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Treacy and Barry Macdonald, In the Matter of [2000] NIQB 6 (2nd May, 2000)

KERF3196 2 May 2000

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN'S BENCH DIVISION (CROWN SIDE)

________

IN THE MATTER OF AN APPLICATION BY SEAMUS TREACY AND BARRY MACDONALD FOR JUDICIAL REVIEW

________

KERR J

Introduction

1. Seamus Treacy and Barry Macdonald are members of the Bar of Northern Ireland. They applied in April 1999 to be admitted to the Senior Bar. In November 1999 they learned that they had been successful in their applications. Subsequently, they were informed that, before being called to the Senior Bar, they would be required to make a declaration in the following terms:-

"I do sincerely promise and declare that I will well and truly serve Her Majesty Queen Elizabeth II and all whom I may be lawfully called upon to serve in the office of one of Her Majesty's Counsel learned in the law according to the best of my skill and understanding."

2. Both applicants objected to making this declaration. They claimed that the Lord Chancellor (whose decision it was to require the declaration to be made) had no power to impose such a requirement. Alternatively, they suggested that he was wrong to impose it. They also claimed that the matter of the declaration was one for the Lord Chief Justice of Northern Ireland. Finally they asserted that they were already Queen's Counsel by virtue of the Warrant of the Queen.

Background

3. Before the partition of Ireland, Queen's Counsel were appointed by the issue of a warrant by the Lord Lieutenant of Ireland, acting as the delegate of the Sovereign. The Lord Lieutenant acted on the advice of the Lord Chancellor of Ireland. It was a constitutional convention that the Lord Lieutenant would accept the Lord Chancellor's advice. This practice mirrored the position in England where the Lord Chancellor of England recommended to the Sovereign the names of those whom he considered should be appointed Senior Counsel and his recommendation was invariably accepted.

4. After 1920 the functions of the Lord Lieutenant were transferred to the Governor of Northern Ireland. In the matter of the appointment of Senior Counsel the Governor acted on the recommendation of the Lord Chief Justice for Northern Ireland. An Oath of Allegiance to the Sovereign was required of those who wished to become Senior Counsel. They were also required to make a declaration of office. It was in these terms :-

"I do declare that well and truly I will serve the Queen as one of Her Counsel learned in the law and truly counsel the Queen in Her matters, when I shall be called upon so to do, and duly and truly administer the Queen's process after the course of the law, and after my cunning. I will duly in convenient time speed such matters as I may lawfully do which any person shall have to do in the law against the Queen. And in all other respects I will be attendant to the Queen's matters when I be called thereto."

5. In 1972 the functions of the Governor were transferred to the Secretary of State for Northern Ireland. When Senior Counsel were to be appointed, the Secretary of State, acting on behalf of the Queen and on the advice of the Lord Chief Justice, issued a warrant authorising their appointment.

6. In May 1995 Philip Magee, a member of the Bar of Northern Ireland, made an application for judicial review of the requirement to take the Oath of Allegiance and to make a declaration of office in the form then prescribed. The respondent in the judicial review proceedings was the Secretary of State for Northern Ireland. Before the application for judicial review was heard, however, it was concluded that the requirement to take the Oath of Allegiance was in breach of the Promissory Oaths Act 1868. This requirement was removed, therefore. At the same time the Secretary of State reviewed the form of the declaration of office. He decided that in future the form of the declaration should be the same as that made in England and Wales. Accordingly, on 26 October 1995, the Clerk of the Crown wrote to the chairman of the Bar Council informing him that, on taking Silk, the oath would no longer be administered and that the declaration would be in the form used in England and Wales. This is the form of the declaration which is currently in use and to which the applicants object.

7. After the letter from the Clerk of the Crown was received, Mr Magee consented to his application for judicial review being dismissed. In April 1996 a notice signed by the Principal Secretary to the Lord Chief Justice inviting applications for Silk was screened in the Bar Library. This prompted Mr Magee to write to the chairman of the Bar Council and to the Principal Secretary making inquiry as to the form which the declaration would take. He was informed that this would be as outlined in the letter from the Clerk of the Crown. Solicitors acting for Mr Magee then wrote to the Principal Secretary and to the Secretary of State for Northern Ireland raising a number of queries. In particular they asked whether the making of the declaration was compulsory. On 22 April 1996 the Principal Secretary replied stating that the making of the declaration was not a matter for the Lord Chief Justice. Further correspondence on this topic passed between Mr Magee's solicitors and the Principal Secretary, in the course of which the Principal Secretary quoted the following exchange from Hansard of 13 June 1995:

"Mr Peter Bottomley MP: To ask the Parliamentary Secretary, the Lord Chancellor's Department, who has discretion to modify the requirements of the oath and declaration required of Queen's Counsel.

Mr John M Taylor MP: When in November [1972] the form of the declaration made by Queen's Counsel was last modified, Her Majesty approved the Lord Chancellor's recommendation made with the agreement of the Treasurers of the four Inns of Court and the chairman of the General Council of the Bar.

...

Any modification to the oath and declaration for Queen's Counsel of Northern Ireland would be made by my Right Hon Friend the Secretary of State for Northern Ireland in the exercise of the Royal Prerogative. He would be advised in the matter by the Supreme Court authorities after consultation with the General Council of the Bar of Northern Ireland."

8. Further correspondence passed between Mr Magee's solicitors and the Principal Secretary and between Mr Magee himself and the chairman of the Bar Council but it is unnecessary to rehearse the contents of those letters here.

