Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Court of Appeal in Northern Ireland Decisions
You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> Williamson, In the Matter of [2000] NICA 7 (6th April, 2000)
URL: http://www.bailii.org/nie/cases/NICA/2000/7.html
Cite as: [2000] NI 281, [2000] NICA 7, [2000] 1 BNIL 54
[New search] [Printable RTF version] [Help]
JISCBAILII_CASE_NI LEGAL SYSTEM
Williamson, In the Matter of [2000] NICA 7 (6th April, 2000)
1. On 23 October 1993 nine people, among whom were George and Gillian Williamson, were killed in an explosion caused by a bomb which had been deliberately planted in shop premises on Shankill Road, Belfast. One of the perpetrators of the crime, Sean Kelly, was subsequently convicted of the murder of those nine people and sentenced to imprisonment for life. On 28 July 1998 the Northern Ireland (Sentences) Act 1998 (the 1998 Act) became law. Under the terms of the 1998 Act Kelly is due to be released from prison on 28 July 2000, substantially earlier than he could have expected to be released were it not for the passing of that legislation. The appellant is the daughter of George and Gillian Williamson. She brought an application for judicial review of the decision of the then Secretary of State for Northern Ireland not to specify the Provisional Irish Republican Army (PIRA), of which Kelly is a supporter, under section 3(8) of the 1998 Act on the ground that it was not maintaining a complete and unequivocal ceasefire. If PIRA had been specified, the consequence would have been that Kelly and other supporters of that organisation would no longer have qualified for early release. The application was dismissed by Kerr J on 19 November 1999 and the appellant appealed to this court.
2. Under the provisions of the 1998 Act the Secretary of State appointed Sentence Review Commissioners, charged with the task of carrying out a review of the cases of persons serving qualifying sentences (scheduled offences within the meaning of the Northern Ireland (Emergency Provisions) Acts which were committed before 10 April 1998, the date of the multi-party Belfast Agreement). Eligibility for release is governed by section 3:
3. The appellant claims that the activities of PIRA in July 1999 were such that it could not be said that it was maintaining a complete and unequivocal ceasefire, and that the Secretary of State was bound to specify that organisation and halt the release of its supporters.
4. On 30 July 1998 the Secretary of State Dr Mowlam made the first of a number of orders specifying terrorist organisations under section 3(8). The Continuity IRA, the Loyalist Volunteer Force, the Irish National Liberation Army and the "Real" IRA were so specified, then the LVF was removed from the list in November 1998. In April 1999 the Orange Volunteers and the Red Hand Defenders were specified.
5. On 30 July 1999 the murder took place of one Charles Bennett. The Secretary of State was satisfied from information received by her that PIRA was involved in that murder. On 26 and 27 July 1999 several people were arrested in connection with the smuggling of arms into Northern Ireland from the United States. Again the information given to the Secretary of State caused her to conclude that PIRA was involved. She then instituted a review of the activities of PIRA with a view to deciding whether to specify that organisation. On 26 August 1999 she decided not to specify PIRA, and it is that decision the validity of which is attacked in the present proceedings.
6. On 26 August 1999 the Secretary of State issued a statement explaining her decision. In the course of that statement she said:
7. On that basis, although the situation in relation to the IRA is deeply worrying, I do not believe that there is a sufficient basis to conclude that the IRA ceasefire has broken down. Nor do I believe that it is disintegrating, or that these recent events represent a decision by the organisation to return to violence. I have therefore decided not to use my powers under the Sentences Act at this time."
8. The Secretary of State was interviewed on Sky News the same day about her decision. When asked whether she accepted that there had been breaches of the ceasefire she said:
9. We shall return later in our judgment to the conclusions which should be drawn from these remarks. She went on to say:
10. She repeated the phrase several times in the course of the interview that the ceasefire had not broken down. She also said repeatedly that she had made her judgment on the basis of the security information and advice and nothing else. Finally, she said in answer to a question about the definition of a ceasefire:
11. An affidavit was sworn on behalf of the respondent by Mr DJ Watkins, Senior Director (Belfast) and Director Policing and Security in the Northern Ireland Office. It was disputed in the court below whether his affidavit was admissible evidence of the contents, but since he had been personally involved in the matters to which he deposed it was accepted on appeal, in line with the accepted practice in relation to evidence given by Ministers' close advisers, that it was admissible.
