Lord Chief Justice Morgan: “this is a case about political failure”

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Not the Haass talks.  You can keep your nose pressed against the windowpane with David if you’re hoping for a scrap of comfort from that.  No, this is about the continued dysfunctional approach of the two main parties of the Northern Ireland Executive semi-detached polit-bureau to the process of government – as defined under the current administration.

Sinn Féin’s pre-Christmas (23 Dec) defence of the Northern Ireland Agriculture Minister Michelle O’Neill’s unilateral decision to re-allocate €137 million of EU funding over the next six years under the Common Agricultural Policy was a good sign that they knew the gig was up.  Laughably the press release by SF MLA Oliver McMullan complains that “the [then] impending court case against the Department of Agriculture is… an attempt to breach Ministerial independence”.  [It's as if he's never heard of the Hillsborough Agreement... - Ed]  Indeed.

As it was they forced the Lord Chief Justice Declan Morgan to make his ruling and, in the process, put some manners on the errant Minister.  From the BBC report

The finance minister Simon Hamilton [DUP] blocked a move by agriculture minister Michelle O’Neill [Sinn Féin] to reallocate over £100m in European funding.

Ms O’Neill took the decision without securing executive approval for the plans.

Lord Chief Justice Sir Declan Morgan ruled that by doing so Ms O’Neill broke the ministerial code.

The Belfast Telegraph report has the legal arguments in a nutshell

David Scoffield QC argued that the issue required approval because it was cross-cutting, controversial, significant and involved external relations.

He said efforts to reach a resolution had failed as both sides became entrenched in their positions.

Mr Scoffield claimed Ms O’Neill had not responded to legal correspondence sent before the case reached court.

“The impression of the Department of Finance and Personnel Minister was that her view is ‘If I just keep my head down for a specific period of time I will get this over the line and nothing can be done’,” the barrister told the court.

Even after proceedings were launched it was made clear that Sinn Fein’s “settled view” was that the decision did not need to be put before the Executive, Mr Scoffield said.

Tony McGleenan QC, for the Agriculture Minister, contended that Mr Hamilton had no role to play in how Ms O’Neill allocated money that comes directly to her from Europe.

At one stage in the all-day hearing Sir Declan commented: “I can just see the first line of the judgment already – this is a case about political failure.” [added emphasis]

And quotes from the ruling by Lord Chief Justice Declan Morgan

Ruling on the challenge, Sir Declan said he was satisfied that no prospect of a resolution existed.

“Because it has not been possible to reach political agreement in these matters the court has been engaged as a matter of last resort,” he said.

The judge held that the decision to transfer the funds was both significant and controversial.

“It’s clear there was a strong difference of opinion between the farming community and environmentalists over how that decision was to be made,” he pointed out.

“I conclude this matter should have been brought to the attention of the Executive Committee, and that the Minister made the decision consequently in breach of the ministerial code.

“These findings are sufficient for me to conclude that she had no authority to make the decision and in those circumstances I’m prepared to quash the decision.” [added emphasis]

By the way, this is not about the decision itself.  It’s about the process of government.  Or, rather, the Minister’s failure to follow due process…

Adds  One other key point, given that the Minister’s unilateral decision was announced on the last Friday before Christmas (20th Dec).

From the notes to the ministerial press release

Rates of transfer between the Pillars of the CAP for the years 2014 to 2019 must be declared to Europe by 31 December 2013.

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  • sherdy

    Someone from Sinn Fein should learn to be concerned about the ‘process of government’.
    Quite often we have seen DUP ministers going on DUP-favouring runs with scarcely a murmur (like Edwin Poots sabotaging the Irish language act).
    Waken up, Sinn Fein, you’re lookting too cosy.

  • New Yorker

    Congratulations to Simon Hamilton for bringing and winning this case. This involves EU monies and is not the Minister’s private slush fund. Ultimately the lack of an executive function is the fault of the First and Deputy Ministers who seem to be out to lunch on this important function of any good working government.

    This minister in particular and her senior civil servants have engaged in several dicey and dumb tricks to the detriment of the agricultural community. There needs to be a full investigation of the department. The problem is at the top and in no way the fault of the hard working and helpful DARD personnel in the field who know of and suffer under the imperious and capricious reign of the Minister and her lackeys.

  • Dec

    New Yorker

    What are you wittering on about? ‘The detriment of the agricultural community’. Is that shorthand for allocating 137 million euros worth of handouts away from their respective pockets? Even Baker is hinting he’s not entirely against her plans for the money, which were a damn sight more constructive than the plans the farmers have for the cash.

