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Sinn Fein, Re Application for Judicial Review [2003] NIQB 27 (11 April 2003)
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION (CROWN SIDE)
__________ IN THE MATTER OF AN APPLICATION BY SINN FEIN
FOR JUDICIAL REVIEW
and
IN THE MATTER OF SECTION 12 OF THE POLITICAL PARTIES,
ELECTIONS AND REFERENDUMS ACT 2000
__________
COGHLIN J
- The applicant in these proceedings is Ms Michelle
Gildernew MP who is the Sinn Fein Member of Parliament for the constituency of
Fermanagh/South Tyrone, having been elected by the voters of that constituency
at the General Election of 2001. Ms Gildernew has been a member of the Sinn Fein
political party for 16 years and is currently one of 4 members of that party to
have been elected as Members of Parliament at Westminster. The relief claimed by
Ms Gildernew has been set out in the Order 53 statement and is as follows:
"(i) A Declaration under section 4 of the Human Rights Act 1998, that section 12
of the Political Parties, Elections and Referendums Act 2000 is incompatible
with Article 10(1) of the European Convention of Human Rights read in
conjunction with Article 14.
(ii) A Declaration under section 4 of the Human Rights Act 1998, that section 12
of the Political Parties, Elections and Referendums Act 2000 is incompatible
with Article 3 of protocol 1 to the European Convention of Human Rights read in
conjunction with Article 14."
Mr Seamus Treacy QC and Ms Karen Quinlivan, appeared on behalf of the applicant
while Mr Declan Morgan QC and Mr Paul Maguire were instructed on behalf of the
respondent, the Lord Chancellor's Department. I am grateful to both sets of
counsel for their well prepared skeleton arguments as well as for their oral
submissions which were both carefully reasoned and succinct.
The relevant statutory provisions
- The Political Parties, Elections and Referendums Act
2000 ("the Act of 2000") came into force on 30th November 2000 and
section 12 includes the following provision:
"12-(1) For the purposes of this section –
(a) 'A policy development grant' is a grant to a represented registered
party to assist the party with the development of policies for inclusion in any
manifesto on the basis of which –
(1) candidates authorised to stand by the party will seek to be elected
to an election which is a relevant election for the purposes of Part 2, or
(2) the party itself will seek to be so elected (in the case of such an
election for which the party itself maybe nominated); and
(b) a registered party is 'represented' if there are at least two Members
of the House of Commons belonging to the party who –
(1) have made and subscribed the Oath required by the Parliamentary Oaths
Act 1866 (or the corresponding affirmation), and
(2) are not disqualified from sitting or voting in that House."
The remainder of section 12 provides for recommendations to be made to the
Secretary of State by the Electoral Commission for the terms of a scheme for the
making of policy development grants, which would include specifying the parties
eligible for such grants and the basis upon which any such grants are to be
allocated between the eligible parties.
- On 7th February 2002, the Secretary of
State for Local Government, Transport and Regions laid before Parliament the
Elections (Policy Development Grants Scheme) Order 2002, to come into force on 5th
March 2002. On 13th February 2002, the Electoral Commission published
draft recommendations for the basis upon which the grants should be allocated
between a number of political parties. The parties identified in this document
were Labour, Conservative, Liberal Democrats, Scottish National, Plaid Cymru,
Ulster Unionist, SDLP and Democratic Unionist Parties. The Electoral Commission
also published draft conditions relating to the basis upon which policy
development grants might be obtained and included the following under the
heading "Eligible Expenditure";
Eligible Expenditure
Parties must use the grants solely for necessary expenditure incurred by them in
meeting the costs incurred through developing policies for inclusion in any
manifesto on the basis of which candidates for the represented registered party
or the party itself seek election at the following elections:
- Elections to the Westminster, Scottish or European Parliament;
- Elections to the Welsh or Northern Ireland Assemblies;
- Local Government elections in England, Wales and Scotland;
- Local elections in Northern Ireland."
- In accordance with the powers conferred upon him by
section 12 of the Act of 2000, the Secretary of State made the Elections (Policy
Development Grants Scheme) Order 2002 ("the Order of 2002") which came into
force on 5th March 2002. Schedule 2 to this Order identified the
parties who were eligible to benefit from the grants and these corresponded with
the parties identified by the Electoral Commission in their publication of 13th
February 2002. The Order also set out detailed formulae devised for the purpose
of allocating the available funds between the eligible parties. As a result of
the application of these formulae, it appears that, in Northern Ireland, the
Social Democratic and Labour Party ("the SDLP"), the Ulster Unionist Party ("the
UUP") and the Democratic Unionist Party ("the DUP") were each granted £133,921.
