An appeal hearing by the Secretary of State for Northern Ireland against a British High Court ruling that the appointment of two Orangemen to the Parades Commission was illegal was told yesterday that the judge was wrong in his interpretation of the law.
Bernard McCloskey QC, for Peter Hain, told the appeal court that Mr Justice Morgan erred in holding that there was a duty to consult nationalist groups before appointing David Burrows and Don MacKay. Mr McCloskey said the judge's interpretation of the law and his application of it to the facts made the challenge brought by Garvaghy Road resident Joe Duffy devoid of merit, both legally and factually.
Although Mr Duffy succeeded in his application for a judicial review, he is also appealing on eight grounds, including the judge's view that Mr Hain's decision to encourage applicants from the loyal orders and ignoring nationalists was not discriminatory.
Mr McCloskey told the three appeal judges that a letter sent to the three loyal orders encouraging them to submit applicants was "a quite innocuous step" which had been blown out of all proportion. "These three letters did not skew or divert the process in any way," he said.
Lord Justice Nicholson said it was remarkable that a decision to put the three loyal orders on the list was taken by a middle management official without consultation. "Bizarre, it strikes me," he said.
Barry Macdonald, for Mr Duffy, said no member of the loyal orders or interested parties could be a member of a commission given the task of discharging the functions set out in the legislation. It was wrong, he said, that Orange Order members could make decisions about parades from which there could be no appeal.
The only remedy was a judicial review and the courts had made it clear in the past that no account could be taken of the merits of individual determinations.
"The Secretary of State should aspire to appoint a commission which is as fully representative of the entire community as possible," he said, "avoids discrimination, observes the merit principle and complies with the general public requirement to ensure that members are impartial."
The appeals are likely to end today and it is expected that judgment will be reserved.