As it sits down this week to consider the annual Drumcree march – scheduled to take place in Portadown on the day of the World Cup final, Sunday July 9th – the North’s Parades Commission is in deep trouble. Hemmed in by legal challenges, the British Government-appointed body faces angry hostility from both sides in the parades dispute.
In what was widely considered one of the more bizarre decisions by a Northern Secretary in recent times, two Portadown Orangemen were placed on the Commission by Peter Hain. Subsequently, one has resigned from the Orange Order, the other from the Commission itself. And Peter Hain’s reputation is even more tattered than at any other stage of his political career.
The story of the appointment of the two Orangemen is indeed bizarre. It reveals ministers and senior civil servants intervening in the appointments process, over a period of months, to produce an apparently deliberate sectarian imbalance within a body required by law to be representative of Northern society as a whole.
What, you might wonder, is the British Government up to at all?
The story has emerged from court proceedings, brought by Joe Duffy of the Garvaghy Road Residents Coalition, and aimed at striking down the appointment of the two Orangemen. Specifically, Duffy objected to the fact that the Northern Ireland Office had written last July to the Orange Order, the Apprentice Boys and the Royal Black Institution, asking them to encourage applications to join the Commission. What especially irked Duffy and the Garavaghy Coalition, was that Hain had not written in similar terms, or indeed in any terms, to equivalent groups from the Nationalist community.
The High Court in May backed Duffy and struck down the appointments of Don Mackay and David Burrows, both members of the “Drumcree” lodge, Portadown No. 1. By that stage, Mackay had, in any event, resigned from the Commission. Last week, heaping one embarrassment on top of another for Hain, David Burrows left the Order.
It was insisted in court, by counsel for the British state, that Hain hadn’t breached his legal duty to appoint the Commission solely on merit. Giving evidence on Hain’s behalf, Carol Moore, Associate Director of Policing and Security at the NIO, explained that a civil servant had added the names of representatives of the three Orders to a list of “political, community and church leaders” being invited to encourage applications. Hain, she explained, had not been asked to approve the list.
Moore testified that the civil servant concerned was pregnant, and on leave, and that the NIO could only speculate why she had included the Loyal Orders to the list.
Papers produced during the proceedings revealed that the official involved was Diana Turkington, a manager at the Security Policy and Operations Division of the NIO. In a memo to Hain, dated July 21st last year, Turkington had asked him to approve the text of the letter about the formation of the Parades Commission to “political, community and church leaders.” Attached to the memo was a document headed “Names and Address of Community Leaders.” This identified 11 individuals – the leaders of the North’s four main parties, the leaders of the four main churches and the leaders of the three Loyal Orders.
Hain, on this version of the evidence, had signed the letter without examining the attached document, and without knowing or thinking to ask to whom it was proposed that the letter be sent.
However, other evidence cast a strange light on this claim. Under cross-examination, Moore testified that then Security Minister Shaun Woodward had earlier met with leaders of the Loyal Orders to encourage them “to consider putting people forward for the appointment competition.” In effect, in other words, there had been a campaign to get the Orange Order involved. Turkington had attended this meeting – in view of which, Moore’s puzzlement as to why Turkington had put the Loyal Orders in the list of people who would get the letter, is itself puzzling.
It is important to understand the rules governing the composition of the Parades Commission.
Under the 1998 Public Processions (NI) Act, the Commission must comprise a chairman, and no more than six other members chosen by the Secretary of State “to secure that as far as is practicable the membership of the Commission is representative of the community in Northern Ireland.” The appointments also have to conform to anti-discrimination law in the North and to Whitehall guidelines covering conflicts of interests.
A total of 94 people applied for the £19,000 a year part-time posts. A three-person panel was appointed by Hain to sift the applications and produce a suitable short-list. The panel was chaired by Moore and also included Mark McGuckin, head of finance at the NI Prison Service, and Anthony McDowell, an independent assessor nominated by the Office for the Commissioner of Public Appointments (OCPA) in Whitehall. The panel was legally bound to operate independently of political pressures. Ministers were legally bound not to attempt to exert political pressure.
The panel began its work in the immediate aftermath of the worst violence Belfast had seen for years, sparked by Loyalist anger at the banning of the Orange Order’s Whiterock parade, along the mainly Nationalist Springfield Road.
In early October, Moore’s panel selected 24 candidates for interview. The same panel conducted the interviews in late October and early November, and recommended 17 candidates to Hain as suitable for appointment, from which he would make his final selection. On November 30th, Hain announced the names of the six he had chosen.
