“high standards of candour are expected of government departments faced with judicial review”

As Eamonn McCann points out in the Belfast Telegraph, no-one actually shouted “Resign!” at the Secretary of State for Wales etc, Peter Hain, at NI Questions in the Commons this week [Though they may have thought it – Ed]. And when the SDLP’s Mark Durkan asked a related question Peter Hain feigned ignorance of the issue. He may have to rethink that approach. Today in the House of Lords the Attorney General confirmed that, in response to Mr Justice Girvan’s ruling and 67 questions, he will, as noted previously, appoint “an independent person to carry out a review and report to [him]”. In the meantime the Attorney General stated

“At my request and on my authority, the director-general of my department is writing to all heads of legal teams throughout Whitehall to draw this case and my review to their attention and to remind them of the importance of ensuring an awareness of the duty of candour both by lawyers and clients.”

From the House of Lords Hansard

Government Departments: Judicial Review
11.21 am
Lord Trimble asked Her Majesty’s Government:

What steps they are taking to ensure that all government departments comply with the duty of candour in judicial review proceedings.

The Attorney-General (Lord Goldsmith): My Lords, high standards of candour are expected of government departments faced with judicial review. The requirement is set out in guidance for all those in government involved in litigation and is reinforced in a number of ways, including training for government lawyers. Further, the Ministerial Code and Civil Service Code require individuals to act honestly and not to deceive or knowingly mislead.

Lord Trimble: My Lords, I thank the noble and learned Lord for that Answer. While I have no intention of going into the details of the recent judicial review application by Mrs Downes against the Secretary of State for Northern Ireland, I am sure the noble and learned Lord will acknowledge that it is quite exceptional for the judge in the case to call for a high-level inquiry into the conduct of the Secretary of State and his senior officials and then to publish a list of 67 questions that must be answered.
I have seen press reports that the Attorney-General intends to have an inquiry into the matter. Can he tell us anything about the progress in setting up the inquiry, how it will be conducted and when he expects to have its conclusions? Does he think it might be useful in the interim to circulate both of Mr Justice Girvan’s judgments to all Permanent Secretaries in the United Kingdom?

Lord Goldsmith: My Lords, it is absolutely right that the learned judge has raised a number of concerns and put them to me, not as a Minister but, as he rightly says, acting independently of the Government and in the interests of justice. I have therefore decided that I should inquire into the issues raised by the judge and have concluded that that is best done by appointing an independent person to carry out a review and report to me. This has not yet been finalised. I must identify the right person and see that they are available to do it. Once that is done, however, I will ensure that this House and the other place know of it.

The noble Lord asks whether the judgment should be circulated in the mean time. At my request and on my authority, the director-general of my department is writing to all heads of legal teams throughout Whitehall to draw this case and my review to their attention and to remind them of the importance of ensuring an awareness of the duty of candour both by lawyers and clients.

Lord Thomas of Gresford: My Lords, will the noble and learned Lord assure us that if an inquiry is set up, the person appointed will have the power to summon witnesses and call for documents? As he knows, that is the only way in which an effective inquiry can be carried out, particularly when a judge has described the subject of the application as motivated by an improper political purpose.

Lord Goldsmith: My Lords, I have no doubt that the department in question and the lawyers involved will fully co-operate with the review. I have no doubt that that will take place. If, for any reason, the person appointed to carry out the review expresses concern, I will of course reconsider the situation.

Lord Campbell-Savours: My Lords, on the question of the duty of candour, what happens where a civil servant refuses to reveal material that might well be helpful during the course of these proceedings? Is there a disciplinary procedure and what is it? Have there been cases of complaints because of the refusal of civil servants to hand over information or documents? What has happened in those cases?

Lord Goldsmith: My Lords, I am not entirely sure whether my noble friend is referring to cases where civil servants in the course of official reviews or inquiries have failed to hand over information—I do not know of any situations of that sort—or whether he is referring to litigation in which there is an issue about handing over material. Generally speaking, it would be for the court to determine whether material ought to be handed over. I cannot think of any occasion on which an order has been made by the court to hand over information and that has not been complied with where the person holds the information as a civil servant or other government official.

Lord Laird: My Lords, is the noble and learned Lord the Attorney-General satisfied that there is a high level of knowledge among the Ministers of the Northern Ireland Office about how the High Court works in this country? I include in that the Secretary of State for Northern Ireland. If he is satisfied that there is a high level of understanding, will he explain how, when a judicial review earlier this week found against the Minister who is in charge of water services, costs were awarded against him and the judge said that he was sending a health warning with any legislation to do with water charges when that legislation comes back to this House, the Minister was then able to issue a press statement saying that the Government won the judicial review?

Lord Goldsmith: My Lords, I do not know any details of the case to which the noble Lord refers and it is therefore difficult for me to comment on it. On the basic question, as I said in answer to the Question asked by the noble Lord, Lord Trimble, candour in judicial review proceedings is important. Significant training and other guidance is given to government officials and others about how they must respond to their responsibilities in judicial review and other litigation circumstances.

Lord Lawson of Blaby: My Lords, the noble and learned Lord the Attorney-General said that the inquiry will take the form of an inquiry by an independent individual who he is in the process of choosing who will then report to him. Can he undertake to this House that the report that is made to him will be made public in its entirety?

Lord Goldsmith: My Lords, in principle, it is my intention that the report should be published. However, I have to recognise that issues may arise that might limit or delay that; for example, if for any reason it were to lead to disciplinary or other proceedings following from it.[added emphasis thoughout]

Given the references to the need for high standards of candour in judicial review proceedings it’s worth reminding the Attorney General, and anyone else who might need it, what the original, and unchallenged, ruling by Mr Justice Girvan actually said

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]

And he also ruled, in his conclusion that

[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.

Monday’s ruling, in which Mr Justice Girvan referred the matter to the Attorney General, relates to “Any possible attempted interference with or obstruction of the course of justice”

The Attorney General’s inquiry, and the 67 questions that inquiry is to consider, as set out in the ruling, relate to “whether there was a deliberate attempt to mislead and if so by whom.” – ie whether there was a deliberate attempt to pervert the course of justice 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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