9. On 2 May 1996 the then Lord Chief Justice of Northern Ireland, Sir Brian Hutton (now Lord Hutton of Bresagh) wrote to the then Secretary of State for Northern Ireland, Sir Patrick Mayhew (now Lord Mayhew) referring to a meeting which they had had a few days previously. Lord Hutton repeated the view (which he had apparently expressed at the meeting) that the matter of the declaration was one for the Secretary of State. He suggested that the requirement to make the declaration could only be foregone by "a positive decision to remove it" on the part of the Secretary of State. Lord Hutton then said :

"If you decide to remove the requirement for a declaration it will appear that you are either being influenced by political pressure to alter the procedure relating to an office which links Northern Ireland with the Crown, or you will appear to be accepting the allegation of Mr Magee (which I think is probably unsustainable on legal grounds and which you had already claimed in the earlier proceedings to be invalid) ^*^*

This was a reference to the affidavit filed on behalf of the Secretary of State in Mr Magee's judicial review application that the requirement of a declaration is discriminatory. If you remove the requirement which you stated in the letter of the Clerk of the Crown dated 26 October 1995, it is probable that Mr Magee will claim that he has succeeded in striking down a discriminatory practice which had wrongfully been imposed for many years in the past."

10. Lord Hutton had also written to the Secretary of State in March 1996 about the question of the declaration. I shall refer to that letter below.

11. On 15 May 1996 the Bar Council set up a committee under the chairmanship of Fraser Elliott QC to investigate and report on all aspects of the appointment of Senior Counsel in Northern Ireland. The Committee sought the views of the judges of the Supreme Court. On 23 January 1997 Sir John MacDermott, then the senior Lord Justice of the Court of Appeal in Northern Ireland, wrote to Mr Elliott on behalf of the Lords Justices and the puisne judges. On the matter of the declaration he said:

"A declaration is required of each appointee as Queen's Counsel, which is now in the same terms in Northern Ireland as it has been for some time in England and Wales. [Sir John then set out the terms of the declaration and continued]

Sir Thomas Legg, Permanent Secretary of the Lord Chancellor's Department, has given the following opinion, which we believe to be correct:

(a) The declaration is to be regarded as a declaration of office and not a test of allegiance

(b) There is no reason why it should not properly be taken by any appointee, even a foreign national in practice at the English Bar (although at present only British subjects or nationals of member states of the European Union are eligible, this is under review).

(c) The declaration is regarded as a mandatory requirement for taking Silk. No appointee has to the best of his knowledge ever declined to make the declaration."

and

"The Declaration

12. This is the same as that used in England and Wales. It is a declaration of office and not of allegiance. We can see no rational objection to it and we are satisfied that it should be retained."

13. Before Mr Elliott's Committee reported, there was a call to the Senior Bar. This took place in September 1996. All those called made the declaration in the terms set out in the letter from the Clerk of the Crown.

14. In April 1997 Mr Elliott's Committee reported to the Bar Council. It recommended that the declaration should be modified. It proposed that the following be substituted for the declaration notified to the chairman of the Bar Council in October 1996:-

"I do sincerely promise and declare that I will well and truly serve all whom I may lawfully be called to serve in the office of one of Her Majesty's Counsel learned in the law according to best of my skill and understanding."

15. The Bar Council accepted this recommendation at a meeting on 14 May 1997. The following day a copy of the Elliott Committee report was sent by the chairman of the Bar Council to the Lord Chief Justice, Sir Robert Carswell. On 23 May 1997 the Lord Chief Justice replied to the chairman's letter and suggested to him that the report be published. The chairman and the Lord Chief Justice met on 6 June 1997 and, in the course of the meeting, Sir Robert informed the chairman that the issue of the declaration was not one on which he could comment since this was a matter for the Secretary of State.

16. The Bar Council did not send a copy of the Elliott Committee report to the Secretary of State or to the Northern Ireland Office nor did it at any time make representations to the Secretary of State about the form which the declaration should take. The Northern Ireland Office became aware of the report when, sometime in June 1997, a copy was received from the office of the Lord Chief Justice. The Secretary of State, Dr Majorie Mowlam, made no decision in relation to the declaration before 31 March 1999 when her responsibilities in the matter passed to the Lord Chancellor; nor is there any evidence that the matter was considered by her before that date.

17. On 11 June 1997 the Lord Chief Justice wrote to the Lord Chancellor. He enclosed a copy of the Elliott Committee report. He said that the "major matter raised" in the report was that of the declaration. He set out the recommendation of the Committee on the declaration and said:-

"I have consulted my Supreme Court colleagues, and they are united in the view that the declaration should remain in its present form."

18. The Lord Chancellor believed that this referred to the views held by the judges of the Supreme Court after the Elliott report had been produced. It is now clear, however, that, following the publication of that report, the judges had not expressed any view on the form that the declaration should take. The only view which the judges as a body had formed or expressed was that communicated to Mr Elliott by Sir John MacDermott on 23 January 1997, some three months before the Elliott report was published.

19. The letter of 11 June 1997 from the Lord Chief Justice to the Lord Chancellor continued:-

"This view, [ i.e. the view that the declaration should continue in its existing form] with which I fully agree, accords with that expressed by Brian Hutton in his letter of 21 March 1996 to the then Secretary of State:

'I think the law is clear that the appointment of Queen's Counsel is an exercise of the Royal Prerogative and that the position of Queen's Counsel is in the nature of an office under the Crown. This is stated in the portion of the judgment of Lord Watson in Attorney General for Dominion of Canada v Attorney General for Province of Ontario [1898] AC 247 at 251 which I enclose. I have underlined the passages of particular relevance.

It is therefore inherent in the office of Queen's Counsel that the barrister who accepts that position also accepts that he receives an office under the Crown, and by the clearest implication owes a duty to 'serve Her Majesty Queen Elizabeth II and all whom I may lawfully be called upon to serve in the office of one of Her Majesty's Counsel learned in the law'. This is what is stated in the English Declaration, and I enclose a copy of it.

Therefore a situation in which a barrister wishes to become a Queen's Counsel but declines to acknowledge that he holds an office under the Crown with a consequent obligation to the Queen is a contradiction in terms. Such a person is not entitled to be a Queen's Counsel. It seems to me that a somewhat comparable position would be where a politician wishes to enhance his standing by having the title of Privy Counsellor but refuses to take the Privy Counsellor's oath.'

