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Brun, Re Application for Judicial Review [2001]
NIQB 3 (30 January 2001)
Neutral Citation no. [2001] NIQB 3
Ref:
KERF3332
Judgment: approved by the Court for handing down
Delivered:
30.01.2001
(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 BAIRBRE DE BRUN AND MARTIN
McGUINNESS FOR JUDICIAL REVIEW
________
KERR J
Introduction
By these proceedings, Bairbre de Brun and Martin McGuinness, Ministers of the
Executive Committee of the Northern Ireland Assembly, seek judicial review of
the decision of David Trimble, the First Minister, not to nominate them for
meetings of the North-South Ministerial Council.
Background
The Agreement reached in the multi-party negotiations in April 1998 (known as
the Belfast Agreement) provided for the establishment of a North-South
Ministerial Council "to bring together those with executive responsibilities in
Northern Ireland and the Irish Government, to develop consultation, co-operation
and action within the island of Ireland – including through implementation on an
all-island and cross-border basis – on matters of mutual interest within the
competence of the Administrations, North and South".
By virtue of section 52(1) of the Northern Ireland Act 1998 the First Minister
and the deputy First Minister are required to make nominations to the
North-South Ministerial Council. Currently, the Rt Hon David Trimble MP is the
First Minister. Seamus Mallon MP is the deputy First Minister. Bairbre de Brun
is the Minister for Health, Social Services and Public Safety and Martin
McGuinness is the Minister for Education. Both Ms de Brun and Mr McGuinness are
members of the political party, Sinn Fein.
On 11 September 2000 Mrs Anne Birch of the Executive Committee Secretariat wrote
to the Private Secretaries of the First Minister and the deputy First Minister,
notifying them of a series of sectoral meetings of the North-South Ministerial
Council. She asked for nominations of Ministers for these meetings.
Nominations for all the meetings were agreed between the First Minister and the
deputy First Minister and on 25 September 2000 Mrs Birch was informed of that
and asked to furnish formal nomination papers in due course; these are required
for the purposes of section 52(5) of the 1998 Act which obliges the First
Minister and the deputy First Minister to inform the Assembly and the Executive
Committee of the date of the North-South Council meeting, the agenda and the
identity of those nominated.
Ms de Brun was among those whose nomination had been agreed. She was due to
attend a sectoral meeting of the Council on 3 November 2000. On 24 October 2000
Mrs Birch sent nomination papers for this meeting to the offices of the First
Minister and the deputy First Minister. Mr Mallon signed the nomination paper
but Mr Trimble declined to sign it.
Mr McGuinness was nominated by the deputy First Minister to attend a meeting of
the Council on 24 November 2000. Again the First Minister refused to nominate
Mr McGuinness. On 2 November 2000 Mr Trimble's Private Secretary wrote to Mrs
Birch explaining his position. She said: -
"Mr Trimble has asked me to point out that he remains ready to make valid
nominations to NSMC sectoral meetings although he declines, for the moment, to
nominate Mr McGuinness and Ms de Brun".
The reason that Mr Trimble refused to nominate Mr McGuinness and Ms de Brun was
explained in affidavits filed on his behalf in these proceedings. Therein
it is stated that the First Minister was of the view that "such an approach will
be likely to persuade Sinn Fein to use any influence it may have to secure
decommissioning of paramilitary arms in accordance with the Belfast Agreement".
The judicial review application
On behalf of Ms de Brun, Mr Treacy QC argued that the refusal of the First
Minister to nominate her for the sectoral meeting of the Council constituted a
breach of the mandatory duty imposed on him by section 52(1) of the 1998 Act.
It was also submitted that the decision of the First Minister had been taken for
a purpose which was collateral to the permitted purposes of section 52 and was
unlawful on that account. In particular, Mr Treacy argued, the decision not to
nominate Ms de Brun was taken to fulfil a resolution of the Ulster Unionist
Council made on 28 October 2000 that Sinn Fein Ministers should not be nominated
to the North-South Ministerial Council "in view of the failure of the IRA to
re-engage with the Independent International Commission on Decommissioning".
The decision of the First Minister "to implement the policy of the Ulster
Unionist Council" was based on a consideration which was wholly irrelevant to
the duty that he was required to perform under section 52 (1) of the Act, Mr
Treacy argued.