13. He also stated in paragraph 12 that the Secretary of State's references to a breakdown of the ceasefire were used by her as a "shorthand for the absence of a complete and unequivocal ceasefire within the meaning of the statute."
14. The critical provision in the 1998 Act for the purposes of this appeal is section 3(8). It states that the Secretary of State shall specify any organisation which he believes fulfils the conditions in paragraphs (a) and (b). Section 3(9) is again mandatory, in that he " shall in particular take into account" the four factors set out in that subsection. Its relationship to section 3(8) lies at the heart of this appeal, and we shall have to consider the arguments developed on each side on that issue.
15. It has to be borne in mind, however, that the extent of the minister's freedom of decision will vary according to the statutory context. It may be material whether the question is "a matter of pure judgment" or one which can be judged objectively: Wade & Forsyth, Administrative Law , 7 th ed, p 448. It is in this sense that the argument presented by the respondent's counsel is correct when he submitted that there is a degree of subjectivity in the decision under section 3(8) and that it cannot be reviewed as if that subsection read "has reasonable grounds to believe".
16. The more usual situation in which the court inquires into the grounds for a minister's belief is where he acts in pursuance of a power conferred upon him and the grounds for his belief are challenged. There appears to be no reason why the court should not have the same function to perform if the minister declines to act when he is obliged to do so on forming the requisite belief. If the facts are such that he must inescapably reach the conclusion for which the appellant contends, then it would seem that a minister's decision not to act in such circumstances would be reviewable: cf R v Chief Immigration Officer Lympne Airport, ex parte Amrik Singh [1969] 1 QB 353. It is all the more important, however, for the court in this type of case to bear in mind that it is not an appellate but a reviewing tribunal and to be slow to intervene in matters which Parliament has left to the minister's judgment.
17. It was not in dispute that PIRA comes within the definition in section 3(8)(a), and the issue which the Secretary of State had to consider centred round paragraph (b), whether the organisation was maintaining a complete and unequivocal ceasefire. The judge expressed the view at page 17 of his judgment that the word "ceasefire" must in this context connote a suspension of hostilities rather than a complete abstention from any form of violence. Mr Weatherup for the respondent was unwilling to accept the definition quite in this form. He submitted, we think correctly, that the term "ceasefire" in section 3 must be intended to mean something more than a mere temporary suspension of hostilities. We agree that it must have a connotation of permanence, for it is to be the condition on which prisoners who have been sentenced to long terms of imprisonment are to be released. One could hardly suppose that Parliament intended to allow this to occur if their organisation might then return to its objectives by violence. This is borne out by the terms of section 3(9)(a), which puts the emphasis on the use of only peaceful means to achieve the objectives of the organisation.
18. The usual function of a provision setting out factors which a decider must take into account is to qualify or canalise a discretionary power conferred upon him, so that he is not free to exercise his discretion at large but has to take into account a number of specific factors. We note that this was the format when the Bill was introduced: Clause 3(8) gave the Secretary of State power to specify organisations and Clause 3(9) set out the same four factors which he was required in particular to take into account. At some stage Clause 3(8) was amended to make it mandatory for the Secretary of State to specify an organisation if he believed that certain states of fact existed. Clause 3(9) was left unamended, and it is materially more difficult to operate the two provisions together now that section 3(8) contains a mandatory obligation. It is apparent, however, that section 3(9), especially by the use of the words "in particular", is intended to leave open a degree of discretion to the Secretary of State about the grounds on which he reaches his decision.
