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Judgments - Tweed (Appellant) v. Parades Commission for Northern Ireland (Respondents) (Northern Ireland)

HOUSE OF LORDS

SESSION 2006-07

[2006] UKHL 53

on appeal from: [2005] NICA 42

 

 

OPINIONS

OF THE LORDS OF APPEAL

for judgment IN THE CAUSE

 

Tweed (Appellant)

v.

Parades Commission for Northern Ireland (Respondents) (Northern Ireland)

 

Appellate Committee

 

Lord Bingham of Cornhill

Lord Hoffmann

Lord Rodger of Earlsferry

Lord Carswell

Lord Brown of Eaton-under-Heywood

 

Counsel

Appellants:

Nicholas Hanna QC

David Scoffield

(Instructed by Carson McDowell)

Respondents:

Bernard McCloskey QC

Paul Maguire QC

(Instructed by Crown Solicitor )

 

Hearing dates:

16 and 17 October 2006

 

on

WEDNESDAY 13 December 2006

 

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Tweed (Appellant) v. Parades Commission for Northern Ireland (Respondents) (Northern Ireland)

[2006] UKHL 53

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.

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

LORD HOFFMANN

My Lords,

    7.  I have had the advantage of considering the speeches of my noble and learned friends, Lord Bingham of Cornhill, Lord Carswell and Lord Brown of Eaton-under-Heywood, in draft. I agree with them and would make the order which they propose.

LORD RODGER OF EARLSFERRY

My Lords,

    8.  I have had the advantage of considering the speeches of my noble and learned friends, Lord Bingham of Cornhill, Lord Carswell and Lord Brown of Eaton-under-Heywood, in draft. I agree with them and would make the order which they propose.

LORD CARSWELL

My Lords,

    9.  This interlocutory appeal from the Court of Appeal in Northern Ireland on the subject of disclosure of documents in judicial review applications enables the House to review the extent of disclosure which should be ordered in such applications, since the rules applicable in Northern Ireland are identical with those in England and Wales. The issue which is at the heart of the appeal is the way in which the court should approach disclosure when the question before it involves the application of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"), in particular those qualified rights contained in articles 9, 10 and 11.

    10.  Parades, or to give them their statutory name, public processions, are a well-established tradition in all democratic countries. They can be organised to celebrate, to express solidarity or cultural identity or to articulate concern and give expression to grievances. Very few of them are contentious in the sense that they provoke any opposition or counter-protest, but in Northern Ireland a small proportion of them have in recent years proved to be contentious in that sense and some of them have been the occasion of serious public disorder. The extent of that disorder in the mid-1990s caused the Government to set up a review body chaired by Dr Peter North, which produced a substantial report in 1997. The main recommendations of the North report were enacted in legislation in the passing of the Public Processions (Northern Ireland) Act 1998 ("the 1998 Act").

    11.  Section 1 of the 1998 Act established the respondent body, the Parades Commission for Northern Ireland ("the Commission"), whose membership is, by paragraph 2(3) of Schedule 1, to be as far as practicable representative of the community in Northern Ireland. By section 2(2)(b) the Commission is empowered to issue determinations in respect of particular proposed public processions. A person proposing to organise a public procession must under section 6 give notice to the police at the time and in the manner set out in that section. Determinations are provided for by section 8, subsections (1) and (2) of which read:

    "(1)  The Commission may issue a determination in respect of a proposed public procession imposing on the persons organising or taking part in it such conditions as the Commission considers necessary.

    (2)  Without prejudice to the generality of subsection (1), the conditions imposed under that subsection may include conditions as to the route of the procession or prohibiting it from entering any place."

Notice is given annually of approximately 3000 processions (to which I shall refer for convenience by their usual name of parades), but the large majority are entirely uncontentious and do not attract any restrictions. The Commission issues about 170 determinations each year containing restrictions of varying kinds.

