Centre for the Study of Conflict
School of History, Philosophy and Politics,
Faculty of Humanities, University of Ulster
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Politics in Public:
by Neil Jarman, Dominic Bryan,
ISBN 1 900281 07 4
Copies are available in bookshops or, by post, from:
Politics in Public: Freedom of Assembly and the Right to Protest
Parade and Protest, published in June 1996, examined parades
and demonstrations in Northern Ireland and considered possible
ways of resolving or reducing disputes that had occurred Over
this issue. Since that time the number of disputes has risen,
more areas have become involved and, after Drumcree in 1996, attitudes
have become more entrenched. On the other hand, some of the changes
that the report discussed have been introduced. After Drumcree
1996 the Government announced the setting up of a review into
disputes over parades and marches under Sir Peter North. The Independent
Review of Parades and Marches published its report in January
1997 (North Report). Its main recommendation was the setting up
of a Parades Commission to facilitate mediation and to make determinations
if mediation does not bring about a resolution. The Parades Commission
has been in operation under the chairmanship of Alistair Graham
since March 1997 but its effectiveness has been limited by the
lack of statutory power. The summer of 1997 proved to be equally
difficult with the dispute over the Drumcree church parade again
worsening community relations. In the autumn of 1997 the Government
introduced the Public Processions etc. Bill (later amended to
the Public Processions Bill) which will give the Parades Commission
many of the powers suggested by North.
The disputes over parades in 1995 raised particular issues around the rights of public 3 political expression but 1996 crystalised those issues and forced the British Government to act. Until the stand-off at Drumcree, (Drumcree II), between 7-11 July the government had resisted calls for an inquiry into the issue of disputed parades and sustained the argument that it was a policing issue. Drumcree II saw major disturbances all over Northern Ireland, initially by loyalists whilst the parade was held from proceeding on its traditional route, and later by nationalists after the police used violence to force the parade down the road. Some estimated the financial cost to be in the region of £50 million pounds and it also cost the life of a Catholic taxi driver in Lurgan shot by loyalist paramilitaries and a young man in Derry run over by a British army vehicle. On 15 July 1996 the Secretary of State Sir Patrick Mayhew announced the setting up of The Independent Review into Parades and Marches, made up of Dr Peter North (chair), Fr. Oliver Crilly and the Very Revd. John Dunlop.
Figures produced by the RUC revealed that there were 3,161
parades in 1996, 2,405 were caregorised as loyalist, 229 as republican
and 527 as others. Of these 8 loyalist and 11 republican parades
were deemed to be illegal. As Table I shows there was a slight
fall in numbers from the previous year, although there appears
to have been an increase in the number of parades since the mid
1980s (Jarman & Bryan 1996:35-41).
The RUC figures indicate the extensive use of parades in Northern Ireland and the clear differences between communities in the organising of processions. The total also puts into perspective the number of disputes that actually take place. These statistics also indicated that in 1996 6 loyalist and 1 republican parade had conditions placed upon them whilst there was disorder at 15 loyalist parades. This compares with the previous year when there were 13 parades at which the RUC dealt with disorder, 11 loyalist and 2 republican.
Yet clearly these figures give little sense of the effect of parades disputes on community relations. The Drumcree dispute, of course, only counted as one parade in the figures. The statistics also give little indication of the chaos caused by the parades organised by the Orange Order in the week starting Monday 8 July, in protest at the stopping of the Drumcree parade, which were clearly designed to stretch the RUC and inevitably to leave disorder in their wake, even if the parades continued down their notified route. Indeed, the organisation of the parades on a nightly basis in Belfast during that week provides a striking example of when the right to public political protest can threaten serious disruption to the life of communities (Jarman 1997).
We recorded 52 disputed parades at 22 different locations in 1996 and 59 disputed parades in 21 different locations (Tables 2 & 3 See page 25). Some of the locations that had been problematic in 1996 were not disputed in 1997, sometimes due to parades not taking place every year. Problems also developed in areas in which we are unaware of previous disputes in recent years, such as Dromore (Co. Tyrone) and Ballycastle. These statistics compare with 1995 where we calculated 41 disputes in 12 different locations.
