Posted By: May 01, 2014

“Shortly afterwards, the UVF was conveniently in charge and meeting with the PSNI from east Belfast to Wales. The human rights and community policing philosophies appeared to have been retrofitted onto acquiescence with a criminal gang.”


Newton Emerson. Irish News  Belfast). Thursday, May 1, 2014.
CHIEF constable Matt Baggott is to appeal a High Court ruling against police handling of last year’s flag protests in east Belfast.
Mr Justice Seamus Treacy allowed a judicial review brought by a short strand resident who claimed he had been pinned in his home for weeks by illegal parades permitted by the PSNI. “This judgment does not appear to me to take account of the sheer scale of the protests,” Mr Baggott said. “I am concerned that this judgment may constrain our operational flexibility in the future and create an expectation that police will always be able to stop protests or arrest people at the time, irrespective of the individual circumstances.”
The chief constable’s concern would be warranted if this was simply a case of a judge wading into an operational policing decision. Such decisions, especially in fluid and dangerous situations, are clearly reserved in law to the PSNI. However, the PSNI did not justify its approach to the flag protests in terms of operational constraints.
It justified its approach via an increasingly eccentric interpretation of the human rights act, in effect wading into the High Court’s territory and warranting Justice Treacy’s rebuke. To put the legal dispute in classic Northern Ireland fashion, the PSNI started it.
The human rights eccentricity began with the first flag protests in December 2012. “We must make sure that people’s rights to peaceful protest are upheld,” the chief constable insisted.
In fact, there is no right to protest in the human rights act or in any international rights charter. This right is inferred from the rights to free expression and free assembly, both heavily restricted by the human rights act, which requires them to be exercised within the law and with respect for the rights and freedoms of others. As the flag protesters were illegally blocking roads they had forfeited their ‘right to protest’ from the outset.
Legal commentators immediately noted that the PSNI was paying no heed to the rights of others, specifically the right of those affected by the disruption to respect for family and private life. This is the exact point on which the Short Strand resident has now successfully sought leave for a judicial review.
Once the PSNI had made a human rights fetish out of facilitating protest, the rot spread rapidly. In the two months from December 2012, flag protests at Belfast City Hall were accompanied by riotous marches back into east Belfast. Because these were not notified to the Parades Commission they broke the Public Processions act, once again forfeiting any ‘right to protest’.
Incredibly, the PSNI responded by claiming unnotified parades were not really illegal and requesting “clarification” against human rights law, dangerously undermining the commission and the entire hard-won basis for managing parades.
Yet there was never any doubt that unnotified parades are illegal. As Justice Treacy observed: “this issue was not legally complex, it was straightforward” and the PSNI’s human rights argument was “simply wrong”.
Mr Baggott extended that argument into even more dangerous territory as the trouble worsened by invoking “the right to life”, implying that any risk of lethal violence gave the PSNI an overriding human rights case to temporarily disregard other breaches of rights and laws. However, even the right to life is qualified “for the purposes of quelling a riot”, because the human rights act understands that all rights ultimately rest on the rule of law.
The Policing Board hired the chief constable in 2009 on the basis of his human rights and community policing philosophies. Mr Baggott raised the latter in response to the judge’s ruling, saying that having to stop protests and make arrests would “undermine our attempts to work with communities”.
What ‘working with communities’ seemed to mean during the flag protests, according to Justice Treacy, was “unjustified enforcement inertia” culminating in the eventual arrest of select “high profile organisers”. Shortly afterwards,  the UVF was conveniently in charge and meeting with the PSNI from east Belfast to Wales. The human rights and community policing philosophies appeared to have been retrofitted onto acquiescence with a criminal gang.
The chief constable has long been at pains to point out that all the problems of the past year require a party political consensus on flags and parading. This is correct in the sense of a general platitude but it unwittingly raises one crucial particular.
Political division is the reason the Policing Board has not held the chief constable properly to account. It is also the reason why any replacement it hires will be better only by accident.