  • Pete Baker

    “Even Baker is hinting he’s not entirely against her plans for the money…”

    Ermm… No. What I said was that the original post wasn’t about the decision itself.

    Whichever way you look at it the re-allocation of a large amount of EU funding away from direct support to farmers to a more centrally controlled, by the Minister, ‘development fund’ is a major policy shift.

    That alone should require it to be a decision agreed at the Executive Committee level.

    Rather than a decision taken unilaterally by the Minister concerned. Or one announced on the Friday before Christmas…

  • New Yorker

    Dec

    The EU monies are specifically for SFP, not some unspecified slush fund at the whim of an incompetent and/or corrupt minister. This is EU money, not UK or NI money and as such involves international relations which is an OFMDFM exclusive function. She has no authority for this high-handed trickery. It does not involve handouts, farmers pay taxes and fulfill an important service. That is the underlying principle of SFP and other EU agricultural policies.

    I note you neglected to comment on the quality of this particular minister and her henchmen. Why? Do you actually know anything about DARD?

  • cynic2

    When will the auditors ever surcharge this shower? The amount they waste on doomed court cases is phenomenal

  • son of sam

    Am I right in thinking that the proposal from this particular Minister to move D A R D headquarters to Ballykelly was taken without full and proper consultation ?If I am wrong, I am willing to be corrected.

  • http://gravatar.com/joeharron Mister_Joe

    Well, quite a few of them from both big parties seem keen to try these solo runs

  • Pete Baker

    One other key point, given that the Minister’s unilateral decision was announced on the last Friday before Christmas (20th Dec).

    From the notes to the ministerial press release

    Rates of transfer between the Pillars of the CAP for the years 2014 to 2019 must be declared to Europe by 31 December 2013.

  • Comrade Stalin

    New Yorker:

    This involves EU monies and is not the Minister’s private slush fund.

    Who says it’s the minister’s private slush fund ?

    It is the way the decision was made which is the issue at hand, not the decision itself.

    Ultimately the lack of an executive function is the fault of the First and Deputy Ministers who seem to be out to lunch on this important function of any good working government.

    This is nothing whatsoever to do with OFMDFM.

  • Dec

    New Yorker

    Nurses pay taxes and perform an important service. Where’s their 137 million euro handout?

    CS has it right. The decision was correct, but the handling was pisspoor.

  • Pete Baker

    “This is nothing whatsoever to do with OFMDFM.”

    Up to a point, Lord Copper.

    OFMDFM have the power to call individual ministerial decisions into the Executive Committee for consideration – without that minister’s consent. Even retrospectively. If the FM and DFM agree to do so. See Hillsborough Agreement, and subsequent amendments to the Ministerial Code.

    It would appear that the current OFMDFM office holders did not agree to do so in regard to this decision. Hence the legal action by the NI Finance Minister.

    That would suggest that the DFM was reluctant to take action against his party colleague – so much for his talk of leadership in relation to the Haass negotiations. Then again, it probably wasn’t her decision…

    But, as an Alliance supporter, you will no doubt be aware that the Hillsborough amendments were only ever intended to be deployed against Ministers who were not members of the parties occupying OFMDFM.

    After all, what use is a veto if you can’t use it in support of your own party’s position.

    Still, it’s good to know that those parties are continuing to work diligently on building the trust required to enact any agreement that flows from the Haass negotiations…

  • New Yorker

    Comrade Stalin

    It is both the decision which is part of a multifaceted underhanded campaign to appropriate SFP monies, and it is the arrogant manner in which it was executed. Can you precisely explain what she intends to do with the hundred million without using bureaucratic argot?

    Dec

    You apparently know little of CAP and should refrain from comment on the matter.

  • WindsorRocker

    Sherdy,

    To compare this decision to Edwin Poots NOT bringing forward an Irish Language Act is to misunderstand the post 2006 Executive structure. Decisions need approval not Non decisions.

  • streetlegal

    Yup – at every turn what do we find from the Stormont Executive but that peculiar blend of arrogance and incompetence.

  • cynic2

    For example, would it be proper is hypothetically a Minister diverted monies voted for one purpose to fund ‘community groups’ opposing the policies or promoting issues relating to another Department whose Minister they sit with in the Executive?

    Should ministers not act corporately?

  • cynic2

    ” that peculiar blend of arrogance and incompetence.”

