By Jamie Bryson
In Northern Ireland we have fantastic court reporters who are journalists of the highest capability. We are lucky to have persons such as Ashleigh McDonald, Alan Erwin and Paul Higgins to name but a few.
Their job is to report simply verbatim on the proceedings in court, and often to do so in a manner that distils hours of oral argument down into digestible 600-800 word news report. That is not easy task, and it is one they perform with expert clarity and fairness to all sides.
However, they do not offer commentary, background, or wider legal analysis of the cases. Indeed, they should not do so as this would cross the boundary between reporting and commentating.
In Northern Ireland, this is where the gap exists. The court reporters verbatim report what is said in court by distilling hours of argument into a concise news story, but there is no one (save for in recent times the excellent contributions on constitutional cases- including the Tigers Bay case- by Richard Bullick, and some analysis articles penned by Sarah Creighton) regularly providing deep analysis of the background or true substance of cases.
That has never been as true as in relation to the Tigers Bay bonfire challenge. The headlined screamed ‘Jamie Bryson loses bonfire challenge’, which prompted hundreds of trolls to wet themselves with excitement.
On the narrow procedural issue of whether the case was academic and thus no further remedy was required, that headline may be so. But on the substance of the case, it is entirely misleading.
Indeed, those celebrating our ‘loss’ should probably take a breath, try to understand the actual outcome of the case, and then they might realise that in fact the outcome is a unionist veto over Executive Ministers taking legal action to remove bonfires in the future.
The basis of the legal challenge was an assertion that the nationalist Ministers (Mallon and Hargey), had acted unlawfully in seeking to force the PSNI to remove Adam Street bonfire in Tigers Bay. This related to the failure to bring the matter to the Executive committee pursuant to section 28A of the Northern Ireland Act 1998.
Importantly, the Ministers in the first hearing before Scoffield J, and in the Court of Appeal before Treacy LJ, Horner J and Humphreys J, did not offer any resistance to the assertion they had acted unlawfully in breach of the Ministerial Code.
The defence mounted was purely procedural and resolved itself to this: we lost our challenge to force bonfire removal, so it doesn’t really matter now and this is just an effort to embarrass and discipline the Ministers in public, and there is no need because the legal understanding is now there so there’ll be no repeat.
On balance the court accepted that position, but only on the basis of the clear position that there was no contest to the legal principle.
Treacy LJ remarked that there was “no serious dispute over the law, Ministers can only take such action if it isn’t significant or controversial or cross cutting.”
Counsel for the two Ministers accepted the analysis of the court, and that put forward at the heart of our case, (and thus the fact they had no substantive defence) but deceptively sought to frame it as there having been a change to the “legal landscape” due to a number of recent judgments which made the issue clear.
The court was told the Ministers would not now be given the same advice (given it was woefully wrong, one would certainly hope not!).
This “changed legal landscape” concept is absolute nonsense, and merely an effort to somehow justify the howler by whoever provided the advice in the first place. The legal landscape hasn’t changed, it was always the case that Ministers could not take significant or controversial or cross cutting decisions without Executive approval. It is literally in black and white in the Northern Ireland Act 1998 and Ministerial Code.
Humphreys J remarked “it was Mr Bryson who alerted Ministers to their legal obligations, and it was only after that Minister Poots then also realised as well and raised the issue. Is it not a matter of public interest Ministers are not aware of the law?”
He continued “he told them about this issue, but they consciously proceeded anyway”
The true position is that I told Minister Mallon and her special advisors in a minuted meeting on 8 July 2021 that they could not take unilateral action due to the constraints of section 28A of the 1998 Act. The advisors and Minister disagreed and said I was wrong, however they asked me to set the position out in writing.
I did so within two hours. However, they nevertheless proceeded anyway, apparently based on legal advice that I was entirely wrong. It turns out the only person entirely wrong was the senior counsel paid handsomely for legal advice which entirely misunderstood the most elementary provisions of the 1998 Act.
All of this should illuminate that far be it from “losing” the case, in fact in substance we won. That was true of the initial judgement in substance, and that position has only been strengthened in the Court of Appeal, whose written judgment is to follow.
The court went against us on one narrow procedural issue, which really resolved itself to the question as to whether a further hearing, and inevitable declaration as to the illegality, was necessary. But that can not alter the fact that in substance, we succeeded on our substantive point, with all sides now accepting the bonfire group was right, and the nationalist Ministers were wrong.
They have had some manners put on them. Anyone who says we lost should be asked one simple question: is it now the accepted legal position, following this challenge, that nationalist Ministers cannot unilaterally target bonfires without Executive (and thus unionist) approval?
Therein lies the answer.
Treacy LJ asked from the bench “was Mr Bryson’s objective not to prevent the bonfire being removed, has he not achieved that?”
In truth, indeed we have. But more than that, the case has effectively secured a unionist veto, preventing any nationalist Minister taking unilateral bonfire action without Executive authority.