“a rigorous and searching investigation..”

Having mentioned best practice in government, and being keen to see a light shone on the activities there, it seems like a good time to catch up on the latest news on the Attorney General’s Inquiry into Peter Hain’s, and/or senior civil servants’, activities in and around the illegal appointment of Bertha McDougall – who was, it appears, granted an extension to her appointment [who approved the affidavit? – Ed] – although a little bird tells me that this might have more to do with the staff and offices not being prepared for the haste speed of her initial appointment. Chris Thornton, in the Belfast Telegraph, focuses on some of that all-important detail on the terms and conditions for Peter Scott QC.. and it would seem to fall short of the “rigorous and searching investigation” which Mr Justice Girvan stated was needed..From the Belfast Telegraph report

The investigation into a possible NIO cover up is not a fully fledged legal inquiry, the Attorney General’s office has confirmed.

Peter Scott QC was appointed last week to review whether the NIO attempted to pervert the course of justice in a High Court case about the Victims’ Commissioner appointment.

But the barrister has not been given powers to compel witnesses or summon documents – and it remains unclear if he will interview Secretary of State Peter Hain and the senior civil servants at the centre of the affair.

A spokesman for Attorney General Lord Goldsmith said an advantage in Mr Scott conducting a review, rather than a full formal inquiry, is the ” relative speed” in producing a report.[added emphasis]

Mr Scott, who shared chambers with Lord Goldsmith when he was a practising barrister, was asked to review the case after Mr Justice Girvan said there was evidence the NIO deliberately misled the court.

Lord Goldsmith original comments to the House of Lords were noted here

The Attorney-General (Lord Goldsmith): Mr Justice Girvan referred certain matters to me, as Attorney-General for Northern Ireland and as,

“the guardian of the public interest in the due administration of justice”,

so that I may investigate concerns of his that arose during the conduct of judicial review proceedings in respect of the appointment of the interim Victims’ Commissioner. I have concluded that that is best done by appointing an independent person to carry out a review and report to me. Mr Peter Scott QC has agreed to carry out the review and will report back to me. He will commence immediately. The terms of reference we have agreed are as follows:

Further to the referral of papers to the Attorney-General by Girvan J and in the light of his judgments of 9 November and 20 November 2006:

to examine the concerns raised by the judge;to examine in particular the way in which the Government carried out their obligation of candour in the judicial review proceedings relating to the appointment of an interim Commissioner for Victims and Survivors; and to report to the Attorney-General with recommendations to prevent a recurrence of any shortcomings identified.[added emphasis]

A reminder of those reported terms again

But the barrister has not been given powers to compel witnesses or summon documents – and it remains unclear if he will interview Secretary of State Peter Hain and the senior civil servants at the centre of the affair.

As I said earlier, that would seem to fall short of the “rigorous and searching investigation” which Mr Justice Girvan stated was needed

[7] The Attorney General thus has the function of protecting the due administration of justice. I consider the proper course for this court to take is to refer the papers to him to decide what, if any, steps should be taken in the matter in the light of all the circumstances and in the light of all the papers before the court and any documents to which neither the court nor the applicant has access. In the Schedule I set out what appear to me to be the key questions which need to be addressed in a rigorous and searching investigation into the matter. The applicant who was the recipient of the misleading and incorrect information will of course have an interest in the proper conduct of the investigation.[added emphasis throughout]

And also from the Belfast Telegraph report

Mr Scott has declined to comment on the way he will conduct the review, and the Attorney General’s office said it could not specify whether or not he will interview Mr Hain and the civil servants involved in the matter.

Legal experts say there may be complications in any interview, because the people involved could demand legal representation.

However, that does not rule out further action if Mr Scott recommends it in his report.

A rigorous and searching investigation into the matter…

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  • parcifal

    Nowt will happen its a non-runner; the establishment will close ranks like they always do.

  • joeCanuck

    I suspect so Parcival.
    There is a long history in the U.K. (especially in the case of N.I.) of putting the fox in charge of the henhouse.
    Time will tell and if the spokesman (shouldn’t that be spokesperson?) for the A.G. is a truth teller, it shouldn’t be too much time.
    Although I wouldn’t expect it anytime before the possible Assembly election.

