We are delighted to welcome this guest post by Michael Hamilton, Senior Lecturer in Public Protest Law, University of East Anglia. Michael was previously Co-Director of the Transitional Justice Institute University of Ulster and can be reached at michael.hamilton[at]uea.ac.uk. Follow on twitter: @LawOfProtest
As the final round of the Haass and O’Sullivan talks gets underway, it is worth considering further what a ‘rights-based approach’ to parading might entail.
Given the cross-party consensus that a ‘rights-based approach’ is critical to the resolution of parade disputes in Northern Ireland, there is a unique opportunity to ensure that such an approach operates at the core of any new or revised decision-making process. In this regard, the Northern Ireland Human Rights Commission’s recently launched report, Parades and Protests in Northern Ireland, contains a useful analysis of the rights and freedoms potentially engaged. Recent case law of the European Court of Human Rights is especially noteworthy. In particular, the cases of Faber v Hungary (2012) and Vona v Hungary (2013) illustrate, respectively, a protest that did not meet the threshold of ‘intimidation’, and a series of demonstrations that clearly did meet this threshold (see further Daniel Holder’s excellent post on the Vona case here).
Less attention, however, has focused on the procedures that are necessary to enable – and to maximize the potential of – a ‘rights-based approach’. It is noteworthy that in June 2013, the UN Special Rapporteur on the Rights to Freedom of Assembly and of Association, Maina Kiai, urged the Parades Commission to provide ‘better and clearer reasons for its decisions, to enable the rationale for these to be understood …’ (at para.95). This post argues that a ‘rights-based approach’ has fundamental implications for the procedures of the ruling body – specifically, that:
1) there must be an initial assessment of whether a procession raises valid (prima facie) rights-based concerns (as opposed to more speculative and subjective assessments of ‘sensitivity’ or ‘contention’);
2) the ruling body must provide a clear explanation/summary of any such concerns early in the decision-making process (not simply in a final determination) so as to enable the relevant parties to take all reasonable steps to address the issues raised; and
3) dialogue, where it is not entered into voluntarily, should be focused on addressing any substantive rights-based concerns identified (including the right to freedom from harassment and intimidation).
In short, a rights-based methodology must infuse the decision-making process from the outset. Too often, the Parades Commission’s determinations give the impression that the language of rights is used predominantly as a means of ‘boilerplating’ those decisions (to guard against the possibility of successful legal challenge by way of judicial review). Hence, determinations commonly recite the very same list of rights considerations to which the Commission has ‘had regard’. This fails to go the additional step of explaining why, specifically, in the particular circumstances of the parade/protest being considered, certain rights are or are not engaged. This lack of explanation contributes to the absence of any clear baseline or certainty in the decision-making process, and its consequences are perhaps most keenly felt in relation to the triggering, framing and structuring of dialogue.
1) The centrality of rights-based concerns (rather than ‘sensitivity’ or ‘contention’)
Every year, a number of parades are classified as ‘sensitive’ or ‘contentious’ by the Parades Commission, According to the Commission, there were 250 contentious parades in 2007/08; 221 in 2008/09; 212 in 2009/10; 195 in 2010/11; and 213 in 2011/12. Any reduction in ‘contention’/‘sensitivity’ is cited as an indicator of progress.
In an earlier report (for the Strategic Review of Parading), I noted that the parades deemed ‘sensitive’ by the Parades Commission do not always correlate with those that might commonly be associated with contention: ‘[N]ot every parade viewed as contentious, or even every parade against which a protest is notified, is subject to a Parades Commission determination. In 32 out of the 64 towns/cities analyzed, there was at least one notified parade deemed to be ‘contentious’ in 2006. In the other 32 towns/cities, no processions were flagged as being contentious. The latter areas included Antrim (38 processions notified), Ballymoney (52), Bangor (64), Carrickfergus (53), Coleraine (57), Larne (57), Lisburn (94), and even London/Derry (59).’
This raises important questions about how ‘contention’/‘sensitivity’ is determined, and whether the determining criteria are consistently applied. Questions also arise in relation to who should decide whether a parade/protest is ‘contentious’ or ‘sensitive’ (the secretariat of the ruling body, or the ruling body itself), and what consequences should follow from being classified as such.
