Thursday, November 09, 2006
Hain motivated by an “improper political purpose” in Commissioner’s appointment
More trouble at NIO mill, this time right at the top with the Secretary of State for Wales etc, Peter Hain severely criticised in a High Court judgement today following a long review. The BBC report the ruling of Mr Justice Girvan that Peter Hain “acted for an improper motive” when appointing Bertha McDougall as the Interim Victims Commissioner and Mr Justice Girvan also referred to “evasive and misleading” information in correspondence with the court. The ruling isn’t is online here, but the BBC report has extensive quotes. The government recently announced their intention to appoint a new Commissioner early next year Updated
From the BBC report
The judge referred to “evasive and misleading” information in correspondence which led to Mr Hain contending there was no evidence to justify Mrs Downes’ challenge based on alleged improper political considerations.
He said that if the Court of Appeal had not allowed that ground to stand then Mr Hain would have successfully frustrated her challenge by withholding material evidence.
“This case, thus, raises very serious issues which should be the subject of immediate and searching inquiry at a high level,” said the judge.
He said a statement by Nigel Hamilton, head of the civil service, that Mr Hain was “mindful” that the DUP had recommended Mrs McDougall had put a spin on the true situation.
”The inference to be drawn is that the respondent (Mr Hain) was attempting to divert attention from the true course of events,” he said.
Mr Justice Girvan said he had concluded that Mr Hain was motivated by politcal considerations in deciding not to carry out a proper procedure to identify the best candidate.
“This leads to the conclusion that he acted for an improper motive,” he said.[added emphasis]
Additionally
He said: ”The relevant government departments initially provided partial, misleading and incorrect information as to the manner of the appointment, failing to disclose the true nature of the limited consultation which took place with one political party (the DUP); implying that no consultation took place when it had; and giving the false impression that the appointment was made on the basis that the appointee was the best candidate in terms of merit when in fact the ordinary principles applicable to an appointment solely on merit were disregarded.”[added emphasis]
Update
From the court ruling
Improper Motive
[51] On the issue whether the Secretary of State made the appointment for an improper motive (namely for political purposes in response to a demand for confidence building measures by the DUP) the conclusion is reached that the Secretary of State was motivated by political considerations to decide not to carry out a proper procedure to identify the best candidate. This leads to the conclusion that he acted for an improper motive. The political consideration which the Secretary of State considered trumped the need to make the appointment fairly having regard to the proper understanding of the merit principle could not justify committing an act of discrimination rendered unlawful under Section 76. Even apart from Section 76 the appointment would have been in fundamental breach of all the relevant Codes relating to the making of public appointments.[added emphasis]
[52] There is nothing to indicate that the DUP was expecting or demanding that their nominee should be appointed if she was not the best of the candidates. Doubtless the DUP was anxious to advance the interests of victims and doubtless they considered that their nominee was a strong candidate. The DUP would presumably say that they did not expect or demand that the Secretary of State should disregard the principle of merit in the choice of the IVC. The elected political leaders of the party would be bound to subscribe to the standards set out in the Members’ Code of Conduct which demands of MPs full acceptance of the merit principle. The fact is that the Secretary of State decided to disregard the accepted merit norms applicable to public appointments in order to secure the appointment of the DUP’s nominee who ex hypothesi might not have been the best candidate, simply because she was the DUP’s candidate. The merit principle is based on a rational and sensible principle, namely that the successful candidate should be the person best able to do the job and give best value for money. The proper purpose for the appointment of the IVC who was being funded from public moneys was the purpose of appointing the person best able to advance the interests of victims, albeit on an interim basis. Inasmuch as the respondent failed to appreciate that point and allowed the political nomination to circumvent proper inquiry into the relative merits of the candidates he was not making the appointment for the proper purpose. The rationale behind the respondent’s actions was that by making an appointment disregarding the relative merits of the candidates the interests of political confidence would be advanced. This approach presupposed a belief that in some way the DUP would be impressed by an action which disregarded established norms of appointment and disregarded the merit principle to which ministers and MPs are committed by the relevant Codes of Conduct. The respondent’s rationale was not a legitimate or proper one.[added emphasis]
And in his conclusion Mr Justice Girvan states
Conclusions
[59] The appointment of Mrs McDougall
(a) breached section 76 of the Northern Ireland Act 1998;
(b) being in breach of the accepted merit norms applicable to public appointments and in breach of the Ministerial Code of Practice in the circumstances the appointment, was in breach of the power of appointment under the Royal Prerogative;
(c) was motivated by an improper purpose, being motivated by a political purpose ( so called confidence building) which could not be legitimately pursued at the expense of complying with the proper norms of public appointments where merit is the overriding consideration; and
(d) failed to take account of the fact that there was no evidential basis for concluding that the appointee would command cross-community support.