The problems over parades has been driven by the dynamic of events surrounding the disputes, by political pressure, and by the external pressures of the peace process. Contrasting experiences within the two communities can help to explain the growing intensity of the disputes. Within the nationalist community the events at Drumcree and on the Ormeau in 1996 were felt to be very important. Prior to these events, issues over rights of public political expression were important but attitudes towards the parades were still somewhat divided. Moderate nationalists and republicans were prepared to accept a degree of compromise in some areas whereby a limited number of parades could have taken place. Many nationalists felt that the RUC had taken a stand to protect their community when the Drumcree church parade was stopped in 1996. However, the RUC actions created such a reaction within the Orange Order and within loyalism generally, that the Chief Constable, Hugh Annesley, reversed his original decision and the parade was given access to the Garvaghy Road and residents forcibly removed. Later that same day the RUC judged, amid warnings that all the Orange Districts on the Belfast Twelfth parade would descend on the Ormeau Road, that the security situation was such that Ballynafeigh District should be allowed down the length of the Ormeau Road. To facilitate this they moved into the lower Ormeau area the evening before and effectively trapped residents into their streets for almost twenty-four hours. All this was done in the full glare of the worlds media to allow a parade to pass at around 9.00am the following day. For many nationalists these were the clearest examples of majoritarian control of Northern Ireland since the Ulster Worker's Strike in 1974. The RUC appeared either unprepared, or unable, to stand up to intimidation from the Orange Order. Anger and disillusionment were common emotions for many at that time. Soon afterwards boycotts of Protestant owned businesses started in some areas and the bitterness was expressed in Derry when the nationalist council voted to rake away the privileges of the UUP Mayor of the city Richard Dallas because he had been present at a blockade during the Drumcree stand-off. For many nationalists, the first two weeks in July 1996 were a classic case of the Orange Order wielding power to make 'the croppies lie down'.
Unionists viewed the development of these disputes quite differently. For many within the Protestant community the role of the residents groups in trying to stop loyal order parades on traditional routes has been orchestrated by Sinn Fein as an attack on Protestant culture. For those in the loyalist community the evidence was clear. A number of the residents groups had republicans or ex-prisoners as spokesperson. The demands of residents groups seemed to serve the purposes of Sinn Fein who were demanding their right to be involved in all-inclusive peace talks and the disbanding of the RUC. Finally, as 1996 progressed, it became obvious that residents groups were working more closely together. During the dispute over the Apprentice Boys' August parade the talks between the Bogside Residents Group (BRG) and Apprentice Boys' leaders seemed to hinge on the insistence by the BRG that the Apprentice Boys stop their feeder parades in other areas such as the lower Ormeau and Dunloy. For Unionists, their suspicions were confirmed when it was reported by RTE that Sinn Fein President Gerry Adams had congratulated republicans for the hard work they had done in particular areas.
Whilst there can be no doubt that parades have always played a
part in the politics of the north of Ireland, there have been
various reasons for disputes developing in the mid-1990s.
In Northern Ireland parade have always tended to be a function of public order, or communal power, nor of rights. Parade routes and parade 'traditions' have been dependent upon local population balance and communal deterrence, on the attitudes of the police to specific political movements, on specific legislation, and on the tolerance of communities at particular times (Jarman & Bryan 1998). This situation can only be improved if the relations between communities and the state are altered. Fundamental to this must be that rights are based upon equality, nor upon the local dominance of one community over another. Ar issue therefore is the role that the state should play in making judgements on rights of public political expression, having regard to the fear and mistrust that exists between communities. Of vital importance is that the majority population extends the same rights to a minority community as it would claim for itself.
The report of The Independent Review of Parades and Marches, published
on 30 January 1997, made 43 main recommendations, including:
The report also identified a number of principles:
The most fundamental of the proposals was to set up an independent body, which has become known as the Parades Commission, to make 'determinations' on contentious parades. However, the Chief Constable would have the power to ask the Secretary of State to review and reverse a determination. A key finding, and the one which in many ways is the hardest to interpret, is that the basis upon which decisions on parades could have conditions placed upon them would be extended to give 'consideration to the wider impact of the parade on the relationships within the community' (North 12.94). It was also recommended that the Parades Commission should issue procedures on how it might work, guidelines on the factors which would help the commissioners make these determinations and a code of conduct for those organising processions. The Parades Commission was also to facilitate mediation, work for greater understanding and arrange for monitoring of contentious parades. The North Review team felt strongly that 'rights carry responsibilities, and are not absolute', that the exercise of rights involved 'both restraint and responsibility, with respect to the well-being of others in the community' and that there was a need to work together to create a society 'that not merely tolerates but positively celebrates cultural diversity' (North 1.52).
