Brun, Re Application for Judicial Review [2001] NIQB 3 (30 January 2001)
Neutral Citation no. [2001] NIQB 3
Ref:
KERF3332
Judgment: approved by the Court for handing down
Delivered:
30.01.2001
(subject to editorial corrections)
Introduction
By these proceedings, Bairbre de Brun and Martin McGuinness, Ministers of the Executive Committee of the Northern Ireland Assembly, seek judicial review of the decision of David Trimble, the First Minister, not to nominate them for meetings of the North-South Ministerial Council.
Background
The Agreement reached in the multi-party negotiations in April 1998 (known as the Belfast Agreement) provided for the establishment of a North-South Ministerial Council “to bring together those with executive responsibilities in Northern Ireland and the Irish Government, to develop consultation, co-operation and action within the island of Ireland – including through implementation on an all-island and cross-border basis – on matters of mutual interest within the competence of the Administrations, North and South”.
By virtue of section 52(1) of the Northern Ireland Act 1998 the First Minister and the deputy First Minister are required to make nominations to the North-South Ministerial Council. Currently, the Rt Hon David Trimble MP is the First Minister. Seamus Mallon MP is the deputy First Minister. Bairbre de Brun is the Minister for Health, Social Services and Public Safety and Martin McGuinness is the Minister for Education. Both Ms de Brun and Mr McGuinness are members of the political party, Sinn Fein.
On 11 September 2000 Mrs Anne Birch of the Executive Committee Secretariat wrote to the Private Secretaries of the First Minister and the deputy First Minister, notifying them of a series of sectoral meetings of the North-South Ministerial Council. She asked for nominations of Ministers for these meetings. Nominations for all the meetings were agreed between the First Minister and the deputy First Minister and on 25 September 2000 Mrs Birch was informed of that and asked to furnish formal nomination papers in due course; these are required for the purposes of section 52(5) of the 1998 Act which obliges the First Minister and the deputy First Minister to inform the Assembly and the Executive Committee of the date of the North-South Council meeting, the agenda and the identity of those nominated.
Ms de Brun was among those whose nomination had been agreed. She was due to attend a sectoral meeting of the Council on 3 November 2000. On 24 October 2000 Mrs Birch sent nomination papers for this meeting to the offices of the First Minister and the deputy First Minister. Mr Mallon signed the nomination paper but Mr Trimble declined to sign it.
Mr McGuinness was nominated by the deputy First Minister to attend a meeting of the Council on 24 November 2000. Again the First Minister refused to nominate Mr McGuinness. On 2 November 2000 Mr Trimble’s Private Secretary wrote to Mrs Birch explaining his position. She said: –
“Mr Trimble has asked me to point out that he remains ready to make valid nominations to NSMC sectoral meetings although he declines, for the moment, to nominate Mr McGuinness and Ms de Brun”.
The reason that Mr Trimble refused to nominate Mr McGuinness and Ms de Brun was explained in affidavits filed on his behalf in these proceedings. Therein it is stated that the First Minister was of the view that “such an approach will be likely to persuade Sinn Fein to use any influence it may have to secure decommissioning of paramilitary arms in accordance with the Belfast Agreement”.
The judicial review application
On behalf of Ms de Brun, Mr Treacy QC argued that the refusal of the First Minister to nominate her for the sectoral meeting of the Council constituted a breach of the mandatory duty imposed on him by section 52(1) of the 1998 Act. It was also submitted that the decision of the First Minister had been taken for a purpose which was collateral to the permitted purposes of section 52 and was unlawful on that account. In particular, Mr Treacy argued, the decision not to nominate Ms de Brun was taken to fulfil a resolution of the Ulster Unionist Council made on 28 October 2000 that Sinn Fein Ministers should not be nominated to the North-South Ministerial Council “in view of the failure of the IRA to re-engage with the Independent International Commission on Decommissioning”. The decision of the First Minister “to implement the policy of the Ulster Unionist Council” was based on a consideration which was wholly irrelevant to the duty that he was required to perform under section 52 (1) of the Act, Mr Treacy argued.
