Neutral Citation no. (2002) NIQB 46

Ref:    

KERC3751

 

 

 

Judgment: approved by the Court for handing down

Delivered:

23.07.2002

(subject to editorial corrections)

 

 

 

 

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)

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IN THE MATTER OF AN APPLICATION BY MARK PARSONS FOR JUDICIAL REVIEW

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KERR J

Introduction

[1] Mark Parsons is a young Protestant man who wanted to become an officer in the Police Service of Northern Ireland.  He successfully passed each stage of the recruitment and assessment process and entered the final pool of qualified candidates on 13 September 2001.  On 28 September 2001, however, he was informed that he was not being offered an appointment because the Chief Constable was required under section 46 (1) (a) of the Police (Northern Ireland) Act 2000 to make appointments in equal numbers from the two communities in Northern Ireland.

 

[2] By this application Mr Parsons seeks a declaration that section 46 (1) (a) of the Police (Northern Ireland) Act 2000 is incompatible with articles 9 and 14 of the European Convention on Human Rights.  He also seeks judicial review of the decision not to offer him an appointment as a police officer.

 

Background

 

[3] The Independent Commission on Policing in Northern Ireland (the Patten Commission) was set up as part of the Belfast Agreement of 10 April 1998.  Its task was to advise on the measures necessary to achieve “a police service that can enjoy widespread support from, and is seen to be an integral part of, the community as a whole”.

 

[4] The Commission discovered that only about 8% of the existing police force (the Royal Ulster Constabulary) was Catholic although more than 40% of Northern Ireland’s population was, at the time of the Commission’s report, Catholic.  Despite various initiatives it had never proved possible to increase the number of Catholics in the force above 21%.  The imbalance of representation was considered by the Commission to be “the most striking problem in the composition of the RUC”.

 

[5] The creation of a police force that would command the support and respect of the community as a whole was the central mission of the Commission.  The parties to the Belfast Agreement had recorded their view that the police service should be “representative of the society it polices”.  Critical to the achievement of these goals was the correction of the imbalance between Catholics and Protestants in the police force.  Unsurprisingly, the Commission concluded that the only way in which this could be brought about was by changing the method of recruitment.

 

[6] The Commission therefore suggested that the new intake of police officers should comprise 50% Catholics and 50% Protestants and that this pattern of recruitment should continue for at least ten years so as to redress the imbalance.  It was recognised, however, that the recruitment of Catholics should not be at the expense of reducing the calibre of entrants to the force.  A key recommendation of the Commission was that all candidates for membership should be required to reach a minimum standard of merit in the selection procedure.  Candidates who reached that standard would then enter a pool from which the required number of recruits could be drawn on the basis of 50% Catholics and 50% Protestants or undetermined religion.

 

[7] Following the publication of the Patten Commission report in September 1999, the Secretary of State for Northern Ireland, then Dr Mowlam, made a statement in which she accepted its findings in principle and launched a consultation process on its recommendations.  On completion of the consultation process the Secretary of State, by this time Peter Mandelson, made a statement to the House of Commons.  On the subject of recruitment he said: -

 

“I attach particular importance to Patten’s recommendations for action to transform the composition of the police service.  They are essential to gaining widespread respectability.  I endorse the proposal for 50/50 recruitment of Protestants and Catholics, from a pool of candidates, all of whom – I stress this – will have qualified on merit.  We propose that the requirement for that special measure should be kept under review on a triennial basis, with rigorous safeguards to ensure that the rightly challenging targets for recruitment do not diminish the standard requires of recruits.”

 

[8] The Police (Northern Ireland) Bill was introduced to Parliament on 16 May 2000.  It passed through its Parliamentary stages with rigorous scrutiny being applied to it during its passage and received Royal Assent on 23 November 2000.  The sponsoring department, the Northern Ireland Office, obtained advice from the Equality Commission for Northern Ireland which publicly supported the recruitment measures.  A human rights evaluation of the contents of the Bill was conducted and this enabled the minister in charge of the Bill to confirm the government’s belief that the Bill was consistent with the Human Rights Act 1998. 

