Ritchie’s legal advice…
The Belfast Telegraph has both sets of legal advice. This is their commentary on those documents in this morning’s paper. In light of Ms Ritchie’s comments last night it is important to note that the terms of reference of the official advice expressly excluded any reference to Section 75 of the Equality Act Northern Ireland Act 1998:
Senior Crown Counsel for Northern Ireland, Bernard McCloskey, warned if the Social Development Minister made a decision to withdraw funding it ” would be vulnerable to successful legal challenge” – while the independent barrister warned of difficulties but said they could be ” robustly defended”.Brett Lockhart, QC, said, however, the question remained whether the SDLP minister “is lawfully entitled to cease funding on the basis of events to date”.
Mr McCloskey also advised the minister that the recent events in Carrickfergus, connected to the UDA, should be “disregarded” because the entire south east Antrim area does not constitute a “target area” of the CTI.
His opinion said the International Commissioning on Decommissioning had informed the minister they had “seen a document which they felt was significant” and the Ulster Political Research Group had told her ” the UDA planned to make a significant step forward on November 11 which could be jeopardised by the withdrawal of CTI funding as this would ” derail their efforts to move the UDA forward and play into the hands of those who did not support the winding down of the UDA”.
And Mr Lockhart said: “There is no evidence in my possession that suggests that Farset as an organisation are in breach of any of the funding conditions.”
In a memorandum dated October 16, Mr McCloskey said he could identify ” no freestanding statutory power to either reduce or withdraw the funding.”
Which last point would seem to bring us back to the disputed minutes.
Pete
I’m not suggesting it is a foregone conclusion.
My point was purely legal, not evidential i.e. general in nature, not specific – in this case that willful ignorance of legal advice, or any other specialist, by an executive authority who has agreed on record to obtain and consider such advice, could in theory ground a successful judicial review.
Whether this is such a case is of coursew beyond my knowledge.
Dubliners first line of attack seemed to be that this was impossible as it was ‘undemocratic’ – which is patently untrue – see Wednesbury. Undemocratic or not it may be, but it’s the law.
Byt he way, dubliner, who get’s the last word on whether an act of the Oireachteas, or of a minister is ‘constitutional’ – the democrats or the judges? I point ye to A-G v X
Dubliner seems to, understandably I suppose, mistake discretion with unfettered discretion. A minister has the first, but not the second. She must act within the law, and that includes reasonably. See Wednesbury.
It’s a mistake Peter Hain made in the Interim Victims Commissioner debacle. He had a discretion there too, but he took into account issues that he was not legally allowed to, and the exercise of the discretion wqas declared illegal and 0verturned.
As to the merits of this particular case, I’m in no position to know – i was making a far more general point.
Both McCloskey and Lockhart are, to my certain knowledge, bright and ethically sound.
I would read their opinions carefully to see how much they truly differed, or was it just two different ways of saying, “go ahead if you want, but be aware of the risks”.
I also happen to think the publication of the opinions in this way was shocking, and pretty close to breaching Offical Secrets – It certainly breached convention and, frankly, good manners.
Dubliner
final point – we will no doubt see a challenge, at least on s28A(10) of the NI Act. I have to say i’d be amazed if Farset don’t JR on illegality and procedural impropriety too. court cases are never sure bets – nut I’d say their odds are at least reasonably attractive. Certainly no worse than 5/2.
p.s. The department is a legal entity onto itself, above and beyond the minister – i wonder will the Perm Sec seek his own legal advice on whether to follow Mrs ritchies direction?
Chris Gaskin,
Still not buying it. Why didn’t Sinn Fein support Ritchie on the Executive when the proposal was first announced over two months ago ? If the decision does get struck down in court, aren’t you concerned that the failure of Sinn Fein to support it in the first place will be one of the main reasons for that ?
