Ministers in bonfire case should be prohibited from ‘solo-runs,’ court hears

Two Stormont Ministers should be judicially prohibited from any future “joint solo-runs” aimed at compelling police to remove a contentious bonfire, the High Court heard on Wednesday.

The bonfire in the loyalist Tigers Bay Area.
The bonfire in the loyalist Tigers Bay Area.

Counsel for loyalist activist Jamie Bryson claimed Sinn Fein’s Deirdre Hargey and the SDLP’s Nichola Mallon acted unlawfully in mounting a failed legal attempt to force officers to intervene at the contentious site in north Belfast.

He has issued proceedings against the pair in a bid to restrain them from bringing similar cases in future without the approval of their Executive colleagues.

His barrister, former Northern Ireland Attorney General John Larkin QC, told the court: “These proceedings aim to ensure there’s an acknowledgment of the illegality and it’s not repeated.”

Mr Bryson alleges the two political representatives breached the Ministerial Code by taking emergency action over the ‘Eleventh Night’ bonfire in the Tigers Bay area last July.

Ms Hargey, the Communities Minister, and Mrs Mallon, her counterpart in the Department for Infrastructure, were involved in a joint bid to have the PSNI compelled to intervene at the Tigers Bay site.

Police refused to step in at the time due to concerns about potential disorder and risk to the public, including young children in the Adam Street area.

The two Ministers’ challenge was dismissed, 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 has now issued proceedings against the two Departments, contending that the failed legal challenge was unlawfully initiated.

Under Stormont rules, any issues regarded as significant, controversial and crosscutting must be tabled for consent by the full power-sharing cabinet at Stormont.

Contending that the bonfire dispute clearly meets that test, Mr Larkin claimed both Ministers have refused to recognise they have done anything wrong.

“We are dealing with the constitution of Northern Ireland,” he said.

“It’s absolutely imperative that Ministers who work within the framework of our constitution know what its limitations are, what their powers are, and they don’t exceed them.

“Mr Bryson seeks a prohibition, and he seeks a declaration about an important point of construction of our constitution – can Ministers make these kinds of joint solo-runs, or must they bring them to the Executive.

“We say it’s clearly arguable the Ministers have breached the obligation that our constitution imposes on them.”

Resisting the loyalist’s legal action, Neasa Murnaghan QC, for both Ministers, argued that the issue was now academic.

She stressed that the challenge was focused on events last summer, which ended without police being forced to step in at the bonfire site.

“Wait until there’s a live case, rather than seeking to give some sort of judicial guidance in what is a factual vacuum in this instance,” she submitted.

“Mr Bryson has got what he wanted in terms of the Ministers’ challenge, the police maintained their original stance and the bonfire proceeded as he desired.”

But according to Mr Larkin the court must grapple with a perennial issue of dispute.

“It’s politically-charged and it’s a sadly recurring theme,” he said.

Describing the position taken by Ms Hargey and Mrs Mallon as “profoundly wrong”, he maintained a clear direction is needed.

He told Mr Justice Scoffield: “There is a live controversy here, and Your Lordship should proceed to bring it to an end.”

Reserving his decision, the judge pledged to rule on the application for leave to seek a judicial review on Thursday