Manners have been put on nationalist Ministers over Bonfire action- but Scoffield J should have went further
By Jamie Bryson
Today’s judgment by Mr Justice Scoffield is significant for a number of reasons. The Court found that it was persuaded by the merits of the challenge, particularly in relation to the core contention that the bringing of legal proceedings seeking to remove the Tigers Bay bonfire was significant and controversial within the meaning of 2.4 (v) of the Ministerial Code and s28A (5) of the Northern Ireland Act 1998.
Paragraph 13 is strikingly clear on this issue:
“ I remain of the view that the threshold for the grant of leave on the merits has been surmounted, certainly in relation to the issues summarised at paragraph (a) above. There is an arguable case that an Executive Minister seeking to judicially review an operational decision of the Police Service is significant; and a plainly arguable case that the application made by the Ministers in this instance was significant and/or controversial within the meaning of those terms in section 20(4) of the NIA, given the general political controversy surrounding the bonfire in question. The arguability of those matters is put beyond doubt, however, by the fact that another Executive Minister, the DAERA Minister, made clear in the correspondence to the DfI and DfC Ministers referred to at paragraph  above that he and other Ministers considered the issues to be significant and controversial. As I observed in Re Safe Electricity A&T Ltd and Woods’ Application  NIQB 93 (“SEAT & Woods”), at paragraphs  and , the views expressed on these matters within the Executive Committee by other Ministers will usually be a powerful indicator as to whether or not a decision is one which requires Executive approval as a matter of law.”
The respondents, nationalist Ministers Mallon and Hargey, did not mount any defence on this substantive point. This is unsurprising, because they have no defence. They plainly acted unlawfully in bringing proceedings without Executive approval.
Crucially, paragraph 13 also reaffirms the clear principle that it is for Executive Ministers to decide whether a matter is significant and controversial, and as set out in Woods, the Court will not interfere with this unless it is entirely unreasonable. If the significance of this isn’t immediately apparent, it should be.
It means that it is for Minister Poots to decide whether it is necessary to refer to the Executive a decision on whether to continue Protocol checks. At the point of referral, he is deprived of Ministerial Authority to continue with checks. Today’s judgement makes clear (as should have already been clear from paragraph  and  of Woods) that if a Minister in the Executive determines a matter is significant and controversial, then this view prevails and save for the most exceptional circumstances, authority is then required for the decision.
In short; it is powerful authority for the correctness of DAERA conceding on the legal challenge in regards their failure to refer Protocol implementation to the Executive and their commitment to now do so.
In addition, at paragraph 27 Scoffield J clearly indicated that going forward, the Ministers should educate themselves as to the clear obligations in relation to significant and controversial matters, he stated inter alia
“….There is now a substantial (and growing) body of case law examining what the relevant statutory terminology in section 20 of the NIA means and how it should be approached as a matter of law, of which the decision in the SEAT & Woods case referred to above is probably the most recent instance”
At paragraph  there is a further clear indication that, in future, these matters should go to the Executive committee. In short, unionists could now veto any future such unilateral action. Scoffield J states inter alia
… If any such further litigation does arise, the question of whether the relevant Minister is deprived of authority to commence proceedings in the absence of Executive approval can be addressed at that point: ideally, in the first instance, in the Executive Committee itself but thereafter, as necessary, in court, either by way of judicial review or by way of collateral challenge to the Minister’s actions in the course of the defence of the proceedings in question. (emphasis added)
And in concluding at paragraph , Scoffield J gave a yet further indication that the Ministers should ‘take the hint’ and “carefully consider” these issues going forward. He said
 If, and in the event that, an Executive Minister is again considering initiating judicial review proceedings against the PSNI (or another public authority, such as another Minister) no doubt further consideration will be given to the themes which the applicant had hoped these proceedings might address. If any such issue requires resolution by the courts it would be preferable for that to occur in the context of the new factual scenario in which it arises. This application will no doubt have been of some utility in ensuring that, where a Minister is considering such a step, this issue will be given careful consideration in advance.