- The Oath as set out in section 1 of the Parliamentary
Oaths Act 1866 ("the 1866 Act"), amended by sections 2, 8 and 10 of the
Promissory Oaths Act 1868 is as follows:
"I [name] do swear that I will be faithful and bear true allegiance to Her
Majesty Queen Elizabeth II, her heirs and successors, according to law. So help
me God."
It is this Oath that is referred to at section 12(1)(b)(i) of the Act of
2000.
- Section 4 of the Human Rights Act 1998 ("HRA")
provides as follows:
"4. Declaration of Incompatibility
(1) Subsection (2) applies in any proceedings in which a court determines
whether a provision of primary legislation is compatible with a Convention
Right.
(2) If the court is satisfied that the provision is incompatible with a
Convention Right, it may make a declaration of that incompatibility."
- The following Articles of the European Convention on
Human Rights and Fundamental Freedoms ("the Convention") are relied upon by the
applicant:
Article 10, Freedom of Expression
1. Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. This Article shall
not prevent the State from acquiring the licensing of broadcasting, television
or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions
or penalties as are proscribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity or public safety,
for the prevention of disorder or crime, for the protection of health or morals,
for the protection of the reputation or rights of others, for preventing the
disclosure of information received in confidence, or for maintaining the
authority and impartiality of the judiciary.
Article 14, Prohibition of Discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be
secured without discrimination on any grounds such as sex, race, colour,
language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status.
Protocol 1, Article 3, Right to Free Elections
The High Contracting Parties undertake to hold free elections at reasonable
intervals by secret ballot, under conditions which will ensure the free
expression of the opinion of the people in the choice of the legislature.
The background to the passage of section 12 of the Act of 2000
- This has been dealt with in some detail in the
affidavit sworn on 3rd October 2002 by Ms Stella Pauline Mary
Prosser, Head of Electoral Modernisation, Referendums and Political Parties
Branch of the Lord Chancellor's Department. It seems that the initial proposal
for the provision of Policy Development Grants ("PDG") arose from the concerns
of the Neill Committee on Standards in Public Life which were expressed in the
Committee's 5th Report entitled "Public Funding of Political
Parties". Under the heading "Policy Development", the Committee stated, at
paragraph 7.25:
"All that said, there is, however, a problem. It is evident that the political
parties, hard pressed to meet the mounting costs of election campaigns and also
the mounting cost of their day-to-day activities, are driven to concentrate
their resources on campaigning and routine administration at the expense of
long-term policy development. Perhaps surprisingly, this applies almost as much
to the governing party as to the opposition. Ministers become pre-occupied with
current crises and the sheer volume of Government business. They, and the party
to which they belong, find it hard to 'think long'. The opposition parties, for
their part, are also in continuous danger of being deflected from one of their
principle tasks, which is to prepare for government and policy terms. The
political parties themselves should be one of the major sources of ideas in
British politics. They are not always so at present."
- In order to remedy this situation the Neill Committee
proposed that a modest policy development fund should be established to enable
the parties represented in the House of Commons to fulfil better their most
vital functions.
- The Government's response to the Neill Committee
proposal was contained in a White Paper published on 29th July 1999
entitled, "The Funding of Political Parties in the United Kingdom". The White
Paper supported the Neill Committee proposal for the establishment of a Policy
Development Fund and drew attention to clause 10 of the accompanying draft Bill
which made provision for Policy Development Grants indicating that such grants
would be paid to those political parties with at least two sitting Members of
the House of Commons and that the grants would be administered by the Electoral
Commission. In the course of her affidavit, Ms Prosser explained that the
condition restricting the payment of PDGs to those parties with two sitting
Members in the House of Commons, was adopted by the Government in order to
comply with the recommendation of the Neill Committee that such funding should
be available for parties which would otherwise be prevented from developing
long-term policies because of their commitment to the "day-to-day hurly-burly of
the political agenda at Westminster". Ms Prosser exhibited an extract from the
issue of Hansard for 14th February 2000, recording the debate which
took place in relation to the proposed condition for the payment of PDGs.
