By Jamie Bryson
There is arguably no more important role in society than judicial office, and it inexorably follows that of equal if not greater importance is the position of responsibility for appointing judges. On one view, it is the answer to the question: who judges the judges?
In every free democratic society, judicial independence is of central importance. In Northern Ireland given the bitterly divided nature of society, the independence and political impartiality of the judiciary- both in perception and reality- really matters.
It is a factual legacy of the conflict that the nationalist/republican community purportedly felt that the judiciary was wholly titled against their community. Indeed, so deep ran this misplaced feeling that- appallingly- judges and legal professions were systematically targeted by IRA terrorism.
In 2013, it was recognised by former Lord Chief Justice Sir Declan Morgan that there was a perception amongst the unionist and loyalist community, which had been articulated by then First Minister Peter Robinson, that there was a two-tier justice system, with the judiciary treating those from a nationalist/republican background more favorably than those from a unionist/loyalist background.
I should say, for full disclosure, this row came about after a court remanded into custody me and the late William Frazer for the ‘offence’ of technically taking part in an unnotified public procession as part of the wholly legitimate Union flag protest (the first persons at that time in the United Kingdom ever remanded on such a petty sessions charge, which amounted to glorified jay-walking) whilst on the same day, before the same court, South Armagh IRA terrorist Sean Hughes appeared on charges of IRA membership and was released on bail. There was arguably never a more vivid example of a two-tier system than what transpired that day.
It was that day, and the 2018 nationalist conspiracy to target Lord Justice Sir Bernard McCloskey in Re Raymond White’s application (in which nationalists from media, academia, the legal profession- including Barra McGrory who had just stepped down as DPP- worked together to contrive a recusal application to try and remove a judge who had dared rule against nationalism on legacy matters) that ignited my own personal determination to try and do something to challenge the inherent imbalance within the professional class.
It was to Sir Declan’s credit he accepted this perception existed and resolved to addressing any concerns arising. Whether his efforts succeeded in changing the perception is open to debate; the issue goes much wider than merely the judiciary, with many in unionism/loyalism (and indeed a number of persons actually practicing as solicitors and barristers) feeling the legal profession has become disproportionately politically partisan and pro nationalist. This perception wasn’t helped in 2018 by the ‘Letter to Leo’, in which nationalists from across the professional class signed a politically partisan public letter to the then Irish Prime Minister in respect of Brexit, identifying themselves by their profession. There was many signatories from solicitors and barristers, not in a personal but in a professional capacity.
That nationalists would behave this way was not what surprised me (it was obvious for some time that many from a nationalist background use their professional status to advance communal political objectives), but rather it was just how brazen and acceptable the partisan politicisation of the professional class had become. If, for example, dozens of legal professionals had signed a public letter supporting the Human Rights of the Orangemen to walk up the Crumlin Road or opposing the pernicious Irish Sea border, there would have been outrage, but when it is the other way around, there was barely a whimper.
There are many barristers from a unionist background who tell me they simply ‘keep the head down’ because it is now almost accepted that it is not merely tolerated but indeed orthodox to be openly nationalist and liberal in viewpoint, whereas it would be frowned up and indeed a person would be ostrasiced and doors for professional advancement closed if there was any similar ardent manifestation of unionist let alone loyalist political viewpoints. That is, obviously, a serious situation and speaks to a much deeper issue as to the two-tier society created by the so called ‘peace process’.
It is arguably therefore a vivid example of this that Patricia MacBride has largely without protest been appointed as judicial commissioner, responsible for appointing Judges. Whilst Ms MacBride is entitled to her views, she is a controversial character (as I am on the other side of the fence, but- and this is the point- someone such as me would never be appointed to pick judges as I could never been seen as truly independent and impartial). Her political partisanship, verging on Irish nationalist/republican fanaticism, is well known and can be observed by a simple reading of the back catalogue of her weekly articles in the Irish News which only recently ceased.