Whilst it is of course welcome the judgment makes clear that we plainly have established a case on the merits, it is nevertheless deeply disappointing that Scoffield J has, in my view, allowed political considerations to prevail and accordingly refused leave ruling that the matter was now academic because the Ministers bonfire action had failed so abysmally in any event.
The Judge was led into this error by the submissions of senior counsel for the respondents who, unable to in any substantive way resist the merits of the significant and controversial point, proceeded to effectively plead with the Court not to allow the nationalist Ministers to have to suffer any political embarrassment. It is notable that neither the relevant Ministers, or the Court itself, had any such concern when it came to the politically motivated litigation launched against DUP Ministers by Sinn Fein activist Sean Napier.
There are very real general concerns that there is an ethos running throughout the judicial system whereby nationalist applicants are treating differently than those from a unionist background. It seems highly unlikely that the Court would have spared the blushes of a unionist Minister in comparable circumstances.
Scoffield J is a superb judge, arguably the finest on the High Court bench, and plainly is of such intellectual capability that it is hard to see how he does not eventually end up serving as a Justice of the United Kingdom Supreme Court. He also has a reputation (unlike some judges) for courtesy and fairness to all. In short, in my opinion Mr Justice Scoffield is the epitome of what a Judge should be.
In his Judicial career thus far, he has issued a stream of hugely significant (and from a unionist perspective, absolutely vital) constitutional judgments in recent months. Indeed, the judgement issued today is carefully considered and provides vindication to the correctness of not only the point in this case, but also sounds on the DAERA challenge- which has already been conceded by that Department.
However, in the United States amongst the Supreme Court there is what is known as the ‘Greenhouse effect’. It takes its name from a prominent journalist who reports on the Supreme Court, and it is essentially where a Justice of the Court becomes influenced by the wider public commentary by a liberal elite network- both in legal academia and media- and subconsciously starts to seek that approval.
In Northern Ireland- as addressed in recent weeks- media, academic and legal professions- at least in the public sphere- are dominated by pro nationalist narratives. There is a well-structured nationalist network which can create the climate to influence judicial decision making- essentially, our own version of the ‘Greenhouse effect’.
The influence this has should not be underestimated. Judges read newspapers, listen to radio, watch TV and read academic writings. Given these fields are saturated with nationalist intellectual capital, it is a matter of common sense that Judges will be – either consciously or unconsciously- influenced by this.
In short, if a Judge wants an easy life, there will rarely be any public sphere criticism of a ruling against a unionist or loyalist, however if a ruling is against a nationalist (especially a SF or SDLP Government Minister), the Judge can expect significant ‘elite network’ criticism. It is unsurprising therefore that many judicial figures (unconsciously) slip into the inherent pro nationalist ethos which prevails in the public sphere.
It is hoped that Scoffield J will not be swayed by this prevailing nationalist ethos, which undoubtedly does sweep around our Judiciary in Northern Ireland. A unionist bringing an application before the Court should get exactly the same treatment as a nationalist.
In this case, the Judge has set out the reasons for his decision. There is no doubt in my mind all points were given fair consideration, and I do not suggest for one moment that in this instance the Northern Ireland ‘Greenhouse effect’ played any role, or indeed ever would do so in regards this particular judge (although, plainly that isn’t true in regards some others). It is a persisting concern more generally.
It is nevertheless deeply regrettable that Scoffield J has ducked providing a remedy in this case and failed to ensure the nationalist Ministers are held to account for their illegality. It is a very concerning precedent that a nationalist Minister can evade their legal duties by simply issuing a last-minute decision, which is plainly unlawful, and then subsequently hiding behind the matter being academic to avoid legal remedy against them.
Undoubtedly the precedent set on that particular issue will not escape unionist Ministers, and I trust that they will return the serve and rely on this judgment as authority for there being no subsequent legal consequences for any last-minute decision they take in calculated defiance of legal obligations. The Court has invited chaos, and unionist Ministers should accept the invitation.
The application will now be renewed before the Court of Appeal, and it is hoped that they fairly consider the merits of the legal points, without in any way giving effect to the political pleas injected into the proceedings by counsel for the nationalist Ministers.