“The attorney general is looking at this matter.”

Some of the London-based media have picked up on yesterday’s ruling by Mr Justice Girvan and the confirmation from the Attorney General that he will hold an inquiry into the course of action by the Secretary of State for Wales etc, Peter Hain, in the case around his appointment of an Interim Victims Commissioner – but not all. The Daily Telegraph and The Times cover the ruling, to some degree, but neither The Guardian nor the Independent, so far, appear to have noticed – Google News may show updates on that. This despite the Irish Times’ Gerry Moriarty’s Westminster sources[subs req] commenting that if a London-based minister was at the centre of this case he or she would have no option but to resign. Updated BelowThere is also, as the Telegraph report pointed out, the potential impact on Peter Hain’s campiagn for Deputy Leader of the Labour Party.

The reaction seems based on the tacit understanding that political considerations have always played a part, to a greater or lesser degree, in the appointment of Commissioners in general, combined with an attitude to decisions made by any holder of the office of Secretary of State for Northern Ireland, in particular, which could be characterised as – ‘well you’ve got to look it in context’.

The seriousness, which some journalists have identified, and which those political sources recognise would have an impact elsewhere, lies in the original ruling by Mr Justice Girvan, a ruling that Peter Hain seems reluctant to appeal against

In that ruling Mr Justice Girvan stated that, through his chosen course of action, the Secretary of State had “failed in his duty of candour to the court.”

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 [Peter Hain] 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]

That ruling has not, to date, been appealed by the Secretary of State.

And it’s the fundamental issue at stake in this case, more so than any political motive in the appointment itself, and it’s one which Mr Justice Girvan highlighted in yesterday’s ruling

Any possible attempted interference with or obstruction of the course of justice is a grave matter which demands a proper investigation.

[4] It is at common law an offence to pervert or obstruct the course of justice.[added emphasis]

That’s what, finally, prompted a swift response from Peter Hain, and the equally swift response from the Attorney General in confirming an inquiry will be held.

To bring this back even more into our localised arena for a moment, and the ramifications of the original ruling on his lack of candour to the courts – not to mention whether the inquiry confirms that Peter Hain had a deliberate hand in an attempted inteference with or obstruction of the course of justice – the Secretary of State would likely be, for example, already in breach of the very pledge of office which the goverment will be requiring all parties to sign up to in the formation of any Executive in March

From the Northern Ireland (St Andrews Agreement) Bill

7 Pledge of office

(1) In the pledge of office set out in Schedule 4 to the 1998 Act, after paragraph (c) insert—

“(ca) to promote the interests of the whole community represented in the Northern Ireland Assembly towards the goal of a shared future;
(cb) to participate fully in the Executive Committee, the North-South Ministerial Council and the British-Irish Council;
(cc) to observe the joint nature of the offices of First Minister and deputy First Minister;
(cd) to uphold the rule of law based as it is on the fundamental principles of fairness, impartiality and democratic accountability, including support for policing and the courts as set out in paragraph 6 of the St Andrews Agreement;[added emphasis]”.

(2) At the end of the pledge of office set out in that Schedule insert—
“Paragraph 6 of the St Andrews Agreement says:
“We believe that the essential elements of support for law and order include endorsing fully the Police Service of Northern Ireland and the criminal justice system, actively encouraging everyone in the community to co-operate fully with the PSNI in tackling crime in all areas and actively supporting all the policing and criminal justice institutions,
including the Policing Board.””

In the meantime, the Irish Times’ Breaking News reports comments by the Prime Minister’s official spokesman at the daily press briefing in Downing St.

The Prime Minister’s official spokesman today refused to be drawn on Lord Goldsmith’s inquiry. “The secretary of state has said that he will co-operate fully with the investigation,” the spokesman said. “The attorney general is looking at this matter. I think it is important that we let him.”

Asked if Mr Hain still had the Prime Minister’s confidence, the spokesman said: “Yes”.

Update This is what the Downing Street website records from the morning press briefing

Asked if the Northern Ireland Secretary enjoyed full support and confidence from the Prime Minister, and also, was the Prime Minister consulted on the appointment of Bertha McDougall, the PMOS replied that Peter Hain did have the Prime Minister’s full support and confidence, and the Secretary of State had said that he would co-operate fully with the investigation. With regards to Bertha McDougall, the PMOS said that he did not comment on internal discussions within Government.