20. I also share Brian Hutton's view that the decision whether or not Queen's Counsel should be required to make a declaration and the form which that should take is one for the Secretary of State. Patrick Mayhew was a little reluctant to accept that the decision lay with him, and Brian [Hutton] set out his views cogently in a letter of 2 May 1996, a copy of which I enclose. The Secretary of State finally accepted this and decided that the new Queen's Counsel should be required to make the declaration. I agree also with Brian Hutton's observation made in his letter of 21 March 1996 :

'I think it is likely that if there is no longer a requirement that those who become Queen's Counsel make a Declaration to serve the Queen it could be argued that there is no longer any reason why they should be called Queen's Counsel.'

21. I have little doubt myself that this is all part of an ongoing politically-based campaign to have the office of Queen's Counsel replaced by a rank entitled Senior Counsel, or something to that effect."

22. A meeting between the Lord Chief Justice and the Lord Chancellor took place on 25 June 1997. The minutes of that meeting record the Lord Chancellor as stating that he agreed with the views that had been expressed by Lord Hutton on the duty owed by Queen's Counsel to the Crown. Sir Robert Carswell was recorded as saying that "the judges were unanimously of that view" i.e. that Queen's Counsel owed a duty to the Queen by dint of their office. As noted above, however, the judges had expressed no view about the declaration after the Elliott report was produced and their opinion, as expressed in the letter from Sir John MacDermott, was confined to the view that, since the declaration was merely a declaration of office and not one of allegiance, it was unobjectionable. There is no evidence that the Supreme Court judges were aware of the view expressed by Lord Hutton to Lord Mayhew that Queen's Counsel owed a duty to the Crown. (It is to be noted that during the hearing of this judicial review application, counsel for the respondents, Mr Weatherup QC, accepted that Queen's Counsel owed no duty to the Queen and were not obliged to accept instructions to appear on behalf of the Crown. Moreover, as we shall see below, the Guide to applicants for Silk describes the office of Queen's Counsel as "first and foremost a working rank" and makes no reference to a duty to the Queen or an obligation to act on behalf of the Crown).

23. According to the note of the meeting of 25 June 1997, it was agreed that the Lord Chief Justice would write to the chairman of the Bar about "Silk matters other than the declaration". It was also agreed that the Lord Chancellor would not rush to express any view on the question of the declaration. The note stated that "there were good reasons for putting this on the back burner".

24. On 10 February 1998 the Lord Chancellor wrote to the Lord Chief Justice. Dealing with the appointment of Queen's Counsel, he said:

"It seems no more than a quirk of history that the Secretary of State has the responsibility for Silk appointments in Northern Ireland. She and I consider that the function fits more sensibly with the office of Lord Chancellor and provides a proper match with my responsibilities for judicial appointments in Northern Ireland. Accordingly, the Secretary of State has informally indicated her willingness to consider a transfer of this responsibility to me. If you are also in agreement, I believe that there are no legal, political or constitutional obstacles to proceeding in this way."

25. In this letter, the Lord Chancellor also said:

"You are also aware of my support for your views on the question of the declaration, which at this point is a matter for the Secretary of State. I agree that it seems sensible for this to continue on the back burner for a further period."

26. On 16 October 1998 the Lord Chief Justice wrote to the chairman of the Bar Council, Brian Fee QC, informing him of a proposal to bring the arrangements for the appointment of Queen's Counsel in Northern Ireland more closely in line with those in England and Wales. He stated that the principal aspect of the proposed change would be that in future the power of appointing Queen's Counsel in Northern Ireland would be exercised by Her Majesty the Queen acting on the advice of the Lord Chancellor. The letter enclosed a paper which summarised the main features of the new appointment procedure and the Lord Chief Justice informed Mr Fee that it was envisaged that the paper would form part of an 'Information Pack' which would be made available to counsel wishing to apply for Silk. Neither the letter nor the paper which was enclosed with it made any reference to the matter of the declaration.

27. Mr Fee replied to the Lord Chief Justice's letter on 27 November 1998 and stated that the General Council of the Bar, having considered the matter at a meeting on 18 November 1998, was "generally in favour of the proposals". He raised a number of matters about the procedure by which applications for Silk would be made and considered. Mr Fee's letter did not refer to the question of the declaration.

28. On 22 March 1999 the Prime Minister approved the transfer of powers relating to the appointment of Senior Counsel from the Secretary of State to the Lord Chancellor and by letter of 31 March 1999 Her Majesty the Queen consented to the transfer of responsibilities. On 19 April 1999 the Lord Chancellor wrote to Mr Fee to tell him that the new arrangements were effective. Again no reference was made to the question of the declaration.

29. At the end of April 1999 applications for Silk were invited by the Lord Chief Justice. It appears that, at about this time, the Lord Chancellor made a positive decision that the wording of the declaration should not be changed. He was aware of and, according to affidavits filed on his behalf, took account of the recommendation of the Bar Council but decided that the form of the declaration should remain as before. He has said that this decision was reached in order to preserve harmony between the systems in Northern Ireland and England and Wales. It is claimed that the Lord Chancellor did not consult because there was "no live controversy" about the issue of the declaration in April 1999. It was also stated on his behalf that the Lord Chancellor did not consider that the views of the judges of the Supreme Court were material to his decision. Again, he reached this view because he considered that there was no controversy relating to the declaration. It is claimed that if there had been any such controversy the Lord Chancellor would have consulted the Bar and would have taken account of the judges' views. It was suggested that, since he did not feel it necessary to do so, the fact that he mistakenly believed that the judges had confirmed their earlier view after the Elliott report had been published, made no difference to his decision.

