Judgments - McConkey and another (Appellants) v The Simon Community (Respondents) (Northern Ireland)

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38.  These answers do suggest that the minister thought that the Bill as then drafted would have the effect that someone who really changed his mind would not be forever tainted by his previous support for the use of violence. But he did not explain how this meaning was to be derived from the wording of the Bill as it was then drafted. At report stage, a different minister spoke for the government when introducing the amendment which became section 57(2). He merely said that the government had had to find a form of words to meet the commitment given by Mr Orme at committee stage. As the form of section 57(2) suggests, that commitment related to MPs’ concern to permit people to discriminate against those holding a political opinion in favour of the use of violence. The minister said nothing about those who had changed their minds or how their situation was dealt with by the legislation in its new form.

39.  While, therefore, the report of the proceedings in Parliament shows that the point about those who changed their minds was raised in debate and that Mr Orme seems to have thought that a previous opinion would not count against someone, the discussion is, frankly, confused. It gives no indication whatever of how such a meaning was to be derived from the legislative text. Therefore, even if I were persuaded that this was a case where reference could properly be made to Hansard, I would not regard anything said by the ministers concerned as providing a reliable gloss on section 57(2) of the 1976 Act or article 2(4) of the 1998 Order.

40.  For these reasons, even if the Simon Community did indeed dismiss the appellants because of their former approval of the use of violence for political ends connected with the affairs of Northern Ireland, it was lawful for the Community to do so. I would accordingly dismiss the appeals.

LORD CARSWELL

My Lords,

41.  The respondent in this appeal, the Simon Community Northern Ireland, is a charitable body dealing with homeless people in Northern Ireland. Its work includes running a number of hostels providing temporary accommodation and support services for homeless people, some under 18 years. Many of them are vulnerable persons, some having had to leave home because of threats from paramilitary organisations or others.

42.  The appellants John McConkey and Jervis Marks each applied for posts in the respondent’s hostels, Mr McConkey as a residential support worker in the hostel at Falls Road, Belfast and Mr Marks as a night worker in the hostel in Newry. Each was rejected on account of his paramilitary convictions for serious offences and brought a complaint before the Fair Employment Tribunal that he had been the subject of discrimination on grounds of his political opinion. The Tribunal heard the claims together and dismissed each, on grounds to which I shall refer, and the Court of Appeal (Higgins and Girvan LJJ and McLaughlin J) dismissed the appellants’ appeals.

43.  The Fair Employment and Treatment (Northern Ireland) Order 1998 replaced with amendments the Fair Employment (Northern Ireland) Acts 1976 and 1989. Section 19 of the 1998 Order makes it unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland, by, inter alia, refusing to offer him employment for which he applies. Article 3 defines discrimination in the following terms:

       "In this Order ‘discrimination’ means -

(a)  discrimination on the ground of religious belief or political opinion; or

(b)  discrimination by way of victimisation;

and ‘discriminate’ shall be construed accordingly.”

The inclusion of political opinion stems from the recommendation in the van Straubenzee report which preceded the 1976 Act: Report and Recommendations of the Working Party on Discrimination in the Private Sector of Employment 1973. The working party which produced the report agreed that it should be a ground for actionable complaint of discrimination along with religious belief, on account of the “close connection” between the two in Northern Ireland, in order to ensure, as the report said, “that any measures adopted to deal with religious discrimination do not leave loopholes for its practice in another guise” (para 6).

44.  Discrimination is defined in familiar terms by article 3(2)(a) as occurring if a person treats another person “less favourably than he treats or would treat other persons". Article 3(2)(b) contains a definition of indirect discrimination, which is not relevant to the present case. The provision round which most of the argument centred is contained in article 2(4):

“In this Order any reference to a person’s political opinion does not include an opinion which consists of or includes approval or acceptance of the use of violence for political ends connected with the affairs of Northern Ireland, including the use of violence for the purpose of putting the public or any section of the public in fear.”

The wording of the last phrase is a direct echo of the definition of terrorism contained in a series of enactments relating to emergency provisions in Northern Ireland.

