Neutral Citation no. [2001] NICA 35	Ref:     	NICC3445	
 	 	 	
Judgment: approved by the Court for handing down	Delivered:	29.06.01	
(subject to editorial corrections)	 	 	

 
 
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
 
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (CROWN SIDE)
 
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IN THE MATTER OF AN APPLICATION BY PATRICIA PELAN 
FOR JUDICIAL REVIEW
 
and
 
IN THE MATTER OF A DECISION BY THE PARADES COMMISSION FOR
NORTHERN IRELAND CONCERNING A PARADE BY THE
APPRENTICE BOYS OF DERRY ALONG THE
LOWER ORMEAU ROAD ON MONDAY 16 APRIL 2001
 
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NICHOLSON LJ
 
	An application was made on 11 April 2001 by the appellant for leave to apply for judicial review of the decision made by the Parades Commission for Northern Ireland on 5 April 2001 and confirmed on 10 April 2001 (after a review) concerning a parade by the Belfast Walker Club Apprentice Boys of Derry along the Lower Ormeau Road on 16 April 2001.  She sought an order of certiorari of the decisions, a declaration that the decisions were unlawful and were not made in accordance with proper principles or in accordance with Section 8 of the Public Processions (Northern Ireland) Act 1998 (the Act), or in accordance with Article 2 or Article 8 or Article 1 of The First Protocol of the European Convention of Human Rights, set out in schedule 1 of the Human Rights Act 1998 and an Order of Mandamus directed to the Commission requiring it to exercise the powers conferred by Section 8 of the Act and to impose conditions prohibiting the said procession from entering the Lower Ormeau Road area of Belfast.  Leave was granted by Kerr J on 11 April 2001 and a substantive hearing occupied most of the morning of 12 April 2001.  Kerr J gave an extempore judgment and this Court is grateful to have been provided by him with notes of that judgment.
	He dismissed the application and an appeal was brought by the appellant on the afternoon of 12 April 2001.  We reserved judgment until the following day but, as time was of the essence, we then indicated that we were dismissing the appeal and would give our reasons at a later date.  Our decision was given on Good Friday (12 April) and related to a proposed parade on Easter Monday (15 April). Providentially, in my view, the parade was cancelled in view of the problems caused by the ‘foot and mouth disease’ which had affected the agricultural community in Northern Ireland and the community as a whole.  
	I propose to give my reasons for dismissing the appeal within narrow confines as there are issues which arise that will require more extensive research and argument than time permitted, although we received considerable assistance from counsel.  
	The Act set up a body to be known as The Parades Commission for Northern Ireland (“the Commission”).  The functions of the Commission were set out under Section 2, the Commission was required to issue a Code of Conduct under  Section 3, and Guidelines under Section 5, and under Section 8 was given power to impose conditions on public processions.
	Section 8(6) provided that without prejudice to the generality of Section 5(1) the Commission should have regard to any public disorder or damage to property which might result from the procession, any disruption to the life of the community which the procession might cause, any impact which the procession might have on relationships within the community and the desirability of a procession, customarily held along a particular route, to be held along that route.
	The decision of the Commission on 5 April 2001 read as follows:
“1.       In our determination dated 9 August last year, we noted the considerable efforts made by the Belfast Walker Club Apprentice Boys of Derry to reach an agreement with the Lower Ormeau Concerned Community regarding parades by the former on the Ormeau Road.  We acknowledge also the response made by the LOCC to the willingness of the Belfast Walker Club to engage in dialogue.  While at that time we re-routed the notified parade on 12 August 2000 by the Belfast Walker Club, we expressed our view that it would be helpful to have a small orderly Apprentice Boys parade along the Lower Ormeau Road sometime before the end of the year.  In the event such a parade did not take place, although the Belfast Walker Club ABOD did notify a parade on 11 November 2000.
 
2.         We have considered this latest notification against the criteria contained in the statutory document and have taken account of all of the evidence presented to us including representations from the Belfast Walker Club and the Lower Ormeau Concerned Community, as well as advice from the police.  We are aware that the Lower Ormeau Concerned Community have notified a protest parade.
 
