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High Court of Justice in Northern Ireland Queen's Bench Division Decisions |
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You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> Belfast Telegraph Newspapers Ltd, Re Application for Judicial Review [2001] NIQB 43 (29 November 2001) URL: http://www.bailii.org/nie/cases/NIHC/QB/2001/43.html Cite as: [2001] NIQB 43 |
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Neutral Citation no.[2001] NIQB 43
Ref:
COGC3528
Judgment: approved by the Court for handing down
Delivered:
29.11.2001
(subject to editorial corrections)
COGHLIN J
This is an application by Belfast Telegraph Newspapers Limited ("the applicant") for judicial review of a decision by the Equality Commission for Northern Ireland ("the Commission"), dated 23 November 1999, to proceed with a formal investigation of the affairs of the applicant pursuant to Article 57 of the Sex Discrimination (Northern Ireland) Order 1976 ("the 1976 Order"). For the purposes of the hearing the applicant was represented by Mr Michael Lavery QC and Mr Piers Grant while Mr Barry Macdonald QC and Mr Philip Mateer appeared on behalf of the respondent. I acknowledge my gratitude to both sets of counsel for the assistance that I derived from their carefully constructed and succinct skeleton arguments and submissions.
BACKGROUND
The applicant company is the printer and publisher of a number of newspapers circulating within Northern Ireland, the best known and most widely read of which is probably the Belfast Telegraph. The number of employees engaged by the applicant in connection with this business fluctuates between approximately 570 and 580.
The respondent Commission, which was established on 1 October 1999 in accordance with section 73 schedule 8 of the Northern Ireland Act 1998, assumed all the functions of the Equal Opportunities Commission for Northern Ireland upon the dissolution of the latter body by virtue of section 74 of the 1998 Act.
On 2 July 1999 the Commission wrote to the applicant company stating that it was minded to embark upon a formal investigation under the powers conferred upon it by Article 57 of the Sex Discrimination (Northern Ireland) Order 1976, specifying in the enclosed terms of reference the Commission's belief that the applicant might have done or might be doing certain unlawful acts and setting out the facts and matters upon which the Commission purported to form this belief. This statement of facts and matters referred to a number of specific matters relating to promotion, recruitment and terms of service of staff which the Commission wished to investigate. The letter of 2 July 1999 also offered the applicant an opportunity to make oral and/or written representations to the Commissioners nominated for the conduct of the investigation, Mr Harry Coll and Ms Ann Hope.
The applicant sent written representations to the Commission on 20 August 1999 and, on 10 September 1999, a meeting took place between representatives of the applicant and the Commission. Those attending on behalf of the Commission included the two nominated Commissioners together with three other members of the Commission staff, Mrs Joan McKiernan, Director of Investigations and Research, Mr Ray Russell, Investigation Officer and Ms Sheila McGivern, Legal Officer. The proceedings of this meeting were recorded with the assistance of a stenographer and both sets of counsel referred to the transcript during the course of the hearing.
The applicant furnished further documentary material to the Commission on the 15 September 1999, including certain documentation requested by the representatives of the Commission at the meeting of 10 September 1999. On 23 November 1999 the Commission wrote to the applicant confirming its decision to proceed with a formal investigation to ascertain further facts relevant to the terms of reference although, as a consequence of the submissions and materials put forward on behalf of the applicant, it indicated that one of the terms of reference had been eliminated. On the 10 December 1999 Mr Derek Carvell, the applicant's Managing Director, wrote to the Commission seeking detailed grounds of this decision and the specific facts and matters on the basis of which the Commission believed that a formal investigation was still justified. Further correspondence then ensued during which the Commission recited, in some detail, the history of the correspondence and the meeting but effectively declined to provide any further information in relation to its decision to proceed.
THE APPLICATION FOR JUDICIAL REVIEW
On 22 February 2000 the applicant commenced proceedings for judicial review and the grounds upon which it sought to challenge the Commission's decision as set out in the Order 53 statement, were as follows:
"(a) That the Equality Commission did not and could not at the time it made a decision to embark upon a formal investigation of the applicant pursuant to Article 57 of the Sex Discrimination (Northern Ireland) Order 1976 have held the requisite belief that the applicant may have done or may be doing any of the unlawful acts described in the terms of reference;
(b) The Equality Commission for Northern Ireland failed to take any or adequate account of the representations and materials submitted to the Commission on behalf of the applicant prior to making the said decision;
(c) The Equality Commission for Northern Ireland failed to disclose to the applicant any facts, information or basis for the alleged belief thereby unfairly depriving the applicant of a proper opportunity to address the basis of the Commission's alleged belief and the basis upon which the Equality Commission of Northern Ireland made its decision;
(d) That the Commission wrongly allowed and permitted persons other than the Commissioners nominated by the Commission to participate in a preliminary investigation of the applicant and to participate in and influence the decision of the Commission."
