Citation no. (2000) 2040
Judgment: approved by the Court for handing down
(subject to editorial corrections)
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION (CROWN SIDE)
IN THE MATTER OF AN APPLICATION BY SEAMUS TREACY AND BARRY MACDONALD FOR JUDICIAL REVIEW
An application has been made by the applicants in these judicial review proceedings that I should disqualify myself from the substantive hearing because (the applicants contend) my continuing to hear the case would give rise to the appearance of bias.
The applicants are members of the Bar of Northern Ireland. In April 1999 the Lord Chief Justice invited applications from members of the Bar to be appointed Queen's Counsel. Both applicants applied and by letter dated 27 November 1999 the Lord Chancellor informed them that their applications had been successful. On 9 December 1999 Gareth William Johnston, Legal Secretary to the Lord Chief Justice, wrote to Mr Macdonald in response to a query raised by him. Mr Johnston enclosed with his letter a copy of the declaration which Mr Macdonald, in common with all Queen's Counsel, would be required to make. It is in the following terms :-
" I, , do sincerely promise and declare that I will well and truly serve Her Majesty Queen Elizabeth the Second and all whom I may lawfully be called upon to serve in the office of one of Her Majesty's Counsel learned in the Law according to the best of my skill and understanding."
On 15 May 1996 the Bar Council had resolved that a Committee be appointed under the chairmanship of Fraser Elliott QC. Its commission was
"To consider all aspects of the present system of appointment of silks in Northern Ireland and to report [on] its conclusions and recommendations to the Bar"
On 9 December 1996 Mr Elliott wrote to the judges of the Supreme Court of Judicature in Northern Ireland seeking their views on various aspects of the appointment of Queen's Counsel. On 23 January 1997, the Right Honourable Lord Justice MacDermott replied on behalf of the Lords Justices and the puisne judges. On the question of the declaration, Lord Justice MacDermott said:
"A declaration is required of each appointee as Queen's Counsel, which is now in the same terms in Northern Ireland as it has been for some time in England and Wales. Its wording is as follows :
[Lord Justice MacDermott then set out the terms of the declaration as they appear above]
Sir Thomas Legg, Permanent Secretary to the Lord Chancellor's Department, has given the following opinion which we believe to be correct:
(a)The declaration is to be regarded as a declaration of office and not as a test of allegiance.
(b)There is no reason why it should not properly be taken by any appointee, even a foreign national in practice at the English Bar (although at present only British subjects or nationals of member states of the European Union are eligible, this is under review).
(c)The declaration is regarded as a mandatory requirement for taking Silk. No appointee has to the best of his knowledge ever declined to make the declaration."
This is the same as that used in England and Wales. It is a declaration of office and not of allegiance. We can see no rational objection to it and we are satisfied it should be retained."
The Elliott Committee reported to the Bar in April 1997. Dealing with the question of the declaration the report stated:
"It was clear to the Committee from the submissions made to it that there is a significant body of opinion which favours the retention of a declaration expressly including a promise to serve the Crown as well as other persons and bodies. It was also clear from the submissions received that there is a significant body of opinion which favours the proposition that the declaration, if it is to be retained, should not single out the Crown as opposed to potential clients in general, as a person or body in respect of whom such promise well and truly to serve should be given.
Against such a background the Committee first considered whether the making of any declaration at all is desirable and formed the view that it is given the very great importance which the public attaches to the rank of Queen’s Counsel, the fact that that appointment signifies the pre-eminence of the appointee within the profession and the fact that the individual appointee in accepting the rank is embarking on a new role and taking on himself or herself significantly increased responsibilities. The Committee therefore concluded that it is appropriate that a barrister’s elevation to rank of Queen’s Counsel be marked in a special way.
But the Committee is not persuaded that as a condition of obtaining advancement in one’s profession as a Barrister it should be incumbent on the person seeking such advancement expressly to identify the Crown, as opposed to all potential clients in general, as a person or body to whom a promise well and truly to serve should be made.
A practising Barrister, unless he or she holds some specific office under the Crown, is a lawyer in private independent practice and the Committee is not aware of any other profession which requires of its individual practitioners, either on admission to the profession or on advancement within the same, to make a promise expressly to serve the interests of the Crown as opposed to the interests of potential clients in general.
Accordingly, the view of the Committee is that the making of a declaration should be retained but the wording of the declaration should be:-
‘I ¼. do sincerely promise and declare that I will well and truly serve all whom I may lawfully be called upon to serve in the office of one of Her Majesty’s Counsel learned in the law according to the best of my skill and understanding’.”
On 14 May 1997 or thereabouts, the Bar Council endorsed the wording proposed in the Elliott Committee report. A copy of the report was sent to the office of the Lord Chief Justice on or about 16 May 1997.
On becoming aware that they would be required to make a declaration in the terms set out in the letter from Mr Johnston, the applicants wrote to the Chairman of the Bar Council who subsequently made representations to the Lord Chief Justice on their behalf. On 17 December 1999 they applied for leave to apply for judicial review of the decision to require them to make the declaration. I granted leave to apply on 20 December 1999.
