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|Judgments - In re Duffy (FC) (Appellant) (Northern Ireland)
HOUSE OF LORDS
 UKHL 4
on appeal from:  NICA 28
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
In re Duffy (FC) (Appellant) (Northern Ireland)
Lord Bingham of Cornhill
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Barry Macdonald QC
(Instructed by Howe & Co Solicitors (London) P Drinan Solicitor (N. Ireland))
Bernard McCloskey QC
Paul Maguire QC
(Instructed by Treasury Solicitors)
26 & 27 NOVEMBER 2007
WEDNESDAY 30 JANUARY 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
In Re Duffy (FC) (Appellant) (Northern Ireland)
 UKHL 4
LORD BINGHAM OF CORNHILL
1. Mr Duffy, the appellant, is a member of the Garvaghy Road Residents Coalition. He applied for judicial review to challenge the appointment by the Secretary of State for Northern Ireland on 30 November 2005 of two new members of the Parades Commission for Northern Ireland. Those members are Mr David Burrows and Mr Donald Mackay (who has since resigned from the commission). Mr Duffys challenge was based on a number of grounds directed to the suitability of Mr Burrows and Mr Mackay to be members of the commission and to the process leading to their appointment. His challenge was upheld, on a limited ground, by Morgan J but was rejected by a majority of the Court of Appeal in Northern Ireland (Kerr LCJ and Campbell LJ, Nicholson LJ dissenting) in the judgment now under appeal ( NICA 28,  NI 12).
2. The holding of public parades, processions and marches has long been cherished by adherents of both the main traditions in Northern Ireland, the protestant/unionist and the catholic/nationalist, as a means of expressing their values and celebrating their history. In many cases such events pass off peacefully and unprovocatively. But this has not always proved to be so.
3. Dr Peter North, in paragraph 4.4 of Chapter 4 of the report referred to below, recorded that after a comparative lull from 1989-1994, parades were a source of contention in a number of areas in 1995". One contentious parade in that year was the parade from the parish church at Drumcree along the Garvaghy Road to the centre of Portadown in County Armagh. The parade was held by the District Orange Lodge, a protestant/unionist body, and the parade was contentious because its route along the Garvaghy Road took it through a catholic/nationalist area. There was a prolonged stand-off outside the church, the police were involved and relations between the two communities deteriorated.
4. Events at Drumcree and in the Garvaghy Road in July 1996 were described in the North report as of critical importance (ibid., para 4.11). Attempts to secure some agreement between the two sides had been unsuccessful. The police served notice on the organisers restricting the route of the parade, but this order was resisted, large crowds gathered and for several days there was widespread and serious disorder in Northern Ireland. The police and the military security forces struggled to keep order, but the Chief Constable, fearing a threat to life, revoked the order restricting the route of the parade, which accordingly returned from the parish church to Portadown along the Garvaghy Road. This led to serious disorder, particularly in nationalist areas of Belfast and Londonderry: see North, op. cit, paras 4.11-4.17, and Chapter 10. Londonderry experienced the worst rioting in 25 years.
5. Responding to these problems, the government in August 1996 invited a body under the chairmanship of Dr North to conduct an independent review of parades and marches. Their Report: Independent Review of Parades and Marches was published in January 1997. They recommended (Chapter 12) the establishment of an independent body which would (para 12.21) allow interested parties to put their views forward about proposed parades, encourage them to settle difficulties locally, and where that proved impossible, itself come to a view on what, if any, conditions should be imposed on contentious parades after an appropriately transparent process of examination of all the relevant issues against the background of reformed legal provisions. The composition of the proposed commission was accepted to be of critical importance to its success (para 12.31): it would need widespread acceptance, self-confidence and an ability in its members to work together.
6. The review bodys recommendation was accepted, and a commission was established on an informal basis in March 1997. In that year the police allowed the parade to process down the Garvaghy Road, but the area was effectively sealed off and residents were confined to their homes for a number of hours. Steps were then taken to give the commission formal recognition, and in February 1998 the Public Processions (Northern Ireland) Act 1998 was enacted. This established the commission as a body with a chairman and up to 6 members. Its duties, expressed in section 2, were in part educational and advisory but included the promotion and facilitation of mediation as a means of resolving disputes about public processions. It was empowered under the same section to facilitate mediation between parties to particular disputes, to take such other steps as might be appropriate to resolve such disputes and to issue determinations in respect of particular proposed public processions. It was to issue a code of conduct for those organising or taking part in public processions or public meetings and to issue procedural rules and guidelines. Under section 8 it had power to impose conditions on those organising or taking part in proposed public processions, prescribing among other things the route to be followed. Criminal penalties attached to wilful breach of conditions imposed by the commission. Relevant for present purposes is paragraph 2(3) of Schedule 1 to the Act:
The Secretary of State shall so exercise his powers of appointment under this paragraph as to secure that as far as is practicable the membership of the Commission is representative of the community in Northern Ireland.
