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Judgments - McConkey and another (Appellants) v The Simon Community (Respondents) (Northern Ireland)

HOUSE OF LORDS

SESSION 2008-09

[2009] UKHL 24

on appeal from:[2008]NICA 16

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

McConkey and another (Appellants) v The Simon Community (Respondents) (Northern Ireland)

Appellate Committee

Lord Phillips of Worth Matravers

Lord Rodger of Earlsferry

Lord Carswell

Lord Brown of Eaton-under-Heywood

Lord Neuberger of Abbotsbury

Counsel

Appellants:

Barry Macdonald QC

Karen Quinlivan

(Instructed by Rosemary Connolly Solicitors)

Respondents:

Noelle McGrenera QC

Anne Finegan

(Instructed by J Blair Solicitors)

Hearing dates:

23 and 24 FEBRUARY 2009

ON

WEDNESDAY 20 MAY 2009

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

McConkey and another (Appellants) v The Simon Community (Respondents) (Northern Ireland)

[2009] UKHL 24

LORD PHILLIPS OF WORTH MATRAVERS

My Lords,

1.  I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Rodger of Earlsferry and for the reasons that he gives I will dismiss these appeals.

LORD RODGER OF EARLSFERRY

My Lords,

2.  In about 1975 the first appellant, John McConkey, who was a member of a proscribed organisation, was also in possession of a firearm and ammunition, and committed murder. He was subsequently convicted of offences relating to these activities and sentenced to life imprisonment and other substantial terms of imprisonment, from which he was released on the order of the Secretary of State in about March 1997.

3.  In about 1992 the second appellant, Jervis Marks, was in possession of explosives with intent to endanger life or property and was involved in a conspiracy to murder and a conspiracy to cause an explosion likely to endanger life or property. He was subsequently convicted of offences relating to these activities and sentenced to long terms of imprisonment, from which he was released on licence on the order of the Secretary of State in about October 1998.

4.  In the case of both appellants it is agreed that their involvement in these activities was in support of the Republican cause. It is also agreed that, at all material times in 2000 and 2002 respectively, they no longer approved of, or accepted, the use of violence for political ends connected with the affairs of Northern Ireland.

5.  Their previous involvement in violent crime in support of the Republican cause came to the attention of the Simon Community when it was proposing to offer them employment. As a result, the Community decided not to employ them. The appellants complained to the Fair Employment Tribunal that they had been discriminated against on the ground of their former political opinion approving of, or accepting, the use of violence for political ends connected with the affairs of Northern Ireland. Somewhat reluctantly, the Tribunal rejected their complaints. The appellants appealed by way of case stated, but the Court of Appeal dismissed their appeals.

6.  All this is explained more fully in the speech of my noble and learned friend, Lord Carswell. For the reasons he gives, which are based on the material set out in the Tribunal’s decision, I am satisfied that the Community did not refuse to employ the appellants because of their former political beliefs, but because of a concern that employing them might pose risks for the vulnerable people who are cared for by the Community. Leave to appeal was granted, however, in order to give the House the opportunity to consider the meaning and application of the provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998 (SI 1998/3162 (NI 21)) (“the Order”) relating to discrimination on the ground of political opinion. It is therefore right to deal with those issues, which were fully argued before the House.

7.  Article 19(1)(a)(iii) of the Order makes it unlawful for an employer to discriminate against a person by refusing him employment for which he applies. By reason of articles 2(2) and 3(1), article 19(1)(a)(iii) applies where an employer discriminates by refusing a person employment on the ground of his political opinion. The expression “political opinion” is not defined, but article 2(4) provides:

“In this Order any reference to a person’s political opinion does not include an opinion which consists of or includes approval or acceptance of the use of violence for political ends connected with the affairs of Northern Ireland, including the use of violence for the purpose of putting the public or any section of the public in fear.”

