NICE2873		29 June 1999

	IN THE COURT OF APPEAL IN NORTHERN IRELAND

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	IN THE MATTER OF AN APPEAL BY KEVIN FARRELL AGAINST THE 	REFUSAL OF LEAVE TO APPLY FOR JUDICIAL REVIEW

	and

	IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW OF 
	A DECISION MADE BY THE PARADES COMMISSION FOR
	NORTHERN IRELAND ON OR ABOUT 24TH MAY 1999

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NICHOLSON LJ

	This is the judgment of the Court to which we have all contributed.  The applicant, Kevin Farrell, applied on 27 May 1999 to Kerr J for leave to apply for judicial review of a decision of the Parades Commission made on 24 May 1999 whereby the Commission decided not to exercise its powers under the Public Processions (Northern Ireland) Act 1998 to impose any conditions on the public procession proposed by Parkmount Junior Orange Lodge on 29 May 1999.  Kerr J refused leave.
	On 28 May 1999 the applicant appealed to this Court against the refusal of leave and, after hearing submissions from both sides, this Court granted leave.  We then heard the substantive application and dismissed the application.  We indicated that we would give our reasons for the decision to dismiss as soon as practicable.
Procedure
Under Order 53 Rule 3(1) leave of the Court shall be obtained in accordance with the Rule before any application for judicial review, other than an application for an order of certiorari by the Attorney-General acting on behalf of the Crown, is made.
	Such an application must be made ex parte by lodging in the Central Office (a) a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought, and (b) an affidavit or affidavits as the case may require, verifying the facts relied on.
	Rule 5(8) provides:
		"Except in a criminal cause or matter the Court of Appeal may hear and determine an application for an order under this rule where the Court has granted leave under Rule 3 on appeal from the refusal of such leave by the Court."

	Rule 10 provides:
		"Leave shall not be required for an appeal to the Court of Appeal from -

		(a)	an order refusing an application for leave under Rule 3; or

		(b)	an order granting or refusing an application for judicial review."
		
	The wording of Order 53 Rule 5(8) makes it clear that the Court of Appeal has jurisdiction to entertain an appeal from a refusal of an ex parte application for leave to apply for judicial review and empowers it to hear and determine an application for judicial review if it grants leave on appeal.
	The Lord Chief Justice in Re: Bignell's Application stated:
		"The appellant originally sought to renew her application to the Court of Appeal under RSC (NI) ord. 59, r. 14(3), but on our invitation, in order to bring into operation the provisions of RSC (NI) ord. 53, r. 5(8), she sought and was granted leave to appeal out of time under RSC (NI) ord. 53 r. 10(a) against the refusal of leave."
	The practice in England and Wales is different.  Where an application for leave in a non-criminal cause or matter is refused by the Judge, or is granted on terms, the applicant may renew it by applying to a single Judge sitting in open Court, or if the Court so directs, to a Divisional Court of the Queen's Bench Division - see Order 53 Rule 3 - provided that no application for leave may be renewed in any non-criminal cause or matter in which the Judge has refused leave after a hearing requested in the notice of application: see Order 53 Rule 3(4).
	Under Order 59 Rule 14(3) of our Rules:
		"Where an ex parte application has been refused by the court below, an application for a similar purpose may be made to the Court of Appeal ex parte within 7 days after the date of the refusal."

There is a corresponding Rule in England.  There is a Practice Direction in England as to which Court shall hear the substantive application [1982] 1 WLR 1375 and it may be desirable that a similar Practice Direction should be introduced in Northern Ireland.
	As the grant of leave to apply is discretionary an appeal under Order 53 Rule 5(8) is an appeal against an exercise of discretion.  An application under Order 59 is a fresh application in respect of which the Court can exercise its own discretion.
	The challenged decision of the Parades Commission related to a public procession which was to commence at 9.00 am on the following day.  Accordingly the Court dealt with the application under Order 53 so that the Court could also deal with the substantive application, if it granted leave.
Leave to Apply
Kerr J invited the proposed respondent to attend and to make representations as to whether leave should or should not be granted.  This is a commendable practice in appropriate cases and we consider that this was an appropriate case: see R v Secretary of State for Home Department ex parte Begaine [1990] COD 107 and the observations of Lord Donaldson as to when this practice is appropriate.  We do not propose to rule on the question as to whether this practice makes the hearing an inter partes hearing.  If so, Order 59 Rule 14(3) would not apply.  But it is a matter which we have taken into account in hearing the appeal against refusal of leave under Order 53.
	In the present case Kerr J refused leave primarily on the grounds that the applicant had not shown the greatest good faith - uberrima fides - in his application for leave.  In R (Cross) v Co Tyrone JJ (1908) 42 ILTR 112 Lord O'Brien LCJ stated that when a motion was moved ex parte it was a rule of Court that all material facts should be stated.  The greatest degree of good faith - uberrima fides - must be kept with the Court.
	The White Book states at p 625:
		"When applying for an ex parte order it is the duty of the applicant to make a full and fair disclosure to the Court of all the relevant facts of which he knows and failure to do so may itself be a ground for setting aside an order."
There are also valuable observations in Brink's Mat Limited v Elcombe [1988] 1 WLR 1350 and R v Jockey Club Licensing Committee ex parte Wright [1991] COD 306.
	Paragraph 4 of the first affidavit of Breandan MacCionnaith on which the applicant relied and which was sworn on 25 May 1999 is misleading in that he states:
		"The Commission also failed to consult either with myself or with any other representatives from the Garvaghy Road area about its proposals to permit this procession (the proposed procession on 29 May 1999) to take place without conditions."

