AS TO THE ADMISSIBILITY OF
Application No. 24892/94
by Philip Patrick MAGEE
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 6 April 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 29 March 1994 by
Philip Patrick MAGEE against the United Kingdom and registered on
11 August 1994 under file No. 24892/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Irish citizen born in 1950 and living in
Belfast. He is represented before the Commission by Mr. James MacGuill,
a solicitor practising in Co. Louth, Ireland.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
A. Particular circumstances of the case
In 1975 the applicant was called to the Northern Ireland bar.
The applicant is also qualified to practice as a barrister in Ireland
though he practises mainly in Northern Ireland.
In 1993 the Lord Chief Justice for Northern Ireland issued a
general invitation, to all barristers who satisfied the minimum
experience requirements, to apply to become Queen's Counsel in Northern
Ireland. In or about October 1993 the applicant, who satisfied those
requirements, duly applied but shortly thereafter his application was
turned down.
In February 1994 the applicant became aware of the text of an
oath which must be taken and a declaration which must be made prior to
any barrister becoming a Queen's Counsel in Northern Ireland. The oath
and declaration include undertakings of fealty, allegiance and service
to the Queen.
No general invitations for applications to become Queen's Counsel
have been issued by the Lord Chief Justice for Northern Ireland since
the above-mentioned invitation which issued in 1993. The applicant
remains eligible to re-apply to become a Queen's Counsel whenever such
applications are invited in the future.
B. Relevant domestic law and practice
1. Queen's Counsel
The position of Queen's Counsel originated in the middle ages
when Queen's Counsel were legal advisors and advocates to the English
Crown.
At the present time the practice of a Queen's Counsel in Northern
Ireland involves no special functions over and above those of a junior
barrister. A Queen's Counsel is essentially a more senior position at
the bar involving greater prestige, professional dignity and earning
power than junior barristers.
2. Appointment of Queen's Counsel
A barrister must be invited to apply for the position of Queen's
Council by the Lord Chief Justice for Northern Ireland. The invitation
is normally a general invitation directed to all those junior
barristers of certain experience at the bar. Such invitations are made
sporadically and typically occur at intervals of two to five years.
The decision to appoint a particular barrister as Queen's Counsel
is made by the Lord Chief Justice for Northern Ireland though the
formal appointment is made by warrant of the Secretary of State for
Northern Ireland.
Once the application to become a Queen's Counsel is accepted the
barrister is obliged to take an oath and make a declaration prior to
being appointed. If a barrister's application is not accepted he must
await a further general invitation from the Lord Chief Justice for
Northern Ireland before being in a position to apply for the position
again.
There is no statutory or secondary legislation governing the
appointment of Queen's Counsel in Northern Ireland. In addition, there
are no stated or known criteria by which the applications of junior
barristers are judged, the evaluation process is carried out in secret
and the reasons for a decision on a particular application are not
communicated to the applicant barristers.
3. The oath and declaration
The requirement to take the oath and make the declaration comes
from the original function of Queen's Counsel in the middle ages and
has been in force ever since.
The texts of the oath and declaration are as follows:
Oath
"I, AB do swear by almighty God that I will be faithful and bear
true allegiance to her Majesty Queen Elizabeth the Second, Her
Heirs and Successors, according to law."
Declaration
"I, AB do declare that well and truly I will serve the Queen as
one of her Counsel learned in the law and truly counsel the Queen
in her matters, when I shall be called upon to do so, and duly
and truly minister the Queen's matters and sue the Queen's
process after the course of the law, and after my cunning. I will
duly in convenient time speed such matters as I may lawfully do
which any person shall have to do in the law against the Queen.
And in all other respects I will be attendant to the Queen's
matters when I be called thereto."
COMPLAINTS
The applicant complains under Articles 9 and 10 of the Convention
that the oath and declaration, which he is required to take in order
to become a Queen's Counsel in Northern Ireland, operates as a
professional and financial penalty on his opinions and beliefs and on
his freedom to express them.
The applicant argues that the oath and declaration require
support for and fealty to a protestant English monarchy. In view of the
fact that he is an Irish national, a nationalist, and a person
philosophically opposed to the idea of a monarchy, he cannot take the
oath or make the declaration nor, therefore, apply to or become a
Queen's Counsel. He further submits that, in light of the condition of
the society of Northern Ireland which is characterised by a conflict
of national identity and divided allegiances, the oath is politically
and morally offensive. The applicant argues that whatever the origins
of the duties of Queen's Counsel, there is nothing in the contemporary
practice of Queen's Counsel that requires such an oath and declaration.
In any event, the applicant has no objection to an oath or declaration
indicating adherence to the law and requiring him to act honourably in
the interests of the people of Northern Ireland.
The applicant also complains under Article 14 of the Convention
that the requirement to take the oath and declaration discriminates
against the applicant on the grounds of his political beliefs and
opinions.
Finally, the applicant complains under Article 13 of the
Convention that he has no effective domestic remedy.
THE LAW
The applicant complains that the requirement in Northern Ireland
to take an oath and make a declaration ("the requirement") prior to
becoming Queen's Counsel (which oath and declaration include
undertakings as to fealty, allegiance and service to the Queen)
operates as a professional and financial penalty on his opinions and
beliefs. He also complains that the requirement discriminates against
him on grounds of his political beliefs and opinions and that he has
no effective domestic remedy in all these respects. The applicant
invokes Articles 9, 10, 13 and 14 (Art. 9, 10, 13, 14) of the
Convention.
However, the Commission is not required to determine the question
as to whether the applicant's complaints disclose a violation of the
Convention because, even assuming that the applicant has exhausted all
domestic remedies, the application is, in any event, inadmissible for
the followings reasons.
The Commission recalls that according to the constant case-law
of the Convention organs, the Convention does not provide for an actio
popularis or permit individuals to complain about a law in abstracto.
An applicant must be able to demonstrate that the measures, about which
the applicant complains, have been applied to the applicant's detriment
or that the applicant is personally and directly affected by those
measures (cf, for example, Eur. Court H.R. Klass and others judgment
of 6 September 1978, Series A no. 28, paras. 33-34 and Marckx judgment
of 13 June 1979, Series A no. 31, para. 27)
In the present case and as far as the application made in 1993
to become Queen's Counsel is concerned, the Commission notes that,
following an invitation by the Lord Chief Justice for Northern Ireland
in 1993, the applicant applied to become Queen's Counsel but his
application was rejected. Therefore the question of the oath and
declaration did not arise for the applicant at that time. It is further
noted in this regard that the applicant has submitted that he was not,
at that stage, even aware of the requirement.
Since 1993 the Lord Chief Justice for Northern Ireland has not
issued any further invitations. Until such an invitation is issued the
applicant cannot make any further application to become a Queen's
Counsel, such an application cannot be accepted and the question of the
applicant taking the oath and making the declaration will not arise.
In those circumstances the Commission considers that the complaints of
the applicant, in respect of the impact on him of the existence of the
requirement and in relation to any future obligation to take the oath
and make the declaration, are premature.
Accordingly, the Commission finds that the applicant cannot claim
to be a victim of a violation of the Convention and therefore his
application must be declared inadmissible as manifestly ill-founded
pursuant to Article 27 para 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the First Chamber President of the First Chamber
(M. F. BUQUICCHIO) (C. L. ROZAKIS)
Full & Egal Universal Law Academy