45.  The first appellant applied for employment in the Belfast hostel on 19 June 2000. One of the questions on the application form asked if he had ever been convicted of a criminal offence. He put a question mark in the space for his answer, but gave no further details. He completed a form consenting to a pre-employment check, which was required by the respondent in order to ensure that persons were not appointed to posts where they might constitute a risk to vulnerable residents. On that form the first appellant stated:

“I do not have any criminal convictions because I have never been involved in any criminal activity. I have been convicted of alleged political activity by special courts 1975-1977 for being, it was alleged, a republican and for life during 1982-1996 for alleged republican activity".

He also stated that his address from 1982 to 1996 was “Long Kesh POW Camp, Lisburn", a description applied by republican prisoners to HM Prison, Maze. The pre-employment check result, received by the respondent on or about 24 August 2000, showed that the conduct so described by the first appellant was in fact a conviction in 1986 for murder, possession of a firearm with intent and belonging to a proscribed organisation. It also stated that he had been released on licence in 1997, when the Secretary of State would have had to be satisfied that he presented a minimal risk of reoffending.

46.  Before the pre-employment check was sought and obtained the respondent’s officers had shortlisted and interviewed the first appellant and offered him a post, subject to receipt of satisfactory pre-employment references and checks. Following receipt of the pre-employment check the respondent’s Human Resources Manager wrote to him on 4 September 2000, withdrawing the conditional offer and stating that the respondent was not willing to employ staff “who may directly or indirectly place our resident group at risk".

47.  The first appellant brought an application for compensation to the Tribunal on 17 October 2000. He stated in the complaint form that the respondent discriminated against him “taking into account irrelevant political convictions” and “on grounds of perceived political opinions.” In its notice of appearance the respondent denied that it had discriminated against the first appellant on grounds of political opinion or perceived political opinion. It stated that it was concerned that in light of his convictions there might be a risk to residents. It relied in the alternative on article 2(4) of the 1998 Order.

48.  The second appellant applied on 4 May 2002 for employment as a night worker at the respondent’s hostel in Newry. In reply to the question in the application form about convictions he stated that he was in prison from 27 April 1992 until October 1998, when he was released “under the GFA". In the consent form for the pre-employment check he stated “Crumlin Road Court August/September 1993 Conspiracy and possession with intent Sentenced to 15 years". The pre-employment check dated 2 July 2002 revealed that he had convictions for conspiracy to murder, conspiracy to cause an explosion likely to endanger life or property and possession of explosives with intent to endanger life, in addition to lesser offences. He was released from custody on 13 October 1998 under the terms of the Northern Ireland (Sentences) Act 1998. By section 3 of that Act, before a prisoner was eligible for release several conditions had to be satisfied, including that he was not a supporter of a terrorist organisation, was not likely to become a supporter or to engage in terrorism and that he would not be a danger to the public.

49.  The second appellant had been shortlisted and was interviewed on 7 June 2002, though he was not offered a post. On 18 July 2002 he was informed by the respondent’s Human Resources Manager that he was unable to offer him a post.

50.  The second appellant brought an application for compensation to the Tribunal on 28 August 2002. He stated in the complaint form that the respondent had discriminated against him unfairly and had drawn conclusions concerning his political opinions. The respondent entered a notice of appearance in similar terms to that in the case of the first appellant, denying discrimination on the grounds of the second appellant’s political opinion or perceived political opinion and averring that it decided not to offer him employment “taking into account the needs of the residents". In the notice the respondent stated that it would not be unusual from time to time for a hostel to accommodate a resident or residents who had had to leave home because of action or threats from paramilitary organisations or others, for example because of alleged anti-social activities, and that its over-riding concern was the care and safety of the residents. In its reply to a notice for particulars the respondent stated that the prime reasons for not offering the post were the nature and recency of the second appellant’s convictions, coupled with the vulnerable nature of the residents of Simon hostels. It relied in the alternative on article 2(4) of the 1998 Order.

