Court of Appeal in Northern Ireland Decisions

"2. Sinn Féin is an increasingly prominent political party within Ireland as a whole. In the six counties area, at the last election, our party secured 21.7% of the vote overall, which represents approximately 50.9% of the Nationalist vote. Besides the 4 MPs, we have 18 Members of the Legislative Assembly for Northern Ireland and 108 Councillors. In the 26 counties at the Irish Parliament in Dublin, we have 5 TDs. As such we have a large and broad electoral base and mandate.

3. Our party is an Irish Republican party, committed to the principle that the Irish people have the right to self-determination and therefore the party does not recognise the sovereignty of the British monarch over any part of Ireland. Our objective is to end British rule in Ireland and, to that end, we seek national self-determination, the unity and independence of Ireland as a sovereign state. Consequently, it has always been and remains party policy that Sinn Féin members elected to the parliament at Westminster refuse to swear or affirm any oath for allegiance to the British monarch.

4. I believe that the requirement to take the Oath or affirm allegiance to the Queen, before I am permitted to take my seat in Westminster, discriminates against my political beliefs and the beliefs of those who voted for me and my party colleagues and denies us our constitutional right to freedom of expression of our beliefs.

5. To take an Oath to serve the British sovereign runs directly contrary to the aims and political beliefs of our party. Moreover, the British Government is aware that members of our party, who have been elected as Members of Parliament, have consistently refused to take an Oath to serve the Queen."

During the hearing of this matter in the court below, however, the judge asked counsel for the appellant to obtain specific instructions from Sinn Féin whether their representatives would be prepared to take their seats in Parliament if the requirement to take the oath were removed. The response was in the negative.

"12-(1) For the purposes of this section –

(a) 'A policy development grant' is a grant to a represented registered party to assist the party with the development of policies for inclusion in any manifesto on the basis of which –

(1) candidates authorised to stand by the party will seek to be elected at an election which is a relevant election for the purposes of Part II, or

(2) the party itself will seek to be so elected (in the case of such an election for which the party itself maybe nominated); and

(b) a registered party is 'represented' if there are at least two Members of the House of Commons belonging to the party who –

(1) have made and subscribed the oath required by the Parliamentary Oaths Act 1866 (or the corresponding affirmation), and

(2) are not disqualified from sitting or voting in that House."

The oath prescribed by the Parliamentary Oaths Act 1866, as amended, which all Members of Parliament have to take before they can take their seats in the

House, reads:

"I [name] do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, her heirs and successors, according to law. So help me God."

"7.25 All that said, there is, however, a problem. It is evident that the political parties, hard pressed to meet the mounting costs of election campaigns and also the mounting costs of their day-to-day activities, are driven to concentrate their resources on campaigning and routine administration at the expense of long-term policy development. Perhaps surprisingly, this applies almost as much to the governing part as to the opposition. Ministers become preoccupied with current crises and the sheer volume of government business. They, and the party to which they belong, find it hard to 'think long'. The opposition parties, for their part, are also in continuous danger of being deflected from one of their principal tasks, which is to prepare for government in policy terms. The political parties themselves should be one of the major sources of ideas in British politics. They are not always so at present.

7.26 For that reason – although we are not in favour of public subvention of the parties' general activities – we propose that a modest Policy Development Fund should be established to enable the parties represented in the House of Commons to fulfil better what is, after all, one of their most vital functions. The fund could be administered by an ad hoc body agreed upon among the parties. Failing that, it could be administered by our proposed Election Commission (though that would not be our preferred option, since the fund would not be intended for electoral purposes).

7.27 Bearing in mind that in 1997 the three main parties appear to have spent less than £1.5 million on research, we propose that the annual amount provided for the Policy Development Fund should be in the order of £2 million, which could in future be up-rated in line with inflation. The political parties would be required not only to account in the normal way for their expenditures from the fund but to certify that the money had not been spent on such objects as routine party administration, electioneering and opinion polling."

The Government accepted the recommendation of the Neill Committee, as it set out in paragraphs 6.16 and 6.17 of the White Paper published on 29 July 1999 and entitled "The Funding of Political Parties in the United Kingdom." The proposals of the Neill Committee were enacted into law by the 2000 Act. It may be noted that the amounts of PDGs were deliberately kept fairly modest by comparison with the major expenditure of the political parties, which together expended a total sum of £54 million on the 1997 election.

