Tweed v Parades Commission for Northern Ireland

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD CARSWELL,LORD BINGHAM OF CORNHILL,LORD HOFFMANN,LORD RODGER OF EARLSFERRY,LORD BROWN OF EATON-UNDER-HEYWOOD
Judgment Date13 December 2006
Neutral Citation[2006] UKHL 53
Date13 December 2006

[2006] UKHL 53

HOUSE OF LORDS

Appellate Committee

Lord Bingham of Cornhill

Lord Hoffmann

Lord Rodger of Earlsferry

Lord Carswell

Lord Brown of Eaton-under-Heywood

Tweed
(Appellant)
and
Parades Commission for Northern Ireland
(Respondents) (Northern Ireland)

Appellants:

Nicholas Hanna QC

David Scoffield

(Instructed by Carson McDowell)

Respondents:

Bernard McCloskey QC

Paul Maguire QC

(Instructed by Crown Solicitor)

LORD BINGHAM OF CORNHILL

My Lords,

1

As explained by my noble and learned friends Lord Carswell and Lord Brown of Eaton-under-Heywood (to whom I am indebted for their exposition of the relevant facts, the history of the proceedings, the relevant legislation and rules and the authorities), the issue in this appeal is whether discovery of five documents held by the Parades Commission should be ordered for purposes of Mr Tweed's application for judicial review, to the extent that such application turns on a proportionality argument under the Human Rights Act 1998 and the European Convention on Human Rights.

2

The disclosure of documents in civil litigation has been recognised throughout the common law world as a valuable means of eliciting the truth and thus of enabling courts to base their decisions on a sure foundation of fact. But the process of disclosure can be costly, time-consuming, oppressive and unnecessary, and neither in Northern Ireland nor in England and Wales have the general rules governing disclosure been applied to applications for judicial review. Such applications, characteristically, raise an issue of law, the facts being common ground or relevant only to show how the issue arises. So disclosure of documents has usually been regarded as unnecessary, and that remains the position.

3

In the minority of judicial review applications in which the precise facts are significant, procedures exist in both jurisdictions, as my noble and learned friends explain, for disclosure of specific documents to be sought and ordered. Such applications are likely to increase in frequency, since human rights decisions under the Convention tend to be very fact-specific and any judgment on the proportionality of a public authority's interference with a protected Convention right is likely to call for a careful and accurate evaluation of the facts. But even in these cases, orders for disclosure should not be automatic. The test will always be whether, in the given case, disclosure appears to be necessary in order to resolve the matter fairly and justly.

4

Where a public authority relies on a document as significant to its decision, it is ordinarily good practice to exhibit it as the primary evidence. Any summary, however conscientiously and skilfully made, may distort. But where the authority's deponent chooses to summarise the effect of a document it should not be necessary for the applicant, seeking sight of the document, to suggest some inaccuracy or incompleteness in the summary, usually an impossible task without sight of the document. It is enough that the document itself is the best evidence of what it says. There may, however, be reasons (arising, for example, from confidentiality, or the volume of the material in question) why the document should or need not be exhibited. The judge to whom application for disclosure is made must then rule on whether, and to what extent, disclosure should be made.

5

In the present case, Mr Tweed has obtained leave to apply for judicial review on grounds which include a challenge to the proportionality of the Commission's interference with his claimed Convention rights. The Commission's deponent has summarised five documents which Mr Tweed wishes to see. Disclosure is resisted on the ground that this would breach the assurance of confidentiality given to the Commission's informants. Like my noble and learned friends, and for the reasons they give, I would order that the five documents in question be disclosed by the Commission, in the first instance to the judge alone. He will assess whether the documents appear to record information imparted in confidence by identified informants. If not, he is likely to order disclosure to Mr Tweed, since there will be no reason not to do so. If they do appear to disclose such information, he must consider whether the documents add anything of value to the summaries in the evidence. If not, that will be the end of the matter. If he judges that they do add something of value to the summaries, he will move on to consider the submissions of the parties on redaction and, if raised, public interest immunity.

