circumstances for not doing so, to the satisfaction of the new Commission, this would constitute a breach of the Code of Conduct leading to possible restrictions being imposed on the parade (56). Therefore, the new requirements imposed in the Draft Code of Conduct could result in further restricting the right to freedom of peaceful assembly.
What remains a matter of serious concern are the procedures that will be put in place for the working of the new Commission. Although it is mentioned that the parties can access each others’ case in advance and have an opportunity to respond, it is not clear whether all documents submitted to and received by the new Commission will be made available to the Parades Organiser. The procedure may well be the same as the one put in place by the Parades Commission in its Procedural Rules, which states that ‘all evidence provided to the Commission, both oral and written, will be treated as confidential’ (57). According to the Explanatory Guide to the Draft Bill, the Parades Organiser and the objector ‘will be told in advance of the panel’s hearing what each party’s case is’ (58). This closely resembles the Procedural Rule of the Parades Commission that states that the ‘Commission, however reserve the right to express unattributed general views heard in evidence’ (59), which means that the Parades Organiser may only be provided with the ‘gist’ of the evidence received by the Commission.
From the Draft Bill it could be understood that evidence will only be made accessible after a decision has been made by the new Commission in case of judicial review and could be withheld if the High Court determines that it is against the public interest (60). It would appear that the procedures of the new Commission would be quite similar to those already implemented by the Parades Commission (61).
The new Commission would have to publish its decision 7 working days before the parade (62). The Parades Organiser can only request a review on the grounds of a ‘significant change in facts’ (63). The Parades Organiser would have to meet the new threshold to appeal for a review. In practice it would be made more difficult to lodge an appeal for review before the new Commission than it is, under the current legislation, before the Parades Commission (64).
Reviews of the decision will be carried out by the full Commission and not an independent body (65). Again, it would appear that the review process will be quite similar to the one implemented by the Parades Commission.
It will then be possible to introduce judicial review proceedings before the High Court in Belfast against decisions made by the new Commission, just as it is possible to do so at the present moment against decisions made by the Parades Commission (66). However, as is well known, judicial review is a difficult and very expensive process. It does not operate as a full ‘merit’ appeal and the Court has declared that the Commission is to be regarded as the body with the ‘expert’ role in making decisions about parades. In effect the Court will intervene only to correct procedural error.
D. Monitoring by appointed Monitors
When any parade is referred to mediation and whatever the outcome of the mediation, the parade must be monitored and the new Commission must appoint monitors for this purpose (67).
When the new Commission has made any decision in respect of a parade and whatever the nature of the decision, the parade must then be monitored and the new Commission must appoint monitors for this purpose (68).
Presumably, the OFMDFM Unit will appoint people to be on a list of approved monitors, although this is not specified in the Draft Bill, nor are the qualifications to be a monitor or the process for appointment specified. These are further major gaps in the Draft Bill.
The monitor or monitors (69) must then make a report to the OFMDFM Unit within 7 days beginning with the day of the parade. The Unit must then publish the Report and send it to the new Commission ‘on request’ (70).
But note that there is no requirement for the monitor or monitors to let the Parades Organiser know if it is intended to make adverse comment in regard to the parade in the report nor is there any obligation to consult with the Parades Organiser in any respect before issuing the monitoring report.
This is a worrying gap in the legislation and the lack of a fair procedure should be of serious concern to Parades Organisers, given the importance of such monitoring reports. In particular:
· The rules of procedure for the new Commission, to be drawn up by the First Minister and the deputy First Minister acting jointly (71), are to provide for the Commission to take account of mediators’ reports, monitoring reports and evaluation reports (72);
· An evaluation meeting must consider any monitor’s report (73).
E. A new required process: Evaluation with Mediator
This is a new requirement to be introduced in two categories: mandatory evaluation and ‘voluntary’ evaluation as follows:
a) Mandatory evaluation
Where the new Commission has made a decision in respect of a parade, whatever the nature of the decision, the OFMDFM Unit must arrange an evaluation meeting after the parade to be held within 60 days from the day after the date of the parade. The meeting will be chaired by a listed mediator who was not previously involved in discussions at the stage of mediation (74).
The Unit must invite to the meeting:
o The Parades Organiser;
o Any objector who gave notice of concerns or objections;
o A representative of the PSNI.
b) ‘Voluntary’ evaluation
Even in any case where the issues have been resolved without a decision from the new Commission, a request for an evaluation meeting can be made by:
o The Parades Organiser;
o Any objector who gave notice of concerns or objections;
o The PSNI.
In the case of any such request to the OFMDFM Unit it must then arrange an evaluation meeting after the parade to be held within 60 days from the day after the date of the parade (75).