“Byt he way, dubliner, who get’s the last word on whether an act of the Oireachteas, or of a minister is ‘constitutional’ – the democrats or the judges? I point ye to A-G v X”
Missing the point: the AG only advises if a proposed act complies with the law – he doesn’t determine the outcome on what the executive policy should be by stating that there is only one option available to the minister when there are other options, as Bernard McCloskey effectively did with Ms Ritchie, even though the AG is a de facto member of the Irish government. The Irish government can either amend the proposed act or amend the existing law via the Oireachtas if the proposed act conflicts with it. It took an independent lawyer to advise the minister that she had the option of stopping the funding for organised crime on the basis of her opinion that the UDA’s retention of its illegal weapons is a criminal act, and that, ergo, they are in breach of the CTI contract by failing to get rid of their illegal weapons. She is correct: holding illegal weapons is a crime, so the UDA are continuing to engage in criminality. That is the position that can be “robustly defended†if challenged. Ergo, she is wrongly advised that she was acting outside of the law by stopping the funding.
My point regarding “reasonableness” referred to this: “If it goes to court (it will) the only thing that will matter is whether her actions are deemed unreasonable and ignoring the advice of senior Crown counsel could be seen as unreasonable.†– Bonarlaw
A court will not declare a minister’s decision to be “unreasonable” on the simple grounds that “ignoring the advice of senior Crown counsel could be seen as unreasonable.†As I said, opinions differ, so a discretionary choice must be made to favour one opinion over another. Were it deemed unreasonable for a minister not to do as directed by a senior Crown counsel, then the policy would be made by the senior Crown counsel and not the minister. What is “unreasonable” is for a senior Crown counsel to interfere in the minister’s department and proffer his single option advice on the basis of privileged information that the minister then informed him he should not have been given access to.
However, I’m not a lawyer, do it might be deemed “unreasonable” to take my advice on complex legal matters.
Spectator:
Both McCloskey and Lockhart are, to my certain knowledge, bright and ethically sound.
How can you say this, given that McCloskey is quoted as having argued that UDA activity outside of the “target area” should be overlooked when considering whether or not to allocate funding ? How is that ethically sound ?
“Surely all that a court in NI can concern itself with is whether the decision complies with the law?”
Am I right in saying that the fact she didn’t get Executive backing (leaving aside whether she should have or not which comes down to those disputed minutes) doesn’t affect whether or not her actions would be regarded as being lawful?
‘Collective responsibility’ means ‘collective risk-taking’, so if her actions were to be judged unlawful (on the basis of disputes about details of the CTI contract, etc) then she would be out on a limb as opposed to being covered by her Ministerial colleagues, but the fact that she didn’t get that backing won’t materially affect the legal outcome of any decision on whether she acted lawfully in making the decision to stop the funding?
“It took an independent lawyer to advise the minister that she had the option of stopping the funding for organised crime on the basis of her opinion that the UDA’s retention of its illegal weapons is a criminal act, and that, ergo, they are in breach of the CTI contract by failing to get rid of their illegal weapons.”
Surely she could stop the funding on the basis of the rioting in Bangor alone (backed up by the Chief Constable’s ’50p’ remarks), aside from the issues of decommissioning and the UDA’s behaviour in Carrick?
“Mr McCloskey also advised the minister that the recent events in Carrickfergus, connected to the UDA, should be “disregarded†because the entire south east Antrim area does not constitute a “target area†of the CTI.”
That statement is contradicted by the following quote (from an admittedly unimpartial source):
George Gilmore, a member of the group Beyond Conflict – linked to the South East Antrim UDA – told the BBC: “The mainstream UDA have got funding from the government and they are being told that they need the full six brigadiers.
“They need the UDA as a whole or they are not getting their funding – this is down to money, that all that this is down to.”
(Taken from a BBC report last July, following the riots in Carrickfergus when a policeman was shot in the back):
http://news.bbc.co.uk/1/hi/northern_ireland/6911899.stm
This story confirms that the CTI was intended for “six loyalist areas”:
http://news.bbc.co.uk/1/hi/northern_ireland/6479293.stm
The UDA is divided into six so-called brigades, and the projects will be divided into similar geographic areas.