Mr Treacy also referred to section 16 (4) (a) of the 1998 Act which provides
that the First Minister and the deputy First Minister "shall not take up office
until each of them has affirmed the terms of the pledge of office". The pledge
of office contains a number of undertakings, the following of which, Mr Treacy
submitted, had been breached by Mr Trimble by his refusal to nominate the Sinn
Fein Ministers: -
"(a) to discharge in good faith all the duties of office;
…
(c) to serve all the people of Northern Ireland equally, and to act in
accordance with the general obligations on government to promote equality and
prevent discrimination;
…
(g) to comply with the Ministerial Code of Conduct"
The Ministerial Code of Conduct here referred to is that which is set out in
Schedule 4 to the 1998 Act. Mr Treacy also drew attention to the
Ministerial Code that the Executive had agreed and which dealt with the
mechanism for the appointment of Ministers. He claimed that Mr Trimble had
also failed to comply with Clause 5.1 of that Code. This provides that the
First Minister and the deputy First Minister "will normally nominate each
Minister or junior Minister with executive responsibility in the areas to be
considered at the [sectoral] meeting". Mr Treacy argued that this
provision created a substantive legitimate expectation that the applicants would
be nominated for the relevant sectoral meetings.
Finally, Mr Treacy contended that the decision not to nominate Sinn Fein
ministers was in breach of section 24(1)(c) of the 1998 Act which provides that
a Minister has no power to do any act which discriminates against a person or
class of person on the ground of religious belief or political opinion.
For Mr McGuinness, Mr Michael Lavery QC argued that the office of First Minister
and deputy First Minister existed independently of the holders of those
positions. The requirement that they act jointly confirmed the "corporate or
quasi-corporate" nature of the office. If either the First Minister or the
deputy First Minister refused to participate in any of their joint
responsibilities, he must be taken to have ceded his power to discharge those
functions to the other.
For the First Minister Mr Morgan QC drew attention to the various provisions of
the 1998 Act which required the First Minister and the deputy First Minister to
act jointly. He pointed out that the Act made no provision for the resolution
of disputes between the First Minister and the Deputy First Minister as to the
discharge of those functions. The omission of such a provision was deliberate,
he suggested. It must have been intended that, in the absence of a mechanism to
resolve such disputes, the joint powers and obligations arising under the Act
could not be exercised where there was no agreement. This approach reflected
the intention of Parliament that disputes about the exercise of powers and the
discharge of duties under the Act were to be resolved by political dialogue, Mr
Morgan argued. Furthermore the structure of the Act built in a series of checks
and balances that were designed to promote political agreement on contentious
issues such as these, he suggested. He submitted that, in cases of dispute, the
duty imposed by section 52 was to be fulfilled by recourse to these political
tools rather than by judicial intervention.
In any event, Mr Morgan claimed, the requirement under section 52 was that the
First Minister and the deputy First Minister should jointly make nominations to
the North-South Ministerial Council to ensure such cross community participation
in the Council as is required by the Belfast Agreement. The First Minister has
been and remains prepared to nominate a minister who would fulfil this
requirement, Mr Morgan said. The Act did not require that a particular minister
be nominated. Mr Trimble was not in default of his obligations under the Act,
therefore. On the same basis, Mr Morgan suggested, the first Minister was not
in breach of the Ministerial Code contained in Schedule 4. He also submitted
that the Ministerial Code agreed by the Executive required no more of Mr Trimble
than that he have regard to it in deciding which Minister to nominate. There
was no evidence, he said, that Mr Trimble had not taken this into account.
Finally, it was submitted for the First Minister that the claim of
discrimination on the ground of political opinion was misconceived. He had been
prepared to nominate Sinn Fein ministers in the past. His stated intention in
refusing to nominate them on this occasion was in order to persuade them to
honour their obligations under the Belfast Agreement. This did not discriminate
against them on the grounds of political opinion.
For the Deputy First Minister, Mr Smith QC submitted that the First Minister's
reason for refusing to nominate the applicants lay outside the scope of any
legitimate discretion conferred on him by section 52 (1). The extent of the
discretion available to the First Minister was that he take action in order to
fulfil the objectives of section 52. It was not open to the First Minister to
decide to use his powers under that provision to further a political aim which
was quite extraneous to that provided for in section 52.
