It is wrong in law to say Justice Keegan’s 2018 judgement sets a precedent: Unionists should contest such false interpretations
By Jamie Bryson
During a BBC Nolan debate on the new East Belfast Cultural Collective last week, former SDLP councillor Tim Attwood made a number of assertions relating to the order issued by Mrs Justice Keegan on 10 July 2018, in relation to the Walkway bonfire site.
Mr Attwood claimed the order had set a precedent and claimed there was a statutory duty to intervene if a bonfire was a safety risk. He did not explain who would be responsible for making such a judgement, nor was this test- seemingly created by Mr Attwood- defined within Justice Keegan’s interim order.
The order of the court did not place a default statutory duty on landowners to intervene in relation to bonfires, even if it was subjectively deemed there was a risk to property or life. Therefore the assertions of Mr Attwood, later supported by others are quite simply wrong in law.
Even within the order of Mrs Justice Keegan requiring the Department for Infrastructure to take steps in relation to the bonfire had to be read in conjunction with (2) of the same order, which made clear the Department was released from the requirement outlined at (1) if;
- A) the Applicant and Respondent both agree that the resource required to comply with the Order at 1 is required elsewhere; or B) In the event of the agreement and implementation of any community based resolution, approved by the Applicant and the Respondent
The order at (2) highlights the absurdity and legal illiteracy of claiming that the Judgement of Ms Justice Keegan places a statutory duty on public bodies and/or landowners to automatically intervene. It plainly does not.
What the judgement did do- in the discreet circumstance- was give the applicant, Belfast City Council, a veto over any agreed solution. This in practice, if taken as a precedent, provides a nationalist dominated council a further veto over bonfires. I would therefore like any unionist representative that either (a) supported taking the court action or (b) supported the judgement and/or the interpretation of it promoted by nationalists, to explain their rationale.
The logic of the position articulated by Mr Attwood, and later supported by other elected representatives, which is wrong in law, is that if in the subjective viewpoint of a nationalist dominated council any bonfire was a safety risk, then there would be a statutory duty to go in and remove it. Therefore you would hand nationalists a veto over bonfires. How could any unionist support this?
To further demolish the aforementioned assertions I would simply draw their attention to the most basic of legal facts. The order issued by Justice Keegan was an ‘Interim Order’; for those that do not understand, that means the order was a preliminary one pending the outcome of a full Judicial Review. Such an order is without prejudice to the outcome of a full hearing. No full hearing ever took place, so therefore the order has no force of law in terms of acting as case law or guiding legal principles for statutory agencies.
I would also draw attention to the relevant ‘Inner East’ section of the independent bonfire report produced by respected mediators. It confirms that NIFRS felt the bonfire was “manageable” and further confirms that the decision to go to the High Court was an adversarial one, with the land owner opposed to such a move.
There were- without doubt- serious issues with the Walkway Bonfire. This was a fact recognised by loyalists, and indeed the independent report shows loyalists accepting this fact during positive mediation with DfI, NIFRS and independent observers. This mediation was proving fruitful, until such times as a third-party, who had no interest in the land or statutory responsibility, decided to intervene on the somewhat flimsy ground that they had property nearby. It is worth remembering that ultimately the bonfire was lit with no damage to any property. That is not to excuse the unacceptable location, but rather is a statement of fact.
Positive self-regulation has always been the best way forward; enforced solutions and criminalisation will always be counter-productive. Criminalising cultural expression- even if such expression is innocently misguided- is never a good idea.
Those who support the court judgement, and nationalism’s interpretation of it as a precedent creating a statutory duty, are perfectly entitled to do so, but it is important that they- especially unionists- understand exactly what they are supporting and the weapon they are seeking to place in the hands of nationalist dominated councils.
If any unionist supports last year’s court action, or indeed supports setting a precedent creating a statutory duty to remove bonfires, then I would like to offer such persons the opportunity to articulate their viewpoint on Unionist Voice with a platform piece and explain their position.