Raining on parades

In Northern Ireland the word “Drumcree” summons bitter memories from the Troubles. A parish on the outskirts of Portadown in County Armagh, it became the focus for one of Northern Ireland’s most acrimonious disputes. Every July, on the Sunday before the Twelfth, local members of the Orange Order process there for a service, a tradition started in 1807. The controversy concerned their return journey along the now predominantly Catholic and nationalist Garvaghy Road, where residents vehemently oppose the parade.

In July 1996, the Royal Ulster Constabulary initially prevented the parade from marching along the road. Widespread loyalist disorder followed. The police reversed their decision and forced the parade through, provoking nationalist fury. The confrontation exposed the difficulty of asking the police both to decide whether a contested parade should proceed and to enforce that decision under political and public pressure.

In response, Secretary of State for Northern Ireland Sir Patrick Mayhew commissioned an independent review chaired by Oxford’s Vice-chancellor, Peter North QC, and including Presbyterian minister John Dunlop and Catholic priest Oliver Crilly. The subsequent report recommended a separate body to encourage negotiated agreements and impose conditions on disputed processions when agreement proved impossible. The resulting Parades Commission was established in 1997 and acquired statutory powers the following year. Its purpose is to separate adjudication from policing: the Commission determines the terms; the police enforce them.

The Public Processions (Northern Ireland) Act 1998 broadened the criteria for parading decisions. The Commission must weigh potential disorder, disruption to everyday life, the impact on community relations, previous failures to comply with its Code of Conduct, and the desirability of preserving traditional routes. Neither a parade’s antiquity nor the strength of opposition to it should automatically determine the outcome. 

Six Commissioners are appointed by the Northern Ireland Secretary, and the legislation requires a membership representative — as far as practicable — of Northern Ireland’s communities. That requirement does not mean commissioners act as delegates for each “side”. The institution and its authority rely on commissioners capable of assessing relevant evidence impartially, rather than representing communal bargaining.

Its remit extends beyond Orange marches to public processions generally. Funerals and (for some reason) the Salvation Army are exempt. Organisers must give 28 days’ notice; associated protests require 14, with exceptions where that is not reasonably practicable. Conditions can be set which restrict routes, timing, music, and numbers. Crucially, the Commission cannot prohibit a procession outright. That power belongs to the Secretary of State. 

The underlying principle is that peaceful assembly and expression are fundamental rights, enjoyed equally, but subject to proportionate restrictions protecting others. Residents cannot acquire ownership of public roads through religious or political identity. Marchers, equally, cannot insist that tradition overrides every consideration of disruption or intimidation.

Reasonable principles, but acceptance has remained elusive. The Orange Order long refused to engage with the Commission; nationalist groups have also challenged its composition and decisions. In 1998, the Commission banned the procession along the Garvaghy Road. In response, 2,000 soldiers and police built steel, concrete, and barbed-wire barricades along a 14-foot trench to seal off the nationalist area. There were 24 shootings, 45 bombings, and 140 houses were damaged. In 2013, a republican parade in Castlederg commemorating two IRA members killed when the bombs they were transporting exploded provoked unionist objections. Secretary of State Theresa Villiers urged Sinn Féin to cancel it voluntarily; they told her to stay out of it, and the procession went ahead peacefully. 

The resurrection of the Drumcree dispute this year was avoidable and is inexcusable

However, there is a record of progress. In 2016, the Commission permitted a restricted Orange parade past nationalist Ardoyne in North Belfast (almost as incendiary as Drumcree) following an agreement between Orange lodges and residents. This demonstrated that independent adjudication and local negotiation could work. Last year, only five per cent of nearly 4,000 parades were deemed contentious.

The resurrection of the Drumcree dispute this year was avoidable and is inexcusable. It was sparked by a procedural oversight. Not all six commissioners approved the final version of its decision on the annual Orange Order application to march along the Garvaghy Road. Consequently, local Orange lodges appealed it in the High Court, where the Judge stated he had no hesitation in quashing the decision.

The Orange lodges then submitted a fresh application. The Commission permitted a restricted procession along the Garvaghy Road on the basis of Police Service of Northern Ireland (PSNI) advice there was no perceived threat of disorder or damage to property. It was to begin at 8am and disperse by 9.30am. Local and wider-nationalist reaction was explosive (not literally, thankfully). Protesters blocked the route, and police prevented the procession from proceeding. As the stand-off continued, it looked like the Northern Ireland Assembly might collapse.

Secretary of State Chris Bryant has now waded in and banned the parade, meaning the Orange Order is once again back in court challenging the decision. This has left the Commission looking powerless, and compliance with its decisions appear worthless. Bryant expressly praised the Orange lodges’ “peaceful and law-abiding approach”, yet they were prevented from exercising the permission they had obtained. Nationalist opposition secured its objective through a protest (not submitted to the Commission for approval) which the PSNI judged could not “safely” be cleared. 

In the zero-sum politics of Northern Ireland, the Orange Order lost by accepting the restrictions and pursuing legal remedies; its opponents won by obstructing the procession and threatening disorder. That creates a dangerous precedent for future disputes. If a ruling can be defeated by sufficiently determined popular opposition, the Commission’s authority counts for nothing.

Given that the débâcle is due to Parades Commission incompetence, Bryant has appointed High Court Judge Sir John O’Hara KC to review the Commission. He will examine its procedures, governance, engagement, and mediation. However, the statutory framework, commissioner appointments, and the merits of individual determinations are expressly excluded from his remit. The review can establish how the Commission issued a defective decision — it cannot determine whether the division of responsibility between Commission, police, and ministers remains adequate when a lawful determination becomes impossible to implement. 

This is insufficient. Replacing the Parades Commission has long been advocated, but proved problematic. Joint DUP–Sinn Féin proposals following the 2010 Hillsborough agreement failed after the Orange Order rejected them. Mr Justice O’Hara will no doubt tidy the Commission’s procedures. However, his terms of reference exclude the harder question: what is a lawful determination worth if it cannot be enforced? Until ministers, police, and the Commission settle who ultimately decides – and who answers for the consequences – each will keep pointing fingers at the others. 

The Commission was established to spare the police from adjudicating competing communal claims. Yet, its decisions depend upon PSNI assessments, while preserving police powers to prevent breaches of the peace, and allowing HM Government to intervene. There are sound reasons for those safeguards, but Drumcree 2.0 has exposed how the allocation of responsibility can become a circle of blame. Each institution can defend its particular decision while confidence in the whole arrangement deteriorates. 

The Parades Commission was created so that parading disputes would no longer be decided by the threat of disorder. Now, by allowing that threat to defeat its rulings, this Government has brought back the very problem the Commission was established to solve.