THE RELEVANT LAW
The relevant statutory framework is provided by the 1976 Order as amended by the Sex Discrimination (Northern Ireland) Order 1988. Article 58(3A), as inserted by the 1988 Order provides that:
"Where the terms of reference of the investigation confine it to the activities of persons named in them and the Commission in the course of the investigation proposes to investigate any act made unlawful by this Order which they believe that a person so named may have done, the Commission shall –
(a) Inform that person of the Commission's belief and of the Commission's proposal to investigate the act in question; and
(b) Offer him an opportunity of making oral or written representations with regard to it (or both oral and written representations if he thinks fit); and a person so named who avails himself of an opportunity under this paragraph of making oral representations may be represented –
(1) by counsel or a solicitor; or
(2) by some other person of his choice, not being a person to whom the Commission objects on the ground that he is unsuitable."
The nature of the procedure contemplated by Article 58(3A) has been considered in some detail by the House of Lords in relation to the equivalent provisions of the Race Relations Act 1976 in London Borough of Hillingdon v Commission for Racial Equality [1982] AC 779 and in Re Prestige Group plc [1984] IRLR 166. In both cases the judgment of the House was given by Lord Diplock who recognised that it was not a trivial matter to be made the subject of a full investigation which might well involve an employer in substantial inconvenience, expense and dislocation in addition to causing damage to or putting at risk harmonious relations within the relevant undertaking. In such circumstances, Lord Diplock referred to the Article 58(3A) procedure as affording a "preliminary inquiry" the holding of which was a condition precedent to the launch of a formal investigation and the importance of which Parliament had clearly emphasised by expressly requiring the Commission at this stage to observe "audi alteram partem", the first rule of natural justice, and incorporating an express provision for the right of the subject of the investigation to be represented at the preliminary inquiry by counsel or solicitor. In the Hillingdon case the "preliminary inquiry" included an oral hearing which lasted 2½ days.
In Hillingdon, at p787, Lord Diplock made the following observations in relation to the preliminary inquiry stage:
"The purpose of the preliminary inquiry stage is to give the persons named in the terms of reference an opportunity of making written or oral representations or both, with regard to the proposal to embark upon a full investigation of unlawful discriminatory acts of the kind specified in the terms of reference. The purpose of such representations is not expressly stated in the sub-section but it would in my view, plainly cover representations by any person named that the proposed full investigation should not be proceeded with at all, or that its terms of reference should be made narrower in the exercise of the commissioner's powers under sub-section (5) or as to the manner in which the full investigation should be conducted.
The Act lays down no detailed rules for the conduct of the preliminary inquiry. It refers only to the reception by the Commission of representations by or on behalf of persons named to which the Commission must give proper consideration. It is not an occasion for adducing evidence to the Commission; this would involve the Commission in embarking upon the full investigation to which the completion of the preliminary inquiry is expressly made a condition precedent by sub-section (1). It is, however, the sort of inquiry at which in the event of oral representations being proffered Parliament considered it appropriate that a person named should, if he wished, be represented by counsel or a solicitor, which suggests that in conducting it the Commission are exercising a quasi-judicial function; but I do not think that in administrative law as it has developed over the last twenty years attaching the label `quasi judicial' to it is of any significance. Where an Act of Parliament confers upon an administrative body functions which involve its making decisions which affect to their detriment the rights of other persons or curtail their liberty to do as they please, there is a presumption that Parliament intended that the administrative body should act fairly towards those persons who would be affected by their decision."
In the same case Lord Diplock rejected the view of Woolfe J, as he then was, at first instance that the statute required the Commission to believe that it was "more likely than not" that there might have been an act of discrimination as corresponding with the civil burden of proof which was more appropriate to the full investigation. Lord Diplock sought to articulate the relevant test in the following terms at p791:
"To entitle the Commission to embark upon the full investigation it is enough that there should be material before the Commission sufficient to raise in the minds of reasonable men, possessed of the experience of covert racial discrimination that has been acquired by the Commission, a suspicion that there may have been acts by the person named of racial discrimination of the kind which it is proposed to investigate."