6

I would allow the appeal and make the order which my noble and learned friends propose.

LORD HOFFMANN

My Lords,

7

I have had the advantage of considering the speeches of my noble and learned friends, Lord Bingham of Cornhill, Lord Carswell and Lord Brown of Eaton-under-Heywood, in draft. I agree with them and would make the order which they propose.

LORD RODGER OF EARLSFERRY

My Lords,

8

I have had the advantage of considering the speeches of my noble and learned friends, Lord Bingham of Cornhill, Lord Carswell and Lord Brown of Eaton-under-Heywood, in draft. I agree with them and would make the order which they propose.

LORD CARSWELL

My Lords,

9

This interlocutory appeal from the Court of Appeal in Northern Ireland on the subject of disclosure of documents in judicial review applications enables the House to review the extent of disclosure which should be ordered in such applications, since the rules applicable in Northern Ireland are identical with those in England and Wales. The issue which is at the heart of the appeal is the way in which the court should approach disclosure when the question before it involves the application of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"), in particular those qualified rights contained in articles 9, 10 and 11.

10

Parades, or to give them their statutory name, public processions, are a well-established tradition in all democratic countries. They can be organised to celebrate, to express solidarity or cultural identity or to articulate concern and give expression to grievances. Very few of them are contentious in the sense that they provoke any opposition or counter-protest, but in Northern Ireland a small proportion of them have in recent years proved to be contentious in that sense and some of them have been the occasion of serious public disorder. The extent of that disorder in the mid-1990s caused the Government to set up a review body chaired by Dr Peter North, which produced a substantial report in 1997. The main recommendations of the North report were enacted in legislation in the passing of the Public Processions (Northern Ireland) Act 1998 ("the 1998 Act").

11

Section 1 of the 1998 Act established the respondent body, the Parades Commission for Northern Ireland ("the Commission"), whose membership is, by paragraph 2(3) of Schedule 1, to be as far as practicable representative of the community in Northern Ireland. By section 2(2)(b) the Commission is empowered to issue determinations in respect of particular proposed public processions. A person proposing to organise a public procession must under section 6 give notice to the police at the time and in the manner set out in that section. Determinations are provided for by section 8, subsections (1) and (2) of which read:

"(1) The Commission may issue a determination in respect of a proposed public procession imposing on the persons organising or taking part in it such conditions as the Commission considers necessary.

(2) Without prejudice to the generality of subsection (1), the conditions imposed under that subsection may include conditions as to the route of the procession or prohibiting it from entering any place."

Notice is given annually of approximately 3000 processions (to which I shall refer for convenience by their usual name of parades), but the large majority are entirely uncontentious and do not attract any restrictions. The Commission issues about 170 determinations each year containing restrictions of varying kinds.

12

Under section 5 the Commission has to issue a set of guidelines as to the exercise of its functions. Section 8(6) provides in part:

"(6) The guidelines shall in particular … provide for the Commission to have regard to–

  • (a) any public disorder or damage to property which may result from the procession;

  • (b) any disruption to the life of the community which the procession may cause;

  • (c) any impact which the procession may have on relationships within the community …"

The appellant has in the substantive application for judicial review challenged the validity of paragraph (c), claiming that it is incompatible with the provisions of the Convention.

13

He also put in issue the validity of paragraph 4.4 of the Commission's guidelines, which provides:

"Communication with the Local Community: The Commission will also take into account any communications between parade organisers and the local community or the absence thereof and will assess the measures, if any, offered or taken by parade organisers to address genuinely held relevant concerns of members of the local community. The Commission will also consider the stance and attitudes of local community members and representatives."

14

The Commission made procedural rules, as required by section 4 of the 1998 Act. The validity of rule 3.3 is challenged by the appellant in the interlocutory proceedings the subject of the present appeal. Rule 3.3 reads:

"All evidence provided to the Commission, both oral and written, will be treated as confidential and only for the use of the Commission, those employed by the Commission and Authorised Officers. The Commission, however, reserves the right to express unattributed...

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