8.  The first thing to notice is that the Order is concerned with discrimination against someone on the basis of the religious belief or political opinion which he holds. It is not concerned with discrimination on the ground of actions that the person may take in support of that religious belief or political opinion. So, for instance, if someone belonged to a religious sect which favoured wife beating, it would be unlawful for me to discriminate against him, simply because of his religious belief. But I would be quite entitled to refuse to employ him if he actually gave effect to his beliefs by helping a friend to beat his wife. Similarly, if someone supports a lawful extreme right-wing or left-wing party, it is unlawful for me to refuse to employ him simply because of his political opinion, but I can certainly refuse to employ him if he gives expression to that opinion by assaulting his opponents or destroying their property.

9.  At para 41 of his judgment in the present cases, [2008] NICA 16, Higgins LJ elided the distinction between an opinion and actions based on that opinion when he discussed whether “the use of violence for political ends is a political opinion to which article 3 applies.” The use of violence can never be an opinion, whether political or otherwise. His question would have to be whether “an opinion approving or accepting the use of violence for political ends is a ‘political opinion’ to which article 3 applies.”

10.  Those in authority in Northern Ireland today hope that people will feel able to put the Troubles behind them. The First Minister and Deputy First Minister therefore urge employers not to refuse to employ people simply because of their involvement in criminal activities of a political nature during that period. But, even today, the Ministers can only issue Guidance, exhorting employers to follow that line. The employers are under no legal obligation to do so. If they choose to ignore the Ministers’ advice and prefer not to employ people with a history of violence, they are free to do so. There was not even any equivalent official advice in 2000 or 2002 when the Community decided not to employ the appellants. The Community would have been perfectly entitled to refuse to employ the first appellant simply because he had committed murder and the second appellant simply because he had conspired to endanger property or life. That was indeed common ground at the hearing of the appeal.

11.  Even to get a toe in the door of unlawful discrimination, therefore, the appellants have to put a very artificial construction on the Community’s reaction to discovering their past history of violence: they have to say that they were refused employment, not because they had been guilty of crimes of violence, but because of a political opinion lying behind those crimes. What opinion? Since the Tribunal found as a fact that the Community would have treated Loyalists with the same criminal record in the same way, the appellants cannot say that they were discriminated against on the ground of their support for the Republican cause. Rather, they say that they were refused employment because of their former opinion, approving the use of violence to advance Republican political ends in Northern Ireland.

12.  At this point, I must examine article 2(4) and article 3(1) of the Order in a little more detail.

13.  When article 3(1) refers to discrimination on the ground of religious belief or political opinion, it must cover both present and past religious belief or political opinion. I can no more refuse to employ you because you were formerly a member of a Protestant church than because you are now a member of the Roman Catholic Church. The same applies to political opinions. Again, that is accepted by both parties.

14.  By virtue of article 2(4), the term “political opinion” in article 3(1) does not refer to an opinion consisting of, or including, approval or acceptance of the use of violence for political ends connected with the affairs of Northern Ireland. As the appellants acknowledge, if they had still approved of the use of violence to advance Republican political ends in Northern Ireland when they applied for the jobs, their opinion to that effect would not have come within article 3(1). It would therefore not have been unlawful, under article 19(1)(a)(iii), for the Community to refuse to employ them because they held that opinion.

15.  Counsel for the appellants contended, however, that article 2(4) is deliberately limited to opinions that people hold at the time when they, say, apply for, and are refused, employment. It does not apply to an opinion that a person formerly held, but has repudiated and abandoned before he makes his application. It followed that, since article 2(4) does not apply, the term “political opinion” in article 3(1) includes a previously held opinion approving of, or accepting, the use of violence for political ends connected with the affairs of Northern Ireland. It was accordingly unlawful, under article 19(1)(a)(iii), for the Community to refuse the appellants employment because they had at one time approved of, or accepted, the use of violence for political ends connected with the affairs of Northern Ireland.