Mr Smith also referred to section 52 (2) of the 1998 Act. This provides that it
is a ministerial responsibility of the nominated Minister to "participate in the
Council concerned in such meetings or activities as are specified in the
nomination". Section 52 (9) requires that "participate" be construed in
relation to the North-South Ministerial Council, in accordance with paragraphs 5
and 6 of Strand Two of the Belfast Agreement. Paragraph 3 (ii) of Strand Two
provides for participation in sectoral meetings by the appropriate Minister.
These provisions contemplate, Mr Smith suggested, that the Ministers with
responsibility for the areas to be considered by the Council should be
nominated.
The Belfast Agreement
Strand Two of the Belfast Agreement dealt with the North-South Ministerial
Council. Paragraph 2 of Strand Two provided that the First Minister, the deputy
First Minister "and any relevant Ministers" should represent Northern Ireland.
It did not otherwise specify how the Ministers should be chosen but it did
provide that if a holder of "a relevant post" refused to participate normally in
the Council, the First Minister and the deputy First Minister should be able to
make alternative arrangements.
Paragraph 3 (ii) of Strand Two dealt with sectoral meetings of the Council. It
provided that "the appropriate Minister" should represent each side. Paragraph
5 provided that the Council should exchange information on matters of mutual
interest, to attempt to reach agreement on the adoption of common policies and
take decisions on policies for implementation in both jurisdictions. Paragraph
6 required each side to be in a position to take decisions in the Council within
the defined authority of those attending while remaining accountable to their
elected bodies. In my view, these provisions clearly contemplated that those
Ministers who had responsibility for the matters to be discussed at the sectoral
meetings would normally be nominated.
Paragraph 13 of Strand Two provided: -
"It is understood that the North-South Ministerial Council and the Northern
Ireland Assembly are mutually interdependent and that one cannot successfully
function without the other."
It was contended for the applicants that this paragraph highlighted the
significance of the duty imposed on the First Minister by section 52. Mr
Treacy suggested that, by refusing to nominate the Ministers, Mr Trimble
undermined the very existence of the Assembly itself.
Section 7 of the Agreement dealt with Decommissioning of Weapons. Paragraph 3
of this section provided: -
"All participants … reaffirm their commitment to the total disarmament of all
paramilitary organisations. They also confirm their intention to continue to
work constructively and in good faith with the Independent Commission, and to
use any influence they may have, to achieve the decommissioning of all
paramilitary arms within two years following endorsements in referendums North
and South of the agreement and in the context of the implementation of the
overall settlement".
The referendums endorsed the Agreement. The participants are therefore
committed to using their influence to bring about the decommissioning of all
paramilitary weapons.
The legislative framework
Section 52 (1) (a) of the 1998 Act provides: -
"The First Minister and the deputy First Minister acting jointly shall make such
nomination of Ministers and junior Ministers (including where appropriate
alternative nominations) as they consider necessary to ensure-
(a) such cross-community participation in the North-South Ministerial
Council as is required by the Belfast Agreement"
Strand Two of the Belfast Agreement does not itself contain any explicit
requirement for cross community participation in the Council and one must
therefore look elsewhere to ascertain what is meant by the expression.
Strand One (which deals with Democratic Institutions in Northern Ireland)
provided in paragraph 5 that there would be safeguards to ensure that all
sections of the community could participate and work together in the operation
of institutions of government. Paragraph 6 required that there should be a
register of designation of members of the Assembly for the purposes of measuring
cross-community support in Assembly votes. The designation of identity was
to be nationalist, unionist or other. For the First Minister, Mr Morgan
argued that, in effect, the cross-community dimension intended by section 52 (1)
(a) was representation of the unionist and nationalist communities. No
contrary submission was made and, although the provisions of Strand One cited
above do not deal directly with the North-South Ministerial Council, I have
concluded that this is what was intended. I am reinforced in that view by
the provisions of paragraph 30 of Strand One. It provided: -
"Arrangements to represent the Assembly as a whole, at Summit level and in
dealings with other in institutions … will be such as to ensure cross-community
involvement"
It is to be noted that the nomination of Ministers under section 52 (1) must be
made by the First Minister and the deputy First Minister "acting jointly".