Mr Treacy also referred to section 16 (4) (a) of the 1998 Act which provides that the First Minister and the deputy First Minister “shall not take up office until each of them has affirmed the terms of the pledge of office”. The pledge of office contains a number of undertakings, the following of which, Mr Treacy submitted, had been breached by Mr Trimble by his refusal to nominate the Sinn Fein Ministers: –
“(a) to discharge in good faith all the duties of office;
…
(c) to serve all the people of Northern Ireland equally, and to act in accordance with the general obligations on government to promote equality and prevent discrimination;
…
(g) to comply with the Ministerial Code of Conduct”
The Ministerial Code of Conduct here referred to is that which is set out in Schedule 4 to the 1998 Act. Mr Treacy also drew attention to the Ministerial Code that the Executive had agreed and which dealt with the mechanism for the appointment of Ministers. He claimed that Mr Trimble had also failed to comply with Clause 5.1 of that Code. This provides that the First Minister and the deputy First Minister “will normally nominate each Minister or junior Minister with executive responsibility in the areas to be considered at the [sectoral] meeting”. Mr Treacy argued that this provision created a substantive legitimate expectation that the applicants would be nominated for the relevant sectoral meetings.
Finally, Mr Treacy contended that the decision not to nominate Sinn Fein ministers was in breach of section 24(1)(c) of the 1998 Act which provides that a Minister has no power to do any act which discriminates against a person or class of person on the ground of religious belief or political opinion.
For Mr McGuinness, Mr Michael Lavery QC argued that the office of First Minister and deputy First Minister existed independently of the holders of those positions. The requirement that they act jointly confirmed the “corporate or quasi-corporate” nature of the office. If either the First Minister or the deputy First Minister refused to participate in any of their joint responsibilities, he must be taken to have ceded his power to discharge those functions to the other.
For the First Minister Mr Morgan QC drew attention to the various provisions of the 1998 Act which required the First Minister and the deputy First Minister to act jointly. He pointed out that the Act made no provision for the resolution of disputes between the First Minister and the Deputy First Minister as to the discharge of those functions. The omission of such a provision was deliberate, he suggested. It must have been intended that, in the absence of a mechanism to resolve such disputes, the joint powers and obligations arising under the Act could not be exercised where there was no agreement. This approach reflected the intention of Parliament that disputes about the exercise of powers and the discharge of duties under the Act were to be resolved by political dialogue, Mr Morgan argued. Furthermore the structure of the Act built in a series of checks and balances that were designed to promote political agreement on contentious issues such as these, he suggested. He submitted that, in cases of dispute, the duty imposed by section 52 was to be fulfilled by recourse to these political tools rather than by judicial intervention.
In any event, Mr Morgan claimed, the requirement under section 52 was that the First Minister and the deputy First Minister should jointly make nominations to the North-South Ministerial Council to ensure such cross community participation in the Council as is required by the Belfast Agreement. The First Minister has been and remains prepared to nominate a minister who would fulfil this requirement, Mr Morgan said. The Act did not require that a particular minister be nominated. Mr Trimble was not in default of his obligations under the Act, therefore. On the same basis, Mr Morgan suggested, the first Minister was not in breach of the Ministerial Code contained in Schedule 4. He also submitted that the Ministerial Code agreed by the Executive required no more of Mr Trimble than that he have regard to it in deciding which Minister to nominate. There was no evidence, he said, that Mr Trimble had not taken this into account.
Finally, it was submitted for the First Minister that the claim of discrimination on the ground of political opinion was misconceived. He had been prepared to nominate Sinn Fein ministers in the past. His stated intention in refusing to nominate them on this occasion was in order to persuade them to honour their obligations under the Belfast Agreement. This did not discriminate against them on the grounds of political opinion.
For the Deputy First Minister, Mr Smith QC submitted that the First Minister’s reason for refusing to nominate the applicants lay outside the scope of any legitimate discretion conferred on him by section 52 (1). The extent of the discretion available to the First Minister was that he take action in order to fulfil the objectives of section 52. It was not open to the First Minister to decide to use his powers under that provision to further a political aim which was quite extraneous to that provided for in section 52.