Sinn Fein
- Sinn Fein is an Irish Republican party which is
committed to the principle that Irish people have the right to
self-determination and the party does not recognise the Sovereignty of the
British monarch over any part of Ireland. The primary political objective of
Sinn Fein is to bring British rule in Ireland to an end by achieving the unity
and independence of Ireland as a Sovereign State. Ms Gildernew has explained in
her affidavit that, as a consequence of this political objective, it has always
been Sinn Fein party policy that members elected to the Parliament at
Westminster would refuse to swear any oath or make any affirmation of allegiance
to the British Monarch. Representatives of Sinn Fein who have been elected to
serve as Members of Parliament at Westminster, have consistently refused to take
any such oath or make any such affirmation. At paragraph 7 of her affidavit, Ms
Gildernew stated:
"Moreover, the Government was aware that in those circumstances Sinn Fein would
be the only party, who, although eligible as a result of the number of their
MPs, would be disqualified from any policy grant funding if taking an oath to
the Queen was an additional requirement. The Government was also aware that Sinn
Fein would be uniquely disadvantaged in those circumstances. In those
circumstances I believe that this requirement to take an oath to the Queen was
specifically designed to exclude Sinn Fein from eligibility for a Policy
Development Grant, and as such is discriminatory and unlawful."
- Currently, four representatives of Sinn Fein have
been elected to serve as Member of Parliament at Westminster, although none of
these individuals have taken their seats. At the last election, Sinn Fein
secured 21.7% of the overall vote in Northern Ireland and, apart from the four
Westminster MPs, there were 18 Sinn Fein members of the Legislative Assembly for
Northern Ireland and 108 local councillors. The party is also represented at the
Irish Parliament by five TDs.
The submissions
- On behalf of the applicant, Mr Treacy QC advanced
three submissions which I propose to deal with in turn.
Breach of Article 10
- Article 10 of the European Convention on Human
Rights ("the Convention"), as far as it is relevant has been set out earlier in
this judgment.
- Mr Treacy QC referred the court to Bowman v
United Kingdom [1998] 26 EHRR 1 in which the Strasbourg Court, in the course
of the judgment, stated at paragraph 3(d):
"Free elections and freedom of expression, particularly freedom of political
debate, together form the bedrock of any democratic system. The two rights are
inter-related and operate to reinforce each other: for example, as the Court has
observed in the past, freedom of expression is one of the 'conditions' necessary
to 'ensure that free expression of the opinion of the people in the choice of
the legislature'. For this reason it is particularly important in the period
preceding an election, that opinion and information of all kinds are permitted
to circulate freely."
- Mr Treacy QC also referred the court to the decision
in United Parties v Minister of Justice, Legal and Parliamentary Affairs &
Others [1997] 3BHRC 16 and Association X, Y and Z v Federal Republic of
Germany (Application No. 6850/74).
- There can be no doubt about the importance of the
right enshrined in Article 10 for a democratic society, and in Castells v
Spain [1992] 14 EHRR 445 the Strasbourg Court observed, at paragraph 42:
"The Court recalls that the freedom of expression, enshrined in paragraph 1 of
Article 10, constitutes one of the essential foundations of a democratic society
and one of the basic conditions for its progress. Subject to paragraph 2 of
Article 10, it is applicable not only to 'information' or 'ideas' that are
favourably received or regarded as inoffensive or as a matter of indifference,
but also to those that offend, shock or disturb. Such are the demands of that
pluralism, tolerance and broadmindedness without which there is no 'democratic
society'."
- However, in Bowman the court found that
section 72 of the 1983 Act operated, for all practical purposes, as a "total
barrier" to the ability of the applicant to publish information with a view to
influencing the voters of Halifax in favour of an ant-abortion candidate. It was
not satisfied that, in practice, she had access to any other effective channels
of communication. In the United Parties case, the Supreme Court in
Zimbabwe found that the threshold for funding set by the government, rendered it
"virtually impossible" for other political parties to gain any real margin of
success. By contrast, the applicant in this case has not produced or drawn
attention to any respect in which members of Sinn Fein have been restricted in
their ability to hold or express opinions or to receive or impart information or
ideas. There is no suggestion that Sinn Fein is so lacking in financial
resources that the failure to provide the party with finance by way of PDG has
prevented such activity. Mr Treacy QC submitted that the court should infer such
interference or restriction simply as a result of the failure of Sinn Fein to
receive a payment by way of PDG, but it seems to me that it is a matter for the
applicant to establish that there has been a breach of its Article 10 rights.
Accordingly, I hold that no breach of Article 10 has been established.