Mr Lavery suggested that where either the First Minister or the deputy First
Minister refused to nominate, the other could exercise the power. I do not
accept that argument. The terms of the provision are explicit; the First
Minister and the deputy First Minister must act jointly. Quite apart from this,
the entire ethos of the 1998 Act is that there should be agreement on a cross
community basis. This would be substantially compromised if either the First
Minister or the deputy First Minister could act alone and without the agreement
of the other. I am satisfied that both must agree on the appointment of a
Minister for that appointment to be effective.
Section 52 (2) provides: -
"It shall be a Ministerial responsibility of a Minister or junior Minister
nominated under subsection (1)(a) or (b) to participate in the Council concerned
in such meetings or activities as are specified in the nomination."
This provision reflects the recognition in the Belfast Agreement of the
importance of the Council as an integral part of the constitutional changes
brought about by the Agreement and the Council's position as a component of the
government of Northern Ireland, interdependent with the Assembly. As we
shall see below, the duty to participate has a particular connotation in
relation to the business of the Council.
Section 52 (4) provides: -
"A Minister may in writing authorise a Minister or junior Minister who has been
nominated under subsection (1) (a) or (b) to enter into agreements or
arrangements in respect of matters for which he is responsible."
In my opinion, paragraphs 5 and 6 of Strand Two of the Agreement contemplated
the participation in sectoral meetings of the Minister with responsibility for
the matters under discussion at those meetings and that the Minister should have
authority to reach agreement on those matters. It appears to me that this
subsection operates on the same assumption. In general the Minister with
responsibility for the matters to be discussed should attend the relevant
sectoral meeting. Where that is not feasible, he should provide the
necessary authorisation to his substitute.
Section 52 (6) requires a Minister who has participated in a meeting of the
Council to make a report to the Executive Committee and the Assembly as soon as
reasonably practicable after the meeting. This provision reinforces the view
that the Minister who will normally attend the meeting should be the Minister
with responsibility for the matters to be discussed.
Section 52 (9) (a) provides: -
"In this section "participate" shall be construed-
(a) in relation to the North-South Ministerial Council, in accordance
with paragraphs 5 and 6 of Strand Two of the Belfast Agreement"
As already observed, paragraph 5 provided that the Council should exchange
information, attempt to reach agreement on the adoption of common policies and
take decisions on policies while paragraph 6 required each side to be in a
position to take decisions in the Council. Again, therefore, this
subsection is indicative of the intention of the legislature that those with
Ministerial responsibility for the matters to be discussed should normally
attend sectoral meetings.
The Ministerial Codes
The statutory Code
The Code contained in Schedule 4 to the Act is in the following terms: -
"CODE OF CONDUCT
Ministers must at all times:
observe the highest standards of propriety and regularity involving
impartiality, integrity and objectivity in relationship to the stewardship of
public funds;
be accountable to users of services, the community and, through the Assembly,
for the activities within their responsibilities, their stewardship of public
funds and the extent to which key performance targets and objectives have been
met;
ensure all reasonable requests for information from the Assembly, users of
services and individual citizens are complied with; and that Departments and
their staff conduct their dealings with the public in an open and responsible
way;
follow the seven principles of public life as set out by the Committee on
Standards in Public Life;
comply with this code and with the rules relating to the use of public funds;
operate in a way conducive to promoting good community relations and equality of
treatment;
not use information gained in the course of their service for personal gain, nor
seek to use the opportunity of public service to promote their private
interests;
ensure they comply with any rules on the acceptance of gifts and hospitality
that might be offered;
declare any personal or business interests which may conflict with their
responsibilities. The Assembly will retain a Register of Interests.
Individuals must ensure that any direct or indirect pecuniary interests which
members of the public might reasonably think could influence their judgment are
listed in the Register of Interests."
In my opinion, none of the undertakings contained in the Code of Conduct is
engaged in the present case. Mr Treacy argued that the decision did not
"operate in a way conducive to promoting good community relations and equality
of treatment" but this is a matter of political judgment which, I am satisfied,
lies well outside the area of justiciability.
The Code agreed by the Executive
After the Executive was formed the Assembly approved a Ministerial Code.
