(back to preceding text)

24.  Mr McCloskey QC, for the Secretary of State responded to this challenge by pointing to the complexity and sensitivity of the parades problem, by emphasising the political nature of the problem and the breadth of the discretion accorded to the Secretary of State, by drawing attention to the care taken by the selection panel to follow OCPA procedures, by relying on the fact that conflict of interest was specifically considered and resolved to the satisfaction of the panel and the Secretary of State and by relying on the Secretary of State’s confidence that these appointees would discharge their duties as commissioners with impartiality and independence.

Conclusions

25.  Mr McCloskey was right to submit, as he did, that the commission is not a court and its procedures, set out in its rules, are not those of a court. But it clearly has a duty to seek to resolve contentious disputes by mediation where this is possible and, where it is not, to make determinations which will, so far as may be, reconcile the wishes of those who wish to parade with the wishes of those who do not wish to be intimidated, insulted or inconvenienced. These are not judicial tasks, but they are tasks which can only be satisfactorily performed by a body which is accepted by both parties as independent, objective and impartial in its approach. Put negatively, the task is one which cannot be satisfactorily performed by a body which is seen by one party to be in the pocket or under the domination of the other. I do not understand these propositions to be controversial.

26.  With a maximum of seven members including the chairman, the commission is a very small body. While the Act provides that a quorum for a meeting of the commission is three (Schedule 1, para 5(1)), no doubt to allow for the occasional absences and disqualifications which inevitably occur, it may be safely inferred that the commission was generally intended to act as a body comprising most, if not all, of the commissioners. Otherwise, the representative quality which the Secretary of State was to seek to secure in its membership would not be reflected in its activities and determinations. It cannot have been contemplated by the legislature that any of the ordinary commissioners would be routinely disqualified from playing a part in the most difficult, contentious and high-profile business of the commission.

27.  Mr Burrows and Mr Mackay had both been very prominent and committed proponents of the loyalist parade from Drumcree along the Garvaghy Road to Portadown. When appointed neither had resigned from the bodies to which they belonged and neither gave any recorded indication that he had changed his allegiance. No reasonable person, knowing of the two appointees’ background and activities, could have supposed that either would bring an objective or impartial judgment to bear on problems raised by the parade in Portadown and similar parades elsewhere. There is nothing in the papers which suggests that the interviewing panel recognised this problem at all, and I share the judge’s doubt, expressed in paragraph 16 of his judgment, whether they understood the nature of the task on which they were engaged. They do not appear to have considered whether these appointees could plausibly or lawfully act as mediators or decision-makers in relation to the Garvaghy Road or similar contentious parades elsewhere or whether, if not, they could play a full part as commissioners. They do not appear to have considered whether the activities and decisions of a body including two such prominent and partisan activists would command widespread acceptance among the general public. If these matters were considered and discussed they were certainly not fully documented, as the OCPA code of practice required. Essentially the same criticisms must be made of the part of the selection process to which the Secretary of State was personally party. Had these matters been addressed, as in my opinion they plainly should have been, the conclusion would have been reached (and certainly should have been reached) that these appointees could not plausibly and lawfully act as mediators or decision-makers in relation to the Garvaghy Road and similar parades elsewhere, and that they could not, accordingly, play anything approaching a full part in the business of the commission. It was one thing to ensure that the loyalist interest was represented within the commission, but quite another to recruit two hardline members of the very lodges whose activities had been a focus, probably the main focus, of the serious problems which had caused widespread disorder and led to establishment of the commission.

28.  I feel bound to conclude that the decision to appoint Mr Burrows and Mr Mackay was one which a reasonable Secretary of State could not have made if properly directing himself in law, if seised of the relevant facts and if taking account of considerations which, in this context, he was bound to take into account. Both appointments were accordingly unlawful.

29.  Having reached this conclusion I think it unnecessary to review additional arguments advanced on behalf of Mr Duffy, including an argument based on section 76 of the Northern Ireland Act 1998.

30.  No purpose is served by making any order in relation to Mr Mackay. For the reasons I have given, and in agreement with my noble and learned friends Lord Carswell and Lord Brown of Eaton-under-Heywood, I would allow Mr Duffy’s appeal and reinstate the judge’s order. The Secretary of State must pay Mr Duffy’s costs in the House and in the courts below.

LORD RODGER OF EARLSFERRY

My Lords,

31.  Although the Parades Commission is not a body to whose proceedings article 6 of the European Convention of Human Rights and Fundamental Freedoms applies, it is nevertheless one which members of the public, and more particularly those involved in disputes over parades, have to perceive as unbiased if it is to do the job for which it was created. As explained by my noble and learned friend, Lord Bingham of Cornhill, there was, however, an inevitable conflict of interest in the case of both Mr Burrows and Mr Mackay. The only way to avoid this infecting the decisions of the Commission would have been for Mr Burrows and Mr Mackay to recuse themselves from taking part in the work of the Commission in resolving contested applications. Yet, according to the affidavit of Ms Moore, in making the appointments, the Secretary of State proceeded on the basis that each member of the Commission was suitable to perform all the functions of a commissioner. In my view, that was plainly not so in the case of Mr Burrows and Mr Mackay. The decision of the Secretary of State to appoint them must accordingly be regarded as unreasonable and, hence, as unlawful.