51.  The Tribunal set out in paragraphs 6.5 and 6.6 of the case which it stated for the opinion of the Court of Appeal the following finding in relation to the first appellant’s case:

“6.5 The decision by the respondent to withdraw the offer of employment to the first appellant was made on the grounds of his political opinion; namely that, in light of the said convictions and their paramilitary nature from a republican perspective, the first appellant therefore approved or accepted the use of violence for political ends and such approval or acceptance was connected to the affairs of Northern Ireland.

6.6 The Tribunal therefore concluded, subject to consideration of the terms of Article 2(4) of the 1998 Order, the first appellant had been unlawfully discriminated against on the grounds of his political opinion.”

In paragraph 7.4 it recorded its finding in respect of the second appellant, in almost identical terms. The phrase “from a republican perspective” appears to mean no more than that each appellant was concerned with a republican rather than a loyalist paramilitary group. The Tribunal did not make a finding on the question of to which particular paramilitary group either appellant belonged, or whether such group was regarded as connected to any specific political party or movement. It concluded as a consequence of these findings, that, subject to consideration of the terms of article 2(4), each appellant had been unlawfully discriminated against on the grounds of his political opinion. It also found in paragraph 8.1 as follows:

“The Tribunal also found that, if it had been necessary to do so for the purposes of the Tribunal’s decision, it would have accepted that neither the first appellant nor the second appellant, at the time each made their application for employment to the respondent, accepted the use of violence for political ends connected with the affairs of Northern Ireland, including the use of violence for putting the public or any section of the public in fear; and that when each made the said application for employment to the respondent, neither in fact held such a political opinion, which fell within the terms of Article 2(4) of the 1998 [Order].”

It concluded, however, that article 2(4) of the 1998 Order barred each appellant’s claim, since it applied on its terms to political opinions held in the past as well as those presently held.

52.  The Tribunal’s written decision issued on 29 December 2006 contained its reasons and the evidence upon which it relied at much greater length, and it is necessary to refer to the terms of the decision in order to ascertain the findings of primary facts of the Tribunal and the basis for its expressed findings. The decision is extremely diffuse and somewhat repetitive and contains a considerable amount of irrelevant discussion, but it is possible to piece out from it some primary findings.

53.  The Tribunal found (paras 7.11 and 7.18) that the decision to withdraw the offer made to the first appellant was made by Miss A, a senior officer with the respondent’s organisation. It recorded in para 7.20 the reasons which she said made the respondent unwilling to employ staff who might directly or indirectly place the resident group at risk:

“These matters were, firstly, that the respondent had had prior difficulties with paramilitaries attempting to gain access to projects and residents and secondly concern about the [influence] the first claimant might have over vulnerable people, namely the residents of the said hostel.”

In para 7.20 it set out a series of questions and answers from Miss A’s cross-examination, in the course of which she reiterated her concern:

“The basis of the decision was the serious nature of his convictions and the paramilitary nature of his convictions and how that could potentially influence residents who were coming to Simon community or residents already staying within Simon community and there was a risk that he would be known in the area, and therefore residents or potential residents would not feel safe.”

She asserted several times that her decision would have been the same whether the applicant for the post was a loyalist or a republican.

54.  The Tribunal expressed in para 10.2 its conclusion in relation to the decision made by Miss A:

“ … the Tribunal is satisfied that it was not just the serious nature of the convictions, which was the basis for her decision, but it involved something more. It was not the convictions themselves, but the additional element of paramilitary involvement in each said conviction and further that such a paramilitary involvement was from a republican perspective.”

55.  In para 8.14 the Tribunal declared itself satisfied that the decision not to offer employment to the second appellant was taken by Miss O, also a senior officer in the respondent’s organisation. After a long discussion of the procedure, which seems to have had little bearing on the content of Miss O’s actual decision, the Tribunal recorded in para 8.20:

“Ms O, in view of the second claimant’s paramilitary convictions, concluded that the second claimant would have an adverse influence on the residents, and he would see violence was an appropriate way to resolve issues, with the potential for mismanagement and escalation of incidents and confrontation between residents within the hostel. She accepted that she had not concerns that the second claimant would himself seek directly to harm residents.”

