Tweed v. Parades Commission for Northern Ireland (Northern Ireland)

The House considered whether five documents summarised in the respondent's affidavit should be disclosed in judicial review proceedings which raised a proportionality challenge under the European Convention on Human Rights and the Human Rights Act 1998. The court held that disclosure in judicial review is not automatic even where proportionality is in issue, but that the need for disclosure must be assessed flexibly in the context of the particular case and always against the test whether disclosure is necessary for disposing of the matter fairly or for saving costs. The House ordered that the five disputed documents be produced for inspection by the judge alone, who should decide whether the documents reveal information imparted in confidence, whether they add material value beyond the summaries already placed before the court, and, if so, whether redaction or public interest immunity is required.

The appellant, representing an Orange Lodge, sought judicial review of a Parades Commission determination restricting a proposed procession in Dunloy and challenged in part the compatibility with the Convention (articles 9, 10 and 11) of section 8(6)(c) of the Public Processions (Northern Ireland) Act 1998 and of aspects of the Commission's procedural rules (in particular rule 3.3) and guidelines. The substantive claim included that the Commission's conditions were disproportionate.

The interlocutory issue before the House was a disclosure application for five documents summarised in the Commission's affidavit (a police facsimile/report, and several situation reports and notes from authorised officers and the Secretariat). Girvan J (High Court) had ordered disclosure; the Court of Appeal ([2005] NICA 42) set aside that order as premature. The appellant appealed.

The House framed the issues as (i) the appropriate approach to disclosure in judicial review where proportionality under the Convention is relied upon, (ii) the effect of the Commission's rule 3.3 and assurances of confidentiality, and (iii) the manner in which any public interest immunity or need for redaction should be addressed.

The court reasoned that although proportionality increases the likelihood that the original documents underpinning a decision will be necessary for a fair resolution, disclosure is not automatic. The decision-maker's duty of candour and practice of exhibiting primary documents are important, but the court must balance that against confidentiality and the danger of fishing expeditions. The House rejected a rigid requirement that affidavits be contradicted before disclosure is ordered and adopted a flexible case-by-case test. Applying that approach it ordered production of the five documents to the judge alone for inspection; if the judge finds they do not disclose confidential informants they should be disclosed to the applicant; if they do, the judge must determine whether the documents add materially to the summaries and, if so, consider redaction and public interest immunity before any wider disclosure.

Appeal allowed. The House held that disclosure in judicial review cases where proportionality is in issue should be governed by a flexible case-sensitive test: documents relied on should ordinarily be exhibited unless confidentiality or other valid reasons justify restricting disclosure. The five disputed documents were to be produced first for inspection by the judge alone, who must decide whether they disclose informants, whether they add material value beyond the summaries, and, if necessary, consider redaction and public interest immunity before ordering wider disclosure.

High Court (Girvan J) ordered disclosure (written judgment 19 November 2004); Court of Appeal (Northern Ireland) set aside the order ([2005] NICA 42, 7 September 2005); appeal to the House of Lords allowed ([2006] UKHL 53, 13 December 2006).