16.  Counsel for the Community made two points in reply.

17.  First, article 2(4) applied to both present and past opinions. An opinion in favour of the use of violence, which someone had previously held but had now abandoned, was accordingly not a “political opinion” for the purposes of article 3(1). So it was not unlawful to discriminate against someone precisely because he had once held that opinion. Under some pressure from members of the appellate committee, Ms McGrenera QC accepted that the logic of her position was that it was lawful to discriminate against someone who had held that opinion but had abandoned it long ago - perhaps twenty years before.

18.  The second contention, though never well focused, underlay a point which surfaced at various points in the discussion before the Committee. The issue was whether the type of opinion identified in article 2(4) could ever count as a “political opinion” for the purposes of article 3(1), even if article 2(4) did not apply. Ms McGrenera said it could not. In other words, even if the appellants were right, and article 2(4) did not apply to an opinion which the person no longer held, an opinion of that kind did not count as a “political opinion” for the purposes of article 3(1) and so it would not be unlawful to discriminate against a person because he held that opinion.

19.  Lord Carswell accepts this second argument. I would not be disposed to do so, at least in the way that Ms McGrenera put it. Girvan LJ was surely right when he said, in Ryder v Northern Ireland Policing Board [2008] NIJB 252, 260a-b, that, “depending on the facts, an opinion on methods of achieving certain results may qualify as being truly a political opinion.” For present purposes, one can test the point by taking the converse of the opinion described in article 2(4): an opinion which consists of, or includes, disapproval or rejection of the use of violence for political ends connected with the affairs of Northern Ireland. This would be an opinion behind which people could unite and form a party to contest elections. It would therefore be a “political opinion” according to the meaning of that term “which is recognised and used both in legal documents and in every day speech": McKay v Northern Ireland Public Service Alliance [1994] NI 103, 113g, per Sir Brian Hutton LCJ. In the context of the Order, I see no reason to give the term anything other than its ordinary meaning.

20.  If that is so, then it seems plausible to suggest that, in the context of the Order, but for article 2(4), the opposing opinion described in article 2(4) would also constitute a political opinion. While no single party could unite all those who held that opinion, the opinion certainly could, and indeed did, form part of the creed of various political parties or organisations. Some of those organisations may have been proscribed. But, so far as we were told, it has never been unlawful for a person simply to hold that opinion. Indeed, a considerable number of people on either side of the political divide actually espoused some version of it. The purpose of article 2(4) was, however, to make sure that other people could conduct their employment and other affairs without being forced to associate with those who held that obnoxious opinion.

21.  Of course, article 2(4) forms a crucial element of the context in which the term “political opinion” is to be construed in the Order. One can comfortably conclude that the phrase would be apt to embrace that kind of opinion precisely because article 2(4) deals with what would otherwise be the unacceptable consequence of that view. The position would be very different if article 2(4) were not included. This can be seen from Re Lavery’s Application [1994] NI 209. The Secretary of State had refused to pay the cost of installing special security measures in the plaintiff’s home because he was a member of a party that supported terrorist violence. The plaintiff complained of discrimination on the ground of his “political opinion” under section 19 of the Northern Ireland Constitution Act 1973. The statute contained no equivalent of article 2(4) of the 1998 Order. Not surprisingly, Kerr J was convinced that, if - as a generality - “political opinion” could include the belief that it was legitimate to use or support the use of violence to achieve political ends, that interpretation of the phrase would not have accorded with the intention of Parliament in enacting section 19. Here, by contrast, there is no difficulty in taking the view that, because of, and but for, the inclusion of article 2(4), the opinion which it describes would constitute a “political opinion".

22.  Looked at more narrowly, Ms McGrenera’s argument is indeed unpersuasive because it would render article 2(4) redundant. Of course, a court is sometimes forced to conclude that provisions in a statute are redundant, but the basic rule is that statutes are best construed as a whole and by giving due effect to all their provisions. Looking at the provisions of articles 2 and 3 together, I think that the natural reading is that article 2(4) was included in order to exclude from the scope of the term “political opinion” something that would otherwise have fallen within it - or, at the very least, might reasonably be thought to do so. If admissible, the Parliamentary debates, which I refer to later, would confirm that conclusion.