On his application form, Mackay had disclosed membership of the Democratic Unionist Party, the Royal Black Institution and Portadown Loyal Orange Lodge No. 1. Burrows reported membership of the same Lodge.
On the assessment forms, in what many may consider a very strange conclusion, in relation to Mackay and Burrows the panel answered “No” to the question, “Any area of real/perceived conflict of interest?” In the case of Mackay, the panel added: “No conflict of interest considered. He declared his membership of the DUP and of loyal orders (orange and black). Would be keen to ensure these perspectives were reflected on Parades Commission.”
Moore told the High Court that, following the decision to appoint Burrows and Mackay, Hain, Woodward and officials had discussed “how best to give effect to the obligation to ensure that the new Commission would be representative of the community in Northern Ireland as well as the issue of whether any of the persons to be appointed would find themselves in a conflict of interest situation.” Hain, she continued, had instructed a senior official to ask each of the two men “to confirm that, if appointed, he would while on the Commission act objectively and work as part of a corporate team. Each confirmed that he would do so. This was reported to the Secretary of State before the appointments were made.”

The High Court was not convinced of the bona fides of this process. Finding for Duffy, Judge Declan Morgan commented: “The decision of the panel members that no perceived conflict of interest issues arose in relation to these applications is in my view inexplicable. It causes one to doubt whether the panel members properly understood the nature of the task on which they were engaged.”
Morgan ruled that the requirement that the Commission be as representative of Northern Ireland society as possible applied “not just to the decision-making of the Secretary of State when he is presented with the appointable pool but also to the process by which the appointable pool is formed.”
In the Appeal Court in June, lawyers for Hain argued that this ruling was out of kilter with the wording of the Public Processions Act, which lays the duty to achieve a representative body only on the Secretary of State in choosing the commissioners – “the Secretary of State shall so exercise his powers...” – not on the panel involved in selecting the “appointable pool.”
The Appeal Court rejected Hain’s argument. But, in a majority judgment that was bound to provoke further controversy, went on to rule that the reference in the legislation to a “Commission...representative of the community” meant that the Commission should be balanced between the Protestant and Catholic sections of Northern society, not that there must be a symmetry between the affiliations of individual members: the Orange Order didn’t have to be balanced by the Garvaghy Road or other residents’ groups. On this basis, the Appeal Court overturned the High Court decision and declared that the Commission was lawfully constituted.
This did not mean, the Lord Chief Justice, Sir Brian Kerr added, that it had been wise not to write to residents’ groups as well as to the Loyal Orders, but only that this had not been legally necessary.
Significantly, the court did not rule that the Commission appointed by Hain was a balanced body. Nor did it rule that no conflict of interest existed. It decided only that Hain and his officials had met their legal responsibilities by taking these factors into account. The appointments might be wise or unwise: the role of the courts was to determine whether they were lawful, and the Appeal Court said they were.
Unhappily for Peter Hain, Kerr endorsed Morgan’s assessment of the panel’s belief that neither of the Portadown men had a conflict of interest as “inexplicable.” The conflict was “both inescapable and obvious,” he said. Nevertheless, he continued, Hain had been aware of the conflict and had taken steps to address it in seeking assurances from the two men. He had to assume that Hain had made the appointments with his eyes open. “I cannot but suppose that he realised if these gentlemen were appointed, there would inevitably be occasions when the question of whether they should participate in the Commission’s deliberations would arise.”
Kerr foresaw “considerable difficulties in Burrows taking part in many of the critical determinations of the Commission.” He “accepted the potential for judicial review challenges to determinations...on the basis that Mr. Burrows should not have been party to them.” As a result of Burrow’s membership of the Orange Order, the work of the Commission might be “bedevilled with difficulty.” He quoted OCPA guidelines suggesting that Mr. Burrows should “step out of meetings” where matters, in which he had an interest, were being discussed.
Burrows has now agreed not to take part in discussions of marches involving Portadown lodges. Whether he can lawfully participate in discussion of any Orange marches may be the subject of future court challenges.
Meanwhile, Joe Duffy intends to pursue his objection to the Commission as a whole to the House of Lords.
Duffy believes that, whatever the legal niceties – and indeed whatever the motivation might have been – the political truth is already plain: that Peter Hain presided over a public appointments procedure in such a way as to ensure a particular sectarian outcome, and that while he may have stayed within the law, he strayed far outside what would normally be acceptable from a Government Minister.
As the facts become public knowledge, it is unlikely that many – if any – objective observers will disagree with him.