Mr Smith also referred to section 52 (2) of the 1998 Act. This provides that it is a ministerial responsibility of the nominated Minister to “participate in the Council concerned in such meetings or activities as are specified in the nomination”. Section 52 (9) requires that “participate” be construed in relation to the North-South Ministerial Council, in accordance with paragraphs 5 and 6 of Strand Two of the Belfast Agreement. Paragraph 3 (ii) of Strand Two provides for participation in sectoral meetings by the appropriate Minister. These provisions contemplate, Mr Smith suggested, that the Ministers with responsibility for the areas to be considered by the Council should be nominated.
The Belfast Agreement
Strand Two of the Belfast Agreement dealt with the North-South Ministerial Council. Paragraph 2 of Strand Two provided that the First Minister, the deputy First Minister “and any relevant Ministers” should represent Northern Ireland. It did not otherwise specify how the Ministers should be chosen but it did provide that if a holder of “a relevant post” refused to participate normally in the Council, the First Minister and the deputy First Minister should be able to make alternative arrangements.
Paragraph 3 (ii) of Strand Two dealt with sectoral meetings of the Council. It provided that “the appropriate Minister” should represent each side. Paragraph 5 provided that the Council should exchange information on matters of mutual interest, to attempt to reach agreement on the adoption of common policies and take decisions on policies for implementation in both jurisdictions. Paragraph 6 required each side to be in a position to take decisions in the Council within the defined authority of those attending while remaining accountable to their elected bodies. In my view, these provisions clearly contemplated that those Ministers who had responsibility for the matters to be discussed at the sectoral meetings would normally be nominated.
Paragraph 13 of Strand Two provided: –
“It is understood that the North-South Ministerial Council and the Northern Ireland Assembly are mutually interdependent and that one cannot successfully function without the other.”
It was contended for the applicants that this paragraph highlighted the significance of the duty imposed on the First Minister by section 52. Mr Treacy suggested that, by refusing to nominate the Ministers, Mr Trimble undermined the very existence of the Assembly itself.
Section 7 of the Agreement dealt with Decommissioning of Weapons. Paragraph 3 of this section provided: –
“All participants … reaffirm their commitment to the total disarmament of all paramilitary organisations. They also confirm their intention to continue to work constructively and in good faith with the Independent Commission, and to use any influence they may have, to achieve the decommissioning of all paramilitary arms within two years following endorsements in referendums North and South of the agreement and in the context of the implementation of the overall settlement”.
The referendums endorsed the Agreement. The participants are therefore committed to using their influence to bring about the decommissioning of all paramilitary weapons.
The legislative framework
Section 52 (1) (a) of the 1998 Act provides: –
“The First Minister and the deputy First Minister acting jointly shall make such nomination of Ministers and junior Ministers (including where appropriate alternative nominations) as they consider necessary to ensure-
(a) such cross-community participation in the North-South Ministerial Council as is required by the Belfast Agreement”
Strand Two of the Belfast Agreement does not itself contain any explicit requirement for cross community participation in the Council and one must therefore look elsewhere to ascertain what is meant by the expression. Strand One (which deals with Democratic Institutions in Northern Ireland) provided in paragraph 5 that there would be safeguards to ensure that all sections of the community could participate and work together in the operation of institutions of government. Paragraph 6 required that there should be a register of designation of members of the Assembly for the purposes of measuring cross-community support in Assembly votes. The designation of identity was to be nationalist, unionist or other. For the First Minister, Mr Morgan argued that, in effect, the cross-community dimension intended by section 52 (1) (a) was representation of the unionist and nationalist communities. No contrary submission was made and, although the provisions of Strand One cited above do not deal directly with the North-South Ministerial Council, I have concluded that this is what was intended. I am reinforced in that view by the provisions of paragraph 30 of Strand One. It provided: –
“Arrangements to represent the Assembly as a whole, at Summit level and in dealings with other in institutions … will be such as to ensure cross-community involvement”
It is to be noted that the nomination of Ministers under section 52 (1) must be made by the First Minister and the deputy First Minister “acting jointly“. Mr Lavery suggested that where either the First Minister or the deputy First Minister refused to nominate, the other could exercise the power. I do not accept that argument. The terms of the provision are explicit; the First Minister and the deputy First Minister must act jointly. Quite apart from this, the entire ethos of the 1998 Act is that there should be agreement on a cross community basis. This would be substantially compromised if either the First Minister or the deputy First Minister could act alone and without the agreement of the other. I am satisfied that both must agree on the appointment of a Minister for that appointment to be effective.