30. When they applied to be appointed Senior Counsel, the applicants received a Guide which explained the arrangements for the appointment of Queen's Counsel. Paragraph 2 of the Guide stated:

"Queen's Counsel form the senior rank of the profession of barrister in the three law districts of the United Kingdom. There is a corresponding senior rank at most other common law Bars. Although Silk may exceptionally be granted on an honorary basis ... it is first and foremost a working rank in the profession of barrister and is regarded by the Lord Chancellor and the Lord Chief Justice as primarily a mark of distinction as an advocate." (emphasis added)

31. The Guide contained a section dealing with the appointment procedure. This described how applicants should apply, the consultation procedure which the Lord Chief Justice would follow and the manner in which recommendations would be made to the Lord Chancellor. It also stated that the instruments of appointment and "associated procedures of appointment" would be administered by the Crown Office in Northern Ireland. Nowhere in the Guide was any reference made to the declaration or to any duty owed by Queen's Counsel to the Crown.

32. When it was determined that twelve of the applicants for Silk should be admitted to the Inner Bar, the Royal Warrant was prepared and submitted for the signature of the Queen. It was received by the Lord Chancellor on 24 November 1999 and countersigned by him. It is in the following terms:

"Elizabeth R

Our will and pleasure is that this pass by immediate Warrant

Elizabeth the Second by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Our other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith. To all to whom these Presents shall come Greeting. Know Ye that We of Our especial grace have constituted ordained and appointed

Our trusty and well beloved

Gerald Eric John Simpson Esquire

[the names of the other applicants in sequence of seniority]

to be Our Counsel Learned in the Law in Northern Ireland. And We have also given and granted unto them as Our Counsel aforesaid place precedence and preaudience in Our Courts next after Hugh Mark Orr Esquire in the order in which their names appear. And We also will and grant to them full power and sufficient authority to perform, do and fulfil all and every the things which any other of Our Counsel learned in the Law of Northern Ireland as Our said Counsel may do and fulfil. We Will that this Our grant shall not lessen any Office by Us or Our Ancestors heretofore given or granted. In Witness &c. Witness &c."

33. On 9 December 1999, the Clerk of the Crown wrote to the applicants outlining the arrangements for the Call to the Inner Bar which was due to take place on 21 December 1999. This referred to the making of the declaration of office before the Call ceremony but it did not give the terms of the declaration. The letter also stated:

"Copies of the Royal Warrant (under which you and your colleagues are to be called to the Inner Bar) and of the declaration to be made by newly appointed Queen's Counsel, together with the Letters Patent by virtue of which you are to be admitted to the Senior Bar will be in a personal folder which will be handed to you at the rehearsal scheduled for 10.15 am on the day in question."

34. Mr Macdonald had contacted Gareth Johnston, the Principal Secretary to the Lord Chief Justice some time before 9 December to inquire about the form of the declaration and on that date Mr Johnston wrote to Mr Macdonald enclosing a copy of the declaration and pointing out that this was the same as in England and Wales.

35. On 15 December 1999 Mr Treacy wrote to the chairman of the Bar Council, Mr Fee. He outlined the objections which he and Mr Macdonald had to the making of a declaration in the terms required and asked that the Bar Council support their request to be allowed to make the declaration of office in the terms recommended in the Elliott report. A meeting between Mr Fee and the Lord Chief Justice took place on 17 December 1999. Mr Fee informed Sir Robert that the Bar Council considered that the form of the declaration should be as recommended by the Elliott Committee. The Lord Chief Justice said that the wording of the declaration was a matter for the Lord Chancellor and that he had decided that the wording should be the same as in England and Wales.

36. In an affidavit filed in the proceedings on behalf of the Lord Chancellor, the Clerk of the Crown, Mr Wilson, described the historical evolution of the system of appointment of Queen's Counsel in Northern Ireland. The exercise of the Royal Prerogative for the appointment of Queen's Counsel was delegated to the Governor of Northern Ireland and then the Secretary of State for Northern Ireland, after the introduction of direct rule in 1972. The prerogative was exercised by the Warrant of the Governor and later by the Secretary of State on behalf of the Sovereign. By contrast, the exercise of the Royal Prerogative in England and Wales was not delegated but was exercised directly by the Sovereign by Royal Warrant and Letters Patent. From 31 March 1999 Her Majesty the Queen exercised the Royal Prerogative directly through the office of the Lord Chancellor. This brought the arrangements in Northern Ireland into line with England and Wales.

37. According to Mr Wilson, appointments are made under the authority of the Royal Warrant which authorises the issue of Letters Patent which are authenticated by the use of the Wafer Seal kept in the Crown Office in Northern Ireland. The Letters Patent are signed, sealed and delivered to the appointee, on the understanding that and conditional upon the appointee making the declaration of office.

38. Mr Wilson explained that he played two distinct roles in the procedure for the appointment of Queen's Counsel. He represented the Crown Office by the delivery to the appointees of the Letters Patent. These were then produced to the Lord Chief Justice by the appointees. Mr Wilson then administered the declaration of office to each of the appointees in the presence of the Lord Chief Justice. This latter role was performed in his capacity as Clerk of the Crown. Similar arrangements are in place in England and Wales. Mr Wilson asserted on behalf of the Lord Chancellor that the declaration of office involved only a promise and declaration of service to the Queen as a client and that it did not, therefore, discriminate against any person on the grounds of religious belief or political opinion.

39. On 20 December 1999 the applicants obtained leave to apply for judicial review of the decision of the Lord Chancellor to require that the declaration be made. On 28 January 2000 the statement filed by the applicants under Order 53 of the Rules of the Supreme Court (Northern Ireland) 1980 was amended to allow them to seek a declaration that the content of any declaration which required to be taken by Senior Counsel in Northern Ireland was a matter for the Lord Chief Justice of Northern Ireland.

40. On the hearing of the substantive application I gave leave to the Executive Council of the Bar of Northern Ireland and the Human Rights Commission for Northern Ireland to make oral and written submissions.

The history of Silk

41. The first formal exercise of the Royal Prerogative to appoint King's Counsel appears to have been the appointment of Francis Bacon in 1604 by Letters Patent of King James I. [2] that the requirement of a declaration is discriminatory. If you remove the requirement which you stated in the letter of the Clerk of the Crown dated 26 October 1995, it is probable that Mr Magee will claim that he has succeeded in striking down a discriminatory practice which had wrongfully been imposed for many years in the past."

