Re Tweed's Application for Judicial Review

JurisdictionNorthern Ireland
CourtQueen's Bench Division (Northern Ireland)
Judgment Date2007
Neutral Citation[2007] NIQB 69
1
Neutral Citation no. [2007] NIQB 69 Ref:
WEAC5911
Judgment: approved by the Court for handing down Delivered:
12/09/2007
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
AN APPLICATION BY DAVID TWEED
FOR JUDICIAL REVIEW
________
WEATHERUP J
The application.
[1] This is an application for judicial review of the decisions of the Parades
Commission for Northern Ireland (“the Commission”) made on 5 and 9 April
2004 concerning a proposed public procession in Dunloy, Co Antrim on 11
April 2004 whereby the Parade Commission determined that certain
conditions be placed on the organiser and participants in the parade.
[2] The application includes a challenge to the compatibility of section
8(6)(c) of the Public Processions (Northern Ireland) Act 1998 with Articles 9,
10 and 11 of the European Convention on Human Rights. The Court issued a
notice of incompatibility under section 4 of the Human Rights Act 1998 and
pursuant to Order 121 Rule 2 of the Rules of the Supreme Court (Northern
Ireland) 1980 and the Secretary of State for Northern Ireland was joined as a
party to the proceedings. Mr Hanna QC and Mr Scoffield appeared for the
applicant, Mr McCloskey QC and Mr Maguire QC appeared for the
respondent, the Parades Commission, and Mr Shaw QC and Dr McGleenan
appeared for the Secretary of State.
The restrictions imposed on the proposed parade.
[3] The applicant is Worshipful Master of Dunloy Loyal Orange Lodge
496. On 9 March 2004 the applicant submitted a “Notice of Intention to
Organise a Public Procession” further to section 6 of the Public Processions
2
(Northern Ireland) Act 1998. The notice contained the details of the proposed
procession, namely that on Easter Sunday, 11 April 2004, Dunloy LoL 496
would assemble at 2.00 pm at Dunloy Orange Hall to parade to a religious
service at Dunloy Presbyterian Church between 2.30 pm and 3.30 pm. It was
estimated that 200-300 participants would parade with Dunloy accordion
band and would return to Dunloy Orange Hall at 4.15 pm. The parade
distance was some 315 yards. The purpose of the procession was stated to be
to “manifest our faith in God as revealed in the Holy Scripture on the
occasion of the day of celebration of the resurrection of the Lord Jesus Christ,
through peaceful means during a peaceful procession.”
[4] By its determination of the 5 April 2004 the Parades Commission
concluded that it should exercise its powers under section 8 of the 1998 Act and
that it was necessary to impose conditions on the organiser and participants in
the parade by limiting it to the vicinity of the Orange Hall, prohibiting the
parade from passing through the village of Dunloy and imposing other
restrictions. The applicant sought a review of the determination and on 9 April
2004 the Parades Commission declined to review its determination. The
Commission concluded its consideration of the issues as follows
“18. In imposing these conditions, the Commission
pursues the legitimate aims laid down in Article 10(2)
and 11(2) of the European Convention for the
Protection of Human Rights and Fundamental
Freedoms, of seeking to prevent disorder and to
protect the rights and freedoms of others. In this
respect, the Commission has carefully weighed all
representations and information received, including
the views and advice of local police.
19. In determining whether the conditions are
necessary in a democratic society and proportionate,
the Commission has regard inter alia to the criteria set
down in section 8(6) of the Public Processions
(Northern Ireland) Act 1998 and to its own Guidelines
made under section 5 of the Act and to which under
section 8(5) it shall have regard when making a
determination. The Commission genuinely believes
that the restrictions, which it proposes, are the most
appropriate in all the circumstances.
20. Having regard to the factors set out above the
Commission considers that the conditions it now
imposes are necessary and proportionate to the aim
pursued. The conditions are not such to affect
significantly the individual’s right to assemble. The
3
Commission believes that the conditions it imposes
strike a fair balance between the needs of the
community and the rights of the individual.”
The North Report.
[5] There have been long standing issues about parades in Northern
Ireland. In 1997 the report of the “Independent Review of Parades and
Marches” (“the North report”) was published. The report stated that it was
considered by many that the parades issue was a microcosm of the political
problems of Northern Ireland and that it was a complex issue that had great
capacity to polarise the community (paragraph 1.2). The parades and protest
issue quickly uncovered the widespread anger, deep divisions and political
anxieties lying just beneath the surface (paragraph 1.3). Public order
problems stemming from demonstrations, processions, parades and open air
public meetings were not a new phenomena and the issue was stated to have
been around for at least 150 years and probably a good deal longer. It was
stated that its current importance waxed and waned in relation to a number
of factors including the wider political situation, the relative self confidence of
the respective parts of the community at both national and local level and the
attitudes and actions of individuals and groups including the police
(paragraph 1.5).
[6] The North report stated seven fundamental principles that should form
the basis for the development of processes and procedures to address the
issue of conflict over parades (paragraph 11.19) –
(a) The right to peaceful free assembly should (subject to certain
qualifications) be protected.
(b) The exercise of that right brings with it certain responsibilities;
in particular, those seeking to exercise that right should take account of
the likely effect of doing so on their relationships with other partes of
the community and be prepared to temper their approach accordingly.
(c) All those involved should work towards resolution of
difficulties through local accommodation.
(d) In the exercise of their rights and responsibilities, those involved
must neither commit nor condone criminal acts or offensive behaviour.
(e) The legislation and its application must comply with the United
Kingdom’s obligations under international law, and provide no
encouragement for those who seek to promote disorder.

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