Paragraph 5 is misleading in that it states:

		"The Commission did not gather any information from me about this parade.  It did not take evidence about what occurred last year ..."

	Paragraph 6 is misleading in that he states:
		"There was no discussion with me about the procession."
	In a second affidavit sworn on the same day he does not seek to correct the false impression created by his first affidavit.  In a third affidavit which was in draft form before Kerr J but was in sworn form in the Court of Appeal he states that the solicitor for the applicant misunderstood what he intended to say in paragraph 6.  He makes no attempt to justify paragraph 5 and, like Kerr J, we find the explanation given for paragraph 6 wholly unconvincing.  Equally disturbing is the fact that he exhibited Minutes of the Meeting of 20 May 1999 to his third affidavit sworn eight days after the Meeting.  He had previously claimed, in effect, that such a Meeting had not taken place.
	But for a number of reasons we respectfully differ from Kerr J in his conclusion that leave should be refused on the ground that good faith was not kept with the Court.  The first is that the application is brought by Kevin Farrell of 97 Garvaghy Road, Portadown, a person directly affected by the proposed public procession, who stated in his affidavit that he had been seriously injured in the course of disturbances connected with the procession the previous year.  We can find nothing in his affidavit calculated to mislead the Court.  Secondly, we consider that the applicant was entitled to believe that his public representative, who swore affidavits on his behalf, would not mislead the Court.  We do not think that the failings of Mr MacCionnaith should be visited upon the applicant.  We do not accept the submission of counsel for the respondent that the applicant must have known of the Meeting between the Garvaghy Road Residents' Coalition and the Parades Commission on 20 May.  There is no evidence that he did.   Even if he had, he would not necessarily have known that the proposed parade on 29 May was discussed. 
	Thirdly, Mr Bernard McCloskey appeared before Kerr J at his invitation to argue against the grant of leave on behalf of the Parades Commission, the proposed respondent.  There was, therefore, no danger that the judge would be misled by the first affidavit of Mr MacCionnaith.
	Fourthly, the hearing came on before Kerr J at 9.00 am and Mr Barry McDonald, counsel for the applicant, commenced his submissions on behalf of the applicant.  The judge had to rise at 9.40 am for a short time and we surmise that this afforded Mr McDonald his first opportunity to consult with Mr MacCionnaith.  It was disclosed to him that there had been a meeting between the Garvaghy Road Residents' Coalition and the Parades Commission on 20 May 1999.
	When the hearing resumed at 10.05 am he immediately informed the Court of this fact although he was unable to give details of what was discussed.  These details were supplied by Mr McCloskey.
	Fifthly, apart from the issue of consultation with the Coalition on which Mr MacCionnaith had misled the Court, there were other issues of public law which in our view gave rise to an arguable case and on which the Court was not misled.
	The Court of Appeal will rarely interfere with the exercise of discretion exercised by a judge at first instance but for the reasons which we have given we considered that the applicant was not guilty of breach of faith and accordingly that the conduct of Mr MacCionnaith did not taint the proceedings to the extent that leave should be refused on that ground.  So we granted leave and proceeded to hear and determine the application as soon as a replying affidavit had been sworn on behalf of the respondent.  We directed that the application by originating motion shall be made to the Court forthwith, abridged time for service of the notice of motion and accepted the undertaking of counsel for the respondent that the affidavit sworn on behalf of the respondent would be filed as soon as practicable.
The Application
	We then heard submissions by Mr McDonald on behalf of the applicant and Mr McCloskey on behalf of the respondent on the substantive application.  We wish to pay tribute to both counsel and to acknowledge the assistance we received from their concise and cogent arguments on the issue of leave and on the application.  We do not propose to set out the arguments, one against the other, but we hope to deal with all the points which were raised.
	It is important to emphasise once again that in judicial review proceedings this Court does not sit in an appellate capacity nor is its function to make any judgment on the merits of the impugned decision.  See, for example, the observations of Hutton LCJ in Re Murphy's application [1991] 5 NIJB 88 at 103-104.  We propose to deal with the issues in the order in which they appear in the Order 53 statement.
1.	The alleged failure by the Commission to give adequate reasons for its decision.
Section 2(b) of the Act of 1998 provides that the Parades Commission may
		"... (b) issue determination in respect of particular proposed public processions."

