A decision a reasonable Secretary of State could not have made if properly directing himself in law”

Despite his efforts to clear his name to extent of appealing a negative judgement on his appointment of two commissioners to the Parades Commission, Peter Hain will be disappointed. This judgement reiterates the judgements at the High Court nearly two years ago. It seems that Eammon McCann has been proven right in at least one regard.Lord Bingham’s conclusions are worth quoting at length:

25. Mr McCloskey was right to submit, as he did, that the commission is not a court and its procedures, set out in its rules, are not those of a court. But it clearly has a duty to seek to resolve contentious disputes by mediation where this is possible and, where it is not, to make determinations which will, so far as may be, reconcile the wishes of those who wish to parade with the wishes of those who do not wish to be intimidated, insulted or inconvenienced. These are not judicial tasks, but they are tasks which can only be satisfactorily performed by a body which is accepted by both parties as independent, objective and impartial in its approach. Put negatively, the task is one which cannot be satisfactorily performed by a body which is seen by one party to be in the pocket or under the domination of the other. I do not understand these propositions to be controversial.

26. With a maximum of seven members including the chairman, the commission is a very small body. While the Act provides that a quorum for a meeting of the commission is three (Schedule 1, para 5(1)), no doubt to allow for the occasional absences and disqualifications which inevitably occur, it may be safely inferred that the commission was generally intended to act as a body comprising most, if not all, of the commissioners.

Otherwise, the representative quality which the Secretary of State was to seek to secure in its membership would not be reflected in its activities and determinations. It cannot have been contemplated by the legislature that any of the ordinary commissioners would be routinely disqualified from playing a part in the most difficult, contentious and high-profile business of the commission.

27. Mr Burrows and Mr Mackay had both been very prominent and committed proponents of the loyalist parade from Drumcree along the Garvaghy Road to Portadown. When appointed neither had resigned from the bodies to which they belonged and neither gave any recorded indication that he had changed his allegiance. No reasonable person, knowing of the two appointees’ background and activities, could have supposed that either would bring an objective or impartial judgment to bear on problems raised by the parade in Portadown and similar parades elsewhere. There is nothing in the papers which suggests that the interviewing panel recognised this problem at all, and I share the judge’s doubt, expressed in paragraph 16 of his judgment, whether they understood the nature of the task on which they were engaged. They do not appear to have considered whether these appointees could plausibly or lawfully act as mediators or decision-makers in relation to the Garvaghy Road or similar contentious parades elsewhere or whether, if not, they could play a full part as commissioners. They do not appear to have considered whether the activities and decisions of a body including two such prominent and partisan activists would command widespread acceptance among the general public. If these matters were considered and discussed they were certainly not fully documented, as the OCPA code of practice required. Essentially the same criticisms must be made of the part of the selection process to which the Secretary of State was personally party. Had these matters been addressed, as in my opinion they plainly should have been, the conclusion would have been reached (and certainly should have been reached) that these appointees could not plausibly and lawfully act as mediators or decision-makers in relation to the Garvaghy Road and similar parades elsewhere, and that they could not, accordingly, play anything approaching a full part in the business of the commission. It was one thing to ensure that the loyalist interest was represented within the commission, but quite another to recruit two hardline members of the very lodges whose activities had been a focus, probably the main focus, of the serious problems which had caused widespread disorder and led to establishment of the commission.

28. I feel bound to conclude that the decision to appoint Mr Burrows and Mr Mackay was one which a reasonable Secretary of State could not have made if properly directing himself in law, if seised of the relevant facts and if taking account of considerations which, in this context, he was bound to take into account. Both appointments were accordingly unlawful.

29. Having reached this conclusion I think it unnecessary to review additional arguments advanced on behalf of Mr Duffy, including an argument based on section 76 of the Northern Ireland Act 1998.

30. No purpose is served by making any order in relation to Mr Mackay. For the reasons I have given, and in agreement with my noble and learned friends Lord Carswell and Lord Brown of Eatonunder-Heywood, I would allow Mr Duffy’s appeal and reinstate the judge’s order. The Secretary of State must pay Mr Duffy’s costs in the House and in the courts below.”

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  • Pete Baker

    And still on the Parades Commission, for now – Mr David Burrows.

  • steve48

    “a reasonable Secretary of State”

    therein lies the problem with Peter Hain though it should be stated that the deliberate exclusion of members of the Institution from any public appointment would also be discriminatory.

  • Pete Baker

    Mick

    Shaun Woodward’s response

    Shaun Woodward said: “I note and accept the Lords ruling. It is obviously sensible for everyone to reflect carefully on today’s detailed judgement and consider its full implications. This brings an end to the legal process surrounding the appointments, made over two years ago, to the Parades Commission.

    “I want to pay tribute to the work of David Burrows for his courage in putting himself forward to be a member of the Parades Commission and for the contribution he has made to the work of the Commission.

    “The job of the Commission is extremely challenging and it is important that it is brought back to full strength as soon as possible. I will want to make a decision on a new appointment as quickly as is practicable and sensible.” [added emphasis]

    Obviously money well spent.. again..

  • joeCanuck

    It’s rather obvious that they (NIO) made a lot of it up as they went along.

  • Bemused

    “It’s rather obvious that they (NIO) made a lot of it up as they went along.

    Posted by joeCanuck on Jan 30, 2008 @ 12:33 PM”

    I’d go further than than that Joe – it’s obvious that Hain was THE most corrupt, cavalier and contemptible Secretary of State that this ‘province’ has ever had. The man behaved like some sort of grubby mafioso spivving his way through his time in office and treating the rule of law and the legitimate and lawful expecations of Northern Ireland’s citizens as some sort of pesky inconvenience. [Ball! – moderator]

  • heck

    bemused

    a little overstated i think

    I can remember Roy Mason-the closest thing to a facist I have seen in the SOS office

  • DC

    I think bemused is bang on and the fact is Peter Hain would probably agree at least he knew that is was people of Northern Ireland thought of him while in office.

    Either he likes that image or likely down to antics associated with getting the local democracy secured to release direct rulers from the strain of mis-managing sectarian politics.

  • Ian

    Does this mean that Parades Commission rulings over the past two years were unlawful?

    For instance, no reasonable and unbiased commission would have rewarded the Loyal Orders for their outrageous behaviour at Whiterock in September 2005 by allowing the parade again in the summers of 2006 and 2007.

    Another recent court ruling has seen fresh criticism of senior NI civil servants:

    http://www.belfasttelegraph.co.uk/news/local-national/article3382251.ece

    Does anyone have a link to the wording of the actual ruling? I’d be interested to see if one of the senior civil servants criticised by the judge was a certain Mr Hamilton…

  • Ian, the Parades Commission is a most pecular body.

    It mainly remains mute when paramilitary groups organise parades; it apparently endorses this activity.

    It might argue that no objections have been raised but who’s going to put their head above the parapet and risk the fate of, say, young Quinn from south Armagh.

    It might also argue that some of the loons are highly respected citizens, even if the respect is essentially limited to Governments and President McAleese.

  • Ian

    Nevin, I wasn’t referring to illegal paramilitary displays. I was referring to the official Orange Order Whiterock parade in Sept 05, when members of the OO in full sash and regalia attacked the police with ceremonial swords when the Parades Commission re-routed their parade.

    The freshly-installed Parades Commission then rewarded those violent actions by reversing their stance the following summer and allowing the parade to go ahead.

  • Ian

    The freshly-installed Parades Commission **loaded with OO members** …