32.  In full agreement with the reasoning of my noble and learned friends, Lord Bingham, Lord Carswell and Lord Brown of Eaton-under-Heywood on this point, I would accordingly allow the appeal and reinstate the order of Morgan J.

BARONESS HALE OF RICHMOND

My Lords,

33.  I agree, for the reasons given by my noble and learned friend, Lord Bingham of Cornhill, and in common with my noble and learned friends, Lord Rodger of Earlsferry, Lord Carswell and Lord Brown of Eaton-under-Heywood, that this appeal should be allowed and the decision of the Secretary of State to appoint Mr Burrows to the Parades Commission quashed. Essentially, both he and Mr Mackay would be disqualified from adjudicating or mediating upon the great majority of contentious parades, including the weekly application to complete the march down the Garvaghy Road. Yet there is no indication that the appointing panel or the Secretary of State understood this, or how little there would be left for them usefully to do, or how their membership would affect the credibility of the Commission as a whole. No doubt both men had something to bring to the Commission, but they could never have been perceived as impartial adjudicators or mediators by the public at large. A Secretary of State who had been properly advised of this could not reasonably have decided to appoint them.

LORD CARSWELL

My Lords,

34.  In many countries throughout the world parades constitute no more than a colourful and enjoyable diversion. In Northern Ireland, sadly, they have been for many years the focus of hostility, aggressiveness and misunderstanding between different sections of the community. The Introduction to the report produced in 1997 by the Independent Review of Parades and Marches, chaired by Dr (now Sir) Peter North, contains a well informed and perceptive exegesis and discussion of the complex social issues involved, which one would commend to anyone seeking to understand the problem and the ways in which it might best be approached. The avenue recommended in the report, which was accepted by the Government and passed into law in the Public Processions (Northern Ireland) Act 1998, was to form an independent commission to determine whether and when parades should be prohibited or limited by the imposition of conditions. The formation of the Parades Commission for Northern Ireland (“the Commission”) was not without controversy, and a significant proportion of the community refused to accept its legitimacy. But it has now been in operation since 1998 (and on an informal basis for a previous year). The disorder previously attendant on the holding of some parades has largely subsided, and the sections of the community hitherto bitterly opposed to each other appear to be edging towards some accommodation. Against this background it is of cardinal importance that the Commission be regarded as sufficiently detached and impartial for its decisions to carry general credibility. The appointments the subject of this appeal were designed to bring the Loyal Orders into the decision-making process, which was regarded by the Government as an essential step in making progress on the parades issue. I have concluded, however, for the reasons I shall set out, that those appointments failed to achieve the important goal of maintaining the public perception of the impartiality of all of the members of the Commission necessary for its general acceptance.

35.  My noble and learned friend Lord Bingham of Cornhill has set out in the first 13 paragraphs of his opinion details of the background to this appeal and of the selection process, which I gratefully adopt and need not repeat. I can therefore turn directly to consideration of the applications of Messrs Mackay and Burrows.

36.  Mr Donald Mackay set out in his application form in considerable detail his experience in a senior post in the Fire Brigade, as a trade union representative and in public and voluntary work and enumerated his various academic qualifications in the field of management, all of which would have been relevant to his ability to discharge the duties of a member of the Parades Commission. The section entitled “Conflict of Interest” contained the question:

Mr Mackay’s answer read:

“Member of the Democratic Unionist Party.

Member of the Orange Institution. I am a member of Portadown Ex Servicemens Orange Lodge.

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 in Northern Ireland 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.”

37.  Mr David Burrows set out his experience as an engineering co-ordinator in problem solving and team work, which he claimed to have put to good use in his capacity as a District Officer in the Orange Order. He had gained a diploma in management and undergone training in media skills. He placed some emphasis on the importance of earning the trust of other people. He had led the delegation from the Portadown District of the Loyal Orange Order at a number of different talks in an attempt to resolve the Garvaghy Road impasse. In reply to the question on conflict of interest he stated:

“I was a District Officer of Portadown LOL No 1 for over ten years. After the 12th 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.”

