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

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    22.  The Commission issued its determination on 5 April 2004. In the opening paragraphs it referred to the background of previous incidents in Dunloy and stated in paragraph 6:

    "The Commission has cause to believe that should the parade process the entirety of its notified route, there will be an adverse effect on community relations and a potential for public disorder."

It went on to state in paragraph 15:

    "The Commission believes that community relations in Dunloy would be significantly damaged by the passage of this parade should it proceed without restriction. This would cause increased tension and disaffection, which would work against the building of an understanding that could support a long-term pattern of parading."

The determination applied a number of conditions to the parade, many of which the members of the lodge could readily accept. The parade itself was, however, very closely confined to a very short stretch of road outside the frontage of the Orange hall, which the members regarded as very little different in effect from a complete ban on parading.

    23.  The applicant on 2 June 2004 commenced proceedings for judicial review of the Commission's determination and on 10 June Girvan J granted leave to apply. The application was based, as I have stated, partly on a challenge to the compatibility with the Convention of section 8(6)(c) of the 1998 Act and the validity of paragraph 4.4 of the Commission's guidelines and rule 3.3 of its procedural rules, and partly on a claim that the determination constituted a disproportionate infringement of his Convention rights. The application for disclosure of documents hinges round the extent which is required when an application for judicial review turns on the proportionality of the respondent's action.

    24.  By a summons dated 29 September 2004 the appellant's solicitors sought specific discovery of the documents set out in the schedule to the summons, described as follows:

    "1.  The Form 11/1 received by the Respondent dated 9 March 2004 and referred to in paragraph 6(i) of Sir Anthony Holland's affidavit of 29 July 2004.

    2.  The facsimile transmission received by the Respondent from the police and referred to in paragraph 6(ii) of Sir Anthony Holland's affidavit of 29 July 2004.

    3.  The police report received by the Respondent on 24 March 2004 and referred to in paragraph 6(iii) of Sir Anthony Holland's affidavit of 29 July 2004.

    4.  The situation report received by the Respondent from its Authorised Officers on 24 March 2004 and referred to in paragraph 6(iv) of Sir Anthony Holland's affidavit of 29 July 2004.

    5.  The note provided by the Commission's Secretariat to the Commission members dated 30 March 2004 and referred to in paragraph 6(v) of Sir Anthony Holland's affidavit of 29 July 2004.

    6.  The further situation report provided to the Respondent by its Authorised Officers on 2 April 2004 and referred to in paragraph 6(vi) of Sir Anthony Holland's affidavit of 29 July 2004."

Item 1 was not in issue, as it was the appellant's own document, but the Commission has resisted discovery of the other five.

    25.  Girvan J in the High Court acceded to the appellant's application and ordered discovery of the documents specified as items 2 to 6 of the summons, subject to any issue which might be raised of public interest immunity. In a written judgment given on 19 November 2004 he concluded that in a case where proportionality is in issue disclosure of the full documents referred to in the affidavit of Sir Anthony Holland should take place. He stated at paragraph 11 of his judgment:

    "Whatever the position may be in judicial review cases where no Convention issue or issue of proportionality arises, in a case where proportionality is in issue I consider that disclosure of the full documents referred to in the affidavit should take place. If the anxious scrutiny by the court or the intense review (whichever term one uses) is to be properly carried out then the court should have had sight of the documents. If this were not so the decision maker's interpretation and synopsis of documents would bind the court and the court would at least in part have surrendered to the decision maker the question of determining weight and the relevance of material before the decision maker when reaching its decision. A decision maker acting in perfectly good faith may put a particular interpretation on documentary material which on a proper analysis turns out in law to be erroneous. It is only by seeing the documents that the court itself can carry out its function properly."