The judicial review application
The principal relief sought in the Order 53 statement is a declaration that the requirement that the applicants make the declaration is unlawful and a declaration that by virtue of the Warrant of Her Majesty the Queen of 24 November 1999 the applicants have in fact been constituted and appointed Queen's Counsel. The grounds on which the relief is sought may be summarised as follows :-
1. The requirement to make the declaration is in breach of Article 25 of the Fair Employment and Treatment (Northern Ireland) Order 1998.
2. No account was taken of paragraphs 1 and 2 of the Policy Appraisal and Fair Treatment document
3. By virtue of clause 1 (vi) of the Belfast Agreement the applicants had a legitimate expectation that their Irish citizenship would be recognised and respected; they also had a legitimate expectation that the declaration would be amended to correspond with that recommended by the Elliott Committee. The requirement that they make the declaration frustrated those expectations.
4. Neither the Lord Chief Justice nor the Lord Chancellor was legally entitled to require the applicants to make the declaration.
5. The requirement to make the declaration is inconsistent with sections 75, 76 and 77 of the Northern Ireland Act 1998.
6. The requirement to make the declaration was procedurally unfair in that the applicants were not informed in the Guide for Applicants on the Appointment of Queen's Counsel in Northern Ireland that this would be required of them nor were they informed that the recommendation of the Elliott Committee as to the wording of the declaration had not been accepted.
7. The applicants had a legitimate expectation that the Government would honour its obligations under paragraph 10 of the United Nations Basic Principles on the Role of Lawyers.
8. The decision is irrational.
An application is pending to amend the Order 53 statement to add the following to the grounds on which relief is sought :-
9. The requirement to make the declaration is contrary to Government policy and public policy not to require nationalists to adopt or submit to symbols, emblems or rituals which have been perceived as manifestations of supremacy and triumphalism or offend the applicants' principles as nationalists.
10. No reasons were given for the impugned decision.
11. The Lord Chancellor had no jurisdiction to exercise the prerogative of appointing senior counsel in Northern Ireland or of attaching any conditions thereto.
The application for disqualification
When the matter came on for the hearing of the substantive application on 4 January 2000, I was informed by C M Lavery QC for the applicants that he had been told that in early June 1997 the Lord Chief Justice had written to the Lord Chancellor stating that the unanimous view of the judges of the Supreme Court was that the declaration should be maintained in its current form. Mr Lavery had not obtained a copy of this letter nor was one provided to the court. I have not seen the letter and I must rely entirely on what I have been told by counsel as to its contents.
The effect of the letter, Mr Lavery submitted, was that all those judges who had expressed the view in June 1997 that the declaration should be retained had implicitly rejected the recommendation of the Elliott Committee and the resolution of the Bar Council that the declaration should be amended in the manner set out in the report. He submitted that, since the attack on the decision to require the declaration to be made included the claim that the decision was irrational, a judge who had recommended that the declaration in its current form be retained would be required to consider the rationality of his own view that the declaration should not be amended. The appearance of bias was unavoidable, therefore.
I immediately informed Mr Lavery that I had no recollection of .having been consulted about the form of the declaration after the publication of the Elliott Committee report or of having expressed any view as to the recommendation made in that report about the amendment of the declaration. Yesterday I was informed by R E Weatherup QC (who appears for the Lord Chancellor) that the statement of the Lord Chief Justice in the letter of June 1997 about the views of the judiciary was in reference to the letter of Lord Justice MacDermott of 23 January 1997 and that the Supreme Court judges had not been consulted about the form of the declaration following the publication of the Elliott Committee report.
I am now confident that I was not consulted about the form that the declaration should take at any time after the Elliott Committee report was published. I am also certain that, since the publication of the report, I have neither formed nor expressed any view as to how the declaration should be worded.
Mr Lavery submitted that, even if the judges of the Supreme Court had not been consulted, the wording of the letter from the Lord Chief Justice to the Lord Chancellor was clearly a reference to their contemporary views. This, he argued, was an indication of the strength of conviction of the judges about the form that the declaration should take, notwithstanding the recommendation of the Elliott Committee report and the resolution of the Bar Council. I do not accept that submission. As I have already said, I am certain that, since the publication of the Elliott Committee report, I have neither formed nor expressed any view as to the wording which the declaration should take.
Mr Lavery also submitted that apparent bias arose because of the contents of the letter of 23 January 1997 from Lord Justice MacDermott. This recorded the view of all those who were then judges of the Supreme Court that the declaration should be retained in its current form. In itself that was, he argued, a pre-judgment of the rationality of retaining the declaration. Any judge who had subscribed to the view expressed by Lord Justice MacDermott would be required to review the rationality of his already expressed view.
