“the decision of the Court of Appeal cannot be supported”

Interesting news from the House of Lords on a long-running case involving a 2004 High Court ruling, by Mr Justice Girvan, and a subsequent 2005 Appeal Court ruling in favour of the Parades Commission, which touches on best practice in government and “the obligation resting on a public authority to make candid disclosure to the court of its decision making process” – [which has been mentioned in a similiar context – Ed]. The Law Lords have unanimously ruled, in a case brought by David Tweed, to overturn the Appeal Court ruling, that the original High Court ruling was mostly correct, and that the five documents requested by summons, but only provided in summary by the Parades Commission, in 2004 should be disclosed “in the first instance to the judge alone.”There are more detailed arguments in the Opinion from Lord Carswell in particular, who states

37. The Court of Appeal concluded (in paragraphs 22-23 of the judgment of Morgan J which I quoted) that the validity of rule 3.3 of the Commission’s procedural rules required to be ascertained before the extent of disclosure of documents could be settled. Girvan J expressed the view, however, in the High Court that the interests of justice could, if it were required, override the provisions of rule 3.3. He said at paragraph 8 of his judgment:

“[8] There are issues as to whether para 3.3 of the Procedural Rules are [sic] invalid and or whether the application of the rule involves an unfair procedure for determination of the issue which the Parades Commission had to determine. Discovery of the relevant documents would not be necessary for the determination of that legal issue. Para 3.3, if read as subject to an overriding power of the court to direct disclosure of documents if disclosure is necessary in the interests of justice, would not in itself preclude an order [for] disclosure if that is required in the interests of justice. The court would in that event have to determine whether it would be appropriate to direct discovery taking account of the fact that information in evidence was gathered on the basis that it would be treated as confidential. It would, in my view, require clear words to preclude the court from ordering disclosure of documents when [ex] hypothesi it considers that the interests of justice so require. Para 3(3) falls to be construed and applied in the context of rules made to explain how the court will exercise its statutory functions. It does not govern proceedings to challenge determinations in which a court is called on to review the legality of the way in which the Commission has exercised its functions, particularly where the court is required to take account of Convention rights. Accordingly, I conclude that there is nothing in para 3(3) which precludes an order for discovery, if otherwise appropriate. Insofar as the documents contain information obtained confidentially the protection of confidentiality may be achievable by limited redaction. Confidentiality, on its own, would not prevent an order for disclosure if the interests of justice are required and there is no public interest which requires that the documents should not be disclosed.”

I am in complete agreement with these propositions, the correctness of which was properly conceded by Mr McCloskey QC on behalf of the Commission. The court will clearly pay regard to the fact that statements and opinions were given to the Commission and its representatives on receipt of assurances of confidentiality and the importance of maintaining that flow of opinions and information in the future. It will no doubt seek to cause minimum disturbance to that confidence when assessing the requirements of justice in disclosure of the documents sought, bearing in mind always the principles laid down by the House in Science Research Council v Nassé [1980] AC 1028. It follows accordingly that the decision of the Court of Appeal cannot be supported and that the question of disclosure can be considered without waiting until the validity of rule 3.3 is the subject of adjudication.[added emphasis]

but here’s the opinion of Lord Bingham, which sets out the House of Lords ruling in a straightforward manner

LORD BINGHAM OF CORNHILL

My Lords,

1. As explained by my noble and learned friends Lord Carswell and Lord Brown of Eaton-under-Heywood (to whom I am indebted for their exposition of the relevant facts, the history of the proceedings, the relevant legislation and rules and the authorities), the issue in this appeal is whether discovery of five documents held by the Parades Commission should be ordered for purposes of Mr Tweed’s application for judicial review, to the extent that such application turns on a proportionality argument under the Human Rights Act 1998 and the European Convention on Human Rights.

2. The disclosure of documents in civil litigation has been recognised throughout the common law world as a valuable means of eliciting the truth and thus of enabling courts to base their decisions on a sure foundation of fact. But the process of disclosure can be costly, time-consuming, oppressive and unnecessary, and neither in Northern Ireland nor in England and Wales have the general rules governing disclosure been applied to applications for judicial review. Such applications, characteristically, raise an issue of law, the facts being common ground or relevant only to show how the issue arises. So disclosure of documents has usually been regarded as unnecessary, and that remains the position.