    26.  The Commission appealed with the leave of the judge against this ruling and the Court of Appeal (Kerr LCJ, Campbell LJ and Morgan J) set aside the order for disclosure, on the ground that it was premature to require it until the validity of rule 3.3 had been determined. Morgan J, giving the judgment of the court on 7 September 2005 , referred to the principle, to which I shall return later, that the intensity of review in a public law case will depend on the subject matter in hand, quoting Lord Steyn's remark "In law context is everything." He stated his conclusions in paragraphs 22 and 23:

    "[22]  In this case the context is set in part by the nature of the convention rights in issue, the extent of interference with those rights and the implications, if any, for the rights and freedoms of others. But it is also clear that the procedures which the court should use for the purpose of carrying out its scrutiny of the interference with the rights may well be determined by the procedural context which the court finds appropriate in this case. Rule 3.3 of the Procedural Rules provides a mechanism whereby the rights and freedoms of others are taken into account in a manner which imposes a duty of confidence on communications with the Commission. The validity of such an approach is at issue in the substantive judicial review application and the outcome of that challenge must set an important procedural context for the determination of the question as to whether discovery of those communications is necessary for fairly disposing of the matter or for saving costs. It is only when that context has been established that the issue of discovery in this proportionality challenge can be resolved.

    [23]  Accordingly I consider that it is not at this stage necessary for fairly disposing of the matter or for saving costs to order discovery of the documents sought and I would allow the appeal."

    27.  Discovery of documents, now termed disclosure in the Civil Procedure Rules applying in England and Wales, is governed by Order 24 of the Rules of the Supreme Court (Northern Ireland) 1980, the analogue of RSC Order 24, which applied before the CPR came into being. The same principles continue to apply in both jurisdictions and for convenience I shall refer to the procedure as disclosure, notwithstanding the fact that it continues to bear the appellation of discovery in the RSC in Northern Ireland.

    28.  Applications for judicial review in Northern Ireland are not subject to the requirement contained in RSC (NI) Order 24, rule 2(1) that the parties exchange lists of documents, which applies only to actions in which pleadings are served. They are governed instead by the provisions of rule 3(1), whereby the court may order any party to make disclosure by a list of documents, and rule 7(1), empowering the court to require a party to make disclosure by affidavit in relation to any specified document or class of documents. These rules are in turn subject to rule 9, which provides that on applications for orders under rule 3 or 7 the court shall refuse to make an order for disclosure "if and so far as it is of the opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs." Until the Civil Procedure Rules came into force in England and Wales identical provisions applied under RSC Orders 24 and 53. Under CPR Practice Direction CPD 54.12, however, it is specifically provided that disclosure is not required unless the court orders otherwise.

    29.  The courts in both jurisdictions developed over a series of decisions an approach to disclosure in judicial review which is more narrowly confined than in actions commenced by writ. The basis of this approach is that disclosure should be limited to documents relevant to the issues emerging from the affidavits: see R v Inland Revenue Commissioners, Ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 654, per Lord Scarman, and cf Lewis, Judicial Remedies in Public Law, 3rd ed (2004), para 9.086 and a valuable article by Oliver Sanders, Disclosure of Documents in Claims for Judicial Review [2006] JR 194. In building upon this foundation the courts developed a restrictive rule, whereby they held that unless there is some prima facie case for suggesting that the evidence relied upon by the deciding authority is in some respects incorrect or inadequate it is improper to allow disclosure of documents, the only purpose of which would be to act as a challenge to the accuracy of the affidavit evidence: see the line of authority represented in England by R v Secretary of State for the Environment, Ex p Islington London Borough Council and the London Lesbian and Gay Centre [1997] JR 121 and in Northern Ireland by Re McGuigan's Application [1994] NI 143 and Re Rooney's Application [1995] NI 398.