Breach of Article 3 of Protocol 1
- Article 3 of Protocol 1 to the Convention provides
that:
"The High Contracting Parties undertake to hold free elections at reasonable
intervals by secret ballot, under conditions which will ensure the free
expression of the opinion of the people in the choice of the legislature."
In Mathieu - Mohin and Clerfayt v Belgium [1987] 10 EHRR 1 the European
Court of Human Rights confirmed that, despite the use of the phrase "the High
Contracting Parties", Article 3 of Protocol 1 did give rise to individual rights
but that these rights are not absolute and there was room for implied
limitations. The court recognised that the Contracting States have a wide margin
of appreciation, given that their legislation on these matters varies from place
to place and from time to time and stated, at paragraph 54:
"Electoral systems seek to fulfil objectives which are sometimes scarcely
compatible with each other; on the one hand to reflect fairly faithfully the
opinions of the people, and on the other, to channel currents of thought so as
to promote the emergence of a sufficiently clear and coherent political will. In
these circumstances, the phrase 'conditions which will ensure the free
expression of the opinion of the people in the choice of the legislature',
implies essentially – apart from freedom of expression (already protected under
Article 10 of the Convention) – the principle of equality of treatment of all
citizens in the exercise of their right to vote and their right to stand for
election."
- The need to ensure equality of opportunity in
relation to state subsidy of political parties, has been expressly recognised by
the Parliamentary Assembly of the Council of Europe. In recommendation R.1516
(2001) Financing of Political Parties, the Assembly stated that:
"Political parties should receive financial contributions from the State budget
in order to prevent dependence on private donors and to guarantee equality of
chances between political parties. State financial contributions should, on the
one hand, be calculated in ratio to the political support which the parties
enjoy, evaluated on objective criteria, such as the number of votes cast or the
number of Parliamentary seats won, and on the other hand enable new parties to
enter the political arena and to compete under fair conditions with the more
well-established parties."
- Again, no evidence was placed before the court that
the inability of Sinn Fein to obtain a PDG had inhibited the party in developing
policies for inclusion in its electoral manifesto, or has significantly
interfered with its ability to do so.
- On the other hand, Mr Morgan QC, on behalf of the
respondent, accepted that the impugned legislation engaged the applicant's
rights under Article 3 of Protocol 1 in conjunction with Article 14. In my view
he was right to do so.
Article 14
- Article 14 of the Convention imposes a prohibition
against discrimination and provides that:
"The enjoyment of the rights and freedoms set forth in this Convention shall be
secured without discrimination on any ground such as sex, race, colour,
language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status."
As the learned authors of "Human Rights Law and Practice" (Lester and Pannick
Butterworths 1999) point out, at page 226, para 4.14.4:
"The application of the Article does not, however, pre-suppose a breach of any
of the substantive provisions of the Convention: such an interpretation would
leave no practical function for Article 14. A measure which in itself conforms
with the substantive Article of the Convention may violate Article 14 because it
is discriminatory in nature."
Thus, even if no breach of either Article 10 or Article 3 of Protocol 1 has been
established by the applicant, in consequence of the agreement between the
parties that the facts of the case fall within the "ambit" of Article 3 of
Protocol 1, it is necessary to consider the application of Article 14 in
conjunction with Article 3 of Protocol 1. Article 5 of Protocol 1 specifically
provides that:
"As between the High Contracting Parties, the provisions of Article 1, 2, 3 and
4 of this Protocol shall be regarded as additional Articles to the Convention
and all the provisions of the Convention shall apply accordingly."
- In Larkos v Cyprus [1999] 30 EHRR 597 the
Strasbourg Court explained the rights protected by Article 14 in the following
terms at paragraph 29:
"29. As to the scope of the guarantee provided under Article 14, the court
recalls that according to its established case law, a difference in treatment is
discriminatory if 'it has no objective and reasonable justification', that is if
it does not pursue a 'legitimate aim' or if there is not a 'reasonable
relationship or proportionality between the means employed and aims sought to be
realised'. Moreover, the contracting states enjoy a certain margin of
appreciation in assessing whether and to what extent differences in otherwise
similar situations justify a difference treatment (see eg Gaygusuz v Austria
[1996] 23 EHRr 364 at 381 (para 42))".
Provided a difference of treatment upon one of the prohibited grounds is
established, it is not necessary for the applicant to prove that any particular
injury has resulted from that difference in treatment, if the different
treatment cannot subsequently be found to be justified and while the burden is
on the applicant to establish a relevant difference in treatment, if that is
achieved, the burden then shifts to the public authority to justify the
difference (Darby v Sweden [1990] 13 EHRR 774).