3. In the minority of judicial review applications in which the precise facts are significant, procedures exist in both jurisdictions, as my noble and learned friends explain, for disclosure of specific documents to be sought and ordered. Such applications are likely to increase in frequency, since human rights decisions under the Convention tend to be very fact-specific and any judgment on the proportionality of a public authority’s interference with a protected Convention right is likely to call for a careful and accurate evaluation of the facts. But even in these cases, orders for disclosure should not be automatic. The test will always be whether, in the given case, disclosure appears to be necessary in order to resolve the matter fairly and justly.

4. Where a public authority relies on a document as significant to its decision, it is ordinarily good practice to exhibit it as the primary evidence. Any summary, however conscientiously and skilfully made, may distort. But where the authority’s deponent chooses to summarise the effect of a document it should not be necessary for the applicant, seeking sight of the document, to suggest some inaccuracy or incompleteness in the summary, usually an impossible task without sight of the document. It is enough that the document itself is the best evidence of what it says. There may, however, be reasons (arising, for example, from confidentiality, or the volume of the material in question) why the document should or need not be exhibited. The judge to whom application for disclosure is made must then rule on whether, and to what extent, disclosure should be made.

5. In the present case, Mr Tweed has obtained leave to apply for judicial review on grounds which include a challenge to the proportionality of the Commission’s interference with his claimed Convention rights. The Commission’s deponent has summarised five documents which Mr Tweed wishes to see. Disclosure is resisted on the ground that this would breach the assurance of confidentiality given to the Commission’s informants. Like my noble and learned friends, and for the reasons they give, I would order that the five documents in question be disclosed by the Commission, in the first instance to the judge alone. He will assess whether the documents appear to record information imparted in confidence by identified informants. If not, he is likely to order disclosure to Mr Tweed, since there will be no reason not to do so. If they do appear to disclose such information, he must consider whether the documents add anything of value to the summaries in the evidence. If not, that will be the end of the matter. If he judges that they do add something of value to the summaries, he will move on to consider the submissions of the parties on redaction and, if raised, public interest immunity.[added emphasis]

6. I would allow the appeal and make the order which my noble and learned friends propose.

The list of documents to be disclosed is

“1. The Form 11/1 received by the Respondent dated 9 March 2004 and referred to in paragraph 6(i) of Sir Anthony Holland’s affidavit of 29 July 2004.

2. The facsimile transmission received by the Respondent from the police and referred to in paragraph 6(ii) of Sir Anthony Holland’s affidavit of 29 July 2004.

3. The police report received by the Respondent on 24 March 2004 and referred to in paragraph 6(iii) of Sir Anthony Holland’s affidavit of 29 July 2004.

4. The situation report received by the Respondent from its Authorised Officers on 24 March 2004 and referred to in paragraph 6(iv) of Sir Anthony Holland’s affidavit of 29 July 2004.

5. The note provided by the Commission’s Secretariat to the Commission members dated 30 March 2004 and referred to in paragraph 6(v) of Sir Anthony Holland’s affidavit of 29 July 2004.

6. The further situation report provided to the Respondent by its Authorised Officers on 2 April 2004 and referred to in paragraph 6(vi) of Sir Anthony Holland’s affidavit of 29 July 2004.”

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  • Yokel

    Alright, someone tell me whos winning at this stage and the implications.

    Thanks.

  • Pete Baker

    Yokel

    Mark it down as a potential victory for open and transparent government [also including public authorities].

  • jerryp

    I have a pain in my noble and learned backside trying to follow this !

  • Pete Baker

    That’s why I quoted Lord Bingham in full, the argument he set out should be reasonably easy to follow.

