Neutral Citation no. (2002) NICA 43	Ref:     	CARF 3482	
 	 	 	
Judgment: approved by the Court for handing down	Delivered:	05.10.01	
(subject to editorial corrections)	 	 	

 
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
 
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IN THE MATTER OF APPLICATIONS BY BAIRBRE DE BRUN AND MARTIN McGUINNESS FOR JUDICIAL REVIEW
 
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CARSWELL LCJ
 
            This is an appeal against an order made by Kerr J on 30 January 2001, whereby he declared that the refusal of the appellant, the then First Minister of the Northern Ireland Assembly, the Right Honourable David Trimble MP, MLA, to nominate the respondents Bairbre de Brun and Martin McGuinness for meetings of the North-South Ministerial Council (NSMC) on the grounds stated by him was unlawful.  
            The appellant was at all material times First Minister of the Northern Ireland Assembly (the Assembly) set up under the provisions of the Northern Ireland Act 1998 (the 1998 Act), and the two respondents above named (to whom we shall refer for convenience as “the applicants”) held office as Ministers of the Assembly.  In October 2000 the appellant declined to nominate either of them to attend meetings of the NSMC, his expressed reason for taking this course of action being to persuade Sinn Fein, the party to which the applicants belong, to use any influence it may have to secure decommissioning of arms in accordance with the Agreement.  The applicants challenged the legality of this refusal by applications for judicial review and the judge made the declaration to which we have referred.  The appellant appealed by notice dated 21 March 2001.  Respondents’ notices were served on behalf of the applicants and the deputy First Minister Mr Seamus Mallon MP MLA, who is also a respondent in these proceedings, seeking to uphold the judge’s decision on other grounds.  The applicants did not pursue the matters which they raised in their notices, and the issues argued on the appeal were relatively limited.
            The 1998 Act was passed, as its long title indicates, for the purpose of implementing the agreement reached at multi-party talks in 1998 and known as the Belfast Agreement (the Agreement).  It was brought into force by an Order in Council laid before Parliament by the Secretary of State, appointing the day for its commencement.  In consequence thereof the Assembly was constituted under Part IV of the 1998 Act by the holding of elections and the election of members.  The Assembly proceeded to elect a First Minister and deputy First Minister, in accordance with the provisions of section 16.  The First Minister and deputy First Minister then made determinations under section 17, which provides:
“17.-(1)           The First Minister and the deputy First Minister acting jointly may at any time, and shall where subsection (2) applies, determine –
 
(a)        the number of Ministerial offices to be held by Northern Ireland Ministers; and
 
(b)       the functions to be exercisable by the holder of each such office.
 
(2)        This subsection applies where provision is made by an Act of the Assembly for establishing a new Northern Ireland department or dissolving an existing one.
 
(3)        In making a determination under subsection (1), the First Minister and the deputy First Minister shall ensure that the functions exercisable by those in charge of the different Northern Ireland departments existing at the date of the determination are exercisable by the holders of different Ministerial offices.
 
(4)        The number of Ministerial offices shall not exceed 10 or such greater number as the Secretary of State may by order provide.
 
(5)        A determination under subsection (1) shall not have effect unless it is approved by a resolution of the Assembly passed with cross-community support.”
 
“Cross-community support” is defined in section 4(5) in the following terms:
“(5)      In this Act –
 
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‘cross-community support’, in relation to a vote on any matter, means –
 
(a)        the support of a majority of the members voting a majority of the designated Nationalists voting and a majority of the designated Unionists voting; or
 
(b)       the support of 60 per cent of the members voting, 40 per cent of the designated Nationalists voting and 40 per cent of the designated Unionists voting;
 
‘designated Nationalists’ means a member designated as a Nationalist in accordance with standing orders of the Assembly and ‘designated Unionist’ shall be construed accordingly.”
Ministers were nominated under the procedure set out in section 18 and took up office.  The applicant Ms de Brun at all material times held the office of Minister for Health, Social Services and Public Safety and Mr McGuinness that of Minister for Education.
            Section 52, which is at the centre of these proceedings, requires the First Minister and deputy First Minister acting jointly to make nominations of Ministers and junior Ministers to the NSMC, in the following terms:
“52.-(1)           The First Minister and the deputy First Minister acting jointly shall make such nominations of Ministers and junior Ministers (including where appropriate alternative nominations) as they consider necessary to ensure –
 
(a)        such cross-community participation in the North-South Ministerial Council as is required by the Belfast Agreement; and 
 
(b)       such cross-community participation in the British-Irish Council as is so required.
 
