Loyalist activist Jamie Bryson has lost an appeal against being denied permission to judicially review two Stormont Ministers behind a failed legal attempt to force police into removing a contentious bonfire. He returned to court in a renewed attempt to secure a declaration that Sinn Fein’s Deirdre Hargey and former SDLP representative Nichola Mallon unlawfully acted without consent from their Executive colleagues.
But with the case about an ‘Eleventh Night’ bonfire in north Belfast last July already held to be academic, senior judges rejected his fresh bid to hear the challenge in full. Lord Justice Treacy confirmed: “The unanimous view of the court is that the application is refused.” Ms Hargey, the Department for Communities Minister, and Mrs Mallon, the Infrastructure Minister at the time, took emergency legal action last summer to have the PSNI compelled to intervene at the Tigers Bay bonfire site.
At the time police had refused to step in due to concerns about potential disorder and risk to the public, including young children in the Adam Street area.
The two Ministers’ joint action was thrown out, along with similar litigation by a nationalist resident in the neighbouring New Lodge district.
Mr Bryson represented the Tigers Bay Bonfire Group as a notice party in those cases. He then issued judicial review proceedings against the two Departments, claiming a breach of the Ministerial Code.
Under Stormont rules, any issues regarded as significant, controversial and crosscutting must be tabled for consent by the full power-sharing cabinet. Mr Bryson contended that the two ministers acted illegally and sought to have them restrained from mounting any future “solo runs”.
In January this year the High Court dismissed his challenge on the basis that it had become academic. But counsel for the loyalist activist, former Northern Ireland Attorney General John Larkin QC, disputed that finding at a fresh hearing today where he insisted the two Ministers had no power to act as they did. He told the Court of Appeal: “On behalf of Mr Bryson, if the proposed respondents either accepted the correctness of his legal analysis or indeed simply indicated that no proceedings against the police would be initiated without securing the agreement of the Executive Committee then these proceedings could properly be characterised as unnecessary. “But the proposed respondents have done neither of those things.” Mr Larkin added: “There is still a fog over the legality of these Ministers’ actions.” Neasa Murnaghan QC, for both Departments, countered that the circumstances have changed since last July, with Mrs Mallon no longer in post and the potential for other ministers to take a different view on any future dispute. “There is no public interest in continuing to pour over what happened and whether what happened should be the subject of censure,” she argued. At one point it was pointed out to her that Mr Bryson was the one who alerted the Ministers to the legal requirement contained in the 1998 Northern Ireland Act. However, the barrister submitted: “This smacks very much of being about disciplining Ministers for actions that were taken in a particular legal landscape which no longer exists.” Dismissing the appeal, Lord Justice Treacy said reasons for the decision will be given in due course. Outside court Mr Bryson claimed his substantive legal point has been accepted, and that the Ministers have had a “shot fired across their bows”. He added: “The Ministers defence was basically ‘don’t humiliate us in public’. They should be decent enough to put their hands up now.”