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

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63.  I would not dissent from the views expressed in Ryder and supported by my noble and learned friend Lord Rodger of Earlsferry that a view as to the method by which a particular cause should be advanced may possibly in some cases and contexts itself constitute a political opinion. I would, however, hold that in the present context the approval or acceptance of violence for political ends does not rank as a political opinion. The political opinions concerned are republicanism and unionism, opposing aspirations of political identity. The division between their respective adherents reflects to a large extent the religious divide, the reason why the van Straubenzee Report recommended the inclusion of political opinion in the fair employment legislation. The overwhelming majority of the supporters of each are responsible and law-abiding citizens who seek to achieve their ends by constitutional and democratic means. Whatever may have been the position at the time when Re Lavery’s Application was decided, Sinn Fein now professes its object as being to promote Irish unity by solely political means. Paramilitary organisations resorted to violence as a means of achieving or supporting the political end of Irish unity or resisting it. I would not regard this as a political opinion in itself, for it is not an inherent and inseparable part of any political party’s beliefs or aims or those of any political movement. I do not consider that it follows from the provision in article 2(4) that Parliament necessarily classed it as a political opinion. The subsection was added to the Bill in 1976, long before the decision in Gill pointed up the distinction between a political opinion and a means of achieving a political end. It seems to me that the provision was added, possibly ex abundanti cautela, in order to ensure that, however it might be framed, the approval or acceptance of violence for political ends was not to rank as a political opinion for the purposes of the 1976 Act, whence it made its way into the 1998 Order. It does not follow that it would have so ranked if article 2(4) had not been included, and I do not think that it would.

64.  If this conclusion is correct, it is sufficient to dispose of the appeal. Whether article 2(4) on its correct construction is confined to presently held opinions would be a matter of no consequence, for if approval or acceptance of the use of violence for political ends does not rank as a political opinion for the purposes of the 1998 Order, it is not relevant when the appellants so approved or accepted it or whether they have or have not ceased to do so. Much of the argument was, however, devoted to the construction of article 2(4) and in my opinion the appeal is concluded by the view which your Lordships have taken on it. I had intended to set out my views fully on this part of the appeal, but having had the advantage of reading in draft the opinion prepared by Lord Rodger I do not find it necessary to do so. I agree entirely with the reasons which he has set out in paras 24 et seq and his conclusion. I do not consider that it is appropriate to resort to the debates in Parliament, since the conditions for doing so have not been satisfied. I agree with Lord Rodger that in any event, if one were to do so, there is no useful guidance to be obtained from the statements of Ministers about the construction envisaged by Parliament of article 2(4). I would add only that the function of a court is to interpret what Parliament has actually said in the legislative provisions as eventually enacted, not what it might have liked to say or what members thought it was saying.

65.  I would therefore dismiss the appeals.


My Lords,

66.  I have had the advantage of reading in draft the opinions of all the other members of the Committee and, in common with each of your Lordships, would dismiss these appeals. Like Lord Neuberger, I too prefer Lord Rodger’s view to that of Lord Carswell on the only issue dividing them, the ambit of the expression “political opinion.” I also share Lord Neuberger’s regret at the astonishing length of time taken by the Tribunal both in hearing and in deciding these applications. On the central questions at issue there is nothing I could usefully add to what Lord Rodger and Lord Carswell have already said.


My Lords,

67.  I have had the benefit of seeing in draft the speeches of my noble and learned friends, Lord Rodger of Earlsferry and Lord Carswell. I agree with them that these appeals should be dismissed.

68.  So far as the reasons for that conclusion are concerned, it appears to me that, save for one significant exception, the analyses of Lord Rodger and Lord Carswell are effectively the same. The difference between them concerns the issue discussed by Lord Rodger at paras 19 to 22 and by Lord Carswell at paras 59 to 63, namely whether an opinion which favours the use of violence is a “political opinion” within the meaning of the Fair Employment and Treatment (NI) Order 1998.

69.  On that issue, I agree with Lord Rodger. First, as a matter of ordinary language, such an opinion is a “political opinion", and, in the absence of good reason to the contrary, one should give an expression in a statute or statutory instrument its ordinary meaning. Secondly, if such an opinion were not a “political opinion” for the purposes of the 1998 Order, then at least part of article 2(4) of that order (in particular the phrase “consists of or”) would be redundant. Thirdly, as a matter of policy, if there is a choice between a narrower and a wider meaning, it appears to me that the expression should be given the latter meaning given the purpose of the 1998 Order.

70.  That issue is not directly relevant to the resolution of this appeal. As to that, the stark and simple point is that the Community refused to employ the two appellants not because of their former political beliefs, but because of the concern that each of them would pose a threat to the vulnerable people cared for by the Community. Accordingly, while the former view of each of the appellants relating to the use of violence was a “political opinion", and a past opinion is within the scope of the 1998 Order, that does not avail the appellants in this case.

71.  I cannot refrain from remarking on two unfortunate features of the procedural history of these two applications before the Fair Employment Tribunal. First, there is the delay between application and determination, and, secondly, there is the amount of time taken up by the hearing. The two applications to the Tribunal were brought in October 2000 and August 2002, but it was not until October 2005 that the hearing started. The hearing lasted twelve days spread over six months ending in April 2006. It then took more than a further eight months before the decision was published at the end of December 2006, more than four years after one of the applications had been made, and more than six years after the other. The substantial delay in disposing of these applications, and the inevitable costs and the amount of Tribunal time involved in a twelve-day hearing, appear to me to be unacceptable, particularly when one bears in mind the simple point at issue. There may be an explanation for these features in these two cases, and it is only fair to record that these concerns were not mentioned at the hearing of the appeal. However, if they are typical of the progress of applications to this Tribunal, something is going very wrong.

72.  Having said that, I would dismiss these appeals for the reasons given by Lord Rodger and (subject to the qualification already mentioned) by Lord Carswell.


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