Re Duffy
| Jurisdiction | UK Non-devolved |
| Judge | LORD BROWN OF EATON-UNDER-HEYWOOD,BARONESS HALE OF RICHMOND,LORD CARSWELL,LORD BINGHAM OF CORNHILL,LORD RODGER OF EARLSFERRY |
| Judgment Date | 30 January 2008 |
| Neutral Citation | [2008] UKHL 4 |
| Date | 30 January 2008 |
| Court | House of Lords |
[2008] UKHL 4
HOUSE OF LORDS
Appellate Committee
Lord Bingham of Cornhill
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Carswell
Lord Brown of Eaton-under-Heywood
Appellants:
Barry Macdonald QC
Karen Quinlivan
(Instructed by Howe & Co Solicitors (London) P Drinan Solicitor (N. Ireland))
Respondents:
Bernard McCloskey QC
Paul Maguire QC
(Instructed by Treasury Solicitors)
My Lords,
Mr Duffy, the appellant, is a member of the Garvaghy Road Residents' Coalition. He applied for judicial review to challenge the appointment by the Secretary of State for Northern Ireland on 30 November 2005 of two new members of the Parades Commission for Northern Ireland. Those members are Mr David Burrows and Mr Donald Mackay (who has since resigned from the commission). Mr Duffy's challenge was based on a number of grounds directed to the suitability of Mr Burrows and Mr Mackay to be members of the commission and to the process leading to their appointment. His challenge was upheld, on a limited ground, by Morgan J but was rejected by a majority of the Court of Appeal in Northern Ireland (Kerr LCJ and Campbell LJ, Nicholson LJ dissenting) in the judgment now under appeal ( [2006] NICA 28, [2007] NI 12).
Background
The holding of public parades, processions and marches has long been cherished by adherents of both the main traditions in Northern Ireland, the protestant/unionist and the catholic/nationalist, as a means of expressing their values and celebrating their history. In many cases such events pass off peacefully and unprovocatively. But this has not always proved to be so.
Dr Peter North, in paragraph 4.4 of Chapter 4 of the report referred to below, recorded that "after a comparative lull from 1989-1994, parades were a source of contention in a number of areas in 1995". One contentious parade in that year was the parade from the parish church at Drumcree along the Garvaghy Road to the centre of Portadown in County Armagh. The parade was held by the District Orange Lodge, a protestant/unionist body, and the parade was contentious because its route along the Garvaghy Road took it through a catholic/nationalist area. There was a prolonged stand-off outside the church, the police were involved and relations between the two communities deteriorated.
Events at Drumcree and in the Garvaghy Road in July 1996 were described in the North report as of "critical importance" (ibid., para 4.11). Attempts to secure some agreement between the two sides had been unsuccessful. The police served notice on the organisers restricting the route of the parade, but this order was resisted, large crowds gathered and for several days there was widespread and serious disorder in Northern Ireland. The police and the military security forces struggled to keep order, but the Chief Constable, fearing a threat to life, revoked the order restricting the route of the parade, which accordingly returned from the parish church to Portadown along the Garvaghy Road. This led to serious disorder, particularly in nationalist areas of Belfast and Londonderry: see North, op. cit, paras 4.11-4.17, and Chapter 10. Londonderry experienced the worst rioting in 25 years.
Responding to these problems, the government in August 1996 invited a body under the chairmanship of Dr North to conduct an independent review of parades and marches. Their Report: Independent Review of Parades and Marches was published in January 1997. They recommended (Chapter 12) the establishment of an independent body which would (para 12.21) allow interested parties to put their views forward about proposed parades, encourage them to settle difficulties locally, and where that proved impossible, itself come to a view on what, if any, conditions should be imposed on contentious parades after an appropriately transparent process of examination of all the relevant issues against the background of reformed legal provisions. The composition of the proposed commission was accepted to be of critical importance to its success (para 12.31): it would need widespread acceptance, self-confidence and an ability in its members to work together.