Section 52 (2) provides: –
“It shall be a Ministerial responsibility of a Minister or junior Minister nominated under subsection (1)(a) or (b) to participate in the Council concerned in such meetings or activities as are specified in the nomination.”
This provision reflects the recognition in the Belfast Agreement of the importance of the Council as an integral part of the constitutional changes brought about by the Agreement and the Council’s position as a component of the government of Northern Ireland, interdependent with the Assembly. As we shall see below, the duty to participate has a particular connotation in relation to the business of the Council.
Section 52 (4) provides: –
“A Minister may in writing authorise a Minister or junior Minister who has been nominated under subsection (1) (a) or (b) to enter into agreements or arrangements in respect of matters for which he is responsible.”
In my opinion, paragraphs 5 and 6 of Strand Two of the Agreement contemplated the participation in sectoral meetings of the Minister with responsibility for the matters under discussion at those meetings and that the Minister should have authority to reach agreement on those matters. It appears to me that this subsection operates on the same assumption. In general the Minister with responsibility for the matters to be discussed should attend the relevant sectoral meeting. Where that is not feasible, he should provide the necessary authorisation to his substitute.
Section 52 (6) requires a Minister who has participated in a meeting of the Council to make a report to the Executive Committee and the Assembly as soon as reasonably practicable after the meeting. This provision reinforces the view that the Minister who will normally attend the meeting should be the Minister with responsibility for the matters to be discussed.
Section 52 (9) (a) provides: –
“In this section “participate” shall be construed-
(a) in relation to the North-South Ministerial Council, in accordance with paragraphs 5 and 6 of Strand Two of the Belfast Agreement”
As already observed, paragraph 5 provided that the Council should exchange information, attempt to reach agreement on the adoption of common policies and take decisions on policies while paragraph 6 required each side to be in a position to take decisions in the Council. Again, therefore, this subsection is indicative of the intention of the legislature that those with Ministerial responsibility for the matters to be discussed should normally attend sectoral meetings.
The Ministerial Codes
The statutory Code
The Code contained in Schedule 4 to the Act is in the following terms: –
“CODE OF CONDUCT
Ministers must at all times:
observe the highest standards of propriety and regularity involving impartiality, integrity and objectivity in relationship to the stewardship of public funds;
be accountable to users of services, the community and, through the Assembly, for the activities within their responsibilities, their stewardship of public funds and the extent to which key performance targets and objectives have been met;
ensure all reasonable requests for information from the Assembly, users of services and individual citizens are complied with; and that Departments and their staff conduct their dealings with the public in an open and responsible way;
follow the seven principles of public life as set out by the Committee on Standards in Public Life;
comply with this code and with the rules relating to the use of public funds;
operate in a way conducive to promoting good community relations and equality of treatment;
not use information gained in the course of their service for personal gain, nor seek to use the opportunity of public service to promote their private interests;
ensure they comply with any rules on the acceptance of gifts and hospitality that might be offered;
declare any personal or business interests which may conflict with their responsibilities. The Assembly will retain a Register of Interests. Individuals must ensure that any direct or indirect pecuniary interests which members of the public might reasonably think could influence their judgment are listed in the Register of Interests.”
In my opinion, none of the undertakings contained in the Code of Conduct is engaged in the present case. Mr Treacy argued that the decision did not “operate in a way conducive to promoting good community relations and equality of treatment” but this is a matter of political judgment which, I am satisfied, lies well outside the area of justiciability.
