By Jamie Bryson
In today’s Belfast Telegraph several nationalist activists are expressing outrage in relation to members of the unionist and loyalist community raising concerns around judicial impartiality.
The contributions come solely from nationalists, without any counterbalance on this important issue of public debate.
There is no effort in the Belfast Telegraph to represent differing views on this important debate, rather it delegitimises unionist/loyalist concerns allowing them to be presented as “slurs” and “abuse”. Indeed the factual basis of the core concern recently expressed in relation to the SDLP background of a Judge hearing constitutional cases is not even mentioned.
Quoted- in entirely neutral terms of course- is nationalist activist Colin Harvey (leading light in Ireland’s Future which is designed to politicise opinion forming professions such as media, academia and law), Sinn Fein MP John Finucane (who refuses to condemn the bombing of the Old Bailey or the IRA murders of Judges and unionist lawyers) and an anti-unionist Alliance activist.
It is notable that when quoting Mr Harvey- a self identified nationalist who labelled himself as such via his profession in Ireland’s Future letters- he is presented in entirely neutral terms. Will unionists/loyalists also therefore be afforded the equal veil of neutrality?
The article is nevertheless helpful in illuminating the inherently schizophrenic nature of the ‘peace process’ in Northern Ireland. The entire ‘process’ rests upon a number of key pillars, one of which is a commitment to equality of representation in public roles.
It is for this reason that we had to have 50-50 recruitment, which lead to mass discrimination against Protestants, and this drive within policing continues to be the key PSNI priority to this very day, notwithstanding the significant concerns around demonstrable two-tier policing which have went entirely unaddressed.
Nationalists slammed the ‘unionist state’ and claimed discrimination in the key institutions of our society in Northern Ireland. A correction of this supposed imbalance (which was often more perception than reality) thus became a key pillar of the ‘peace process’.
And yet now, when unionists/loyalists raise well founded concerns about an imbalance in key opinion and policy forming institutions such as media, academia, and law (including the Judiciary) there is contrived outrage from the very same people who have advanced their political objectives for over two decades built upon a grievance narrative, which is part of a strategic objective to green all institutions and professions which exert public influence.
The concern within unionist/loyalist communities about judicial impartiality is nothing new, and nor is it a ‘fringe’ or ‘extreme’ viewpoint.
In 2013 the then leader of Unionism and First Minister Peter Robinson raised concerns in regard to a lack of impartiality in the judiciary, specifically pointing to the grave disparity in how loyalists and republicans were treated by the courts.
I remember the incident well.
It arose after IRA terrorist Sean Hughes appeared in court on terrorism charges and was granted bail, whilst on the same day IRA victim William Frazer and I appeared in court charged with an unnotified public procession in relation to the legitimate flag protest (glorified jaywalking- a minor petty sessions offence for which no one- other than us on remand- has ever served a single day in prison) and were remanded in custody.
After a highly politicised and wholly inappropriate judicial outburst from the High Court bench in response to Mr Robinson, DUP MP Sammy Wilson reminded Judges they were “well paid civil servants”.
A few days after Mr Robinson’s intervention then North Belfast MP Nigel Dodds, speaking in Parliament said, “there is anger and bewilderment among people of the perception of double standards by the courts.”
This huge political row prompted the then Lord Chief Justice Sir Declan Morgan to give a rare TV interview to try and calm tensions, stating that he was keen to address concerns over impartiality. Indeed, Sir Declan confirmed “the concern on my part is shown by the fact I am giving this interview, along with the various other steps I have taken in relation to this…”.
In addition, the then Lord Chief Justice was very clear in saying “I do not think public comment over important issues should be stifled in any way” and confirmed that politicians and the public “should be free to express their views about the justice system.”
It is clear therefore that unionist/loyalist concerns over judicial impartiality is nothing new; it has been brewing for nearly a decade- and in truth at a grassroots level long before unionist politicians began to articulate the concerns around 2013.
The legitimate nature of the concerns was accepted by the then Lord Chief Justice, who was sufficiently moved to take various steps to engage on the issue.
It is also beyond dispute- solidified by Sir Declan’s comments above- that it must be open to members of the public and politicians to express critical views on the judiciary. They are not beyond criticism or challenge (so long as this is on genuine issues and doesn’t resort to threats, abuse, or personalised attacks).
In 2018 nationalist activists- driven by republican group Relatives for Justice and a prominent republican solicitor- launched a campaign against Mr Justice McCloskey (now Lord Justice of Appeal) which was based upon an assertion (which was nevertheless inaccurately and maliciously manipulated) focusing on his previous representation of RUC officers.