3.         The Commission is obliged by statute to have regard to the Guidelines issues under Section 5 of the Public Processions Act and has done so.  The Commission has also been alert to its duties as a public authority under Section 6 of the Human Rights Act 1998.  The Commission recognises that, from the perspective of the parade organisers, the Convention rights engaged are those protected by Article 10 and, in particular, Article 11.  However, as a matter of law neither of  those rights is absolute.
 
4.         Further, the human rights of other persons, to whom the Commission also owes a legal duty, must be equally considered.  Those who live, work and carry on business in the affected locality enjoy rights under Article 8 of the Convention and Article 1 of the First Protocol thereto.  In common with Articles 10 and 11, neither of these rights is absolute.
 
5.         Furthermore, the Commission is obliged to consider and balance the rights enjoyed by the Lower Ormeau Concerned Community parade participants under Articles 10 and 11 and the qualifications on those rights.
 
6.         It is not possible, in the circumstances, for all of those who would claim the protection of the Human Rights Act 1998 to exercise and enjoy their Convention rights to the full.  The Commission, therefore, has had to undertake a balancing exercise, bearing in mind the statutory Guidelines, in an attempt to reach a determination which is fair and proportionate in all the circumstances.  In addition to having regard to the Guidelines the Commission has had regard to the criteria specified in Section 8(6) of the Public Processions Act.
 
7.         In making its determination, the Commission has accepted that there is a right of lawful and peaceful protest vested in those who legitimately object to the notified parade.  However, the Commission does not accept that there is any right of unlawful or violent protest.  The Commission further considers that, in all the circumstances, there is an obligation on representatives of the LOCC and local community leaders and representatives to take reasonable steps to prevent violent protest and, further, to exhort, strongly and unequivocally, that any protest should be exclusively peaceful.  This will be to the positive advantage of the local population as it will reduce the risk of any possible impairment of their rights and freedoms.
 
8.         The Commission, on the evidence available to it, has no reason to expect that the notified parade will be conducted in anything other than an orderly and civilised manner.  The Commission recognises that while protesters should conduct themselves in similar fashion, the possibility of public disorder exists.
 
9.         With regard to Article 8 of the Convention and Article 1 of the First Protocol, the Commission has considered in particular (a) the small number of those who wish to parade [50 participants], (b) the time of day, (c) the brevity of the contentious area of the parade [from the Ormeau Bridge to Havelock Bridge], (d) the time which will be required to process along the contentious stretch [estimated to be 6 minutes] and (e) the nature of the road where the contentious stretch is located and its physical relationship with the main residential streets in the locality.
 
10.       The Commission has also taken into account the possibility that if a large scale policing operation is required and if unlawful and violent protests materialise, the disruption to the local community and the possible infringement of protected Convention rights will increase commensurately.
 
11.       We have had regard to the traditional nature of this parade, the purpose of which is described earlier in the determination.
 
12.       In determining that the undernoted conditions should be applied, the Commission pursues the legitimate aims enshrined in Article 11(2) of the Convention of seeking to prevent public disorder and to protect the rights and freedoms of others.  Further, the Commission considers those restrictions to be necessary in a democratic society and proportionate in all the circumstances.
13.       We would earnestly encourage both the Belfast Walker Club and the LOCC to endeavour to reach a final agreement on parades which will resolve this issue for the future.  This parade is seen, like many others,  as a ‘win or lose’ situation, where one side will ultimately feel that they have been wronged.  It is the Commission’s view that sufficient willingness, effort and endeavour has been shown in the past, both by the Belfast Walker Club ABOD and the LOCC, to suggest that a satisfactory settlement might be reached for the future.  Such a settlement would be to the benefit of both parties, and at least as importantly, to the community as a whole.
 
14.       Having fully considered all the circumstances of this notification, we made the following determination in respect of the parade.
 
Determination
 
The Commission’s determination is that the following conditions are placed on the parade by the Belfast Walker Club Apprentice Boys of Derry in Belfast on Monday, 16 April 2001.
 
1.         The parade shall commence at 8.00 am and that section of the notified route between the Ormeau Bridge and Havelock Bridge shall be completed no later than 8.30 am.
 
