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In re Duffy (FC) (Appellant) (Northern Ireland)
Appellant: John Joseph Duffy was represented by Barry Macdonald QC and Karen Quinlivan;
Respondent: Secretary of State for Northern Ireland was represented by Bernard McCloskey QC and Paul Maguire.
Appellate Committee: Lords Bingham, Rodger, Baroness Hale, Lords Carswell and Brown
Heard in the House of Lords 26-27th November 2007
Issue: Whether the appointment, by the Secretary of State for Northern Ireland of two prominent members of loyalist organisations to the Parades Commission and the process leading up to such appointments, were lawful.
Previous proceedings:
11 May 2006 High Court (NI) Order for Discovery of various documents relating to the appointment and procedure leading up to the appointments made (Morgan J);
19 May 2006 High Court (NI) Decision to appoint Mr Burrows as a member of the Parades Commission quashed (Morgan J);
19 June 2006 Court of Appeal (NI) Appeal of the Secretary of State against Morgan J’s order allowed; cross appeal by Mr Duffy dismissed; leave to appeal refused;
07 January 2007: Leave to appeal to House of Lords granted.
Before the Law Lords
Morning, 26th November 2007
Barry Macdonald QC (henceforth Macdonald) opened the proceedings by briefly outlining the significance of the Parades Commission, namely that it performed a unique function and was unlike any other similar institution, especially as it dealt only with one issue. He went on to say that 7% of all notified parades were considered contentious and provided a chart from the Parades Commission Annual Report (2005-06) to illustrate. This led to a discussion between the Law Lords about the determination process, in particular the fact that marchers applied every week to be able to march from the church at Drumcree, the most contentious route. Permission has not been granted for this Parade to take place. However, the relevant Orange Lodge continue to apply on a weekly basis. 92% of the contentious parades were loyalist, and 7% were nationalist; the reason these former parades were contentious were because they concerned loyalist groups going through Catholic areas. Macdonald pointed out that the Parades Commission dealt with the same groups and same issue every time; thus in the 200 cases the Commission considers per annum, the applicant and the area/route under consideration are the same. Macdonald briefly outlined the conflict of interest issue namely where appointees are opposed to the principles and philosophy of the Parades Commission and the Public Processions Act (NI) 1998. He cited the example that appointing Orangemen to the Commission was similar to appointing white supremacists to the Equality Commission; the fact that the Parades Commission was an adjudicative body enhanced these problems.
Carswell LJ said that the sifting panel took a favourable view of the impartiality of both the men, as individuals, claiming that regardless of their connections to an Orange Lodge, they would act impartially. And on the principle that just because the Orange Lodge had made their views clear on the Parades Commission, did not mean that the two candidates felt the same way. Macdonald said that No 1 Orange Lodge (Burrow’s lodge) had made statements of policy about the Parades Commission and he had publicly stated his opposition to the Parades Commission and the legislation which created the Commission; this was significant when considering issues of perceived bias and actual bias. Macdonald moved to discuss the North Commission Report which had examined the issue of parades in Northern Ireland.[1] The report made it clear that the parades issue was a microcosm of Northern Ireland and its deeply fractured society. It was clear that there were only two factions involved in the dispute, the Orange Order and nationalist residents groups. Chapter 12 of the report set out a number of suggestions for the creation of a body which could remedy some of the issues. This body would have to take its composition very seriously, where the backgrounds of Commissioners would be critical to the success of such a body and the ability to gain widespread confidence. Those on the body would need to be balanced and include a geographic and gender spread. Macdonald summarising the report, concluded that the members to the Commission should be impartial and Independent. In an affidavit from the Secretary of State, he agreed with the conclusions of the North Report and believed he had acted within those principles – his aim was to ensure that the Parades Commission was balanced and independent. Macdonald then moved onto the Public Processions Act where he explored the duties of the Parades Commission as set out in the legislation. He focused on the fact that the Parades Commission’s setting of routes had no right of appeal except by the Chief Constable of the PSNI. The only remedy available to the individual under the Act was a Judicial Review but the court was limited in what it could decide. Hale LJ checked that the Secretary of State had the over-riding power but could not impose conditions on a march. Macdonald said this was correct but noted that a Secretary of State not used this power.