This campaign was initiated because McCloskey J (as he then was) had ruled against the Police Ombudsman in relation to the lawfulness of the report into the troubles related Loughinsland killings.
The theme of the nationalist campaign was that because whilst a professional QC Mr McCloskey represented RUC officers, that there was therefore a “perception of bias” in relation to legacy cases and he should not hear such matters.
As a point of note the recusal application on the issue was argued by Barra McGrory QC, a man who had himself been a solicitor of choice for the IRA (including on the secret On the Runs amnesty scheme) and yet he singularly failed to apply the same standard in regard to ‘perceptions’ to himself, instead seeing no perception of bias in him having acted as Director of Public Prosecutions.
I am sure Lord Justice McCloskey looked on in bewilderment at Barra McGrory of all people advancing an application based on purported “perception of bias”.
There was no media outrage at this campaign, rather quite the reverse. The media legitimised and assisted in the campaign. Needless to say nationalism’s academic, media and legal activists did not take to twitter to express solidarity with Lord Justice McCloskey- instead they to varying degrees, both overtly and covertly, assisted in orchestrating the campaign against him.
In fact, two nationalist activist journalists challenging (albeit outrageous) search warrants advanced an additional recusal application, essentially arguing Lord Justice McCloskey couldn’t be independent on any political issues involving nationalist activists at all. This was barely covered in the media, let alone criticised.
Therefore, if there is to be blame attributed for opening a new front of the cultural wars in the judicial arena, then that blame should be put where it belongs- with the very people who now piously express their faux outrage at justified unionist/loyalist concerns about judicial balance in senior positions and impartiality.
When nationalist activists present themselves as champions of judicial independence, two words confound their false moral outrage: Bernard McCloskey.
It can be no surprise that given the key role perception plays in Northern Ireland that unionists/loyalists would be deeply uneasy about a former SDLP activist and election candidate, Mr Justice Colton, determining key political cases which have found their way into the legal arena.
If, for example, Jim Allister QC- a distinguished barrister- had found himself elevated to the High Court bench, is there anyone seriously suggesting there would not be nationalist outrage at any suggestion Mr Allister would be responsible for determining key constitutional cases?
None of this is to call into question Justice Colton’s personal integrity or fairness. I would not do so. Quite the reverse. I have every confidence that even after this article and other previous public criticisms I have advanced (in my view fairly) against Justice Colton, if I were to appear in his Court this afternoon I would be treated with fairness and dignity.
It is important not to conflate legitimate issues of perception- which are crucial in relation to confidence in the judicial system- with any suggestion of there being an attack on the personal integrity or decency of Adrian Colton.
In Northern Ireland perception matters, rightly or wrong. It is too late to bolt that stable door. The horse bolted when an entire peace process was built upon not only the institutions of State needing to be fair but needing to be seen to be fair in terms of equal representation.
There is an additional debate in regards an enormous religious imbalance within the highest tiers of our judiciary. Whilst religious background is not necessarily determinative of political viewpoint, this is nevertheless the objective standard which has been used to monitor equal representation. That was probably an error, but again- the horse has bolted.
If there was such a clear religious imbalance in favour of Protestants in the highest tiers of our judiciary, there would be nationalist outrage and a demand for ‘equality’. And yet when the imbalance goes the other way any unionist/loyalist concern is deemed entirely illegitimate.
For there to be a stable and functioning democratic society, there must be confidence in the judiciary to be independent, impartial, and fair to all regardless of background. Unfortunately, rightly or wrongly, the perception amongst many in grassroots unionist/loyalist communities is that there is a grave imbalance within the judicial system.
It is hoped that the new Lady Chief Justice takes steps to engage with working class Protestant, Unionist and Loyalist communities and to participate in discussions and events to build confidence within our community.
It is noted that previous and current senior members of the judiciary have inter-alia participated in the West Belfast festival, provided Pat Finucane lectures and engaged in discussions around the impact of Brexit from a nationalist perspective.
Legitimate public criticism of judicial decisions or practice is a key cornerstone of accountability. In that regard I do not think it unfair to raise concerns about judicial impartiality, and to point out the perception issues which arises from a Judge with an overt political background determining key constitutional issues.
In Northern Ireland that creates a perception of bias. That would seem to be to me grounds for a dignified recusal for the greater good of community confidence in judicial impartiality.