    12.  Under section 5 the Commission has to issue a set of guidelines as to the exercise of its functions. Section 8(6) provides in part:

    "(6)  The guidelines shall in particular … provide for the Commission to have regard to -

      (a) any public disorder or damage to property which may result from the procession;

      (b) any disruption to the life of the community which the procession may cause;

      (c) any impact which the procession may have on relationships within the community …"

The appellant has in the substantive application for judicial review challenged the validity of paragraph (c), claiming that it is incompatible with the provisions of the Convention.

    13.  He also put in issue the validity of paragraph 4.4 of the Commission's guidelines, which provides:

    "Communication with the Local Community: The Commission will also take into account any communications between parade organisers and the local community or the absence thereof and will assess the measures, if any, offered or taken by parade organisers to address genuinely held relevant concerns of members of the local community. The Commission will also consider the stance and attitudes of local community members and representatives."

    14.  The Commission made procedural rules, as required by section 4 of the 1998 Act. The validity of rule 3.3 is challenged by the appellant in the interlocutory proceedings the subject of the present appeal. Rule 3.3 reads:

    "All evidence provided to the Commission, both oral and written, will be treated as confidential and only for the use of the Commission, those employed by the Commission and Authorised Officers. The Commission, however, reserves the right to express unattributed general views heard in evidence but only as part of an explanation of its decision."

    15.  Dunloy is a small village in north Antrim. It is generally found that the most acrimonious disputes and protests over parades occur in areas where there has been demographic change, and Dunloy is no exception. The local Orange lodge Dunloy LOL 496 ("the lodge") has been established in the village for many years and has its own hall there. It has been the custom for the lodge to parade at regular intervals from the Orange Hall to Dunloy Presbyterian Church, a distance of some 325 yards, and return to the hall after the service, with a band playing for the parade in each direction. In recent years the community balance of the area has changed and according to the 2001 census 97 per cent of the population of Dunloy is now Catholic. Opposition to the parades began to mount and in 1995 there was serious public disorder. Since the 1998 Act came into force the Commission has issued a series of determinations considerably restricting the parades. The Commission has sought to encourage the members of the lodge to enter into discussion with the residents of Dunloy, but they have consistently declined to do so on what they see as a matter of principle.

    16.  On 9 March 2004 the appellant gave notice to the police on behalf of the lodge of a proposed public procession to be held on Easter Sunday 11 April. The proposed route was between the Orange Hall and Dunloy Presbyterian Church and back, via Station Road and Main Street. Regalia was to be worn, but no banners carried and the parade was to be accompanied by the Dunloy Accordion Band. The police forwarded a copy of the notice to the Commission on 12 March 2004, together with an accompanying facsimile stating that the parade was an annual one, that it had previously been contentious and that it had been the subject of previous determinations by the Commission.

    17.  The lodge then undertook what the appellant refers to as a "communications strategy", sending out letters to local people and inviting them to an Open Day in Ballymoney on 2 April. On this occasion an exhibition was mounted, with the object of making information available about the Orange Order and the lodge and its memorabilia. One of the members and other representatives of the Commission attended the exhibition, but none of the residents of Dunloy came to it, and no direct contact was made with them by the officers or members of the lodge.

    18.  On 24 March 2004 the Commission received a police report on the proposed procession from Superintendent Corrigan. The report, disclosure of which is sought in the present appeal, was summarised in paragraph 6(iii) of the affidavit sworn on 29 July 2004 by Sir Anthony Holland, the chairman of the Commission:

    "(iii)  On 24 March 2004 the Commission received a police report in respect of the proposed procession. This was compiled by Superintendent Corrigan, the District Commander for Ballymoney. It contained a section dealing with recent parading history beginning with a parade on 21 May 2000 and working forward. This demonstrated that on some 27 occasions since that date public processions in Dunloy had been the subject of Determinations by the Commission restricting the route, mainly so as to prevent any procession occurring in the village of Dunloy. While, on occasions, there had been protests by Loyal Orders directed at the restrictions it was noted that the organisers had complied with all the Determinations and had abided by the Commission's Code of Conduct. There had been no disorder or violence in connection with any of the parades which, subject to a small number of minor incidents, had passed off with little attention being paid to them by local residents. It was noted that local residents believed that it was the norm for no parades to be permitted in the village.