The reaction of residents groups to the North Report could best be described as being a cautious welcome whilst the SDLP were quick to endorse the findings. But the Report came in for immediate criticism from unionists, which described irs proposals 'as a charter for grievances'. Many of the criticisms were voiced through the Northern Ireland Forum whose Standing Committee on Public Order Issues produced a report, which recommended:
The reaction of the Government to the North Report was to announce that although the Parades Commission would be set up, it would, in the first place, only promote and facilitate mediation and develop education around the issues of parades. Alistair Graham was appointed as Chairperson of the new Commission but the government decided on a further period of consultation before acting on the key proposals. This meant that nothing would be introduced until after the General Election which in turn meant that there was no realistic chance of a new Government introducing legislation that could have any chance of being effective for the summer of 1997. As such, the Parades Commission effectively had a watching brief over the events of the summer.
Public perception of the Parades Commission was chiefly influenced by two events during the summer. In the fall-our to the decision by the Chief Constable to forcibly remove protesters from the Garvaghy Road on 6 July a discussion document authored within the Northern Ireland Office implicated Alistair Graham in the conclusion that at least a limited parade would probably have to be allowed. Crucially this document was dated before the 'proximity talks' held by the Secretary of State at Hillsborough which members of the Garvaghy Road Residents Coalition and Armagh Orangemen attended and at which Alistair Graham was also present. Although the Parades Commission had no statutory powers and had little or no involvement in the proximity talks, and the Chief Constable made the decision under the 1987 legislation, the implication of the document was that the chairman of the Parades Commission already had a view on the Drumcree parade.
On a more positive note, the Parades Commission appeared in a more favourable light when one of its members, Revd. Roy Magee, was able assist in easing tension over parades in Newtownbutler on 12 July and attempted to find agreement on two Black parades in August. However, despite continued attempts, a church parade on 3 August ended in disturbances when the RUC permitted the parade to take place, although the Black Preceptory voluntarily re-routed their parade on 9 August (Kelly & Allen Nan 1998). The involvement of Magee raised an important issue over the role of the Parades Commission. Could Commissioners be involved in mediation if legislation was also to give them powers to make determinations as well? The possible conflict between the two roles led Roy Magee to resign from the Commission late in 1997. It remains to be seen what the public expectation will be over the role the Commission might play in the coming year.
The new Labour Government published The Public Processions Etc. (Northern Ireland) Bill in October 1997. Whilst its main aim was to empower the Parades Commission, publicity mainly focused on the clause which allowed for the remit to be widened to consider expressions of cultural identity other than parades. This clause was apparently put in at the request of Orangemen during negotiations over the Twelfth parades that were eventually voluntarily re-routed in the summer. However, as the Bill passed through Parliament it seemed to become obvious that expressions of cultural identity might include such things as the painting of kerbstones and the flying of flags. If as unionists claimed the Parades Commission is to be a factory of grievances, then the clause on other forms of cultural expression simply increased the size of the factory! The clause was dropped and the bill renamed The Public Processions (Northern Ireland) Bill.
At the same rime the Parades Commission published three documents
for consultation: a Code of Conduct, giving guidance to those
in processions, Procedural Rules by which the practices of the
Commission will be regulated and Guidelines setting the basis
on which the determinations will be made (see Appendix for an
overview of the Public Processions Bill, Code of Conduct, Procedural
Rules and Guidelines).
Three issues in the Bill and associated documents are of particular importance. First, the criteria on which the Commission are to make the decision; second, the role of the police in the process; and third the publication by the Parades Commission of a 'preliminary view' on parades in areas of dispute.