The Unit must invite to the meeting:
o The Parades Organiser;
o Any objector who gave notice of concerns or objections;
o A representative of the PSNI.
Note that this procedure is not in reality ‘voluntary,’ as an evaluation meeting must be held if any objector or the PSNI makes such a request to the OFMDFM Unit.
It is true that there is no obligation for the Parades Organiser to attend the mandatory evaluation or the ‘voluntary’ evaluation. However, it should be noted that the Code of Conduct states that Parades Organiser ‘should attend’ (76). Therefore it would be inadvisable for him to refuse to attend because an adverse report in respect of the parade could be made as the outcome of the evaluation (see next section) and he could be seen as breaching the Code of Conduct.
c) The process and outcome of evaluation (whether mandatory or ‘voluntary’)
The evaluation meeting must be chaired by a listed mediator who was not involved in discussions about the parade. Presumably, though it is not clear in the Draft Bill, this means a mediator who was not previously involved in any mediation for that particular parade.
Presumably also the OFMDFM Unit will appoint one of the listed mediators to be the chair for the evaluation meeting and there is no provision for the Parades Organiser or any of the other participants to object to any proposed appointment. This is yet another gap in the Draft Bill.
The evaluation meeting must consider (77):
o any monitor’s report;
o the views of those attending the meeting.
The mediator who chairs the meeting must then report as follows:
o to the new Commission in the case of a mandatory evaluation;
o to the OFMDFM Unit in the case of a ‘voluntary’ evaluation.
But note that there is no requirement for the mediator who chairs the evaluation meeting to let the Parades Organiser know if it is intended to make adverse comment in regard to the parade in the evaluation report nor is there any obligation to consult with the Parades Organiser in any respect before issuing the evaluation report.
This is another worrying gap in the legislation and the lack of a fair procedure should be of serious concern to Parades Organisers, given the importance of such evaluation reports. In particular:
· The rules of procedure for the new Commission, to be made by the First Minister and the deputy First Minister acting jointly (78) are to provide for the Commission to take account of mediators reports, monitoring reports and evaluation reports (79).
PART THREE
THE FURTHER REGULATORY REQUIREMENTS TO BE COMPLIED WITH BY THE PARADES ORGANISER UNDER THE DRAFT BILL
Stage 1 - Preparation by way of local dialogue:
o Local dialogue should start at the earliest possible time without waiting for the notification of the public parade.
The Parades Organiser:
1. Must consider all of the aspects of the parade in advance with a view to identifying and seeking to address all relevant issues which may lead to disputes;
2. Must identify sensitive locations and hold informal discussions with local residents, business people and those with a legitimate interest in the proposed parade prior to submitting formal notification to the OFMDFM Unit;
3. Must seek to address reasonable local concerns about the proposed parade prior to notifying the OFMDFM Unit;
4. Must state the measures he is taking to address relevant issues.
Stage 2 - Notification of the public parade:
o Notification must be submitted on a form to the OFMDFM Unit by the Parades Organiser at least 37 days prior to the date of the parade.
The Parades Organiser:
5. Must make every effort to minimise any adverse impact the parade might have on the locality;
6. Should take into consideration places identified in any notified concerns or objections as raising valid human rights issues;
7. Should take into account any place of cultural or religious significance;
8. Should take into consideration places connected to the past conflict;
9. Must consider any sensitive locations that exist in the immediate vicinity of the parade and identify this location on the form;
10. Must state what measures he is taking to address the relevant issues;
11. Must identify those categories of participants and third party participants (eg. Bands) expected to take part in the public parade;
12. Must promptly inform the OFMDFM Unit of the eventual cancellation of the public parade and confirm it in writing;
13. Should submit the notification form as early as possible in order to create as much opportunity as possible for issues to be resolved through face-to-face meetings;
14. Should refer to the late notification and emergency procedures if it is not possible to anticipate the parade in time to give the amount of notification necessary;
15. Must note that it is an offence to knowingly organise a parade for which notice has not been given;
16. Should take note of informal discussions on the notification form that will be considered by the new Commission if the parade proceeds to adjudication;
17. Should take into account any place where there has been a history of disorder relating to parades or protests.
Stage 3 - Notice of concerns or objections:
o An objector can submit a notice of concerns and objections form to the OFMDFM Unit within 7 days after the publication of the notification of the public parade form. Copy of the notice form will be sent to the Parades Organiser by the OFMDFM Unit.