(2)        It shall be a Ministerial responsibility of a Minister or junior Minister nominated under subsection (1)(a) or (b) to participate in the Council concerned in such meetings or activities as are specified in the nomination.
 
(3)        Without prejudice to the operation of section 24, such a Minister or junior Minister shall act in accordance with any decisions of the Assembly or the Executive Committee which are relevant to his participation in the Council concerned.
 
(4)        A Minister may in writing authorise a Minister or junior Minister who has been nominated under subsection (1)(a) or (b) to enter into agreements or arrangements in respect of matters for which he is responsible.
 
(5)        The First Minister and the deputy First Minister acting jointly shall, as far in advance of each meeting of either Council as is reasonably practicable, give to the Executive Committee and to the Assembly the following information in relation to the meeting –
 
(a)        the date;
 
(b)       the agenda; and
 
(c)        nominations made under subsection (1) for the purposes of the meeting.
 
(6)        A Minister or junior Minister who participates in a meeting of either Council by reason of a nomination under this section shall, as soon as reasonably practicable after the meeting, make a report –
 
(a)        to the Executive Committee; and
 
(b)       to the Assembly.
 
(7)        A report under subsection (6)(b) shall be made orally unless standing orders authorise it to be made in writing.
 
(8)        The Northern Ireland contributions towards the expenses of the Councils shall be defrayed as expenses of the Department of Finance and Personnel.
 
(9)        In this section ‘participate’ shall be construed –
 
(a)        in relation to the North-South Ministerial Council, in accordance with paragraphs 5 and 6 of Strand Two of the Belfast Agreement; 
 
(b)       in relation to the British-Irish Council, in accordance with the first paragraph 5 of Strand Three of that Agreement.”
 
            Provision was made in Strand Two of the Agreement to constitute the NSMC, as a body for dealing with matters of mutual interest (examples of which were set out in the Annex to Strand Two) between the Governments of Northern Ireland and the Republic of Ireland.  Paragraphs 1 to 6 are material to this appeal:
“1.       Under a new British/Irish Agreement dealing with the totality of relationships, and related legislation at Westminster and in the Oireachtas, a North/South Ministerial Council to be established to bring together those with executive responsibilities in Northern Ireland and the Irish Government, to develop consultation, co-operation and action within the island of Ireland – including through implementation on all-island and cross-border basis – on matters of mutual interest within the competence of the Administrations, North and South.
 
2.         All Council decisions to be by agreement between the two sides.  Northern Ireland to be represented by the First Minister, Deputy First Minister and any relevant Ministers, the Irish Government by the Taoiseach and relevant Ministers, all operating in accordance with the rules for democratic authority and accountability in force in the Northern Ireland Assembly and the Oireachtas respectively.  Participation in the Council to be one of the essential responsibilities attaching to relevant posts in the two Administrations.  If a holder of a relevant post will not participate normally in the Council, the Taoiseach in the case of the Irish Government and the First and Deputy First Minister in the case of the Northern Ireland Administration to be able to make alternative arrangements.
 
3.         The Council to meet in different formats:
 
(i)          in plenary format twice a year, with Northern Ireland representation led by the First Minister and Deputy First Minister and the Irish Government led by the Taoiseach;
 
(ii)         in specific sectoral formats on a regular and frequent basis with each side represented by the appropriate Minister;
 
(iii)        in an appropriate format to consider institutional or cross-sectoral matters (including in relation to the EU) and to resolve disagreement.
 
4.        Agendas for all meetings to be settled by prior agreement between the two sides, but it will be open to either to propose any matter for consideration or action.
 
5.        The Council:
 
(i)          to exchange information, discuss and consult with a view to co-operating on matters of mutual interest within the competence of both Administrations, North and South;
 
(ii)         to use best endeavours to reach agreement on the adoption of common policies, in areas where there is a mutual cross-border and all-island benefit, and which are within the competence of both Administrations, North and South, making determined efforts to overcome any disagreements;
 
(iii)        to take decisions by agreement on policies for implementation separately in each jurisdiction, in relevant meaningful areas within the competence of both Administrations, North and South;
 
(iv)        to take decisions by agreement on policies and action at an all island and cross-border level to be implemented by the bodies to be established as set out in paragraphs 8 and 9 below.
 
6.        Each side to be in a position to take decisions in the Council within the defined authority of those attending, through the arrangements in place for co-ordination of executive functions within each jurisdiction.  Each side to remain accountable to the Assembly and Oireachtas respectively, whose approval through the arrangements in place on either side, would be required for decisions beyond the defined authority of those attending.”
 