7. In 1998 the newly-established commission made its first determination relating to the Garvaghy Road. It prohibited the parade down the road, a determination which it repeated in subsequent years. Portadown Loyal Orange Lodge No 1 responded by giving notice week by week, up to 50 times each year, of its proposal to hold a deferred parade including a procession down the Garvaghy Road.
8. In recent years the number of parades notified to the commission has varied but has exceeded 3,000 per annum in total. Statistics published by the commission for the year ending 31 March 2006 show that 73% of these parades were organised by loyalist bodies. The majority of these were not contentious, but of those classified as contentious in the year 2005-2006 92% were loyalist. The loyalist organisations had strongly opposed the establishment of the commission and had resisted its regulation of what they saw as the exercise of a fundamental right. There was accordingly an obvious political need to try and secure the co-operation of these loyalist organisations.
The selection process
9. The terms of office of the serving chairman and members of the commission were due to expire on 31 December 2005, and a decision was taken within government not to renew the appointments of those then holding office and to appoint an entirely new commission. At a meeting with members of the loyal (protestant/unionist) orders in the early part of 2005 about the marching season, the Security Minister (Mr Woodward) encouraged the loyal orders to give their support to the commission, to play a constructive part in it and to consider putting forward candidates in the forthcoming competition. Thought was given to the conduct of that competition, and it was directed that the competition should be conducted in accordance with the principles promulgated by the Office of the Commissioner for Public Appointments. In accordance with those principles an assessor was to be appointed to take part in and invigilate the selection procedures.
10. At the end of July 2005 advertisements inviting applications for appointment to the commission were published in the main newspapers circulating in Northern Ireland and a press release was issued to a large number of addressees. On 26 July the Secretary of State sent 11 letters inviting the recipients to encourage anyone they considered appropriate to apply. The recipients of these letters included the leaders of the four main political parties in Northern Ireland, unionist and nationalist, and the leaders of the four main religious denominations, protestant and catholic. These letters are accepted as proper. The recipients also included the Grand Master of the Grand Orange Lodge of Ireland, the Sovereign Grand Master of the Royal Black Institution and the leader of the Apprentice Boys of Derry, all of these being strongly protestant and unionist organisations. The appellant complains that no similar letter was sent to nationalist groups such as, for instance, the Garvaghy Road Residents Coalition.
11. The Code of Practice promulgated by the Commissioner for Public Appointments in August 2005 contained guidance on the making of ministerial appointments to public bodies. Paragraph 2.09 of this guidance read:
2.09 Departments should ensure at interview that candidates demonstrate that they are committed to, and have an understanding of, the value and importance of the principles of public service (see Annex A). The problem most likely to arise is that of actual or perceived conflict of interest. Therefore, as early as possible in the recruitment process, all candidates must be asked to disclose information or personal connections which, if they were to be appointed, could be misconstrued or cause embarrassment to the appointing authority. Departments, in consultation with the bodies themselves, are best placed to judge what might constitute a conflict of interest. If it appears that a possible conflict might exist or arise in the future, this must be fully explored with the candidate to establish whether it is sufficiently significant to prevent the individual from carrying out the duties of the post. The discussions and subsequent decision must be fully documented and the department must be able to justify its decision publicly if necessary.
12. The Secretary of States advertisements and letters elicited 94 applications. Each applicant received an information pack which contained a leaflet entitled Probity and Conflicts of Interest - A Guide for Candidates and an application form. The leaflet contained a series of questions and answers, including the following:
IF I DECLARE A CONFLICT, DOES THIS MEAN I WILL NOT BE CONSIDERED FOR APPOINTMENT?
No - each case is considered individually. If you are shortlisted for interview, the Panel will explore with you how far the conflict might affect your ability to contribute effectively and impartially on the Board and how this might be handled, if you were to be appointed. For example, it may be possible to arrange for you to step out of meetings where an issue is discussed, in which you have an interest. However, if, following the discussion with you, the Panel believes that the conflict is too great and would call into question the probity of the Board or the appointment, they can withdraw your application from the competition.
The application form included the following:
Please give details of any possible conflicts of interest which you consider might arise personally, in relation to any employment or other activity, or in relation to your connections with any organisations, should you be appointed; and/or any other issue which, if it became public knowledge, might serve to undermine your credibility as a member of the Parades Commission for Northern Ireland. Please also provide information on how you would address the issue should you be successful in your application.
Each applicant was invited on the application form to name two referees who were in a position to comment on the applicants suitability to be a commissioner.