42. Lord Hutton had also written to the Secretary of State in March 1996 about the question of the declaration. I shall refer to that letter below.

43. On 15 May 1996 the Bar Council set up a committee under the chairmanship of Fraser Elliott QC to investigate and report on all aspects of the appointment of Senior Counsel in Northern Ireland. The Committee sought the views of the judges of the Supreme Court. On 23 January 1997 Sir John MacDermott, then the senior Lord Justice of the Court of Appeal in Northern Ireland, wrote to Mr Elliott on behalf of the Lords Justices and the puisne judges. On the matter of the declaration he said:

Sir Thomas Legg, Permanent Secretary of the Lord Chancellor's Department, has given the following opinion, which we believe to be correct:

(a) The declaration is to be regarded as a declaration of office and not a test of allegiance

(c) The declaration is regarded as a mandatory requirement for taking Silk. No appointee has to the best of his knowledge ever declined to make the declaration."

and

"The Declaration

44. This is the same as that used in England and Wales. It is a declaration of office and not of allegiance. We can see no rational objection to it and we are satisfied that it should be retained."

45. Before Mr Elliott's Committee reported, there was a call to the Senior Bar. This took place in September 1996. All those called made the declaration in the terms set out in the letter from the Clerk of the Crown.

46. In April 1997 Mr Elliott's Committee reported to the Bar Council. It recommended that the declaration should be modified. It proposed that the following be substituted for the declaration notified to the chairman of the Bar Council in October 1996:-

47. The Bar Council accepted this recommendation at a meeting on 14 May 1997. The following day a copy of the Elliott Committee report was sent by the chairman of the Bar Council to the Lord Chief Justice, Sir Robert Carswell. On 23 May 1997 the Lord Chief Justice replied to the chairman's letter and suggested to him that the report be published. The chairman and the Lord Chief Justice met on 6 June 1997 and, in the course of the meeting, Sir Robert informed the chairman that the issue of the declaration was not one on which he could comment since this was a matter for the Secretary of State.

48. The Bar Council did not send a copy of the Elliott Committee report to the Secretary of State or to the Northern Ireland Office nor did it at any time make representations to the Secretary of State about the form which the declaration should take. The Northern Ireland Office became aware of the report when, sometime in June 1997, a copy was received from the office of the Lord Chief Justice. The Secretary of State, Dr Majorie Mowlam, made no decision in relation to the declaration before 31 March 1999 when her responsibilities in the matter passed to the Lord Chancellor; nor is there any evidence that the matter was considered by her before that date.

49. On 11 June 1997 the Lord Chief Justice wrote to the Lord Chancellor. He enclosed a copy of the Elliott Committee report. He said that the "major matter raised" in the report was that of the declaration. He set out the recommendation of the Committee on the declaration and said:-

"I have consulted my Supreme Court colleagues, and they are united in the view that the declaration should remain in its present form."

50. The Lord Chancellor believed that this referred to the views held by the judges of the Supreme Court after the Elliott report had been produced. It is now clear, however, that, following the publication of that report, the judges had not expressed any view on the form that the declaration should take. The only view which the judges as a body had formed or expressed was that communicated to Mr Elliott by Sir John MacDermott on 23 January 1997, some three months before the Elliott report was published.

51. The letter of 11 June 1997 from the Lord Chief Justice to the Lord Chancellor continued:-

52. I also share Brian Hutton's view that the decision whether or not Queen's Counsel should be required to make a declaration and the form which that should take is one for the Secretary of State. Patrick Mayhew was a little reluctant to accept that the decision lay with him, and Brian [Hutton] set out his views cogently in a letter of 2 May 1996, a copy of which I enclose. The Secretary of State finally accepted this and decided that the new Queen's Counsel should be required to make the declaration. I agree also with Brian Hutton's observation made in his letter of 21 March 1996 :

53. I have little doubt myself that this is all part of an ongoing politically-based campaign to have the office of Queen's Counsel replaced by a rank entitled Senior Counsel, or something to that effect."

54. A meeting between the Lord Chief Justice and the Lord Chancellor took place on 25 June 1997. The minutes of that meeting record the Lord Chancellor as stating that he agreed with the views that had been expressed by Lord Hutton on the duty owed by Queen's Counsel to the Crown. Sir Robert Carswell was recorded as saying that "the judges were unanimously of that view" i.e. that Queen's Counsel owed a duty to the Queen by dint of their office. As noted above, however, the judges had expressed no view about the declaration after the Elliott report was produced and their opinion, as expressed in the letter from Sir John MacDermott, was confined to the view that, since the declaration was merely a declaration of office and not one of allegiance, it was unobjectionable. There is no evidence that the Supreme Court judges were aware of the view expressed by Lord Hutton to Lord Mayhew that Queen's Counsel owed a duty to the Crown. (It is to be noted that during the hearing of this judicial review application, counsel for the respondents, Mr Weatherup QC, accepted that Queen's Counsel owed no duty to the Queen and were not obliged to accept instructions to appear on behalf of the Crown. Moreover, as we shall see below, the Guide to applicants for Silk describes the office of Queen's Counsel as "first and foremost a working rank" and makes no reference to a duty to the Queen or an obligation to act on behalf of the Crown).

55. According to the note of the meeting of 25 June 1997, it was agreed that the Lord Chief Justice would write to the chairman of the Bar about "Silk matters other than the declaration". It was also agreed that the Lord Chancellor would not rush to express any view on the question of the declaration. The note stated that "there were good reasons for putting this on the back burner".