[60] The relevant government departments initially provided partial, misleading and incorrect information as to the manner of the appointment, failing to disclose the true nature of the limited consultation which took place with one political party; implying that no consultation took place when it had taken place; and giving the false impression that the appointment was made on the basis that the appointee was the best candidate in terms of merit when in fact the ordinary principles applicable to an appointment solely on merit were disregarded. The true basis of the appointment did not emerge from the letter of 5 January 2006 under the Freedom of Information Act. The respondent opposed the grant of leave to apply for judicial review of the appointment by reliance on the case made out in the misleading letter and failed to reveal to the court the true factual situation prevailing. The court at first instance was accordingly misled and refused leave on an incorrect basis. When the applicant appealed the respondent sought to persuade the Court of Appeal to refuse the appeal by reliance on the same flawed material. When leave was granted the respondent put forward Mr Hamilton as the person with knowledge of the true circumstances relating to the appointment. His affidavit which was seen and sanctioned by the Secretary of State was ambiguous and failed to disclose all the relevant material pertaining to the appointment. When the court ordered the cross-examination of the deponent the respondent sought to appeal against that decision and to rely on an affidavit which it is now conceded was unsatisfactory and failed to disclose all the material circumstances of the appointment. Before the appeal came on for hearing the respondent filed an affidavit from Mr Phillips which purported to set out the full factual situation. No effort was made to explain how Mr Hamilton’s affidavit came to be formulated in a way which was ambiguous and incomplete and implicitly Mr Phillips did not ascertain what aspects of the case as set out in his affidavit actually fell outside the knowledge of Mr Hamilton. No explanation was provided as to how the Secretary of State came to approve and sanction the swearing and filing of an affidavit which Mr Phillips acknowledged was incomplete. Had leave been refused by the Court of Appeal to apply for judicial review the true evidential position would not have come to light and the interest of justice would have been frustrated. Had the respondent succeeded in resisting the cross examination of Mr Hamilton the respondent would have been relying on an affidavit which it is now conceded was incomplete and unsatisfactory. This likewise would have frustrated the interests of justice. In adopting the course that was followed starting with the letter 0f 5th January 2006 and continuing up until the filing of Mr Phillips’ affidavit and the concession made to the court that the letter was misleading the respondent failed in his duty of candour to the court.[added emphasis]
Adds For completeness here’s the final paragraph of the conclusion to the judgement
[61] Nothing in this judgment should be taken as in any way reflecting on Mrs McDougall, on her competence, integrity or quality of workmanship during her tenure of office . She was in no way privy to the inner workings of government in relation to the manner of her actual appointment. She has no doubt carried out her functions competently, conscientiously and to the best of her ability. Similarly it should be recorded that there is no evidence that the DUP expected or demanded that their nominee should be given preference in disregard of the ordinary merit principle. Neither the IVC nor the DUP were parties to this application. It will be necessary to hear further argument on the appropriate relief to be granted in the light of this ruling. In view of the impact of any order on Mrs McDougall’s rights and interest she should be given notice of her entitlement to appear and be heard on the issue of the appropriate relief. Subject to hearing argument on the point, it would appear that any costs incurred by her in such an appearance should be defrayed by the respondent.
Pete Baker @ 02:09 PM
Will this affect the legitmacy of the report currently being put together by Mrs McDougall?I f the appointment is improper can MrsMcDougall’s findings be considered legitimate? Or is it back to the drawing board?
Posted by on Nov 09, 2006 @ 02:51 PMFucki ng hell - I’d strongly recommend that people read the judgement in it’s entirety. The N.I.O.’s conduct relating to this appointment and the subsequent J.R. is breathtakingly outrageous. In any other civillised democracy Hain would be resigning forthwith.
Posted by on Nov 09, 2006 @ 03:06 PMOnce again the British viceroy has insulted the Irish people with his blatant, sectarian nomination. Moreover, the appointment was made at the behest of Paisleyites. Imagine, a nominee of Paisleyite fascists was chosen to advocate on behalf of victims.
A similar situation occured when two members of the Orange were appointed to the ‘parades board”.
In both situations no nationalist was considered.
Orangemen deemed neutral and thus suitable candidates in what is supposed to be a neutral body, designed to rule on Orange parades of hate?
What the hell is Hain up to.
Tell me it’s a joke. Or do people really believe that Hain is acting impartially?
Posted by on Nov 09, 2006 @ 03:10 PMAny chance this can be discussed for what it is - a political scandal at the NIO - without intrusions like that by Ciaran Damery, which only serve to sectarianise this issue in a way that will suit the NIO’s purposes only too well?
Nobody, including those who called for the judicial review, is casting any doubt over the integrity of the commissioner herself and the language used in post 3 above is unworthy of anything purporting to be a serious discussion site. Remove it - or lose yet another reader in long trousers.