13. The closing date for applications was 9 September 2005. The applications were sifted, and 24 applicants selected for interview. Of these, 2 fell by the wayside. The remaining 22 were interviewed in October-November. All candidates were asked about real or perceived conflicts of interest. A decision was made not to take up candidates references, since it was thought the application forms and the interview process would suffice to enable the Secretary of State to make his selection, a practice said on his behalf to be not unusual. The interviewing panel, with the agreement of the assessor, rated 5 of those interviewed as highly recommended", 12 as recommended and 5 as not suitable for appointment. The Secretary of State then, after discussion with Mr Woodward and his officials, made his selection. Before the appointments were announced on 1 December 2005, the successful candidates were approached, on the Secretary of States instructions, to confirm (which they all did) that they were willing to accept appointment and that they would, as commissioners, act objectively and work as part of a corporate team. The new commission took up office on 1 January 2006.
The appointment of Mr Burrows and Mr Mackay
14. Among those seeking appointment were Mr David Burrows and Mr Donald Mackay.
15. In the conflict of interest section of the application form Mr Burrows entered:
I was a district officer of Portadown [Loyal Orange Lodge] No 1 for over 10 years. After 12 July this year I stepped [down] as a district officer for personal reasons.
If I was successful with application I would adhere to the chair for guidance in this matter. I don't see a problem as I'm an open-minded person and I can adjust to carry out my duties with dignity.
Portadown Loyal Orange Lodge No 1 was the lodge which had organised the parades from Drumcree parish church along the Garvaghy Road, and which had, on the evidence, refused to enter into unconditional negotiations with nationalist residents of the Garvaghy Road for over 10 years. From October 2004 until his resignation for personal reasons in July 2005 Mr Burrows was District Master. He remained a member of the lodge, not resigning until some months after his appointment. He had expressed strong opposition to the re-routing of Orange parades and had, in July 2002, said (although this was not specifically known to the Secretary of State at the time of the appointment) that the Garvaghy Road dispute had come to symbolise the victimisation of Northern Irelands unionist community, that the commission must be abolished if peace was to have a chance and that the bigoted and intransigent opposition of the Garvaghy Road Residents Coalition to the lodges church parade had blighted the Portadown district and Northern Ireland as a whole for much too long.
16. Mr Mackay made the following disclosure in this part of the form:
Member of the Democratic Unionist Party.
Member of the Orange Institution. I am a member of Portadown Ex Servicemens Orange Order.
Member of the Royal Black Institution.
Personally being a member of the above organisations if successful would not in my opinion hinder my employment as a member of the Parades Commission. The reason I make this statement is that I firmly believe that I am well capable of carrying out my functions professionally and upholding the seven principles underpinning public life. I also believe that the Parades Commission need members with a diverse range of opinions, which not only reflect the views of the whole community but who can work together objectively as a cohesive team with fairness, dignity, tolerance and respect, and irrespective of any personal views held, always base their decisions impartially.
17. In their assessment forms on each of these candidates the panel answered No to the question Any area of real/perceived conflict of interest?", adding in the case of Mr Mackay:
No conflict of interest considered. He declared his membership of the DUP and of loyal orders (orange and black). Would be keen to ensure these perspectives were reflected on Parades Commission.
The judge (para 16) described the panels decision that no perceived conflict of interest arose as inexplicable", a view shared by the Court of Appeal (per Kerr LCJ, para 31, Nicholson LJ, para 53). Both Mr Burrows and Mr Mackay were rated by the interviewing panel as recommended for appointment but not highly so. The panel was favourably impressed by their motivation.
18. In affidavit evidence sworn on 27 March 2006 on behalf of the Secretary of State in answer to Mr Duffys application, Ms Carol Moore, who was very closely involved in the appointments process, deposed (para 14(i)) that The Secretary of State has every confidence that those appointed will be capable of discharging satisfactorily their duties and functions and that they and each of them will act fairly, objectively and appropriately in doing so". He regarded (para 14 (iii)) each of the members appointed as having the requisite qualities of impartiality and independence required of a commissioner. His aim (para 14(iv)) had been to ensure that the incoming commission would attain success and would have wide acceptance and would command respect and be balanced and be free from external political pressure. It would not in his view (para 14(ix)) have been right to exclude either Mr Burrows or Mr Mackay from appointment by virtue of their association with the Orange or other loyal orders. In a further affidavit sworn on 9 May 2006, Ms Moore deposed (para 16) that the background and connections of Messrs Burrows and Mackay were viewed positively as a potential asset and also (para 18) that In appointing the members of the Parades Commission the Secretary of State viewed each member as suitable to perform all the functions of a [commissioner] including functions in connection with any review of procedures or protocols or policy".
19. Following his appointment but before taking up office, Mr Mackay announced publicly that he would participate in the Drumcree parade, a proposal contradicted by the commission. Later, according to press reports not contradicted in the evidence, at a public meeting, he urged Orangemen not to give in", said he was fighting the cause from inside the fence and spoke of taking the battle forward".