56. On 10 February 1998 the Lord Chancellor wrote to the Lord Chief Justice. Dealing with the appointment of Queen's Counsel, he said:

57. In this letter, the Lord Chancellor also said:

58. On 16 October 1998 the Lord Chief Justice wrote to the chairman of the Bar Council, Brian Fee QC, informing him of a proposal to bring the arrangements for the appointment of Queen's Counsel in Northern Ireland more closely in line with those in England and Wales. He stated that the principal aspect of the proposed change would be that in future the power of appointing Queen's Counsel in Northern Ireland would be exercised by Her Majesty the Queen acting on the advice of the Lord Chancellor. The letter enclosed a paper which summarised the main features of the new appointment procedure and the Lord Chief Justice informed Mr Fee that it was envisaged that the paper would form part of an 'Information Pack' which would be made available to counsel wishing to apply for Silk. Neither the letter nor the paper which was enclosed with it made any reference to the matter of the declaration.

59. Mr Fee replied to the Lord Chief Justice's letter on 27 November 1998 and stated that the General Council of the Bar, having considered the matter at a meeting on 18 November 1998, was "generally in favour of the proposals". He raised a number of matters about the procedure by which applications for Silk would be made and considered. Mr Fee's letter did not refer to the question of the declaration.

60. On 22 March 1999 the Prime Minister approved the transfer of powers relating to the appointment of Senior Counsel from the Secretary of State to the Lord Chancellor and by letter of 31 March 1999 Her Majesty the Queen consented to the transfer of responsibilities. On 19 April 1999 the Lord Chancellor wrote to Mr Fee to tell him that the new arrangements were effective. Again no reference was made to the question of the declaration.

61. At the end of April 1999 applications for Silk were invited by the Lord Chief Justice. It appears that, at about this time, the Lord Chancellor made a positive decision that the wording of the declaration should not be changed. He was aware of and, according to affidavits filed on his behalf, took account of the recommendation of the Bar Council but decided that the form of the declaration should remain as before. He has said that this decision was reached in order to preserve harmony between the systems in Northern Ireland and England and Wales. It is claimed that the Lord Chancellor did not consult because there was "no live controversy" about the issue of the declaration in April 1999. It was also stated on his behalf that the Lord Chancellor did not consider that the views of the judges of the Supreme Court were material to his decision. Again, he reached this view because he considered that there was no controversy relating to the declaration. It is claimed that if there had been any such controversy the Lord Chancellor would have consulted the Bar and would have taken account of the judges' views. It was suggested that, since he did not feel it necessary to do so, the fact that he mistakenly believed that the judges had confirmed their earlier view after the Elliott report had been published, made no difference to his decision.

62. When they applied to be appointed Senior Counsel, the applicants received a Guide which explained the arrangements for the appointment of Queen's Counsel. Paragraph 2 of the Guide stated:

63. The Guide contained a section dealing with the appointment procedure. This described how applicants should apply, the consultation procedure which the Lord Chief Justice would follow and the manner in which recommendations would be made to the Lord Chancellor. It also stated that the instruments of appointment and "associated procedures of appointment" would be administered by the Crown Office in Northern Ireland. Nowhere in the Guide was any reference made to the declaration or to any duty owed by Queen's Counsel to the Crown.

64. When it was determined that twelve of the applicants for Silk should be admitted to the Inner Bar, the Royal Warrant was prepared and submitted for the signature of the Queen. It was received by the Lord Chancellor on 24 November 1999 and countersigned by him. It is in the following terms:

"Elizabeth R

Our will and pleasure is that this pass by immediate Warrant

Our trusty and well beloved

Gerald Eric John Simpson Esquire

[the names of the other applicants in sequence of seniority]

65. On 9 December 1999, the Clerk of the Crown wrote to the applicants outlining the arrangements for the Call to the Inner Bar which was due to take place on 21 December 1999. This referred to the making of the declaration of office before the Call ceremony but it did not give the terms of the declaration. The letter also stated:

66. Mr Macdonald had contacted Gareth Johnston, the Principal Secretary to the Lord Chief Justice some time before 9 December to inquire about the form of the declaration and on that date Mr Johnston wrote to Mr Macdonald enclosing a copy of the declaration and pointing out that this was the same as in England and Wales.

67. On 15 December 1999 Mr Treacy wrote to the chairman of the Bar Council, Mr Fee. He outlined the objections which he and Mr Macdonald had to the making of a declaration in the terms required and asked that the Bar Council support their request to be allowed to make the declaration of office in the terms recommended in the Elliott report. A meeting between Mr Fee and the Lord Chief Justice took place on 17 December 1999. Mr Fee informed Sir Robert that the Bar Council considered that the form of the declaration should be as recommended by the Elliott Committee. The Lord Chief Justice said that the wording of the declaration was a matter for the Lord Chancellor and that he had decided that the wording should be the same as in England and Wales.

68. In an affidavit filed in the proceedings on behalf of the Lord Chancellor, the Clerk of the Crown, Mr Wilson, described the historical evolution of the system of appointment of Queen's Counsel in Northern Ireland. The exercise of the Royal Prerogative for the appointment of Queen's Counsel was delegated to the Governor of Northern Ireland and then the Secretary of State for Northern Ireland, after the introduction of direct rule in 1972. The prerogative was exercised by the Warrant of the Governor and later by the Secretary of State on behalf of the Sovereign. By contrast, the exercise of the Royal Prerogative in England and Wales was not delegated but was exercised directly by the Sovereign by Royal Warrant and Letters Patent. From 31 March 1999 Her Majesty the Queen exercised the Royal Prerogative directly through the office of the Lord Chancellor. This brought the arrangements in Northern Ireland into line with England and Wales.

69. According to Mr Wilson, appointments are made under the authority of the Royal Warrant which authorises the issue of Letters Patent which are authenticated by the use of the Wafer Seal kept in the Crown Office in Northern Ireland. The Letters Patent are signed, sealed and delivered to the appointee, on the understanding that and conditional upon the appointee making the declaration of office.