It had previously stated in para 8.18 that it was satisfied that she “was not concerning herself whether these were convictions from a Loyalist or a Republican perspective as her decision, whatever the perspective, would have been the same.” This brought the Tribunal to its conclusion in para 8.23:

“The Tribunal was satisfied, on the basis of Ms O’s evidence that, in considering the second claimant’s suitability for the post, in view of the vulnerability of the residents, she took into account not just the convictions themselves but, also, in particular, the paramilitary nature of those convictions; and in view of this paramilitary activity she concluded that he was not suitable for the post, given the necessity for her to ensure a safe environment for vulnerable residents.”

It repeated in para 9.1 its conclusion in both cases that if each claimant had had paramilitary convictions “from a loyalist perspective rather than a republican perspective", the respondent would in each case have taken a similar decision.

56.  In the Court of Appeal Higgins LJ, applying the statements made in the earlier decisions of McKay v Northern Ireland Public Service Alliance [1994] NI 103 and Gill v Northern Ireland Council for Ehtnic Minorities [2001] NIJB 299, held that the support of the use of violence for political ends was not itself a political opinion. He did not decide the issue whether article 2(4) of the 1998 Order applied to political opinions held in the past or only to those held at the time of the refusal of employment, since it did not arise in view of his conclusion about support of the use of violence. Girvan LJ expressed the view that it was questionable whether support for the use of violence for political ends qualified as a political opinion, but his main conclusion was that article 2(4) applied to opinions held by a person in the past, even if they were not presently held by him. McLaughlin J, while agreeing in the disposition of the appeal, did not state his views on either of these two issues.

57.  The findings of the Tribunal confirm what was abundantly clear from the evidence, that the appellants were refused employment because the respondent’s officers were concerned lest their presence in the hostels would give rise to a risk to the residents which could not be accepted. That risk was to their safety, stemming from the appellants’ violent past, the contacts which they had had with terrorist organisations and the influence which they might have had over people in the hostels. The genuineness of the concern entertained by the respondent’s personnel has not been questioned and the evidence fully supports it.

58.  That might have been regarded as a conclusive finding in the respondent’s favour, since its concern was over the possible consequences to the residents of the appellants’ presence in the hostels and had nothing to do with their political beliefs. The Tribunal nevertheless held that because the appellants had committed violent crimes in the course of their support of a terrorist organisation or organisations, that “additional element of paramilitary involvement” imported a political component, reasoning from that finding that the respondent had refused them employment on the ground of political opinion. I am far from convinced that the paramilitary involvement did import any political factor or component, but the case was argued on the premise that it did, and I shall deal with the issues argued on that basis. In opposition to the Tribunal’s conclusion on this part of the case the respondent’s counsel advanced two propositions, first, that support for violence is not itself a political opinion, and, secondly, that support, past or present, for terrorist violence is excepted by article 2(4) of the 1998 Order.

59.  "Political opinion” is not defined either in the 1998 Order or its predecessor legislation. It was settled in McKay v Northern Ireland Public Service Alliance [1994] NI 103 that it was not confined to political opinions having some connection or correlation between religion and politics in Northern Ireland, but had its ordinary accepted meaning. Kelly LJ said at page 117 that that meant in broad terms (which was not intended to be an exhaustive or precise definition) “an opinion relating to the policy of government and matters touching the government of the state.” Giving the judgment of the Court of Appeal in Gill v Northern Ireland Council for Ethnic Minorities [2001] NIJB 299 I expressed the view that that statement gave the most useful guidance for the purposes of that case. I went on (at pages 311-312):

“It seems to us that the type of political opinion envisaged by the fair employment legislation is that which relates to one of the opposing ways of conducting the government of the state, which may be that of Northern Ireland but is not confined to that political entity. The object of the legislation is to prevent discrimination against a person which may stem from the association of that person with a political party, philosophy or ideology and which may predispose the discriminator against him. For this reason we consider that the type of political opinion in question must be one relating to the conduct of the government of the state or matters of public policy.”