- In the recently reported decision of Wandsworth
LBC v Michalak
[2002] 4 All ER 1136 Brooke LJ in the
course of giving judgment in the Court of Appeal stated, at page 1144, that it
would usually be convenient for a court considering an Article 14 issue to
approach its task in a structured way by asking itself four questions:
(1) Do the facts fall within the ambit of one or more of the substantive
Convention provisions?
(2) If so, was there different treatment as respects that right between
the complainant on the one hand and other persons put forward for comparison
(`the chosen comparators') on the other?
(3) Were the chosen comparators in an analogous situation to the
complainant's situation?
(4) If so, did the difference in treatment have an objective and
reasonable justification: in other words, did it pursue a legitimate aim and did
the differential treatment bear a reasonable relationship of proportionality to
the aim sought to be achieved? The learned Lord Justice suggested that, should
the answer to any of the four questions be No, the claim would be likely to fail
and it would, in general, be unnecessary to proceed to the next question. This
approach has been subsequently cited with approval by Lord Woolf CJ in A, X
and Y and others v Secretary of State for Home Department [2002] UK HRR 1141
at 1163.
Conclusions
- Both the Neill Report and the subsequent White Paper
explained in detail the aim sought to be achieved by PDGs which was the
provision of limited financial assistance in connection with the development of
long-term policies for those parties whose resources were expended upon the
day-to-day demands of political life at Westminster – the "day-to-day,
hurly-burly of the political agenda" referred to in the course of the Hansard
Debate. In my opinion this was a legitimate aim which was both reasonable and
objectively justified, given the fact that there are over 100 registered
political parties in the UK and the potential drain upon public finances.
- Therefore, it seems to me that the key issue in this
case is whether the condition imposed by section 12(1) of the Political Parties,
Elections and Referendums Act 2000, that to qualify for PDG a "represented"
party must have at least 2 members of the House of Commons who have made and
subscribed to the relevant oath is a proportionate means of achieving that
legitimate end.
- Mr Morgan QC, on behalf of the respondent,
emphasised that this was a piece of primary legislation passed by a democratic
legislature and that the impugned condition had been the subject of a specific
amendment debate in the House of Commons. In such circumstances, Mr Morgan QC
submitted that the Strasbourg Court would have been willing to accord a wide
"margin of appreciation" to Parliament and, in a domestic context, he drew the
attention of the court to the decision of the Privy Council in Brown v Stott
(Procurator Fiscal, Dunfermline) & Another
[2001] 2 All ER 97 in which, in the
course of giving judgment, Lord Bingham said at page 114:
"Judicial recognition and assertion of the human rights defined in the
Convention is not a substitute for the processes of democratic Government but a
complement to them. While a national court does not accord the margin of
appreciation recognised by the European Court as a supra-national Court, it will
give weight to the decisions of a representative legislature and a democratic
Government within the discretionary area of judgment accorded to those bodies
(see Lester & Pannick Human Rights Law and Practice (1999) pp 73-76 (paras 3.20
– 3.26)."
- While there has been considerable academic and
judicial discussion about the need for courts to observe a "discretionary area
of judgment" or, to use the words of Lord Hope in R v DPP ex parte Kebilene
[2000] 2AC 326 at 3.80 an area "within which the judiciary will defer, on
democratic grounds, to the considered opinion of the elected body or person
whose actual decision is said to be incompatible with the Convention", both
before and since the coming into force of the HRA it seems to me that
considerable caution should be observed by the court when considering the stage
at which and the extent to which resort should be had to such a concept in
relation to the domestic application of Convention rights.
- One of the reasons frequently advanced for the need
to observe a significant degree of "judicial deference" is the risk that the
court may be tempted to substitute its own decision for that of the
democratically elected legislature. However, in my opinion, an equal if not
greater risk, is that an excessive degree of deference paid simply to the
identity of the decision-maker may inhibit the court in the performance of its
primary function under the HRA in determining whether an act of a public
authority is lawful. In Brown v Stott (op cit) Lord Steyn observed, at
page 118:
"And it is a basic premise of the Convention system that only an entirely
neutral, impartial and independent judiciary can carry out the primary task of
securing and enforcing Convention rights."