19. The organisations to which section 3 is directed are those concerned in terrorism or in promoting or encouraging it. "Terrorism" is defined in section 13 in terms familiar from other emergency legislation as "the use of violence for political ends", a term which includes "any use of violence for the purpose of putting the public or any section of the public in fear". That is what Parliament wants the organisations to give up, and we think that consideration of this objective assists one in construing the meaning of section 3(9). Paragraphs (a) and (b) of section 3(9) contain two features, the first positive and the second negative, which must be taken into account when considering whether the organisation is maintaining a complete and unequivocal ceasefire. Paragraph (c) is added to prevent evasion by working through another organisation. One might suppose that both (a) and (b) would ordinarily have to be satisfied before it could be said that the organisation was maintaining such a ceasefire. It is clear from the Parliamentary history, however, that they are not intended to be pre-conditions any breach of which would without more mean that the organisation was not maintaining the ceasefire. It must follow in our opinion that the Secretary of State cannot as a matter of law be obliged to specify an organisation if it has been in breach of either paragraph (a) or (b) in some respect, but must have an element of residual discretion whether to do so.
20. Mr Weir QC on behalf of the appellant challenged this conclusion. He submitted that whether or not section 3(9) is phrased in terms of taking matters into account, in reality if an organisation is concerned in murdering a man and in the importation of arms (activities which decisively trigger both elements in paragraph (b)), it is an inescapable conclusion that that organisation is not maintaining a complete and unequivocal ceasefire. This is a cogent and attractive argument, but if correct it would effectively deprive the Secretary of State of the degree of discretion entrusted to him by the terms of section 3(8) and (9). Parliament must in our view have contemplated that notwithstanding the existence of facts which amount to breaches of paragraph (a) or (b) of section 3(9), he may still have sufficient reason not to form the belief in section 3(8)(b) which would require him to specify the organisation.
21. It remains then to consider whether the Secretary of State did in the present case have such sufficient reason. Mr Weir submitted that on the evidence contained in the documentation before the court she did not have sufficient reason, and also contended that she had failed to apply the statutory test to the facts available to her.
22. He pointed out that in the Press statement issued on 26 August 1999 and at several places in her interview on Sky News on the same day the Secretary of State used the phrase that the IRA ceasefire "had not broken down". That was not, he submitted, the same thing as whether PIRA was "not maintaining a complete and unequivocal ceasefire", and it showed that the Secretary of State was applying the wrong test in reaching her decision. We agree, as Mr Weatherup accepted, that the two phrases are not identical in content, but it was submitted on her behalf that when referring to the ceasefire breaking down she was using that phrase as a convenient and colloquial piece of shorthand for the statutory phrase. She did say specifically in the Press statement that she arrived at her judgment in accordance with the legislation, taking account of all the factors specified in the Act, and Mr Watkins in his affidavit claims that she formed her belief by reference to the statutory test in section 3(8)(b). We accordingly accept that she did make her decision not to specify PIRA by reference to the correct test, notwithstanding a certain imprecision in her statements.
23. Mr Weir also pointed out that at an early stage in the Sky News interview the Secretary of State accepted in response to a question that there had been "breaches of the ceasefire". This, he submitted, was a definite acknowledgement that PIRA was not maintaining a complete and unequivocal ceasefire. When one looks at the record of the interview as a whole, however, it does not seem that the Secretary of State was acknowledging that. She said several times that the ceasefire had not broken down, and when a similar question was put to her about the IRA being in breach of the ceasefire she accepted that it had been involved in the murder and the gun procurement, but repeated her conclusion that it had not broken down. We conclude therefore that the Secretary of State did not intend to make a concession of the kind for which Mr Weir argued, and if she did appear to do so it was a verbal error.