CONCLUSIONS
Delay
In the course of his skeleton argument and submissions Mr Macdonald QC submitted that the applicant had not promptly applied for judicial review. He noted that, despite having the benefit of legal representation from an early stage, the application for leave for judicial review had only been lodged on the last day of the three month time limit. Mr Macdonald QC also noted that, at the leave hearing, Kerr J had indicated that a proper explanation for delay would be required at the substantive hearing.
In this case, it is clear that, subsequent to the decision letter, time was taken up by the correspondence between the Commission and the applicant which was conducted over the Christmas period. A detailed explanation has been provided by Mr Carvell at paragraphs 5-10 of his affidavit sworn on the 15 May 2000. In the circumstances, I accept this explanation and I would not have refused this application by reason of the applicant's delay.
I propose to deal with the grounds set out by the applicant in a somewhat different order to that in which they appear in the Order 53 statement.
(1) The submission that the Commission wrongly permitted persons other than the nominated Commissioners to participate in the preliminary investigation and influence the Commission's decision.
It is clear from the transcript of the meeting between the representatives of the applicant and the Commission at the Commission's offices on 10 September 1999 that Ms McKiernan, Director Investigation and Research, took a significantly active part in the course of discussion and was responsible for summarising the additional information and materials which were to be subsequently submitted to the Commission. Ms McKiernan was also responsible for conducting the correspondence on behalf of the Commission, including the initial letter of 2 July 1999 and the decision letter of 23 November. On the other hand, Mr Coll, one of the two nominated Commissioners, deposed unequivocally in his affidavit that, although the meeting of 10 September 1999 had been attended by three members of staff, including Ms McKiernan, for the purpose of providing assistance and advice to the nominated Commissioners as required, the nominated Commissioners were fully aware that the decision whether to proceed to a full investigation was their responsibility alone and one which could not be delegated to or shared with any other person.
During the hearing of the interlocutory appeal this submission was advanced by Mr Lavery QC on behalf of the applicant but it was rejected for the reasons set out at pages 9 and 10 of the unreported judgment of the Carswell LCJ in the Court of Appeal. I respectfully agree with the reasons set out therein and, accordingly, I reject this submission.
(2) The submission that the Commission failed to take adequate account of the representations and materials submitted on behalf of the applicant and/or the Commission could not have held the requisite belief.
It seems to me that grounds 3(a) and (b) as set out in the Order 53 statement may be usefully combined as embodying a Wednesbury unreasonable/irrational submission. In the course of an affidavit sworn for the purpose of these proceedings on 13 April 2000 Mr Coll, one of the nominated Commissioners, revealed that the initial correspondence with the applicant was stimulated by a number of complaints received by the Commission from or on behalf of employees of the applicant company. In a further affidavit sworn by Mr Coll on the 7 June 2000, some seven weeks later and subsequent to the application for discovery, additional details were provided of the issues considered by the Commission prior to the decision to pursue a full investigation. It seems to me that the material contained in these two affidavits, particularly in the absence of any written or oral refutation on the part of the applicant, when combined with the decision by the Commission to delete one of the terms of reference subsequent to the applicant's submissions provides an effective answer to a Wednesbury challenge of the type articulated at ground 3(a) and (b) of the Order 53 statement and, accordingly, I also reject this submission.
(3) The submission that, in failing to disclose to the applicant facts, information or a basis for its alleged belief, the Commission unfairly deprived the applicant of a proper opportunity to address the basis of the Commission's belief and the grounds for its decision.
Essentially this is a "fair procedure" argument with reference to the manner in which the preliminary inquiry procedure was conducted including both the written and oral submissions and the associated correspondence.
As Lord Diplock remarked in Hillingdon, apart from the obligation to inform a named person of the proposal to investigate and offer that person an opportunity of making oral or written representations, Article 58(3A) does not lay down any detailed rules for the conduct of the preliminary inquiry and the omission to do so may well be related to the infinite variability of the circumstances and bodies to be investigated as well as the nature of discrimination itself which, to use Lord Diplock's words from the same case, is "… generally covert, easy to dissemble, difficult to expose."
