McConkey and another v Simon Community Northern Ireland
| Jurisdiction | England & Wales |
| Judge | LORD PHILLIPS OF WORTH MATRAVERS,LORD RODGER OF EARLSFERRY,LORD CARSWELL,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD NEUBERGER OF ABBOTSBURY |
| Judgment Date | 20 May 2009 |
| Neutral Citation | [2009] UKHL 24 |
| Court | House of Lords |
| Date | 20 May 2009 |
[2009] UKHL 24
HOUSE OF LORDS
Appellate Committee
Lord Phillips of Worth Matravers
Lord Rodger of Earlsferry
Lord Carswell
Lord Brown of Eaton-under-Heywood
Lord Neuberger of Abbotsbury
and another
Appellants:
Barry Macdonald QC
Karen Quinlivan
(Instructed by Rosemary Connolly Solicitors)
Respondents:
Noelle McGrenera QC
Anne Finegan
(Instructed by J Blair Solicitors)
My Lords,
I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Rodger of Earlsferry and for the reasons that he gives I will dismiss these appeals.
My Lords,
In about 1975 the first appellant, John McConkey, who was a member of a proscribed organisation, was also in possession of a firearm and ammunition, and committed murder. He was subsequently convicted of offences relating to these activities and sentenced to life imprisonment and other substantial terms of imprisonment, from which he was released on the order of the Secretary of State in about March 1997.
In about 1992 the second appellant, Jervis Marks, was in possession of explosives with intent to endanger life or property and was involved in a conspiracy to murder and a conspiracy to cause an explosion likely to endanger life or property. He was subsequently convicted of offences relating to these activities and sentenced to long terms of imprisonment, from which he was released on licence on the order of the Secretary of State in about October 1998.
In the case of both appellants it is agreed that their involvement in these activities was in support of the Republican cause. It is also agreed that, at all material times in 2000 and 2002 respectively, they no longer approved of, or accepted, the use of violence for political ends connected with the affairs of Northern Ireland.
Their previous involvement in violent crime in support of the Republican cause came to the attention of the Simon Community when it was proposing to offer them employment. As a result, the Community decided not to employ them. The appellants complained to the Fair Employment Tribunal that they had been discriminated against on the ground of their former political opinion approving of, or accepting, the use of violence for political ends connected with the affairs of Northern Ireland. Somewhat reluctantly, the Tribunal rejected their complaints. The appellants appealed by way of case stated, but the Court of Appeal dismissed their appeals.
All this is explained more fully in the speech of my noble and learned friend, Lord Carswell. For the reasons he gives, which are based on the material set out in the Tribunal's decision, I am satisfied that the Community did not refuse to employ the appellants because of their former political beliefs, but because of a concern that employing them might pose risks for the vulnerable people who are cared for by the Community. Leave to appeal was granted, however, in order to give the House the opportunity to consider the meaning and application of the provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998 (SI 1998/3162 (NI 21)) ("the Order") relating to discrimination on the ground of political opinion. It is therefore right to deal with those issues, which were fully argued before the House.
Article 19(1)(a)(iii) of the Order makes it unlawful for an employer to discriminate against a person by refusing him employment for which he applies. By reason of articles 2(2) and 3(1), article 19(1)(a)(iii) applies where an employer discriminates by refusing a person employment on the ground of his political opinion. The expression "political opinion" is not defined, but article 2(4) provides:
"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 first thing to notice is that the Order is concerned with discrimination against someone on the basis of the religious belief or political opinion which he holds. It is not concerned with discrimination on the ground of actions that the person may take in support of that religious belief or political opinion. So, for instance, if someone belonged to a religious sect which favoured wife beating, it would be unlawful for me to discriminate against him, simply because of his religious belief. But I would be quite entitled to refuse to employ him if he actually gave effect to his beliefs by helping a friend to beat his wife. Similarly, if someone supports a lawful extreme right-wing or left-wing party, it is unlawful for me to refuse to employ him simply because of his political opinion, but I can certainly refuse to employ him if he gives expression to that opinion by assaulting his opponents or destroying their property.
At para 41 of his judgment in the present cases, [2008] NICA 16, Higgins LJ elided the distinction between an opinion and actions based on that opinion when he discussed whether "the use of violence for political ends is a political opinion to which article 3 applies." The use of violence can never be an opinion, whether political or otherwise. His question would have to be whether "an opinion approving or accepting the use of violence for political ends is a 'political opinion' to which article 3 applies."
Those in authority in Northern Ireland today hope that people will feel able to put the Troubles behind them. The First Minister and Deputy First Minister therefore urge employers not to refuse to employ people simply because of their involvement in criminal activities of a political nature during that period. But, even today, the Ministers can only issue Guidance, exhorting employers to follow that line. The employers are under no legal obligation to do so. If they choose to ignore the Ministers' advice and prefer not to employ people with a history of violence, they are free to do so. There was not even any equivalent official advice in 2000 or 2002 when the Community decided not to employ the appellants. The Community would have been perfectly entitled to refuse to employ the first appellant simply because he had committed murder and the second appellant simply because he had conspired to endanger property or life. That was indeed common ground at the hearing of the appeal.
Even to get a toe in the door of unlawful discrimination, therefore, the appellants have to put a very artificial construction on the Community's reaction to discovering their past history of violence: they have to say that they were refused employment, not because they had been guilty of crimes of violence, but because of a political opinion lying behind those crimes. What opinion? Since the Tribunal found as a fact that the Community would have treated Loyalists with the same criminal record in the same way, the appellants cannot say that they were discriminated against on the ground of their support for the Republican cause. Rather, they say that they were refused employment because of their former opinion, approving the use of violence to advance Republican political ends in Northern Ireland.
At this point, I must examine article 2(4) and article 3(1) of the Order in a little more detail.
When article 3(1) refers to discrimination on the ground of religious belief or political opinion, it must cover both present and past religious belief or political opinion. I can no more refuse to employ you because you were formerly a member of a Protestant church than because you are now a member of the Roman Catholic Church. The same applies to political opinions. Again, that is accepted by both parties.
By virtue of article 2(4), the term "political opinion" in article 3(1) does not refer to an opinion consisting of, or including, approval or acceptance of the use of violence for political ends connected with the affairs of Northern Ireland. As the appellants acknowledge, if they had still approved of the use of violence to advance Republican political ends in Northern Ireland when they applied for the jobs, their opinion to that effect would not have come within article 3(1). It would therefore not have been unlawful, under article 19(1)(a)(iii), for the Community to refuse to employ them because they held that opinion.
Counsel for the appellants contended, however, that article 2(4) is deliberately limited to opinions that people hold at the time when they, say, apply for, and are refused, employment. It does not apply to an opinion that a person formerly held, but has repudiated and abandoned before he makes his application. It followed that, since article 2(4) does not apply, the term "political opinion" in article 3(1) includes a previously held opinion approving of, or accepting, the use of violence for political ends connected with the affairs of Northern Ireland. It was accordingly unlawful, under article 19(1)(a)(iii), for the Community to refuse the appellants employment because they had at one time approved of, or accepted, the use of violence for political ends connected with the affairs of Northern Ireland.
Counsel for the Community made two points in reply.
First, article 2(4) applied to both present and past opinions. An opinion in favour of the use of violence, which someone had previously held but had now abandoned, was accordingly not a "political opinion" for the purposes of article 3(1). So it was not unlawful to discriminate against someone precisely because he had once held that opinion. Under some pressure from...
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