24. It is then material to consider whether the Secretary of State had any material before her upon which she was entitled to reach any conclusion other than that PIRA was not maintaining a complete and unequivocal ceasefire. Mr Weir pointed to the phrase used by her at the conclusion of the Sky News interview, "my definition of the ceasefire is the four factors in the Sentences Act and I make a judgment in relation to that". He argued that if she was making her decision solely by reference to the matters set out in section 3(9) she must inescapably reach the conclusion that PIRA was not maintaining a complete and unequivocal ceasefire, for there were two clear infringements of paragraph (b), which pointed also to a breach of paragraph (a). When these were contravened the conclusion was inescapable that PIRA was no longer maintaining a ceasefire, unless there was something cogent to the contrary which could outweigh the effect of the factors in section 3(9). He contended that a careful analysis of paragraph 11 of Mr Watkins' affidavit showed that the Secretary of State did not have relevant material beyond the four factors set out in section 3(9) to take into consideration. A "systemic breakdown in the PIRA ceasefire" was not a proper or relevant test. Nor was the motive behind the involvement of PIRA in the murder and importation of guns of any relevance in determining if the ceasefire was being maintained.
25. In paragraph 8 of his affidavit, however, Mr Watkins stated the sources and nature of the information upon which the Secretary of State relied in reaching her decision. She received information from the RUC in relation to the murder and the arms smuggling, and from the Irish and US Governments relating to the latter. He then added the passage which we have quoted about –
26. It seems clear from this passage that the Secretary of State was not confined in her consideration of the issue to matters immediately material under the terms of section 3(9). In our opinion she was entitled to consider the matters set out in the latter part of paragraph 11 of Mr Watkins' affidavit. Even if there had been events which on their own appeared to point to a resumption of terrorist violence or an intention to do so – as the Bennett murder and the arms smuggling did – she was entitled to look at the security picture as a whole and make her judgment upon that. It was in our view legitimate for her to assess whether there had been a "systemic", or root and branch, breakdown in the ceasefire and to take into account whether the events in question were evidence of a co-ordinated return to violence or represented something less than that. To assess that she could properly attempt to fathom the intention behind the acts.
27. Having done that, it was for the Secretary of State to make her judgment whether the organisation could properly be regarded as maintaining a complete and unequivocal ceasefire, notwithstanding the serious nature of the events, or whether it must be said to have ceased to maintain such a ceasefire, which would have obliged her to specify it. She as the responsible minister, with access to wide sources of information and advice, was the person to make that judgment. As Kerr J observed at page 16 of his judgment, many of the factors to be considered require the deployment of political judgment as well as analytical skills.
28. We can answer in short compass the final question before us, whether the Secretary of State's decision was irrational, in the familiar Wednesbury sense that no sensible decider, directing himself to the issues to be considered, could have reached the conclusion which he did. It must follow from the principles which we have set out above that that is not the case. The Secretary of State in our opinion adopted a legitimate approach to the decision which she made, and was entitled to reach the conclusion which she did.
29. It is because of the difficult and delicate nature of the decision which the Secretary of State had to make and the subjective element in making it to which we have referred that the process of review has been described as "soft-edged". This does not mean that the juridical nature of the process of review is any different from that of any other judicial review. It simply means that the court should in such circumstances be somewhat more ready than in some other cases to assume a higher degree of knowledge and expertise on the part of the decider, which is an ordinary and normal exercise of judicial assessment of evidence. We respectfully adopt the remarks of Lord Wilberforce in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1048:
30. It is not for us in a court of law to intervene unless it is established that the Secretary of State has gone wrong in law. We cannot repeat too often or too clearly that a judicial review is not an appeal against the merits of the decision under review. It is our function only to ascertain whether the decider has taken into account the correct considerations and made the decision within the proper parameters by correct application of the law. If we so hold, it is not for us to form or express any view on the quality or merits of the decision, and nothing we say in this judgment should be taken in any way as an attempt to do so. The area with which the 1998 Act is concerned is delicate and sensitive, and it is hardly surprising that strong views should be held on it or that decisions within this area should give rise to serious differences of opinion. It is part of the democratic process that such decisions should be taken by a minister responsible to Parliament, and so long as the manner in which they are taken is in accordance with the proper principles the courts should not and will not step outside their proper function of review.
31. For the reasons which we have given we have reached the conclusion that the judge was correct in holding that the Secretary of State did not apply an incorrect test in deciding not to specify PIRA and that she was legally entitled to make that decision. We therefore dismiss the appeal.