Paragraph 5.1 provides: -
"In accordance with section 52 (1) of the Northern Ireland Act 1998 (the Act),
the First Minister and the deputy First Minister acting jointly must make such
nominations of Ministers and junior Ministers (including alternative nominations
where appropriate) as they consider necessary to ensure such cross-community
participation in the North-South Ministerial Council and the British-Irish
Council as is required by the Belfast Agreement. For each meeting, the First
Minister and the deputy first Minister will normally nominate each Minister or
junior Minister with executive responsibility in the areas to be considered at
the meeting. If such a Minister is not nominated, an alternative nomination
will be made. The First Minister and the deputy First Minister will also
nominate such other Ministers or junior Ministers as they consider necessary to
ensure such cross-community participation as is required by the Belfast
Agreement."
The applicants argued that this part of the Code imposed an obligation on the
First Minister to nominate them for the particular sectoral meetings that
involved discussion of matters for which they had executive responsibility.
Alternatively, it was suggested that the applicants had a substantive legitimate
expectation that they would be appointed.
I do not accept either proposition. As to the first, the words of the paragraph
are plain. The Minister with executive responsibility is normally to be
nominated. It is clear that there may be a departure from the norm. There is
nothing in the paragraph which compels the First Minister and the deputy First
Minister to appoint the Minister with executive responsibility for the areas to
be considered on every occasion. On the contrary it is clearly recognised that
exceptions to this normal position may occur. Both the First Minister and the
deputy First Minister disputed the claim that the applicants enjoyed a
substantive legitimate expectation that they would be appointed. Both argued
that the terms of paragraph 5.1 did no more than require the First Minister to
take it into account before deciding whether to make the appointment. I accept
this submission. In R v North and East Devon Health Authority ex parte
Coughlan [1999] QB Lord Woolf MR, discussing the various types of legitimate
expectation that might arise from a previously given promise or established
practice, said: -
"There are at least three possible outcomes: (a) The court may decide that the
public authority is only required to bear in mind its previous policy or other
representation giving it the weight it thinks right, but no more before deciding
to change course. Here the court is confined to reviewing the decision on
Wednesbury grounds. This has been held to be the effect of changes of
policy in cases involving the early release of prisoners (see In re Findlay
[1985] AC 318; R v Secretary of State for the Home Department ex parte
Hargreaves
[1997] 1 WLR 906. (b) On the other hand
the court may decide that the promise or practice induces a legitimate
expectation of, for example, being consulted before a particular decision is
taken. Here it is uncontentious that the court will require the opportunity
for consultation to be given unless there is an overriding reason to resile
from it (see Attorney General of Hong Kong v Ng Yuen Shiu
[1983] 2 AC 629) in which case the court
will judge the adequacy of the reason advanced for the change of policy, taking
into account what fairness requires. (c) Where the court considers that a
lawful promise or practice has induced a legitimate expectation of a benefit
which is substantive, not simply procedural, authority now establishes that
here too the court will in a proper case decide whether to frustrate the
expectation is so unfair that to take a new and different course will amount to
an abuse of power."
In order to decide into which, if any, of these categories a particular case
falls, the circumstances in which the promise was made or the practice came into
existence must be carefully examined. If the undertaking was given that a
certain course would normally be followed, clearly it could not be
asserted that such a course must be taken in order that those who
expected that it would be should not be disappointed. The most that could
be demanded of the decision-maker in those circumstances is that he should have
regard to what was stated to be the normal course and to have some reason for
departing from it. There is nothing in the present case to indicate that
the First Minister did not have regard to the undertaking contained in the Code
and he has explained why he decided not to nominate the applicants. I am
satisfied that no substantive legitimate expectation arises here, therefore.
The duty under section 52 (1)
Drawing attention to what
they have described as the mandatory nature of the obligation arising under
section 52 (1) of the 1998 Act, the applicants have argued that the First
Minister was under a duty to nominate them to attend the sectoral meetings of
the North-South Council. They suggested that they were the only Ministers
who were equipped to deal with the matters to be discussed at the relevant
sectoral meetings. I accept the argument of Mr Morgan, however, that
section 52 (1) does not impose on either the First Minister or the deputy First
Minister the duty to nominate a particular individual.