70. Mr Wilson explained that he played two distinct roles in the procedure for the appointment of Queen's Counsel. He represented the Crown Office by the delivery to the appointees of the Letters Patent. These were then produced to the Lord Chief Justice by the appointees. Mr Wilson then administered the declaration of office to each of the appointees in the presence of the Lord Chief Justice. This latter role was performed in his capacity as Clerk of the Crown. Similar arrangements are in place in England and Wales. Mr Wilson asserted on behalf of the Lord Chancellor that the declaration of office involved only a promise and declaration of service to the Queen as a client and that it did not, therefore, discriminate against any person on the grounds of religious belief or political opinion.

71. On 20 December 1999 the applicants obtained leave to apply for judicial review of the decision of the Lord Chancellor to require that the declaration be made. On 28 January 2000 the statement filed by the applicants under Order 53 of the Rules of the Supreme Court (Northern Ireland) 1980 was amended to allow them to seek a declaration that the content of any declaration which required to be taken by Senior Counsel in Northern Ireland was a matter for the Lord Chief Justice of Northern Ireland.

72. On the hearing of the substantive application I gave leave to the Executive Council of the Bar of Northern Ireland and the Human Rights Commission for Northern Ireland to make oral and written submissions.

The history of Silk

73. The first formal exercise of the Royal Prerogative to appoint King's Counsel appears to have been the appointment of Francis Bacon in 1604 by Letters Patent of King James I. [1] According to a paper by Master Baker published in 1996 by Inner Temple, Queen's Counsel are granted "an office of service to the Crown" and since 1604 this has always been effected by Letters Patent. [2]

74. King's Counsel in Ireland date from the early seventeenth century, the first record of appointment being that of William Hilton who received Letters Patent dated January 1613-14 enabling him to plead and practise at the Bar. [3] In a Return of Offices or Employments granted by Patent under the Great Seal of Ireland or By Warrant of the Lord Lieutenant of Ireland 1 January 1800 to 1 June 1804 there are records of the appointment of King's Counsel by the Lord Lieutenant of Ireland by Royal Warrant. [4]

75. A dispute arose in 1671 as to whether the King's Counsel extraordinary should take precedence over serjeants even when not acting on behalf of the Crown. The King was advised that this was a matter for His Royal Prerogative and he could give precedence to whomever he pleased. He decided that King's Counsel should have precedence over serjeants at law who were not the King's serjeants. [5] Interestingly, as Mr Serjeant Waller noted, this did not settle the question of preaudience since the King could only settle questions of precedence under his prerogative powers. Baker records that as a matter of practice, however, King's Counsel enjoyed preaudience as well. The allocation of roles between the grant of office (for the Sovereign) and the grant of preaudience (for the judges) is not merely of historical interest. It illustrates the breakdown of responsibilities which has persisted to the present time. Thus, although Queen's Counsel are appointed by the Queen on the recommendation of the Lord Chancellor, in both England and Northern Ireland they are admitted to the Inner Bar by being called by the Lord Chief Justice.

76. An oath to the service of the Sovereign was required of King's Counsel until the Promissory Oaths Act 1868. In practice an oath of allegiance and an oath of office were taken. After 1868 these were replaced in England and Wales by a declaration of office. This was substantially the same as the declaration used in Northern Ireland before 1995 but it also included an undertaking that no fee would be taken in respect of any matter against the Sovereign. [6] By 1835 it was standard practice to issue on request a licence of dispensation under the Royal sign manual for King's Counsel to appear against the Crown. It is noteworthy that in 1840 it was held to be improper for Queen's Counsel to appear against the Crown before the Queen had signed the licence even though the requisite fee had been paid. [7] Until 1920 in England and Wales it was necessary to obtain a licence whenever Queen's Counsel was retained against the Crown. It would appear that this requirement was abolished in Northern Ireland in 1939. [8]

The declaration -a function of the prerogative?

77. As noted above, the origin of the declaration was as a replacement of the oath of office after the enactment of the Promissory Oaths Act 1868. Since the declaration was one of office and that office was conferred by the Crown it would be natural to assume that the requirement to make the declaration should be part of the prerogative functions. The applicants contended, however, that, as a matter of history, the requirement to make the declaration was imposed by the Lord Chancellor in Ireland to whose powers and functions the Lord Chief Justice had succeeded. In support of their claim that the power to require the making of a declaration now reposed in the Lord Chief Justice the applicants referred to an exchange of correspondence passing between the office of the then Lord Chief Justice and the Ministry of Home Affairs in June 1939. In a letter to the minister of 27 June 1939 the secretary to the Lord Chief Justice said:

"There is one matter ... which the Lord Chief Justice would like to draw your attention to. That is the Form of Declaration which is now made by King's Counsel in Northern Ireland. Some time ago the Chief Justice considered the matter of the oath formerly taken by King's Counsel in Ireland and came to the conclusion that it would be desirable to substitute for that Oath a Declaration on the lines of that taken in England. Accordingly, on the occasion of the last Call to the Inner Bar in Northern Ireland, a Declaration ... was substituted for the former Oath."

78. The terms of this letter made it clear, the applicants claimed, that the Lord Chief Justice of the time considered that the matter of the declaration was one for him alone.

79. On the hearing of this application the Bar Council supported the applicants' argument that the Lord Chief Justice was responsible for deciding whether a declaration was required. They did so for somewhat different reasons from those advanced by the applicants. They submitted that rights of audience formed part of the inherent jurisdiction of the court and the granting or withholding of a right of audience was a judicial function. It was further contended by the Bar Council that since neither the Royal Warrant nor the Letters Patent referred to a declaration, it was to be assumed that the requirement to make the declaration was an element of the rights of preaudience conferred by the court.

80. There is no clear historical evidence as to who required the declaration to be made before 1920. The applicants argued that since the Lord Lieutenant was obliged, by constitutional convention, to accede to the Lord Chancellor of Ireland's recommendation on the matter of Silks and since he could not thwart the Lord Chancellor's proposals by imposing an additional requirement on those whom the Lord Chancellor had chosen, the responsibility for the declaration must have lain with the Lord Chancellor of Ireland. The respondents countered this argument by suggesting that the declaration was inextricably bound up with the conferment of the office and that it must therefore have been the responsibility of the Sovereign - or, in the case of Ireland, the Sovereign's delegate, the Lord Lieutenant - who conferred the honour.