I am content now to affirm that view.

60.  In Gill v NICEM the court distinguished the means of achieving a political end from the political opinion itself, and held that the former was not a political opinion. It concluded that

“the difference between the ‘anti-racist’ and ‘culturally sensitive’ approaches is one of methods, the one being more aggressive and confrontational than the other, but both being means of advancing the interests of people from ethnic minorities. It might be possible to describe such a difference as constituting a divergence of political opinion, but we do not think that it is the type of political opinion intended by Parliament in enacting the fair employment legislation.”

In the present case Higgins LJ held (paras 41-42) that an opinion that approved or accepted the use of violence for political ends (or for the purpose of putting the public in fear) was not a political opinion for the purposes of article 3 of the 1998 Order. Girvan LJ did not express a concluded opinion on that point, though he regarded it as questionable whether such an opinion could ever have qualified as a political opinion (para 73).

61.  The Court of Appeal returned to the issue in Ryder v Northern Ireland Policing Board [2007] NICA 43, [2008] NIJB 252. The respondent in that appeal, a well known Northern Ireland journalist, had brought an application to the Fair Employment Tribunal claiming that he had been discriminated against in the refusal by the Policing Board to appoint him to the post of communications director on account of his political opinions. Those opinions, as set out in the report, related to the conduct of policing rather than party politics or the conduct of government in general. The Court of Appeal in the end declined to decide the matter, which they considered should not have come before them as a preliminary point. In the course of their judgments, however, they expressed the view that the court in Gill v NICEM had not sought to lay down a universally applicable rule that a view as to the methods by which a particular cause should be advanced could never qualify as a political opinion for the purposes of the legislation (Kerr LCJ at para 15, Girvan LJ at paras 25-26).

62.  In the context of different legislation Kerr J, as he was then, had held in Re Lavery’s Application [1994] NI 209 that support for violence should be regarded as a method of achieving a political aim and not included in the expression “political belief". This decision was not referred to in the judgments in Gill or Ryder, and may not have been cited to the court in either case, but it deserves more attention than it has received. The context was section 19 of the Northern Ireland Constitution Act 1973, which made it unlawful for a Minister of the Crown to discriminate in the discharge of functions relating to Northern Ireland against any person on the ground of religious belief or political opinion. Mr Lavery was a member of Sinn Fein, and the judge held that the Secretary of State was entitled to reach the conclusion that Sinn Fein at that time supported the use of violence for political ends. He stated that he was not satisfied that that could qualify as a political opinion, but reached the clear conclusion that section 19 was not intended to cover it, which would lead to a “manifestly absurd situation". He said at pages 220-221:

“It might be said that support for the use of violence to achieve a political objective is not a political opinion in the sense in which that expression is conventionally used but rather the means by which the vindication of one’s political opinion or the realisation of one’s political aims may be sought. Even if it can qualify for description as a political opinion, however, I am entirely satisfied that s.19 was not intended to and does not protect such an opinion. It was submitted that the ambit of s.19 did indeed extend to cover the view or belief that violence should be used to achieve a political goal but it requires little reflection to conclude that such an interpretation of the provision would lead to a manifestly absurd situation. Any advocate of violence, provided he was able to clothe his advocacy in the cloak of a political view, would be immune from less favourable treatment than that accorded to those who abhor and condemn the use of violence for political ends. Someone who openly encourages others to use arms to overthrow the state could claim entitlement to equality of treatment with law-abiding members of the community and would be able to prevent ministers from taking decisions which treated him less favourably. I cannot believe that such a situation was contemplated - much less intended - by Parliament in enacting s.19.

I am not satisfied that, in its plain and natural meaning, the expression ‘political opinion’ includes the belief that it is legitimate to use or to support the use of violence to achieve political ends. If it does, however, I am convinced that such an interpretation would not accord with the intention of Parliament which is the ultimate and defining test in statutory interpretation.”

 
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