Court of Appeal in Northern Ireland Decisions

McConnell, Re Application for Judicial Review [1999] NICA 9 (24 November 1999)

CARE3108

IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND _____ IN THE MATTER OF AN APPLICATION BY JOSEPH McCONNELL FOR JUDICIAL REVIEW _____

CARSWELL LCJ

The application before us is for leave to amend the appellant's statement of case (and consequentially his notice of motion) by adding the following:

(a) to the relief sought in paragraph 2 a declaration that the determination of the Parades Commission made on 28 June 1999 was unlawful, null and void;

(b) to the grounds for claiming relief a further paragraph (h):

"the Parades Commission misdirected itself in treating the Long March Committee as if it were either equivalent to or inextricably bound up with the Orange Order and that it had the same policies as the Orange Order and as if the march in question was an Orange Order March whereas the Long March Committee was an independent group which included members who were not members of the Orange Order."

If the statement of case is amended to add the declaratory relief sought the notice of motion should also be amended by making a similar addition. Counsel for the respondent Commission did not object to the proposed amendment of the grounds for claiming relief. He did, however, oppose the addition of a claim for a declaration, on the basis that it was now impossible for the appellant to obtain orders for certiorari or mandamus and it was inappropriate for him to seek declaratory relief, since it would not serve a sufficiently useful purpose to grant it at this stage.

The appeal itself is brought against the dismissal by Kerr J on 2 July 1999 of an application for judicial review of a decision made by the Parades Commission on 28 June 1999, whereby it imposed conditions on the appellant and on all participants in a public procession organised by the Long March Committee, which took place in Lurgan on 3 July 1999. The event comprised a series of processions taking place in consecutive locations over an eleven-day period, starting in Londonderry on Thursday 24 June and finishing in Portadown on Sunday 4 July 1999. It was described by the Commission in its Preliminary View in the following terms:

"This parade has been organised by the `Long March Committee' who have described it as a `Civil Rights' parade. It is intended that the march will take place over an eleven day period and will pass through Limavady, Coleraine, Ballymoney, Cloughmills, Ballymena, Antrim, Glenavy, Lisburn and Lurgan, arriving in Portadown on 4 July. It is proposed that between 100 and 5,000 persons will participate. The notice application states that there will be no bands, and that no uniforms or regalia will be worn. We are advised that, at a meeting between the organisers and the RUC, a specific assurance was given to the police that, other than a single civil rights banner, no flags, or regalia will be carried or worn."

The organisers gave due notice to the RUC of their proposal, in accordance with the requirements of section 6 of the Public Processions (Northern Ireland) Act 1998 (the 1998 Act). The Commission issued a separate decision for each day of the Long March. The impugned decision refers only to 3 July 1999, when the procession was due to move through the town of Lurgan and from there to Portadown. By that decision the Commission required the procession to follow a different route through Lurgan from that notified in the proposal. The appellant in these proceedings challenged the validity of the decision, on the ground that the Commission had not followed the procedure prescribed by the 1998 Act and the Procedural Rules of the Commission. On 2 July 1999 he initiated an application for judicial review of the decision. Leave to apply was given that day by Kerr J and he heard the substantive application on the same day. At the conclusion of the argument he dismissed the appeal in a brief extempore judgment. The procession took place on 3 July via the route specified in the Commission's decision.

By notice dated 17 August 1999 the appellant appealed to this court against the dismissal of his application. When the appeal came into the list for the purpose of fixing a date we raised the issue whether there was substance in the appeal, since the parade had been held. Mr Lavery QC for the appellant indicated that although he could no longer ask for remedies by way of certiorari or mandamus, which the appellant had originally sought, he wished to obtain a declaration that the Commission's determination was null and void, on the ground that it had not followed the terms of the 1998 Act and its Procedural Rules. The appellant accordingly issued the summons now before us, seeking leave to amend his notice of appeal in the respects which we have set out.

Section 2(1)(b) of the 1998 Act provides that it is the duty of the Commission –

"to promote and facilitate mediation as a means of resolving disputes concerning public processions".

Section 2(2) then provides:

"The Commission may in accordance with the following provisions of this Act -

(a) facilitate mediation between parties to particular disputes concerning proposed public processions and take such other steps as appear to the Commission to be appropriate for resolving such disputes;

(b) issue determinations in respect of particular proposed public processions."

In accordance with section 4(1) the Commission issued a set of procedural rules regulating the practice and procedure to be followed. Rule 3.1 provides for advertising its intention to take evidence about proposed processions and for receiving views from individuals, groups and organisations, including the Royal Ulster Constabulary. Under Rule 3.3 it may receive written evidence at any time up to ten working days ahead of the date on which the procession is due to take place.

Notice of intention to hold the procession was duly given on 25 May 1999, which satisfied the requirement of 28 days' notice prescribed by section 6 of the 1998 Act. On 8 and 9 June the Commission inserted advertisements in the press setting out the proposed route of the procession and inviting any person or organisation wishing to do so to contact it to give oral evidence or to furnish written submissions, which latter were to be received by 15 June. The RUC furnished its views to the Commission within the time stipulated, but other parties do not appear to have done so. On 17 June the Commission published its preliminary views, in accordance with the procedure laid down in Rule 4.1. One of the matters of which Mr Lavery complained was that this document merely set out a number of general principles and did not specify the route which the Commission was minded to allow the procession to follow. There may be some substance in this complaint, but as preliminary views are no longer to be issued, in consequence of a change in the Procedural Rules, we do not propose to express an opinion on the validity of those issued in this case.

