The Cadogan Group

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Parades and Marches

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Submission to the independent review of parades and Marches (1996)

February 2002: As Sir George Quigley commences his review of the Parades Commission we publish the text of the submission made in October 1996 by the Cadogan Group to the Independent Review of Parades and Marches.

submission to THE INDEPENDENT REVIEW OF PARADES AND MARCHES from

THE CADOGAN GROUP

(October 1996)

 

Parades, particularly those staged by the Orange Order and related organisations, are both long-established and important elements in society in Northern Ireland, and are also, at times, causes of resentment, controversy and serious public disorder.  Given continued political stalemate and terrorist violence, it seems inevitable that there will be no lessening in the determination of those who wish to parade, nor in the opposition to them.

Discussion of this issue should start from two basic premises:

The right to march or process must be seen as part of the right to freedom of expression in a democratic society, subject to the observance of law and the preservation of public order:

In Northern Ireland, the legislation governing processions, the Public Order Order of 1987, has proved inadequate, both to preserve law and order, and. to protect the right to march.

The Public Order Order of 1987 correctly accepts a parade as a legitimate means of expression in a democratic society, and takes the reasonable view that the only valid reasons for banning or re-routing parades in Northern Ireland are based on the threat such parades on such routes would pose to public order, or on the intimidatory purpose of the parade.  That is a judgment that can properly be made only by the police, not by elected political bodies, hence the 1987 legislation was perceived as the best way of ‘de-politicising’ decisions on parades.

But what the legislation crucially failed to address was the possibility that the real threat to law and order could come, not from the parade itself, but from those determined to stop it, or alter its route, by illegal means, such as blocking the highway or assaulting the marchers.  The legislation was drafted to avert situations where a parade on a given route might be perceived as sufficiently provocative to a sufficient number of people along that route, that spontaneous opposition to it could degenerate into serious public disorder.  But in practice, the legislation has, on occasions, been used by groups opposed to a parade, or a route, on political grounds, to enable them to bring about a ban, or rerouting, by organising opposition to it, and by creating such a threat to public order if the march proceeds, that the police are obliged to act under the Public Order Order.  

Thus, what had been a planned lawful activity, the parade, is banned as the direct result of the threat of unlawful actions against it.  Any attempt to defy the ban or the rerouting makes the marchers into law-breakers, and the police into the defenders of those who, up to the issuing of the ban, were threatening to break the law.  The law, as it stands, seems unable to make any distinction between a serious threat of public disorder arising out of a parade in a particular area likely to bring about a spontaneous confrontation, and a serious threat of public disorder arising out of deliberately planned actions against the parade designed to cause such a breach.

The police are therefore left in an impossible position where their decisions, taken on the non-political grounds of public order, can, in fact, be the result of deliberate actions taken by political groups for political ends.  As a result, police decisions taken to preserve public order, as at Drumcree, can end in the most massive disruption of public order, and decisions taken within the non-political framework of the Public Order Order, can appear disastrously political.

It is essential that this legislative nightmare be either changed or circumvented before next summer.  Clearly, the police must remain the guardians of public order; they are also those best placed to assess threats to it and their own ability to handle such situations.  Much of the Public Order Order remains valuable.  But guidelines, and a mechanism for implementing them, must be found to deal with the small, but apparently increasing number of those parades which have become controversial, and particularly those which have become focal points for annual confrontations and almost inevitable disruption of public order, for whatever reason.

Experience has shown that leaving the police to make decisions solely on the basis of the threat of serious public disorder does not work, and can also have seriously damaging effects on the image, standing and authority of the police force itself.  Reverting to the situation where Government, through the Secretary of State, would be seen to be taking the decisions, on the advice of the police, or the Police Authority - possible under present legislation - would probably make things worse.  Bans or re-routings, or the refusal to grant such, would be seen as political decisions, provoking even greater resentment and increasing the chances of physical confrontation.

In several instances in 1996 ad hoc negotiations between march organisers and local residents produced compromise agreements.  While such agreements are welcome, and should be encouraged and facilitated, this does not mean that local consent is the key to the issue.  Obviously, the real problems arise from the determination of people living in an area through which a parade is to pass, to resist its passage.  As a result, some have suggested that this matter of local consent or otherwise should be the governing factor, and that residents, through associations, political parties or even local referendums, should give, or withhold, approval for parades and routes.  There must be serious reservations about this approach.

The right to freedom of expression in a democratic society is fundamental.  Essentially, it is a right designed to protect minority viewpoints;  people expressing a majority view have usually nothing to worry about.  So in terms of demonstrations and parades, it is also the freedom to demonstrate and parade when the viewpoint expressed by the marchers is not necessarily that of the majority of those who live in the area of the parade.  A simple test of a parade or a route based on the desire or otherwise of the local residents to allow it, could therefore, constitute a threat to freedom of expression.

