|
|
Short Summary of
In re Duffy
[2008] UKHL 4
Facts:
A judicial review brought by Mr Duffy challenging the appointment by the Secretary of State for Northern Ireland on 30 November 2005 of two new members of the Parades Commission for Northern Ireland.
Mr Duffy, a member of the Garvaghy Road Residents’ Coalition, based his challenge on the suitability of Mr David Burrows and Mr Donald Mackay (who resigned from the Commission prior to the verdict in the first instance) as members of the Commission. His complaint was firstly that the Secretary of State had actively encouraged members of the Orange Orders to apply, and had failed to balance this by encouraging applications from groups such as the Garvaghy Road Residents’ Coalition, and secondly that the Secretary of State had failed to consider the potential for a conflict of interest to arise in these appointments. Both Mr Burrows and Mr Mackay remained active members of their Lodges subsequent to their appointment.
Verdicts:
Lord Bingham noted that the “composition of the proposed commission was accepted to be of critical importance to its success” (para.5). Furthermore he noted that both the Court of Appeal and Morgan J in first instance agreed that it was “inexplicable” for the appointing panel to declare that no conflict of interest arose. He held that “[n]o reasonable person, knowing of the two appointees’ background and activities, could have supposed that either would bring an objective or impartial judgment to bear on problems raised by the parade in Portadown and similar parades elsewhere” (para.27). He emphasised this point declaring that “these appointees could not plausibly and lawfully act as mediators or decision-makers in relation in Garvaghy Road and similar parades elsewhere” (para.27). He therefore concludes that the decision regarding these appointees was so unreasonable that a reasonable Secretary of State could not have arrived at this decision if properly directing himself in law (para.28).
Lord Rodger and Baroness Hale concurred, Lord Rodger describing an “inevitable conflict of interest” (para.31) whilst Baroness Hale declared that the appointees concerned could “never have been perceived as impartial adjudicators or mediators by the public at large” (para.33).
Lord Carswell understood that that “[i]t may often be of importance to encourage under-represented sections of the community to apply for appointment to various bodies” he did however note that this should not be at the cost of a loss of impartiality (para.48). He concluded regarding the targeting of the Loyal orders that “as a matter of legality” he was “not convinced that such targeting was in itself an unlawful act capable of being judicially reviewed” (para.48). However, he concurred with the views of Lord Bingham with regards to the reasonableness of appointing individuals without addressing the question of perceived bias (para.53). He therefore agreed with the conclusion that “a reasonable Secretary of State could not properly have reached a decision to appoint them as members of the Commission (para.53). Lord Brown also concurred with Lord Bingham, his reasoning, however, echoed more closely that of Lord Carswell.
The judge’s decision in first instance was reinstated. The decision to appoint was quashed.
The full text of the judgment can be found at:
http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd080130/duffy-1.htm
Home
For Peace Justice & Human Rights