The Criteria for Determinations
Clause 7 (6) sets out the basis on which the Commission should
make a determination:
A number of points arise from these criteria:
There are serious issues about the RUC that impinge upon this debate but which have been considered in more detail by others (Bryerr 1997; CAJ 1996, 1997; Human Rights Watch 1997; O'Rawe & Moore 1998). However, concentrating on the parading legislation there are questions over the exact role of the Chief Constable in carrying our the determinations. It is broadly accepted that a police force has to have operational control on managing a large event; public safety demands that officers may be required to change decisions. However, the Public Processions legislation allows for more than this. The Chief Constable can appeal to the Secretary of State to review a determination of the Parades Commission. The Committee for the Administration of Justice has argued that there is no reason for the police having a 'double bite of the cherry' by making an appeal, given that the Chief Constable will already have made representations to the Commission. Furthermore the Chief Constable is not accountable to the Parades Commission if he feels the need to overturn their determination.
The Preliminary View
The explanatory note that accompanies the new legislation suggests that the Public Processions Bill 'implements recommendations contained in the Report of the Independent Review of Parades and Marches'. In some areas, such as the clause on traditionality, the legislation is clearly at variance with North (see North 12.53). However, one proposal has caused particular difficulties. North recommended that 'the Parades Commission should be empowered to reach and promulgate conclusions to one or more parades in an area and do so where appropriate over a period longer than one year'. One advantage of this is that each determination is nor reduced to a win-lose scenario. Considering more than one parade over a particular rime frame however is problematic since under the new legislation notification of intent to parade is to be made 28 days in advance. Each parade can therefore only be considered on its own merits. Yet it is recognised that the number of parades in a particular area influences community relations. As such, under the Parade Commission's Procedural Rules, having gathered information in particular areas, the Commission will make an early informal or preliminary view on the pattern of parades for the year ahead. This offers a possible blueprint on the marching season and may receive cross-community support. The most significant change from previous years may well be that there will now be a preliminary view made on the right to march a particular route, which is distanced from any impending threat of public disorder.
So far we have concentrated on changes made by the state on the procedures for deciding on the right to march. However, just as important is an analysis of how the control of public political expression works in practice. A number of issues merit consideration:
Let us take two examples to consider how these issues affect practical situations.
The annual Apprentice Boys Easter Monday parade was held in Portadown in 1996. The Walker Club in Ballynafeigh customarily holds a feeder parade that starts at the Orange Hall near the top of the road and finishes by boarding buses near the city centre. Tension was still high in the lower Ormeau area after violence during the RUC's clearance of protesters to allow the Apprentice Boys to hold a procession the previous August, and the Lower Ormeau Concerned Community (LOCC) group gave notice of a protest. The RUC announced that the Apprentice Boys parade would be re-routed.
At 8.00am around 80 men left the Orange Hall with approximately 50 more people following on the pavement. A banner at the front of the parade stated 'Ballynafeigh says No to Re-routing'. The RUC had blocked the bridge rising Land Rovers, but officers were not at this point dressed in riot gear. Sandy Geddis, who acted as spokesman for the club, read a statement at the RUC line and the marchers stood around chatting. Things remained quiet until 9.30 when the RUC pushed through lines of Apprentice Boys to give a fire engine access to a fire that had been started at the rear of the nearby supermarket. As the accompanying media scrambled to get pictures there were scuffles, a cameraman s stepladder was thrown into the river, and the reporters retreated behind police lines. It became clear that the parade organisers were nor sure how they were going to conduct the standoff.
It was a warm, sunny day and many people sat around drinking. There was some intermittent bottle but during the afternoon the violence became more persistent and a number of people were injured, apparently from bottles falling short of police lines. The police seemed to assume that the Apprentice Boys would march back to the hall at 500pm when the original parade would have returned from Portadown. However, the Apprentice Boys did nor seem to have a clear idea of how they were going to end the protest and the majority of those confronting police lines were not wearing Apprentice Boys sashes. From 4.00pm onwards a number of bands arrived and marched down to the police lines. Some Apprentice Boys and band members were clearly ill at ease at how the protest was being conducted and two band members had a public argument about what was taking place.