The review body's recommendation was accepted, and a commission was established on an informal basis in March 1997. In that year the police allowed the parade to process down the Garvaghy Road, but the area was effectively sealed off and residents were confined to their homes for a number of hours. Steps were then taken to give the commission formal recognition, and in February 1998 the Public Processions (Northern Ireland) Act 1998 was enacted. This established the commission as a body with a chairman and up to 6 members. Its duties, expressed in section 2, were in part educational and advisory but included the promotion and facilitation of mediation as a means of resolving disputes about public processions. It was empowered under the same section to facilitate mediation between parties to particular disputes, to take such other steps as might be appropriate to resolve such disputes and to issue determinations in respect of particular proposed public processions. It was to issue a code of conduct for those organising or taking part in public processions or public meetings and to issue procedural rules and guidelines. Under section 8 it had power to impose conditions on those organising or taking part in proposed public processions, prescribing among other things the route to be followed. Criminal penalties attached to wilful breach of conditions imposed by the commission. Relevant for present purposes is paragraph 2(3) of Schedule 1 to the Act:
"The Secretary of State shall so exercise his powers of appointment under this paragraph as to secure that as far as is practicable the membership of the Commission is representative of the community in Northern Ireland."
In 1998 the newly-established commission made its first determination relating to the Garvaghy Road. It prohibited the parade down the road, a determination which it repeated in subsequent years. Portadown Loyal Orange Lodge No 1 responded by giving notice week by week, up to 50 times each year, of its proposal to hold a deferred parade including a procession down the Garvaghy Road.
In recent years the number of parades notified to the commission has varied but has exceeded 3,000 per annum in total. Statistics published by the commission for the year ending 31 March 2006 show that 73% of these parades were organised by loyalist bodies. The majority of these were not contentious, but of those classified as contentious in the year 2005-2006 92% were loyalist. The loyalist organisations had strongly opposed the establishment of the commission and had resisted its regulation of what they saw as the exercise of a fundamental right. There was accordingly an obvious political need to try and secure the co-operation of these loyalist organisations.
The selection process
The terms of office of the serving chairman and members of the commission were due to expire on 31 December 2005, and a decision was taken within government not to renew the appointments of those then holding office and to appoint an entirely new commission. At a meeting with members of the loyal (protestant/unionist) orders in the early part of 2005 about the marching season, the Security Minister (Mr Woodward) encouraged the loyal orders to give their support to the commission, to play a constructive part in it and to consider putting forward candidates in the forthcoming competition. Thought was given to the conduct of that competition, and it was directed that the competition should be conducted in accordance with the principles promulgated by the Office of the Commissioner for Public Appointments. In accordance with those principles an assessor was to be appointed to take part in and invigilate the selection procedures.
At the end of July 2005 advertisements inviting applications for appointment to the commission were published in the main newspapers circulating in Northern Ireland and a press release was issued to a large number of addressees. On 26 July the Secretary of State sent 11 letters inviting the recipients to encourage anyone they considered appropriate to apply. The recipients of these letters included the leaders of the four main political parties in Northern Ireland, unionist and nationalist, and the leaders of the four main religious denominations, protestant and catholic. These letters are accepted as proper. The recipients also included the Grand Master of the Grand Orange Lodge of Ireland, the Sovereign Grand Master of the Royal Black Institution and the leader of the Apprentice Boys of Derry, all of these being strongly protestant and unionist organisations. The appellant complains that no similar letter was sent to nationalist groups such as, for instance, the Garvaghy Road Residents' Coalition.
The Code of Practice promulgated by the Commissioner for Public Appointments in August 2005 contained guidance on the making of ministerial appointments to public bodies. Paragraph 2.09 of this guidance read:
"2.09 Departments should ensure at interview that candidates demonstrate that they are committed to, and have an understanding of, the value and importance of the principles of public service (see Annex A). The problem most likely to arise is that of actual or perceived conflict of interest. Therefore, as early as possible in the recruitment process, all candidates must be asked to disclose information or personal connections which, if they were to be appointed, could be misconstrued or cause embarrassment to the appointing authority. Departments, in consultation with the bodies themselves, are best placed to judge what might constitute a conflict...
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