The Commission then received representations on 25 June from Lurgan traders. It also received a written submission from residents of Edward Street, Lurgan, along which the procession was scheduled to pass. The date of receipt of this submission was not given, but it appears to have been after the publication of the Commission's preliminary views. No representations were made by the applicant or any person or body connected with the organisation of the Long March.

The Commission did not take any further steps to ascertain the views of the organisers, but proceeded to issue its determination on 28 June, by which it prohibited the procession from entering part of the notified route, including Edward Street, and re-routed it by a more circuitous route to avoid a nationalist area of Lurgan. On 2 July the applicant applied for judicial review of the Commission's determination, and on the same day Kerr J heard the application and dismissed it in a brief oral judgment. The main ground upon which the applicant relied at the hearing before Kerr J, and which he wished to advance upon appeal, was that the Commission was under a duty under the 1998 Act to take active steps to promote mediation between the organisers and the objectors and to act pro-actively to solicit the views of each and to engage the organisers in discussions about possible ways to overcome objections put forward and allay the objectors' concerns, with a view to negotiating or brokering an agreement. The judge rejected that submission, pointing to the contrast between the affirmative duty laid upon the Commission by section 2(1) of the 1998 Act and the discretion conferred upon it by section 2(2). He also observed that the local objections did not crystallise until a very late stage, on Friday 25 June, while the Commission was obliged to issue its determination on Monday 28 June, so that to convey these objections to the organisers of the Long March (who in any event must have been aware of the potential for controversy of the Lurgan stage of the procession) and arrange meetings or receive further representations would have imposed an impossible logistical burden on the Commission.

The court has power on an application for judicial review to grant a declaration, pursuant to section 18(1)(a) of the Judicature (Northern Ireland) Act 1978. Section 23 makes specific provision for declarations to be made by the High court, in the following terms:

"(1) No action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby.

(2) The High Court may make binding declarations of right in any action or other proceeding whether or nor any consequential relief is or could be claimed therein.

(3) Notwithstanding that the events on which a right depends may not have occurred, the High Court may in its discretion make a binding declaration of right if it is satisfied that -

(a) the question for decision involves a point of general public importance or that it would in the circumstances be unjust or inconvenient to withhold the declaration; and

(b) the interests of persons not parties to the proceedings would not be unjustly prejudiced by the declaration."

Section 23(3) does not apply in terms where the events have occurred and are over and done with, but the same principles may be regarded as apposite in determining whether it is appropriate to give a declaration in a case of the present type. It was submitted on behalf of the appellant that notwithstanding the fact that the procession had been held some time ago and the ruling of the court could not affect the organisation of that procession, it was still a matter of public importance to define the powers and duties of the Commission, which would be material when further processions were organised in the future.

In matters relating to private law the courts will as a rule decline to hear them where there is not a matter in actual controversy which requires to be decided as a living issue: see Sun Life Assurance Co of Canada v Jervis [1944] AC 111, 113-4, per Viscount Simon LC. As Lord Bridge said in Ainsbury v Millington [1987] 1 All ER 929 at 930-1:

"It has always been a fundamental feature of our judicial system that the courts decide disputes between the parties before them; they do not pronounce on abstract questions of law when there is no dispute to be resolved."

In R v Home Secretary, ex parte Salem [1999] 1 AC 456, however, the House of Lords accepted, approving R v Board of Visitors of Dartmoor Prison, ex parte Smith [1987] QB 106, that in appropriate cases involving questions of public law the court should be prepared to pronounce upon questions of general public interest even where the party who initiated the proceedings no longer has a direct interest in the proceedings – in Ex parte Smith because the prisoner who brought the challenge was no longer at risk of disciplinary proceedings. Lord Slynn confined the discretion to pronounce on such cases with some care at page 457:

"The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future."

It is not the function of the courts to give advisory opinions to public bodies, but if it appeared that the same situation was likely to recur frequently and the body concerned had acted incorrectly they might be prepared to make a declaration, to give guidance which would prevent the body from acting unlawfully and avoid the need for further litigation in the future. The Commission is likely in the ordinary course of events to have to rule on other processions proposing to pass through areas whose residents will object to their presence. If it appeared from the evidence before us that there was a substantial possibility that it would then act in a way which was clearly outside its powers or contrary to its prescribed procedures, we might be disposed to make a declaration to that effect. We do not consider, however, that that is the case. We are reluctant to make any definite pronouncement on the legality of the Commission's actions or procedures, but we are not persuaded from the arguments placed before us on the hearing of the summons that there is a prima facie case that it acted in such a way. We therefore do not think that there is a sufficiently clear case to give the appellant leave to seek a declaration and we shall refuse his application.

IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND _____ IN THE MATTER OF AN APPLICATION BY JOSEPH McCONNELL FOR JUDICIAL REVIEW _____

JUDGMENT

OF

CARSWELL LCJ

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