It was also provided in paragraph 13:
“13.     It is understood that the Northern/South Ministerial Council and the Northern Ireland Assembly are mutually inter-dependent, and that one cannot successfully function without the other.”
 
            The appellant’s reasons for taking the action challenged in these proceedings were based upon the provisions of paragraphs 1 to 3 of the section of the Agreement headed “Decommissioning”, which read:
“1.       Participants recall their agreement in the Procedural Motion adopted on 24 September 1997 ‘that the resolution of the decommissioning issue is an indispensable part of the process of negotiation’, and also recall the provisions of paragraph 25 of Strand 1 above.
 
2.         They note the progress made by the Independent International Commission on Decommissioning and the Governments in developing schemes which can represent a workable basis for achieving the decommissioning of illegally-held arms in the possession of paramilitary groups.
 
3.         All participants accordingly reaffirm their commitment to the total disarmament of all paramilitary organisations.  They also confirm their intention to continue to work constructively and in good faith with the Independent Commission, and to use any influence they may have, to achieve the decommissioning of all paramilitary arms within two years following endorsement in referendums North and South of the agreement and in the context of the implementation of the overall settlement.”
 
            After the 1998 Act came into operation and the Assembly was constituted, Mr Trimble was elected First Minister and Mr Mallon deputy First Minister.  The applicants, both members of Sinn Fein, were appointed as Ministers in charge of their respective departments.  For a while the joint nominations of Ministers to the NSMC by the First Minister and deputy First Minister proceeded smoothly.  Ms de Brun was nominated to attend sectoral meetings of the NSMC on food, safety and health co-operation held on 4 February and 4 July 2000, and one on the environment on 28 June 2000.  Mr McGuinness attended a sectoral meeting on education on 3 July 2000.  
            A sectoral meeting on food, safety promotion and health was scheduled to be held at Enniskillen on 3 November 2000.  A sectoral meeting on education was due to be held on 24 November.  In September 2000 the First Minister and deputy First Minister nominated Ms de Brun and Mr Dermot Nesbitt to attend the sectoral meeting on 3 November.  Mrs Birch of the Executive Committee secretariat on 24 October sent formal nomination papers for them to sign and circulate.  The deputy First Minister signed the nomination paper, but the First Minister declined to do so.  It is quite apparent from the evidence that he was under strong political pressure at that time from his party the Ulster Unionist party, whose members were very dissatisfied with the lack of progress towards decommissioning of weapons by Provisional IRA.   A meeting of the Ulster Unionist Council was due to be held on 28 October 2000 at which a proposal was to be put forward for immediate withdrawal from the NSMC and withdrawal from the Executive within five weeks unless there was a substantial hand-over of weapons.  Mr Trimble did not agree with this proposal and wrote to the members of the Ulster Unionist Council on 26 October, indicating his intention to produce for their consideration at the meeting a “carefully considered response … intended to increase pressure progressively on republicans and nationalists.”  At the meeting he put forward and the Council accepted a series of proposals in the following terms:
“1.       In view of the failure of the IRA to re-engage with the Independent International Commission on Decommissioning (IICD), as from today Sinn Féin Ministers will not be nominated to attend any North-South Ministerial Council (NSMC) meeting.  This sanction [is] to be lifted when there is substantial engagement by the IRA with the IICD and to be reimposed in the event of such engagement not making reasonable progress on decommissioning.
 
2.         The IICD [is] to become pro-active in fulfilling their mandate, making regular (at least monthly) reports, setting deadlines and prescribing timetables.  These [are] to provide for progress on re-engagement; agreement on decommissioning procedures; commencement of actual decommissioning; and completion of decommissioning.
 
3.         If either government or any other party puts obstacles in the way of the above, then selected categories of NSMC, British Irish Council etc meetings will be progressively terminated.
 
4.         The government to convene a formal review in the event of any failure to achieve progress.
 
5.         Moratorium on policing changes until peace assured.
 
6.         The Ulster Unionist Party [is] to consider progress on above at the beginning of January with the Ulster Unionist Review Group reporting regularly to the officers and Executive.”
 
On 2 November the private secretary to the First Minister wrote to Mrs Birch notifying her that the First Minister declined, for the moment, to nominate Ms de Brun or Mr McGuinness to NSMC sectoral meetings but remained ready to make “valid nominations”.  His position was set out in paragraphs 2 and 3 of the affidavit sworn on his behalf by his then Principal Private Secretary Mr DA Lavery:
“2.       In considering nominations under Section 52 of the Northern Ireland Act 1998, the First Minister has determined, for the time being, not to nominate members of Sinn Fein to attend meetings of the north South Ministerial Council (‘NSMC’).  The First Minister is of the view that such an approach will be likely to persuade Sinn Fein to use any influence it may have to secure decommissioning of paramilitary arms in accordance with the Belfast Agreement.
 
