§ 5.6 p.m.
§ Baroness Amos
rose to move, that the Grand Committee do report to the House that it has considered the draft Public Processions (Amendment) (Northern Ireland) Order 2005.
The noble Baroness said: This order is one part of a wider package of measures on parades that was announced in a Statement made on 22 February 2005. The statement responded to the reports of Sir George Quigley and the Northern Ireland Affairs Committee on the events of the last few marching seasons.
In recent years, although the number of contentious parades has fallen, the behaviour of supporters has become an increasingly important issue. It is fair to say that the status of supporters is currently ambiguous and that this has had significant implications for subsequent processions and contributed to a serious public order incident last summer.
The Statement to Parliament on 22 February last said that, on balance, the Government were not convinced that there was a case for fundamental changes to be made to parades arrangements in Northern Ireland. It announced a course of action that includes clarification of the supporters issue, legislation on protestors—I shall turn to both of these in a moment—and the launch of a consultation exercise on mediation.
On principle underlying the North report and the Public Processions (Northern Ireland) Act 1998 was removing from the police the dual responsibility of taking decisions on parades and then policing them. An independent Parades Commission was established to take the initial decisions. The ambiguity about supporters has resulted in decisions about their conduct being left in the hands of the police. This is not consistent with the policy behind the 1998 Act. The NIAC and the police have also both called for clarification of the position of supporters and followers ahead of the summer. The Order in Council we are considering today therefore puts the position of supporters beyond doubt.
It makes clear that the Parades Commission has the discretion to include in its determinations conditions that would apply to supporters of parades as well as participants. As with parade participants, if a supporter were knowingly to fail to comply with a condition imposed by a determination, it would be a criminal offence. This will make clear to supporters that they must act responsibly and in accordance with the determination, or face sanction.
Section 8(7) of the Public Processions Act (Northern Ireland) Act 1998 is an important safeguard in that it provides that it is a defence for an individual to prove that the failure to comply with a condition arose from circumstances beyond his control or from something done by direction of a member of the police not below the rank of inspector.
494GC The most critical part of the order is the definition of supporter set out in Article 3, which amends Section 17 of the Public Processions (Northern Ireland) Act 1998. The definition has two parts. First, it requires a person to be in a public place and in close proximity to persons taking part in the procession at any time 'when the procession is being held. Secondly, a person will fall into the definition of supporter within the meaning of the Act only if, in all the circumstances, including his conduct, the person's presence in that place may reasonably be taken as expressing support for the holding of the procession.
The definition also makes clear that a person does not cease to be in close proximity to persons taking part in a procession (the first part of the definition) if he temporarily moves out of close proximity in compliance with a determination by the Parades Commission or a direction given by a police officer not below the rank of inspector.
The order also allows the Parades Commission to make determinations that impose conditions on protest meetings related to parades. The existing arrangements are that the police are notified of a protest meeting related to a public procession under Section 7 of the 1998 Act. The police remain the regulatory body in relation to the protest and, under the Public Order (Northern Ireland) Order 1987, they have the power to impose conditions on the protest. Such conditions may limit the size, duration and location of a protest. The police can impose conditions which appear necessary only in order to prevent disorder, damage, disruption or intimidation.
Article 4 of the order we are considering today creates broader powers for the Parades Commission in relation to protests. It will insert a new Section 9A into the Public Processions (Northern Ireland) Act 1998, which will allow the Commission to make determinations that impose such conditions it considers necessary on a protest meeting within the meaning of the Act. Protest meetings not related to processions will continue to be considered by the police under existing arrangements.
In considering whether or not to impose conditions, the commission's guidelines shall in particular provide for the commission to have regard not only to issues of public disorder or damage to property that might result, but also to disruption to the life of the community, the impact the protest may have on relationships within the community and any previous failure of a person of a description specified in the guidelines to comply with the code of conduct.
Articles 4 and 5 of the order we are considering today also insert new Sections 9B and 11A into the 1998 Act. They will allow the Secretary of State to review determinations on protests made by the commission. Article 7 modifies the procedure which the Parades Commission must follow in the first revision of the code of conduct, guidelines and procedural rules after the coming into operation of the Act. The order will apply to all parades and related protest meetings happening on or after 14 May 2005. I hope that we can reach a position where all 495GC contentious parades can be resolved through mediation. I commend the draft order to the Committee.
