By Jamie Bryson
This case arises from the Alliance party’s failed attempt to use a ‘call in’ mechanism (allowing a minority to override the democratic decision of the majority) to block the Union flag flying from War Memorials in Ards and North Down. This disgraceful attempt by the Alliance party to disrespect War veterans was ruled unlawful, and quashed by the High Court.
The council had initially refused to even disclose the call-in form itself, claiming a ‘duty of confidence’ applied. This unarguable and, to be frank, deranged assertion was always unsustainable and when pressed by Mr Justice Humprheys upon what basis this assertion was ever made, the council had no answer. They now accept that this assertion was legally incorrect and should never have been relied upon.
However, I had pursued via the ICO the portion of the document which listed the names of the elected councillors who had triggered the controversial veto. In a judgment issued this week, the ICO ruled (with utterly bizarre and unprecedented reasoning) that the council were entitled to keep secret the names of these councillors, because that is what these elected representatives wanted.
The judgment is riddled with legal errors and irrational reasoning. It is firstly suggested that, as a starting point, a call-in requisition is presumed not to be public. This erroneous assertion is arrived at by conflating the call-in itself, with legal advice obtained pursuant to a call-in. There is nothing in the Local Government Act 2014 which provides for call-ins to be secret.
On the substantive issue, the ICO ruled that because the councillors said they wanted their names kept secret, that they therefore had an expectation of privacy. The determination as to whether a reasonable expectation of privacy exists is an objective one. The ICO has been led into error, effectively sub-contracting a subjective test to the person asserting secrecy. This not only has no basis in law, but it is such a basic and elementary error it is remarkable that any public adjudication body actually committed it to writing.
The logical end-point is that councillors can exercise public powers, but can then instruct the council that they want the fact they exercised such powers concealed from the public, upon whose behalf they purport to act.
In this case Alliance councillors claimed they felt unsafe, but yet the PSNI has confirmed there are no reports nor safety concerns at all. Put simply, the Alliance party councillors have contrived and made-up false concerns, to seek to reserve for themselves the ability to exercise public powers in secret, and to evade accountability.
If we now take the approach of saying that even if there were concerns about public anger over a decision, that this means democracy should be conducted in secret, this upends the very foundational basis of democracy itself. As I write this article, I remain absolutely flabbergasted that the ICO not only adopted some of the de-facto tyrannical ‘secrecy charter’ contrived by the Alliance party, but actually committed these utterly deranged arguments to a public-facing judgment.
In case I had missed something and had not in fact entered the twilight zone, I sent the judgment to not just one, but two senior counsel to just double-check whether this was really as mad as I thought it was. The responses received were concise: “bonkers” and “incongruous”.
The judgment of the ICO is undoubtedly of constitutional significance and creates a principle hitherto unknown to the law (which is why there is a single legal authority cited in support of the reasoning deployed). It inverts the most fundamental principles of democracy and the transparent and accountable exercise of public powers. That it would be the Alliance party – those who make it a central theme to bleat and pontificate about their commitment to transparency and accountability- leading the charge once again illuminates their shameless hypocrisy.
The most cardinal democratic and constitutional principle is that those who stand for elected office, and thus exercise public powers on behalf of those they serve, are politically accountable for their actions to the electorate who bestowed those powers upon them.
In contrast, the Alliance party wants to be able to exercise public powers- in particular the power to use a minority veto to override democratic decisions (on this occasion the veto was used to try and tear down the Union flag from War Memorials)- but to do so in secret, putting themselves beyond public scrutiny or electoral accountability.
This is an invention which simply cannot stand. The notion that elected councillors can take for themselves the power to subjectively decide whether their actions using public powers are known to the public, or not, is repugnant and turns democratic accountability on its head.
An appeal has already been lodged (within 30 minutes of the judgment) to the First Tier Tribunal, asking for expedition such is the extraordinary nature of the judgment and its far-reaching consequences. The erroneous precedent will be used as a blue print by the Alliance party and others to further shield their most controversial exercises of public powers from the very people upon whose behalf they purport to exercise it.