The next phase saw petrol bombs being prepared and we believe there may have been an attempt to hijack a bus. Some shops were attacked whilst others in the crowd shouted at people 'not to attack out own'. Between 5.00 and 6.00pm, perhaps when it became obvious to the police that the Apprentice Boys were nor going to parade back, the riot squad began to advance up the road. At around 6.30 there were attempts by some older men to gain control of the situation. One accordion band marched down to police lines then back up the road, which changed the mood somewhat and switched attention from police lines. Another band also marched to the police lines, but by this rime significant figures had taken control at the front of the crowd and this allowed Unionist councillors and some Apprentice Boys to place themselves between the crowd and the police and relieve tensions.
Just when the situation appeared to be under control another band and an Apprentice Boys club appeared at the top of the road and marched down. As the band moved away some of these Apprentice Boys attacked the police with a bannerette and ceremonial pike whilst others attempt to pull them back and retain control. After further confrontations those in the crowd trying to maintain control manage to do so. It was only at about 11.00 at night that the police broke up the remaining crowd with a baton charge.
The events that rook place during the day were complex. There were clearly interactions between the apparent randomness of crowd activity and the involvement of a variety of interest groups. There was the Apprentice Boys club, a variety of bands from different parts of the city, Some with paramilitary affiliations, some without, there was a variety of unionist politicians, there were figures from both the UDA and UVF present, many spectators spent the rime drinking. The actions of the police were crucial and the role of the media was significant on at least one occasion. At different points during the day different elements in the crowd took centre stage and seemed to control what was taking place.
However it would be foolish to think that situations such as these can always be managed. Emotions were high, yet there was clearly a desire amongst the organisers of the parade, amongst many unionist politicians and, we suspect, amongst some within the paramilitaries, to control what was taking place and make the protest forceful yet peaceful. The protest therefore raises a number of questions.
The parade dispute in Derry has some features that are significantly different from those in other areas (Jarman & Bryan 1996; Pat Finucane Centre 1995 & 1996; Kelly & Allen Nan 1998). First it is a city with a large nationalist community with a small Protestant community in the Fountain area. There seems to be widespread agreement that it is important that the city remains mixed and that the Protestant legacy is recognised. Second, the dispute involves a small number of parades: the Apprentice Boys parade in August commemorating the end of the Siege and the parade in December which remembers the Closing of the Gates and ends with the burning of an effigy of Lundy. The August parade is possibly the largest parade held annually by the loyal orders. Third, there seems to be a consensus in the city that these two parades should take place, but there are disagreements about the conditions under which the parade should take place.
In 1995 the Apprentice Boys applied to have a parade around the full circuit of the walls of Derry on the morning of Saturday 12 August. The walls had been closed in 1969 so the full circuit had not been walked since then. The Bogside Residents Group (BRG), formed in 1995, objected to the parade using the section walls overlooking the Bogside. However, the police decided the parade should go ahead and cleared protesters from the wall. Later in the day when the main parade came over from the Waterside there were confrontations, particularly between some bandsmen and protesters at the Diamond. Although Apprentice Boys stewards attempted to calm the situation, they were rinable to deal with it. After the parade ended conflict developed between the police and protesters and within 30 minutes plastic bullets were being fired and petrol bombs being thrown.
The events surrounding Drumcree 1996 encouraged a closer relationship between the various residents groups and members of the BRG felt that they should show solidarity with residents groups in areas where the Catholic community formed a lower percentage of the community. During meetings between the BRG and the Apprentice Boys prior to the 1996 Relief of Derry parade, the BRG argued that a solution should be linked to disputed Apprentice Boys parades in the lower Ormeau, Bellaghy, and Dunloy. But with no agreement reached the Secretary of State, Sir Patrick Mayhew, decided to prohibit all parades on that section of the city walls between 7 - 31 August and the army moved in and sealed the area. The parade on the day took place without major incidents, thanks in part to Alistair Simpson, Governor of the Apprentice Boys announcing that a parade around the walls would take place at a date of their choosing. That parade took place on 19 October.