The Parades Organiser:
18. Should read the form carefully with a view to finding a way to address the issues raised, as objectors will have outlined the reasons for their concerns or objections as fully as possible;
19. Should note that failure to comply with the Code of Conduct can be used to justify a notice of concerns or objections for future parades.
Stage 4 - Notice of a protest meeting:
o The objector who has submitted a notice of concerns and objections can submit on a form a notice of protest meeting to the OFMDFM Unit 22 days before the day of the protest.
Stage 5 - Local dialogue:
o Maximum emphasis is placed on local contact and agreement in the early stages. The principle is that disputes ideally should be resolved by the parties involved as quickly and efficiently as possible. Face-to-face engagement will be the norm and encouraged as such.
The Parades Organiser:
20. If required, must agree with the objector that a third party chairs the informal discussion between the Parades Organiser and objectors;
21. Must fully justify the exceptional circumstances that prevent him from entering into engagement to the satisfaction of the new Commission if he does not engage;
22. Should note that the new Commission may take into account a refusal to enter into engagement;
23. Must verify the local agreement once it is reached and before he notifies it to the OFMDFM Unit;
24. May choose with the agreement of the objector that a monitor be appointed by the new Commission for the public parade and must inform the OFMDFM’s Unit about it.
Stage 6 - Mediation:
o If during the period of 7 days after submission of the notification of concerns and objections form the issues have not been resolved, the process moves to mediation. Face-to-face engagement will be the norm and encouraged as such at this stage.
The Parades Organiser:
25. Should agree with the objector to choose a mediator from the list held by the OFMDFM Unit;
26. Must fully justify the exceptional circumstances that prevent him from entering into face-to-face engagement to the satisfaction of the new Commission if he refuses to engage;
27. Should note that refusal to take part in mediation may be considered by the new Commission;
28. Should note that a monitor will automatically be appointed by the new Commission to attend the parade if there is agreement on a resolution.
Stage 7 - Adjudication:
o If no agreement is reached 15 days before the parade is due to take place the mediator will refer the dispute to the new Commission along with a factual report on the mediation to date. Copies of the reports will be sent to the organiser and objector.
The Parades Organiser:
29. Should continue mediation while the dispute is considered by the new Commission. If mediation produces a decision then the new Commission stops considering the issue;
30. Has the right to know the case of the objector and is given an opportunity to respond;
31. Should comply with the requirements imposed by the new Commission;
32. Should note that a monitor will automatically be appointed by the new Commission where there has been a concern or objection lodged.
Stage 8 - Review of a panel decision:
o The Parades Organiser can appeal a decision taken by a Commission panel on the grounds of a significant change in facts. Any review will be heard by the full Commission.
Stage 9 - Judicial review:
o Clause 22(4) of the Draft Bill provides that a decision of the new Commission ‘may be questioned by way of judicial review’. But it should be kept in mind that it is unlikely that the Courts will be willing to consider the merits of any decision of the Commission: judicial review is generally confined to procedural matters or points of law and even if a judicial review application is successful before the Courts, it is unlikely that a court would substitute its own decision for that of the Commission. Rather it will send the matter back to the Commission to reconsider its decision in line with the directions of the Court on the points of procedure or law on which the Court has ruled.
Note also that most applications for judicial review against the current Parades Commission have been unsuccessful because the Courts have ruled that disputes over parades are matters for determination by the ‘expert body’ appointed by Parliament for the purpose and that the Courts should not intervene save for said errors of procedure or on points of law.
This provision for judicial review does not therefore provide a full appeal against decisions of the new Commission.
Stage 10 - The Parade takes place (subject to any restrictions agreed through mediation or imposed by the new Commission):
The Parades Organiser:
33. Must encourage participants to show respect and tolerance and behave with due regard for the rights and traditions of others (music, words, behaviour, clothing and uniforms, flags);
34. Must note that anyone who breaches the requirements set by the new Commission is guilty of an offence and liable to prosecution;
35. Should take measures to prevent any harassment including that on the grounds of religious belief or political opinion of any person in the vicinity of a parade, whether or not the person is participating in the parade;
36. Should ensure that he keeps a list of all those participating in the parade, including names and contact details for the persons responsible for each organisation;
