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

A minister acts unlawfully by appointing members to a public decision-making body where their conflicts of interest would prevent them from undertaking its central functions and would undermine public confidence in its impartiality. This principle applies although the body is not a court.

The decision must account for the appointees’ practical ability to participate in the body’s important work. An appointment is unreasonable where properly directed consideration of their affiliations, likely recusals and effect on the body’s credibility could lead to only one lawful conclusion.

The Secretary of State appointed two prominent loyalist activists to the Parades Commission for Northern Ireland. Both had close connections with organisations involved in contentious parades, particularly the proposed parade along the Garvaghy Road.

Morgan J quashed one appointment because the selection process had not considered targeting nationalist groups. The other appointee had resigned. A majority of the Court of Appeal allowed the Secretary of State’s appeal in [2006] NICA 28, [2007] NI 12, holding that targeting nationalist groups was not a mandatory consideration and that the appointments were not irrational.

The central issue before the House was whether the appointees’ conflicts of interest, their consequent inability to participate in contentious cases and the effect on the Commission’s perceived impartiality made the appointments unreasonable and unlawful.

1. Disposition. The House unanimously allowed the appeal and restored Morgan J’s order quashing Mr Burrows’s appointment. No order was made concerning Mr Mackay because he had resigned. Lord Bingham delivered the leading speech. Lord Rodger, Baroness Hale, Lord Carswell and Lord Brown agreed that the appointments were unreasonable and unlawful.

2. Nature and credibility of the Commission. Per Lord Bingham, although the Parades Commission was not a court, its mediation and determination functions could be performed satisfactorily only by a body accepted by the opposing parties as independent, objective and impartial. The legislature could not have intended an ordinary commissioner routinely to be disqualified from the Commission’s most difficult and important business.

3. Conflicts of interest. Per Lord Bingham, the appointees’ prominent and continuing involvement with loyalist organisations meant that no reasonable person could suppose that they would bring objective and impartial judgment to the Garvaghy Road dispute or similar contentious parades. The selection panel did not properly recognise or document that problem. Proper consideration would have shown that the appointees could not lawfully act as mediators or decision-makers in those cases and could perform little of the Commission’s central work.

4. Unreasonableness of the appointments. Per Lord Bingham, the decision was one that a reasonable Secretary of State could not have made if properly directed in law, aware of the relevant facts and attentive to the mandatory considerations. Lord Rodger and Baroness Hale emphasised that the Secretary of State had incorrectly proceeded on the basis that each appointee could perform all the functions of a commissioner.

5. Perceived bias. Per Lord Carswell, the fair-minded and informed observer would regard the appointees as committed in favour of loyalist parades. Their required recusals would exclude them from the Commission’s central work. The Secretary of State’s failure to address that consequence, together with the resulting damage to perceived impartiality, made the appointments unreasonable.

6. Targeting potential applicants. Lord Brown considered that the defect was appointing persons irredeemably conflicted, not the failure to target equally committed nationalist groups. Lord Carswell inclined to the view that even-handed targeting was not a freestanding legal obligation but found it unnecessary to decide the point. The House did not determine the additional discrimination argument under section 76 of the Northern Ireland Act 1998.

1. House of Lords: The appeal was allowed unanimously. Morgan J’s order quashing Mr Burrows’s appointment was restored. No order was made concerning Mr Mackay’s appointment because he had resigned: [2008] UKHL 4.
2. Court of Appeal in Northern Ireland: By a majority, Kerr LCJ and Campbell LJ allowed the Secretary of State’s appeal; Nicholson LJ dissented: [2006] NICA 28, [2007] NI 12.
3. High Court: Morgan J held the appointment process unlawful and quashed Mr Burrows’s appointment. He made no order concerning Mr Mackay, who had resigned. A citation is not stated in the judgment.