This led to a discussion about the appointment process. Hale LJ asked if the appointment process was similar to that in judicial appointments. Macdonald said it was and was also similar to that for the Northern Ireland Human Rights Commission. Macdonald then explored s.76 of the Northern Ireland Act (1998)[2] which prohibits a public authority from discriminating against an individual on the basis of religious belief or political opinion.
Macdonald then looked at the language used in the advertisement placed by the Secretary of State for new Commission members. For instance, “membership requires a range of skills” and individuals will be “appointed on merit”. The advertisement also made reference to paragraph 2.3 of Schedule 1 of the Public Processions Act (Northern Ireland) (1998)[3] which stated that the Commission must be representative of Northern Ireland.
Macdonald then discussed the Guidelines set out by the Office of the Commissioner of Public Administration (OPCA). An affidavit from Ms Moore[4] indicated that the recruitment process followed the OPCA guidelines. Macdonald then examined the guidelines in more detail including principles of selection on merit versus the need for a balance of skills and background; the principles of diversity and equal opportunity; the need for possible conflict of interests to be declared by candidates and explored by the appointing department.
It emerged, according to Macdonald, during one of the hearings in the lower court, that the Secretary of State had met with the Orange Lodges and encouraged them to apply for to the Parades Commission; this was followed up with a personal letter from the Minister which encouraged the Orange Lodges to engage with the Parades Commission and apply for the role of Commissioners. The letter, which said that Orange Lodge members would be eligible to apply and looked at sympathetically, was sent only to the Orange Lodges. This led Rodger LJ to ask if there was an over-arching resident’s coalition to whom a similar letter may have been sent. Macdonald said that there was not; the groups had grown up organically and each group existed independently, though there may be informal networks. Rodger LJ then asked if the Secretary of State had written to Gerry Adams, then surely he would have known the relevant people and encouraged them to apply. Macdonald said that two issues arose from the role of the letters. Firstly, the letters served as a notification of the process that the Parades Commission were seeking new Commissioners. Secondly, private meetings and correspondence with the Orange Lodges in which it was clear that they were encouraged to apply. It was assumed by nationalists, as outlined in Brendan MacCionnaith’s affidavit, that nationalist residents were ineligible to apply for the post. His affidavit refers to the fact that he was not encouraged to apply, he would have considered himself ineligible to apply and perceived himself as biased. This led Brown LJ to ask if this was the key issue – the fact that he would have excluded himself because he was involved in contentious parades. Macdonald clarified the issue and citing John Duffy’s affidavit, said that that the Garvaghy Residents Coalition assumed they were ineligible. However, had a letter been received encouraging them to apply then they would have assumed they could apply. As such, Macdonald said, the process was discriminatory.
Some Orange Lodge members did apply (Burrows and MacKay) and declared their interests. In John Duffy’s first affidavit, he explained the wider perception of Burrows and MacKay and the fact their appointment was met with disbelief. John Duffy indicated that Burrows was a prominent member of the Orange Lodge in Portadown; although he later resigned his post within the Lodge, until recently he still had Lodge membership. Carswell LJ asked if it was necessary to consider the case of MacKay as he had resigned from the Parades Commission. Macdonald said his appointment should still be considered as the concern focussed on the process of the appointments in general. For instance, following his appointment, MacKay said that he would still march in parades.