23.  Mr Macdonald QC was therefore probably right to say that, if article 2(4) does not apply to past opinions, it would be unlawful to discriminate against someone by refusing to employ him, on the ground that he had formerly held the opinion described in article 2(4). At the same time, it would seem strange if an essential part of the scheme of the Order, which vitally affects the interpretation of “political opinion” wherever it appears, were meant to be turned on and off in this way. The crucial issue is, accordingly, whether article 2(4) does indeed apply to an opinion that someone had held previously, but had abandoned by the time he applied for a job. I am satisfied that it does.

24.  The appellants’ first argument for confining article 2(4) to present opinions was so weak as scarcely to bear repetition. Mr Macdonald focused on the use of the present tense in article 2(4) - the idea being that this indicated that it applied only to an opinion that the person held at the relevant time. But article 2(4) is simply one element in article 2, which is headed “General interpretation". Every single definition or gloss in article 2 is framed in the present tense - but they would all apply to the term in question, whatever its relevant time frame in the Order.

25.  For instance, as pointed out already, article 3(2) must apply to discrimination on the ground of past, as well as present, religious belief. No one could possibly suggest, however, that article 2(3), clarifying the scope of the term “religious belief” and written in the present tense, is confined to a person’s presently held religious belief, so as to require “religious belief” in article 3(2) to be interpreted differently, depending on whether the discrimination was on the ground of past or present religious belief. The same goes for what article 2(3) says about political opinion.

26.  Equally clearly, it would be very strange to confine article 2(4) to a person’s presently held “political opinion", so requiring “political opinion” in article 3(2) to be interpreted differently, depending on whether the discrimination were on the ground of past or present political opinion. More concretely, it might seem strange for Parliament to regard an opinion as unacceptable if held now, but to be tolerated if held in the past but now abandoned.

27.  Mr Macdonald seemed to accept that his argument was difficult to sustain on the text of the Order. So he confronted the issue head-on by reference to what he claimed was the policy of the legislation. His essential contention was that interpreting article 2(4) as applying to past political opinion would produce an unacceptable result, which Parliament could never have intended. He sought to bolster this argument by reference to passages in the Hansard report of the committee and report stages when the Fair Employment (Northern Ireland) Bill was going through the House of Commons, prior to becoming the Fair Employment (Northern Ireland) Act 1976 (“the 1976 Act”). The present dispute centres, of course, on the 1998 Order, which repealed the 1976 Act. But the language of articles 2(4) and 3 of the Order is, in its material respects, similar to the language of sections 57(2) and 16 of the Act. So Mr Macdonald argued that what was said in the debates leading to the introduction of an amendment which inserted section 57(2) could be prayed in aid of the construction of article 2(4) of the Order.

28.  On policy, Mr Macdonald repeatedly submitted that the legislature could never have intended to allow people, say, to refuse to employ someone, or to refuse to serve someone in a restaurant, just because he had, many years before, voiced his support for the use of violence for political ends connected with the affairs of Northern Ireland. If the legislation were to permit this, it would be a “bigots’ charter".

29.  Sitting in London, at some distance from Northern Ireland, your Lordships might be tempted by such a submission, chiming - as it might seem - with the often-expressed desire for a new start for Northern Ireland after the Good Friday Agreement. But, as just explained, the origin of the words under consideration lies in an Act passed in 1976, at a time when violent incidents were at their height and long before anyone could see a way out of the conflict. The idea of forgiving and forgetting what people had formerly said and thought might well have appeared less compelling in those days. Indeed, but for his need to rely on passages from Hansard relating to the 1976 Act, Mr Macdonald might have been expected to emphasise the fresh enactment of the words in 1998, rather than their origin in the dark days of 1976.

