By Jamie Bryson
In the latest dubious- and highly political- judicial decision emanating from the High Court, Mr Justice Colton (a former SDLP election candidate and nationalist activist prior to his judicial appointment) maintained an anonymity order in favour of a Sinn Fein surrogate who is seeking the Court to usurp the legitimate authority of a democratically elected unionist Minister, in order to keep the Union-subjugating Protocol in place.
The republican activist’s affidavit in the case- which is referred to in the open judgment- sets out his background. In analysing the information disclosed, there is a major unanswered question as to whether this Sinn Fein surrogate has any terrorist convictions or whether he had been (or indeed still is) an active member of the IRA.
The judgment of Colton J does not address this salient point, rather the Sinn Fein surrogate is presented in wholly neutral terms, with the Court accepting- without any scrutiny- some of the ludicrous and fanciful claims advanced by the republican activist.
In consequence the Sinn Fein surrogate, using the High Court as a theatre of political warfare, is permitted to bring his proceedings whilst lurking beneath the darkness of anonymity. This, presumably, is buttressed by the benefit of legal aid funding.
I am aware of various examples of how the Legal Services Agency resist legal aid applications from unionists/loyalists, and yet it seems that some legal firms have an almost default presumption in favour of the grant of legal aid for politically motivated nationalist/republican activists, often for the most ridiculous of cases. This is worth some scrutiny.
In addition to the darkness of anonymity being bestowed upon the republican activist, the Court delayed the hearing date until…election day. This has the effect- to nationalism’s benefit- of keeping the checks in place through the election campaign, and trying to allow the Union-subjugating Protocol to cling to life and thus slowly choke to death the United Kingdom as we know it, and certainly Northern Ireland’s place within it.
Mr Justice Colton also refused a UVPS application to intervene in the case (despite it having been UVPS that brought the legal challenge leading to the impugned order) citing concerns political arguments could be advanced in the proceedings.
If it is appropriate (and I say it is not) to weigh in the balance political background of participants- to their detriment- in proceedings in order to ascertain their likely contribution, then this is a double-edged sword for Colton J.
Given the political background of applicants is a justifiable “concern”, then by Colton J’s own logic it may be fair for unionists/loyalists to have their own concerns as to the political background of the Judge hearing the case. I put it no higher than that.
I should repeat, as I have many times, that Justice Colton is one of the fairest judges you will find and he without any doubt treats all persons (even those- like me- who have criticised him) with dignity and respect. Unlike some, he seeks to give everyone a fair hearing. That is not in dispute. However, the nature of Northern Ireland does lead to concerns that there may be a political subconscious bias when it comes to deciding borderline cases with political consequences.
There has been growing general concern- across all sections of unionism- as to (to put it at its lowest) a perception of bias in the Higher tier of the judiciary in Northern Ireland given that effectively every contentious political question that comes before the High Court is resolved in favour of nationalism. Whilst such an outcome is undoubtably in keeping with the pernicious political ethos underpinning the ‘process’ (unionism must give- nationalism must get), it completely undermines confidence in a supposedly independent judiciary.
As has been argued in detail recently, concerns amongst unionism/loyalism as to judicial bias is nothing new. In 2013 the issue was raised by then First Minister Peter Robinson, and such was the deep concern, the then Lord Chief Justice Sir Declan Morgan had to acknowledge there was such a perception and commit to seeking to engage to remedy that. Nothing of substance has been done, or seems will be done, by the judiciary to engage with that perception.
In every other arm of the state post 1998 there had to be ‘equal representation’ (who could forget the horrendous post-Patten discrimination against Protestants in policing) in order to ensure confidence in the institutions of the state and to deliver that somewhat elastic concept of ‘equality’.
Equal representation was weighed by religion. That was probably a mistake given that religion and political background aren’t always the same thing; there may be many catholic unionists and protestant nationalists (see, for example, many Alliance members). However, that is the standard by which ‘equality’ was to be judged.
And yet, when it comes to the highest tier of the judiciary in Northern Ireland, notably the most senior posts (and indeed separately the same imbalance persists in the most senior posts in the PPS, even post the departure of Barra McGrory- the less said on that former DPP the better), there is a startling religious imbalance.
This is in keeping with the legal profession itself, which has been made a cold house for unionists/loyalists by the increasing politicisation of the independent profession by the likes of the ‘Ireland’s Future’ activists and some of the dubious statements issued by the Bar Council and Law Society.
The general feeling is that unionist/loyalist criticism of the judiciary will only lead to even more detrimental treatment. That may be so, and the evidence seems to suggest that is the trajectory. However, that can not be a reason for unionism/loyalism to be bullied into silence or to avoid legitimately and fairly criticising or challenging judicial decisions, especially those which at least on a prima facie basis appear entirely politically motivated.
It is pretty much accepted amongst working class unionism/loyalism that fair treatment will be the exception rather than the rule in engagement with the judiciary in Northern Ireland. That is why most (see for example the Protocol case) start out litigation with the aim of progressing out of Northern Ireland’s courts and to the Supreme Court whereby a fair hearing is guaranteed, absent political considerations.
Notwithstanding the unfairness, imbalance and politically motivated decisions, unionism/loyalism must battle on. Keep bringing cases, keep forcing the political decisions and then relentlessly shine a light on them by fair and forensic public scrutiny, and where appropriate appeals.
We shall overcome!