Parades Commission appeal continues

The appeal for a judicial appeal over the appointments of two Orangemen to the Parades Commission ended in a split decision in favour of the Secretary of State’s right to make an approach to certain individuals, ie members of the loyal orders, without having to balance that action by approaching other parties to the parades dispute – namely resident’s groups. Accordingly, there are two judgements: a minority and majority judgement. To my decidedly unlawerly eye, the key difference seems to be that the majority view is that the decision was a political one (par excellence in the words of the judge), and therefore not subject to judicial scrutiny. The minority verdict reserves harsh words for Hain, and argues that the Office for the Commission of Public Appointments guidelines were not followed, and that a similar place should have been offered to someone from one of the numerous residents committees.

The majority judgement Lord Chief Justice Kerr concludes:

[39]…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.

However, in the minority verdict Lord Justice Nicholson states:

[18] I am satisfied that the decision of the Secretary of State was flawed from the start of the selection process because it was decided to write to leaders of the Loyal Orders inviting applicants regardless of any conflict of interest. This was an act of positive discrimination. In order to redress this and establish balance, it would have been necessary to write to leaders of Nationalist community groups inviting applicants from those affected by the contentious parades.

The OCPA guidelines were not followed. There was a breach of Section 76(1) of the Northern Ireland Act 1998 which OCPA states, must be complied with in Northern Ireland. There was a breach of Section 76(1) of the Northern Ireland Act 1998 which, OCPA state, must be complied with in Northern Ireland. This sub-section provides that it shall be unlawful for a public authority carrying out functions relating to Northern Ireland to discriminate against a person or class of persons on the ground of religious belief or political opinion. By writing only to leaders of the Loyal Orders in the manner described at paragraph [10] of this judgment there was discrimination against Nationalist community groups affected by contentious parades. This was a matter so obviously material to the decision which was taken to appoint Mr Mackay and Mr Burrows that failure to take it into consideration was not in accordance with the intention of the 1998 Act.

The next stage is for the respondent of the appeal, Joe Duffy, a member of the “Garvaghy Road Residents’ Coalition” who took the original case, is the High Court next week (possibly Monday) to seek leave to appeal to the House of Lords (which will likely fail) but that will then open up the means for a petition to the House Of Lords to seek leave of appeal. If that is refused, and having exhausted all “domestic remedies”, then Europe is possibly the next step. If you are confused, see this note for an explanation of the appeals process.

The case seems predicated on achieving a balance being maintained between one party to the dispute (the Orange) and the other (the ad hoc network of Residents Groups). Though undoubtedly the Commission itself does contain prominent Nationalists like Peter Quinn.

The proactive canvassing for someone in the Orange to take a seat on the Commission was clearly, as with nearly everything else the much maligned Secretary of State has done since his appointment, part of a sustained attempt to get two sides to further move their ‘war by other means’ a little further down the road away from zero sum and towards some kind of consensus.

It is hard to tell what consequences a success outcome for this action might be. Optimists will be hoping the issue burns itself out, as the summers get quieter and quieter. As Fair Deal points out the direct agreement around tonight’s parade will test the willingness of both sides to work a direct agreement without all of the detailed oversight and planning usually provided by the Commission.

A test of Tom Stoppard’s votive intent perhaps?

But given NI’s propensity to binge on street violence and in lieu of a mutually tolerant and permissive society, a functional (and inclusive), Parades Commission may be the only way to stop this particular Sysifusian rock rolling right back to the bottom of the mountain each summer for a foreseeable future.

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  • Pete Baker

    You’re probably right that an appeal would fail in the House of Lords, Mick..

    But I find myself in complete agreement with Eamonn McCann on this:

    The fact that what happened may have been within the law shouldn’t be allowed to obscure the political truth of the matter, that the NIO has polluted a public appointments procedure by engaging in a cynical, dishonest, sectarian and incompetent exercise designed to lure the Loyal Orders into acceptance of the commission.

    If nothing else the justifiably criticised Secretary of State should be held accountable for the incompetence.

  • The Beach Tree

    The majority verdict is an interesting one in many ways.

    On the one hand, Sir Brian Kerr LCJ is (along with the unlamented Lord (Sir Bob) Carswell) probably the most experienced Judical Review judge in the UK, and his record is actually pretty good; he hasn’t bowed the knee historically.

    On the other hand, its all very well saying that the wisdom of a decision does not itself lead to a finding at review. But it seems, to my limited lawyerly eye, disingenuous to say that there is no link between the ‘wisdom’ of the decision and the ‘reasonableness’ of the decision, since the most clear ground for Review is ‘Wednesbury Unreasonableness’ i.e. that a decision was so unreasonable, that no sensible Sos, taking into account all the info he should have, could sensibly have made the decision.

    Without commenting on the Duffy decision itself, as a principle of Administrative law, I’d have thought that if a decision was particularly and fundamentally unwise, it would clearly tend to be at least evidence that it was unreasonable, by the legal definition.

    Hmmm…..