	Section 8(1) provides that the Commission may issue a determination in respect of a proposed public procession imposing on the persons organising or taking part in it such conditions as the Commission considers necessary.
	The Procedural Rules made under Section 4 provide by paragraph 5.2:
		"It will be the aim of the Commission, where possible, to make its decision five working days in advance of the notified date of a parade and to provide written notification of that decision, and the basis for it, to: ... (v) other concerned parties."
	On 24 May 1999 the Commission published a statement in the following terms:
		"The Parades Commission has considered the parade notified by Parkmount Junior Orange Lodge 150 for Saturday, 29 May 1999.  This is an annual feeder parade to the main Junior Orange demonstration in Bangor.  The Commission has decided not to impose any conditions on the parade.

		In arriving at this decision, the Commission has taken into account not only the events at last year's parade, but also the prevailing situation in the area and the likelihood of disturbances arising from the parade or from any counter protest.

		The Parkmount Junior Orange parade will consist of no more than 40 people and one band.  Most of those taking part will be children, accompanied by their parents and some senior stewards and the Commission has considered the parade against the criteria of traditionality, public order, disruption to the life of the community, impact on relationships within the community and compliance with the Code of Conduct.  The Commission was strongly influenced by the precise nature of the parade outlined above and by the responsible attitude of the organiser.

		The ongoing rallies and sectarian demonstrates have become a regrettable manifestation of loyalist opinion in Portadown and contribute significantly to the sense of alienation felt by many nationalists there.  At the same time, the Commission is conscious of the genuinely held view in the loyalist community that opposition to parades seems designed to steadily erode, bit by bit, traditional routes and loyalist culture.  Deliberately provocative gestures and behaviour such as the erection of tricolour flags along part of the notified Parkmount Junior Orange route within the past 24 hours can only exacerbate the situation.  All such actions seem designed to heighten tensions and give no credit to those who claim they wish to resolve the local problems.

		The Commission appeals to everyone, on all sides, to recognise this parade for what it is - a traditional feeder parade of young people - and to keep away from the area if all they wish to do is to cause trouble.  There can be no excuse for those not directly connected with the parade to use it as an excuse to add to the problems of Portadown by raising tensions or providing any further setbacks to the already fraught community relations."

	We consider that the Commission should give the basis for its decisions in accordance with the Procedural Rules.  The extent of the reasoning will vary from parade to parade and it is inappropriate for this Court to set out guide-lines as to the form which any decision may take.  There may be occasions when time does not enable the Commission to give the basis for a decision as events leading up to a parade may alter from hour to hour and the advice of the police upon which the Commission must heavily rely may change as events unfold.  But generally speaking, paragraph 5.2 of the Procedural Rules must be adhered to.
	Assistance may be gained as to the form which a decision should take from In the Matter of an Application by the Fair Employment Commission for Northern Ireland for Judicial Review [1990] 10 NIJB 38, (per Carswell J as he then was) R v Civil Service Appeal Board ex parte Cunningham [1991] 4 AER 310, R v Home Secretary, ex parte Doody [1994] AC 531, R v Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 AER 651 and the authorities therein discussed.  But whether there is a duty to give reasons and whether there has been compliance will vary, depending upon the functions of the administrative body and the nature of the decision to the taken.
	Lord Clyds in Stefan v GMC (The Times, 11 March 1999) said:
		"The extent and substance of the reasons has to depend upon the circumstances.  They need not be elaborate or lengthy.  But they should be such as to tell the parties in broad terms why the decision was reached.  In many cases very few sentences should suffice to give such explanation as was appropriate to the particular situation."