The Code agreed by the Executive
After the Executive was formed the Assembly approved a Ministerial Code. Paragraph 5.1 provides: –
“In accordance with section 52 (1) of the Northern Ireland Act 1998 (the Act), the First Minister and the deputy First Minister acting jointly must make such nominations of Ministers and junior Ministers (including alternative nominations where appropriate) as they consider necessary to ensure such cross-community participation in the North-South Ministerial Council and the British-Irish Council as is required by the Belfast Agreement. For each meeting, the First Minister and the deputy first Minister will normally nominate each Minister or junior Minister with executive responsibility in the areas to be considered at the meeting. If such a Minister is not nominated, an alternative nomination will be made. The First Minister and the deputy First Minister will also nominate such other Ministers or junior Ministers as they consider necessary to ensure such cross-community participation as is required by the Belfast Agreement.”
The applicants argued that this part of the Code imposed an obligation on the First Minister to nominate them for the particular sectoral meetings that involved discussion of matters for which they had executive responsibility. Alternatively, it was suggested that the applicants had a substantive legitimate expectation that they would be appointed.
I do not accept either proposition. As to the first, the words of the paragraph are plain. The Minister with executive responsibility is normally to be nominated. It is clear that there may be a departure from the norm. There is nothing in the paragraph which compels the First Minister and the deputy First Minister to appoint the Minister with executive responsibility for the areas to be considered on every occasion. On the contrary it is clearly recognised that exceptions to this normal position may occur. Both the First Minister and the deputy First Minister disputed the claim that the applicants enjoyed a substantive legitimate expectation that they would be appointed. Both argued that the terms of paragraph 5.1 did no more than require the First Minister to take it into account before deciding whether to make the appointment. I accept this submission. In R v North and East Devon Health Authority ex parte Coughlan [1999] QB Lord Woolf MR, discussing the various types of legitimate expectation that might arise from a previously given promise or established practice, said: –
“There are at least three possible outcomes: (a) The court may decide that the public authority is only required to bear in mind its previous policy or other representation giving it the weight it thinks right, but no more before deciding to change course. Here the court is confined to reviewing the decision on Wednesburygrounds. This has been held to be the effect of changes of policy in cases involving the early release of prisoners (see In re Findlay [1985] AC 318; R v Secretary of State for the Home Department ex parte Hargreaves [1997] 1 WLR 906. (b) On the other hand the court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. Here it is uncontentious that the court will require the opportunity for consultation to be given unless there is an overriding reason to resile from it (see Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629) in which case the court will judge the adequacy of the reason advanced for the change of policy, taking into account what fairness requires. (c) Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power.”
In order to decide into which, if any, of these categories a particular case falls, the circumstances in which the promise was made or the practice came into existence must be carefully examined. If the undertaking was given that a certain course would normally be followed, clearly it could not be asserted that such a course must be taken in order that those who expected that it would be should not be disappointed. The most that could be demanded of the decision-maker in those circumstances is that he should have regard to what was stated to be the normal course and to have some reason for departing from it. There is nothing in the present case to indicate that the First Minister did not have regard to the undertaking contained in the Code and he has explained why he decided not to nominate the applicants. I am satisfied that no substantive legitimate expectation arises here, therefore.
The duty under section 52 (1)
Drawing attention to what they have described as the mandatory nature of the obligation arising under section 52 (1) of the 1998 Act, the applicants have argued that the First Minister was under a duty to nominate them to attend the sectoral meetings of the North-South Council. They suggested that they were the only Ministers who were equipped to deal with the matters to be discussed at the relevant sectoral meetings. I accept the argument of Mr Morgan, however, that section 52 (1) does not impose on either the First Minister or the deputy First Minister the duty to nominate a particular individual.
