Banning parades - why semicolons matter
- 9 August 2013
- From the section Northern Ireland
Predictably, unionists and republicans have responded in completely different ways to Theresa Villiers' appeal for this weekend's planned parade in Castlederg commemorating dead IRA members to be called off.
The DUP's Arlene Foster welcomed the secretary of state's description of the march as "deeply insensitive", while Sinn Fein's Barry McElduff warned Ms Villiers to stay out of parading issues.
So no meeting of minds there. But whatever view you take of the County Tyrone parade, this controversy raises some interesting questions about what circumstances, if any, could see the secretary of state using her legal power to ban a march outright.
The relevant law is the 1998 Public Processions Act, the piece of legislation that was meant to remove secretaries of state from the marching maelstrom by creating the Parades Commission.
The Act handed the new quango the day to day job of placing restrictions on marches and counter protests. But under Section 11 the secretary of state retained a 'last resort' option of prohibiting a parade altogether.
This is the power unionists wanted Ms Villiers to wield in Castlederg.
When you look at the legal criteria she has to take into account, one of them, serious damage to community relations, looks like it could be invoked precisely with this weekend's parade in mind.
However, senior Northern Ireland Office sources say that as well as ticking this 'damage to community relations' box, Ms Villiers would have to fulfil three other criteria.
The law lists these as a threat of serious disorder and damage to property, serious disruption to the life of the community and "any undue demands which the procession may cause to be made on the police or military forces".
Although the Act doesn't say in plain English that all these boxes must be ticked, the NIO is adamant that is their legal advice.
This is where the importance of semicolons comes in.
With her solicitor's eye for detail Arlene Foster says she believes the punctuation of the relevant section supports Theresa Villiers' interpretation that her duty to "have regard" to four criteria means all or nothing.
Since 1998, the banning power has never been used, so the matter has never been tested in the courts.
Unionists may be reluctant to explore the option further, because if they re-read those criteria, such as "serious disorder" or "serious disruption" they might be concerned that once the banning power is invoked it could be used again, potentially against a disruptive Orange parade.
Nationalists might wonder whether having to bring thousands of extra officers over from England in "mutual aid" for the PSNI over the marching season is just part and parcel of normal policing. Or does it constitute - in the words of the 1998 Act - an "undue demand" on the police?
However it seems safe to say that if the secretary of state isn't going to ban a march that she herself has described as insensitive and hurtful, then she's unlikely to ever exercise her Section 11 powers.
So no matter how hot and heavy it gets, don't hold your breath for a repeat of Brian Faulkner's historic 1972 ban on all parades in Northern Ireland.
PS. Here's a question for all you punctuation experts. In my headline should the dash have been a semicolon?