The duty which arises under
the sub-section has two aspects. The First Minister and the deputy First
Minister must act jointly. This clearly implies that they should
conscientiously seek to agree on nominations for the Council. Secondly,
they must make nominations so as to ensure cross-community participation in the
Council as required by the Belfast Agreement. Although Strand Two of the
Agreement clearly contemplated - and other subsections of section 52 indicated
the intention of the legislature - that the Ministers with executive
responsibility for the matters to be discussed at sectoral meetings should
normally be nominated to attend those meetings, nothing in section 52 (1)
requires of the First Minister and the deputy First Minister that they appoint
such Ministers on every occasion. Provided the Ministers they nominate
satisfy the requirement of cross-community representation and provided they have
sought conscientiously to agree on the nomination, the First Minister and the
deputy First Minister enjoy a discretion as to whom they should nominate.
That discretion should be exercised in a manner that is consonant with the
purpose of section 52, however. I shall consider this further below.
The discretion
The effect of the applicants'
argument was that, where the Minister with executive responsibility for the area
to be discussed at a sectoral meeting satisfied the requirement of cross
community representation, the First Minister and the deputy First Minister had
no real discretion as to whom to nominate. In those circumstances, the
applicants claimed, the nominee must be the Minister who can contribute most
effectively to the business to be discussed at the meeting.
The First Minister's claim was that he enjoyed a wide discretion as to whom to
nominate. While he was obliged to observe the requirement that the nominees be
representative of the community as a whole, he was otherwise unfettered as to
who should be chosen. In particular, he could decide not to nominate a person
whom he considered to be the most suitable for the position in order to induce
that person or the party to which he belonged to take a different political path
from that which it had embarked upon. It was suggested that the scope of the
discretion available under section 52 must be considered in light of the overall
purpose of the legislation. In this context Mr Morgan referred to the Preamble
to the Act which is in the following terms: -
"An Act to make new provision for the government of Northern Ireland for the
purpose of implementing the agreement reached at multi-party talks on Northern
Ireland set out in Command Paper 3883."
Mr Morgan suggested that, taking into account the overall purpose of the Act as
disclosed by the Preamble, section 52 invested the First Minister with
discretion to discharge the duty to nominate in a way that would promote the
full implementation of all aspects of the Agreement, including the
decommissioning of weapons. It could not be the case, he claimed, that the
First Minister would be obliged to nominate someone who he knew to be actively
working against the implementation of the Agreement, just because that person
was the Minister with executive responsibility for the matters to be discussed
at a North-South Council meeting.
In my opinion, the discretion available to the nominating Ministers falls
somewhere between the two positions postulated by the applicants on the one hand
and the First Minister on the other. The nature of a discretion that arises
under statute must be determined primarily by the statutory provision itself.
The principal purpose of the nominating duty under section 52 (1) is to achieve
cross-community representation. But it is clear that even where a purpose is
clearly specified, the person who is charged with the task of achieving the
statutory purpose may undertake tasks which are "reasonably incidental" to the
fulfilment of that purpose – see De Smith Woolf and Jowell, Judicial Review
of Administrative Action, Fifth Edition paragraph 6-066.
I accept that the First Minister could not be required to nominate someone whom
he regarded as unsuitable in the sense that that person was working against the
implementation of the Agreement. Indeed, it appears to me that it would be open
to the First Minister to conclude that a potential nominee was unsuitable for
nomination because he had not made appropriate efforts to implement the
Agreement.
I do not consider, however, that it would be open to the First Minister to
refuse to nominate a Minister who was in every way suitable to attend the
sectoral meeting simply because he wished to induce that Minister - or the
political party to which he belonged - to act in a particular way. The First
Minister's primary duty under the section is to nominate Ministers who will
fulfil the necessary requirement of cross-community participation. In my
opinion, he must also have regard to the need to nominate a Minister who will be
able to participate in a meaningful way in the business of the Council. It is
not open to the first Minister, in my opinion, to disregard the clear intention
of Parliament that the Ministers nominated to attend sectoral meetings should be
in a position to contribute to the work of the Council. Provided he has regard
to this, however, and seeks to observe the obligation to nominate Ministers on a
cross-community basis, he enjoys a discretion as to whom to nominate.