2.         There shall be no music, other than a single side drum beat to keep time, from the time the parade reaches the Ormeau Bridge on the outward route until the parade has crossed the Havelock Bridge.”
 
The arguments advanced on behalf of the appellant on the appeal were, inevitably, similar to the arguments advanced before Kerr J and I am satisfied, having read the decisions of the Commission and the affidavits put in by both parties with the relevant exhibits that the Commission did have proper regard for the factors set out in Section 8(6) of the Act and its own Guidelines.  I am satisfied that it did take account of the risk of public disorder and serious damage to property which might result from the procession, and considered, having regard to the advice received from the police and other matters referred to in decisions, that these risks had been significantly reduced.  I am also satisfied that it took into account the disruption to the life of the community which the procession would cause and the impact that the procession would have on relationships within the community.  
I am equally satisfied that it had regard to the relevant provisions of the Human Rights Act and took into account all the relevant articles of the Convention and that its decision was neither unreasonable nor irrational.
As to ground (a) of the arguments advanced on behalf of the appellant and contained in the Order 53 Statement, I have no reason to disbelieve the Chairman of the Commission who stated expressly that the Commission did have regard for the factors set out in Section 8(6) of the Act and its own Guidelines, considered the advice of the police and took into account the relevant Articles of the Convention.  The European Court of Human Rights has stated in Platform Artze Fur-Leben v Austria 13 EHRR:
“a demonstration may … give offence to persons opposed to the ideas or claims that it is seeking to promote.  The participants must, however, be able to hold a demonstration without having to fear that they will be subjected to physical violence by their opponents.   …  In a democracy the right to counter demonstrate cannot extend to inhibiting the exercise of the right to demonstrate.”
 
	But this does not absolve the Commission from its statutory obligations and adds little, if anything, to the overall impact of Article 11(1) and (2) of the Convention.
As to (b) there is no evidence to suggest that the Commission misconstrued Section 8 of the Act, having regard to the foregoing.  
As to (c) I consider that, unless and until I hear a convincing argument to the contrary, the Parades Commission must be afforded a discretion in regard to balancing the rights of the applicant and the residents of the Lower Ormeau Community on the one hand and the rights of the Walker Club on the other hand.  It is desirable that such a discretion should be afforded to the Commission having regard to the fact that they are in a very much better position than the court to reach a balanced decision on competing human rights and that the court should be slow to intervene in the resolution by the Commission of those human rights.  But I am reluctant to identify this with ‘margin of appreciation’ or ‘proportionality’ or other phrases to be found in judgments of the European Court of Human Rights in the absence of argument.
I do not, however, accept the submission by Mr Maguire that the incorporation of the Convention requires the Commission to look again at  its earlier decisions in the light of the new legal landscape created by the Convention obligations.  The Commission was set up by the Act and the Human Rights Act was passed in the same year although it did not take immediate effect.  The decisions of the Commission which were placed before us, appear to me to conform with Article 11 of the Convention which provides: 
“1.       Everyone has the right to freedom of peaceful assembly and to freedom of association with others including the right to form and join trade unions for the protection of his interests.
 
2.         No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and 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 article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces of the police or of the administration of the state.”
 
