Short Life Working Group on Facilitating Peaceful Assemblies: report

6. Status of evidence (confidentiality and transparency)

6.1 In contrast to the public nature of Licensing Committees or Processions Committees convened by local authorities in Scotland, Rule 3.3 of the NI Parades Commission's Procedural Rules (2005) provides that:

All evidence provided to the Commission, both oral and written, will be treated as confidential and only for the use of the Commission, those employed by the Commission and Authorised Officers. The Commission, however, reserves the right to express unattributed general views heard in evidence.

6.2 We heard how confidentiality within the process is important in a deeply divided society such as Northern Ireland to give confidence to those who might otherwise be afraid to speak out against a parade; to enable some to engage with the regulatory authority where they might not wish it to be known that they were doing so; and from the perspective of the regulatory authority, being able to hear views that they would not otherwise be exposed to. We heard from some people in Scotland who expressed fears over coming forward to express their opinion on a procession.

6.3 In Tweed v Parades Commission for Northern Ireland (2006), the organiser of a parade in Dunloy sought to challenge the proportionality of restrictions which had been imposed by the Parades Commission. To do so, he sought full discovery of reports submitted to the Commission by both the police and the Commission's own Authorised Officers. In the House of Lords, Lord Carswell held that 'in order to assess the difficult issues of proportionality in this case, the court should have access as far as possible to the original documents from which the Commission received information and advice'. It would then be for the court to assess whether further disclosure to the applicant was justified (by asking whether it would significantly assist their case). Lord Brown nonetheless emphasised that courts should guard against mere 'fishing expeditions', and confidentiality remains a legitimate ground for refusing disclosure. This point was highlighted by the Northern Ireland Court of Appeal in a subsequent, this time unsuccessful, application for judicial review brought by the same applicant: In Tweed's Application (No. 5) (2009). Lord Justice Girvan stated:

There is force in the contention that in many circumstances confidentiality is necessary to ensure a frank disclosure of information. The provision of a gist of the material will often ensure a fair procedure and Rule 3.3 must be read and applied as being subject to that power. Furthermore, if evidence prejudicial to the applicant is regarded as so confidential that not even a gist of it can be provided fairness may require that it is left out [of the] account.

6.4 In a separate case– Anderson v Information Commissioner (2011)– the leader of South Fermanagh Loyalist Flute Band sought disclosure of the detail of the allegations made against a procession in a report by one of the NI Parades Commission's monitors (submitted in confidence to the Commission). Crucial to the outcome of this case was the fact that it did not involve a challenge to specific restrictions on a notified parade, but rather argued that Article 11 ECHR had been violated because the monitor's report might be relied upon by the Parades Commission as the basis for imposing future restrictions on the applicant's parades. The Parades Commission satisfied the Information Tribunal that 'substantial disclosure' had in fact been made which 'substantially apprised' the applicant of what was said in the Monitor's report. The Tribunal noted that if it had actually had to resolve the question (if Article 11 had in fact been engaged) the case would also potentially have engaged the Article 8 rights to respect for private life and correspondence of the Monitors.Indeed, the Tribunal held that:

… the public interest in protecting providers of information in these circumstances is … very powerful. The Parades Commission would be serious [sic] handicapped if information ceased because there was no certainty of confidence. It could find itself unable to recruit monitors, hence effectively to perform its statutory function.

6.5 The applicant then appealed the Tribunal's decision to the High Court (under s.59 of the Freedom of Information Act). Mr Justice Weir concluded that 'the appellant's contention that Article 11 imposes a positive obligation giving a right to the information sought is not supported by any domestic or Strasbourg jurisprudence', and there is no right (under either Article 11 or Article 10 ECHR) to the provision of information provided in confidence.

6.6 While these conclusions seem unambiguous, a further question arises regarding the applicability of Article 6 ECHR to the workings of the regulatory authority. Article 6 protects the right to a fair hearing in both criminal trials and hearings which determine a person's 'civil rights and obligations'. The phrase 'civil rights and obligations', however, has traditionally been interpreted to apply only to rights where 'private law rights and obligations'are at stake. It is thus unclear whether any of the rights determined by Local Authorities in Scotland would fall within the civil head of Article 6(1). It is notable that Lord Rodger, in the case of In re Duffy (2008), remarked that 'the Parades Commission is not a body to whose proceedings article 6 of the European Convention of Human Rights and Fundamental Freedoms applies'. In contrast, however, in its report on 'Parades and Protests in Northern Ireland' (November 2013), the Northern Ireland Human Rights Commission stated that 'Article 6(1) applies both to decision-making processes which permit parades and protests and to those which consider their permissibility after they have occurred.'^[68]

6.7 We heard from a number of people of the benefits of transparency relating to the public nature of the meetings of licensing or processions committees within local authorities in Scotland. Nonetheless, given the intensity of public views in relation to parades in some areas (with corresponding pressure being felt by those who sit on the Licensing or Processions Committees) and also the need to ensure that those potentially affected by parades feel able to raise their concerns, we suggest that some consideration be given to introducing a level of confidentiality in relation both to evidence submitted to Local Authorities and to the deliberations of the relevant committee.