Carswell court controversy continues
BY LAURA FRIEL
Chief Judge Robert Carswell, the most senior judge in the Six Counties, and British Lord Chancellor Lord Irvine may be forced to attend Belfast High Court to defend their decision to retain an oath of allegiance to the British monarchy as a prerequisite to promotion to the senior bar.
The two top judges are at the centre of a court case taken by Belfast barristers Seamus Treacy and Barry MacDonald, who were promoted before Christmas but were prevented from taking their places as senior counsels by Carswell because they refused to swear an oath to the British queen.
The two barristers are seeking a judicial review on the grounds that the imposition of such a prerequisite was discriminatory and offends the terms of the Good Friday Agreement. The Bar Council, the body which represents barristers' interests, agreed over two years ago that the royal oath should be dropped and replaced by a more neutral statement.
earlier survey of opinion amongst the Bench showed that unlike the Bar, Six-County judges favoured a retention of the royal oath. However, following recommendations by the 1997 Elliot report, the need for a more neutral declaration appears to have been accepted by most - with the notable exception of Chief Judge Carswell.
At the centre of the row is a letter written by Carswell to the British Lord Chancellor defending the royal oath. It remains unknown whether in the letter Carswell used judicial opinion gathered before the Elliot recommendations to bolster his own position.
What has become clear is that most members of the Bench now accept that an oath of allegiance to the British crown is no longer a viable prerequisite to the appointment of senior counsels.
According to legal sources, seven or eight judges now accept the oath must be scrapped, leaving Carswell, possibly with the support of one other judge, virtually alone in clinging to the past.
As a Diplock judge, Carswell has made a career out of defending the indefensible on behalf of the Crown. Now, in another potential dramatic development, Carswell together with the British Lord Chancellor, may be called upon to defend their position on royal oaths in person.
It emerged last week that affidavits were presented seeking to defend the decision to retain the royal oath that were sworn by more junior officials than Carswell and Irvine. This was a ploy to avoid either judge having to appear in court themselves and defend their position during cross examination.
However, the affidavits may be inadmissible on the grounds of hearsay, since they have been sworn by those without direct involvement in the decision. Such a ruling by presiding Judge Kerr would leave the crown facing the dilemma of either submitting no affidavits and conceding the case to Treacy and MacDonald, or placing Carswell and Irvine in the dock.
Last week, Carswell was criticised for allowing his own private political agenda to influence his decision to retain the oath to the British monarchy. Michael Lavery, senior counsel acting for Treacy and MacDonald, told the court that Carswell and Irvine had been motivated by private political views.
Lavery said advice given by the Chief Judge to the British Lord Chancellor to retain the oath was on the grounds that, in Carswell's view, opposition to the oath was a political campaign. That advice may have been crucial, said Lavery, but political views should have played no part in the decision.
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