The government says the funding is conditional.
It will be provided in three stages of £400,000 in each of the three years and the UPRG has been told that the funding will only continue if there is clear evidence of a reduction in UDA violence and crime.
So McCloskey’s advice is not only ethically unsound, but incorrect.
Can I just thank all our learned commenters (how often do I get to say that?) for some very useful insight. Can I also say to other lay commenters (like myself) its probably best not to try and outdo a lawyer on the complex issue of Northern Irish law. I would only add, that moral high ground may have no place in law, but in politics it can be very powerful, especially when, as in this case, it is also a deeply popular one.
I would also add that law that comes into disrepute is regarded in most democratic polities as bad law.
I think we have established that Ms Ritchie has taken a considerable legal risk, along with the more obvious political ones (that Executive could hardly be more hostile). Not forgetting that she is the only one in this whole sorry saga proceeding through all of this with a specific death threat hanging over her.
Chris, I would say it is still too early to gauge the fallout from this. A JR is likely to take months to complete its work before it would be in a position to ‘reverse’ the Ministers decision. In the meantime, the public rounding of her cabinet (and Assembly) colleagues on her for making a popular decision (thus SF’s abortive broadside on Tuesday) have done them no favours.
That said, it is hard to tell how it will pan out. But Sinn Fein’s capacity to ‘bury’ the SDLP on this matter faded from the moment she made a decision contrary to the one they had clearly choreographed for. And they have some particularly rough ‘water’ (pardon the pun) of their own to cross between now and then.
Comrade Stalin
You are confusing legal ethics and general morality. Law and morals are not the same.
McCloskey’s job and ethical duty is to provide sound advice on the legal risks of certain actions that is as accurate and good faith as possible, allowing his client to as far as possible avoid illegality. That’s Mr Lockhart’s ethical duty by the way as well.
McCloskey is not trying to morally defend or attack either the NIO position or Margaret’s – that’s for them to do themselves – his ethical duty is to properly access his client’s LEGAL risk.
If the law is that, for pure hypothetical example, the contract contains terms that allow for the contract to be suspended if, and only if, illegal activity takes place in a specified geographical area, or by specified people, it is absolutely ethically right of Mr McCloskey to point out to Margaret that violence in another area, or by other people, LEGALLY, does not allow her void the contract, and her legal duty to perform her side of it is undisturbed, however distasteful that is.
Indeed, it would be unethical for him to not do it, because he would be opening his client up to unnecessary legal challenge.
But McCloskey can only advise on legal consequences – he can’t take the decision for her.
It’s not a Lawyer’s job to tell you right from wrong. It’s his job to tell you legal from illegal. And if he does so, he has behaved perfectly ethically.
Ian
“Am I right in saying that the fact she didn’t get Executive backing (leaving aside whether she should have or not which comes down to those disputed minutes) doesn’t affect whether or not her actions would be regarded as being lawfulâ€
No, you are wrong. Paragraph 1.4 of the Ministerial Code contains the pledge of Office, and paragraph (f) of the Pledge obliges Ministers to support and abide by decisions of the Executive. To do otherwise is therefore to breach both the Pledge and the Code.
Section 28A(1) of the NI Act 1998 puts this on a statutory basis, and 28A(10) makes it clear that a Minister has “no ministerial authority†to make a decision that breaches the Ministerial code. Having no authority means that to attempt to do so, is to attempt to act outside her legal powers, and thus ultra vires, both for illegality and procedural impropriety.
This is the key feature changed since the St Andrews Agreement, indeed s28A was inserted by the Northern Ireland (St Andrew’s Agreement) Act 2006
1. So McCloskey’s advice is not only ethically unsound, but incorrect.
Judging the strength of Mr McCloskey’s case from a couple of Newspaper snippets of it and the anecdotal evidence of the contents of the contract provided is, to put it mildly, not necessarily solid base for criticism.
