Attorney General challenges the legality of the Parades Commission’s actions
The office of the Attorney General for Northern Ireland has written to the Parades Commission informing them they must consider the application put in by Dervock Young Defenders Flute Band.
The Commission has unlawfully rejected a number of applications for small parades. In a letter dated 11 June the Office of the Attorney General informed the Commission that neither the Coronavirus Regulations, nor the Executive’s Pathway to Recovery guidance provided a “lawful basis for the Commission to reject the nofitication”.
The Office of the Attorney General further reminded the Commission that only the Secretary of State has the power to ban a parade under Section 11 of the Public Processions Act 1998. It is clear therefore that the Commission are acting far beyond their lawful powers.
The Commission has no power under the enabling statute to reject an application. The powers of the Commission, as set out at Section 9A of the Public Processions Act 1998, extend only to imposing conditions upon proposed parades. The Commission cannot ‘ban’ a parade, much less ‘reject’ an application.
In correspondence with an MLA dated 10 June 2020 the Commission compounded this error of law by informing the relevant public representative that the application was rejected based on the Health Protection (Coronavirus Restrictions) Regulations (Northern Ireland) 2020 (‘the Regulations’). The Regulations bestow no powers on the Parades Commission and are completely silent on parading.
The Regulations at (6a) now permits gatherings of up to 10 persons. The Regulations in of themselves fail the Article 8 quality of law test due to being insufficiently clear, and therefore there is confusion as to whether a reasonable excuse under Regulation (5) is required in order to avail of the right to gather under Regulation (6a).
In any event the list of reasonable excuses at Regulation (5) is non-exhaustive and given that gathering in cultural celebration is a qualified Right under Article 11 ECHR and Article 21 ICCPR, then clearly this would qualify as a reasonable excuse.
The law necessitates that the Commission must consider and issue a determination in relation to the Band’s application which has not been withdrawn. A failure to issue a determination creates the situation whereby the band has discharged their duty under Section 6 of the Public Processions Act 1998 and as such failing any determination by the Commission they are entirely within their lawful rights to proceed with their procession.