In addition, her pro IRA views are well known. She is the proud author of the ‘Ballad of Mairead Farrell’, a song commemorating an IRA terrorist, with the lyrics urging young women to “take up the gun” to “fight for the IRA”. In 2008 Ms MacBride was appointed a victims commissioner and in her self-penned bio referred to her terrorist brother as an “IRA volunteer” who was “killed on active service”. Moreover in both 2013, and then on 23 October 2018, Ms MacBride referred to the “ten victims” of the Shankill bombing, equating IRA bomber Thomas Begley with the innocent men, women and children murdered by his bomb. Thereafter, Ms MacBride became one of the most prominent faces in the ‘Ireland’s Future’ politically controversial campaign group.
It is imagined and fair to assume that when recommending Ms MacBride for the judicial appointments commissioner role, that Lady Chief Justice Dame Siobhan Keegan- who fiercely guards the independence and impartiality of the judiciary and is known to be non-political- was unsighted as to the true nature of Ms MacBride’s views and political activities. However, that defence which arguably absolves the Lady Chief Justice cannot benefit the DUP. They know exactly who Ms MacBride is and the extent of her pro IRA views. And yet, despite this, in a move as shameful as their acceptance and implementation of the Irish Sea border, the Deputy First Minister approved the appointment of Patricia MacBride.
That is not a personal attack on Emma who is a friend, but as the holder of that political office it must be said that the decision was truly abhorrent and without justification. The suggestion that there was a mandatory requirement to approve the appointment, or that MacBride’s ‘political opinion’ couldn’t be taken into account was manifestly wrong and represented a fundamental misunderstanding of the law.
Firstly, there was and is no mandatory duty to ratify such appointments, it is a discretionary political choice; secondly, true it is that saying Ms MacBride’s Irish nationalist views wouldn’t be grounds for refusal, but this fails to appreciate that it is the element of these views which accepts and endorses IRA terrorism which puts Ms MacBride in a different category. It is not protected political opinion if you express views which endorse or indicate acceptance of terrorism. There was ample grounds to refuse to approve Ms MacBride on this ground alone.
The damage to confidence in the judiciary and NIJAC itself by this escapade, which isn’t going to fade into the memory but will remain a live issue, is immeasurable.
There are twelve commissioners including Ms MacBride. The others are the Lady Chief Justice, Bernard Brady KC, Paul Douglas, Justice Humphreys, His Honour Judge Miller KC, Michael Robinson, Lord Justice Treacy, District Judge Anne Marshall, Maureen Eccles, Brian McTeggart and Colm Donaghy.
There is no conceivable issue which could be taken with any of the eleven aforementioned persons either in respect of their suitability for the job, their character or their independence. It is true to say that one may disagree with the legal views or decisions of some of the persons, but there would be no credible grounds to impugn the political impartiality of any of the other commissioners.
It is also of note that of the eleven other commissioners, nine are listed as having no political activity whilst two, Ms Marshall and Mr Douglas, have affirmed they have engaged in no political activity within the last five years (a reasonable ‘cool off’ period it might be said). However when it comes to Ms MacBride, the profile differs from every other commissioner; Ms MacBride is not even required to declare her political activity and/or when it ceased, but rather is permitted to simply state she has “undertaken not to engage in any political activity on taking up appointment”.
Why is a different standard applied to Ms MacBride, which seems to be wholly designed to prevent the public from gaining an awareness (certainly from the NIJAC profile) as to the extent of her partisan political activity.
The public have a right to know, for example, was Ms MacBride a member of Sinn Fein in recent years? Or when did her membership cease?
These are issues of fundamental importance and if unionists/loyalists continue (as the DUP appear determined to do) to not only turn a blind eye to a two-tier system, but actually actively become implementers of it, then not only will nothing ever change for our community, but things will get even worse as we will be increasingly pushed further to the margins and excluded from the key opinion forming and decision making institutions of society.