    ….well, we elect ‘em

  • New Yorker

    The problem is that there is no cabinet as there is in London and Dublin and no PM in charge who can keep ministers in line. There is no de facto executive authority. There are two guys with nebulous titles who seem to do little but travel to other countries. Then there are Ministers who seem to do just about what they want and answerable to no one.

    The DARD example is one instance, McCausland and the sleazy squeeze on the glass company is another and there are many others known and unknown.

    Governments need someone with executive authority to make and implement policy as well as all other executive functions necessary for good government. That is just one shortcoming in this crassly imposed excuse for a government.

  • cynic2

    “There is no de facto executive authority. ”

    Agreed. There is no coherent “Government”.

    Haass is dealing with a symptom not the core disease. I am sorry to say that that’s why – whatever the window dressing – its doomed to fail.

  • Comrade Stalin

    New Yorker:

    and it is the arrogant manner in which it was executed. Can you precisely explain what she intends to do with the hundred million without using bureaucratic argot?

    It’s explained in the BBC article. I think you’re barking up the wrong tree; the issue at hand is the reclassification of certain monies provided under an EU grant. I don’t pretend to understand the precise detail of the reallocation (and there’s more heat than light over the matter on this thread) but I’m pretty sure it’s not as if the minister intended to stuff it into a mattress somewhere, which is what you’re suggesting with your talk of “misappropriation” and “henchmen”. It is entirely possible that in slightly different circumstances the same reallocation decision could have been taken with the agreement of DFP.

    Pete,

    Much of what you’re suggesting about what exactly the Minister did or did not bring to the executive and what the DFM did or did not veto is conjecture.

    If things were going the way you describe, the legal outcome would have been inevitable and the minister’s legal advisers (the guys who would have instructed legal counsel in the court case) would have told her so. To proceed they then have asked her for a ministerial direction. If there is no ministerial direction then it would follow that the minister was acting on the advice of her department. Freedom of Information request should get to the bottom of that one.

    My guess is the idea of whether or not this should go to the executive was probably not so clear cut.

  • notimetoshine

    Well if the Hass talks don’t show the dysfunction and stupidity of our local politics this must.

    Two ministers who are part of the same executive and therefore one might assume that they would be singing from the same hymn sheet, end up in court. Well that is just wonderful. How much did this cost?

    What is the point of the assembly if ministers have to take each other to court over their decisions?

    Time to get rid of the whole rotten edifice.

    I mean good god how aggghhhh words can’t describe the incompetence…

  • New Yorker

    Comrade Stalin

    The media reports are spoonfed bureaucratic argot. Who exactly would be getting the money in the proposed schemes? What experience and background have the individuals and entities have? Have they submitted detailed plans with credible results? Is it possible any monies will pass to shell companies? The people involved have history and scrutiny is needed.

    The legal staff at DARD, in my experience, are not up to their jobs. For example, their reading of EU law is idiosyncratic to be kind.

    I maintain this issue must involve OFMDFM because in concerns international monies. OFMDFM have responsibility for international relations, at least according to their website.

    Make no mistake, their has been a concerted effort by the present DARD leadership to take SFP and other monies from individual landowners and farmers and divert it to who knows where. If there were a good journalist this would be an important investigation and eye-opening story.

  • Mick Fealty

    CS,

    [Since I woke up in time to catch the end of the Haass Show]…

    “…the legal outcome would have been inevitable and the minister’s legal advisers (the guys who would have instructed legal counsel in the court case) would have told her so.”

    I know that ever since Peter was cleared by his own departmental solicitor many have come to believe that departmental legal advice is somehow become writ.

    The court judgement suggests the issue was a great deal more clear cut. We could do an FOI and work out whether the minister or the department is at fault.

    But it is the judge who is saying this is ‘shut yer eyes, punt the ball and hope you don’t get caught’, not the Minister’s political rivals.

    The intriguing question to be asked is why such basic reversals seem to have no political valence attached to them.

    If Ms O’Neill had been a minister in Dublin, Edinburgh or Westminster, there would be hell to pay for getting caught out like this. Scrap that, it simply would not have happened.

    Is it 2013 yet?

  • cynic2

    Mick

    I agree. This is all part of the great Stormont sham fight that pases for Government but what is more interesting is why the Agriculture Minister wanted to divert this money and who nit was to be diverted to – in the run up to the next elections.

    This is why we need an opposition rather than the Jim Allister One Man Band good as he can be at times in ferreting out waste and outright corruption.

    I am amazed that the Stoops miss a trick on this time a=ter time