In Hillingdon Lord Diplock did observe that, in such circumstances, there was a presumption that Parliament intended that an administrative body should act fairly towards those persons likely to be affected by its decision. These words were later echoed by Lord Mustill in the course of his seminal judgment in Doody v Secretary of State for the Home Department [1993] 3 All ER 92. Lord Mustill went on to emphasis the flexibility of the principle of fairness stating that it was not to be applied by rote identically in every situation and that it was always necessary to take into account the context of the relevant decision in all its aspects. In relation to the preliminary enquiry to be carried out by the Commission under the provisions of Article 58(3)(A) it seems to me that, generally, fairness would require that:
(i) The person or body named should be given sufficient details to enable him or it to understand the nature of/reasons for the Commission's belief and its proposal to investigate and to permit intelligent consideration and a reasoned response. In this context it seems to me that it is important to remember that the law and practice relating to discrimination in its various forms has become both sophisticated and complex and, depending upon the circumstances, may require a degree of clarification.
(ii) The named person or body must be given adequate time and opportunity to present any representations or response. The nature, content and form of such representations or response will depend upon the circumstances of the individual case and may or may not include the production of evidence. To this extent I respectfully do not share the view of Lord Diplock in Hillingdon. While I accept that Article 58(3A) is concerned with a "preliminary" inquiry which should not be permitted to expand into a full investigation and much will defend on the circumstances, I do not think that it would be fair to prevent a named body or person presenting evidence which, if available, would provide a full answer to the belief held by the Commission or produce a substantial revision of the terms of reference. Indeed, in this case, the Commission actively sought evidence from applicant.
(iii) After the Commission has carefully and conscientiously considered any representation or response made by or on behalf of the person or body named, it seems to me that fairness requires the Commission to provide adequate reasons for its subsequent decision. Again, since it is a preliminary inquiry that has been held, such reasons need not be elaborate nor lengthy but they should be sufficient to indicate to the person or body named why the Commission continues to hold the relevant belief and why its representations have failed. The provision of such reasons permits the subject person or body to decide whether any further step is justified and demonstrates that any representations have been carefully and conscientiously considered and, in the context of the current expectation of transparency on the part of government and administrative bodies, depending upon the circumstances of the particular case, it seems to me that fairness requires nothing less.
When these principles are applied to the present case it seems to me that a number of matters give cause for concern.
In the first place, the transcript of the meeting between the representatives of the Commission and the applicant clearly demonstrates the degree of surprise on the part of the applicant which was produced by the Commission's proposed investigation. The applicant represented itself as being a classic example of good employment practice with a long history of complaint-free employment relationships despite the existence of an effective grievance procedure, strong unions and employees who were far from being "shrinking violets". It seems clear that the applicant laid considerable emphasis on its trouble-free employment record and its willingness to provide documentation in support of its written submissions in addition to satisfying, to the best of its ability, any additional request made by the representatives of the Commission. There was nothing to indicate any lack of cooperation on the part of the applicant and the Commission has not sought to suggest that this was anything other than a genuine reaction.
In the context of such an approach on behalf of the applicant I do not think that it would have been unreasonable to expect a positive and helpful response from the Commission, bearing in mind the Commission's extensive experience and knowledge of discrimination law and practice, and its educative and conciliatory role as well as the general interests of fairness and transparency. However, it is clear from the transcript that the representatives of the Commission had taken a deliberate decision not to engage in any discussion or debate with the applicant about the terms of reference or the facts and matters forming the basis of the Commission's belief. It is not altogether clear that this was the settled view of the Commission at the commencement of the meeting. At that stage Mr Carvell, the applicant's managing director, indicated that he proposed to make an opening statement and then ask the Commission to respond to the applicant's written submission. The interjection by Ms Ann Hope, one of the nominated Commissioners, recorded at page 5 of the transcript seems to suggest that she at least contemplated that the Commission would respond to the applicant's opening statement. However, after the short adjournment, the Commission's representatives appear to have agreed upon their "non-engagement" policy an example of the results of which may be seen in the following passage from p14/15 of the transcript:
"Mr Coll: A few other sort of other documentary things that I think might be useful, that might enable Ann and I to come to a conclusion in this. You made assertions about the situation in terms of the salaries for males and females in the organisation, but haven't given us any figures. Could you give us a breakdown?
