(Austen Morgan, Fortnight)

Drumcree VI

With Drumcree VI threatening the fragile polity of Northern Ireland, the secretary of state has decided - without announcement - not to require the new Parades Commission, under the English solicitor, Tony Holland, to use the Human Rights Act ('HRA') 1998 during this year's marching season; it will come into force generally on 2 October 2000.

This is unfortunate. Convention rights could make a significant contribution to: encouraging the loyal orders to respect the law fully; and exposing Sinn Féin-promoted residents groups campaigning against 'sectarian marches'.

The Garvaghy Road residents, and the Portadown Orangemen - I would predict - , will remain unsuccessful in any application for judicial review of a Parades Commission determination; prospects, however, could shift in favour of the marchers, after the HRA 1998 becomes law. Further, any other legal action involving protesters and marchers, in which human rights points were taken, could produce an interesting result - defeat for Brendán Mac Cionnaith.

Communalism

Parading and protesting are communal activities, related to the sectarian control of territory. (A companion activity is marking with tribal flags, wall murals and painted kerbstones.) It is a zero-sum game. Ulster's history has been marked episodically by such rivalry.

The 1997 North Report - commissioned after Drumcree II - stated: 'We are clear...that there is a connection between the declaration of the ceasefires in 1994 and the subsequent growth of the parades issues. We are not so naïve as to believe that the issue has not been used for political purposes, on both sides of the community.'

The Parades Commission

The Parades Commission was established by the Party Processions (Northern Ireland) Act 1998.

Previously, the RUC had handled parading and protesting as a public order issue. The secretary of state could also ban processions or meetings. The Parades Commission - which was first involved in Drumcree IV - was given the power, by section 8 of the Act, to issue determinations imposing conditions on processions.

It was required to have regard to published guidelines dealing with five factors (though others could be considered): public disorder; disruption; community relations; failure to comply with a code of conduct; and customary routes.

Human rights

The NIO approached Drumcree, and the other flashpoints, in terms of balancing 'the right to march' and 'the right of residents to withhold consent'. Sectarian voices were heard by policy advisers. Such a - English - political approach, while understandable, is at variance with modern human rights law; unfortunately, the North review, which was advised on the matter by a Cambridge criminal lawyer (before the HRA 1998), took the same approach of liberal political accommodation.

The issue, however, is not between the residents and the marchers; it is between the Portadown Orangemen and the government (which has a positive duty to uphold the freedom of peaceful assembly between contending parties); the legal standing of Brendán Mac Cionnaith is a great deal less than his political profile.

The bill of rights, 1688-89.

The law in 1995 dated from the constitutional settlement the Portodown Orangemen celebrate after 300 years. The bill of rights of 1688-89 makes reference to 'ancient rights and liberties', but says nothing particular about marching. Unfortunately, the right under William and Mary (now repealed) of protestants to bear arms was couched in terms of James II's indulgence of papists.

The HRA 1998.

The relevant Convention rights are 9 (freedom of thought), 10 (freedom of expression) and 11 (freedom of peaceful assembly and association). These are often considered together by the Strasbourg court.

Article 11 states 'everyone has the right to freedom of peaceful assembly'. Everyone includes the loyal orders, who participate in what Sinn Féin calls sectarian marches.

And article 17 (prohibition of abuse of rights) denies 'any...group...any right [under the Convention] to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.'

It is for society, not Sinn Féin, to determine the limitations under article 11, which are 'prescribed by law and are necessary in a democratic society in the interests of': national security or public safety; the prevention of disorder or crime, the protection of health or morals; or the protection of rights and freedoms of others.

A genuine human rights culture.

On 16 February 2000, Peter Mandelson announced that a review of the Parades Commission had found all sides emphasizing a rights-based approach: 'different sides had their own interpretation of what the rights at issue were.'

From this autumn, the Parades Commission, as a public authority, will be prohibited from acting in a way which is incompatible with a Convention right (HRA 1998 section 6(1)). And the courts will have to interpret section 8 of the Public Processions (Northern Ireland) Act 1998, 'so far as it is possible to do so', so that it is compatible with Convention rights.

This - I submit - will require the Commission (which now includes a retired judge) to stop balancing marchers and residents, and reframe the legal reasoning of its published determinations in terms of: 'no restrictions...on the exercise of the[se] right[s]...of peaceful assembly' - unless a legitimate limitation can be justified as proportionate.

The case of the Portadown Orangemen.

This would be an uphill legal struggle, but it would be a better brief than restricting the freedom of sectarian marches:

1. on some, not all, previous occasions, the marchers, and their supporters, have not behaved peacefully - there is no freedom of riotous assembly;
2. lawful restrictions are permitted by the Convention, and Strasbourg allows the state to regulate the right - recognition of the Parades Commission would probably be necessary;
3. restrictions necessary in a democratic society would take account of division in Northern Ireland - refusal to negotiate with the residents would be unhelpful;
4. public safety is more relevant than national security, and would be considered with prevention of disorder or crime (this is the Parades Commission's first factor) - the residents could not successfully threaten freedom of peaceful assembly (as Ian Paisley did in the civil rights days), but the evidence of the police on the intention of the marchers would be crucial;
5. the protection of rights and freedoms of others (arguably the Parades Commission's second factor). Article 17 does not mean that the residents lose their rights. But there is no right under the Convention - as claimed - to territorial apartheid. Protest, moreover, takes second place to parading. The NIO is keen on article 8 (privacy), but the Garvaghy Road is not residents' homes, or immediate neighbourhood. In a pluralist democracy, there is no right to take offence.

The prospects of the Portadown Orangemen letting go the 1688-89 bill of rights, which inspires their absolutism, and adopting twentieth-century Convention rights (which have been promoted by inter alia republican fellow travellers) may be beyond them.

Conclusion

If the NIO continues to pitch the residents' article 8 right against the marchers' article 11 right, this will only encourage Brendan McKenna further (including possibly into a legal challenge to the Orange Order which he could only lose). If the Parades Commission does not take freedom of peaceful assembly more seriously, a loyal order will secure the overturning of a determination in the courts sooner rather than later.

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