The independence of the courts is a fundamental component in the maintenance of
the rule of law and it is to those independent courts that Parliament, in
passing the HRA, has chosen to entrust the task of deciding whether a breach of
any Convention right has been established. In relation to primary legislation,
the constitutional balance has been specifically safeguarded by section 4 of the
HRA which limits the court to making a declaration of incompatibility. In cases
other than those which involve primary legislation, Parliament remains free to
pass legislation nullifying or altering the effect of judicial decisions with
which it does not agree.
- A further concern about affording a wide degree of
discretion simply because of the identity of the decision-maker, is that such an
approach has the potential to inhibit the degree of rigour to which the court
will subject any justification for the decision which may be required under the
HRA. The HRA is a constitutional statute which guarantees certain fundamental
human rights and which specifically charges the courts with the responsibility
of ensuring that proportionality is observed in respect of any proposed
justification for breach. This applies particularly to those Convention rights
that are expressly or impliedly regarded as "qualified". Unlike a number of
other Convention rights, Article 14 does not contain a clause which expressly
set out grounds of justification, but as I have already noted above, the
Strasbourg jurisprudence provides that there must be a relationship of
proportionality between any interference with the rights guaranteed under the
Article and the aim pursued (Belgium Linguistic case (No.2)
[1968] 1 EHRR 252: Darby v Sweden
[1990] 13 EHRR 774).
- Some difference of opinion may be discerned among
the textbook writers as to the onus in respect of establishing justification
under Article 14. In "The Law of Human Rights" (Oxford 2000), Messrs Clayton and
Tomlinson refer to the Belgium Linguistic Test identifying the two
essential elements as a rational aim behind the differentiation and
proportionality between the interference and the aim pursued and then express
the view, at page 1,242, 17.102:
"The aim must be established by the State, but the onus is on the applicant to
disprove proportionality."
On the other hand in his work "European Human Rights Law" (Legal Action Group
1999) Mr Kier Starmer, at page 687, para 9.10, expresses the view that:
"The burden is on the applicant to establish a difference in treatment; it then
shifts to the State Authority in question to justify that difference."
In a section headed "Objective and Reasonable Justification for Differential
Treatment" Lester and Pannick in "Human Rights Law and Practice" (Butterworth
1999) state, at para, 4.14.15, page 230;
"A difference in treatment will held to be discriminatory (contrary to Article
14) if it has 'no objective and reasonable justification'. In order to prove
such justification, the respondent Government must show that the difference in
treatment pursues a 'legitimate aim', and that there is a 'reasonable
relationship of proportionality between the means employed and the aim sought to
be realised."
At paragraph 4.14.17, the learned authors of this work point out that a claim of
justification by a State may well fail if it is based upon generalisations
without objective evidence in support. In the circumstances, it seems to me
that, where a prima facie breach of a Convention right, in this case
discrimination contrary to Article 14, has been established it is a matter for
the State in question to provide the appropriate justification of the means by
which it seeks to obtain its chosen end.
- In examining the question as to whether the State
has established a reasonable relationship of proportionality between the
legitimate aim and the means to be employed for the purpose of achieving that
aim, it seems to me that the following factors fall to be considered:
(i) Are the means suitable? – Are the means rationally connected with the
legitimate aim in that they are not arbitrary, unfair or based on irrational
considerations.
(ii) Are the means chosen necessary to accomplish the legitimate aim or
is there a less restrictive alternative?
(iii) Has the State advanced "relevant and sufficient" reasons in support
of the particular means chosen?
(iv) Do the means chosen impose an excessive degree of disadvantage upon
the individual concerned?
- Depending upon the circumstances of the case, if
appropriate, the decision-maker may be entitled to some degree of deference in
relation to the issue of justification. For example, the court may wish to take
into consideration the fact that the means have been chosen by a democratic
legislature, although it is important to remember that the original authors of
the Convention were conscious that minorities might need protection, not only
against tyrants or military dictators, but also against over-weening majorities.
Again, when considering whether a less restrictive means might have been
employed, a court may wish to take into account the fact that the relevant
subject matter gives rise to particular moral difficulties or is socially or
economically complex and the legislature is seeking to balance potentially
conflicting rights and interests. In such a case it might be easier to defer to
a Parliamentary choice which has been reached after a detailed and careful
consideration of all of the relevant circumstances.
- The material placed before the court by Mr Morgan
QC, on behalf of the respondent in support of justification, consisted of the
extract from the Neill Report, the subsequent White Paper, the extract from the
Hansard Debate, the decision in McGuinness v United Kingdom (Application No.
