Short Life Working Group on Facilitating Peaceful Assemblies: report

9. Political parties and a civic model?

9.1 This brings us to perhaps the most pertinent issues when comparing Scotland with Northern Ireland. As discussed above, the Parades Commission in Northern Ireland came into existence to deal with very high levels of conflict over parades, and it was felt at the time that the institutions which in other parts of the UK make decisions over processions (Scotland: Local Authorities, England and Wales: Police) would be placed under too great a strain. As such, an independent 'civic' model was chosen where individuals that broadly represent Northern Irish society, and with specific skill, knowledge and background, would make decisions (see Section 1.5 above). It is worth noting that there has been considerable pressure on the NI Parades Commission with a number of reviews, discussed below. This has meant that the mechanisms in Northern Ireland have been constantly under review and this fact of itself has arguably stymied the potential for the Parades Commission to engage in long-term transformative work.

9.2 This model in Northern Ireland attempts to draw upon two forms of legitimacy, judicial and representativeness. It conforms to practices that are in some ways quasi-judicial and it involves a panel that attempts to represent the political 'communities' in Northern Ireland. On the other hand, it could be argued that it falls short on both these fronts – it is neither fully judicial nor is it connected directly to the democratic processes of representation.^[90] The Grand Orange Lodge in Ireland has been a constant critic of how the Parades Commission was set up and the processes that it has used.^[91]

9.3 Despite the devolution of policing and justice powers to Northern Ireland in 2010, the Parades Commission for Northern Ireland remains a reserved matter.^[92] Since the Commission's establishment, there have been eight official reviews of parading issues, often also scrutinising the Commission's operation. These have included an internal review conducted by the Northern Ireland Office (1999-2000), two reviews by the Northern Ireland Affairs Select Committee (in 2001 and 2004-05), a review by Sir George Quigley (September 2002), and a NIO consultation on mediation measures for disputed parades (February 2005). In 2007, the Strategic Review of Parading Body was established. This was chaired by Lord Paddy Ashdown and included representatives of residents affected by parades and of the Orange Order. Then, in the aftermath of the Hillsborough Agreement of 5 February 2010 (which expressed a commitment 'to a new and improved framework fashioned by all stakeholders and maximising cross community support'), a Working Group was established to build on the Interim Report of the Strategic Review of Parading by considering:

• the procedures relating to the notification of parades and assemblies, the lodging of objections, and the facilitation of dialogue and mediation;
• the procedures relating to independent adjudication should mediation fail;
• the composition of an adjudicatory body (and the balance of lay and legal members);
• a legally enforceable code of conduct;
• the right to citizens to freedom from all forms of harassment.

9.4 A consultation was launched by the Office of the First Minister and Deputy First Minister (OFMDFM) on a draft Public Assemblies, Parades and Protests Bill (2010). However, there was insufficient political consensus in relation to these proposals.

9.5 In December 2013, a new framework relating to parades was proposed in a document put forward by Dr. Richard Haass and Prof. Meghan O'Sullivan following a process of talks which they had been invited to chair between the parties in the Northern Ireland Executive.^[93] The proposals involved the separation of mediation and adjudication functions through the establishment of two bodies, to be established on the basis of legislation in the Northern Ireland Assembly: The Office for Parades, Select Commemorations, and Related Protests (described as 'an administrative, non-partisan, and non-judicial body with authority for accepting event notifications, facilitating community dialogue, and referring parties to outside mediators'). This office, having verified the completeness of received notifications, would then forward these to the Authority for Public Events Adjudication, an adjudication body for parades, select commemorations, and related protests. The document proposed by Dr Haass and Professor O'Sullivan at the end of 2013 included a request that the Secretary of State for Northern Ireland 'takes steps to devolve authority and responsibility for parades, protests, and events to the new institutions called for in this agreement', but this has not yet occurred.

9.6 In Scotland, legitimacy in the process resides in the democratic institutions of the Local Authority. Decisions are made by a committee often within the licensing remit of the Local Authority whilst in some areas there is a separate processions committee. When a committee is set up to make a decision it usually involves Councillors from a range of political parties in the Council. The sitting of a Processions Committee is a public event and evidence taken is not confidential. Importantly, if parties believe that decisions have been made that do not comply with the law, these can be appealed to the courts.