A ‘rights-based approach’ provides a straightforward answer to these questions. The determinant of ‘sensitivity’ or ‘contention’ should be whether a procession or related protest raises any substantive rights-based concerns (and it may be preferable to drop the more speculative and subjective terms, ‘sensitive’ and ‘contentious’, altogether).
A ‘rights-based concern’ is any concern that demonstrates, on the basis of relevant and credible evidence:
- the potential engagement of other rights or freedoms (including the right to freedom from harassment and intimidation);
- the potential impact of a parade on other public interests listed in Article 11(2) European Convention on Human Rights (ECHR) – i.e. national security or public safety, the prevention of disorder or crime, or the protection of health or morals. [As such, ‘rights-based concerns’ would include concerns relating to breaches of any new or revised Code of Conduct. Furthermore, as suggested below, the criteria to be considered by any parading body should mirror these ‘legitimate aims’ in Article 11(2) ECHR].
2) Clear explanation of rights-based concerns early in the process
Where such concerns are communicated to the ruling body and are supported by relevant and credible evidence, the ruling body should make an initial assessment of their validity. In other words, the regulatory body must assess whether concerns relating to a particular procession actually engage specific rights – do they meet the established threshold for the specific rights in question and so raise a prima facie case – i.e. a case to be answered?
It is critical that the decision-making body fully explains the rights-based concerns raised so as to provide an opportunity for the relevant parties to take steps to address such concerns where it is within their power to do so.
3) Triggers for Engagement/Dialogue
There can be no doubt – as the Parades Commission has repeatedly emphasized (see here, for example, at para.12) – that ‘solutions to parading and related problems in Northern Ireland can be best achieved through meaningful and sustained dialogue.’ However, in order for non-voluntary dialogue to be meaningful (and indeed, for it to be said that a ‘rights-based approach’ is being pursued), there is a need to ensure that any requirement to engage in dialogue remains closely tied to the rights issues identified. In other words, non-voluntary dialogue should be focused on finding a resolution to the specific rights issues that have been (a) claimed by the potentially affected parties, and (b) validated by the ruling body as raising a case to answer.
A requirement that the interested parties engage in dialogue would therefore legitimately arise where an initial assessment has been made that valid rights-based concerns have been raised. Equally, however:
- A requirement to enter into dialogue might (but would not necessarily) follow from the fact that a related counter-protest had been notified. Under a rights-based approach, opposition to a parade should not of itself be the trigger for a requirement to enter into dialogue. The assessment of whether substantive rights are engaged sets a higher threshold for non-voluntary dialogue than mere opposition to a parade;
- Dialogue might not always be capable of meaningfully addressing the particular rights-based concerns raised (where, for example, the concerns relate to fears of disorder because of the potential involvement of third-parties). In such circumstances, the ruling body should exercise caution in viewing dialogue as a solution;
- In some limited situations where rights-based concerns are raised (such as where the potential impact on the rights of others is relatively slight/minor), it may be possible for a parade organiser to effectively address such concerns unilaterally – without entering into direct or mediated dialogue. Any such unilateral steps would have to be rigorously scrutinized and monitored so as to assess whether the organiser had demonstrated a genuine willingness to address any valid concerns raised.
If restrictions are ultimately deemed necessary, the determination of the ruling body must explain (1) precisely what rights are engaged in the specific situation (rather than merely setting out the rights potentially affected by parades in general), and (2) how the determination specifically addresses/mitigates this impact on the rights engaged.
This is not a blueprint for a legalistic process – it does not require affected individuals or communities to couch their concerns in the formal and legal language of rights. Rather, those who adjudicate (whether the Parades Commission or its successor) must implement a rights-based methodology from the outset of the decision-making process. If more fully and carefully explained, the rights-based parameters within which decisions must be taken will become increasingly understood over time. If properly integrated into the decision-making process, a ‘rights-based approach’ has the potential to validate the harms experienced by those affected by processions, to encourage concrete steps to address such harms by those who seek to parade, and to ensure a more transparent balancing of the different rights at stake (including the rights of those who wish to peacefully assemble).