Put that the High Court judge had declared that Peter Hain had been in breach of the Ministerial Code, and did that now mean that the Prime Minister thought that the Code no longer mattered, the PMOS said that there were questions that had been put to the Attorney General which were being investigated, and the Secretary of State had already said that he would co-operate with that. The PMOS said that he was not going to give a running commentary on it.[added emphasis]

Asked if there was a second or parallel investigation from No10 being done about whether the Ministerial Code was breached, the PMOS replied that the Attorney General was looking at this matter, therefore, it was important that we let him look at it.

Except that, the High Court ruled, in Mr Justice Girvan’s original judgement, that the Ministerial Code of Practice had been breached in the appointment of Mrs McDougall – a ruling that the Secretary of State has not appealed against.

[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;[added emphasis]

(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.

The 67 questions for the Attorney General to consider in his inquiry, as set out in yesterday’s ruling, relate to “whether there was a deliberate attempt to mislead and if so by whom.”

[5] The letter of 5 January 2006 was in response to a solicitor’s letter written in the context of a likely judicial review challenge. If incorrect and misleading information was deliberately given to put the applicant on a false trail then prima facie that conduct would appear to fall within the concept of perverting the course of justice. If, in the course of the substantive judicial review itself, there was a deliberate attempt to mislead the court the same would be true. The letter and the evidence provided by Mr Hamilton as approved by the Secretary of State had the tendency to mislead. The question which arises in this case is whether there was a deliberate attempt to mislead and if so by whom.[added emphasis]

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  • joeCanuck

    Another fine mess

  • This is one of these things that’s going to burn slowly then explode. And the Labour party at Westminster’s starting to realise just how much trouble Hain’s in. Two predictions: 1.) he’ll pull out of the Labour leadership race over Christmas & 2.) (facing the risk of prison time as he now does), Hain will be out of the Cabinet at the next reshuffle.

  • Yokel

    He’s buggered though given the misdemeanours were committed here he’ll just quietly be moved.

    The guy has`been running ‘a favour for you and one for you’ business for way too long and has been caught. He’s been running it like some far flung colonial boss.

    Rove is spot on, this has really blown up and there is not much of a way out of it. His ladder climbing days are over.

    I reckon Brown will shove Reid back in….

  • David Lidington MP,
    Shadow Secretary of State for Northern Ireland summed it up well:

    Commenting on the judgement in the High Court in Belfast today in which the Judge has tabled 67 questions for the Attorney General to address in respect of the conduct of the Secretary of State and his officials, Shadow Northern Ireland Secretary, David Lidington, said:

    ‘The criticisms contained in Mr Justice Girvan’s judgement today are a devastating indictment of the Secretary of State and his advisers.

    ‘It really is quite extraordinary for the Judge to submit 67 questions for the Attorney General to investigate in respect of this matter. The issues he raises, relating to possible attempts to pervert or obstruct the course of justice, are of the most serious nature.

    ‘The issue here is not about the suitability of the interim Victims’ Commissioner, but of the conduct of the Government in her appointment.

    ‘It is now essential that Peter Hain comes forward with a detailed explanation of his actions in response to Mr Justice Girvan’s criticisms.’

  • wild turkey

    i tend to agree with karl on this one ( a first!)

    but forget the mainstream print media, you will know the fuse has been lit and is irrevocably burning when this issue shows up Guido Fawk blog of rumours plots and conspiracy.

    it is safe to assume he has been informed of the 67 questions. ( who wants to be a millionaire only has 15)

    given my admittedly limited experience of the public sector/nics culture in northern ireland a simple observation.

    the firm is top heavy with people , who, if they thought it would advance their career and/or agenda would drive a JCB over your kids a few times… and then discipline you for unprofessional behaviour when you dared complain or question.

    Sweet Jesus, I am waiting for Nigel Hamilton to give a talk at my kids school on ‘Ethical Management: Tough decisions and delicate issues’. The school informs if Nigel can’t make it, the portaferry aquarium is willing to provide a hammerhead shark as meaningful substitute.

    this place makes napoleans III republic look like a buddhist monastery in comparison.

    the horror, the horror… the laughter

    ps yokel. try this on for size. secretary of state for norn ireland Hazel Blears. the bookies are giving outstanding odds… and she would make a great speaker at the 2007 NIHRC annual conference.