    30.  The reasoning of the arguments underpinning the principles laid down by the courts has not escaped criticism and some judicial unease has been expressed on occasion about their application and effect. The "terminus" argument (that in judicial review the court is not required to consider the route by which the impugned decision is reached, but only the terminus), which emerged first in R v Secretary of State for the Home Department, Ex p Harrison [1997] JR 113 although adopted in a number of subsequent cases, has not been universally regarded as valid. A note of caution about accepting it without qualification appears in the judgment of Dillon LJ in R v Secretary of State for the Environment, Ex p Islington London Borough Council. When the Law Commission issued its report Administrative Law: Judicial Review and Statutory Appeals (1994, Law Com No 226, HC 669) it recorded (para 7.8) that two thirds of those who responded to the consultation paper favoured the introduction of a more liberal regime of discovery. The Law Commission expressed the opinion in para 7.12 that the requirements of the accepted rule were unduly restrictive and undermined the basic test of relevance and necessity laid down in O'Reilly v Mackman [1983] 2 AC 237.

    31.  The reasons which have hitherto been regarded as providing grounds for maintaining these principles are (a) the obligation resting on a public authority to make candid disclosure to the court of its decision making process, laying before it the relevant facts and the reasoning behind the decision challenged: see, eg, Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment of Belize (No 2) [2003] UKPC 6, para 86, per Lord Walker of Gestingthorpe; R v Secretary of State for the Home Department, Ex p Fayed [1998] 1 WLR 763 at 775, per Lord Woolf MR; (b) the undesirability of allowing "fishing expeditions", where an applicant for judicial review may not have a positive case to make against an administrative decision and wishes to obtain disclosure of documents in the hope of turning up something out of which to fashion a possible challenge: cf R v Secretary of State for Health, Ex p Hackney London Borough Council (unreported) 29 July 1994; Court of Appeal (Civil Division) Transcript No 1037 of 1994, per Sir Thomas Bingham MR.

    32.  Mr Hanna QC for the appellant invited your Lordships to reconsider these principles limiting the extent of disclosure in judicial review applications, as they have not been explored in an appeal before the House. He placed this argument before the House, without developing it very far, as he concentrated on the question of the effect of the proportionality issue. I do consider, however, that it would now be desirable to substitute for the rules hitherto applied a more flexible and less prescriptive principle, which judges the need for disclosure in accordance with the requirements of the particular case, taking into account the facts and circumstances. It will not arise in most applications for judicial review, for they generally raise legal issues which do not call for disclosure of documents. For this reason the courts are correct in not ordering disclosure in the same routine manner as it is given in actions commenced by writ. Even in cases involving issues of proportionality disclosure should be carefully limited to the issues which require it in the interests of justice. This object will be assisted if parties seeking disclosure continue to follow the practice where possible of specifying the particular documents or classes of documents they require, as was done in the case before the House, rather than asking for an order for general disclosure.

    33.  In support of his claim for disclosure of the documents the appellant also called in aid the provisions of RSC (NI) Order, rule 11:

    "11 —(1) Any party to a cause or matter shall be entitled at any time to serve a notice on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof.

    (2) The party on whom a notice is served under paragraph (1) must, within 4 days after service of the notice, serve on the party giving the notice a notice stating a time within 7 days after the service thereof at which the documents, or such of them as he does not object to produce, may be inspected at a place specified in the notice, and stating which (if any) of the documents he objects to produce and on what grounds."

In Dubai Bank Ltd v Galadari (No 2) [1990] 1 WLR 731, 737, Slade LJ, giving the judgment of the court, said that they were disposed to share Morritt J's view that the phrase "whose … affidavits" extends to any affidavit sworn by a deponent who is not a party, but which is procured by and filed or used on behalf of a party. That view was expressed in unqualified form in The Supreme Court Practice 1997, para 24/10/1, and it seems to me clearly correct to adopt such an interpretation to make the rule sensible and workable. Moreover, an entity such as the Parades Commission can only swear an affidavit by a person duly authorised to make it on his behalf. I am therefore satisfied that the affidavit sworn by Sir Anthony Holland on behalf of the Commission comes within rule 11(1). (A similar difficulty of interpretation would not arise under CPR 31.14(1), which entitles a party to inspect a document mentioned in, inter alia, "an affidavit"). A party whose affidavits contain a reference to documents should therefore exhibit them in the absence of a sufficient reason (which may include the length or volume of the documents, confidentiality or public interest immunity). If he raises objection to production of any document, the judge in a Northern Ireland case can decide on the hearing of a summons under rule 12 whether to order production, bearing in mind the provisions of rule 15(1) that no such order is to be made unless the court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs. In England and Wales the court may order specific disclosure or inspection under CPR Rule 31.12. In determining the extent of such disclosure or inspection the court will take into account all the circumstances of the case and in particular the overriding objective in Part 1 and the concept of proportionality: Civil Procedure 2006, vol 1, para 31.12.2.