Posted by on Nov 09, 2006 @ 03:30 PMhey ciaran, in your trolling you forgot poor old Joe Hendron on the parades commission- or is he an “uncle Tom” in your wee world of stale recycled metaphors ?
Posted by on Nov 09, 2006 @ 03:39 PMCiaran,
I don’t mind standing by grounded criticism of any public figure, but please, please leave the splenetic fury outside the door when you come into Slugger.
There’s enough real material above to fuel fifteen arguments without you throwing in pointless distractions.
Posted by on Nov 09, 2006 @ 03:48 PMThis really is inexcusable. It reminds me of -
“You are sitting at your desk granting licences
on behalf of your Minister. Your enabling statutory powers are in the widest possible terms:
‘The Secretary of State may grant licences on
such conditions as he thinks fit’. With power like
that you might think that there could be no possible ground for legal challenge in the courts
whatever you do. But you would be wrong.”See
http://www.planning-inspectorate.gov.uk/pins/agency_info/judge_over_your_shoulder.pdf
Posted by on Nov 09, 2006 @ 04:31 PMTo be clear, there is actually a huge difference between
“The Secretary of State may grant licences on
such conditions as he thinks fit” and“The Secretary of State may grant licenses on whatever conditions he likes”
Posted by on Nov 09, 2006 @ 04:57 PMMick, there’s nothing ‘unreal’ about the point made by Ciaran that less than open and fully accountable practices were in operation when the two Orangemen were appointed to the Parades Commission.
And Darth Bumsfeld should know that while Joe Hendron is no Uncle Tom, it’s also fair to say that the Parades Commission’s membership was unfairly biased towards one section of the community.
The thing that’s happening here is that Mr Hain and his fellow civil servants are fallling over each other to get Paisley and Co to say yes and that’s why we have the Victims Commissioner debacle, the Parades Commission scandal and the Orangefest Fiasco. Not to mention numerous othet grants where such trifles as objective need have been set aside as subservient to political expediency.Posted by on Nov 09, 2006 @ 05:47 PMI suppose the lesson to learnt here is that nationalists shouldn’t get too het up about apparently biased decisions by the NIO in favour of the DUP agenda, as they’re all ultimately challegeable in the Courts. And by the time Paisley realises that all his ‘confidence-building’ sweeteners have come to naught, he’ll be stuck in a power-sharing arrangement. He can hardly collapse the institutions on the basis of court judgements like the one today, can he?
Posted by on Nov 09, 2006 @ 06:05 PM[my following on from previous message]
In fact, the DUP should be taking comfort in the increasing confidence nationalists seem to be displaying in the British judicial system, as they bring forward judicial reviews such as this.
Posted by on Nov 09, 2006 @ 06:09 PMOC,
I did Ciaran the service of removing his ‘splenetic fury’ (I probably should have marked it such). As ‘Typical’ quite correctly notes, such personalised contributions miss the substantive implications of the story itself and (regardless of his original intent) as only serve as a distraction.
Posted by on Nov 09, 2006 @ 06:16 PMAny chance of an inquiry into the incompetence and corruption of the entire Civil Service in N.I. while we’re at it?
Posted by on Nov 09, 2006 @ 07:41 PMListen. the Victims Commissioner is a well intentioned patsy for the DUP. At least following this debacle we can rest assured that she will only be the interim commissioner-- the word is however that she is quite keen on the job and would have sought to become the commissioner in due course.
An underlying issue here is that there is still a view held within government and the civil service that there is a hierarchy of victims—hence the appointment of a nominee of a party that believes very much in that hierarchy and of a victim who would herself be considered to be at the apex of that hierarchy. Mrs Mc Dougall is in an uncomfortable position and has been used whether willingly or otherwise by both Hain and the DUP. The only honourable position for her would be to resign
Posted by on Nov 09, 2006 @ 08:58 PMThis suggests to me that as well as a problem with the police and courts in Nor Iron there is also a problem with the civil service. Somehow I have the impression that what is going on in the NI office is like an episode of Yes Minister with Hain as the clueless minister out of his depth. Maybe I am wrong but I get the impression that he is being manipulated by a sectarian civil service.
Joint authority (plan B?) with a number of Irish civil servants sprinkled through out the NIO to prevent these sorts of shenanigans.
Posted by on Nov 09, 2006 @ 09:27 PMIts certainly interesting, although arguably academic. Mrs McDougal’s tenure is coming to a natural end and I have no doubt that her report will be issued and considered on its merits.
A little bird told me today that this might presage a call for the resignation of the SOS! I’m not too sure about that, as he is surely the most Teflon of teflon appliances we have ever had about the place.
The calls from RFJ for the suspension of Nigel Hamilton were a bit silly perhaps, but interesting to observe as well.