That discretion would allow the First Minister to decide not to nominate a
particular Minister if he considered that that Minister was seeking to undermine
the Agreement. Such a decision, taken in a political context should be immune
from judicial review. The subjective nature of the decision and the political
considerations which inform it place it firmly in the category of soft-edged
review where it is inappropriate for the courts to intervene – see Re
Williamson's Application [2000] NI 294. In those circumstances, however,
the First Minister would be exercising his discretion in assessing the
suitability of the prospective nominee to contribute to the work of the
North-South Ministerial Council. Given the interdependence of the Council and
the Assembly within the terms of the Belfast Agreement, the conclusion that a
Minister who was undermining the Agreement was not suitable to represent the
Assembly on the Council would be beyond challenge, not only because of its
rationality but also because it would have been taken to fulfil the objectives
of section 52. By contrast, a decision not to nominate in order to bring
pressure on a political opponent does not involve any assessment of his
suitability for the nomination nor does it seek to fulfil the purpose of section
52.
Collateral purpose
Two purposes for the action
taken by the First Minister were identified by the applicants. Both
purposes were said to be collateral or extraneous to the permitted purposes of
section 52 (1). The deputy First Minister agreed that the second of these
had operated to influence the First Minister's decision. The first was suggested
by the applicants alone, that purpose was, the applicants claimed, to give
effect to the resolution of the Ulster Unionist Council of 28 October 2000.
The applicants submitted that this was not a permitted purpose.
It is clear, however, from
the newspaper reports produced in evidence by the applicants that Mr Trimble, in
refusing to nominate Sinn Fein Ministers, was not giving effect to a resolution
of the Ulster Unionist Council. On the contrary, that Council had endorsed
proposals made to it by Mr Trimble. On 26 October he had written to
members of the Council informing them that he would outline a "response" to the
Council designed "to increase pressure progressively on republicans and
nationalists". That response took the form of a refusal to nominate Sinn
Fein members. Mr Trimble was not giving effect to the Ulster Unionist
Council's resolution, therefore. Rather, he was carrying forward his own
policy which had, incidentally, been approved by the Ulster Unionist Council.
I do not consider, therefore, that the First Minister can be said to have acted
as he did in order to give effect to a resolution of the Ulster Unionist
Council.
The applicants and the deputy First Minister claimed that Mr Trimble had refused
to nominate the Sinn Fein Ministers because the IRA had failed to decommission
their weapons. They claimed, therefore, that the refusal to nominate was
motivated by a political purpose that fell outside the scope of section 52 (1).
As I have already observed, the First Minister, in affidavits filed on his
behalf, has disclosed that he has determined "for the time being" not to
nominate members of Sinn Fein for the sectoral meetings because he was "of the
view that such an approach will be likely to persuade Sinn Fein to use any
influence it may have to secure decommissioning of paramilitary arms in
accordance with the Belfast Agreement".
The First Minister has not
claimed that the applicants are unsuited to be appointed to attend the sectoral
meetings. He has not disputed that their appointment (together with other
Ministers) would achieve the cross-community participation in the North-South
Ministerial Council required by section 52 (1). The sole reason advanced
by him for refusing to nominate the applicants is that he believed that this
would persuade Sinn Fein to exert influence to secure the decommissioning of
paramilitary arms. The issue which arises therefore is whether the First
Minister may use his powers under section 52 (1) to seek to achieve this aim.
Self evidently, a decision
not to nominate in order to bring pressure on a political opponent does not
purport to achieve the objective of section 52. Mr Morgan did not claim
that it did. He accepted that the purpose of the refusal to nominate was
to exert pressure on Sinn Fein. Since this was to induce them to influence
the IRA to decommission their weapons, it was warranted, he argued. This
was because the Act was passed in order to give effect to the Agreement and
decommissioning was an element of the Agreement.
This line of argument implicitly acknowledges that the reason for the refusal to
nominate had nothing to do with the purpose of section 52. The reasons for the
refusal to nominate are wholly extraneous to that section.
I do not accept that a decision taken under section 52 in order to promote an
objective of the Agreement that is wholly unrelated to the purpose of that
section can be upheld. It is true that a discretion exercised by a Minister as
a consequence of a power conferred or a duty imposed by statute must be used "to
promote the policy and objects of the Act" – Lord Reid in Padfield v Minister
of Agriculture
[1968] AC 997, 1030B. In the present
case, however, the implementation of the Agreement has a number of aspects and
no single theme emerges either from the Agreement or the Act itself. Indeed, in
order to promote the objective espoused by Mr Trimble, (decommissioning of
weapons) he has adopted a strategy that will at least inhibit – if not frustrate
– another objective (effective North-South Council meetings). I have concluded,
therefore, that the decision of the First Minister to refuse to nominate Ms de
Brun and Mr McGuinness is for a purpose that is collateral to the purpose of
section 52 and that it cannot be rescued by recourse to a separate objective of
the Agreement that Mr Trimble hopes to secure. It is well settled that a
decision taken for a collateral purpose will be amenable to judicial review –
see, for instance, In Re Cook's Application [1986] NI 242. The refusal
of the First Minister to nominate Ms de Brun and Mr McGuinness must therefore be
declared unlawful.