 

[9] European Directive 2000/78/EC establishes a framework for equal treatment of persons whatever their ethnic origin or religion etc, within the European Union.  The areas covered by the Directive include access to employment.  The first phase of the Directive will come into force on 2 December 2003 and would apply to the police service in Northern Ireland.  In order to ensure that the recruitment measures introduced by the Police (Northern Ireland) Act 2000 do not contravene the Directive, the United Kingdom negotiated an exemption from its provisions.  To this end Article 15 (1) of the Directive is in the following terms: -

 

“In order to tackle the under-representation of one of the major religious communities in the Police Service of Northern Ireland differences in treatment regarding recruitment into that Service including its support staff shall not constitute discrimination insofar as those differences are expressly authorised by national legislation.”

 

Statutory Framework

 

[10] By virtue of section 39 of the 2000Act the Chief Constable is responsible for the appointment of police trainees.  It provides: -

 

39. The Chief Constable shall, in accordance with regulations under section 41(3), appoint police trainees.”

 

Sections 46 to 49 of the act are stated in the cross heading to be “Temporary provisions concerning composition of the police “.  Section 46 (1) (a) provides: -

 

46. - (1) In making appointments under section 39 on any occasion, the Chief Constable shall appoint from the pool of qualified applicants formed for that purpose by virtue of section 44(5) an even number of persons of whom-

 

(a)   one half shall be persons who are treated as Roman Catholic; and

(b)   one half shall be persons who are not so treated.”

 

Section 44 (5) provides that the Secretary of State in making regulations prescribing the arrangements for the recruitment of persons to be appointed to the police service shall make provision for the selection of qualified applicants to form a pool of applicants for the purposes of section 46(1).

 

[11] The temporary nature of section 46 is clear from section 47 (2), which provides: -

 

47 - (2) The temporary provisions shall, subject to subsection (3), expire on the third anniversary of the commencement date.”

 

This reflects the statement made by Mr Mandelson that the procedures would be reviewed on a triennial basis.  The Secretary of State has power, however, under section 47 (3) to order that the temporary provisions shall remain in force for a period of up to three years but, in deciding whether to exercise his powers under this provision he must, under section 47 (4) have regard to the progress that has been made towards securing that membership of the police and the police support staff is representative of the community in Northern Ireland; and consult the Policing Board and take into account any recommendations made to him by the Board.

 

[12] Regulation 2 (2) of the Police (Recruitment) (Northern Ireland) Regulations 2001 makes provision for the qualifications that aspiring police trainees must establish before becoming a “qualified candidate”.  Regulation 3 provides: -

 

3. – (1) All candidates for appointment as police trainees who satisfy the requirements of regulation 2 (2) shall be placed in a pool of qualified candidates.

 

(2) The Chief Constable shall appoint police trainees from a pool of qualified candidates referred to in paragraph (1) for the purposes of section 39 of the Act in accordance with section 46 of the Act.”

 

[13] It will be seen therefore that the practical means by which the appointment of a balance of Catholics and non-Catholics to the force is to be achieved is the creation of a pool of candidates who are qualified for appointment as police trainees and then the selection from that pool of the same number from each category.

 

Mr Parsons’ application

 

[14] The application and recruitment process for the first intake of trainees in September 2001 was contracted out to the Consensia Partnership under section 43 of the Act and the applicant received an application pack from this agency in March 2001.  He duly completed the application form and sat various tests and examinations designed to assess his suitability for inclusion in the pool of qualified candidates.

 

[15] On 13 September 2001 he was informed by Consensia that he had successfully completed all the stages necessary to be included and that his name had been forwarded to the recruitment branch of the new police service.  On 28 September 2001 the chief inspector in charge of the recruiting branch wrote to the applicant informing him that the Chief Constable was unable to offer him an appointment.  Those candidates who were to be offered an appointment had obtained a higher score than Mr Parsons in the selection process.

