Judgments - In re Duffy (FC) (Appellant) (Northern Ireland)

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48.  I am inclined to agree with the conclusion reached by Kerr LCJ on the targeting of the Loyal Orders, but for somewhat different reasons. I think that the targeting or trawl process is one of outreach. It may often be of importance to encourage under-represented sections of the community to apply for appointment to various bodies. Nevertheless, as my noble and learned friend Lord Brown of Eaton-under-Heywood states, it might have been far better if the Secretary of State had targeted bodies likely to recommend candidates who, while possessing the ability to adjudicate impartially, understood the Loyalists’ perspective and might have been expected to enjoy their confidence. One can appreciate that the Secretary of State was very keen indeed to bring the Loyal Orders “into the tent". He regarded it as the way to make some progress, if they would take some part in the process of controlling parades so as to minimise disorder and encourage harmony. This was hardly likely to occur if the Loyalist Orders put forward candidates from their own ranks who had been closely associated with contentious parades, which is what they did. The Secretary of State decided to target strongly Loyalist groups, without attempting to seek similar proposals from any persons or bodies who might have been likely to hold the opposite opinion on parading. That decision was bound, when it came to the knowledge of members of the public, to have given rise to a perception of one-sidedness in the minds of many. That was a policy decision for the Secretary of State to make, the wisdom of which may properly be the subject of some debate. As a matter of legality, however, I am not convinced that such targeting was in itself an unlawful act capable of being judicially reviewed. As at present advised, I incline to the view that even-handed targeting is not a freestanding obligation. It may be evidence, in some cases very strong evidence, of the unbalanced nature of the eventual appointments. I think that there is much to be said for the proposition that the appointments themselves are the matter on which the searchlight of the law should fasten. In view, however, of the conclusion which I have reached on the propriety of those appointments, I do not find it necessary to express a definite opinion on the lawfulness of the targeting.

49.  In my opinion the central and determinative question in this appeal is that of perceived bias arising from conflict of interest. Actual or perceived bias on the part of the members of a tribunal will make their decision unlawful and liable to be set aside on judicial review. It is now very firmly established, to the point of being trite law, that, even if no actual bias on their part is shown to exist, the decision of a tribunal will be set aside if the circumstances are such that a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that it was biased: see Porter v Magill [2002] 2 AC 357, para 103, per Lord Hope of Craighead. This is what I have termed for convenience perceived bias.

50.  It is clear that Messrs Mackay and Burrows had been so closely involved in the Drumcree parades issue that they could not adjudicate or take part in mediation on any further application relating to a parade along the Garvaghy Road. That at a stroke would have removed them from participation in one of the most sensitive and contentious issues with which the Commission has to deal. When it came to such applications, they would have had to recuse themselves, reducing the number of members available to consider the issue and the amount and breadth of expertise and judgment available to the Commission, which it requires in order to reach wise and proportionate decisions. Beyond that specific local issue, they would have faced a similar, if less starkly posed, question if they adjudicated or attempted to mediate on contentious Loyalist parades in other parts of the Province. Against the background of their connection with the Loyal Orders in Portadown, whose insistence on their right to parade on public roads had been so vigorous and single-minded, it is in my view inescapable that the fair-minded and informed observer would have regarded them as committed in favour of permitting all Loyalist parades to be held. They may in fact have suffered a Damascene conversion, but I cannot suppose that that observer would have been ready to accept it. That would have ruled them out of participation in the most important and significant part of the Commission’s work, the raison d'etre of its foundation. They might well have been able to employ themselves usefully to some extent on such matters as education of the public, but such work is peripheral to the central role of the Commission in issuing determinations about proposed parades.

51.  The issue in this appeal, however, is not one of questioning the validity of actual decisions by Messrs Mackay and Burrows, but concerns the validity of the decision of the Secretary of State to appoint them. He was under a statutory duty to ensure, so far as practicable, that the membership of the Commission is representative of the community. I adhere to the view which I expressed in tentative terms in Re White’s Application [2000] NI 432, 440, that this requirement is to ensure sectarian balance in the composition of the Commission, a view accepted by Kerr LCJ at paragraph 17 of his judgment in the present appeal. It may be arguable that some representation of the sections of the community on each side of the sectarian divide is all that is required and that, whatever else may be said against the appointments, the composition of the Commission as a whole was such that the Secretary of State fulfilled his duty in this respect.

