“nothing surprising, far less absurd or outrageous”

As the BBC report, in the House of Lords, the law lords have rejected an appeal by two former republican prisoners who had claimed they had been unlawfully discriminated against by the Simon Community because of their “political opinions”. Interestingly the law lords took somewhat different lines on the reasons for the ruling.

[Lord Rodger of Earlsferry] 30. Mr Macdonald’s description of the respondent’s interpretation of article 2(4) as a bigots’ charter completely – and insensitively – misses the point. It may well be that many, or indeed most, Northern Irish people would now feel able to overlook an expression of support for the use of violence, voiced long ago, in very different times, and long since repented of. But there are, unfortunately, many people on both sides of the sectarian divide whose lives have been blighted by the death of relatives or friends, killed in a politically motivated atrocity. Others have to live out their lives under the permanent burden of injuries sustained in such an atrocity. Some of these people may, indeed, feel able to forgive both the perpetrators and those who approved of what they did. But we admire such feelings, precisely because they cannot be commanded. Other people who have been similarly affected may, quite understandably, be unable to see matters in that way. This does not make them bigots; they are just people who have been deeply and immediately affected by the violence and who do not yet feel able to “move on” – to use the unattractive modern jargon.

31. The real question therefore is whether the 1998 Order makes it unlawful for people who feel like that to refuse to employ, or to serve, someone who once approved of the use of violence for political ends in Northern Ireland, but now no longer does so. In my view, there is nothing surprising, far less absurd or outrageous, in holding that the 1998 Order allows such people to say: “No, I’m sorry, because of all I have suffered, I won’t employ you; I won’t serve you.” To hold otherwise would be to force these vulnerable individuals to associate with people who approved of the use of the very kind of violence that has blighted their lives.

A slight difference of opinion arose over the definition of “political opinion”. Lord Rodger of Earlsferry also argued that

Girvan LJ was surely right when he said, in Ryder v Northern Ireland Policing Board [2008] NIJB 252, 260a-b, that, “depending on the facts, an opinion on methods of achieving certain results may qualify as being truly a political opinion.” For present purposes, one can test the point by taking the converse of the opinion described in article 2(4): an opinion which consists of, or includes, disapproval or rejection of the use of violence for political ends connected with the affairs of Northern Ireland. This would be an opinion behind which people could unite and form a party to contest elections. It would therefore be a “political opinion” according to the meaning of that term “which is recognised and used both in legal documents and in every day speech”: McKay v Northern Ireland Public Service Alliance [1994] NI 103, 113g, per Sir Brian Hutton LCJ. In the context of the Order, I see no reason to give the term anything other than its ordinary meaning.

While Lord Carswell contested that

63. I would not dissent from the views expressed in Ryder and supported by my noble and learned friend Lord Rodger of Earlsferry that a view as to the method by which a particular cause should be advanced may possibly in some cases and contexts itself constitute a political opinion. I would, however, hold that in the present context the approval or acceptance of violence for political ends does not rank as a political opinion. The political opinions concerned are republicanism and unionism, opposing aspirations of political identity. The division between their respective adherents reflects to a large extent the religious divide, the reason why the van Straubenzee Report recommended the inclusion of political opinion in the fair employment legislation. The overwhelming majority of the supporters of each are responsible and law-abiding citizens who seek to achieve their ends by constitutional and democratic means. Whatever may have been the position at the time when Re Lavery’s Application was decided, Sinn Fein now professes its object as being to promote Irish unity by solely political means. Paramilitary organisations resorted to violence as a means of achieving or supporting the political end of Irish unity or resisting it. I would not regard this as a political opinion in itself, for it is not an inherent and inseparable part of any political party’s beliefs or aims or those of any political movement. I do not consider that it follows from the provision in article 2(4) that Parliament necessarily classed it as a political opinion. The subsection was added to the Bill in 1976, long before the decision in Gill pointed up the distinction between a political opinion and a means of achieving a political end. It seems to me that the provision was added, possibly ex abundanti cautela, in order to ensure that, however it might be framed, the approval or acceptance of violence for political ends was not to rank as a political opinion for the purposes of the 1976 Act, whence it made its way into the 1998 Order. It does not follow that it would have so ranked if article 2(4) had not been included, and I do not think that it would.

64. If this conclusion is correct, it is sufficient to dispose of the appeal. Whether article 2(4) on its correct construction is confined to presently held opinions would be a matter of no consequence, for if approval or acceptance of the use of violence for political ends does not rank as a political opinion for the purposes of the 1998 Order, it is not relevant when the appellants so approved or accepted it or whether they have or have not ceased to do so. Much of the argument was, however, devoted to the construction of article 2(4) and in my opinion the appeal is concluded by the view which your Lordships have taken on it. I had intended to set out my views fully on this part of the appeal, but having had the advantage of reading in draft the opinion prepared by Lord Rodger I do not find it necessary to do so. I agree entirely with the reasons which he has set out in paras 24 et seq and his conclusion. I do not consider that it is appropriate to resort to the debates in Parliament, since the conditions for doing so have not been satisfied. I agree with Lord Rodger that in any event, if one were to do so, there is no useful guidance to be obtained from the statements of Ministers about the construction envisaged by Parliament of article 2(4). I would add only that the function of a court is to interpret what Parliament has actually said in the legislative provisions as eventually enacted, not what it might have liked to say or what members thought it was saying.

65. I would therefore dismiss the appeals.

There was also reference made to the employment guidelines from OFMDFM the NIO.

And that difference of opinion could come in useful in discussions on other legacy issues.

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