81. It appears to me that the declaration was - and is - an incident of the office of Queen's Counsel. In Attorney General for the Dominion of Canada v Attorney General for the Province of Ontario [1898] AC 247, 252 Lord Watson, delivering the judgment of the Privy Council, said:

"The exact position occupied by a Queen's Counsel duly appointed is a subject which might admit of a good deal of discussion. It is in the nature of an office under the Crown, although any duties which it entails are almost as insubstantial as its emoluments; and it is also in the nature of an honour or dignity to this extent, that it is a mark and recognition by the Sovereign of the professional eminence of the counsel upon whom it is conferred."

82. It is true that the position of Queen's Counsel has been described in the Guide for Applicants as "primarily a working rank" but that description owes more, in my opinion, to the effect of being appointed Queen's Counsel rather than the nature of the honour conferred. It is an office conferred by the Sovereign, albeit on the recommendation of the Lord Chancellor. It appears to me that the requirement to make a declaration of office is intimately connected with the conferring of the office and must be a matter for the person who makes the conferment.

83. The history of the office of Queen's Counsel and its origins as an appointment to act on behalf of the Sovereign are also consistent with the declaration being a matter for the Royal Prerogative. The undertaking not to take cases against the Crown, for instance, was made to the Sovereign in consideration of the honour that was bestowed by the King on those who became King's Counsel. The contemporary equivalent is the declaration of office. That declaration is made to the Sovereign in consideration of the Queen's conferring of the office of Queen's Counsel on the declarants.

84. The distinction which must be drawn between the office itself and the effect of achieving that office is also important in considering the argument advanced on behalf of the Bar Council. The consequence of being appointed Queen's Counsel is that one will be accorded preaudience before the courts. That is a matter for the judges but this is related to the effect of appointment rather than the appointment itself. It is for the Queen (on the advice of the Lord Chancellor) to decide who is to be appointed Queen's Counsel and what the conditions of appointment should be. It is for the judges to decide what privileges and preaudiences they will grant to reflect the eminence of those who are appointed to that office. I consider, therefore, that the requirement to make the declaration is a matter for the Royal Prerogative which the Sovereign or her delegate exercises on the advice of ministers.

Reserved matters

85. Even if I had not reached the conclusion that the declaration was a matter for the Royal Prerogative, I would have decided that it could not have been the responsibility of the Lord Chief Justice of Northern Ireland at any stage because it was at all times a reserved matter i.e. a matter reserved to the British government.

86. Until 1920 the Lord Lieutenant of Ireland had exercised on behalf of the Sovereign prerogative powers granted under Letters Patent. [9] The Government of Ireland Act 1920 declared that executive power in Northern Ireland would continue to be vested in the Sovereign (Section 8(1)). Section 8(2) provided that in relation to "Irish services" the Lord Lieutenant was to exercise such prerogative power as was delegated by the Sovereign. Irish services were defined in Section 8 (8) as:-

"all public services in connection with the administration of civil government in ... Northern Ireland except the administration of matters with respect to which ... the Parliament of Northern Ireland ha[s] ... no power to make laws, including ... all public services ... declared to be reserved matters ..."

87. By Letters Patent of 27 April 1921 the Lord Lieutenant was authorised and commanded to "do and execute all things which by the right, usage and custom of Ireland have heretofore appertained to the Office of Lord Lieutenant. [10] The office of Lord Chancellor of Ireland survived the passing of the Government of Ireland Act but by Section 44(2) the Lord Chancellor was stripped of all executive functions which were thereby transferred to the Lord Lieutenant.

88. In the absence of any provision about the exercise of the prerogative in relation to reserved matters, this remained vested in the Sovereign. Section 47 of the 1920 Act provided that all matters relating to the Supreme Court of Judicature in Northern Ireland were reserved matters. Part II of Schedule 7 to the 1920 Act made provision for the composition of that Court. Paragraph 4 of Part III of the same Schedule provided that all existing members of the Irish Bar would become members both of the Bar of Northern Ireland and the Bar of Southern Ireland. I am of the clear opinion, therefore, that the appointment of Silks, being a matter relating to the Supreme Court, was a reserved matter.

89. Since the effect of the 1920 Act was to make the appointment of Senior Counsel a reserved matter it was one on which neither the Lord Lieutenant nor the Lord Chancellor of Ireland could pronounce. It follows that, in altering the declaration in 1939, the then Lord Chief Justice was acting without legal authority. The transfer of the judicial functions of the Lord Chancellor of Ireland to the Lord Chief Justice did not convey to the latter any role in or responsibility for the making of the declaration.

90. By the Supreme Court of Judicature (Northern Ireland) Order 1921 references to the Lord Chancellor of Ireland were to be construed as references to the Lord Chief Justice of Northern Ireland and by paragraph 1(1) of Schedule 1 to the Irish Free State (Consequential Provisions) Act 1922 the Governor replaced the Lord Lieutenant. Part II of Schedule 2 to the 1922 Act abolished the office of the Lord Chancellor of Ireland. The executive powers of the Lord Chancellor (which, as noted above, had been transferred to the Lord Lieutenant under Section 44(2) of the Government of Ireland Act) were thus conveyed to the Governor. His judicial functions were transferred to the Lord Chief Justice.

91. The Governor was appointed by Letters Patent dated 9 December 1922 which authorised him to "do and execute in due manner as respects Northern Ireland all things which ... belonged to the office of the Lord Lieutenant". [11] On the same date instructions were issued to the Governor by the King in which, among other matters, specific directions were given about the exercise of prerogative powers in relation to pardons and reprieves. No delegation was made in respect of reserved matters, however.

92. The Governor exercised powers in respect of the appointment of Silks on the recommendation of the Lord Chief Justice for Northern Ireland. It is not clear on what basis he purported to do so. Since it was a reserved matter, the power exercised by the Governor can