Mick
“I would also add that law that comes into disrepute is regarded in most democratic polities as bad lawâ€
Bad law is still Law, Mick.
Disrepute is really only a person’s opinion of morality, and like arseholes, everyone has one.
Many people think R v Bourne (NI’s abortion law) is bad law. Many people think changing it would be bad law (á la Abortion Act). Many people thought A-G v X was bad law. Many people thought changing it would be bad law. Didn’t make a button of difference to the validity.
You seem to hint otherwise, and if you are hinting otherwise, you’re wrong. Sometimes, Mick, you’re a little too empressed by and enamoured of both politics as a science and early public opinion.
Even the Euro Convention on Human rights, or EU law, used so often to overturn domestic law, only does so because it itself IS law. We live in a country of law, and under the rule of law – not a country of repute, under the rule of repute. We left that behind with King John and the Magna Carta. Frankly, the alternative is the rule of the Mob – and while mob decisions are popular, they aren’t always right, or as ethical as they think. Think Witchcraft.
A JR is likely to take months to complete its work before it would be in a position to ‘reverse’ the Ministers decision.
True, but actually an interim injunction could and would be done rather quickly, within a few weeks – and we still don’t know if the Perm Sec will obey Ritchie on this.
TS,
I happy to cede ground to legal experts Spec, but I am not foolish enough to try and second guess the judgement of a Belfast court on a contract none of us (I presume) have seen.
Mick
It’s not the contract that will be judged necessarily, it is the procedural propreity of Mrs Ritchie – and the terms governing that are open to the public in statute.
It seems to boil down to the minutes – if Robbo’s right, she’s in breach, and the decision is ultra vires under 28A(1).
What the contract says is to an extent secondary to that.
p.s don’t presume
Spec,
The biggest challenge here, it seems to me, is not to presume anything. Let the courts do their work. Ms Ritchie is a politician. She has no proprietorial right to anyone’s sympathy other than the fact that she is the only one of the major players currently working under a significant threat to her personal safety.
However I am very suspicious of this attempt to narrow the field of vision to an after-the-fact dispute over the minutes of the previous Executive Committee meeting. We should not prematurely lose sight of Ms Gildernew’s apparent dissent (as reported in the MSM) in that meeting either.
Much of the DUP action is attributable to a proper concern for coherence in government. To that extent I am sympathetic to the frustration that’s been obvious in some senior members of that party: to whit, an apparent rupture between the Executive and an individual Ministry.
Under the 2007 Act, the Ministerial Code provides guidelines for a functionable relationship between individual Ministers and the Executive. But as things stand, this apparent departure from protocol appears to revolve around the Executive’s reluctance to handle a controversial issue brought to them, (even if proved ‘after-the-fact’) by the Minister for the Department for Social Development.
Whoever was at fault, no clarity emerged at that stage. What seems beyond dispute is that the agreed process broke down.
By contrast, it is entirely reasonable to suppose that the minutes will be subject to various interpretations by different parties. It’s not unusual, or necessarily controversial. However, the purpose it is being put to is. Without having to make wild accusations, Reg Empey has suggested that irregularities in the procedures of that meeting have significantly blurred its outcomes. Perhaps the courts would better sorting that one out too?
As to the latest matter arising, it is possible/probable that the Minister only partially briefed others within government before making her announcement on Tuesday. But, as is transparent from Sinn Fein’s hostile questions on Tuesday, Ms Ritchie had clearly been set a trap by at least one of her partners in government.
Why on earth would you give a full briefing to people who are clearly in a position to use their internal government position to undermine your own political standing?
In such circumstances, which is going to count more: collective responsibility to a potentially treacherous cabinet; or responsibility to her own party (and, ultimately, her voters), not to let others use their privileged position within government for own ‘narrow party political advantage’.
In such circumstances is it ‘reasonable’ to oblige Ministers in the Executive to fully appraise another Executive colleague from another party who is then free to use that privileged information in whatever way they wish?
It would be very interesting to see what a court of law would make of that one too.