The duty which arises under the sub-section has two aspects. The First Minister and the deputy First Minister must act jointly. This clearly implies that they should conscientiously seek to agree on nominations for the Council. Secondly, they must make nominations so as to ensure cross-community participation in the Council as required by the Belfast Agreement. Although Strand Two of the Agreement clearly contemplated – and other subsections of section 52 indicated the intention of the legislature – that the Ministers with executive responsibility for the matters to be discussed at sectoral meetings should normally be nominated to attend those meetings, nothing in section 52 (1) requires of the First Minister and the deputy First Minister that they appoint such Ministers on every occasion. Provided the Ministers they nominate satisfy the requirement of cross-community representation and provided they have sought conscientiously to agree on the nomination, the First Minister and the deputy First Minister enjoy a discretion as to whom they should nominate. That discretion should be exercised in a manner that is consonant with the purpose of section 52, however. I shall consider this further below.
The discretion
The effect of the applicants’ argument was that, where the Minister with executive responsibility for the area to be discussed at a sectoral meeting satisfied the requirement of cross community representation, the First Minister and the deputy First Minister had no real discretion as to whom to nominate. In those circumstances, the applicants claimed, the nominee must be the Minister who can contribute most effectively to the business to be discussed at the meeting.
The First Minister’s claim was that he enjoyed a wide discretion as to whom to nominate. While he was obliged to observe the requirement that the nominees be representative of the community as a whole, he was otherwise unfettered as to who should be chosen. In particular, he could decide not to nominate a person whom he considered to be the most suitable for the position in order to induce that person or the party to which he belonged to take a different political path from that which it had embarked upon. It was suggested that the scope of the discretion available under section 52 must be considered in light of the overall purpose of the legislation. In this context Mr Morgan referred to the Preamble to the Act which is in the following terms: –
“An Act to make new provision for the government of Northern Ireland for the purpose of implementing the agreement reached at multi-party talks on Northern Ireland set out in Command Paper 3883.”
Mr Morgan suggested that, taking into account the overall purpose of the Act as disclosed by the Preamble, section 52 invested the First Minister with discretion to discharge the duty to nominate in a way that would promote the full implementation of all aspects of the Agreement, including the decommissioning of weapons. It could not be the case, he claimed, that the First Minister would be obliged to nominate someone who he knew to be actively working against the implementation of the Agreement, just because that person was the Minister with executive responsibility for the matters to be discussed at a North-South Council meeting.
In my opinion, the discretion available to the nominating Ministers falls somewhere between the two positions postulated by the applicants on the one hand and the First Minister on the other. The nature of a discretion that arises under statute must be determined primarily by the statutory provision itself. The principal purpose of the nominating duty under section 52 (1) is to achieve cross-community representation. But it is clear that even where a purpose is clearly specified, the person who is charged with the task of achieving the statutory purpose may undertake tasks which are “reasonably incidental” to the fulfilment of that purpose – see De Smith Woolf and Jowell, Judicial Review of Administrative Action, Fifth Edition paragraph 6-066.
I accept that the First Minister could not be required to nominate someone whom he regarded as unsuitable in the sense that that person was working against the implementation of the Agreement. Indeed, it appears to me that it would be open to the First Minister to conclude that a potential nominee was unsuitable for nomination because he had not made appropriate efforts to implement the Agreement.
I do not consider, however, that it would be open to the First Minister to refuse to nominate a Minister who was in every way suitable to attend the sectoral meeting simply because he wished to induce that Minister – or the political party to which he belonged – to act in a particular way. The First Minister’s primary duty under the section is to nominate Ministers who will fulfil the necessary requirement of cross-community participation. In my opinion, he must also have regard to the need to nominate a Minister who will be able to participate in a meaningful way in the business of the Council. It is not open to the first Minister, in my opinion, to disregard the clear intention of Parliament that the Ministers nominated to attend sectoral meetings should be in a position to contribute to the work of the Council. Provided he has regard to this, however, and seeks to observe the obligation to nominate Ministers on a cross-community basis, he enjoys a discretion as to whom to nominate.