39511/98) and the affidavit sworn by Ms Prosser. After carefully considering
this material and taking into account the submissions of counsel, it seems to me
that the following are factors of importance:
(a) The legitimate aim sought to be achieved by section 12 of the
Political Parties, Elections and Referendums Act 2000, is the allocation of
proportional funds to assist with the development of long-term political
policies by those political parties with at least two members elected as
representatives to the House of Commons and restricted in their ability to
develop such policies because of the demands made upon their time and resources
by their activities at Westminster. The four elected representatives of Sinn
Fein do not take their seats in the House of Commons or participate in the daily
debate and business there but they do attend the Palace of Westminster and avail
themselves of the facilities afforded to MPs including office accommodation,
staff allowances, research facilities, travel allowances, broadcasting services
and the facility of making informal contact and communication with other MPs in
the interests of their constituents. No attempt whatever has been made by the
respondent to ascertain whether involvement to this extent in the "day-to-day,
hurly-burly of the political agenda" may restrict the party's ability to develop
policies.
(b) Instead of attempting to measure in some way the actual degree of
commitment to and involvement in political activity at Westminster by the
parties represented there, the respondent has chosen to apply the criterion of
taking the Oath required by the Parliamentary Oaths Act 1866, presumably,
because failure to take the Oath ultimately prevents a Member from taking his or
her seat. However, a party might well have two or more members who are prepared
to swear the Oath but who spend relatively little time in the "hurly-burly" of
daily political life in the House of Commons. No evidence was placed before the
court to establish that such an exercise was impossible or impracticable and no
discussion or consideration of this issue is contained in the Hansard excerpt or
the affidavit of the respondent the sponsor of the legislation. Neither document
contains any explanation as to how the Oath came to be chosen as the relevant
criterion.
(c) In short, in relation to Section 12, there was no equivalent of the
extensive parliamentary scrutiny which was referred to by Lord Woolf CJ in
R(S) v Chief Constable of South Yorkshire Police
[2002] 1 WLR 3223 at 3236.
(d) It seems clear from the excerpt from Hansard, that the decision of
Parliament to impose the requirement to take the Oath was taken in the knowledge
that Sinn Fein was the only party whose members would not comply with such a
requirement as a matter of principle while it appears that at least some Members
of the House of Commons, with republican, as distinct from Irish republican,
beliefs, resent the requirement to take the Oath but are prepared to "tell a
lie" to Parliament and take an Oath that they regard as "meaningless".
(e) Parliament itself appears to have recently reconsidered the
significance of the Oath. On 14th May 1997, the Speaker of the House
of Commons extended the requirement of taking the Oath to the services and
facilities of the House, thereby excluding the Sinn Fein Members. However this
decision has subsequently been reversed.
(f) The Neill Committee neither required nor suggested that PDGs should
be restricted to those parties whose elected members were required to take the
Oath.
(g) Apart from the fact that its outcome has subsequently been
voluntarily reversed by Parliament itself, there seems to me to be many
distinctions between this case and the case of McGuinness v UK. For
example, McGuinness concerned the personal use of the services and
facilities by the Sinn Fein representatives as opposed to the availability of
funds to the political party for long-term policy development, McGuinness was
concerned with Article 10 rather than Article 3 of the First Protocol and
Article 14, in McGuinness the domestic court had found that the impugned action
had been taken by the Speaker in exercise of his power to regulate the internal
arrangements of the House of Commons, whereas this case concerns a piece of
primary legislation, and, while the case was decided subsequent to the signing
of the document in April 1998, there does not appear to have been any reference
in McGuinness to the legitimacy accorded to the differing political aspirations
in Northern Ireland by the signatories to the Belfast Agreement.
None of the above factors has persuaded me that this is a decision to which the
court should extend any significant degree of deference in the circumstances.
- There is one further matter that it is important to
mention before expressing my final conclusion, and that is the refusal by the
Sinn Fein representatives to take up their seats at Westminster, quite apart
from their rejection of the Oath of Allegiance. During the course of the
proceedings I asked Mr Treacy QC to obtain specific instructions from Sinn Fein
as to whether their representatives would be prepared to take up the seats at
Westminster in the event of the removal of the requirement to take the Oath. The
response was in the negative. I have no doubt that in the McGuinness case this
attitude played a significant role in the decision of Strasbourg Court, which
must have found such an apparent rejection of the opportunity to participate in
a democratic institution difficult to comprehend, particularly in the context of
the political ideals and values so resolutely indorsed by the original authors
of the Convention.
