Parade Review Steps Toward Legal Minefield

The Strategic Review on Parading appears to have lost its way. The Interim Consultative Report published before the summer seems to spend much of its pages outlining a Parades Commission Mark II, in all but name.

Surely a strategic report on Parades would start with the North Report, prelude to the Parades Commission being established, and review the journey since then. What has changed? It might also look at each of the five reviews of the Parades Commission that have gone before. Perhaps it might also spend some time reviewing the relative success of the Parades Commissions as lead by each of its three Chairmen.

In the absence of such review and analysis it is hard to understand how the Review team has arrived at the 8 Step process it is suggesting as a replacement for the Parades Commission. An Interim Consultation Report would surely be one where principle is outlined as a basis of moving forward, with perhaps a range of options based on those principles. Certainly it would address fundamental concerns about the Parades Commission’s present process.

A major issue around the Parades Commission has been confidentiality. The Parades Commission largely rode out the storm over information sourced from the Parades Commission being found in the possession of the IRA during the 2005 Stormontgate investigations – there has never been any explanation of how this may have occurred. At the same time the Commission has justified taking ‘evidence’ from anonymous individuals in camera on the basis of respect for confidentiality.

The Commission’s particular view on ‘confidentiality’ has meant that Parade organisers have repeatedly been presented with a negative determination wrapped up in human rights packaging, but with no idea of the nature or content of objections to the parade. This runs contrary to the principle of natural justice – a fundamental within the European Convention on Human Rights – where is a decision is made to your detriment that you should at least know the reasons on which that decision is based. ‘Confidentiality’ to that extent can never be a justifiable derogation from this fundamental right.

A Judicial Review was initiated in 2001/2002 or on the matter of Natural Justice, and was used by the Parades Commission during a Northern Ireland Affairs Committee Review (House of Commons) to defer questioning on this subject. Denied legal aid, as the case was considered to be on behalf of a group, the applicant for the Judicial Review appealed on the point of whether or not legal aid could be available to an individual member of a group affected by a ruling. If the Strategic Review were doing some homework, the outcome of either of these applications, if for no other reason than legal clarification, would have been noted.

Legal matters are not something the Review Group seems to wish the reader to dwell upon. The Report is written in such a way as to suggest that the 8 Step process is all very informal and matter of fact: and by the way there is a legally binding adjudication, but only at the end of the process.

If there is a final ‘legally binding adjudication’ on a parade, every step along the entire process is one of legal relevance. The confection that the early stages are in actuality ‘informal’ is either naïve or misguided. The 8 Steps suggested raises huge issues with respect to the burden placed on individuals being asked to engage in a process that is fraught with legal pitfalls.

The greatest concern must be the notion being proffered that somehow those who object to speaking to anyone who had been actively engaged in terrorist activity that might have a personal resonance would not have to do so. Really?

In rural areas, though not exclusively, an element of the terrorist campaign was to ensure that victims and families would be made aware of who had carried out attacks and yet walk with impunity within the community. This ‘in your face’ brashness increased a sense of alienation, embedded fear and increased insecurity among many Protestants; especially so in the border Counties. Rebuilding trust will take a great many years. Forcing ‘face to face’ encounters will not aid the healing process.

With a ‘legally binding adjudication’ it would not be enough to ‘believe’ or to ‘know’ that a person was involved in terrorist activity. It would have to be a fact; a proven fact in a court of law. It is also a fact that the clear up rate for Republican murders is no more than around 10%. Dialogue will be enforced no matter how unpalatable; even thought a cursory reading of the Strategic Review’s Report would suggest otherwise.

The Interim Consultative Report fails to make a compelling case for its 8 Steps. The suggested Step process fails to address the fundamental faults of the current Parades Commission. A legal minefield awaits unless the Review group undertakes a serious rethink of its entire approach.

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