Moved, That the Grand Committee do report to the House that it has considered the Public Processions (Amendment) (Northern Ireland) Order 2005.—(Baroness Amos.)
§ The Deputy Chairman of Committees (Lord Tordoff)
I regret that we must adjourn for 10 minutes while the Division takes place.
[The Sitting was suspended for a Division in the House from 5.14 to 5.24 p.m.]
The Deputy Chairman of Committees
I gather that there will be another Division shortly, but we cannot wait any longer for that.
§ Lord Glentoran
First, I associate myself with the words of the noble Lord, Lord Smith of Clifton, who thanked the noble Baroness the Lord President of the Council for the thorough way in which she responded to our budget debate.
The issue relating to the Parades Commission is always complex, although not technical. Over the years, for better or for worse, the Parades Commission has undoubtedly done a good job. It has been improved as time has gone by. I understand that there are people in Unionism who do not like the way in which it operates and do not necessarily agree with its policies, but I think that, overall, it has saved the nation considerable hassle, damage and strife. History will prove that.
We are now taking the commission's powers a stage further with the order. It runs closely down the fringe of human liberties.
[The Sitting was suspended for a Division in the House from 5.27 to 5.37 p.m.]
§ Lord Glentoran
I shall try to pick up where we left off. I believe that I was summarising the history, successes and failures of the Parades Commission. Over the past year or so the legislation on it has been altered and amended. This measure constitutes a further amendment to the body's powers. Although overall I am sure that we support the measure, it gives rise to some concerns. When dealing with protests of any kind, human rights concerns always arise. Much of the marching in Northern Ireland constitutes pageantry and history. Serious dangers arise with regard to the order referring to the "proximity" of a person or people to a protest or a march. Who decides that? If I have understood the measure correctly—I am sure that the noble Baroness will correct me if I am wrong—that could be the decision of a policeman, albeit a fairly senior one.
I hope that the Government will undertake to review the legislation after this year's marching season, as it is known, as I consider it to be a little heavy-handed given that the situation in Northern Ireland has not become any worse. The marching season situation has improved given the negotiations that have taken place 496GC and people's willingness to talk to the commission. I hope that this legislation will not deter unionists and others who object to large parts of it from working with the Parades Commission to help us accomplish a peaceful marching season in the summer of 2005. Given those words of caution, I hope that the Government will give an undertaking to review the effects of this legislation.
§ Lord Smith of Clifton
I echo much of what the noble Lord, Lord Glentoran, said. This measure has tremendous civil liberties implications. I am not happy with the definition that is given of supporters and proximity and all the other vague concepts. It is not very tight legislation. I also echo the wish expressed by the noble Lord, Lord Glentoran, for an undertaking to be given regarding the measure being reviewed in the light of experience—we must not mention the word "sunset" these days, must we?—as the measure could be too heavy-handed.
I have a fear regarding this legislation; namely, that innovations introduced in Northern Ireland are often exported to Great Britain. I can quite see that a government might regard this as a useful measure for dealing with hunt protests and deciding who is a supporter and who is not. That is a serious worry.
I make one other complaint regarding process. We believe that this matter has been handled very badly. The order has been proposed in response to the problems encountered in the Ardoyne last summer during the marching season, so the issue has been in play for some seven months. However, the explanatory memorandum states under the heading "Consultation":The Minister has determined that this Order must be made urgently ahead of the main parade season in the summer. It has not therefore been possible to consult formally on its contents. However, informal discussions on the policy have been held with key stakeholders".That sounds terribly much like decision-making on a settee in No. 10, as commented on in the report of the noble Lord, Lord Butler. I should like to know who the stakeholders are. It seems to me that there was ample time for formal consultation on this issue which has enormous civil liberties implications. With regard to someone taking the relevant decision who holds the rank of inspector, or a higher rank, in my definition an inspector is middle management. I would have preferred the relevant decision to be taken by someone of the rank of chief superintendent or above as one needs a great deal of experience and discretion to take such a decision. Otherwise, we support the passage of the order.
§ Lord Rogan
I too thank the Lord President the noble Baroness, Lady Amos, for presenting the order before us this afternoon. The noble Lord, Lord Glentoran, said that it gave him cause for concern. It gives me cause for considerable concern. The noble Lord, Lord Smith of Clifton, said that he feared for civil liberties. I have to say that so do I.
This Government made an active commitment to strengthening civil liberties with the domestic incorporation of the European Convention on Human 497GC Rights in 1998. I say "active" because the Human Rights Act places a positive duty on the Government to ensure that the human rights and fundamental freedoms of each citizen of the United Kingdom are respected and upheld.