3.         The First Minister continues to be willing to nominate ministers and junior ministers to the NSMC in order to ensure cross community participation as is required by the Belfast Agreement.”
 
Mr McGuinness was nominated by the deputy First Minster to attend the sectoral meeting on education on 24 November, but again Mr Trimble declined to nominate him.
            Several arguments were advanced before Kerr J on behalf of the applicants, which he declined to accept, and which were not pursued on appeal.  His rulings on these matters, with which we agree, may be described shortly:
1.	Both the First Minister and the deputy First Minister must agree on the nomination of a Minister to a meeting of the NSMC for the nomination to be effective.  If they are not agreed, one cannot validly make a nomination without the concurrence of the other. 
2.	The applicants did not have a legitimate expectation that they would be nominated under section 52 of the 1998 Act to participate in meetings of the NSMC.  
3.	Mr Trimble was not giving effect to the resolution of the Ulster Unionist Council in declining to make the nominations.  He was rather carrying forward his own policy, which he had urged the UUC to adopt and which it approved. 
4.	Mr Trimble’s refusal to nominate the applicants did not constitute discrimination against them or against Sinn Fein within the meaning of section 24(1)(c) of the 1998 Act. 
The issues which formed the subject of argument before us on the hearing of this appeal were:
(a) Whether it is mandatory for the First Minister and deputy First Minister to nominate under section 52 the Minister with executive responsibility for the topic to be discussed at an NSMC meeting.
(b) Whether the First Minister’s refusal to nominate the applicants was invalid as being for a purpose collateral to the purposes of section 52. 
            It was submitted on behalf of the respondents that the choice of nominees is restricted by the wording of section 52(1)(a), which prescribes that the nominations must ensure such cross-community participation in the NSMC as is required by the Agreement.  The definition in section 52(9) of “participate”, which must also govern the meaning of “participation”, requires the term to be construed in accordance with paragraphs 5 and 6 of Strand Two of the Agreement.  Paragraph 5 requires the NSMC to take decisions by agreement in the areas specified, and paragraph 6 requires each side to be in a position to “take decisions in the Council within the defined authority of those attending”.  It was argued accordingly that in order to participate effectively in the way envisaged by Strand Two it is necessary for the Minister responsible for the area of discussion to attend an NSMC meeting.  Provision is made under section 52(4) for a Minister to authorise another Minister or a junior Minister to enter into arrangements in respect of matters for which he is responsible.  That is hardly as satisfactory as having the attendance of the Minister responsible, and it was submitted that the conclusion must be drawn that that Minister must be nominated to attend.  An exception exists if the relevant Minister will not participate normally in the work of the Council, in which event under paragraph 2 of Strand Two the First and deputy First Minister are to make “alternative arrangements”.  It was argued that this is the only case, outside illness or other unavoidable absence, in which another person can be nominated.  Reliance was also placed upon paragraph 5.1 of the Ministerial Code approved by the Assembly, which provides:
“5.1     In accordance with section 52(1) of the Northern Ireland Act 1998 (the Act), the First Minister and the deputy First Minister acting jointly must make such nominations of Ministers and junior Ministers (including alternative nominations where appropriate) as they consider necessary to ensure such cross-community participation in the North-South Ministerial Council and the British-Irish Council as is required by the Belfast Agreement.  For each meeting, the First Minister and the deputy First Minister will normally nominate each Minister or junior Minister with executive responsibility in the areas to be considered at the meeting.  If such a Minister is not nominated, an alternative nomination will be made.  The First Minister and the deputy First Minister will also nominate such other Ministers or junior Ministers as they consider necessary to ensure such cross-community participation as is required by the Belfast Agreement.  Nominations will be made in the format shown at Appendix A.”
 
