Appeal Court overturns Parades Commission ruling

UTV report that the Secretary of State for Wales and Northern Ireland, Peter Hain, has won his appeal against the High Court judgement on the appointments procedure used for the Parades Commission, despite one of the Appeal judge’s description of the NIO decision-making process as bizarre during the case. More details here. I’ll add the judgement when it’s online. Update It was a 2 to 1 majority verdict. Updated The Appeal Court ruling can be found here More Reading it as closely as possible, it does not appear to be wholly uncritical of the Secretary of State’s appointments or the procedure followed. More again Peter Hain welcomes the rulingFrom the ruling:

[31] The learned judge found the panel’s statement that there was no area of real or perceived conflict of interest inexplicable and, despite Mr McCloskey’s proffered explanation, so do I. There were clearly conflict of interest issues in both cases. As Mr Macdonald has pointed out, much of the work of the Commission concerns mediation between groups who hold opposing views about proposed parades or determining whether contentious parades should take place or if they should be re-routed. Where two of the members of the Commission belong to organisations which are committed to the right of their members to march, the conflict of interest issue is both inescapable and obvious.[added emphasis]

[32] But, as Mr Maguire has reminded us, whatever may be the shortcomings of the panel’s assessment of the issue, the Secretary of State was clearly aware of the conflict of interest difficulty and he had not only discussed this with the minister of state and his officials, he had acted pro-actively in seeking specific assurances from Mr Burrows and Mr Mackay that they would perform their duties as commissioners objectively and corporately with the other members of the Commission. Ultimately, therefore, the court’s review of this aspect of the case must focus on the Secretary of State’s consideration of the issue and his decision that this did not prevent the appointment of the two loyal order members. That review must comprehend an examination of whether the Secretary of State left out of account any material consideration that was relevant to his decision. Absent such an omission, however, the only available challenge to it must be founded on the claim that it was irrational.

[33] It has not been established, in my view, that the Secretary of State failed to have regard to any relevant consideration in dealing with this aspect of the appointment of Mr Burrows and Mr Mackay. Although the forms completed after their interviews failed to bring it directly to his attention, he was clearly aware of the conflict of interest issue and, since, as I have said, the potential for this was obvious, I cannot but suppose that he realised if these gentlemen were appointed, there would inevitably be occasions when the question of whether they should participate in the Commission’s deliberations would arise. There is therefore no reason to believe that the Secretary of State failed to take account of all relevant considerations in this regard. I must therefore turn to consider the irrationality argument.

[34] Mr Macdonald argued strongly that the decision to appoint these men to the Commission was insupportable on any rational basis. He drew to our attention the number of determinations that the Commission had been required to take in relation to marches in Portadown. Both men belonged to loyal orders that had been directly involved in disputes about those marches. It was inconceivable, he suggested, that they could take part in decisions about them because of the perception of bias that would inevitably arise. Mr McCloskey acknowledged that it would be difficult for Mr Burrows (and for Mr Mackay, if he had not resigned) to participate in some decisions of the Commission. Indeed, he accepted the potential for judicial review challenges to determinations by the Commission on the basis that Mr Burrows should not have been party to them. The fact that such challenges might materialise did not render the Secretary of State’s decision irrational, however, he argued. There was much that Mr Burrows could contribute to the work of the Commission and it was clearly within the realm of reasonableness for the Secretary of State to have chosen him as a commissioner.

[35] The fact – if, indeed, it be the fact – that Mr Burrows’ participation in the work of the Commission will be bedevilled with difficulty because of his membership of one of the loyal orders does not, of itself, make his appointment irrational. I agree with the observation of Morgan J on this issue that it could only be so regarded if it were demonstrated that he would not be able to contribute materially to the work of the Commission by reason of the perceived conflict of interest. Indeed, I go further. Only if the Secretary of State was bound to conclude on the material before him that Mr Burrows could make no useful contribution to the work of the Commission could his decision to appoint him be condemned as irrational. While, therefore, I foresee considerable difficulties in Mr Burrows taking part in many of the critical determinations of the Commission, I find it impossible to say that no reasonable decision-maker would have appointed him to this position. That being the standard by which irrationality must be judged, I feel bound to conclude that it has not been met in this case.

And from the Ruling conclusion:

[39] I have concluded that the officials responsible for advertising the post of commissioner and soliciting applications for appointment to the Commission were not under an obligation to consider whether to target residents’ groups as a counterbalance to the letter sent to the loyal orders. This was the single ground on which the judge had found that the decision of the Secretary of State was invalid. I have considered all the arguments made on behalf of the respondent on the cross appeal and have concluded that none of these has been made out. I would allow the appeal and dismiss the application for judicial review.

[40] It is perhaps right that I should say that the decision considered in this case was par excellence a political one. Regrettably, it appears that there is still a widespread misconception that the merits of such a decision fall under scrutiny where a judicial review challenge is made. It is important that this misconception be dispelled. The courts may only entertain a challenge to a decision such as that taken by the Secretary of State on well established judicial review grounds. I am not concerned with the wisdom of the decision made – either on political grounds or otherwise. The role of the courts is to examine the procedures by which the decision has been made and the rationality (in the legal context) of the decision. It goes no further.[added emphasis]

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