30.  Mr Macdonald’s description of the respondent’s interpretation of article 2(4) as a bigots’ charter completely - and insensitively - misses the point. It may well be that many, or indeed most, Northern Irish people would now feel able to overlook an expression of support for the use of violence, voiced long ago, in very different times, and long since repented of. But there are, unfortunately, many people on both sides of the sectarian divide whose lives have been blighted by the death of relatives or friends, killed in a politically motivated atrocity. Others have to live out their lives under the permanent burden of injuries sustained in such an atrocity. Some of these people may, indeed, feel able to forgive both the perpetrators and those who approved of what they did. But we admire such feelings, precisely because they cannot be commanded. Other people who have been similarly affected may, quite understandably, be unable to see matters in that way. This does not make them bigots; they are just people who have been deeply and immediately affected by the violence and who do not yet feel able to “move on” - to use the unattractive modern jargon.

31.  The real question therefore is whether the 1998 Order makes it unlawful for people who feel like that to refuse to employ, or to serve, someone who once approved of the use of violence for political ends in Northern Ireland, but now no longer does so. In my view, there is nothing surprising, far less absurd or outrageous, in holding that the 1998 Order allows such people to say: “No, I'm sorry, because of all I have suffered, I won't employ you; I won't serve you.” To hold otherwise would be to force these vulnerable individuals to associate with people who approved of the use of the very kind of violence that has blighted their lives.

32.  The parallel with Jewish refugees who lost relatives in the Holocaust is striking. In the 1960s, it would surely have been unthinkable for Parliament to legislate, say, to force such a Jewish restaurateur to serve a German professor who had spoken in support of Hitler’s anti-semitic policies during the Nazi régime, but had long since seen the error of his ways. Even today, I doubt if it would be done.

33.  At the very least, if the intention of the legislature had been to force everyone, however deeply affected, to ignore previous expressions of approval of the use of violence, I would expect to find it stated in plain words on the face of the Order for all to see, not left to be unearthed in the lucubrations of lawyers.

34.  If at any time the policy of the Order is thought outmoded or its advantages are thought to be outweighed by its potential for abuse by bigots, the legislature can change it. In the meantime, approaching article 2(4) in this way, I do not find it ambiguous, irrational or absurd. I therefore see no justification for looking at the Hansard debates. Nevertheless, Mr Macdonald took the House to some of the debates and was persuaded to clarify the position by providing the additional information which was necessary to understand what was being said.

35.  What Hansard showed was that, as originally drafted, the Fair Employment Bill contained no provision dealing with those who approved of the use of violence to achieve political ends in Northern Ireland. At the committee stage, several MPs were, understandably, anxious to ensure that the ban on discrimination on the ground of political opinion would not benefit these people. In response to their arguments, the government minister, Mr Orme, undertook to consider the matter and to bring forward an amendment in due course. The amendment was introduced at report stage and became section 57(2). So much is clear.

36.  In the course of the debate in committee, a number of references were made to people who had once used violence, but had then changed their mind. The minister said that the government did not want to see those people discriminated against because they might have been involved in the past in any form of violence. Now, it is absolutely clear - and a matter of agreement - that the legislation which the minister was discussing did not deal with that situation and that it remains perfectly lawful to discriminate against people who actually used violence. So there is every reason to doubt whether the minister was a reliable interpreter of the legislation.

37.  Mr Fitt MP gave the specific example of a woman who was known for speaking out in favour of the use of violence. Would she, for the rest of her life, be prevented from seeking the protection of the Bill? The minister replied that anybody who actively encouraged violence but did not himself or herself participate in it “would not be covered by this Bill". It is hard even to imagine what the minister meant, or thought he meant, by that answer. But he did go on to say that he was trying to distinguish between those who had rejected violence and wanted to live peaceably and those who continued to advocate or take part in violence. He then added “It is not an easy question and, as we see it, the terminology of the Bill meets my hon Friend’s point, and it will be for the agency - not some other organisation - to decide ultimately on this matter": Hansard (HC Debates) 6 April 1976, col 523. As a subsequent reply shows, the minister meant that the Fair Employment Agency would have to decide whether someone had really changed his mind (col 524).

 
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