 

[16] The recruitment exercise in which the applicant participated generated 7,843 applications.  An initial selection test reduced the number of applicants to 1809.  An assessment centre was designed for candidates to select those most suitable.  The number of applicants who passed the assessment was 884.  These were graded in merit order.  All were then required to undertake medical examinations, physical assessments, a firearms handling test and a vetting procedure.  553 candidates (including the applicant) were successful at that stage and they took with them into the pool of qualified candidates a merit score.

 

[17] The pool was then divided into two categories viz those who were treated as Catholic candidates and those who were not so treated.  Of the pool of qualified candidates, 154 were treated as Catholics and 399 as other than Catholic.  Offers of appointment were made to the 154 treated as Catholics and to the first 154 in the non-Catholic category.

 

[18] The applicant was number 514 in descending order of merit in terms of the pool as a whole.  He was deemed to be in the non-Catholic category and was number 370 in that category.  Of the 39 candidates below the applicant in the pool as a whole, 10 were in the Catholic category.

 

The judicial review challenge

 

[19] For the applicant Mr Morgan QC submitted that section 46 (1) (a) of the 2000 Act was incompatible with article 9 (1) of the European Convention on Human Rights, which guaranteed the right to freedom of thought, conscience and religion.  He argued that no derogation from the right to believe in a particular religious faith was possible.  The exclusion of the applicant from a state employment solely because of his religious belief constituted an inducement to move away from his religious conviction and therefore was a limitation on his article 9 (1) freedoms.

 

[20] Alternatively, Mr Morgan submitted that the discrimination against the applicant involved by the application of section 46 (1) (a) to him constituted a breach of article 14.  While he accepted that the section pursued a legitimate aim viz namely redressing the religious imbalance in the police force, he suggested that, since gender discrimination was so repugnant in a democratic society that it could not be tolerated whatever the circumstances, so discrimination on grounds of religion must be disproportionate, however laudable the aim of the measure.

 

Article 9

 

[21] Article 9 of the European Convention on Human Rights and Fundamental Freedoms provides: -

 

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

 

In Kokkinakis v Greece [1993] 17 EHRR 397 ECtHR has described the scope of the right guaranteed by article 9 in this way

 

31. As enshrined in Article 9 (art. 9), freedom of thought, conscience and religion is one of the foundations of a "democratic society" within the meaning of the Convention.  It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned.
 
The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.
 
While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to "manifest [one's] religion".  Bearing witness in words and deeds is bound up with the existence of religious convictions.
 
According to Article 9 (art. 9), freedom to manifest one's religion is not only exercisable in community with others, "in public" and within the circle of those whose faith one shares, but can also be asserted "alone" and "in private"; furthermore, it includes in principle the right to try to convince one's neighbour, for example through "teaching", failing which, moreover, "freedom to change [one's] religion or belief", enshrined in Article 9 (art. 9), would be likely to remain a dead letter.”
 
[22] The freedom guaranteed by article 9 (insofar as it relates to religion) is a freedom to hold, manifest and express religious belief.  Article 9 (2) recognises that there may be circumstances in which constraints may be placed on the manifestation of one’s belief but, as Mr Morgan has correctly argued, the right to hold a religious belief is unqualified.  The central issue in the present case, therefore, is whether section 46 (1) (a) infringes the applicant’s right to hold his religious belief.
 
[23] In my view it does not.  The applicant is not constrained in any way from holding his religious belief.  True, in the particular circumstances that he finds himself, he would have been offered a post had he been Catholic, but that cannot amount, in my opinion, to a restriction on his freedom to hold to his Protestant faith.  The nature of the right was well expressed in the joint judgment of Mason ACJ and Brennan J in the Australian High Court case of Church of the New Faith v Commissioner For Pay-Roll Tax(1982) 154 CLR 120, 130 where they said: -
 
Freedom of religion, the paradigm freedom of conscience, is the essence of a free society. The chief function in the law of a definition of religion is to mark out an area within which a person subject to the law is free to believe and to act in accordance with his belief without legal restraint.”
 
