“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]