52.  For the reasons I have given I do not consider that the appointees Mackay and Burrows could have acted as participants in decisions or mediation in respect of any contentious Loyalist parades in the Province. They would have been confined to the residual work of the Commission, which would have ruled them out of contributing to its substantial task. There is no indication in any of the documents before the House that the panel or the Secretary of State gave any consideration to this fact. On the contrary, Mrs Moore stated in paragraph 18 of her second affidavit that the Secretary of State “viewed each member as suitable to perform all of the functions of a member of the Parades Commission.”

53.  In making his decision the Secretary of State was bound to have regard to the proper factors, and not to have regard to any other improper factors, in reaching his decision. This involves in the present case two issues, on both of which I find myself unable to agree with the majority in the Court of Appeal. The first is that there is no indication anywhere that the interview panel or the Secretary of State understood or addressed the question of the perceived bias of Messrs Mackay and Burrows. Secondly, if it had been properly addressed -- even in such an area in which the courts will pay deference (perhaps better expressed as recognising a discretionary area of judgment) to ministers’ decisions - I agree with Lord Bingham (para 28 of his opinion) that a reasonable Secretary of State could not properly have reached a decision to appoint them as members of the Commission.

54.  I accordingly am of opinion, in agreement with Lord Bingham and Lord Brown, that the appointments cannot stand. I do not think it necessary to set out or consider the arguments developed by both parties on the issues of discrimination or the OCPA guidelines and I shall express no opinion on either.

55.  I would allow the appeal and restore the judge’s order quashing the Secretary of State’s decision to appoint Mr Burrows as a member of the Parades Commission for Northern Ireland. As Mr Mackay has resigned from the Commission, I would not make any order in respect of his appointment.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

56.  I have had the privilege of reading in draft the opinion of my noble and learned friend Lord Bingham of Cornhill. I agree with it completely and there is only one aspect of the matter upon which I wish to say a few words.

57.  As Lord Bingham has noted (para 20), Morgan J at first instance regarded the appointment process here as unlawful because account had not been taken of the possibility of encouraging applications for appointment to the Commission from nationalist groups as well as from the three strongly loyalist organisations which were targeted. The majority in the Court of Appeal thought that this was not a material consideration which had to be considered but merely a matter which some might have considered; Morgan J had gone too far. Nicholson LJ, however, thought that Morgan J had not gone far enough: he thought that there was an obligation on the Secretary of State to encourage applications also from amongst the residents within the nationalist community affected by contentious parades.

58.  For my part I respectfully disagree with all these views. Plainly, as Kerr LCJ recognised (at para 24), “the loyal orders were targeted because of their refusal to co-operate with the Parades Commission in the past, a stance that has not been taken up by the residents’ groups.” But to my mind the obvious vice here was in seeking applications from those totally committed to the loyalist cause. As Nicholson LJ rightly observed (at para 51), “the fundamental flaw in the decision-making process was to seek applications for membership of the Parades Commission from those who were active participants in contentious parades and who could not be expected to be impartial in adjudicating on them.” There would have been no point in targeting also those equally committed to supporting the opposing cause: that would merely have produced yet more applications from people who could not be expected to adjudicate impartially upon contentious parades. Mr MacCionnaith, the spokesperson of the Garvaghy Road Residents Coalition, was clearly correct in the view he took in his affidavit of 26 April 2006:

“I would have considered myself ineligible to apply for a position as a Parades Commissioner. I held this belief because I consider that as someone who has had a prominent role in the controversy over the Drumcree Parade down the Garvaghy Road in particular I would have been regarded as biased and it would have been perceived that I would have a conflict of interest.”

59.  It would of course have been another thing entirely if the Secretary of State had instead chosen to target Unionist bodies with a view to their encouraging applications, not from committed and active participants in contentious parades, but rather from people who plainly understood the loyalists’ perspective and who therefore might have been expected to enjoy their confidence but who could nonetheless adjudicate impartially. That would have been a perfectly lawful way of seeking to win the loyalists’ co-operation in the Parades Commission’s work and in my opinion would not have required any corresponding targeting of residents’ groups. A useful analogy may perhaps be drawn here with regard to encouraging applications from women. The widely published advertisements inviting applications for membership of the Commission did just that: “Women are not currently represented on the Parades Commission, so applications from women would be particularly welcome.” There was plainly no corresponding obligation to tell men that their applications would be no less welcome. And had women’s organisations been specifically written to for the same purpose, equally there would have been no obligation to write to men’s organisations too.

 
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