- Neither in the original skeleton argument nor in the
course of argument did the respondent make any submission that this refusal by
Sinn Fein representatives to take up their seats at Westminster, quite apart
from their objection to the Oath, was a factor which might prevent the
comparator political parties from being in an analogous situation to Sinn Fein.
- Accordingly, after the conclusion of the hearing I
offered an opportunity to both the applicant and the respondent to make further
written submissions on this point and both chose to do so. In a submission dated
27th February 2003 Mr Morgan QC and Mr Maguire argued that the true
prohibition upon the applicant's entitlement to participate in PDGs was the
voluntary decision by Sinn Fein not to participate in the activities in the
chamber in Westminster and that, consequently, Sinn Fein was not a member of the
appropriate pool and could not claim to be the victim of discrimination contrary
to Article 14. Mr Treacy QC and Ms Quinlivan submitted a written response on 19th
March 2003 which accepted that, regardless of the wording of the oath, the Sinn
Fein MPs would not take up their seats, but maintained that the rationale behind
this refusal flowed inexorably from their political outlook and the fact that
they are an Irish Republican party.
- It is not altogether easy to understand the basis
upon which the applicants seek to argue in their recent written submission that
the refusal to take seats in Westminster … "falls within the same framework as a
refusal to take an Oath and is an expression of their political beliefs and
opinions." The refusal to take up seats at Westminster did not form any part of
the applicant's Order 53 statement, affidavit or skeleton argument nor was it
raised in oral submissions until the matter was specifically drawn to the
attention of the applicant's counsel. Even after counsel confirmed that Sinn
Fein would not take up their seats in the chamber, quite apart from the
requirement to take the Oath, no further submission was advanced during the
original hearing to the effect that such a refusal was "an expression of their
political beliefs and opinions". It is not difficult to appreciate why an oath
or affirmation of allegiance to the Queen might be inconsistent with the beliefs
of a person holding republican views but, provided that no such oath was
imposed, it is perhaps difficult to see why a candidate who held such views
should not take up a seat within a democratic parliament and effectively
represent the interests of the constituents, both republican and non republican.
Further it is not altogether clear why in the absence of the oath of allegiance,
the political opinions of those who support the Sinn Fein party should prohibit
their elected representatives from actively pursuing the implementation of their
republican ideals by the most obvious and direct democratic means, namely,
participation in open debate and voting within the chamber at Westminster,
particularly in circumstances in which their representatives do make extensive
and no doubt productive use of the facilities at Westminster to which I have
referred earlier in this judgment. Be that as it may, whatever the precise basis
of such a policy may be, it is clearly one to which the applicant and her party
are perfectly entitled to subscribe.
- In the written submission of 19 March 2003 the
applicant contends that the appropriate pool of comparators is "all political
parties, throughout the United Kingdom who, regardless of their political
outlook, command sufficient political support to elect two MPs to the House of
Commons." I reject this submission. As I have indicated in this judgment I have
reached the view that accepting that funding is not available upon an
unrestricted basis, the decision to provide PDGs for those parties which were
limited in the development of their policies by the necessity for their members
to participate in the daily activities in the chamber was both legitimate and
reasonable. In such circumstances, I am satisfied that the appropriate pool of
comparators consists of those parties with at least two elected members who take
up their seats and take part in such activities. These are the core activities
of a democratic institution by means of which elected representatives directly
participate in the democratic process and effectively represent the interests of
their constituents. As I have already recorded in this judgment, Sinn Fein make
use of certain facilities at Westminster but then so do those parties who take
their seats and no evidence was submitted on behalf of the applicant to
establish that her party was equally restricted by the daily demands of
parliamentary life and, therefore, a valid comparator. The onus is upon the
applicant to show that she falls within the relevant pool and this she has
failed to achieve. In my view, in the circumstances of this particular case, it
makes no difference that such failure is a consequence of political policy.
- For the reasons which I set out above I have reached
the conclusion that Sinn Fein do not come within the relevant pool of
comparators and, consequently, are not in an analogous situation to those
parties to whom PDGs have been awarded. Therefore I would answer question 3
posed by Brooke LJ in the Michalak case in the negative. If I am wrong
about this conclusion, again for the reasons set out above, I would have been
prepared to hold that the respondent has failed to discharge the burden of
establishing a reasonable relationship of proportionality between the legitimate
aim and the means, namely, the Oath and, in such circumstances, I would have
been prepared to make a declaration of incompatibility.
- Accordingly, the application will be dismissed.
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