In re Duffy (FC) (Appellant) (Northern Ireland)

The House of Lords allowed the appellant's challenge to the Secretary of State's appointment of two members of the Parades Commission on public law grounds. The court held that the Secretary of State and the selection panel failed to confront a clear conflict of interest and the question of perceived bias arising from appointing two prominent loyalist activists who could not plausibly be seen as impartial adjudicators or mediators in relation to contentious loyalist parades.

The decision applied the established test for perceived bias and examined the Secretary of State's statutory duty under paragraph 2(3) of Schedule 1 to the Public Processions (Northern Ireland) Act 1998 to secure, so far as practicable, that the commission's membership is representative of the community. The appointments were unlawful because a reasonable decision-maker, properly directed in law and aware of the relevant facts, could not have appointed these persons to perform the full functions of commissioners without undermining the Commission's perceived impartiality.

Background and parties: Mr Duffy (appellant), a member of the Garvaghy Road Residents' Coalition, sought judicial review of the Secretary of State for Northern Ireland's appointments (30 November 2005) of David Burrows and Donald Mackay to the Parades Commission. The Parades Commission, created by the Public Processions (Northern Ireland) Act 1998, determines and mediates on contentious public processions. The appointments followed an advertised competition conducted with reference to the Office of the Commissioner for Public Appointments code.

Procedural history: At first instance Morgan J quashed Mr Burrows' appointment on the limited ground that the Secretary of State's officials failed to consider targeting nationalist groups when soliciting applications (thus breaching paragraph 2(3) of Schedule 1 to the 1998 Act). The Court of Appeal (Kerr LCJ and Campbell LJ majority; Nicholson LJ dissenting) reversed that order. The matter proceeded to the House of Lords on appeal.

Nature of the claim and relief sought: Mr Duffy sought judicial review quashing the impugned appointments. The central legal issues were (i) whether the selection process failed to take into account relevant considerations required by paragraph 2(3) of Schedule 1 to the Public Processions (Northern Ireland) Act 1998 and applicable guidance, and (ii) whether the appointments were unlawful for reason of actual or perceived bias or irrationality because the appointees had conflicts of interest.

Issues framed by the court:

• Whether the Secretary of State was required to target or encourage applications from nationalist/resident groups when recruiting so as to secure representative membership under Schedule 1 para 2(3).
• Whether appointing two prominent loyalist activists who remained members of loyalist organisations gave rise to an irremediable conflict of interest and perceived bias such that their appointments were unlawful.
• Whether the Secretary of State had properly taken into account relevant considerations and acted within the range of reasonable responses.

Court’s reasoning: The majority concluded that the determinative issue was perceived bias arising from conflict of interest. The court accepted that the commission must be seen as independent and impartial for its determinations and mediations to be accepted. Given the small size and intended corporate character of the Commission, appointing two individuals prominently identified with the loyalist cause — who would inevitably have to recuse themselves from the most sensitive disputes (notably Garvaghy Road) — meant they could not plausibly perform the Commission's central functions and their membership would damage public perception of impartiality. The House of Lords therefore concluded a reasonable Secretary of State, aware of these facts and properly directing himself in law, could not have made those appointments and quashed Mr Burrows' appointment (Mr Mackay had resigned). The court treated outreach/targeting of groups as a policy choice which in itself was not necessarily unlawful, but found the appointments unlawful on grounds of unreasonableness and perceived bias. The court referred to the perceived-bias test applied in Porter v Magill and to the statutory requirement in Schedule 1 para 2(3) of the 1998 Act.

Appeal allowed. The House of Lords held that the Secretary of State's decision to appoint Mr Burrows (and similarly Mr Mackay) was unlawful because the appointing authorities failed to recognise and address the clear conflict of interest and resulting perceived bias such appointees would create. A reasonable decision-maker, properly informed and directing himself in law, could not have made those appointments without undermining the Commission's ability to perform its core functions and its perceived impartiality; accordingly the appointment was quashed (no order as to Mr Mackay because he had resigned).

First instance: Morgan J quashed the appointment of Mr Burrows (judgment at first instance). Court of Appeal (Northern Ireland): Secretary of State's appeal allowed by majority (Kerr LCJ and Campbell LJ), Nicholson LJ dissenting — reported [2006] NICA 28 (see also [2007] NI 12). House of Lords: appeal allowed and Morgan J's order reinstated, [2008] UKHL 4.