Simplicity could have been a virtue for the well-meaning PSNI…

Sometimes, in law as in life, keeping things simple is the best approach. Unfortunately for the Police Service of Northern Ireland (‘PSNI’), the Supreme Court found in DB v Chief Constable of PSNI [2017] UKSC 7 that the Force had made both the law and its life, in policing parades in Belfast, more complicated than it needed to be.

This appeal from a judicial review decision was all about the PSNI’s powers, and its understanding of its own powers, to police illegal parades in Belfast. Fittingly, the judgment was delivered by Lord Kerr, Northern Ireland’s former Lord Chief Justice, who (as Wikipedia reliably tells me) is an alumnus of Queen’s University, Belfast. The underlying facts will be familiar to anyone with a passing interest in the knock-about politics of Northern Ireland and they drew on those most pressing of issues there: parades and flags.

Factual Background

Until 3 December 2012, the Union flag flew daily over Belfast City Hall. However on that date the City Council took the highly contentious decision that the flag should only fly on designated days. As anyone could have predicted, that decision sparked a wave of protests throughout Northern Ireland which went on for months, including in Belfast.  As an aside, I remember being in Belfast at this time, seeing angry protestors and failing to convince a taxi driver to come into the City Centre and bring me to the airport.

The Belfast protests took on a pattern. Each week protestors would march from East Belfast to the City Hall. The route took them through an area of the city known as the Short Strand. Most residents in that area “are perceived to be nationalist” [12] (carefully chosen words from Lord Kerr) and as readers may have guessed, those taking part in the processions were loyalists. After assembling at the City Hall, the procession would then march back through the Short Strand, having picked up extra numbers in the City Centre. As sure as night follows day, substantial violence and disorder occurred as the parade travelled through the nationalist Short Strand. Sectarian abuse was directed at residents, homes were attacked, stones were thrown. The Appellant was a Short Strand resident whose home had come under attack.

The police initially decided to prevent the protests coming into the City Centre but changed that decision and tried to facilitate some kind of protest. Thereafter, the parades continued weekly for months without the police taking action to stop them.  They became known as the ‘flags parades’. The fundamental problem was that the parades had never been notified to the Parades Commission (more of that below) and the PSNI thought it had no power to stop these unnotified parades. The thrust of the judicial review claim was an attack on the PSNI’s failure to recognise and make use of legal powers available to it to prevent the parades from taking place.

The Scheme for Regulating Parades in Northern Ireland

For some residents of Northern Ireland parades are a ‘love/ hate’ business depending on who is doing the parading (I come from there, so feel qualified to say this). Over the years, parades and their routes have led to violence, stand-offs and community tensions. Readers might remember the high profile stand-offs in the mid-1990’s at Drumcree in Portadown, when the Orange Order wanted to march along the Catholic Garvaghy Road, but residents prevented this. Orangemen have now staged over 6000 days of protests at Drumcree. Before 1998, the police were responsible for deciding whether parades should be permitted to proceed. This was a ‘no-win’ situation as both sides of the religious divide accused the police of taking sides.

And so in 1996 the Government commissioned an independent review of contentious parades and marches in Northern Ireland. The report became known as the ‘North’ report and it led to the Public Processions (Northern Ireland) Act 1998 (the ‘1998 Act’) which created a new and independent body called the Parades Commission. The Commission itself did not actually have the power to prohibit a parade but it could impose conditions regulating its conduct (including the route). To achieve this, a statutory duty was placed on those proposing to organise a public procession to give advance notice of it to the police. Importantly for the present case, the 1998 Act also made it a criminal offence to organise or take part in a public procession which had not been notified.

Police Powers When there is an Unnotified Parade

None of the flags parades in Belfast were notified to the Parades Commission. The PSNI worked on the basis it had no specific power to ban a parade under the 1998 Act (only the Secretary of State could do that) and reached the wrong view that, in the absence of a ban from the Secretary of State or a decision from the Parades Commission, all it could do was rely on general public order policing powers [16]. The PSNI recognised that those organising the parades were committing a criminal offence under the 1998 Act but saw its role in such situations as collecting evidence of offences and referring that to the prosecuting authorities, while also employing public order and common law powers to keep the peace [17]. The police view was that parades could not be stopped solely because they were unnotified. This, as Lord Kerr found, was simply wrong.

The Short Strand representatives had pointed out that to the PSNI that they were facilitating illegal parades. But that did not prompt the PSNI to examine its legal powers to stop an unnotified parade. It considered itself hamstrung by trying to balance ECHR, arts 8 and 11, by the challenges of policing these kinds of parades, and by what it saw as ‘gaps’ in the 1998 Act. In fact, the PSNI had even considered bringing judicial review proceedings itself to get clarity on its powers under the 1998 Act.

Please see Part Two here.