            We are unable to accept this argument.  We agree with the judge’s conclusion that the terms of paragraph 5.1 of the Ministerial Code, by using the word “normally”, carry the clear implication that it is not obligatory to nominate the Minister responsible for the topic to be discussed.  We do not find anything in section 52 to support the respondents’ argument.  If Parliament had intended that it was to be obligatory to nominate that Minister, it would have been quite straightforward to say so in section 52.  It was objected on behalf of the respondents that section 52 was so framed, in terms of participation, because it was envisaged at the time of the Agreement that some Ministers might refuse to co-operate with the NSMC.  We do not find this a persuasive argument.  It would have been quite possible to provide, if that had been the intention of the legislature, that the Minister with executive responsibility must be nominated, with the proviso that if he refused to participate in the manner required by the Agreement an alternative nomination could be made.  
The appellant’s counsel submitted that although it was not in dispute that that Minister should normally be nominated, the First and deputy First Minister retained a discretion to nominate another person in appropriate circumstances.  We agree in principle with that submission, but in such an untested area we are reluctant to attempt to spell out the ambit of those circumstances.  The judge expressed the view at pages 19-20 of his judgment that the First Minister could not be required to nominate someone whom he regarded as unsuitable in the sense that that person was working against the implementation of the Agreement or had not made appropriate efforts to implement the Agreement.  We would prefer to reserve our opinion on the correctness of this proposition until such time as it may become necessary to decide it.
             The second main issue argued on appeal was whether the First Minister took the action of refusing to nominate the appellants for a collateral purpose.  It was argued by the applicants in the court below that he had done so for two such purposes.  They submitted that he had done so in order to give effect to the resolution passed by the Ulster Unionist Council on 28 October 2000.  The judge held that Mr Trimble was not giving effect to that resolution in his refusal to nominate the applicants; rather, he was carrying forward his own policy, which he had proposed for adoption to the UUC and which it had adopted at that meeting.  
            The second collateral purpose identified by the applicants was Mr Trimble’s objective of putting pressure on Sinn Fein to exert influence on the IRA to secure the decommissioning of its arms.   That purpose appears clearly from the sentence in the letter which he wrote to the UUC members on 26 October, “The response is intended to increase pressure progressively on republicans and nationalists.”  Mr Morgan QC, in an attractive argument on behalf of the appellant, submitted that this was not a mere party political ploy, but an attempt to secure the proper implementation of the Agreement as a whole.  He argued that since decommissioning of paramilitary arms was an essential intrinsic element of the Agreement, it was part of the policy and objects of the 1998 Act to achieve that end, and the First Minister was entitled to have regard to these larger objects in the exercise of his powers under section 52 or his refusal to exercise them. 
            It is necessary for the First and deputy First Minister in exercising their powers under section 52 to do so for the purposes of that section, for those are the purposes for which the powers were conferred on them and the donee of a power must remain within the confines of those purposes.  The judge held that Mr Trimble’s purpose fell outside them (page 24 of his judgment):
“In the present case, however, the implementation of the Agreement has a number of aspects and no single theme emerges either from the Agreement or the Act itself.  Indeed, in order to promote the objective espoused by Mr Trimble, (decommissioning of weapons) he has adopted a strategy that will at least inhibit – if not frustrate – another objective (effective North-South Council meetings).  I have concluded, therefore, that the decision of the First Minister to refuse to nominate Ms De Brun and Mr McGuinness is for a purpose that is collateral to the purpose of section 52 and that it cannot be rescued by recourse to a separate objective of the Agreement that Mr Trimble hopes to secure.”
 
We are in agreement with this conclusion.  The purpose of section 52 is to enable the working of the NSMC to proceed.  The power of nomination was conferred on the first Minister and deputy first Minister in order to further that purpose, and they are obliged to use their power to carry out the statutory purpose.  The refusal to make nominations of Ministers who were the appropriate Ministers with executive responsibility for the topics to be discussed at forthcoming meetings inhibited the carrying out of that purpose, notwithstanding that it may have been intended to conduce to the fulfilment of another substantial purpose of the Act.  If it were clear that the overall policy and objects of the 1998 Act were directed solely towards the decommissioning of arms, then it might be possible to invoke the principle summarised in Lord Reid’s phrase in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 907 at 1030:
“Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act …”
 
We agree with the judge that that is only one of the objects of the 1998 Act, however important, and that the purposes of section 52 are directed to another and different object of the Act, the fostering of North-South links through the operation of the NSMC.  We therefore consider that the judge was correct in his conclusion that the First Minster’s refusal to nominate the applicants must be regarded as an incorrect exercise of the discretion conferred upon him by section 52. It must follow that as a matter of law it cannot be sustained as a valid exercise of that discretionary power.  We regard it as appropriate that the judge should have made a declaration rather than granting any other remedy and we affirm the declaration contained in his order of 30 January 2001.  We also agree with the description contained in his judgment at pages 26-7 of the action which should be taken in respect of further nominations.
            The appeal will be dismissed.
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
 
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IN THE MATTER OF APPLICATIONS BY BAIRBRE DE BRUN AND MARTIN McGUINNESS FOR JUDICIAL REVIEW

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J U D G M E N T
O F
CARSWELL LCJ
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