38.  The members of the panel which interviewed candidates for appointment to the Commission recorded their impression of each on individual forms, then the panel completed composite assessment forms summarising their conclusions about each candidate. Both Mr Mackay and Mr Burrows were rated as “Recommended", as distinct from “Highly recommended", a grade given to several other candidates. Mrs Carol Moore, Associate Director Policing and Security in the Northern Ireland Office, who chaired the interview panel, stated in paragraph 10 (vii) of her affidavit sworn on 27 March 2006 that it was the view of the interview panel that candidates given either grade should be regarded as suitable for appointment and should form the pool of suitable candidates from which the members of the Commission would be chosen.

39.  The panel’s overall assessment of both Mr Mackay and Mr Burrows was reasonably favourable in its terms. In the section of the assessment form headed “Public Accountability” there was contained a box “Any area of real/perceived conflict of interest". In respect of each of these candidates the panel gave the answer “No", and on Mr Mackay’s form added the comment:

“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 PC.”

Morgan J stated in relation to these assessments of conflict of interest (para 16 of his judgment):

“The decision of the panel members that no perceived conflict of interest issues arose in relation to these applications is in my view inexplicable. It causes one to doubt whether the panel members properly understood the nature of the task on which they were engaged.”

The members of the Court of Appeal endorsed this view, Kerr LCJ stating at para 31:

“The learned judge found the panel’s statement that there was no area of real or perceived conflict of interest inexplicable and, despite Mr McCloskey’s proffered explanation, so do I. There were clearly conflict of interest issues in both cases. As Mr Macdonald has pointed out, much of the work of the Commission concerns mediation between groups who hold opposing views about proposed parades or determining whether contentious parades should take place or if they should be re-routed. Where two of the members of the Commission belong to organisations which are committed to the right of their members to march, the conflict of interest issue is both inescapable and obvious.”

40.  Mrs Moore sent a submission to the Secretary of State on 11 November 2005 concerning the candidates for appointment. She pointed out the links with the Loyal Orders of three of the candidates, including Messrs Mackay and Burrows. In an annexed summary of the assessment of each candidate she said of Mr Burrows, inter alia:

“He is closely identified with the Orange Order and the Drumcree Parade. However he has sought to move this forward and has reached out to the Nationalists. He could add a useful perspective to the Parades Commission.”

Of Mr Mackay she said:

“He is a member of the Orange Order and is keen to ensure that their perspective is reflected in the Parades Commission deliberations (as well as generally wanting to make a difference).”

41.  Mrs Moore’s first affidavit, sworn on 27 March 2006, contains a number of averments which illustrate the approach of the Secretary of State to the appointments and the matters to which he had regard in reaching his decision. She stated in paragraph 10(ix):

“On 23 November 2005 the Secretary of State, after considering the application forms and the panel’s assessment of them, discussed with Shaun Woodward MP and officials his provisional conclusions as to who should be the persons selected for appointment. The discussion embraced such issues as how best to give effect to the obligation to ensure as far as practicable that the new Commission would be representative of the community in Northern Ireland as well as the issue of whether any of the persons to be appointed would find themselves in a conflict of interest situation.”

In paragraph 14(i) Mrs Moore deposed:

“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.”

Similar statements are contained in paragraphs 14 (iii) and 14(vii), and in paragraph 14(iv) it is stated:

“His aim in making the appointments was to ensure so far as he could that the incoming Commission would attain success and would have wide acceptance and would command respect and be balanced and free from external political pressure.”

In paragraph 14(ix) of Mrs Moore’s first affidavit it is stated:

“In respect of the appointments of Mr Burrows and Mr McKay it is the Secretary of State’s view that it would not have been right to have excluded either appointee from membership of the Commission by virtue of their association with the Orange or other loyal Orders. The key questions considered by the Secretary of State were whether these appointees and each of them would be committed to acting in the role of a Commission member in the interests of the wider community and would work as part of the corporate Commission in addressing parading issues.”

In paragraph 16 of her second affidavit, sworn on 9 May 2006, Mrs Moore says:

“Their background and connections were viewed positively as a potential asset, as acknowledged by the Secretary of State in the Press Release he issued at the time of the impugned appointments. The Secretary of State stated that he was particularly pleased that two persons with personal experience and understanding of the Orange Order and the cultural importance of parades had been appointed to the Commission.”

It may be observed that there is little or no mention (apart from the entry in the assessment forms) of the perception among the different sections of the community in Northern Ireland of the ability of the appointees to make impartial and disinterested decisions on contentious parades. I propose to focus now on this aspect of the appointments.

42.  Counsel for the appellant drew to your Lordships’ attention a number of documents obtained from the website of the Grand Orange Lodge of Ireland and exhibited to an affidavit sworn by the appellant. It is unnecessary to set out in extenso the content of these documents. It is sufficient to say that a constant theme is the expression of the Loyal Orders’ “inalienable right” as citizens to process along any public highway, in particular on the routes of their traditional parades along which they regularly passed in former years. Another theme is their implacable opposition to residents’ groups and their rejection of the legitimacy of the Parades Commission and its function. In one of them, a Press statement dated 1 July 2002, Mr Burrows is recorded as saying that he “was at a loss to understand the latest ban” of the Garvaghy Road parade, and called for the abolition of the Commission. It appears to me inescapable that any person reading these documents - and no doubt many similar statements made in the media by representatives of the Loyal Orders - would take the views contained in them to be those of the members of the Loyal Orders in general.