"6. Section 12 of the Political Parties, Elections and Referendums Act 2000 defines the parties who will be eligible for funding and that the qualifying representation within the House of Commons is to have 2 members elected to the House of Commons who 'have made and subscribed the oath required by the Parliamentary Oaths Act 1866'. The Government, in introducing this legislation, was aware that Sinn Féin would quality for funding by virtue of the number of their members, but who would be disqualified if taking the Oath to the Queen was a condition of eligibility.

7. Moreover, the Government was aware that in those circumstances Sinn Féin would be the only party, who, although eligible as a result of the number of their MPs, would be disqualified from any policy grant funding if taking an Oath to the Queen was an additional requirement. The Government was also aware that Sinn Féin would be uniquely disadvantaged in those circumstances. In those circumstances I believe that this requirement to take an Oath to the Queen was specifically designed to exclude Sinn Féin from eligibility for a policy development grant, and as such is discriminatory and unlawful."

"Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers."

"no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to impart ideas and information without interference …"

Setting the qualification in such a way made it impossible for any other party to obtain State funding, without which in poorer societies smaller parties would find it impossible to mount an effective political campaign. This in the view of the court (page 28 of the report) caused a reduction of the effective freedom of expression of political parties, by restricting the number of issues debated, the depth of their exploration and the size of the audience reached. In short, it had a marked and adverse effect upon political advocacy.

"[18] However, in Bowman the court found that section 72 of the 1983 Act operated, for all practical purposes, as a "total barrier" to the ability of the applicant to publish information with a view to influencing the voters of Halifax in favour of an ant-abortion candidate. It was not satisfied that, in practice, she had access to any other effective channels of communication. In the United Parties case, the Supreme Court in Zimbabwe found that the threshold for funding set by the government, rendered it "virtually impossible" for other political parties to gain any real margin of success. By contrast, the applicant in this case has not produced or drawn attention to any respect in which members of Sinn Féin have been restricted in their ability to hold or express opinions or to receive or impart information or ideas. There is no suggestion that Sinn Féin is so lacking in financial resources that the failure to provide the party with finance by way of PDG has prevented such activity. Mr Treacy QC submitted that the court should infer such interference or restriction simply as a result of the failure of Sinn Féin to receive a payment by way of PDG, but it seems to me that it is a matter for the applicant to establish that there has been a breach of its Article 10 rights. Accordingly, I hold that no breach of Article 10 has been established."

"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."

We find it extremely difficult to fit the complaint of the appellant in the present case into the framework of Article 3. As the ECtHR stated in Mathieu-Mohin and Clerfayt v Belgium (1987) 10 EHRR 1 at paragraph 54, it is directed to ensuring equality of treatment of citizens in the exercise of their right to vote and their right to stand for election. It was beyond question that the United Kingdom elections are free and are held by secret ballot and at reasonable intervals. The appellant's case focused on the question of conditions, it being submitted that the effect of the restriction on qualification for payment of PDGs inhibited the freedom of the electors to express their opinion by depriving them of the material which could be placed before them by well-directed policy research. We feel a good deal of doubt whether a restriction of the type in question in this appeal, if it were proved to have a deleterious effect on a particular political party, could be said to inhibit the free expression of the opinion of the people. They continue to be free to express their opinion, and the most the appellant can claim is that the restriction might be have, in the words of the court in the United Parties case, an adverse effect upon political advocacy. The matter is, however, concluded by the finding of the judge in paragraph 21 of his judgment:

"[21] Again, no evidence was placed before the court that the inability of Sinn Féin to obtain a PDG had inhibited the party in developing policies for inclusion in its electoral manifesto, or has significantly interfered with its ability to do so."

We therefore agree with his conclusion that no breach of Article 3 of the First Protocol has been established.

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

"These are the core activities of a democratic institution by means of which elected representatives directly participate in the democratic process and effectively represent the interests of their constituents. As I have already recorded in this judgment, Sinn Féin make use of certain facilities at Westminster but then so do those parties who take their seats and no evidence was submitted on behalf of the applicant to establish that her party was equally restricted by the daily demands of parliamentary life and, therefore, a valid comparator. The onus is upon the applicant to show that she falls within the relevant pool and this she has failed to achieve."