The judges decision
20. Morgan J ruled (para 18 of his judgment) that the notion of a body representative of the community in Northern Ireland encompassed not just diversity but also the concept of balance. That applied not just to the decision-making of the Secretary of State when presented with the appointable pool, but also to the process by which the appointable pool was formed. The cross-examination of Ms Moore satisfied him that no consideration had been given to the targeting of nationalist groups to match the manner in which the three loyalist groups had been targeted in the letters the Secretary of State had written. The judge therefore found (para 19) that the appointment process was unlawful because the Secretary of States officials failed to take into account a material consideration, the possibility of targeting nationalist groups, as a result of which he failed to secure as far as was practicable that membership of the commission was representative of the community in Northern Ireland. He accordingly quashed the appointment of Mr Burrows. He made no order in relation to Mr Mackay who had just resigned.
The Court of Appeal judgment
21. The first judgment was that of Kerr LCJ, with whom Campbell LJ agreed. He considered (para 10) that the duty to secure a representative commission must include an obligation to ensure that the appointments procedures, as well as the appointment itself, were geared towards achieving that goal. He agreed with the judge (para 12) that the Secretary of State was required to take all relevant factors into account, but did not consider (para 15) that whether to target nationalist groups was such a matter. The Lord Chief Justice accepted (para 16) that balance must play a part in the selection of a representative group, but perfect balance could not be achieved in so small a body. The balance required (para 17) was between the two sides of the community in Northern Ireland, but there was no obligation (para 18) on the Secretary of State to consider the targeting of nationalist groups. With reference to Mr Duffys argument that Messrs Burrows and Mackay were disabled from appointment as commissioners by an irreconcilable conflict between their role as active loyalists and the independent and impartial role of commissioners, the Lord Chief Justice accepted that the conflict issue was both inescapable and obvious. In paragraph 33 of his judgment he ruled:
It has not been established, in my view, that the Secretary of State failed to have regard to any relevant consideration in dealing with this aspect of the appointment of Mr Burrows and Mr Mackay. Although the forms completed after their interviews failed to bring it directly to his attention, he was clearly aware of the conflict of interest issue and, since, as I have said, the potential for this was obvious, I cannot but suppose that he realised if these gentlemen were appointed, there would inevitably be occasions when the question of whether they should participate in the Commissions deliberations would arise. There is therefore no reason to believe that the Secretary of State failed to take account of all relevant considerations in this regard. I must therefore turn to consider the irrationality argument.
He went on to say (para 35):
Only if the Secretary of State was bound to conclude on the material before him that Mr Burrows could make no useful contribution to the work of the Commission could his decision to appoint him be condemned as irrational. While, therefore, I foresee considerable difficulties in Mr Burrows taking part in many of the critical determinations of the Commission, I find it impossible to say that no reasonable decision-maker would have appointed him to this position. That being the standard by which irrationality must be judged, I feel bound to conclude that it has not been met in this case.
22. In his dissenting judgment Nicholson LJ (para 51) held that there was an obligation on the Secretary of State not merely to consider whether residents within the nationalist community affected by contentious parades should be encouraged to apply but to encourage them to apply, so that the Secretary of State would have an opportunity to achieve a balance. But the fundamental flaw in the decision-making process was to seek applications for appointment to the commission from those who were active participants in contentious parades and who could not be expected to be impartial in adjudicating on them. The selection panel had not perceived (para 55) any conflict of interest and therefore had not pursued or recorded anything which would indicate that a conflict of interest could be resolved. It should have been apparent to the Secretary of State (para 56) that the conflict of interest question had not been explored by the panel. The decision was flawed from the start of the selection process (para 58). The OCPA guidelines were not followed (ibid). The choice of two active participants in contentious parades (para 59) upset the balance of the commission to such an extent as to render the membership of the commission unrepresentative of the community.
The appellants argument
23. On behalf of Mr Duffy, Mr Macdonald QC presented a number of different arguments. But his main argument was a very simple one: that there was an irreconcilable conflict between the past and continuing activities of these two appointees as prominent loyalist proponents of the parade down the Garvaghy Road and the independent, impartial and objective role required of commissioners; that this conflict plainly disqualified them from taking part in any decision affecting parades in Portadown and similar contentious parades elsewhere; that this conflict and disqualification should have been obvious to those conducting the selection process, but was not appreciated by them; that this conflict and disqualification should have been obvious to the Secretary of State, but was not appreciated by him; and that, far from commanding widespread public acceptance, the appointments were (as Mr Duffy put it in his affidavit, para 16) received with disbelief and dismay not only by me and the Garvaghy Road Residents Coalition but also by the Nationalist community generally and those residents groups in the areas which will be most affected by the decisions of the Commission".