    In terms of the impact of processions on the community, Superintendent Corrigan records that in the past applications to parade had raised tension within the wider community. In his view if the proposed parade took place without a local agreement damage would be caused to community relations within the area. In this circumstance it was thought that residents would mount a protest which would result in a number of persons taking to the streets. Such protests, if any, would bring a potential threat to public order. Superintendent Corrigan indicated that parades did have the potential to lead in Dunloy to inter-community conflict. Without any protest in opposition to the parade he noted that traffic diversions might cause limited inconvenience to village residents and business interests but in the event of a protest that led to violence from any quarter the disruption to the life of the community would be substantially increased. Superintendent Corrigan, in dealing with the impact of the proposed parade on human rights, noted that there would always remain the possibility that if the opposing factions came into contact in a disorderly manner the potential for a real and serious risk to life existed. In view of the fact that no Notice of Intention had been received to mount a counter-march or demonstration, the police view was that deployment of police would initially be maintained at as low a level as possible to ensure the safe passage of the parade consistent with the sensitivities of local residents. A peaceful protest against the parade would requite careful monitoring on the part of the police with police being positioned to deal with disorder or violence which might arise from any quarter. If violence were to occur the police response was stated to be a graduated one commensurate with the public order situation, the object being to protect the lives of all."

    19.  The Commission also received reports from its authorised officers, a variety of persons from a range of backgrounds, who obtain information and opinions from a multiplicity of sources in their areas, and from whom the Commission seeks information and advice about proposed processions. The first report, received on 24 March 2004, is summarised in paragraph 6(iv) of Sir Anthony Holland's affidavit as follows:

    "This report records a range of views which had been expressed to the authorised officers. Inter alia, it records the view being expressed that as there had been no engagement between the Loyal Orders and the Dunloy residents over the winter the status quo regarding parades ought to continue. The report records information about the Orange Order in County Antrim's communications strategy. It notes that a signed letter from the Orange Order was to be sent to every household in Dunloy outlining the thinking behind the procession and service on Easter Sunday. It also records that an invitation to residents to attend the exhibition of Orange culture at the Joey Dunlop Centre in Ballymoney had been provided and that there was also to be a presentation for a range of public representatives and others on the day prior to the exhibition. The strategy was described as constituting meaningful communication in the eyes of the Orange Order though it is noted that the initial reaction among residents was that it fell short of engagement with the local community."

    20.  A further situation report from the authorised officers was furnished to the Commission on 2 April 2004. Sir Anthony Holland summarises this at paragraph 6(vi) of his affidavit:

    "This records contacts by the authorised officers with a variety of persons from a range of backgrounds with views being expressed to the effect that any parade without residents' acceptance would be likely to lead to a deterioration in community relations and that the communication strategy of the Orange Order fell short of meaningful engagement, though potential existed for engagement arising out of the strategy. A view is also recorded in this report that relations between the police and the community would be set back a decade if a march was forced on the local population."

    21.  In paragraph 6(vii) of his affidavit Sir Anthony Holland set out a summary of the advice given by police officers at a meeting in the Commission's offices:

    "The police at the meeting expressed, inter alia, the following views:

?????  that any change to previous Parades Commission Determinations could cause further tension within the community; ?????  that if a parade were allowed to proceed on the notified route the number of those likely to protest against the parade would substantially increase; ?????  that the Lodge would obey the law; ?????  that it was only in the last 25 years that demography had changed so that Dunloy was now seen as a Catholic town; ?????  that the Lodge would see the Commission allowing the parade to take place along the frontage of the Orange Hall as being progress; ?????  that a parade on the notified route would mean a large police and army presence. It could mean 14 TSGs and 300 plus officers and soldiers; ?????  that a parade without agreement would have a substantial adverse effect on the community as a whole and would possibly affect all other parades in Dunloy in 2004."

 
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