House of Lords
|Session 2006 - 07|
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Tweed (Appellant) v. Parades Commission for Northern Ireland (Respondents) (Northern Ireland)
LORD BINGHAM OF CORNHILL
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.
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
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.
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:
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:
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:
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:
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:
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:
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:
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:
????? 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."