In 1997 there were significant attempts by community workers, politicians, the business community, the BRG and the Apprentice Boys to look for solutions. Yet, as with the previous year, the feeder parades in other areas still created difficulties. On 4 August the RUC announced that the controversial feeder parades were to be re-routed and the BRG announced that there would be no protest at the Siege of Derry parade. There seemed to be a good chance that the day would pass peacefully. As part of an effort to change the atmosphere at the parades around the walls, the Apprentice Boys organised a pageant, which was in part funded by Derry City Council. Alistair Simpson made it clear that only local club members were to take part, and although there was a group of around 30 nationalists on Magazine Street, at 9.30 the parade, with some people in costume, took place to the sound of a single drum beat. Whilst members of the local Apprentice Boys Clubs went to the Cathedral for services other people were left drinking, waiting for the main parade. This started from the Waterside around mid-day and included nearly 150 bands. Although there was no organised protest in the centre of Derry, there were clearly a number of onlookers from the Bogside gathered in Butchers Street. The police attempted to let spectators move freely around the Diamond although there were barriers in place. For a long period the parade seemed likely to pass off peacefully but a number of factors conspired to cause disturbances. As is always the case there are significant quantities of drink taken by spectators at this event and some were allowed to occupy the War Memorial. Young nationalists were soon engaging in 'banter'. Although there were attempts to keep the situation calm, things rapidly got out of control when a loyalist band, carrying paramilitary flags, broke ranks to pursue a youngster who had stolen a bandsman's cap. Members of the band gestured as if they were shooting at people as stewards and police struggled to regain control. For the next hour tension was high, bottles were thrown, and fights broke out. Apprentice Boys stewards tried in vain to calm the situation but as more loyalists gathered in Bishop Street, confrontation became inevitable. As bands came into the Diamond a number of them reacted, ignoring the fact that they were going around a war memorial. Since the RUC seemed unwilling to deal with the parade they tended to move in on the nationalists. Only when the parade had finished did the RUC move against the loyalists who had gathered and the riot squad moved them up Bishop Street.
These incidents soured the genuine efforts to improve the environment in which the parade took place. The Apprentice Boys were quick to act against the band involved, but recriminations over the action of organisers, police and those watching the parade were widespread. The Closing of the Gates parade on 13 December subsequently became an issue even though it had not been so in previous years. The BRG stated that they would protest in the Diamond. Interestingly, the business community, who had been trying to resolve problems, now moved to centre stage and debate focused on the way the parade affected the Christmas trade. Attempts to find a resolution failed and on the day the police print in place a massive operation to stop protesters reaching the Diamond. Whilst businesses in the Bishop Street area had felt it necessary to close in previous years the threat of disturbances and the police operation effectively meant that most of the city centre closed down by early afternoon.
The parade is much smaller than that in August and involves around twelve bands. It comes into the city around mid-day and, after a service at the Cathedral, follows a route around the Diamond. Whilst there was shouting between protesters and loyalists on the ground the atmosphere was nor particularly bad. The police operation overwhelmed almost everyone including parade organisers. A helicopter flew so low overhead that it was nor easy to hear anything. Apprentice Boys stewards made strenuous efforts to make sure that there were no problems as the bands went around the Diamond. Some paramilitary flags that had been on view as the parade entered the city were removed and stewards attempted to keep spectators from abusing the protesters. Senior Apprentice Boys were placed in Butchers Street where the parade enters the Diamond and made sure that each band knew to stop playing. Indeed, the first band set the mood by playing Jingle Bells as they approached The parade went smoothly until a Belfast band changed the atmosphere despite attempts by stewards to calm them down. As they went around the Diamond a confrontation with a steward required police involvement and brief scuffles resulted. Following the parade confrontations between police and nationalists quickly developed on Shipquay Street, these spread to the bus station anti the Guildhall area. Vehicles were hijacked and burnt as youngsters threw stones and petrol bombs at the police. Serious confrontations continued late into the evening.
Unlike most loyal order parades, the majority of those participating in the Siege of Derry parade are nor from the area and are relatively unfamiliar with the city. Since there is a large Catholic majority in the city many locals feel that their city is taken over for the day. This in turn increases the problems for those trying to steward the event if an incident occurs. For many it is a day out and there are often problems with the amount of drinking that takes place at both the August and December parades. The parades also take the best part of both days. The December event has particular problems because the effigy of Lundy is nor burnt until after dark so that many people are hanging around for most of the afternoon.
