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 UpdatedFrom 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.