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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)

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MAGEE v. ROYAUME-UNI

MAGEE v. ROYAUME-UNI

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