Legal battle over oath to queen raises important questions for the North after Belfast Agreement

 

It could be described as a clash between the emerging new establishment in Northern Ireland, and the old. On one side are two prominent barristers of Catholic and nationalist background, the Bar Council of Northern Ireland and the Northern Ireland Human Rights Commission, recently established under the Belfast Agreement. On the other is the British Lord Chancellor and, as the case unfolds, the Lord Chief Justice of Northern Ireland.

The case concerns the declaration which those called to the Northern Ireland Inner Bar as Queen's Counsel must make, promising to serve Queen Elizabeth II, along with other potential clients.

Until 1996 this declaration was accompanied by an oath of allegiance to the queen. In 1995, another barrister, Mr Philip Magee, had challenged the oath and declaration, and in the course of his challenge it was admitted that the oath had been illegally introduced into the procedures in Northern Ireland in 1922.

The Bar Council then set up a committee to consider the whole issue of the appointment of Queen's Counsel in Northern Ireland. It was chaired by Mr Fraser Elliott QC and reported in 1997. This report proposed that the wording of the declaration be changed to omit the specific reference to Queen Elizabeth.

According to a letter to all members from the chairman of the Bar Council, Mr Brian Fee QC, this change was proposed because "there was a significant body of opinion within the Bar which did not want to Crown to be singled out, as opposed to potential clients in general . . ." The Bar Council endorsed the report, which was forwarded to the office of the Lord Chief Justice. He sent it on to the Northern Ireland Office and the Lord Chancellor, Lord Irvine. The Lord Chief Justice, Sir Robert Carswell, recommends candidates for appointment as Queen's Counsel.

In May last year applications were invited for elevation to the rank of Queen's Counsel. Despite the Elliott report, no reference was made to the declaration.

Mr Seamus Treacy and Mr Barry MacDonald are barristers of many years' experience of fair employment work. They applied to become Queen's Counsel. In November they, along with 10 others, were informed that they were successful, and that "the call" would take place on December 21st.

They inquired about the declaration, and on December 9th learned that the 1996 declaration, naming Queen Elizabeth, and not the Elliott declaration, would be required. They told the Bar Council they objected, and asked it to take legal proceedings, if necessary, to challenge the 1996 declaration.

According to Mr Fee's letter to members, he canvassed the views of as many of the other 10 applicants as he could and found general support for the Elliott declaration. However, they also wanted the December 21st call to go ahead as planned. It did, and the 10 were duly called to the Inner Bar.

On December 17th, Mr Treacy and Mr MacDonald started judicial review proceedings challenging the declaration. They objected to it on the grounds that it discriminated against them as members of the nationalist community in Northern Ireland, and also compromised their independence as members of the Bar. In his opening submission to the High Court their counsel, Mr Michael Lavery QC, stated that the declaration was contrary to the Belfast Agreement.

The Bar Council agreed to support the challenge, including with funding, and the Northern Ireland Human Rights Commission has also joined the action. It argues that the declaration is contrary to the European Convention on Human Rights and other international human rights agreements, as well as local anti-discrimination legislation.

SINCE the action was launched last December, there have been a number of adjournments as the applicants have sought documents concerning how the decision to retain the 1996 declaration was arrived at. This has involved seeking correspondence between the Lord Chief Justice and the Lord Chancellor, Lord Irvine.

Through this it emerged that on June 11th 1997, Lord Carswell wrote to the Lord Chancellor enclosing the Elliott report, and stating that he had consulted with his fellow judges who were opposed to any change in the declaration.

Mr Treacy and Mr MacDonald's legal team considered that this raised the issue of the impartiality of the whole Northern Ireland judiciary (at least as it existed in 1997), including the judge hearing their case, Mr Justice Kerr. On January 4th their counsel, Mr Lavery, asked that Mr Justice Kerr should discharge himself from the case, and that no other judge involved in the case should hear it.

Mr Justice Kerr refused, stating that his views had been given to the Lord Chief Justice before the Elliott report, and that he had not been consulted since, nor had he formed or expressed an opinion since.

On January 10th the applicants were given leave to add the name of the Lord Chief Justice to the existing respondent, the Lord Chancellor, who were given two weeks to produce further documents. However, counsel for the Crown said that there might be a public interest immunity certificate (the secrecy order used in security matters) to prevent the disclosure of some correspondence. They have also said they are joining the Secretary of State to the action.

The case came up in court again yesterday and was adjourned again.

It is unlikely to come to a speedy conclusion. But as it unfolds, more and more issues emerge of fundamental importance to the new situation in Northern Ireland.

The Lord Chancellor argues that the declaration is identical to that made in England and Wales, and there is no reason to change it. He says that the declaration involves a promise to serve the queen as a client, which is part of a Queen's Counsel's professional duty.

The solicitor for the two barristers, Ms Angela Ritchie of Madden and Finucane, does not agree. "There is no Good Friday agreement in England and Wales," she said. "Dual citizenship is recognised in the Good Friday agreement, which carried the weight of an international treaty.

"Oaths and declarations have been outlawed as conditions of employment or advancement within the public service since 1973. It is, therefore, staggering that members of a private independent profession are nonetheless required to make a declaration to serve the queen, especially as this does not arise when they join the Bar, only when they seek advancement.

"No such declaration is required from any public servant, or the elected members of the Assembly, and has not been in the RUC since 1998."

A barrister not involved in the case considers that this raises the issue of the independence of the judiciary. "How can these judges possible adjudicate on an equality agenda?" he asked. "Being appointed a QC is the path to entry to the judiciary. It raises the whole issue of the appointment of judges. Is it the tap on the shoulder, the golf club and the lodge, or across-the-board acceptance by the political parties?"

For the Bar Council the issue is one of the independence of the profession. Mr Fee's letter states: "There is a wider dimension to this issue in terms of our status and self-respect as a profession. There is little point in us researching and analysing an issue about our advancement within our profession and then presenting a recommendation on behalf of the whole profession if that view is to be rejected without any adequate explanation."