That discretion would allow the First Minister to decide not to nominate a particular Minister if he considered that that Minister was seeking to undermine the Agreement. Such a decision, taken in a political context should be immune from judicial review. The subjective nature of the decision and the political considerations which inform it place it firmly in the category of soft-edged review where it is inappropriate for the courts to intervene – see Re Williamson’s Application [2000] NI 294. In those circumstances, however, the First Minister would be exercising his discretion in assessing the suitability of the prospective nominee to contribute to the work of the North-South Ministerial Council. Given the interdependence of the Council and the Assembly within the terms of the Belfast Agreement, the conclusion that a Minister who was undermining the Agreement was not suitable to represent the Assembly on the Council would be beyond challenge, not only because of its rationality but also because it would have been taken to fulfil the objectives of section 52. By contrast, a decision not to nominate in order to bring pressure on a political opponent does not involve any assessment of his suitability for the nomination nor does it seek to fulfil the purpose of section 52.
Collateral purpose
Two purposes for the action taken by the First Minister were identified by the applicants. Both purposes were said to be collateral or extraneous to the permitted purposes of section 52 (1). The deputy First Minister agreed that the second of these had operated to influence the First Minister’s decision. The first was suggested by the applicants alone, that purpose was, the applicants claimed, to give effect to the resolution of the Ulster Unionist Council of 28 October 2000. The applicants submitted that this was not a permitted purpose.
It is clear, however, from the newspaper reports produced in evidence by the applicants that Mr Trimble, in refusing to nominate Sinn Fein Ministers, was not giving effect to a resolution of the Ulster Unionist Council. On the contrary, that Council had endorsed proposals made to it by Mr Trimble. On 26 October he had written to members of the Council informing them that he would outline a “response” to the Council designed “to increase pressure progressively on republicans and nationalists”. That response took the form of a refusal to nominate Sinn Fein members. Mr Trimble was not giving effect to the Ulster Unionist Council’s resolution, therefore. Rather, he was carrying forward his own policy which had, incidentally, been approved by the Ulster Unionist Council. I do not consider, therefore, that the First Minister can be said to have acted as he did in order to give effect to a resolution of the Ulster Unionist Council.
The applicants and the deputy First Minister claimed that Mr Trimble had refused to nominate the Sinn Fein Ministers because the IRA had failed to decommission their weapons. They claimed, therefore, that the refusal to nominate was motivated by a political purpose that fell outside the scope of section 52 (1).
As I have already observed, the First Minister, in affidavits filed on his behalf, has disclosed that he has determined “for the time being” not to nominate members of Sinn Fein for the sectoral meetings because he was “of the view that such an approach will be likely to persuade Sinn Fein to use any influence it may have to secure decommissioning of paramilitary arms in accordance with the Belfast Agreement”.
The First Minister has not claimed that the applicants are unsuited to be appointed to attend the sectoral meetings. He has not disputed that their appointment (together with other Ministers) would achieve the cross-community participation in the North-South Ministerial Council required by section 52 (1). The sole reason advanced by him for refusing to nominate the applicants is that he believed that this would persuade Sinn Fein to exert influence to secure the decommissioning of paramilitary arms. The issue which arises therefore is whether the First Minister may use his powers under section 52 (1) to seek to achieve this aim.
Self evidently, a decision not to nominate in order to bring pressure on a political opponent does not purport to achieve the objective of section 52. Mr Morgan did not claim that it did. He accepted that the purpose of the refusal to nominate was to exert pressure on Sinn Fein. Since this was to induce them to influence the IRA to decommission their weapons, it was warranted, he argued. This was because the Act was passed in order to give effect to the Agreement and decommissioning was an element of the Agreement.
This line of argument implicitly acknowledges that the reason for the refusal to nominate had nothing to do with the purpose of section 52. The reasons for the refusal to nominate are wholly extraneous to that section.