  • T.Ruth

    It is indeed a victory for Mr.Tweed. It also exposes the stupidity on which Parades’ Commission decisions are based. If a procession is likely to cause a deterioration in community relations it will be forbidden by the Commission. So the erstwhile residents of Dunloy, who talk much about engagement and inclusion but who clearly don’t want a Prod about the place merely have to object strongly and the ban is placed on a traditional parade dating back decades if not centuries.
    What gives the residents of Dunloy such rights to stifle democracy and the civil and human rights of any group to assemble and process peacably on the Queen’s highway? Is this attitude indicative of what we can expect from Republicans in a new Assembly? It is hard to imagine how community relations in Dunloy could be further damaged by a church parade that arouses such incandescent hatred in the 98 per cent of non Unionists in Dunloy before it takes place.What is it specifically to which residents object?.What is it that could possibly cause offence that elicits such a vicious response?.Is it a part of Republican strategy to cause social division? Did Gerry Adams really decide to develop a strategy to encourage interface and community disruption? The loyal orders are no more or less inclusive than the Roman Catholic church or the AOH.It is strange that the people of Dunloy are so afraid of a few Protestants processing a few hundred yards to attend a church service.Is it a measure of the extent of a deep seated hatred of Protestantism that is prevalent in the Roman Catholic community in Northern Ireland or is there another explanation? It contrasts with the people of Donegal in the Irish Republic who have much more respect for democracy and their neighbours and guests.In any event Mr.Tweed has shamed those who have not the decency to be open and transparent and fair in dealing with these matters-Well done.It will be a good day when the Dunloy people can show some tolerance of their fellow citizens-it will be a sign that there is hope for a future that is peaceful and democratic.

  • nmc

    T.Ruth,

    My father is from Dunloy, so when I was younger I used to attend cemetary Sunday there. Every year without fail a parade would march at the time of cemetary Sunday, I can recall missiles and abuse being thrown at mourners, and obviously music played as the marchers stalled outside the chapel.

    The reason the residents of the village of Dunloy object is because of the disgusting antics of the animals that used to attempt, yearly, to disrupt people from mourning their relatives.

    Perhaps that it is your view that it is traditional to throw missiles at catholic mourners. You’re probably right. The marchers were s-c-u-m back then, they treated the catholic minority like shit, attacked them while they mourned, and you ask why we don’t welcome them with open arms? The people you defend had the opportunity to be decent, but they chose to be bastards instead.

    The marchers treated people like shit, attacking people at the grave side and then you have the audacity to ask why the hatred exists? It exists because you harboured it, you nurtured it. Reap the whirlwind.

  • Bemused

    Quite so nmc – the problem that civil society in the North has with all this though is that the neanderthals of loyalism (a) refuse in the main to accept that the events that you describe ever occurred, (b) if they do concede that such events occurred then same were the fault of “The P.S.N.I., The Parades Commission, Sinn Feinn/I.R.A., The Dublin Government, The Pan-Nationalist Front etc. etc. etc…..”. Nakedly sectarian oafs like Tweed don’t do logic and manners. All they understand is enforced legal constraint.

  • brendan,belfast

    Not sure if it is solely a good day for the residents. Didn’t i hear somewhere tonight that the Commission welcomed today’s ruling? can everyone be happy with proceedings? if so then the Law Lords have pulled a masterstroke!

  • darth rumsfeld

    brendan, the commission are simply following New Labour spin instructions, first tested out in the NIO.
    Here’s how to play. The bigger the defeat, the more it is to be welcomed- hence Iraq and Afghanistan are triumphs for democracyJohn Prescott is a statesman without equal, and the people of Northern ireland are clamouring for a working assembly.Imagine if all of us worked like that….

    “I am delighted to be sacked by West Ham”-Alan Pardew

    “The boys are on a roll now ” Andrew Flintoff

    “All that we need for perfect policing is a batch of IRA men to join us” Hugh Orde

    “Londonderry is a nice place” – the Tourist Board

  • darth rumsfeld

    nmc
    hmmm…. We rarely question the veracity of anonymous posters on slugger-even anonymous one, but considering that the chapel isn’t on the road from the Orange hall to the presbyterian church,which is the traditional route of that parade, I regret to say I don’t believe you.