9.7 The working group heard some criticisms of the notification and decision-making process: (i) It has been noted that it is the police that seem to trigger this process (see also section 5 above); (ii) that it can be difficult to get councillors to sit on the processions committee, including a reluctance to sit on the committee due to some of the criticism they might receive including on social media; (iii) the ad hoc nature of the processions committee mitigates against long-term strategic consistency in decision-making; (iv) that political divisions over Independence and Brexit have created great fissures in the political institutions and this reduces trust in councillors' involvement in making decisions.

9.8 We should make it clear that we have no evidence of any particular issue with the decision-making process involving Councillors. We have no overall figures on how many processions end up with a Committee in each Local Authority area, although we were quite surprised how few times a Committee was convened, particularly in Glasgow. However, it is very clear that some of the parading organisations are highly suspicious of potential political interference in the process. Trust in the legitimacy of the process may be in decline, whether that lack of trust is justified or not.

9.9 It is worth noting that irrespective of whether the decision-making body is the police, a civic body or a Local Authority, if there is a particularly heated political context then the institution involved will come under pressure and the legitimacy of the process questioned. The working group's assessment is that there are very good reasons to support the frameworks in both Northern Ireland and Scotland but that the key is to work towards a process that is broadly viewed to be fair and open, rights-based, and in a societal context that seeks to build relationships and transform conflict. Conflict and antagonism in society are inevitable especially as rapid social change takes place (and this conflict can manifest itself through processions and protests).

9.10 The working group has a suggestion that we believe is worth exploring. We note that the Civic Government (Scotland) Act 1982 does not specify the way in which decision-making within the Local Authority should be undertaken. Indeed, a recent fact sheet on the workings of Scottish Councils makes it clear that Local Authority can use different mechanisms of decision-making:

'Councils can delegate most decision-making to committees or sub-committees of the council. Individual councils set out their arrangements for delegation to committees in their internal governance documents, such as Standing Orders, Orders of Reference or Schemes of Administration and Delegation. There is no requirement for councils to adopt a particular decision-making and scrutiny structure, it is a matter for each council to decide what is most appropriate for its particular circumstances.'^[94]

9.11 The working group can see some considerable advantages in Local Authorities that are under particular pressure in terms of decisions over processions to develop an alternative model. This might include developing a standing committee on which sit a number of individuals drawn from civic society, appointed for a period of time to make decisions over contested processions. Such a mechanism has the following potential advantages: (i) it helps distance the decision-making process from, what may be viewed as, direct and controlling political influence; (ii) it makes a statement about broad civic engagement in the process of upholding the right of peaceful assembly and the rights of others impacted by processions; (iii) it allows a range of people with a range of skills and experiences to engage with a contested public arena; (iv) it allows for longer term consistency and strategies to be developed within the Local Authority, regardless of the political make-up of the Authority. It is important to remember that ultimately all decisions can be challenged in the courts.

9.12 The details of this proposal would need to be carefully thought through. For now we are just raising some possibilities. What would the relationship be with the Local Authority? Could the committee be chaired by a Councillor? Could the full Council review or overturn the decision? We note by way of illustration that, in Northern Ireland, the important position of the Minister of Justice has been given to an MLA that is seen as non-aligned and has the widespread confidence of all the political parties. We make this suggestion alongside our proposals that the process in some Councils be better resourced in terms of engagement and information gathering.

9.13 We do not want to encourage the committee sitting any more times than it needs, since the process is one of notification not licensing. However, we do think that the committee could meet more often to review what has taken place and take a strategic view on the facilitation of processions.

9.14 Unlike the NI Parades Commission this decision-making body would remain accountable to the Local Authority. It could also retain a number of Councillor members. We would suggest that appointment of committee members is undertaken on a rolling and staggered bases providing consistency over time.

9.15 We would like to make clear, once again, that this proposal in no way suggests that we have any evidence of problems with decisions made by councillors or that we have identified specific problems with officials working in Local Authorities. In a number of cases our view was that the Local Authority was relying on very thorough work of officials, with extensive experience, that have been in post for a considerable length of time.