Quite contrary to this, the Draft Public Processions (Amendment) (Northern Ireland) Order 2005 goes a long way towards undermining the fundamental rights guaranteed in Article 11(1) of that Act; namely, that everyone has the right to freedom of peaceful assembly and to freedom of association with others. This infringement will affect only the people of Northern Ireland, which strikes me as a further curtailment of our citizen's rights.
The explanatory memorandum to this draft order states that,informal discussions on the policy have been held with key stakeholders".Like the noble Lord, Lord Smith, I question who these stakeholders were. Certainly one was not the Grand Orange Lodge of Ireland. From 11 March 2003 until 3 February 2005 the Grand Orange Lodge of Ireland was not afforded any informal discussions on policy. Do the Government not recognise the Grand Orange Lodge of Ireland as a key stakeholder on this issue? When the Grand Lodges' representatives met with the Northern Ireland Minister, Mr Ian Pearson, on 3 February 2005, the arrival of the draft order was announced as a fuit accompli. This is a most unsatisfactory way to conduct any kind of business or discussion. The Government had over six months to engage in informal talks with the Grand Orange Lodge of Ireland while they were considering this draft order. Perhaps the noble Baroness can explain the total lack of consultation on this matter.
The Government have also failed in their duty under Section 75 of the 1998 Act for a screening of the issues in the draft order, and have breached the terms of their own equality scheme and the legal requirements in Section 75. The Northern Ireland Office issued an equality screening form in respect of the draft Order in Council. First, this states that the provisions dealing with supporters do not amount to a new policy and therefore do not require screening. Why then did the Government hold selective informal discussions on policy if there was no new policy?
Secondly, it states that "no significant adverse impact" was detected in relation to any of the nine categories of Section 75, with respect to the new provisions to issue determinations on protest meetings. How can this possibly be the case when historically most parades have been organised by members of the Unionist community and have been opposed by members of the nationalist community? Is it not obvious to the Government that restrictions on parades will have a significant adverse impact on the Unionist community?
498GC This draft order legislates for the restriction of these basic rights and undermines the Government's commitment to upholding these basic principles. In fact, this legislation weakens the guarantees of freedom of assembly, and association of supporters and those attending marches and parades. As such, this order is a shameful measure which, in real terms, will leave every supporter, from the marching Orangeman, or, indeed, marching Hibernians or football supporters walking from or to a football match to the mother and her children, or. indeed, even my grandson, standing at the roadside applauding a passing band vulnerable to arrest. As such, it will surely be unenforceable, and will potentially leave the public open to breaking the law every time they exercise their right of free assembly.
Can the Government provide some clarification on this matter? Who will be susceptible to the restrictions entailed in this order, where will they be applicable, and how will they be enforced? It is simply not good enough to assert that it will be a matter for the police to determine and then leave it to their discretion as to where and when to use them. The general public will have no understanding whatsoever of how this order impacts upon their civil liberties and if and when they are breaking the law.
I give a small example. In the early seventies there was much civil unrest in Belfast. Parades were being attacked. I was perhaps more active in local politics than I am now. On an Easter Monday or an Easter Tuesday I went to a place called Peter's Hill to witness juvenile Orangemen coming back from a day at the seaside. I was standing completely on my own on the street corner. Two policemen moved me on. I said that I had every right to be there but they insisted that I had to move. I was a law-abiding person and I moved, but I felt—and I still believe—that the policemen had committed a wrong act. If I had been a young hothead or if there had been half a dozen of us there, what would have been the reaction? I suggest that there would have been trouble.
What is also most unsatisfactory about this draft order is that it places a duty on the parades organisers to estimate not only the likely number of bands and lodge members who will be assembling, but also the number of spectators who will arrive at a particular event at any given time. This will be an impossible thing to quantify. As I am sure noble Lords will recognise, marching is not: an exact science. Parades are affected by a range of different variables, not least our inclement weather.