Macdonald then examined documents from the Orange Lodge websites which indicated the Lodge’s ongoing opposition to the Parades Commission and related legislation. This led to a discussion about when the documents were written – it appeared that the documents were written both prior to, and after, the creation of the Parades Commission. Macdonald highlighted several aspects of the comments including the statement that the Parades Commission entrenched apartheid, that the Commission was part of the problem rather than solution, that Orangemen process certain unalienable and non-negotiable rights. This comment led Carswell LJ, to point out that it was unlikely for the European Court of Human Rights to agree with this principle. The criticism by the Orange Order included the North Commission report, the relationship between Sinn Féin and the Garvaghy Residents Coalition and concerns that the legislation was draconian and infringed civil liberties. Rodger LJ said that he was not concerned with the factuality of the website but rather with the issue of balance. Macdonald said that the website indicated both bias and a perception of bias where it was clear that there was massive opposition to the Parades Commission from the Orange Orders. Brown LJ said that this could be read a different way, as an indication of the need to bring the Loyal Orders into the fold. Macdonald said this was also correct and that there was a need to engage with the Orange Orders and this may have provided motivation for the Secretary of State’s actions. Macdonald said that regardless of the date when the website was written, the impact was the same, i.e. public knowledge of the Loyal Orders’ opposition to the Parades Commission. An affidavit from Ms Moore, in response to these issues, said that it was not appropriate to trawl the internet for references to Burrows and MacKay. All candidates were interviewed following the same format and asked about any potential conflict of interests. A composite assessment was completed on each candidate. MacKay was open about his motivation for the role, namely that the perspective of the Orange Order was taken into account by the Commission. He later said that he was fighting the Orange cause from within the fold. This led Rodger LJ to ask the question, if the Loyal Orders were not supposed to be on the Commission, who could represent their perspective. Macdonald said that there was no reason they could not be represented by Democratic Unionist Party Members or others from the unionist community. Carswell LJ said that there were lots of views within the unionist community on the issue of parades and it may be hard to get one which would be able to adequately represent the views of the Loyal Orders. Macdonald said that each member of the Parades Commission was supposed to be independent, where Commissioners should be representative without being protagonists.
Macdonald moved on to consider the opinion of Mr McDowell, the representative from OPCA who had examined the appointments process; Mr McDowell said that there was no conflict of interest nor a perception of a conflict between the candidates and the Commission. A submission from the head of the recruitment panel to the Secretary of State made it clear that there was a tension between the need not to discriminate and the need to make the Parades Commission representative. The sifting panel put 12 people forward as “recommended” candidates and 5 people as “highly recommended” candidates. Brown LJ asked if any reason was given by the Secretary of State as to why all the “highly recommended” candidates were not chosen. Macdonald said that the reason was not known. Carswell LJ began to explore the issue of balance. If 6 good candidates are put forward, there is no guarantee that they are balanced or representative. Macdonald said that this should not have happened; outreach measures should play some part in mitigating this without manipulating the process. Carswell LJ said this case should not deter outreach work and indeed in future scenarios, you may have to overlook highly recommended candidates to achieve effective representation. Macdonald said that this would be a prima facie violation of s. 76; and this was the tension which existed in this case. Ms Moore’s affidavit did not make it clear if the opinion of the Secretary of State differed from that of the panel; though the nominated assessor of the process said that he was happy. This led to a discussion about whether the assessor should be present at the appointment process. Bingham LJ said that prior to appointment, the Secretary of State interviewed all the candidates and asked for their assurance that they would comply with the guidelines on the operation of the Parades Commission. Macdonald said that it would not have been appropriate for the Secretary of State to exclude MacKay and Burrows from membership to the Commission based on their associations. The Secretary of State was relying on the panel’s assessment of the conflict of interest issue and this was the basis for the appointment.
Afternoon session, 27th November
Macdonald referred again to Ms Moore’s affidavit in which it was stated that the two candidates had declared their connections, and their background was viewed positively by the Secretary of State, who was pleased that two people with an understanding of the Loyal Orders had been appointed. A subsequent letter, sent on behalf of John Duffy, raised concerns about the appointment and claimed that no account had been taken of the conflict of interest. In reply, the Secretary of State said that the appointments had been made on the basis of merit and ensured the membership of the Commission was representative. He went on to say that the new members would bring the Commission a new understanding of the Loyal Orders and the individuals in question had shown commitment to moving the parades issue onwards. The Parades Commission had taken independent legal advice on the issue and was satisfied. Macdonald noted that no mention was made in the letter about the conflict of interest issue nor of the fact that the Lodge to which the men belonged was the flagship lodge in conflict with the Garvaghy Road residents.