Coming to terms with the historical legacy provided by the two major events is important for the future of the city. It is important for all concerned that the Protestant community in the city feels secure and that Derry is able to accommodate its diverse history. However, for this to take place the relations that encompass the parades need to be worked upon. Although 1997 was an inauspicious year for improving the community relations in the city there is clearly a lot of pressure to make things work. The business community and the local council have been more pro-active in Derry than in any other part of Northern Ireland. The Apprentice Boys have approached the situation with more imagination than the loyal orders have shown in other areas and the BRG have repeatedly said that in the right conditions these parades should be facilitated. Neither the business community, nor local residents, nor the Apprentice Boys can reasonably claim (or we think would try to claim) a monopoly of rights in using the city centre. The disputes in Derry also raise a range of issues.
These two case studies provide good examples of the complex issues we wish to analyse. In some ways they are not representative cases. The Apprentice Boys of Derry have many any fewer parades than the Orange Order and as an organisation have attempted to deal with some of these difficult issues on the Ormeau Road and in Derry. The attempt to view the walk on the walls as an historical pageant must surely be a good way of coming to terms with difficult relationships. Nevertheless, despite the unique qualities of these cases we do think they suggest general problems.
The Right to Parade
The right to hold a procession or demonstration is an important right and it is the duty of the stare to attempt to facilitate that right. But where do the limits of these rights lie?
What are the responsibilities of organisers?
The Right to Protest
The right to protest is important and it is the duty of the police to facilitate that right. Clearly, in the nature of protests, they offer different problems to events such as a parade.
What responsibility do those protesting have towards the community?
One conclusion that can be drawn is that public order is an issue for the wider community not simply for the police. Serious and regular breakdowns in public order generally affect areas that can least afford such problems. Recognising that public order is a problem for the Community is not new and it has led to a reappraisal of policing in other parts of the world, South Africa being an obvious example (Brogden & Shearing 1993). Such problems therefore demand a re-examination of the advantages of forms of local community empowerment and a rethinking of the way we deal with public order problems.
In the second section of this report we will examine how many
of the above issues are addressed in other countries. The Notting
Hill Carnival, the control of Orange parades in Scotland, the
legal rights of demonstrators in France and Italy, the reform
of rights of political assembly and the management of political
difference in South Africa, the control of large St Patrick's
Day parades in New York and Boston, and the rights of minority
communities in Israel are all worthy of examination. Many similar
legal and practical problems exist in each of these jurisdictions.
Whilst in some cases people have had no more success in dealing
with problems than in Northern Ireland, we think that they offer
a range of possibilities and solutions which are worth considering.
The case studies illustrate a number of ways of addressing the ways and means by which freedom of assembly and the tight to demonstrate are facilitated in practice in a diverse range of countries. While no single example provides a clear analogy or mirror to the situation in Northern Ireland, collectively they can he used to highlight a number of factors relevant to the current disputes here.
At the most general level we are interested in the relationship between law and practice, between legal and constitutional guarantees for civil rights and how these are played our on the streets. Constitutional tights and legal frameworks often relate to idealised situations rather than the messy and varied issues that arise from daily life.
On issues of public order there is always a balance to be maintained between law enforcement and keeping the peace. Sometimes the letter of the law must be allowed to be broken in order to maintain a wider peace. Sometimes the law must be changed if the situation that the law applies to changes.
There are a number of limited issues that recur when dealing with the practice of demonstrating. There is a narrow repertoire of problems that need to be addressed and despite the varieties of local context there is also a narrow range of practical solutions that can be imposed whilst still working within a human rights framework.
In the section that follows we draw out some of these practical solutions which appear to be of most relevance to Northern Ireland. Not all of them may be of use here and no single country could provide a ready-made model of a workable solution to the current disputes. We do not hold up these practices as necessarily providing all the answers to the disputes over the right to parade here. Rather we use them to illustrate that there are a variety of ways forward and we suggest that they represent current international best practice with respect to the basic right of freedom of assembly.
Each of the countries we have surveyed has faced some degree of difficulty over pub demonstrations and each has addressed the problem to a greater or lesser extent. The variety of approaches illustrates that every problem has more than one solution.
In Northern Ireland there is no constitutional guarantee of freedom of assembly ot ot rights to public political expression. Rights exist only as common law in so far as that which is not prohibited or restricted is permitted. It has been suggested that any constitutional settlement in Northern Ireland should include a Bill of Rights. This argument has received widespread support from across the political spectrum.
