by Jamie Bryson
The question arising is in respect of the appointment of Ms Patricia MacBride as a Judicial Appointments Commissioner. It is worth firstly providing some background as to the importance of this post. It is Judicial Appointments Commissioners who appoint judges in Northern Ireland. There is arguably no more important role. The judicial system must not only be independent, impartial and non-political but must be seen to be so. Therefore, on any footing, the appointment of such a controversial and ardent republican (who right up until her appointment has been engaged in controversial political activism, leaving aside even her pro IRA utterances) was at least unwise.
Ms MacBride was active in campaigning for Sinn Fein candidates (and is herself a former member of Sinn Fein); campaigning for the Irish Sea border and against Brexit; and churning out weekly controversial political columns in the Irish News laying bare her own political activism. There is of course nothing wrong with any of this in itself, but it plainly doesn’t fit the bill of someone who would inspire cross community confidence in judicial independence and impartiality. It is highly unlikely that a person with the same qualifications but who expressed similar pro unionist/loyalist views would ever have been appointed to such a position.
A refusal on such grounds could arguably have been challenged as discrimination based on political opinion, but the matter is different when it comes to Ms MacBride’s views publicly expressed in respect of IRA terrorism. This can be easily established as a matter of fact: (i) Ms MacBride was a member of Sinn Fein, prior to the IRA ceasefire and Belfast Agreement. Therefore by mere membership of that political party whose policy was (and remains) acceptance and endorsement of the IRA’s terrorist campaign, this is the expression of views supportive of terrorism; (ii) Ms MacBride authored a ‘ballad’ which encouraged young women to “take up the gun…and fight for the IRA”; (iii) Ms MacBride has openly referred to IRA terrorists as “volunteers” engaged in “active service”, refused to describe the IRA’s actions, including the Shankill bombing, as “terrorism” and labelled the Shankill bomber, Thomas Begley, as a “victim” the same as those he murdered.
The above factual matrix, with either of the elements taken alone or cumulatively, falls squarely within the political views which are exempt from protection. Therefore, as will be apparent below, this could easily and quite lawfully (and indeed properly) have been relied upon as a justifiable reason to reject the appointment of Ms MacBride.
The appointment was recommended by the Lady Chief Justice (‘LCJ’) Dame Siobhan Keegan. It is unknown whether the LCJ was aware of the controversial views which had previously been expressed by Ms MacBride in respect of accepting and arguably endorsing IRA terrorism. It seems improbable there was such knowledge on the part of the LCJ, as if these material facts had of been known, it seems highly unlikely the LCJ would have made this nomination.
Thereafter, the recommendation is passed to The Executive Office (‘TEO’) and it is for the joint-First Ministers (styled ‘First and Deputy First Minister’) to formalise the appointment. This is a discretionary political judgment; the mere fact of a recommendation does not place a mandatory duty upon the joint-First Ministers to make the appointment and early suggestions that there was some form of obligation to approve the recommendation was always obviously wrong.
In answer to a question from TUV MLA Timothy Gaston, joint First Minister Emma Little Pengelly said that she could “not discriminate based on political opinion” and referenced some other roles Ms MacBride held (the other roles are a red herring; just because someone else chose not to apply the exemption doesn’t mean that the exemption can’t be lawfully applied in other circumstances, such as the present).
It seems apparent therefore that the unionist joint-FM viewed the pro IRA opinions expressed by Ms MacBride (which were expressly referenced by Mr Gaston) as ‘protected political opinion’ within Article 19 of the Fair Employment and Treatment Order 1998 (‘FETO’), such that those views would not have afforded legitimate grounds to veto the appointment.
This is a fundamental error of law (see Lord Roger paragraph [14] in McConkey and another v the Simon Community [2009] UKHL 24):
“14. By virtue of article 2(4), the term “political opinion” in article 3(1) does not refer to an opinion consisting of, or including, approval or acceptance of the use of violence for political ends connected with the affairs of Northern Ireland. As the appellants acknowledge, if they had still approved of the use of violence to advance Republican political ends in Northern Ireland when they applied for the jobs, their opinion to that effect would not have come within article 3(1). It would therefore not have been unlawful, under article 19(1)(a)(iii), for the Community to refuse to employ them because they held that opinion.”
Put simply, views expressed which indicate acceptance of or support for violence (and this is a extraordinary low bar) are not protected political opinions and an employer or public authority appointing to a position can rely upon such views as a reason to refuse employment and/or an appointment.
If, in the alternative, the views expressed by Ms MacBride were indeed considered and deemed to not amount to acceptance or endorsement of violence, then this too amounts to an error of law in so far as such a determination would be plainly irrational on any consideration of the relevant materials, or if the materials had been not known or not considered, this would be a material error of fact.
It is also trite to point out that there is no requirement that the views are held in the here and now, as Lord Roger said in McConkey at paragraph [13] and [31]-[33]:
“13. When article 3(1) refers to discrimination on the ground of religious belief or political opinion, it must cover both present and past religious belief or political opinion. I can no more refuse to employ you because you were formerly a member of a Protestant church than because you are now a member of the Roman Catholic Church. The same applies to political opinions. Again, that is accepted by both parties.
……
31. The real question therefore is whether the 1998 Order makes it unlawful for people who feel like that to refuse to employ, or to serve, someone who once approved of the use of violence for political ends in Northern Ireland, but now no longer does so. In my view, there is nothing surprising, far less absurd or outrageous, in holding that the 1998 Order allows such people to say: “No, I’m sorry, because of all I have suffered, I won’t employ you; I won’t serve you.” To hold otherwise would be to force these vulnerable individuals to associate with people who approved of the use of the very kind of violence that has blighted their lives.
32. The parallel with Jewish refugees who lost relatives in the Holocaust is striking. In the 1960s, it would surely have been unthinkable for Parliament to legislate, say, to force such a Jewish restaurateur to serve a German professor who had spoken in support of Hitler’s anti-semitic policies during the Nazi régime, but had long since seen the error of his ways. Even today, I doubt if it would be done.
33. At the very least, if the intention of the legislature had been to force everyone, however deeply affected, to ignore previous expressions of approval of the use of violence, I would expect to find it stated in plain words on the face of the Order for all to see, not left to be unearthed in the lucubrations of lawyers.
The only other justification could therefore be that the pro-IRA views were considered but, as a matter of political judgment, the unionist joint-FM determined such views weren’t an impediment to acting as a Judicial Appointments Commissioner. If this is the determination been made, then absurd as that may be, it wouldn’t be unlawful but if that is the case the DUP should publicly make that clear and bear the political cost of the decision.
If the analysis put forward in this piece is contested by the DUP, then they should set out expressly why that is so and outline which points of the legal assessment they disagree with. They are welcome to do so.