The Law Lords then discussed the judgments in the lower courts. Macdonald said that the Loyal Orders should not have received an invitation to apply. Bingham LJ asked if the sting from this would have been removed if the Secretary of State had also invited the residents to apply for the posts. Macdonald clarified the Appellant’s position, namely that the Secretary of State should not have invited either groups to apply. Examining the judgement given by Morgan J, Macdonald outlined the involvement of the Secretary of State in a meeting with the Loyal Orders whom he wished to engage with on a political basis (prohibited by s.76 of the Northern Ireland Act (1998)). Macdonald said that engaging with all sides of the community should only happen later on in the appointment process, not prior to the process, thus preventing the process from being skewed. Macdonald defined the two parts of the appointment process: firstly the appointment procedure (trawl for candidates which can be geared toward to achieving a wide representative pool of candidates) and the appointment decision, in which it is impossible for the Secretary of State to say that he preferred a Catholic candidate over a Protestant one or vice versa. In such a scenario, a decision would not be based on merit but on political and/or community background. However, this point led to an in-depth discussion amongst the Law Lords in the circularity of the argument where it was considered equally unlawful to appoint an unrepresentative Commission. Macdonald highlighted the fact that paragraph 2.3 of Schedule 1 of the Public Processions Act (Northern Ireland) (1998) was aspirational and that it did not override the express provision in the Act to be representative. Here s.76 Northern Ireland Act (1998) trumped paragraph 2.3 of Schedule 1 and the right not to be discriminated against. Bingham LJ asked if the public body was bigger, would this bring an improvement to the recruitment process (i.e. six is a limited number and prevented a full spread on the basis of gender or geographical origin). Macdonald admired the concept but said that the legal principle set out in s.76 prohibited discrimination, while the OPCA guidelines said that there was a need to create equal opportunities; OPCA must be read subject to s.76 of the Northern Ireland Act (1998). This led Carswell LJ to query if other nationalist residents, not from the contentious area, were put forward for the post, would this offend against the principle? Macdonald said that if they were appointed, based on their political opinion, then this was a violation of s.76. Carswell LJ asked how this was the case as the groups/individuals under consideration just hated parades. Macdonald disagreed and said that this did constitute a political opinion. Rodger LJ asked if it was possible to ignore religion during the application process. Macdonald said that to comply with s.76, a wide range of candidates had to be presented at the start of the process, without discrimination, and from that would stem a representative Parades Commission. This led Rodger LJ to note that the process was simply down to chance. Macdonald disagreed and said that if the process worked properly, then it should create a fully representative Commission. Hale LJ checked that the key issue in the Appellant’s submission was dependent upon s.76 of the Northern Ireland Act (1998) and how it was construed. She said it was an Aristotelian view of discrimination, an old-fashioned view where like must be treated alike. Macdonald said this was correct as they considered both groups to be alike, i.e. both were protagonists in the conflict over parades. The question of political opinion was raised by Rodger LJ who asked why Macdonald was tying down the concept of political discrimination and ignoring other kinds of discrimination issues such as women or geographical origin. Macdonald said that this was only being considered for the purpose of paragraph 2.3 of the Public Processions Act (Northern Ireland) (1998). He referred to the judgment in the lower court and the opinion of the Lord Chief Justice which noted the need for balance (i.e. for the Commission to be representative). However, Macdonald said this was impossible to achieve – as such, any achievement of balance must be subject to the relevant legal principles.
The Law Lords then had a discussion about the inclusion of other minority groups and the problems of appointment to public bodies such as the Parades Commission. Macdonald said that it was permissible to carry out outreach measures, such as the advertisement placed by the Government, to attract minority groups. However, candidates could not given preference due to their political origin; this was prohibited by the principles set out in s. 76 and the OPCA guidance. The tension which existed between these two concepts, anti-discrimination legislation and the need to be representative, was key; this led Hale LJ to confirm that the two statutory duties did not have to be reconciled.
Macdonald reiterated his point that the Secretary of State had targeted only one section of society and thus created an imbalance in the Commission. He saw no reason for a need to restrict the representativeness of the Commission. Referring to paragraph 18 of the judgment he said that the principle that the Secretary of State is not obliged to achieve a certain level of balance, but rather the objective of representative as far as is practicable, was fundamentally flawed. Brown LJ asked about the advertisement and how it was able to state that applications would be welcome from women, and yet this was not discrimination. Was this breach of s.76? Macdonald said that this was not the case; both loyalist and nationalist groups thought they were prevented from applying, but only nationalists were not given the steer to apply. This led Rodger LJ to give a hypothetical scenario involving class to test the s.76 provision and for Macdonald to clarify the terms of s.76. Carswell LJ and Macdonald then had a discussion about the case of Re White, where the judgment said that to get community balance, some individuals may be left out.
