Below is an extract from a document first published in 2015 as part of a bonfire consultation
Regulation and the Triple-Lock system leading to the eradication of traditional bonfires
The process around the statutory management of bonfires will eventually lead to attempts to impose a regulatory system, underpinned by legislation. This process will follow the same path of the method deployed by the Government to deal with parading. This approach- following the North Report- led to the formation of the Parades Commission for Northern Ireland, which was brought into effect by virtue of the Public Processions (NI) Act 1998.
Such a regulatory framework- as proposed by the DoE consultation on the management of bonfires titled Options To Develop The Better Management And Control Of Bonfires would create a triple-lock system and eventually lead to the criminalisation of bonfire builders and the eradication of bonfires as they are defined in a traditional sense.
Firstly groups would have to seek permission from the landowner- quite often this is a statutory body such as the Council or NIHE. It is entirely unrealistic to expect any statutory body would give permission for a bonfire on their land unless the stringent environmental, waste management and health and safety conditions had been met. It is virtually impossible for a traditional bonfire to meet such conditions without diluting the tradition beyond all recognition. This means that the first step within a regulatory process is already insurmountable.
Proceeding beyond this, the next stage would be to apply to the local council for a bonfire permit/licence. Whether there is even a reasonable chance of this being approved depends heavily upon the make-up of the council. This, in itself, could provide an insurmountable obstacle for bonfire groups within Nationalist dominated Council areas. Even if a Unionist dominated Council was minded to issue a licence, there would still be the need to ensure full compliance with all environmental, waste management and health and safety legislation. Once again this brings the applicant back to the first hurdle faced.
Given that step one and two in the process could only be logically passed by diluting the bonfire until it is unrecognisable, this means that to pass these stages would require the eradication of traditional bonfires.
The final stage in the triple-lock system is criminalisation. For bonfires that want to maintain a traditional and well established bonfire they will be open to criminalisation and being brought before the courts due to a failure to apply for a permit. This follows the same process used by the Parades Commission to attack the parading tradition within Northern Ireland.
The following pieces of legislation are those that could currently be used against bonfires and those building them. The relevant pieces of these sections of legislation are attached within the appendixes. It should be noted that this legislation is only that which is currently in effect. A regulatory system as proposed within the DoE consultation would require fresh legislation and thus further widen the possibilities for criminalisation.
Criminal Damage (NI) Order 1977
Environment (NI) Order 2002
Fire and Rescue Services (NI) Order 2006
Public Health (Ireland) Act 1878
Public Order (NI) Order 1987
Roads (NI) Order 1987
Waste and Contaminated Land (NI) Order 1997
Waste Management Licensing Regulations (NI) 2003
Much of the above legislation is wide-ranging, vague and open to interpretation. The use of the Public Order legislation in relation to bonfires is one tool of criminalising free speech and expression. There have been many high-profile cases in recent years within the United Kingdom where it could be argued that legislation designed to deal with terrorism or genuine incitement to hatred was instead used to chill offensive speech or cultural expression. It is only logical that such legislation will imminently be used against bonfires, given that by their very nature bonfires are a triumphant celebration of a victory for our religious faith, Protestantism. The celebration of such a victory in itself, of course, should not be criminalised.
Being cognisant of all of the above challenges faced by bonfires, it is therefore suggested that a voluntary code of principles should be adopted by local bonfire groups in order to maintain and educate the community on the traditional basis for bonfires and to ensure that the celebrations are as family friendly and welcoming as they can possibly be.