    You don’t say if this happened in the 1930s, 1970s or more recently which is important contextual detail. You invite us to infer that the jaffas deliberately arranged a parade for cemetary Sunday- which I think is in October, but am willing to be educated. I could equally mischeievously claim that a GAA match is always arranged on the Sunday that the annual orange church parade takes place.And of course the truth is probably that neither section of the community really considered the other’s events when arranging their own- and indeed why should they?
    As for abuse, I’m not going to claim it didn’t happen because I wasn’t there, but I think noone -except those with an agenda-seriously contends that one section of a divided community is the victim and the other the oppressor. There are bygots on both sides willing to rise to the bait of the other side being visible on the street.Certainly anyone who abuses any religious ceremony deserves condemnation. My experience in other areas of NI is that parades are changed to facilitate funerals and weddings in chapels on on near routes.

    In short your post is no more than another dreary variation of “They started it”- the excuse of those who are afraid of change and critical self-examination.

  • nmc

    Disbelieve away. It would have been the eighties, I’m 27 now and it was when I was a lot younger. I haven’t been inside a chapel in years, apart from when it’s absolutely necessary. As I recall the church was only recently (re)built back then, and yes bands did march outside on cemetary Sunday yearly.

    It wouldn’t be the first time the “traditional route” was deviated from in an attempt to antagonise the locals. It wouldn’t be the first time an unofficial march was organised on the hoof – if that was the case in Dunloy.

    As for what I contend or what my agenda is, the post was a response to an attack by T.Ruth on the people of Dunloy nothing more. As I said my father’s from there, I have a lot of family there, and my agenda is to defend them when they are accused of being sectarian and vicious by someone who I suspect knows nothing more about Dunloy than what he/she reads in the paper.

    On the subject of anonymity – my name is Neil McCamphill. Same as the street in Dunloy.

  • URQUHART

    T.Ruth, you said: “If a procession is likely to cause a deterioration in community relations it will be forbidden by the Commission.”

    That’s just lazy bullshit my friend. If you’re going to put up provocative posts on a subject, at least have the decency towards fellow sluggers to know what you’re talking about.

    Workman Avenue? Ardoyne? Lower Newtonards Road? Do these places and these parades ring any bells?

  • darth rumsfeld

    thanks Neil.
    Of course I can’t dispute your version of events, though I have to say that I wouldn’t be too reliant on my own 20 year old recollections viewed through a prism of hindsight, more so in the event that I was probably about 7.

    What I can say with certainty is that even then notice had to be given to the RUC, and it’s just nonsense to imply that one Sunday afternoon someone rang round the lodge and bandmembers and said “Quick lads, themmuns are up the town. Get the boys together and we’ll go and give them a blast of the Sash. That’ll slap it up them.” If only Orangemen were that responsive to leadership.

    What is undeniable too, is that in the early stages of the Dunloy dispute there was a standoff when the supporters of the local GAA club took over the cross roads and were verbally abusive and threw missiles when the police had to intervene. Yup, there is tv footage of it.That’s not to excuse the type of behaviour you rightly condemn- but sorry, sectarian and vicious behaviour isn’t the preserve of one side.

    Oh, and lest anyone point out my anonymity as evidence of double standards on my part, my real name is Attila Cheney :0p

  • Submariner

    What i find strange about the OO parades in Dunloy is that they say the are being stopped from marching from the Orange hall to their church.Ihave only been in Dunloy on a couple of occasions but from what i can remember the Orange Hall is only a couple of hundred yards from the Presb church both of which are sited on the main road into the village and not in the village itself.now correct me if im wrong but wouldnt the OO have to march past their church to get to the village?.

  • ciaran damery

    Ah dear oul Davie Tweed. Anybody remember his role as spokesman for the slime who battered Harryville church every time a mass was being said? The man who advocated physical abuse of elderly church goers because of their religion is now taking cases to the “Lords”, another bunch of useless, unmandated cretins. The sooner Tweed and his ilk get ou of Ireland the better. [edited – moderator]

  • darth rumsfeld

    submariner
    the church is on the main street, and the hall done the bottom of a minor road branching off it at a staggered crossroads. So they have to pass by about 20 houses and a couple of shops. The majority of the housing is on the upper side of the staggered cross roads. So there is only one route from hall to church- and yes, it’s only a couple of hundred yards