In Northern Ireland in the context of Orange parades, this local approval approach poses a more immediate problem.  It suggests that there are areas which are, in their essence, either nationalist or unionist, catholic or protestant, and that they must be recognised as such by the legal authority of the state.  This is enormously divisive, and could prove more so.  There are many catholics or nationalists who have no desire to watch or hear Orange parades, but who, equally, have no intention of assaulting them, of blocking their route, or of provoking serious public disorder as a result of their passage.  But if asked in a local referendum, or some other way, if they wanted the parades or not, a majority would almost certainly say no.  (And the same would happen in unionist or protestant areas as regards parades of a specifically nationalist or catholic nature.)

Areas would therefore be publicly - and in a sense officially -  identified as nationalist or loyalist, in itself a highly regrettable development in a province trying to promote reconciliation, but such areas might also invite resentment from the other side, leading to further ghettoisation, and worse.  Even today, areas involved in parade controversies remain mixed to some extent.  What would be the impact on minorities within these areas?  This is not the place to elaborate this point, but in the opinion of the authors of this submission, it is of crucial importance in the overall context of finding a resolution of the Northern Ireland problem. The outcome of such an approach could be heightened animosity among communities and districts, and increased risk of physical confrontation.

This is not to suggest that the views of the local community are of no consequence in deciding on controversial parade routes; it is to argue that such views cannot, and must not be the sole deciding factor.

What is urgently needed is a set of agreed guidelines which would provide a framework within which decisions could be taken on controversial parades, and which would remove such decisions from the arena of immediate political controversy.  Charters are in vogue.  A Parades Charter, setting out a list of guidelines could be drawn up to govern traditional parades.  Such guidelines could inform the planning of parades and their routes by march organisers, could give local residents a yardstick of reasonableness against which to measure their attitude to any parade, and could be a useful basis for negotiations between parade organisers, local residents, commercial interests and others, where controversy arises.  

A Parades Charter might include the following points as relevant in deciding whether or not a parade along a particular route should, or should not, take place:

The nature of the parade.  Is it traditional, following a well-established route?  A distinction should be made between parades on established dates, and ad hoc parades arranged at short notice.

The logic of the route to be followed.  The fact that a route is ‘traditional’ is not, in itself, a justification, given changes in population and road lay-out.  The route should be a reasonably logical way to proceed from the point of origin to the destination of the parade.

Disruption caused by the parade:  How long does it take to pass?  How much disruption does it cause to traffic or commercial activity?  How much does it inconvenience residents?

The frequency of parades along a particular route.  An amount of disruption, or even of annoyance to residents must be permissible on a small number of key occasions.  Repeated parades along the same route could amount to unacceptable disruption and annoyance.

The nature of the route:  Is it along a main arterial road?  Is it through essentially residential areas, or mainly commercial?

These factors could be used to help towards assessment of the weight of residents’ objections, and of the reasonableness of the decision to organise the parade.  If the guidelines were drafted, or at least formally endorsed by the main political parties, perhaps in the current elected Forum, they would have considerable authority.  A somewhat objective judgment might then emerge as regards disputed parades, which the opposing parties could find easier to accept than an outcome too easily perceived as being based on a climb down by one side or the other.

Such guidelines would also assist the police in deciding whether the threat to public order arose essentially from the holding of the parade, or from the determination of a particular group or groups to disrupt it.  This could be an important factor in determining police action, and in influencing public perception of that action.

This Group has discussed whether some independent body might be set up to adjudicate, on the basis of the agreed guidelines, in cases where no consensus emerges, and where major public disorder seems inevitable.  An advisory committee which would make a recommendation to the Chief Constable could be one method; alternatively a quasi-judicial tribunal which would issue a decision on the basis of the guidelines could be another.  Both options present difficulties, not least that of the need for almost immediate decisions to avert an imminent crisis.  In any case, the actual preservation of public order would inevitably remain the duty of the Chief Constable, and there is a strong argument for leaving the final decision in his hands.

No mechanism is likely to defuse entirely the issue of parades in Northern Ireland.  But a clear set of broadly agreed guidelines could help ensure that the great majority of parades take place without serious controversy.  Where a major dispute did arise, the decision of the Chief Constable could more easily be seen to be based on objective criteria.  In such circumstances, organisers or opponents of a parade would be under public pressure to abide by the decision.  Those who defied such a decision - whichever way it went - would be seen as deliberately threatening serious public disorder, and could be dealt with by the police.

October 1996.