I am also concerned that the measure does not carry any legislative sanction. That implies that the Government's main concern is neither law and order nor police resources but to assist the Parades Commission in determining the route of particular processions. That will do nothing to prevent someone providing an inaccurate estimate, given that it will be impossible to do anything other than that and no sanctions will be imposed. 499GC That leads me to my next point: to highlight the continuing problems with the Parades Commission's composition. It is a statutory requirement that the commission is,representative of the community of Northern Irelandyet the commission is wholly unrepresentative in gender terms, as demonstrated by the fact that it is comprised of seven wise men. Parades and demonstrations affect women as much as men, but women are afforded no voice on those matters. That must be due in part to the fact that the commission's chairman and members are appointed by the Secretary of State, which also negates any sense of accountability from the commission. So despite the fact that the commission is wholly unrepresentative and unaccountable, we are now faced with legislation that, if enacted, will grant even more powers to an undemocratic body while simultaneously encroaching on the fundamental rights and freedoms of the citizens of Northern Ireland.
I strongly urge the Government to reflect on these points and to consider the wider implications of passing this legislation as it stands.
§ Baroness Amos
The noble Lords, Lord Glentoran and Lord Smith of Clifton, both asked about the possibility of a review. I can agree that we will consider the effect of the legislation after this season.
The noble Lords, Lord Glentoran, Lord Smith of Clifton and Lord Rogan, raised concerns about liberty and human rights. Article 11(1) of the European Convention on Human Rights provides that everyone has the right to freedom of peaceful assembly. However, Article 11 is not an absolute right; it is a qualified right. For any restriction on the right to peaceful assembly to be justified under Article 11(2), it must be prescribed by law for one of the legitimate aims set out in Article 11(2). Those include the prevention of disorder or crime in the interests of public safety, the protection of the rights and freedom of others, and it must be necessary in a democratic society. The restriction must be in pursuit of a pressing social need and must be proportionate to the aim pursued.
The noble Lord, Lord Glentoran, expressed concern about the use of "close proximity" in the definition of "supporter". In framing the definition of "supporter" the Government were mindful of the need for legal certainty, but also of the need to ensure that the legislation is not drafted with excessive rigidity. We feel that we have struck the right balance. The two elements of the definition are sufficient to enable someone to know with sufficient certainty when he or she is likely to be viewed as a supporter of the procession and therefore obliged to comply with the conditions imposed by the commission.
The noble Lord, Lord Rogan, went further and asked who would be the subject of the restrictions. The legislation will not make support of a parade a criminal offence. It is only an offence to knowingly fail to comply with a condition imposed by a 500GC determination. Determinations will make clear in advance what conditions are applicable to a supporter of any given parade. Of course we recognise that it may be difficult for a supporter to ascertain whether a particular parade has been correctly notified. We have concluded that in those circumstances it would be unfair to penalise an individual simply for supporting a public procession that had not been correctly notified.
The noble Lord, Lord Rogan, made a further point about making criminals out of honest supporters. The legislation is designed to address bad behaviour by supporters. We recognise that most supporters are well behaved, and in the overwhelming number of parades conditions on supporters will not be necessary. A mother and child who clap a parade as it goes past should not be concerned. However, if, by his or her behaviour, a supporter fails to comply with a condition imposed by a determination in relation to a parade, he or she will come to the attention of the police.
The noble Lord, Lord Smith of Clifton, was concerned about the lack of consultation. He implied that this had been done in a hurry. I can assure the noble Lord that this is not a knee-jerk reaction to any single report. The order is part of a considered response to the wealth of informed opinion that has been made available to the Government. That includes Sir George Quigley's review of parades, the consultation on that report, NIAC's report, reaction to the events of last summer and Mr Justice Weatherup's comments in a judicial review application.
In introducing the order we are also mindful of the request from both the Chief Constable and NIAC that the position of supporters be clarified in advance of the summer. We consulted local political representatives and the marching orders themselves.
On equality of treatment, raised by the noble Lord, Lord Rogan, the order clarifies the fact that supporters are covered by parades legislation. It extends the legislation in regard to supporters. On notifying the police on the number of supporters, parade organisers will be required to provide their best estimate of the number of supporters to help with operational planning of police and army resources for a parade. Parades happen year after year and the organisers will have experience to draw on in estimating likely numbers. Exact numbers are not required; it is only an estimate; and there is no sanction for getting the estimate wrong.
We believe that this is a reasonable requirement that will help decision-making on the police resources required for a parade. On whether the Parades Commission is representative, we took steps to encourage applications from a wide range of individuals from a variety of backgrounds. Individuals were then appointed to the Parades Commission on merit. We shall consider these issues as the terms of the offices of the current commissioners end at the turn of the year. I hope that that reassures noble Lords about this legislation.
§ On Question, Motion agreed to.