The decision in Platform Artze Fur–Leben v Austria 13 EHRR does not inhibit the Commission from giving effect to Article 11(2) and I do not propose to say anything more on this topic, as it was not fully argued before the court.  
As to (d), I do not consider that the decision to permit the procession would have been inconsistent with the Commission’s decision in relation to previous processions along the Lower Ormeau Road.  I share their view that they should not fetter their discretion by slavishly following previous decisions.  Each decision has to be reached in the light of the circumstances existing at the time when the decision has to be made and I accept that the Commission took into account matters which, in my view, entitled them to permit the procession on this occasion.
	There is no doubt that the mediation of Messrs Cleland &  Mackin failed and that the Belfast Walker Boys withdrew from the process of mediation unilaterally on 31 January 2001.  The Commission expressly took this into account but at the same time felt that as a result of the report received from Messrs Cleland & Mackin and other matters to which the Chairman referred in his affidavit, the current application should be permitted subject to the conditions which it imposed.  It is therefore incorrect to argue that it failed to take into account the breakdown of the Cleland & Mackin process.  
None of the other arguments presented in the statement pursuant to order 53, or orally by Mr MacDonald QC, although impressively argued by him, persuaded me that the decisions of the Commission should not be upheld.  I read the decisions of the Commission in relation to the proposed parades of the Belfast Walker Club in April, August and November 2000, and the report of Mr Brendan Mackin and Mr Ken Cleland to the Commission regarding the Lower Ormeau Road parades issue.  I read the affidavit of Father Anthony Curran, Parish Priest of St Malachy’s Chuch and the other affidavits and exhibits put in on behalf of the appellant and the affidavit and exhibits of the Chairman of the Parades Commission.
	The Chairman exhibited a background information paper in relation to disputes in respect of contentious parades on the Ormeau Road which makes for depressing reading.  I noted the advice received from the police and the meetings held by the Commission with the RUC, Sinn Fein, Progressive Unionist Party, the Lower Ormeau Concerned Community and the Belfast Walker Club before they made their decision on 5 April 2001.  
The advice of the police is set out at paragraph 7 of the Chairman’s affidavit in which it is stated that in the absence of an undertaking by the Lower Ormeau Concerned Community not to block the progress of the parade, and in view of the history of previous protests against loyal order parades in the area, there would be a clear threat to public safety and that sterile areas between protestors and parade participants would have to be created, that this would inevitably restrict freedom of assembly but would be necessary in the interests of public safety and to prevent crime and disorder.
In paragraph 10 of his affidavit he stated that it should not be thought that because the Commission had on previous occasions made a decision excluding a parade or parades by loyal orders from the Lower Ormeau area, that it followed that a similar decision would be made in respect of a later parade.  If, as he stated, the Commission was slavishly to follow previous decisions it had made without the appraisal of the particular circumstances applying at the time of its decision, it would fetter its discretion and introduce an inflexibility of approach inimical to the proper discharge of its statutory functions.
	In paragraph 11 he highlighted a number of matters which the Commission took into account in deciding to allow the Belfast Walker Club to parade on this occasion.  But he also indicated that the Commission was dismayed when the Belfast Walker Club took their decision to end contact with the Cleland/Mackin process.  
I also noted his statement that in the circumstances the Commission accepted that there was an obligation on representatives of the Lower Ormeau Concerned Community and local community leaders and representatives to take reasonable steps to prevent violent protest and to exhort strongly and unequivocally that any protest should be exclusively peaceful.  If this was done it would be to the positive advantage of the local population and would reduce the risk of any possible impairment of the rights and freedoms of the local population.
When the Commission reviewed its decision (of 5 April 2001) on 10 April 2001 it noted that there had been statements from all parties recognising the importance of promoting calm and maintaining the peace.  The Commission was also mindful of the observation made in the Cleland/Mackin document to the effect that considerable work had been put by both sides into finding a way forward which would strengthen relationships in the community and eliminate the potential for confrontation.  Accordingly the Commission considered that the potential for public disorder had been reduced.  I further noted the Commission’s belief that the parade would be conducted in an orderly, civilised manner and that the Commission’s Code of Conduct would be observed by the parade and that the timing of the parade early in the morning on a public holiday, and its likely size and duration were significant as was the condition imposed as to the playing of music.  The Commission had also had regard to the traditional nature of the parade.  This was a requirements placed on them by the Act.
For these reasons I share the views of my colleagues that the appeal should be dismissed.  I do not, however, take the view without further argument that the “traditional nature of a parade” has any impact on Article 11 of the Convention.

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
 
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (CROWN SIDE)
 
------------
 
IN THE MATTER OF AN APPLICATION BY PATRICIA PELAN 
FOR JUDICIAL REVIEW
 
and
 
IN THE MATTER OF A DECISION BY THE PARADES COMMISSION FOR
NORTHERN IRELAND CONCERNING A PARADE BY THE
APPRENTICE BOYS OF DERRY ALONG THE
LOWER ORMEAU ROAD ON MONDAY 16 APRIL 2001
 
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JUDGMENT

 
OF

 
NICHOLSON LJ

 
 
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