I do not accept that a decision taken under section 52 in order to promote an objective of the Agreement that is wholly unrelated to the purpose of that section can be upheld. It is true that a discretion exercised by a Minister as a consequence of a power conferred or a duty imposed by statute must be used “to promote the policy and objects of the Act” – Lord Reid in Padfield v Minister of Agriculture [1968] AC 997, 1030B. In the present case, however, the implementation of the Agreement has a number of aspects and no single theme emerges either from the Agreement or the Act itself. Indeed, in order to promote the objective espoused by Mr Trimble, (decommissioning of weapons) he has adopted a strategy that will at least inhibit – if not frustrate – another objective (effective North-South Council meetings). I have concluded, therefore, that the decision of the First Minister to refuse to nominate Ms de Brun and Mr McGuinness is for a purpose that is collateral to the purpose of section 52 and that it cannot be rescued by recourse to a separate objective of the Agreement that Mr Trimble hopes to secure. It is well settled that a decision taken for a collateral purpose will be amenable to judicial review – see, for instance, In Re Cook’s Application [1986] NI 242. The refusal of the First Minister to nominate Ms de Brun and Mr McGuinness must therefore be declared unlawful.
Section 24 (1) (c)
The applicants’ claim that the refusal of the First Minister to nominate them amounts to discrimination under section 24 (1) (c) of the Act can be dealt with shortly. I had occasion to deal with the question of discrimination on the ground of political opinion in Re Treacy and Macdonald’s Application [2000] NI 330, where I said: –
“In the field of discrimination, a different approach must be taken to the question of political opinion from that which is appropriate to deal with the immutable conditions of life such as race or gender. If it were otherwise, an unscrupulous person, claiming to be the victim of discrimination on the ground of political opinion, could adjust his professed belief in order to accuse the decision maker of inequality of treatment. In James v Eastleigh it was held that the test to be applied in gender based discrimination was whether the complainant would have been treated differently but for his sex. Significantly, however, the authors of Harvey on Industrial Relations, in commenting on the Jamescase, point out that it is wrong to assume that where the ‘but for’ test is satisfied, unlawful discrimination has been established (L/10 [41.02]). The applicant must show that the action was taken on the ground of sex. Thus, Mr James had to show that he obtained less favourable treatment because of his sex. He was able to do so readily because his pensionable age was greater than that of his wife – 65 as opposed to 60. The Borough Council knew that if they fixed the age for free admission at ‘pensionable age’ men were bound to be disadvantaged since they reached that stage later than women. The position is not so simple when one is dealing with political belief.
Any decision with political implications is virtually certain to be opposed by some members of the community and welcomed by others. Simply because such a decision is opposed does not mean that it discriminates against those individuals who are against it. It is impossible to cater for every brand of political opinion by anything other than the most bland political decisions.”
The fact that the First Minister took a decision that deprived the applicants of the opportunity to attend sectoral meetings does not, of itself, establish that he discriminated against them. As has been pointed out on behalf of the First Minister, he has been prepared to nominate Sinn Fein Ministers in the past. He has said – and there is no reason to doubt this – that his motivation in refusing to nominate the applicants is based on his hope that this will have the effect of persuading Sinn Fein to exert pressure on IRA to decommission its weapons. That stance does not betoken less favourable treatment of Sinn Fein on account of their political views; it represents an attempt to persuade them to follow a particular course.
Conclusions
I have concluded that the First Minister may not use his powers under section 52 of the 1998 Act to exert pressure on Sinn Fein in the manner that he has sought to do, since that is extraneous to the purpose of the section. I will therefore make a declaration that his refusal to nominate the applicants on the grounds stated by him is unlawful. In consequence, the First Minister will be required to perform his obligation under section 52. As I have already said, he must conscientiously seek to agree with the deputy First Minister nominations for the sectoral meetings which will meet the cross-community requirements of the section. It does not follow that he must nominate the applicants. He may exercise his discretion in the manner that I have set out above. He must have regard to the intention of the legislature and the provisions of the Agreement to the effect that, normally, the Minister with executive responsibility for the matters to be discussed at the meeting of the North-South Ministerial Council should be nominated but he is not bound to conclude that the applicants are the only possible nominees. In deciding upon the Ministers to be nominated, he must be guided by the requirements of the section and must focus upon the suitability of the candidate(s) rather than on any political objective (other than the fulfilment of the purpose of section 52) that he may wish to achieve. Subject to these constraints, he is at liberty to nominate Ministers who meet the requirements of section 52 and who are suitable to carry out the functions that are required of them in the Council.
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