All countries have a range of laws that are used to govern the practical limits of the freedom of assembly and rights to demonstrate. In Northern Ireland the right to parade has been managed under the 1987 Public Order (NI) Order. Much of this legislation will be replaced by the new Public Processions (NI) Act (see Appendix for a summary of the main provisions).
In Northern Ireland many parades that have been held for a number of years are considered to be 'traditional'. Some believe that 'traditional' parades have greater rights than other non-traditional parades. At various times in the past the significance of traditional parades has been singled out in law. Under the Public Processions Act the Parades Commission will have to take into consideration 'the desirability of allowing a procession customarily held along a particular route to be held along that route' as one factor when making determinations over contentious parades.
It is widely acknowledged the human and civil rights should be applied equally and without discrimination to all members and sections of society. In many countries equal rights have been acknowledged in law but denied in practice. In Northern Ireland the right to demonstrate has not been extended equally to all people and all communities. Nationalists have argued that their rights to demonstrate have often been denied while Unionists feel that their rights are currently under threat. Recognition of mutual rights is an important feature of any democratic civil society.
Under the new Public Processions Act organisers of parades and demonstrations will have to give 28 clays notice of their intention to hold a public procession. Organisers of protest meetings will have to give 14 days notice of their intentions. Notification is given to the police on a standard form who then forward the information to the Parades Commission.
At present the RUC have the power to impose a variety of constraints on the organisers of demonstrations relating to the route, the timing and the content of the procession, but only if they have concerns for public order. Under the new legislation the Parades Commission will take over such powers and have produced a Code of Conduct which sets our a broad range of standards that should be adhered to. The Parades Commission will also be expected to consider the impact a parade will have on relationships within the community and any disruption likely to be caused to the life of a community before imposing constraints. The RUC will retain the right to impose constraints due to fears for public order on the day of a parade. Only the Secretary of State can ban one or more parades in their entirety.
Under the new legislation and the Code of Conduct the Parades Commission will be able to impose constraints on the route of a parade, on the time of a parade and on the style and content of a parade. Any such restrictions should only be imposed if mutual agreement has not been reached as a result of local dialogue or more formal negotiations.
Attempting to stop a legal demonstration is an offence under the Public Order (NI) Order and will remain so under the new Public Processions (NI) Act. However the RUC have often responded to crowds of protesters by restraining a hitherto legal parade on the grounds that to do otherwise would cause serious disruption to public order. Unionists have complained that the police have failed to enforce the law, nationalists have insisted on their right to prevent parades going where they are not wanted. The result has been to undermine faith in the rule of law.
All public demonstrations make statements about the issues a group supports or opposes and demonstrations are, or should be able to be, provocative. They are therefore likely to provoke opposition or reaction from outsiders.
The public order legislation in Northern Ireland makes it an offence to incite feat, provocation and hatred towards people of different religious beliefs, colour, race, nationality, citizenship and ethnic and national origins, by the rise of words or behaviour or through the display of written material in a public place.
At present there is no right of appeal against restrictions imposed on parades by the RUC. Under the Public Processions Act only the Chief Constable will have the right to appeal a determination of the Parades Commission. Although there is a general right to seek a judicial review of decisions concerning parades the judiciary will only consider whether the correct procedure has been followed and will not review the decision itself.
The RUC have overall and final responsibility for public order. The RUC will be expected to advise the Parades Commission of their assessment of the public order implications of any parade. The Chief Constable, alone, has the tight to appeal to the Secretary of State against a determination of the Parades Commission. The RUC also have the tight to invoke concerns for public order on the day of a parade and so overturn otherwise legally binding determinations.
Consumption of alcohol has been acknowledged as one source of problems am parades and it is widely accepted that this issue needs to be dealt with. To date the RUC appear to have been reluctant to address this problem. Under the new legislation the police will have greater powers to confiscate alcohol being carried or consumed in the vicinity of a parade route and to stop and search vehicles going to parades if it is suspected that they are carrying alcohol. It remains to be seen whether such powers will be exercised.
Last Modified by Martin Melaugh :