Judgment reserved in legal bid to challenge Drumcree parade decision

Judgment has been reserved in a legal challenge against a controversial decision which legally permits the Orange Order to march along the Garvaghy Road in Portadown.Earlier, the Court of Appeal in Belfast heard that Northern Ireland’s Parades Commission failed to “properly weigh” what police told it about the potential for disorder if the Drumcree parade was given the go-ahead.Lady Chief Justice Dame Siobhan Keegan said she hopes the court will deliver judgment in a “swift enough timeframe”.A barrister for residents of the predominantly nationalist Garvaghy Road told the court the commissioners had reached an “irrational conclusion” in permitting the Orange Order parade along the Troubles flashpoint for the first time in 28 years.Denise Kiley KC made the argument at the start of the residents’ fresh court challenge against the commission’s decision.The residents say the Parades Commission adjudication body “materially misdirected itself” on the police assessment of the potential for disorder around the event, and that the commission had not given an “accurate representation of the evidence” received from the PSNI in its decision.However, Tony McGleenan KC, representing the commission, said the suggestion it had made a legal error “doesn’t bear scrutiny”.The residents are challenging the decision of a High Court judge – made in the early hours of September 27 – to refuse leave to apply for a judicial review of the commission’s determination to permit the parade down the Garvaghy Road later that day.Orangemen have attempted to commence their parade several times in the nine days since, but have been halted by police amid concerns of disorder if it proceeded down the road, which has witnessed a series of mass demonstrations and protest rallies.Members of the Portadown District of the Orange Order remain at Drumcree Church, demanding to be allowed to begin their parade.Protesters have maintained a presence at the side of the road, insisting that what they see as a “triumphalist” parade should not be allowed, citing the violent history of the march in the 1990s.Read MoreMonday’s hearing was the latest challenge to the parade, which was given the go-ahead for the first time in almost 30 years after three separate legal hearings over 13 hours late on September 26 and into the early hours of September 27 – the morning the parade was due to begin.The hearing of the residents’ new challenge had originally been listed for Friday but was postponed until Monday to allow for crunch talks facilitated by Northern Ireland Secretary Sir Chris Bryant, who had hoped to find a solution.Sir Chris Bryant speaks to the media outside Hillsborough Castle (Liam McBurney/PA)PA WireThe negotiations ended without agreement on Thursday, with both sides having discussed options including mediation, the possibility for the right to march to be respected but not exercised, and a “one-and-done” final march with no further applications.Three judges – Dame Siobhan, Lady Justice McBride and Lord Justice Colton – heard the latest legal challenge.At the start of the hearing, Ms Kiley told the Court of Appeal judges it was in the public interest to ensure the Parades Commission came to correct decisions on parading applicationsOpening the case, she said the question of whether the determination remained live – given the date of the originally permitted parade has passed – was unresolved. However, she said the residents were not currently seeking a court determination on that point.Outlining the basis of the appeal court challenge, she added: “There is a public interest in ensuring that the Parades Commission – a body charged with making these significant decisions on contentious parading issues – comes to correct and lawful determinations.”Ms Kiley said the commission’s assertion that there was no specific information from police about a risk of violence did not fully reflect what a senior commander had told it.Members of the public outside Laganside Courts in Belfast (Mark Marlow/PA).PA WireThe barrister said PSNI Assistant Chief Constable Ryan Henderson told the commission that while police had no clear intelligence about any planned disorder he had also stressed that officers were dealing with an “unclear picture” and that, as a result, police were planning for various scenarios, from a peaceful passing of the parade to an outbreak of violent disorder.Ms Kiley said the commission’s subsequent conclusion that there was no specific information about the prospect of disorder was “only part of the picture”.“It doesn’t go on to record the uncertainty and the fact that the position remained unclear,” she said.“It is clear that what the police were telling the commission was, ‘This is unclear, it’s uncertain and we are preparing for all eventualities’.”She said the commissioners “didn’t properly understand the police assessment” and this impacted their decision to permit the parade.Ms Kiley said the commission had therefore reached an “irrational conclusion”.She described the Drumcree parade as “one of the most polarising parades in the history of Northern Ireland”.The barrister said the commission had a duty to promote an understanding of parading but had failed to explain why it had reached its determination to permit the parade, particularly as it was the first time in 28 years.Orangemen make their way from Drumcree Church as police form a barricade to prevent them entering the Garvaghy Road (Brian Lawless/PA)PA Wire“There is a duty to explain decisions,” she said.“And where a decision has consistently been made on one basis for 28 years then a change cries out for explanation.”Ms Kiley also argued that the commission had failed to take into account the potential for the parade to trigger “wider disorder” across Northern Ireland.Mr McGleenan told the Court of Appeal that the determination to permit a limited parade down the Garvaghy Road should be read in its entirety.“It is a detailed 31-paragraph written analysis,” he said.“And it has to be read in its totality. And there is a grave danger of cherry-picking sentences here and sentences there to suggest a wrong legal test or a misdirection, or that something hasn’t actually been considered.”Mr McGleenan said police had given an assurance to the commissioners that they had the capacity to deal with any disorder that may have been triggered if a parade was permitted.He insisted the commission was “fully briefed” by police on the uncertainty around what might happen.“They met with the PSNI on the 23rd (September) at a lengthy meeting with them. They were read intelligence briefings. They were briefed about the police resource and their ability to contain any disorder or reaction that occurred. So they have all of that.”A community event in support of the Garvaghy Road residents (Mark Marlow/PA)PA WireMr McGleenan said the residents were attempting to “make some forensic play” in asserting a difference between what the police told the commission and what the commissioners then recorded as the police assessment.He said “one accurately reflects the other”.The barrister said legal jurisprudence placed a positive obligation on facilitating the right of assembly.Mr McGleenan described the determination as an “expert judgment by the body set up by Parliament to make these evaluations”.He said legal precedent made clear that considerable “deference” should be afforded to statutory decision-making bodies.On the residents’ case that the commission should have explained why it was changing its determination after almost 30 years of prohibiting the parade, Mr McGleenan insisted the commissioners had explained why.He said what was proposed by the Orange lodge was very different to what had been applied for before, including numbers, time of year and symbols and emblems displayed.Mr McGleenan added: “The folk memory of what happened in the 1990s relates to something that’s categorically different.”After lunch, Mr McGleenan turned to the argument that the commission’s determination had been irrational.He told the court: “The fact that people disagree with the outcome of the decision doesn’t make it irrational.”At the end of his submissions, the barrister was asked by Dame Siobhan if there had been any approaches to the Parades Commission to review its decision.Mr McGleenan said there had been a “deluge of correspondence”.He said there had been a request to review the determination, but not from the appellant.The court then heard briefly from Richard McConkey KC, who represents a member of the Orange Order from Portadown.He said: “Our position is obviously that the appeal should be dismissed.”Dame Siobhan Keegan, Lady Chief Justice of Northern Ireland (Liam McBurney/PA)PA WireAt the end of submissions, Dame Siobhan said: “We’ve obviously listened carefully to all that’s been said.“We will have to think about the submissions, both in writing and orally.“So, we will reserve our decision.“We’ll hopefully be able to give that within a swift enough timeframe, but can’t give you a date right now.”Residents around the Garvaghy Road have been staging protests against the decision to permit a parade of up to 35 Orangemen down the route.Due to the scale of the gatherings in the road, the PSNI has refused to allow the parade to proceed amid concerns of disorder.