It's time parade disputes were marched into court
It should be up to the legal system, using human rights legislation, to take over the role of adjudicating on demonstrations, says Robin Wilson
Irish Times cartoonist Martyn Turner once penned a cartoon on the 'marching season', showing a calendar with successive pages: 'January, February, March, March, March ... '
The absurdity of this unique Northern Ireland phenomenon has to be recognised. Thousands of parades take place every year, adding huge pressures to the policing budget – which means less money for schools and hospitals. Most participants are drawn from Protestant marching orders, who want to protest their 'Britishness' in a manner people in Britain find foreign.
The fact that this absurdity can claim the legacy of 'tradition' is neither here nor there. In today's world, no one's self-styled 'cultural tradition' can trump fundamental human rights.
But before anyone minded to protest against these manifestations gets self-righteous, it is worth stressing that freedom of association, and by extension the freedom to demonstrate, is a respected right.
It is set out in article 11 of the European Convention of Human Rights, which was incorporated into UK domestic law in 1998. As elsewhere in the Convention, however, after the right is set out, legitimate restrictions upon its exercise are indicated –'such as are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others'.
This provides a ready-made solution to the parades controversy. A consensus can be built around the idea that there is a principle here which should be recognised while there are also practical constraints which can reasonably be placed upon it in concrete situations. And the courts – up to and including the European Court of Human Rights, which has six decades of experience in interpreting the Convention – should be the place where continuing disputes are resolved.
So why, if it is that simple, do we still suffer from endless arguments over parades and the nuisance and sometimes violence with which they are associated?
The answer is that it suited none of the protagonists to go down this route to defuse it – even though it was recommended in reviews.
Unionist politicians, the leaders of the Protestant orders and the Catholic protesters all want to keep the controversy in the political, rather than calmer legal domain.
Neither side – whether those who insist on resisting every restriction on parades or those who insist on vetoing parades in 'their' areas – actually wants this to go to an impartial judicial arbiter. Neither is sure that its subjective political narrative would prevail if tested against the measures of reasonableness as set out in the Convention.
The mistake that was made in the Public Processions Act of 1998 – introduced the same year the Human Rights Act was passed at Westminster – was to substitute for a discourse of human rights the idea of an impartial Parades Commission.
The Commission has, as it happens, done a good job to any objective observer. And it has represented a big improvement on the prior position – here unionist politicians and the Orange Order should be careful what they wish for – where the lack of proper regulation meant parades had become, by default, a public order problem, encouraging a 'might is right' approach by both sets of protagonists and leading to such horrors as the annual 'stand-off' at Drumcree in Co Armagh.
No sane person can want a return of that scenario, associated as it was not only with the deaths of the Quinn children in Ballymoney in 1998 but also the grotesque jig by David Trimble and Ian Paisley when their side prevailed in 1995 – and the sinister, behind-the-scenes, direction of opposition to the parade by a former local IRA figure.
It would be nice to cull another of Northern Ireland's expensive commissions. But only on the basis that the courts should take on the regulation of parades and that human-rights jurisprudence should provide their lodestone.