Macdonald then moved to explore the issue of the conflict of interest. He said it was clear from the correspondence that the Secretary of State was aware of the conflict and sought specific assurances on this issue. There was nothing in the subsequent judgment about how the Secretary of State came to his decision – this raised the issue of irrationality. Carswell LJ said that, referring to a letter from the Secretary of State, the Loyal Order members do have a conflict of interest and thus cannot participate in the adjudicator functions; but, because the members can make some contribution to the process, the decision is not irrational. Macdonald said that the Lord Chief Justice ignored the issue of bias; the issue should not have been the quality of the contribution offered by Burrows and MacKay, once in post, but whether they should have been considered at all. Rodger LJ asked how the adjudicator process worked at the Commission. Macdonald said that evidence was gathered by the Parades Commission, submissions were received and a discussion took place in order to make the decision on whether to notify the parade. Carswell LJ concurred and said that the evidence gatherers were local people who tapped into the informal network and fed back the view from the ground.
Macdonald said that the approach on the issue by the Court of Appeal was flawed for three reasons. Firstly, the conflict of interest was a material consideration which could only lead to the Loyal Orders being un-appointable. Secondly, the conflict of interest issue was not addressed by the Secretary of State. Finally, the Secretary of State did not pay attention to the impact of the statutory framework or the relevant politics. This led to a further two issues, namely that the rule against bias, where the statutory body should be impartial and independent, should prevent a protagonist from being appointed as a Commissioner. The irrationality issues was clear in that the bias was so obvious that the decision can be considered Wednesbury Unreasonable. As Macdonald pointed out, during the adjudicator process, these individuals would lean towards the Loyal Orders. In the case of Dickmans, it was found that facts had to be ascertained, the test applied and then a decision made; this principle was not applied in this case in the lower courts. Bingham LJ, referring to the printed submissions, said that the cases to which Macdonald referred were judicial appointments. Macdonald agreed but noted that the same principle applied in this case. This led to a discussion about the decision-making processes of the Commission where it was noted that the Loyal Orders make up the bulk of applications. The possibility of Burrows and MacKay excusing themselves from the decision-making process was explored with Rodger LJ, who suggested that they work behind the scenes. Macdonald said that it was implicit in the legislation that all members of the Parades Commission should be impartial and independent for all functions of the Commission. The decision-making process at the Commission did not name those who participated in the determination, only the name of the Chairman was attached to each notice. The functions of the Parades Commission are such that all Commissioners are required to be independent and impartial. Macdonald then gave the example of tribunals where judges could be disqualified from the proceedings if they were bias to those involved. It was a long-established principle that justice must both be done and be seen to be done. If the Law Lords were to consider the issue of bias or irrationality, the only conclusion that could be drawn was that the appointments were wrong and no meaningful contribution could be made by the appointees. Macdonald went onto say that this was a decision on public appointments and thus was governed by several criteria, where the decision had to be made in relation to the legislation (s.76 of the Northern Ireland Act (1998)), OPCA guidelines and the principle of merit. Nicholson J, in his judgment in the lower court, said that there was not just an obligation to consider nationalist residents but to encourage them to apply for posts. Macdonald rejected this principle as they would not be appropriate.
The submission by the Respondent indicated that the Secretary of State was given a margin of appreciation with regard to paragraph 2.3 of the Public Processions Act (Northern Ireland) (1998); Macdonald said that this was not the case here. Macdonald also disagreed with the Respondent’s point that it was enough to consider the appearance of bias while Macdonald stated the point was about being biased. Unlike the Respondent, Macdonald said that there were questions of law to be considered in this case. Finally, he said that Respondent’s assertion that such issues should be looked at on a case-by-case basis, ignored the unique situation in Northern Ireland and the function of the Parades Commission.
Morning, 28th November
Macdonald opened by looking at the justiciability of the Act and noted that judicial review proceedings were only available in extreme circumstances. Macdonald raised the case of Armstrong where two members of the Loyal Orders were appointed to a similar body. Brown LJ asked the nature of their participation in the function of the organisation. Macdonald said that both individuals resigned during the judicial review proceedings. All challenges on the issue of the composite of the body have been on the basis of the lack of nationalist residents. The two men in Armstrong had very strong loyalist connections. Macdonald said that the Appellant did not object with the Secretary of State’s decision to engage with the Loyal Orders merely that they went too far with this engagement. The Secretary of State may have seen this engagement as a shrewd political move. Brown LJ asked if the other four candidates had to recuse themselves. Macdonald said that one had had family connections which had an impact on their eligibility. Macdonald was keen to point out that the discrimination issue was not the primary issue; rather, neither faction should have been asked to apply. In the case of those appointees from the Loyal Orders, one could see they were directly opposed to the Parades Commission. As a result, there was no function that Burrows and MacKay could perform at the Parades Commission. The Secretary of State must appoint independent and impartial individuals to the Commission so that all functions of the Parades Commission can be carried out.
