Inexplicable, indeed.

The BBC report that, in Belfast High Court this morning, Mr Justice Morgan has ruled that the appointments of David Burrows and Don McKay, by the Secretary of State for Wales and Northern Ireland Peter Hain, was unlawful.. inexplicable is the quote used. Updated below. More Peter Hain is “extremely disappointed”.. and taking legal adviceFrom the BBC report –

He also said the case caused him to doubt whether the appointment panel members understood the nature of the task in which they were engaged.

Although I wouldn’t, necessarily, single out the panel..

It’s the second decision by an NIO minister ruled unlawful in just over a week..

Update As has been pointed out in the comments, the judgement is available online here

Although the judge did not accept all of the challenges to the appoinments, he was critical of the appointment process –

[17] I now turn to the first ground of challenge namely the failure to encourage applicants from nationalist residents groups or indeed any nationalist community groups to apply for posts having regard to the encouragement given to applicants from the loyal orders. Mr MacDonald QC submitted that this failure represented a breach of the statutory obligation in paragraph 2 (3) of schedule 1 of the 1998 Act and further constituted an act of discrimination on the grounds of religious belief and political opinion contrary to section 76 of the Northern Ireland Act 1998. For the respondent Mr McCloskey QC submitted that there was no obligation within the appointment process to consider whether to approach such nationalist groups and that section 76 of the Northern Ireland Act 1998 did not give rise to a public law duty.

[18] It is in my view clear that the statutory discretion given to the Secretary of State to secure that as far as is practicable the membership of the Commission is representative of the community in Northern Ireland gives him a wide discretion in relation to the interests which he can take into account. Apart from the usual issues such as gender, race, religious belief and political opinion there may be other related or specific perspectives which the Secretary of State considers it proper to have represented on a body such as this. That demonstrates the diversity of interests which the Secretary of State is entitled to take into account and is consistent with Mr McCloskey’s submissions that his decision is an evaluative judgment. But the notion of a body which is representative of the community in Northern Ireland encompasses not just diversity but also the concept of balance. That applies not just to the decision-making of the Secretary of State when he is presented with the appointable pool but also to the process by which the appointable pool is formed.[added emphasis]

[19] The verbal and written encouragement given to the loyal orders to put forward applicants for appointment is a well recognised tool in discrimination law for the purpose of increasing the representation of underrepresented groups (see in particular Professor McColgan’s work on Discrimination Law 2nd edn 148-157). There is no doubt that it was the intention of government to bring forward applications from the loyal orders because it was considered important to ensure that their perspective was heard within the Commission. For the reasons I have given earlier I consider that such an approach was entirely a matter for the Secretary of State. But the requirement of balance within the statutory duty at paragraph 2 (3) of schedule 1 of the 1998 Act imposed on those officials conducting the appointment process on behalf of the Secretary of State the obligation to consider whether it was necessary to target those groups within the nationalist community which opposed the perspective of the loyal orders. The existence of such groups would have been well known to the respondent. Although the affidavits of the respondent are silent on that issue the cross-examination of the deponent made it clear that no such consideration took place. I consider, therefore, that the appointment process was unlawful in that the Secretary of State’s officials failed to take into account a material consideration as a result of which he failed to secure as far as was practicable that membership of the Commission was representative of the community in Northern Ireland.[added emphasis]

[20] In light of my decision it is unnecessary for me to determine the issue in relation to section 76 of the Northern Ireland Act 1998 and I shall only touch briefly upon it. The section provides:

“ 76. – (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.”

For the respondent Mr McCloskey QC contended that the express right of personal action provided by section 76 (2) excluded any public law duty in respect of section 76 (1). I do not accept that submission. I consider that section 76 (2) is designed to provide a remedy in damages and to control the exercise of injunctions in relation to personal actions. I do not consider that that is intended to remove the public law duties of public authorities which otherwise arise from section 76 (1).

[21] Mr MacDonald QC submitted that the respondent discriminated against nationalist residents groups on the ground of religious belief or political opinion. He relies on the definition of discrimination in section 98 (5) of the Northern Ireland Act 1998”:

“(5) For those purposes a person discriminates against another person or a class of persons if he treats that other person or that class less favourably in any circumstances than he treats or would treat other persons in those circumstances.”

I have two reservations about this submission. Firstly I have not concluded that there was any legal obligation on the Secretary of State to encourage nationalist groups in the same way as he encouraged the loyal orders. I consider that there was a legal obligation on those in charge of the process to consider whether to so encourage those groups. It may be that this would constitute discrimination within section 98 (5) of the 1998 Act but I would need further submissions on it.

Secondly I am not satisfied that any alleged discrimination was on the grounds of religious belief or political opinion. I consider that one should approach this as a composite question in line with the decision of the House of Lords in Shamoon v Chief Constable [2003] UKHL 11. In this case the encouragement was given to those within the Protestant or Unionist community holding a particular perspective. Within that community the group was not defined by their religious belief or political opinion. The alleged disadvantaged group fall within the nationalist or republican or Roman Catholic community but similarly were not defined within that group by their religious belief or political opinion. Accordingly I do not consider that the targeting of a particular type of Protestant or unionist could be said to be on the grounds of religious belief or political opinion where that particular group are not defined by either of those matters.

[22] Mr Mackay has resigned from the Parades Commission. I have found no reason relating to Mr Burrows’ skills experience or background which would prevent him being appointed to the Parades Commission. I have, however, found that the process was unlawful in that the requirement of balance was not considered during the appointment process in connection with his appointment. In those circumstances I consider that I should quash the decision to appoint Mr Burrows so that the Secretary of State may exercise his powers of appointment afresh to secure that as far as is practicable the membership of the Commission is representative of the community in Northern Ireland. I want to make it clear that this judgment should not operate as any prohibition on the reappointment of Mr Burrows should the Secretary of State so decide in the exercise of his powers under paragraph 2 (3) of schedule 1 of the 1998 Act.[added emphasis]

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