  • heck


    I agree with you that Hain has screwed up, (not sure if it was deliberate or if he was manipulated by the civil servants) but in the scheme of things is this such a big deal.

    He is part of a government that lied, forged evidence and used plagiarized documents and fear to launch and illegal war resulting in the deaths of 650000 civilians.

    Compared to that his lies in NI are minor.

    The problem is this labour government and to use a well used phrase “the fish rots from the head”

  • wild turkey


    spot on, the fish does rot from the head.

    in comparison with iraq, the middle east, afghanistan, peerages for money the question may seem minor.

    nonetheless the questions remain, why should we put up with the resultant stink and what, if anything, can be reasonably done to expunge the source of odour?

    A simple question. It is this. If in a benefits tribunal, a claimant had been presented with the equivalent of the 67 questions with respect to misleading and fraudulent responses to official queries, would he/she still be in receipt of benefits?

    answers on a postcard please.

  • heck

    wild turkey


    Do you have an opinion as to whether Hain did this on his own or if his civil servants concocted it and he was not paying enough attention to catch it? (What with being SOS for Wales, running for deputy leader etc.) I suspect Norn Iron is low on his priorities.

  • Pete Baker


    “Do you have an opinion as to whether Hain did this on his own or if his civil servants concocted it and he was not paying enough attention to catch it?”

    That’s what Mr Justice Girvan’s 67 questions seek to determine.

  • Ian

    I reckon Hain’s been more fool than knave on this occasion.

    Philips was the one who came clean about the whole affair, and appears only really to be guilty of trying to pull Hamilton out of the hole he dug for himself.

    Hamilton, it would appear, is goosed.

    I wonder will there be any consequences for the loyalist ‘conflict resolution/community transformation/whatever’ initiatives he’s been heading up?

  • joeCanuck

    The buck stops here.
    Harry Truman

  • heck

    I asked this before (and before anyone come out with and wise cracks, I really don’t know the answer).

    Are these civil servant locally recruited or are the sent over from England?

    If they come from England I assume they are public school/oxbridge boys (enough said!) Is that correct?

    If they are locally recruited does anyone know their background? (from the names I guess they are not from the Falls Road or Crossmaglen!!)

  • I don’t see why posters don’t talk about Sir Brian Hutton’s relation to the matter if Brenda Downes had been appointed Victims Commissioner, a post she was quite qualified for since the RUC killed her husband in 1984.

    He was attending a sit-down protest,
    commenorating the introduction of internment, and when he got up and started running towards the police officers, Nigel Hegarty killed him with a plastic bullet from three yards. When Hegarty was tried in 1986, Hutton declared him innocent because he “probably acted instinctively”.

    For more on this, see Danny Morrison’s column in February 2004, “My report on Lord Hutton”.

    If Brenda Downes had gotten the appointment, everyone would have mentioned why she did, a discussion which would soon highlight all the terrible decisions by the former Law Lord, starting with his cover up of the killing of Dr. David Kelly at the direction of Prime Minister Blair.

    In sum, the flap is all about the dirty work of the Crown rather than the qualifications of the widows.

  • While it is most thoughtful of spammer Emily to bring back this thread about the failure of the SoS to appoint Brenda Downs Victims Commissioner – like what spammer Hunt did with the thread about the distressed victims of the disappeared yesterday – since they both substantively end with apparently telling posts by me, does anyone know how this dispute was dealt with by the most unreliable Attorney General – the guy who fudged the question of the legality of the preventive war against Saddam Hussein, etc.? There has been so much crap flying around these days that I had forgotten about his flap with Mr. Justice Girvan.

    Remember, Girvan was the judge who caused all the problems for Gareth O’Connor when he ruled that his dissident group wasn’t a terrorist group under the Terrorism Act while it was in the Republic. This made O’Connor’s conviction there most explosive because he might have turned against the Crown for setting those in the North in the arms operation up as terrorists – what may well have led to his murder by Anglo-Irish securocrats while on his way to this probation officer in the Republic.

    All of this raises the need of the site to update on the list of the most recent threads if ones are called up by anyone and for any reason rather than have the trouble of trying to find out where they originated. The one yesterday about the disappeared was one year old when it was called back by Hunt, and it, of course, disappeared again, shortly after I had responsed to it.