This led Brown LJ to ask what had happened in the interim two years since the appointment of Burrows and MacKay. Macdonald responded that the Garvaghy Residents have refused to engage with the Commission. Burrows went on the first march down the Garvaghy Road but then stepped down from a decision-making role on this route, but remains a decision-maker on other routes. Macdonald concluded that Burrows and MacKay were not impartial or independent nor could they be considered as such.
Bernard McCloskey QC for the Respondent
Bernard McCloskey QC(henceforth McCloskey) opened by providing a broad overview of the North Report and the insight the report provided to the mischief about which the Act is concerned. The central theme was the complexity of the problem Northern Ireland; the report said that it was indicative of how the country was staring into an abyss and the society was fractured and a victim of civil disorder of unbelievable properties. Parading was viewed, in this report, as a major threat to peace and harmony in Northern Ireland. This led to a discussion with the Law Lords about who wrote the report along with Dr North (one cleric of the Catholic Church and one from the Presbyterian Church). McCloskey went onto discuss the recommendations of the report and paragraph 2.3 of the Public Processions Act (Northern Ireland) (1998). He said that paragraph 2.3 was compatible with the use of discretion by the Secretary of State.
McCloskey said that the Respondents were asserting that there was no good reason why Burrows, as a corporate member of the Parades Commission, could not complete all of the functions and duties of his role. This led Carswell LJ to ask about the nature of the duties of the Commission apart from issuing determinations. McCloskey said he was unsure but imagined most of the work would be determinations and perhaps some mediation. Hale LJ indicated surprise that Burrows would be able to do mediation as impartiality and neutrality were a key part of the role (in family mediation). Mediators, Hale LJ said, were those who could gain the trust of both sides; this could clearly not be the case where one party was connected to the mediator. McCloskey said that Burrows could participate in the Commission’s functions by bringing a specific perspective to the table, where the aim was to find consensual agreement, in the duty of the Commission termed “facilitate mediation”. Bingham LJ disclosed his role at the Centre for Dispute Resolution.
McCloskey reminded the Committee that the two individuals had played a useful role in the Commission, for the previous two years there had not been a single judicial challenge to the Commission. Rodger LJ explored how the notification process worked and asked if an issue of determination arose, could it be challenged on the basis of bias? McCloskey confirmed that the rule of bias could apply to any decision of any public body. He confirmed that a determination from the Commission may be challenged when a public law template was applied; however, McCloskey said, that the Parades Commission was different from other tribunals. Rodger LJ asked when Burrows had to bow out from the Commission. McCloskey said only when he recused himself in an aspect where it might be appropriate for him to do so. McCloskey pointed out that the Commission were uninvolved in the decisions process until all the evidence had been gathered and submissions received, only then did they deliberate. Brown LJ confirmed that Burrows recused himself from determinations for the Portadown and District area. McCloskey said that this was correct. Brown LJ then asked if 92% of parades were contentious, what percentage of these would he stand down from? McCloskey said that the Parades Commission had worked against the Loyal Orders, consistently since its inception. Two thirds of contentious parades were addressed by the Parades Commission, while one third were worked out through mediation and accommodation. This led to a discussion between the Law Lords on the operation of the Parades Commission.