Mark Devenport made a good point on Radio Ulster earlier this evening when he pointed out that if this had happened in any other part of the UK, an outcry and resignation would have been the only outcome. As it is, we can just hope for a more equitable process when the permanent commissioner is appointed.
Posted by on Nov 09, 2006 @ 10:02 PMLet’s look at the silver lining. Go back, say, thirty years. Would a High Court judge in Belfast have ruled thus? I think we know the answer.
Shows how far this place has travelled on the road to normality. Ian said much the same at 5.05pm.
Posted by on Nov 09, 2006 @ 11:25 PMmiss fitz
Mark Devenport is correct. Anywhere else - not just in the UK - and there would, indeed, be a hue and cry for Hain’s resignation.
Breaching the Ministerial Code of Practice? Why should Blair not sack him, for example? Or why should the Conservative Party not call for his resignation?
It will be interesting to see the general media reaction to this ruling.
Unfortunately too many of our local political players, and a lot of the commenters on slugger and elsewhere it should be said, are too focussed on any party political advantage that might be gained from this, as is all too frequently the case, rather than the actual issue - abuse of office.
Posted by on Nov 09, 2006 @ 11:55 PMYes Pete and we end up with plus ca change. No eyebrows will be raised, nothing will be done and the end of term report will be accepted. The only thing that has possibly been affected is Bertha’s certain chance of becoming permanent Commissioner. I dont think she stands an even chance following this although her own performance came under no criticism by Girvan
Posted by on Nov 09, 2006 @ 11:59 PMI know from Bertha’s own mouth, she presented DUP type arguments on sectarian headcounts for funding distribution to the European Commission when asking for monetary support but didn’t present the more broadly supported alternative arguments based on meeting need or promoting reconciliation and truth.
She is a very nice woman and talks very freely.
I don’t see how a discredited political appointee nominated by the DUP who fronted their arguments to the neglect of others can present a credible basis for the future remit of the Commission in her forthcoming report.
Posted by on Nov 10, 2006 @ 12:23 AMIndeed, miss fitz, only Hain and the NIO were judged to be the guilty parties.
Posted by on Nov 10, 2006 @ 12:23 AMA good day for Hain. This following his sidekick Hanson denying what Labour agreed to in the House of Lords on rates concessions. What other grubby little St A side deals will unravel as this man’s duplicity catches up with him??? How can any of the parties believe any “deal” they think they may have struck with this fool.
It’s all smoke and mirrors with this bunch of charlatans as they ride troughshod over the rules we must all obey and rule us by crude blackmail.
The sooner he is out of here the better for us all quite frankly.
Posted by on Nov 10, 2006 @ 01:07 AMAre all of the appointments to such quangos now tarnished? Presumably political considerations featured in the formation of other commissions ....
Posted by on Nov 10, 2006 @ 01:36 AMAre all of the appointments to such quangos now tarnished?
Nevin
At the risk of being obvious.. No. Only those appointments that are, for example, judged to be
(b) being in breach of the accepted merit norms applicable to public appointments and in breach of the Ministerial Code of Practice in the circumstances the appointment, was in breach of the power of appointment under the Royal Prerogative;
Posted by on Nov 10, 2006 @ 02:18 AMMick, you neutered my post (to some degree) by deleting the terms Klan and KKK when my post referred to Orange Thugs. You also deleted my reference to the police force as SS/RUC. Why? I frequently see posts referring to Oglaigh nahEireann as “terrorists”, “murdererous scum” etc.
With respect, why is it wrong to equate Orange Order with the KKK? This analogy was not meant to be provocative, nor was I venting my spleen. Rather, I base the analogy on facts. I am not trolling, au contraire, I am merely voicing my opinion and am willing to substantiate my (deleted) terms in any debate, without emotional cat calling (as Unionists are wont to engage in) and without ‘playing the man/woman’, UNLESS that person decides to engage in the conflict/struggle or whatever.
In any case I stand by my remarks and I think the whole selection process for Quango bodies like the IMC, Victims’ commisioner and parades comission are undemocratic, patently sectarian and outside the remit of the GFA. It’s disgustingly ironic that the brits make up the rules as they go along (or at the behest of their orange cheerleaders) whilst their lackies Ahern and McDowell refuse to release the IRA POWs in Castlerea prison, despite the fact that they qualify for early release and should have been freed in 2000.
Finally, I can recall an incident not long ago, when exPOW Seán Kelly attended a conference in Belfast and the Unionist posters went ballistic. I didn’t hear much about playing the ball on that thread.
By the way, can I say Tiocfaidh ár Lá? Or would that cause too much upset within the Orange (can’t say Klan) organization?
Beannacht agus Beirfidh Bua!
Posted by on Nov 10, 2006 @ 03:04 AM