	We were somewhat concerned with the blandness of the statement as to "the basis" of the decision. 
	A mere recital of the factors involved in the decision may not enable one to determine the basis of the decision.  We took into account that the parade was small, composed mainly of children, was using a traditional route and that trouble would be caused by older persons on the return journey who were not members of the parade.  The statement was silent as to whether the Commission considered re-routing the return so as to stop short of Castle Island Bridge.  But as inferred that they must have concluded that this might cause as much or more trouble than allowing the traditional route to be followed.  
	Ultimately we took the view that the statement complied with paragraph 5.2 of the Procedural Rules and would, if necessary, have had regard to the Minutes of the Meetings of 20 May and 24 May 1999 and the affidavit of Mr David Hewitt sworn for the purposes of the application.   Use of his affidavit can be justified in contrast with the affidavit in R v Westminster City Council ex parte Ermakor [1996] 2 AER 302.
	The alleged failure on the part of the Commission to consult with the appellant or the Garvaghy Road's Residents' Coalition or other representatives of the Garvaghy Road area.
	We have read the Minutes of the Meeting on 20 May 1999 between the Garvaghy Road's Residents' Coalition and representatives of the Commission provided belatedly as an exhibit to Mr MacCionnaith's affidavit and the Minutes as kept by the Commission and exhibited to the affidavit of Ms Rose Anne McCormack.  We have also had regard to the affidavit of Mr David Hewitt.  These show that much of the Meeting was taken up with discussion of this Parade and that Mr McCionnaith appears to have done most of the talking.  To state that there was inadequate consultation was unarguable. To contend that further consultation should have taken place after 24 May was completely unrealistic.  Mr MacCionnaith claimed at the meeting that there were videos of the disturbances that took place on 30 May 1998 but declined to make them available to the Commission, notwithstanding that they were apparently in the possession of the applicant.
	The alleged failure by the Commission to comply with its own Procedural Rules.
	We were satisfied on the evidence presented to us that the Commission did gather information and take evidence about the parade as required by the Rules, and that the Statement of 24 May 1999 was a Formal Determination as required by Rule 5 which took into account all relevant information, evidence and advice, as  shown by a perusal of the Minutes of the Meeting of 24 May 1999.  It did not express its preliminary view of the parade in accordance with the Rules and Mr David Hewitt sought to justify this in paragraphs 15 and 16 of his affidavit.
	The Commission has a duty to review its Rules of Procedure and has power to propose an alteration to these Rules: see Section 4(4) of the 1998 and Schedule 2 thereof.  So long as the Rules are unamended they should be adhered to.  However the situation in Portadown is volatile and a decision to give a preliminary view may inflame the situation.  Accordingly we regard this as a technical breach and consider that the Rules should be amended so as to give the Commission a discretion as to whether or not a preliminary view is expressed.  No submission was addressed to the Court contending that, as a result of the breach, the applicant had suffered any significant injustice or been deprived of making relevant representations.
	The alleged failure of the Commission to have proper regard to the factors set out in Section 8(6) of the 1998 Act and its own Guidelines.
	We are satisfied that the Commission was given evidence by the police about the demographic balance among the residents of the Garvaghy Road and was entitled to rely on it, although we surmise that this must constantly be kept under review.  People have been driven from their homes throughout Portadown as the result of fear, intimidation, attacks on their homes and on their lives.  It is essential that demographic maps are kept up to date.  Portadown is at present one of the worst, if not the worst, example of sectarianism in Northern Ireland.
	We express reservations as to whether the dispersal point for the Parade was appropriate.  But it is not for this Court to substitute its judgment on the merits for that of the Commission which has much greater knowledge of the considerations that have to be taken into account than members of this court.  Indeed the Commission may have information - for example, from the police - which it might be inadvisable to present fully in open court.
	The decision of the Commission was Wednesbury unreasonable	
	 It was apparent from the advice given by senior police officers to the Commission that there would be trouble on 29 May whether it imposed conditions or did not impose conditions.  If conditions had been imposed there might have been worse trouble.  We do not consider that the Orange Order's policy not to have regard to the Commission and its functions necessarily requires the Commission to impose conditions.  The Commission was assured that there would be a heavy police presence and it had no reason to doubt that the police would try to control the extremists on both sides.  We were not satisfied that the applicant had succeeded in discharging the very heavy burden which is necessary to condemn a decision as `Wednesbury unreasonable'.
	Relevant and irrelevant factors
	The Court has concluded that the Commission took into account relevant factors and did not take into account irrelevant factors.  Whether a matter is relevant or irrelevant is a question of law.  The weight to be given to the matter is for the decision - maker, not for the Court.
	We are of the view that the decision to impose no conditions on the procession was lawful, procedurally proper and reasonable in the circumstances.  Accordingly, as we stated at the end of the hearing on the evening of 28 May, the application is refused.
	The applicant's costs as a legally-aided person will be taxed in accordance with the relevant Schedule of the Legal Aid and Advice (Northern Ireland) Order 1980.

	1999 No.

	IN THE COURT OF APPEAL IN NORTHERN IRELAND
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	IN THE MATTER OF AN APPEAL BY KEVIN FARRELL AGAINST THE 	REFUSAL OF LEAVE TO APPLY FOR JUDICIAL REVIEW

	and

	IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW OF 
	A DECISION MADE BY THE PARADES COMMISSION FOR
	NORTHERN IRELAND ON OR ABOUT 24TH MAY 1999

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	JUDGMENT

	OF

	NICHOLSON LJ

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