“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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  • Paul

    Congratulations Pete you managed to write a whole post with only 6 back links. I knew you had it in you. Sarcasm aside, so its okay to descriminate against someone as long as that some one is a republican?

  • Reader

    Paul: Sarcasm aside, so its okay to descriminate against someone as long as that some one is a republican?
    It looks like you can discriminate against loyalists too.

  • Jimmy

    Did the two guys state that they had changed their political opinions and were now neutral and that they don’t agree with the shooting or bombing of anyone anymore? Or were they unreformed Violent Republicans?

    That would be like a Loyalist with a pathological hatred of Catholics working in a Falls Road Community centre or a paedophile working with Children it just can’t be done, if they didn’t state they have changed then they appear to have shot themselves in the foot.

    Still it begs the Question that if these two guys were denied the right to work due to their beliefs-opinions, how is Sinn Fein-DUP are able to administer power at Stormont? I think there was clear hypocrisy and double standards in what can only be described as a political decision wrapped up as a judicial one. I wonder what PSF response to it will be?

  • BonarLaw

    “if these two guys were denied the right to work due to their beliefs-opinions”

    No this is about their actions, albeit some time ago.

    BTW respect to Lord Rodger. There is a section of the Northern Ireland Bar that is making a habit of being on the wrong side of their Lordships.

  • USA

    I am not aware of the details of this case, nor do I have the time or inclination to get up to speed.
    But from what I have read here on Slugger the comments of this judge do not sit well with me. To quote:
    “Lord Roger of Earlsferry – …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.”

    Why does this judge feel qualified to speak for all the people of “Northern Ireland”.
    His statement also indicates political naivety and an inability to view the conflict in its totality. For example, he is right that some seasoned republicans would indeed be repentant of the role they played in the conflict as young men. But others might feel it was the regrettable circumstances of their time, while more would remain firm in their believe that it was the only option open under mitigating circumstances or their firm beliefs in republican ideology.
    I would posture that the overwhelming majority of these republican ex-prisoners would express regret of the loss of human life during the course of the conflict.
    I don’t think the judge should be pre-empting peoples perspectives of the conflict, is he suggesting that people in “Northern Ireland” must repent before they are fully accepted into society. Surely society in “Northern Ireland” is packed with thousands (maybe 10’s of thousands) of ex-paramilitaries from both sides. Are they all to be denied jobs in the public and private sector because of the past. Did they not “serve their time”, were they not released as part of the Good Friday Agreement? His statement seems unhelpful and naive.

    He then goes on to say “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”.

    I think he is probably blind to the British role in events. He is blind to atrocities carried out by British forces and the hurt they caused. The list is well known, such as Bloody Sunday, Internment, Torture, Diplock Courts, Collusion, Death Squads etc.
    If those people also feel unable to forgive can Catholic businessmen and women deny employment opportunites to ex RUC, British Army, UDR etc? I don’t think so. I thought people were trying make progress in this area, such as the GAA lifting its ban of British military participation. Again the judge is probably the person missing the point, I think he is waxing lyrical about things he doesn’t understand. Is he a British judge in London rather than an Irish one? If so this would explain his “detatched” ruling which seems incapable of concieving the conflict in any other manner than British Forces = Good, Irish Insurgents = Bad.

    Finally, and perhaps most problematical of all is when he finishes with the comment “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.”

    Now if that is considered the current state of the law then you can throw out your Fair Employment legislation because anyone will be able to hire and fire whomever they wish based on percieved personal suffering during the Troubles. Also you would have a situation where people are not served in stores and restaurants because of precieved injustices of the past.
    You don’t need legislation for that, you can just wear a GAA top to Sainsburys in Ballymena.
    Nuts. This guy should retire.

  • granni trixie

    I’m all for giving ex-prisoners of any kind a break…within reason and poportionate to their crime. Why should a homeless person have to endure say a reformed Shankill Butcher? Surely a duty of care to the homeless person comes above consideration for an ex-prisoner?

    Another point – who paid for the cases on each side. What a waste of money for a charity and where did 2 ex-prisoners find the money for a case pending since 2001 (Barry Mcdonald doesnt come cheap). The public purse would not be payig (my understanding is that legal aid would not be available to such a case)..so where did unemployed people get money to pay for such a futile exercise?

  • BonarLaw

    USA

    This is about employing convicted terrorists not “percieved personal suffering”. Nothing to do with fair employment or, forgive my insensitive language, a “bigots charter” but the criminal records of two unsuccessful applicants.

    But I suspect you know that which is why your post attempts crude deflection via a rant about British judges (what other type could they be?) and GAA tops in Ballymena Sainsburys’.

    BTW I think you meant Tescos. In Antrim.

  • Paul McMahon

    “That would be like a Loyalist with a pathological hatred of Catholics working in a Falls Road Community centre or a paedophile working with Children it just can’t be done, if they didn’t state they have changed then they appear to have shot themselves in the foot”

    And murderers, who murdered while on active duty, being reinstated into the British Army Jimmy?

  • BonarLaw

    USA

    “judge Rogered”

    That’s why I can’t be arsed with your rant save to suggest you go and read the judgement before you go second guessing Law Lords.

  • Brian MacAodh

    I had a girlfriend who dumped me once. I suffered. I should have the right to bar her and her family from ever being employed at my firm

  • The Raven

    Brian. Yes.

  • Harry Flashman

    Of course you should Brian. I am a bit of a curmudgeon on this issue, if a private enterprise, not in receipt of public funds, wishes to pick and choose whom it employs or does business with that’s their god-damned right, the government has no business forcing people to be nice to each other.

    If private individuals do not like and do not wish to engage in commerce or employment with Catholics, gingers, Tories, vegans, taxi-drivers, Guardian readers, old farts, baldies, Star Trek fans, estate agents, Man Utd supporters or whoever that should be entirely a matter for them and the state should butt out of the lives of private citizens.

    Ah! but I hear the Nanny Staters cry, what about people that discriminate against blacks or women or gays? Once again I state for the record if it is a private concern not in receipt of government funds it is no business of the state to tell them who to work with. If a company does discriminate against blacks then the blacks are free to protest, to picket, to organise boycotts, to open up a rival business and those people who don’t want to do business with racists are free to go elsewhere.

    That’s how freedom works folks, don’t always reach for the dead hand of government.

    Freedom of association is a very fundamental human right, it is precious and hard won, do not dismiss it frivolously, throw it away in one case then soon you will find it is taken away from you in another way. The right to freedom of association also means the right not to associate.

    Don’t dismiss your fundamental liberties as some sort of “bigot’s charter”, freedom of speech, freedom of religion are also “bigot’s charters”, do you want to throw them away too?

  • USA

    Harry Flashman,
    LOL…thanks for that contribution Harry, it was hilarious.
    Can you imagine if someone actually seriously held such beliefs?