Section 24 (1) (c)
The applicants' claim that the refusal of the First Minister to nominate them
amounts to discrimination under section 24 (1) (c) of the Act can be dealt with
shortly. I had occasion to deal with the question of discrimination on the
ground of political opinion in Re Treacy and Macdonald's Application
[2000] NI 330, where I said: -
"In the field of discrimination, a different approach must be taken to the
question of political opinion from that which is appropriate to deal with the
immutable conditions of life such as race or gender. If it were otherwise, an
unscrupulous person, claiming to be the victim of discrimination on the ground
of political opinion, could adjust his professed belief in order to accuse the
decision maker of inequality of treatment. In James v Eastleigh it was
held that the test to be applied in gender based discrimination was whether the
complainant would have been treated differently but for his sex. Significantly,
however, the authors of Harvey on Industrial Relations, in commenting on the
James case, point out that it is wrong to assume that where the 'but for'
test is satisfied, unlawful discrimination has been established (L/10 [41.02]).
The applicant must show that the action was taken on the ground of sex. Thus,
Mr James had to show that he obtained less favourable treatment because of his
sex. He was able to do so readily because his pensionable age was greater than
that of his wife - 65 as opposed to 60. The Borough Council knew that if they
fixed the age for free admission at 'pensionable age' men were bound to be
disadvantaged since they reached that stage later than women. The position is
not so simple when one is dealing with political belief.
Any decision with political implications is virtually certain to be opposed by
some members of the community and welcomed by others. Simply because such a
decision is opposed does not mean that it discriminates against those
individuals who are against it. It is impossible to cater for every brand of
political opinion by anything other than the most bland political decisions."
The fact that the First
Minister took a decision that deprived the applicants of the opportunity to
attend sectoral meetings does not, of itself, establish that he discriminated
against them. As has been pointed out on behalf of the First Minister, he
has been prepared to nominate Sinn Fein Ministers in the past. He has said
– and there is no reason to doubt this – that his motivation in refusing to
nominate the applicants is based on his hope that this will have the effect of
persuading Sinn Fein to exert pressure on IRA to decommission its weapons.
That stance does not betoken less favourable treatment of Sinn Fein on account
of their political views; it represents an attempt to persuade them to follow a
particular course.
Conclusions
I have concluded that the
First Minister may not use his powers under section 52 of the 1998 Act to exert
pressure on Sinn Fein in the manner that he has sought to do, since that is
extraneous to the purpose of the section. I will therefore make a
declaration that his refusal to nominate the applicants on the grounds stated by
him is unlawful. In consequence, the First Minister will be required to
perform his obligation under section 52. As I have already said, he must
conscientiously seek to agree with the deputy First Minister nominations for the
sectoral meetings which will meet the cross-community requirements of the
section. It does not follow that he must nominate the applicants. He
may exercise his discretion in the manner that I have set out above. He
must have regard to the intention of the legislature and the provisions of the
Agreement to the effect that, normally, the Minister with executive
responsibility for the matters to be discussed at the meeting of the North-South
Ministerial Council should be nominated but he is not bound to conclude that the
applicants are the only possible nominees. In deciding upon the Ministers
to be nominated, he must be guided by the requirements of the section and must
focus upon the suitability of the candidate(s) rather than on any political
objective (other than the fulfilment of the purpose of section 52) that he may
wish to achieve. Subject to these constraints, he is at liberty to
nominate Ministers who meet the requirements of section 52 and who are suitable
to carry out the functions that are required of them in the Council.
IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND
_________
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION (CROWN SIDE)
________ IN THE MATTER OF AN APPLICATION BY BAIRBRE DE BRUN AND MARTIN
McGUINNESS FOR JUDICIAL REVIEW
________
J U D G M E N T
O F
KERR J
_______
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