Mr Parsons is perfectly free to believe and act in accordance with his belief without legal restraint.
 
[24] This approach is consistent with the decisions of the European Commission on Human Rights in the cases of Konttinen v Finland Application No. 24949/94 and Stedman v UK Application No. 29107/95.  
 
[25] In the first of these the applicant had been an employee of the state railways.  In the summer of 1991 the applicant joined The Seventh-day Adventist Church.  According to that religion an adherent must refrain from working on the Sabbath (Saturday) which starts at sunset on Friday.  He was dismissed because he had absented himself from his work place before the end of his Friday evening shift, notwithstanding the rules regulating his working hours.  The Commission dismissed his complaint under article 9 of the Convention, observing: -
 
 “In these particular circumstances the Commission finds that the applicant was not dismissed because of his religious convictions but for having refused to respect his working hours. This refusal, even if motivated by his religious convictions, cannot as such be considered protected by Article 9 para. 1.  Nor has the applicant shown that he was pressured to change his religious views or prevented from manifesting his religion or belief.
 
 The Commission would add that, having found his working hours to conflict with his religious convictions, the applicant was free to relinquish his post. The Commission regards this as the ultimate guarantee of his right to freedom of religion. In sum, there is no indication that the applicant's dismissal interfered with the exercise of his rights under Article 9.”
 
By the same token there is no indication that the failure of the applicant to obtain a post as a trainee in the police service interfered with the exercise of the rights guaranteed to him under article 9 of the Convention.
 
[26] Likewise in Stedman v United Kingdom the European Commission rejected a claim that requiring the applicant to work on Sundays violated her article 9 rights.  In its judgment the Commission said: -
 
“… in the present case the applicant was dismissed for failing to agree to work certain hours rather than her religious belief as such and was free to resign and did in effect resign from her employment.”
 
In the present case the applicant has not been refused employment because he is a Protestant.  He was not offered a post because he did not score sufficiently highly within the category that would have allowed him access to appointment.  The action taken against him was not designed to restrict his religious freedom; it was because of his failure to achieve the required results in the various tests and assessments for appointment to the position that he sought.  While it is true that others who scored less highly were appointed, this is because they had an attribute that he did not possess viz their Catholic status.  That does not mean that the applicant’s freedom to practise his religion or to adhere to the faith that he has espoused is diminished.  The respondent has placed no constraint on that freedom.  I am satisfied therefore that no violation of article 9 arises in this case.
 
Article 14
 
[27] Article 14 of the Convention provides: -
 
“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.”
 
It is well settled that a violation of a Convention right is not an essential prerequisite to reliance on article 14.  It is sufficient if the facts in issue “fall within the ambit” of the rights and freedoms guaranteed by the Convention – see, for instance, Rasmussen v Denmark[1984] ECHR 8777.
 
[28] For the purposes of this application I am prepared to assume that the applicant’s claim comes within the ambit of article 9.  I should emphasise that this is not a concluded view and the subject may require to be revisited in a future case where the matter may be more critical than in the present instance.
 
[29] It is well established in Strasbourg jurisprudence that the mere fact that one group is treated differently from another does not, of itself, establish that there has been discrimination under Article 14 – see, for instance, Cases Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium[1968] ECHR 1474 where the Court said at paragraph 10 “Article 14 does not forbid every difference in treatment in the exercise of the rights and freedoms recognised”.  The applicant must show that he has been treated substantively differently from and less favourably than others.  It must also be demonstrated that the basis of the distinction is a personal characteristic or status particular to him.  Finally, he must establish that the persons to whom he is comparing himself are in an analogous position to himself.
 