I do not accept that argument. The declaration in its present form was introduced following a judicial review application by Philip Magee, a member of the Bar of Northern Ireland, in 1995. This challenged the validity of the requirement which then existed that all Queen's Counsel swear an oath of allegiance to the Queen and make a declaration of office. The declaration was in the following terms :-
" I do declare that well and truly I will serve the Queen as one of her Counsel learned in the Law and truly counsel the Queen in Her matters, when I shall be called upon so to do, and duly and truly administer the Queen's matters and sue the Queen's process after the course of the Law and after my cunning. I will duly in convenient time speed such matters as I may lawfully do which any person shall have to do in the Law against the Queen. And in all other respects I will be attendant to the Queen's matters when I be called thereto."
The grounds on which Mr Magee's challenge was made were that the requirement to take the oath and make the declaration discriminated against members of the Catholic or nationalist community and therefore operated as a deterrent to those who found such oath and declaration abhorrent.
As a result of Mr Magee's challenge it was recognised that the oath of allegiance was no longer required by reason of section 9 of the Promissory Oaths Act 1868. The requirement to take an oath of allegiance was therefore removed. At the same time the Secretary of State for Northern Ireland reviewed the declaration of office and decided that the form of declaration to be made by Queen's Counsel should be the same as that in England and Wales. John Willoughby Wilson, the Clerk of the Crown for Northern Ireland, wrote to the chairman of the Bar Council on 26 October 1995 informing him that with immediate effect Queen's Counsel would no longer be required to take an oath of allegiance and that the form of declaration of office would be changed to the form used in England and Wales i.e. the form which is still in use. As a result of these developments, Mr Magee did not proceed with his judicial review application.
Appointments of Queen's Counsel were made in September 1996. The appointees made the declaration of office in the form determined in October 1995. No representation was forthcoming from the Bar Council about the form of the declaration before that call or subsequently until the publication of the Elliott Committee Report in May 1997. This was the backdrop against which Lord Justice MacDermott wrote to Mr Elliott in January 1997. None of the claims made in the present judicial review proceedings about the declaration of office had been raised before the views of the judges were sought. There was no reason that the judges should have considered that there was dissatisfaction with the form of the revised declaration. On the contrary, such evidence as was available to them - the withdrawal of Mr Magee's judicial review application, the absence of any further representation by the Bar Council and the appointment of Queen's Counsel in September 1996 with all appointees making the declaration - indicated the contrary. The views held by the judges of the Supreme Court in January 1997 and set out in the letter of Lord Justice MacDermott did not in any way represent a preconceived opinion on any of the matters raised in the present judicial review application, therefore.
It is now well settled that disqualification of a judge on the grounds of apparent bias should occur where, on examination of all the relevant circumstances, it is concluded that there is a real danger or possibility of bias. Previously, there had been some divergence in the authorities as to whether the test for apparent bias should be expressed in terms of a reasonable suspicion of bias or a real possibility of it. Any doubt as to the test to be applied was removed in 1993. In R v Gough (1993) AC 646, 668 Lord Goff of Chieveley said,
"In my opinion, if, in the circumstances of the case (as ascertained by the court), it appears that there was a real likelihood, in the sense of a real possibility, of bias on the part of a justice or other member of an inferior tribunal, justice requires that the decision should not be allowed to stand. I am by no means persuaded that, in its original form, the real likelihoodtest required that any more rigorous criterion should be applied. Furthermore the test as so stated gives sufficient effect, in cases of apparent bias, to the principle that justice must manifestly be seen to be done, and it is unnecessary, in my opinion, to have recourse to a test based on mere suspicion, or even reasonable suspicion for that purpose."
and at page 670,
"Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him ¼"
The approach of a judge to the question of whether he should recuse himself was considered by the Constitutional Court of South Africa in President of the Republic of South Africa & others v South African Rugby Football Union & others (1999) 7 BCLR (CC) 725, 753 in the following passage:
"¼.the correct approach to this application for the recusal of members of this Court is objective and the onus of establishing it rests upon the applicant. The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or pre-dispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reason, was not or will not be impartial."
Although these observations were made in the context of the reasonable suspicion test, they were referred to with approval by the Court of Appeal in England in Locabail (UK) Ltd v Bayfield Properties and another The Times 19 November 1999.
It appears to me, therefore, that I should approach the question of whether I should discharge myself by considering whether the applicants have shown that a reasonable, objective and informed person would, in possession of the facts as I have outlined them above, conclude that there is a real danger or possibility that I would unfairly regard or disregard the case of a party to an issue before me.
Since I was entirely unaware when I subscribed to the views expressed in the letter of Lord Justice MacDermott of any of the matters raised by the applicants in these judicial review proceedings and since I was not consulted about the wording of the declaration after the publication of the Elliott Committee report, I cannot accept that any reasonable, objective and informed person would conclude that there was a real danger or possibility that I would fail to be impartial in relation to any issue raised in these proceedings or that I would fail to bring an unbiased and objective mind to bear on the adjudication of the case. The application that I should discharge myself is refused, therefore.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION (CROWN SIDE)
IN THE MATTER OF AN APPLICATION BY SEAMUS TREACY AND BARRY MACDONALD FOR JUDICIAL REVIEW
J U D G M E N T