McCloskey cited the letter sent to the Appellant on 16th January which stated that the Secretary of State had looked at the conflict of interest issue, examined the manner in which the Commission had looked at the issue and concluded that MacKay would not participate in any contentious parades decisions. This recusation principle can also be seen with a Parades Commission member, also a member of the DPP, who recused himself when his constituency came up for review. McCloskey moved onto explore Ms Moore’s affidavit about the selection of candidates. Carswell LJ said that it was hard for candidates to evaluate a perceived conflict of interest. McCloskey said that two thirds of those in the candidate pool were Protestants and this had led to two thirds of those appointed being Protestants. Brown LJ asked if the Secretary of State had indicated if he thought Burrows should step down from his position. McCloskey said that the Parades Commission was independent and the Secretary of State should not trespass onto their process and how they manage the issue of a conflict of interest. Hale LJ examined the list of those consulted in relation to the recruitment of new Parades Commission members. These were four church leaders, four political party leaders and three Loyal Order leaders yet no organisation associated with nationalist community. This led to the assertion by McCloskey that there were no central residents groups. This was challenged by Bingham LJ who listed several groups and indicated that the Secretary of State could have written to these groups. McCloskey disparaged this plan by saying that the organisations did not have registered offices or other similar formal structures.
McCloskey then moved on to note the wide margin of appreciation that the Secretary of State had with regard to appointments to a public body, as laid out in OPCA’s Code of Conduct. Bingham LJ disagreed and said that a wide margin was dependent upon to which body an individual is appointed; he then gave the example of a rat catcher. McCloskey claimed that the conflict of interest issue may not be an automatic bar to appointment but rather provides a scene for evaluating judgment. The emphasis remained on selection on merit and the issue of balance. If the Law Lords found substance to the Appellant’s claims then this did not vitiate the appointments. This led to a discussion regarding the complaints procedure. This was queried by the Law Lords who said that this was limited to situations where the fault lay in the process. Bingham LJ said that the argument was unconvincing and asked how an outsider would know if the recruitment/appointment process had been good. McCloskey defended his point by saying the people would know through second-hand information and the role of the independent assessor.
McCloskey moved onto discuss the Appellant’s argument. He said that he disagreed with the assertion that the Secretary of State did not consider the conflict of interest. Rodger LJ said that the public perception was that the two men were committed to the Loyal Order. McCloskey disagreed and said that Burrows resigned. Carswell LJ asked if the Secretary of State had taken into account the fact that the two men belonged to the Portadown Lodge, which was considered to be the most extreme of the Loyal Orders. McCloskey side stepped this issue and referred to the test in Porter v McGill, which set a test on an observer to be fair-minded, should be applied to individuals. McCloskey said that the Appellant was saying that Burrows was tarred with a brush of loyalism, from his association with the Orange Lodge. Bingham LJ clarified that the Secretary of State had not said that the two men were too closely associated with the Orange Lodge to make decisions but could do anything else; rather he said that the two men were impartial and independent and thus could fulfil any aspect of the Parades Commission’s role.
Carswell LJ outlined the fact that the Appellant in this case was not saying that he was a victim. Instead he wanted acknowledgement that the nationalist residents were being discriminated against; not a typical adverse discrimination complaint. Hale LJ added that normally a case like this would say: “you did this to me which was less favourable than to an other”. Macdonald was saying that the Government set out to recruit a Parades Commissioner from the Loyal Orders without recruiting from the nationalist residents group. Did this constitute a breach of s.76 discrimination.
Afternoon session, 28th November
McCloskey opened by making three key points. Firstly, there was no unequal treatment between the two groups. Secondly, there was no materiel difference between the two groups, only a need to engage with the Loyal Orders. Finally, there was no unequal treatment on the basis of religious or political background. The action taken by the Secretary of State in making the appointments was simply about making the statutes work and advancing the public interest of community security through the co-operation of all parties. In White, the Lord Chief Justice found that an OPCA breach did not have any legal consequence. Here the appointment process adhered to the OPCA guidelines thus the conflict of interest issue is not supported. Regardless this is not enough to vitiate the appointments as the Secretary of State did not have an obligation to follow OPCA (as seen in White). McCloskey disputed the Appellant’s assertion that the true legal touchstone was irrationality. The application of the principle of Wednesbury Irrationality in its traditional form, because of the outrageousness of the decision, is too high a hurdle for the Appellant to overcome. He went onto say that one could disagree with the Secretary of State but this was not enough to be considered outrageous, rather the Secretary of State was being bold and imaginative. There was scope for political judgment in the evaluation made by the Secretary of state. A correct appreciation of s.76 of the Northern Ireland Act (1998) and paragraph 2.3, Schedule 1 of the Public Processions Act (Northern Ireland) (1998) involves political decision without trespassing on the grounds of s.76 of the Northern Ireland Act (1998). With regard to relief, McCloskey noted that the Appellant originally wanted the appointments quashed or a deceleration that the appointments were wrong. Morgan J quashed Burrows’ appointment but this was subsequently reversed. As it stands, the Commission was approaching the end of its second year of three years; one must take into account that the Parades Commission had functioned well for the last two years and has not been undermined by Burrows’ appointment. Hence the request to quash the appointment was not valid.
