Treacy (Seamus) and Macdonald's (Barry) Application
| Jurisdiction | Northern Ireland |
| Judge | Kerr J |
| Judgment Date | 02 May 2000 |
| Neutral Citation | [2000] NIQB 6 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 02 May 2000 |
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Neutral Citation no. (2000) 2075 Ref: KERF3196
Judgment: approved by the Court for handing down Delivered: 02/05/00
(subject to editorial corrections)
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION (CROWN SIDE)
________
IN THE MATTER OF AN APPLICATION BY SEAMUS TREACY AND BARRY
MACDONALD FOR JUDICIAL REVIEW
________
KERR J
Introduction
Seamus Treacy and Barry Macdonald are members of the Bar of Northern Ireland. They
applied in April 1999 to be admitted to the Senior Bar. In November 1999 they learned that they had
been successful in their applications. Subsequently, they were informed that, before being called to the
Senior Bar, they would be required to make a declaration in the following terms:-
"I do sincerely promise and declare that I will well and truly serve Her
Majesty Queen Elizabeth II and all whom I may be lawfully called
upon to serve in the office of one of Her Majesty's Counsel learned in
the law according to the best of my skill and understanding."
Both applicants objected to making this declaration. They claimed that the Lord Chancellor (whose
decision it was to require the declaration to be made) had no power to impose such a requirement.
Alternatively, they suggested that he was wrong to impose it. They also claimed that the matter of the
declaration was one for the Lord Chief Justice of Northern Ireland. Finally they asserted that they
were already Queen's Counsel by virtue of the Warrant of the Queen.
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Background
Before the partition of Ireland, Queen's Counsel were appointed by the issue of a warrant by
the Lord Lieutenant of Ireland, acting as the delegate of the Sovereign. The Lord Lieutenant acted on
the advice of the Lord Chancellor of Ireland. It was a constitutional convention that the Lord
Lieutenant would accept the Lord Chancellor's advice. This practice mirrored the position in England
where the Lord Chancellor of England recommended to the Sovereign the names of those whom he
considered should be appointed Senior Counsel and his recommendation was invariably accepted.
After 1920 the functions of the Lord Lieutenant were transferred to the Governor of Northern
Ireland. In the matter of the appointment of Senior Counsel the Governor acted on the
recommendation of the Lord Chief Justice for Northern Ireland. An Oath of Allegiance to the
Sovereign was required of those who wished to become Senior Counsel. They were also required to
make a declaration of office. It was in these terms :-
"I do declare that well and truly I will serve the Queen as one of Her
Counsel learned in the law and truly counsel the Queen in Her matters,
when I shall be called upon so to do, and duly and truly administer the
Queen's process after the course of the law, and after my cunning. I
will duly in convenient time speed such matters as I may lawfully do
which any person shall have to do in the law against the Queen. And in
all other respects I will be attendant to the Queen's matters when I be
called thereto."
In 1972 the functions of the Governor were transferred to the Secretary of State for Northern Ireland.
When Senior Counsel were to be appointed, the Secretary of State, acting on behalf of the Queen and
on the advice of the Lord Chief Justice, issued a warrant authorising their appointment.
In May 1995 Philip Magee, a member of the Bar of Northern Ireland, made an application for
judicial review of the requirement to take the Oath of Allegiance and to make a declaration of office in
the form then prescribed. The respondent in the judicial review proceedings was the Secretary of State
for Northern Ireland. Before the application for judicial review was heard, however, it was concluded
that the requirement to take the Oath of Allegiance was in breach of the Promissory Oaths Act 1868.
This requirement was removed, therefore. At the same time the Secretary of State reviewed the form
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of the declaration of office. He decided that in future the form of the declaration should be the same
as that made in England and Wales. Accordingly, on 26 October 1995, the Clerk of the Crown wrote
to the chairman of the Bar Council informing him that, on taking Silk, the oath would no longer be
administered and that the declaration would be in the form used in England and Wales. This is the
form of the declaration which is currently in use and to which the applicants object.
After the letter from the Clerk of the Crown was received, Mr Magee consented to his
application for judicial review being dismissed. In April 1996 a notice signed by the Principal Secretary
to the Lord Chief Justice inviting applications for Silk was screened in the Bar Library. This prompted
Mr Magee to write to the chairman of the Bar Council and to the Principal Secretary making inquiry as
to the form which the declaration would take. He was informed that this would be as outlined in the
letter from the Clerk of the Crown. Solicitors acting for Mr Magee then wrote to the Principal
Secretary and to the Secretary of State for Northern Ireland raising a number of queries. In particular
they asked whether the making of the declaration was compulsory. On 22 April 1996 the Principal
Secretary replied stating that the making of the declaration was not a matter for the Lord Chief Justice.
Further correspondence on this topic passed between Mr Magee's solicitors and the Principal
Secretary, in the course of which the Principal Secretary quoted the following exchange from Hansard
of 13 June 1995:
"Mr Peter Bottomley MP: To ask the Parliamentary Secretary, the Lord
Chancellor's Department, who has discretion to modify the
requirements of the oath and declaration required of Queen's Counsel.
Mr John M Taylor MP: When in November [1972] the form of the
declaration made by Queen's Counsel was last modified, Her Majesty
approved the Lord Chancellor's recommendation made with the
agreement of the Treasurers of the four Inns of Court and the
chairman of the General Council of the Bar.
…
Any modification to the oath and declaration for Queen's Counsel of
Northern Ireland would be made by my Right Hon Friend the
Secretary of State for Northern Ireland in the exercise of the Royal
Prerogative. He would be advised in the matter by the Supreme Court
authorities after consultation with the General Council of the Bar of
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Colm Murphy and Seamus Daly v The Lord Chancellor and the Northern Ireland Legal Services Commission
...been consulted upon. [40] The need to consult on the basis of legitimate expectation was canvassed in Treacy and McDonald’s Application [2000] NIQB 6 in which Kerr J (as he then was) said at paragraph 160:- “It is well established that a legitimate expectation must be induced by the conduct......