[30] On behalf of the respondent Mr McCloskey QC argued that no differential treatment had been established; the applicant’s candidature had been processed, Mr McCloskey said, in the same way as other candidates.  I do not accept that submission.  It appears to me that the applicant’s application was treated differently from those who were perceived to be Catholic.  All Catholic candidates who had passed the various tests were accepted, irrespective of the numbers of the non-Catholic candidates.  The same cannot be said of the applicant.
 
[31] Mr McCloskey’s alternative submission was that the proper comparators for the applicant were the non-Catholic group.  He suggested that because of the problems highlighted by the Patten report and the statutory provisions that were enacted to give effect to the Patten recommendations, those whose situation was truly analogous to the applicant’s were those belonging to the non-Catholic group.  Again, I cannot accept that argument.  Simply because a problem exists in relation to recruitment from the Catholic community, it does not follow that the applicant must be confined in his claim to have been discriminated against to a comparison with those within the non-Catholic group.  The relevance of the difficulties in recruitment lies in the purported justification of the difference in treatment and it is to that topic that I now turn.
 
[32] In Inze v Austria [1988] 10 EHRR 394, ECtHR dealt with the ingredients of discrimination under article 14 in this way: -
 

“41. For the purposes of Article 14, a difference of treatment is discriminatory if it: “has no objective and reasonable justification,” that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised.” (see, inter alia, the Lithgow and others judgment of 8 July 1986, Series A no. 102, pp. 66-67, para. 177).  The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law; the scope of this margin will vary according to the circumstances, the subject-matter and its background.”

 

The measure must therefore have an objective and reasonable justification, (in other words, it must pursue a legitimate aim), and it must be proportionate to that aim.

 

[33] Dealing with these two prerequisites, Lord Steyn in Regina v Secretary of State ex parte Daly [2001] 3 All ER 433, at paragraph 27 said: -

 

“The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, the Privy Council adopted a three-stage test. Lord Clyde observed that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself:

 

“whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.” (See [1999] 1 AC 69 at 80, [1998] 3 WLR 675 at 684.)

 

Clearly, these criteria are more precise and more sophisticated than the traditional grounds of review. What is the difference for the disposal of concrete cases? … First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review in as much as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, ex p Smith, [1996] QB 517 at 554 is not necessarily appropriate to the protection of human rights. … In other words, the intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued.”

 

Does section 46 (1) (a) meet a pressing social need?  If so, is the measure really proportionate to the aim being pursued?

 

[34] In my judgment both questions may be answered confidently in the affirmative.  The need to correct the imbalance in the police force was undeniable.  That had been recognised for a long time but earlier attempts to deal with it had foundered.  It cannot seriously be disputed that a police force should be representative of the community that it serves.  That had been recognised and endorsed by all the parties who supported the Belfast Agreement.  That agreement had in turn been endorsed by 71% of the voting population of Northern Ireland.  These circumstances provide formidable support for a method of recruitment that would strike at the heart of the problem.  They also distinguish the present case from one where a difference of treatment on the basis of gender is sought to be justified.  The creation of a police force that can command the respect and support of the entire community in Northern Ireland is of an entirely different order from a measure that depends for its justification on an avowed difference of capacity of the two sexes.

 

[35] As to the proportionality of the provision it is significant that (i) various other initiatives have failed in the past; and (ii) no alternative method of achieving the aim could be suggested by the applicant.  It is also of considerable importance that the measure was so firmly supported by the Equality Commission.  Moreover all candidates must achieve a minimum standard of suitability and there is no reason to suppose that the calibre of police officer recruited in the way proposed by the legislation will be anything less than appropriate.  Finally, the temporary nature of the arrangements and the opportunity to review them speak strongly in favour of the proposition that they are proportionate to the aim that they seek to fulfil.

 

Conclusions

 

[36] Neither of the grounds on which the applicant has sought judicial review has succeeded and the application must therefore be dismissed.