    34.  The essence of the appellant's case, and the ground on which Girvan J found in his favour, is in the effect of the Convention and the principle of proportionality. The appellant has claimed that the restrictions infringe his rights under articles 9, 10 and 11:

    "Article 9

    Freedom of thought, conscience and religion

    1.  Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

    2.  Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

    Article 10

    Freedom of expression

    1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

    2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

    Article 11

    Freedom of assembly and association

    1.  Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

    2.  No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."

It is not necessary in this appeal to pronounce upon the question of which of these articles may be engaged or whether the objects for which the Commission imposed the restriction fell within the grounds on which the rights may be qualified. I am content to assume for the purposes of this disclosure application that each of them is engaged and that the qualifications in articles 9(2), 10(2) and 11(2) will apply. The significant point is that under each article the acts of the Commission in imposing restrictions must be proportionate.

    35.  This concept was described by Lord Steyn in a passage at paragraphs 27 and 28 of his opinion in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, which has been much quoted since but bears repetition:

    "27  The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 the Privy Council adopted a three-stage test. Lord Clyde observed, at p 80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself:

    'whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.'

    Clearly, these criteria are more precise and more sophisticated than the traditional grounds of review. What is the difference for the disposal of concrete cases? Academic public lawyers have in remarkably similar terms elucidated the difference between the traditional grounds of review and the proportionality approach: see Professor Jeffrey Jowell QC, 'Beyond the Rule of Law: Towards Constitutional Judicial Review' [2000] PL 671; Professor Paul Craig, Administrative Law, 4th ed (1999), pp 561-563; Professor David Feldman, 'Proportionality and the Human Rights Act 1998', essay in The Principle of Proportionality in the Laws of Europe edited by Evelyn Ellis (1999), pp 117, 127 et seq. The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various convention rights, which I do not propose to discuss, a few generalisations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554 is not necessarily appropriate to the protection of human rights. It will be recalled that in Smith the Court of Appeal reluctantly felt compelled to reject a limitation on homosexuals in the army. The challenge based on article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the right to respect for private and family life) foundered on the threshold required even by the anxious scrutiny test. The European Court of Human Rights came to the opposite conclusion: Smith and Grady v United Kingdom (1999) 29 EHRR 493. The court concluded, at p 543, para 138:

    'the threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy irrational was placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants' rights answered a pressing social need or was proportionate to the national security and public order aims pursued, principles which lie at the heart of the court's analysis of complaints under article 8 of the Convention.'

    In other words, the intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued.

    28  The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving Convention rights must be analysed in the correct way. This does not mean that there has been a shift to merits review. On the contrary, as Professor Jowell [2000] PL 671, 681 has pointed out the respective roles of judges and administrators are fundamentally distinct and will remain so. To this extent the general tenor of the observations in Mahmood [2001] 1 WLR 840 are correct. And Laws LJ rightly emphasised in Mahmood, at p 847, para 18, 'that the intensity of review in a public law case will depend on the subject matter in hand'. That is so even in cases involving Convention rights. In law context is everything."