Barry Macdonald, Right to reply
Macdonald said he had three issues on which he wanted to reply. Firstly, the issue of rationality where the Respondent seemed to be saying that close association with an organisation was not a bar to appointment; the Appellant is not disputing that fact but rather querying the test which should be applied. Secondly, on the issue of discrimination, there are a number of organisation who the Secretary of State could have contacted including the Lower Omeau Residents, Bogside Residents in Derry (all of whom have met with Government on this issue) and wider human rights organisations such as the Committee on the Administration of Justice. Thirdly, on the question of relief, subject to the agreement of the Law Lords, the Appellant are not requesting a guarantee for MacKay, only that Burrows will step down. There is a concern that it should not automatically be assumed that Burrows should resign. This led Bingham LJ to query why there was a need for a decision on MacKay. Macdonald said that MacKay was appointed under the same procedure and the fact he had resigned had no impact on this fact.
Judgment was reserved
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[1] The North Commission Report examined the issue of parades and was
published in 1997. It made a variety of recommendations on the mediation of parades, some of which were included in the creation of the Parades Commission.
[2] 76 Discrimination by public authorities
(1) It shall be unlawful for a public authority carrying out functions relating to Northern Ireland to discriminate, or to aid or incite another person to discriminate, against a person or class of person on the ground of religious belief or political opinion.
(2) An act which contravenes this section is actionable in Northern Ireland at the instance of any person adversely affected by it; and the court may—
(a) grant damages;
(b) subject to subsection (3), grant an injunction restraining the defendant from committing, causing or permitting further contraventions of this section.
(3) Without prejudice to any other power to grant an injunction, a court may grant an injunction under subsection (2) only if satisfied that the defendant—
(a) contravened this section on the occasion complained of and on more than one previous occasion; and
(b) is likely to contravene this section again unless restrained by an injunction.
(4) This section does not apply in relation to any act or omission which is unlawful by virtue of the [1976 c. 25.] Fair Employment (Northern Ireland) Act 1976, or would be unlawful but for some exception made by virtue of Part V of that Act.
(5) Subsection (1) applies to the making, confirmation or approval of subordinate legislation only if—
(a) the legislation contains a provision which discriminates against a person or class of person on the ground of religious belief or political opinion; and
(b) the provision extends only to the whole or any part of Northern Ireland.
(6) Where it is alleged that subsection (1) applies to the making, confirmation or approval of subordinate legislation, subsection (2) shall not apply but the contravention may be relied upon in legal proceedings relating to the validity of the subordinate legislation.
(7) The following are public authorities for the purposes of this section—
(a) a Minister of the Crown;
(b) any department, corporation or body listed in Schedule 2 to the [1967 c. 13.] Parliamentary Commissioner Act 1967 (departments, corporations and bodies subject to investigation);
(c) any body listed in Schedule 2 to the [S.I. 1996/1297 (N.I.7).] Commissioner for Complaints (Northern Ireland) Order 1996 (bodies subject to investigation);
(d) any authority (other than a Northern Ireland department) listed in Schedule 2 to the [S.I. 1996/1298 (N.I.8).] Ombudsman (Northern Ireland) Order 1996 (departments and other authorities subject to investigation);
(e) the Police Authority for Northern Ireland, the Royal Ulster Constabulary and the Royal Ulster Constabulary Reserve;
(f) the Probation Board for Northern Ireland; and
(g) the Post Office.
[3] 2 (1) The Commission shall consist of—
(a) a chairman; and
(b) not more than 6 other members,
appointed by the Secretary of State.
(2) The Secretary of State may by order vary the number for the time being specified in sub-paragraph (1)(b).
(3) The Secretary of State shall so exercise his powers of appointment under this paragraph as to secure that as far as is practicable the membership of the Commission is representative of the community in Northern Ireland.
[4] Who, it is understood, was involved in the recruitment process.
For Peace Justice & Human Rights