Mr Martin: The position is that as you have said, what we are doing, we can give you some figures to show that journalists are paid the same whether they are male or female, yes.
Mr Coll: Not just journalists, if you wouldn't mind. Can you give us figures in terms of other staff.
Ms McGrogan: Other staff, yes.
Mr Martin: Sorry?
Mr Coll: Not just journalists.
Mr Martin: I thought that is all you were concerned about.
Mr Coll: If you want to take that position you may do so, of course. All I am saying to you is if you are willing to provide us with the wider figures it would be helpful to us.
Mr Martin: I am just trying to clarify, do you want a salary breakdown of everybody in the company.
Mr Coll: If you feel that you could reply that, I would be happy to receive that.
Mr Martin: There is a lot of confidential information there.
Mr Coll: You can rest assured that anything you give to this Commission will be dealt with confidentially, you can be assured of that, that it will be treated confidentially, but it can be given to us in that manner. I am sure that will not breach the confidence of the organisation, but it is a matter for you to decide whether you want to do it or not.
Ms McGrogan: The terms of the reference do concern the editorial salaries as being (interrupted).
Mr Coll: If you want to stick to that, I am perfectly happy that you should do so. If you want to give us a little wider information it may be beneficial to us in forming a view.
Ms McGrogan: I think we should say we enclosed in our submission the scale, the editorial journalist salary scale. We also have the clerical scales.
Mr Coll: There is a specific issue which the information you gave us doesn't address in terms of males and females, how the editorial staff are paid. Now giving us a scale of journalists doesn't help us. If you want to help us give us the information. If you feel it is somehow difficult to do that, that is your choice."
At this stage, Ms McKiernan, the Commissioner's Director of Investigation and Research intervened to explain the specific references in the terms of reference and how an inference might be drawn to problems elsewhere.
Apart from the general way in which the meeting of the 10 September 1999 was conducted, I consider that two specific matters are relevant to fairness and transparency. First of all it is clear that the Commission's initial interest in the applicant was the result of complaints from employees but, despite the heavy reliance placed by the applicant upon its history of good employment relations, no reference was made to the existence of such complaints until the judicial review proceedings. During the course of his submissions Mr Macdonald QC referred me to the provisions of Article 61(1) of the Sex Discrimination (Northern Ireland) Order 1976 and to Mr Coll's affidavit of 19 October 2000. This affidavit was sworn in response to an application for discovery made by the applicant and the concerns expressed therein do not appear to have prevented Mr Coll from recording the fact of such complaints from and on behalf of employees of the applicant in his earlier affidavit of 13 April 2000. Without detracting in any way from the importance of protecting the identity of complainants in appropriate discrimination cases, I find it rather difficult to understand why the fact of complaints could not have been conveyed to the applicant at the meeting of 10 September 1999. Secondly, despite requests from the applicant, neither the letter of the 23 November 1999 nor the subsequent correspondence from the Commission provided any reasonable explanation for the rejection by the Commission of the applicant's written and oral submissions. Again, the affidavit sworn by Mr Coll on 7 June 2000, in the course of these proceedings, indicates that there should have been no difficulty in providing the applicant with such information. I entirely accept that it would inappropriate when conducting a preliminary inquiry to enter into a prolonged debate as to whether the relevant threshold had been achieved but here simply no effort was made to explain to a co-operative applicant with a strong belief in the case which it had put forward why that case had not succeeded.
In the circumstances of this particular case I am satisfied that the practice and procedure adopted by the Commission did not comply with the requisite standards of fairness and transparency expected from a public authority and that the result was that there was a failure to provide the applicant with facts and information to which it was entitled.
DISCRETION
The applicant did not seek to take issue with the matters set out in Mr Coll's affidavit of 7 June 2000 either by way of affidavit or during the course of submissions made at the hearing. In the absence of any indication that the applicant could put forward arguments or produce evidence which would effectively eliminate all or any of the reasons put forward by Mr Coll in this affidavit and which would thereby dispel the Commission's belief or significantly affect the terms of reference, it does not seem to me that the applicant has been prejudiced or that granting judicial review would serve any useful purpose. In such circumstances, I propose to exercise my discretion against the applicant. I bear in mind that the applicant will have a full opportunity to deal with all the relevant issues in detail during the course of the formal investigation.
Accordingly I dismiss the application.