    36.  Along with the concept of proportionality goes that of a margin of discretion, frequently referred to as deference or, perhaps more aptly, latitude. This has been conveniently encapsulated in a passage in Lester & Pannick, Human Rights Law and Practice, (1999) para 3.21, quoted with approval by Lord Steyn in Brown v Stott [2003] 1 AC 681 at 710-11 (the same passage appears with slight modification in Lester & Pannick's 2nd edition (2004) at para 3.20):

    "Just as there are circumstances in which an international court will recognise that national institutions are better placed to assess the needs of society, and to make difficult choices between competing considerations, so national courts will accept that there are some circumstances in which the legislature and the executive are better placed to perform those functions."

That this also applies to other public bodies is clear from the expression of the principle in Fordham, Judicial Review Handbook, (3rd ed, 2001), para 58.2, cited with approval by Lord Walker of Gestingthorpe in R (ProLife Alliance) v British Broadcasting Corporation [2003] UKHL 23, [2004] 1 AC 185, para 138 (a closely similar passage appears in Fordham's 4th edition (2004) at para 58.5):

    "Hand in hand with proportionality principles is a concept of 'latitude', which recognises that the Court does not become the primary decision-maker on matters of policy, judgment and discretion, so that public authorities should be left with room to make legitimate choices. The width of the latitude (and the intensity of review which it dictates) can change, depending on the context and circumstances. In other words, proportionality is a 'flexi-principle'. The latitude connotes the degree of deference by court to public body."

I do not propose to explore further in this opinion the degree of deference due or latitude to be extended to a body such as the Commission, for this will be an issue in the substantive application for judicial review. It is sufficient at this stage to say that it is one of the issues which the court must take into account when considering the question of disclosure.

    37.  The Court of Appeal concluded (in paragraphs 22-23 of the judgment of Morgan J which I quoted) that the validity of rule 3.3 of the Commission's procedural rules required to be ascertained before the extent of disclosure of documents could be settled. Girvan J expressed the view, however, in the High Court that the interests of justice could, if it were required, override the provisions of rule 3.3. He said at paragraph 8 of his judgment:

    "[8]  There are issues as to whether para 3.3 of the Procedural Rules are [sic] invalid and or whether the application of the rule involves an unfair procedure for determination of the issue which the Parades Commission had to determine. Discovery of the relevant documents would not be necessary for the determination of that legal issue. Para 3.3, if read as subject to an overriding power of the court to direct disclosure of documents if disclosure is necessary in the interests of justice, would not in itself preclude an order [for] disclosure if that is required in the interests of justice. The court would in that event have to determine whether it would be appropriate to direct discovery taking account of the fact that information in evidence was gathered on the basis that it would be treated as confidential. It would, in my view, require clear words to preclude the court from ordering disclosure of documents when [ex] hypothesi it considers that the interests of justice so require. Para 3(3) falls to be construed and applied in the context of rules made to explain how the court will exercise its statutory functions. It does not govern proceedings to challenge determinations in which a court is called on to review the legality of the way in which the Commission has exercised its functions, particularly where the court is required to take account of Convention rights. Accordingly, I conclude that there is nothing in para 3(3) which precludes an order for discovery, if otherwise appropriate. Insofar as the documents contain information obtained confidentially the protection of confidentiality may be achievable by limited redaction. Confidentiality, on its own, would not prevent an order for disclosure if the interests of justice are required and there is no public interest which requires that the documents should not be disclosed."

I am in complete agreement with these propositions, the correctness of which was properly conceded by Mr McCloskey QC on behalf of the Commission. The court will clearly pay regard to the fact that statements and opinions were given to the Commission and its representatives on receipt of assurances of confidentiality and the importance of maintaining that flow of opinions and information in the future. It will no doubt seek to cause minimum disturbance to that confidence when assessing the requirements of justice in disclosure of the documents sought, bearing in mind always the principles laid down by the House in Science Research Council v Nassé [1980] AC 1028. It follows accordingly that the decision of the Court of Appeal cannot be supported and that the question of disclosure can be considered without waiting until the validity of rule 3.3 is the subject of adjudication.

 
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