  • parcifal

    Pete will not be happy to hear that, as he’s devoted a considerable amount of time and effort in pursuing the bounder hain.
    The slugger slueth will want to apprehend his villain sooner 😉

  • Pete Baker

    “The slugger slueth[sic] will want to apprehend his villain sooner”

    Missing the point again, parci.

    Highlighting the activities of any Secretary of State is not being in pursuit… it’s just paying attention to what’s actually going on.

  • joeCanuck

    That’s fair Pete.
    I applaud your efforts in trying to expose the hypocrisy that seems to abound everywhere in politics. Especially the “truth” ; too often it’s a “fox dressed in sheep’s clothing”.

  • joeCanuck

    My memory is slowly recovering. I guess that should have been a wolf, not a fox.

  • dpef

    I’ve asked it before. I’ll ask it again:

    If the appointment was illegal can her report be valid?

    If the appointment was illegal can the extension to her tenure to complete the report be legal?

    Regardless of the content and any integrity involved, if she is an illegally appointed person can her findings be treated as valid?

  • Pete Baker


    Mr Justice Girvan, as I understand it, is currently assessing a ruling on whether the appointment should be immediately revoked.

    The report is a different matter. Assuming that the appointment is not revoked, it would seem that the report will stand – as Mrs McDougall’s personal integrity has not been called into question by the court rulings to date.

    However, given those rulings, to date, I don’t see how the appointment can be allowed to stand.

    That is, though, dragging the thread somewhat off-topic..

  • dpef


    I believe the report is an extremely important and much neglected element of this story.

    Of course it is correct the Hain is challenged and held to account over his illegal behaviour along with the civil servants involved.

    But (and it should be a big one):

    If he did not appoint a fit and proper person (and we have no way of knowing this as she was not judged on that criteria) then the report issued cannot be treated as a report a fit and proper report.

    If the appointment is invalid, the report should be treated as equally invalid.

    Her report will be something many in society have to live with and will set the methodology of addressing victims issues for an extended period.

    If we can’t be sure she was the best person for the job. We can’t be sure it’s the best report. Or an unbiased best effort from a possibly unsuitable candidate.

    As she hasn’t been properly examined and appointed it could even be a report based on bias and inability that was never looked at.

    As we know it wasn’t a fit and proper appointment. The report shouldn’t have any more validity.

    And I have no big issue with Bertha beyond the fact she shouldn’t be doing the job she got.

  • Pete Baker


    “If he did not appoint a fit and proper person..”

    I understand your reasoning, but the argument does not stand. There has been no finding that Bertha McDougall is anything other than a “fit and proper person” – far from it.

    As I pointed out earlier, the current ruling is that Hain was improperly motivated and breached his ministerial code of practice.

    That alone should mean that the appointment should be revoked.

    Dragging the thread and argument into unsubstantiated hypothesis in the meantime simply diverts from the issue at hand.

  • dpef

    It doesn’t divert from the issue. The issue is: Hain is trying to string this out, stretch her tenure and ensure her report is issued.

    He should be binned, she should be binned, her report should be binned.

    The only inappropriate element we end up living with long term will be the report. both Hain and Bertha will be gone soon anyway regardless of the courts. The invalid report from an illegal appointee will be what survives.

    You are missing the issue that lingers.

  • dpef


    I’m going to make a call here, reference it, hold me to account:

    Bertha will make the DUP funding argument on community equality rather than a need based judgement.

    Bet you a £5 donation to Slugger’s.

    Sectarian head count over need. I bet it’s in her report.

  • Pete Baker

    Actually, dpef, the issue is Hain trying to string this out when the courts have already ruled against him on the appointment.

    You’re engaged in an exercise in futuring – which only serves to distract from the issue.

    The High Court is still assessing the extension to the appointment – as I pointed out.

    If you think the issue is somewhere else.. perhaps you should try blogging that somewhere..?

  • ingram

    On this occassion I would be more inclined to agree with dpef.

    This lady should stand aside until such time as her appointment and role is validated and her position demands cross party support.

    Hain should be held to account, that I fear is as likely as Santa being caught in a compromising position with his Rheindeer.