37. Should make this list available to the PSNI on request;
38. Must ensure that the parade takes place in accordance with the details submitted to the OFMDFM Unit;
39. Should ensure that changes agreed to through dialogue or mediation are complied with.
40. Should note that failure to comply with agreed changes is a breach of the Code of Conduct;
41. Should note that any failure to comply with requirements imposed by the new Commission may render the organiser liable to prosecution for an offence under the legislation;
42. Should ensure that there are appropriate numbers of stewards for the parade;
43. Must give guidance and instruction to stewards on their role prior to the parade;
44. Should make every effort to ensure that all participants are informed of the terms of the Code of Conduct;
45. Should make clear to the participants that any failure to comply with the terms of the Code of Conduct could lead to them being excluded from future parades;
46. Should comply with any direction given by the PSNI where a public safety issue arises;
47. Should encourage participants to comply with directions regarding public safety;
48. Should ensure that no-one under the influence of alcohol or illegal drugs is allowed to participate in the parade;
49. Should take all reasonable steps to facilitate the monitor’s access to the parade when he has been appointed;
50. The Parades Organiser should note that it is an offence to:
- Knowingly organise a parade for which notice has not been given;
- Knowingly organise a parade that differs from the terms notified to the OFMDFM Unit;
- Fail to comply with the requirements imposed by the new Commission;
- Prevent or disrupt a lawful public assembly;
- Harass persons taking part in a public assembly.
51. The Parades Organiser should also note that failure to comply with the Code of Conduct can be used to justify a notice of concerns or objections for future parades and may be taken into account by the new Commission in future adjudications.
Stage 11 - Evaluation:
o The evaluation will be compulsory if the new Commission has made a decision on the public parade. It must take place within 60 days of the date of the assembly. The meeting will be chaired by a listed mediator.
The Parades Organiser:
52. Should make every effort to attend the meeting convened by the OFMDFM Unit.
o The evaluation will be ‘voluntary’ if the dispute is resolved at either local dialogue or mediation stage. But note that an objector or the PSNI can request an evaluation and an evaluation meeting must then be held even if the Parades Organiser disagrees. The meeting will be chaired by a listed mediator.
The Parades Organiser, any objector or PSNI:
53. Can request it within 7 days of the parade. The OFMDFM Unit must arrange the meeting within 60 days of the parade taking place.
PART FOUR
NEW CRIMINAL OFFENCES TO WHICH THE PARADES ORGANISER WILL BE SUBJECT
The Code of Conduct stresses that the provisions of both criminal and public order legislation will apply to the Parades Organiser, such as Public Order offences, Offences relating to Proscribed Organisations, Breach of Peace, Anti-Social Behaviour Orders etc. (80).
In addition, the Draft Bill creates a number of new offences in relation to parades and other assemblies which are also outlined in the Code of Conduct. It will now be an offence to:
· Knowingly organise an assembly for which notice has not been given (81). However if the assembly differs from the details provided in the notice, the Parades Organiser will not commit an offence if the difference was agreed during the dialogue or mediation period or was imposed as a requirement by the new Commission. It will also be a defence for the Parades Organiser to show that he did not know that the notice had not been given in accordance with the requirements of the legislation;
· Knowingly organise an assembly which differs from the terms notified to the OFMDFM Unit (82). It is a defence for the Parades Organiser charged with the offence to show that he did not know that the assembly differed in any respect from the details specified in the notice. It will also be a defence for him to show that the difference arose from circumstances beyond his control or arose from something done by direction or with the agreement of a member of the PSNI not below the rank of inspector;
· Fail to comply with a requirement imposed by the new Commission (83). Any failure to comply with a requirement imposed concerning a sensitive location can be treated as an aggravating factor by the Court. It is a defence for the Parades Organiser charged with this offence to show that the failure arose from circumstances beyond his control, or was something done by direction of a member of the PSNI not below the rank of inspector.
· Prevent or disrupt a lawful public assembly (84).
· Harass persons taking part in, or endeavouring to take part in, a public assembly (85).
· Refuse to surrender alcohol and /or to provide his name and address to the PSNI when asked, without reasonable excuse (86).
The Parades Organiser should note that failure to comply with the Code of Conduct can be used to justify a notice of concerns or objections for future assemblies and may be taken into account by the new Commission in future adjudication.
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ENDNOTES:
(1) Article 11.2 of the European Convention.
(2) But it must be noted that the Draft Bill as published with the Consultation Paper does not include the essential repeal provisions – so currently assurance cannot be given as to the nature or operation of the repeal provisions.
(3) Draft Bill clause 4(3).
(4) Draft Code of Conduct Part 1, page 9, first paragraph.
(5) Draft Bill clause 22(1); Draft Code of Conduct, page 9, first paragraph.
(6) Draft Bill clause 22(2).
(7) Draft Code of Conduct, page 9, first paragraph.
(8) Draft Bill clause 3(1) and Draft Code of Conduct page 8, sixth paragraph.
(9) Draft Bill clause 3(2).
(10) Draft Code of Conduct page 8, sixth paragraph.
(11) Draft Bill clause 3(3).
