“thereby distancing herself from the illegality of the appointment process”

With Bertha McDougall preparing to publish her report this week it’s worthwhile looking back at the detail of the most recent court ruling. In particular the reasons given by Mr Justice Girvan for not quashing the appointment and for allowing the completion of the report. Given those reasons the key point of interest now is whether the Secretary of State for Wales etc, Peter Hain will push the report as an official Interim Victim’s Commissioner’s publication – pre-empting his announced intention to appeal the original court ruling, the Attorney-General’s inquiry and, in effect, thumbing his nose at the court.From the court ruling on the 15th January

[15] The conclusion I have reached is that Mrs McDougall’s appointment as the IVC which was contractually due to expire on 5 December 2006 was not the subject of a valid extension. That does not mean that Mrs McDougall may not have ongoing contractual or quasi-contractual rights vis a vis the Secretary of State. After 5 December she has continued to carry out functions in connection with the work that she started as IVC. She continues to be paid. She is working on a report which was originally under contract she was bound to prepare. This judicial review relates only to the decision to appoint her as IVC and does not relate to the issue relating to any separate engagement after 5 December 2006. In these proceedings there is no challenge to Mrs McDougall’s engagement on foot of a separate contract (if any) or to her continued work in completing the report if that work is being carried on outwith the framework of the office of IVC. As a matter of common sense and practicality it would be desirable for Mrs McDougall to be able to complete work on her report. That report will have its own intrinsic value, will bring to finality publicly funded work, will provide material of public use and provide background matter and information of use to the incoming statutorily appointed Commissioner.

[16] For these reasons I do not consider it is necessary to make an order of certiorari quashing her appointment. As I indicated in my judgment in the matter I will make a declaration that the appointment of Mrs McDougall breached section 76 of the Northern Ireland Act 1998 and that, being in breach of the accepted merit norms applicable to public appointments and being in breach of the Ministerial Code of Practice the appointment, in the circumstances was made, in breach of the powers of appointment invested in the Secretary of State under the Royal Prerogative. I further declare that the appointment was motivated by an improper purpose that is to say a political purpose which could not be legitimately pursued at the expense of complying with the proper norms of public appointments where merit is the overriding consideration. I further declare that the appointment failed to take account of the fact that there was no evidential basis for concluding that the appointee would command cross-community support.

[17] If I am wrong in the conclusion I have reached in relation to the continuation of the office after 5 December 2006 and if Mrs McDougall’s office has been validity extended I would decline to make an order of certiorari. While I accept that Mr Treacy is correct in arguing that the normal and proper remedy in order to deprive an unlawfully reached decision of legal effect is for an order of certiorari to be made quashing the decision, that principle is not an overriding one and the public interest may on occasions point in favour of the granting of declaratory relief rather than the making of a quashing order. It is significant that Mrs McDougall was appointed on foot of a contract and that Mrs McDougall was not privy to the shortcomings in the reasoning and decision-making process carried out before the contract was entered into. The normal effect of a discriminatory appointment is not to render the appointment itself unlawful but to leave the victim of discrimination with a remedy, leaving the person appointed in office or employment. Here the interests of the victims, which the Good Friday Agreement recognised as important interests to be advanced and protected, would not be advanced by the stopping short of Mrs McDougall’s work and would be better served by allowing that work to be concluded. As stated above that work will have its own intrinsic value notwithstanding the legal defects in the appointment process. The outcome of the investigations carried out by Mrs McDougall and her report and recommendations will be a matter for public discussion and debate and will provide material of assistance (though not in any binding way) to the incoming statutorily appointed Commissioner. Mrs McDougall through counsel indicated a willingness to complete her work in her own name, thereby distancing herself from the illegality of the appointment process. This is a factor which weighs with the court in coming to the conclusion that the granting of declaratory relief would in the circumstances be an adequate remedy.

[18] Mr Treacy argued that if the court does not make a quashing order then the respondent will have avoided any legal consequences flowing from the illegality of his actions. This case has produced a number of important consequences which will have long term effects in the field of public appointments and in the field of how public authorities deal with judicial review challenges of this nature. The case has underlined the importance of freedom of information requests by citizens seeking to establish the legal basis of public law decisions. It has highlighted the duty lying on public authorities to deal with such freedom of information requests openly and honestly and to have in place proper procedures and mechanisms to ensure the accuracy of information supplied in response to such requests. It has demonstrated the consequences that could flow from a breach of that obligation. It has reinforced the duty of frankness and candour that ministers and public servants have in providing factual information to the court at every stage of a judicial review challenge to a public law decision. It provides guidance to deponents and practitioners in ensuring that affidavits are full, clear, unambiguous and factually correct. The sequence of events in this case has reinforced the need for the court to carefully parse affidavits, exhibits and material provided to the court to ensure that the factual basis of the parties’ cases are correctly stated and clearly understood. All these factors are now underlined by the greater willingness of courts in appropriate cases to make orders for discovery (as evidenced by the decision in Tweed v Parades Commission for Northern Ireland [2006] UKHL 53.) The present case exemplifies the sort of case where the new modified approach in relation to discovery would have justified the making of an order for discovery. This case is a clear example of the separation of powers between the Executive and the courts and the independence of the courts from the Executive. In light of these important considerations it cannot not be said that the respondent will have avoided legal consequences flowing from the illegality of his actions.[added emphasis]

The factor highlighted in the ruling, which weighed with the court, was Mrs McDougall’s “willingness to complete her work in her own name, thereby distancing herself from the illegality of the appointment process.”

As I’ve said, whether Peter Hain wants to publish an official Interim Victim’s Commissioner’s report will be worth watching for.