A decision a reasonable Secretary of State could not have made if properly directing himself in law”

Despite his efforts to clear his name to extent of appealing a negative judgement on his appointment of two commissioners to the Parades Commission, Peter Hain will be disappointed. This judgement reiterates the judgements at the High Court nearly two years ago. It seems that Eammon McCann has been proven right in at least one regard.Lord Bingham’s conclusions are worth quoting at length:

25. Mr McCloskey was right to submit, as he did, that the commission is not a court and its procedures, set out in its rules, are not those of a court. But it clearly has a duty to seek to resolve contentious disputes by mediation where this is possible and, where it is not, to make determinations which will, so far as may be, reconcile the wishes of those who wish to parade with the wishes of those who do not wish to be intimidated, insulted or inconvenienced. These are not judicial tasks, but they are tasks which can only be satisfactorily performed by a body which is accepted by both parties as independent, objective and impartial in its approach. Put negatively, the task is one which cannot be satisfactorily performed by a body which is seen by one party to be in the pocket or under the domination of the other. I do not understand these propositions to be controversial.

26. With a maximum of seven members including the chairman, the commission is a very small body. While the Act provides that a quorum for a meeting of the commission is three (Schedule 1, para 5(1)), no doubt to allow for the occasional absences and disqualifications which inevitably occur, it may be safely inferred that the commission was generally intended to act as a body comprising most, if not all, of the commissioners.

Otherwise, the representative quality which the Secretary of State was to seek to secure in its membership would not be reflected in its activities and determinations. It cannot have been contemplated by the legislature that any of the ordinary commissioners would be routinely disqualified from playing a part in the most difficult, contentious and high-profile business of the commission.

27. Mr Burrows and Mr Mackay had both been very prominent and committed proponents of the loyalist parade from Drumcree along the Garvaghy Road to Portadown. When appointed neither had resigned from the bodies to which they belonged and neither gave any recorded indication that he had changed his allegiance. No reasonable person, knowing of the two appointees’ background and activities, could have supposed that either would bring an objective or impartial judgment to bear on problems raised by the parade in Portadown and similar parades elsewhere. There is nothing in the papers which suggests that the interviewing panel recognised this problem at all, and I share the judge’s doubt, expressed in paragraph 16 of his judgment, whether they understood the nature of the task on which they were engaged. They do not appear to have considered whether these appointees could plausibly or lawfully act as mediators or decision-makers in relation to the Garvaghy Road or similar contentious parades elsewhere or whether, if not, they could play a full part as commissioners. They do not appear to have considered whether the activities and decisions of a body including two such prominent and partisan activists would command widespread acceptance among the general public. If these matters were considered and discussed they were certainly not fully documented, as the OCPA code of practice required. Essentially the same criticisms must be made of the part of the selection process to which the Secretary of State was personally party. Had these matters been addressed, as in my opinion they plainly should have been, the conclusion would have been reached (and certainly should have been reached) that these appointees could not plausibly and lawfully act as mediators or decision-makers in relation to the Garvaghy Road and similar parades elsewhere, and that they could not, accordingly, play anything approaching a full part in the business of the commission. It was one thing to ensure that the loyalist interest was represented within the commission, but quite another to recruit two hardline members of the very lodges whose activities had been a focus, probably the main focus, of the serious problems which had caused widespread disorder and led to establishment of the commission.

28. I feel bound to conclude that the decision to appoint Mr Burrows and Mr Mackay was one which a reasonable Secretary of State could not have made if properly directing himself in law, if seised of the relevant facts and if taking account of considerations which, in this context, he was bound to take into account. Both appointments were accordingly unlawful.

29. Having reached this conclusion I think it unnecessary to review additional arguments advanced on behalf of Mr Duffy, including an argument based on section 76 of the Northern Ireland Act 1998.

30. No purpose is served by making any order in relation to Mr Mackay. For the reasons I have given, and in agreement with my noble and learned friends Lord Carswell and Lord Brown of Eatonunder-Heywood, I would allow Mr Duffy’s appeal and reinstate the judge’s order. The Secretary of State must pay Mr Duffy’s costs in the House and in the courts below.”

Mick Fealty

Mick is founding editor of Slugger. He has written papers on the impacts of the Internet on politics and the wider media and is a regular guest and speaking events across Ireland, the UK and Europe. Twitter: @MickFealty