(12) Draft Bill clause 13(2) and (3).
(13) Draft Bill clause 13(4) and (5).
(14) Draft Bill clause 17(2).
(15) Draft Bill clause 19(2).
(16) Draft Bill clause 24(1).
(17) Draft Bill clause 31(1).
(18) Draft Bill clause 4 and 20.
(19) Draft Bill clause 20(6).
(20) Draft Bill clause 21.
(21) Draft Bill clause 4(2).
(22) Draft Bill clause 46.
(23) Draft Bill clause 21(7).
(24) Draft Bill clause 16(1) and (2).
(25) Any organisation such as an NGO, company of limited liability or other ‘corporate body’ may also be an ‘interested person’.
(26) This will be a new version of the 11/1 form – though it will now be submitted to the OFMDFM Parades Administration Unit rather than to PSNI as currently.
(27) Draft Bill clause 16(3).
(28) Draft Bill clause 16(4); Explanatory Guide page 41.
(29) Draft Code of Conduct page 14, last paragraph.
(30) Draft Code of Conduct page 15, second paragraph.
(31) Draft Code of Conduct page 12, first paragraph; page 15, third paragraph; page 24, fourth paragraph.
(32) Draft Code of Conduct page 15, last paragraph; page 25, second paragraph.
(33) Draft Bill clause 19(2).
(34) Draft Code of Conduct page 15, last paragraph, last sentence.
(35) Draft Bill clause 17(2).
(36) Draft Bill clause 17(3).
(37) Draft Code of Conduct, page 15, fourth paragraph.
(38) Draft Bill clause 17(4); Explanatory Guide, page 41.
(39) Draft Bill clause 17(6).
(40) Draft Bill clause 17(5).
(41) Draft Bill clause 19(2).
(42) Draft Code of Conduct, page 16, second paragraph.
(43) Draft Bill clause 18 and Draft Code of Conduct, page 16, third paragraph.
(44) Draft Code of Conduct, page 16, third paragraph.
(45) Draft Code of Conduct, page 16, fourth paragraph.
(46) Draft Bill clause 19(3).
(47) Draft Bill clause 23(3).
(48) Explanatory Guide to the Draft Public Assemblies, Parades and Protests Bill (Northern Ireland), page 46.
(49) Draft Bill clause 22(1).
(50) Draft Bill clause 22(2)(m).
(51) Draft Bill clause 23, 24 and 25.
(52) Draft Bill clause 25(2).
(53) Draft Bill clause 26(3) and (4).
(54) Draft Bill clause 26(8)(b).
(55) Draft Bill clause 26(7).
(56) Draft Code of Conduct page 15, last paragraph, last sentence.
(57) Parades Commission Procedural Rules 3.3.
(58) Explanatory Guide to the Draft Bill, page 44, last paragraph.
(59) Parades Commission Procedural Rules 3.3.
(60) Draft Bill clause 22(2)(k) and (l).
(61) A complete description of the new Commission procedures cannot yet be given since OFMDFM may make rules about the proceedings according to clause 22(1) of the Draft Bill, in the future.
(62) Draft Bill clause 26(1).
(63) Draft Bill clause 26(11).
(64) Under the Parades Commission Procedural Rules a request for review may be made ‘in the light of any fresh information or representation received’ (Procedural Rules 6.1).
(65) Draft Bill clause 22(2)(g).
(66) Draft Bill clause 22(4).
(67) Draft Bill clause 19(4)(b).
(68) Draft Bill clause 26(10)(b).
(69) Draft Bill clause 11(a) refers to ‘one or more monitors’ to observe a parade but clause 26(10)(b) refers to the appointment of ‘monitors’ for this purpose. So it is not clear if more than one monitor is in fact required.
(70) Draft Bill clause 11. It is not clear at whose request the Report is to be sent to the Commission but as the Report is to be a published document this does not seem to be relevant.
(71) Draft Bill clause 22(1).
(72) Draft Bill clause 22(2)(m).
(73) Draft Bill clause 32(2)(a).
(74) Draft Bill clause 30.
(75) Draft Bill clause 31.
(76) Draft Code of Conduct, page 27, fourth paragraph.
(77) Draft Bill clause 32(2).
(78) Draft Bill clause 22(1).
(79) Draft Bill clause 22(2)(m).
(80) Draft Code of Conduct, Appendix 1.
(81) Draft Bill clause 37(1)(a).
(82) Draft Bill clause 37(1)(b).
(83) Draft Bill clause 38(1).
(84) Draft Bill clause 39(1)(a).
(85) Draft Bill clause 39(1)(b).
(86) Draft Bill clause 40 and 41.
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