43.  On 23 December 2005 the appellant’s solicitor wrote to the Secretary of State expressing her client’s concern that the make-up of the Commission demonstrated “a partiality or bias in favour of the Orange Order when determinations are being made on whether to permit controversial parades.” The Secretary of State replied on 16 January 2006, as follows:

“Thank you for your letter of 23 December on behalf of your client, Mr J J Duffy, concerning appointments to the Parades Commission.

Firstly, by way of general background, could I say that the recruitment process was entirely open and based on the merit principle. All of those appointed met the required standard at interview. The panel for shortlisting and interviewing applicants included an independent assessor from the Office of the Commissioner for Public Appointments (OCPA) and the process was OCPA-regulated from the outset.

Turning now to your specific questions, I am satisfied that the composition of the Commission is balanced and that the membership is representative of the community in Northern Ireland. In making these appointments, I sought the relevant mix of skills and experience to enable the Commission to effectively discharge its responsibilities. I would ask that you give the Commission the opportunity to demonstrate that. I will judge how far the Commission succeeds based on its performance over time. I hope others will do the same.

The two appointees to whom you refer, David Burrows and Donald MacKay (sic), will bring a valuable insight on the Orange Order to the Commission, but they, like other members, must consider the interests of the wider community, and are obliged to work corporately to address parading issues. By applying for membership, they have shown a commitment to moving the parades agenda forward and they have my full confidence.

As to the question of any apparent conflict of interest, I am satisfied that membership of an Orange lodge does not of itself amount to a conflict of interest when considering applications for Parades. In addition, the Commission has taken its own independent legal advice to ensure its internal procedures are fair and impartial. On the basis of that advice they have concluded that, provided the interest is declared and taken into account in the Commission’s decision making process both Mr Burrows and Mr McKay (sic) can discharge their duties as Commissioners.

As to Mr MacKay’s (sic) stated intent, post-appointment, to participate in the Drumcree parade, I understand that the Commission has agreed that members will not participate in any contentious parade or protest.”

44.  Mr Mackay had announced publicly, after his appointment but before he commenced his office as a member of the Commission, that he would participate in the Drumcree parade. On a later occasion he was reported as having urged Orangemen “not to give in” and saying that he was fighting the cause from “inside the fence” and that he would take “the battle forward". He resigned from the Commission before the judge’s decision in the application for judicial review was given.

45.  Morgan J held that the appointing process had been unlawful, in that the Secretary of State targeted Loyalist groups when encouraging people to put their names forward for appointment to the Commission, but did not give any consideration to the targeting of nationalist groups. He thus failed to exercise his powers of appointment in such a way as to secure that as far as practicable the membership of the Commission was representative of the community in Northern Ireland, the obligation placed upon him by paragraph 2(3) of Schedule 1 to the Public Processions (Northern Ireland) Act 1998. He therefore quashed Mr Burrows’ appointment, Mr Mackay having by then resigned. The judge did not rule on the question of bias, but it appears from the final part of his judgment that he did not regard Mr Burrows as being debarred from consideration for re-appointment. He did not rule on the appellant’s submissions made under section 76 of the Northern Ireland Act 1998 or the relevance of or adherence to the OCPA guidelines.

46.  In the Court of Appeal Kerr LCJ, with whom Campbell LJ agreed, held that the need to consider whether to target residents’ groups did not arise from the 1998 Act, either expressly or by necessary implication, nor was it so obviously material to the Secretary of State’s decision that failure to consider it would not accord with the statutory intention. It was accordingly not a consideration which he was under a legal obligation to take into account.

47.  Kerr LCJ went on to hold that no violation of section 76 of the Northern Ireland Act 1998 had been established and that the appointments process adhered to the OCPA guidelines. On the issue of conflict of interest, he held that the Secretary of State was clearly aware of that issue and that there was no reason to believe that he failed to take account of all relevant considerations in this regard. He accepted that Mr Burrows would be unable to take part in some decisions, but considered that there was much that he could contribute to the work of the Commission and found it impossible to say that no reasonable decision-maker would have appointed him to the Commission. The majority of the Court of Appeal therefore allowed the Secretary of State’s appeal. Nicholson LJ in a dissenting judgment disagreed on all issues, considering that the decision of the Secretary of State had been flawed from the start of the selection process and that the appointments made upset the balance to such an extent as to render the membership of the Commission unrepresentative of the community.