“FOI response was in some respects misleading and avoided addressing the question”

As Mick noted below. The BBC’s Mark Devenport points to the Scott Report [pdf file] based on the 67 questions set by Justice Girvan And here are the key paragraphs of his findings – see below – apparently it was all the fault of a misguided civil servant in the OFMDFM.. “in all probability..” Updated below Adds Mark Devenport’s update points to an interesting paragraph on page 14 of the Report

53. On 27 or 28.9.05, Dr Paisley (delivering the letter by hand to ensure confidentiality) wrote to the Secretary of State enclosing a C.V. for Mrs McDougall (“the lady I spoke to you about as a suitable candidate for Victims’ Commissioner”). The letter was circulated by the Secretary of State’s Private Office; the distribution shown on its face was to K, Jonathan Phillips, O, H, L, M, N and F. A few days later Mr Phillips sent it to Mr Hamilton. The e-mail to O from Private Office said “Dr Paisley was keen for secrecy to be observed, so grateful if recipients could be discreet.”

Which, of course, the first response to the FoI request – framed by the ‘misguided view’ of the un-named senior civil servant – attempted to do..Key paragraphs [all emphasis added]

6. In carrying out this Review I have had the advantage of access to voluminous contemporary material and evidence from witnesses which were not before Girvan J. I have come to the following main conclusions, details of which may be found in the body of the Report:

(a) The FoI response was in some respects misleading and avoided addressing the question of by whom Mrs McDougall had been nominated. This, coupled with the failure of the NIO to respond to KW’s request, as it was required to do under the FoI Act, affected the litigation which followed.

(b) In particular, the OFMDFM response was relied upon by Counsel for the Secretary of State during the initial stages of the litigation and led to the Court being misled by submissions based on the content of that letter. Those submissions suggested that Mrs McDougall had been appointed by a suitable selection process, and that her appointment was not politically motivated. In fact, Mrs McDougall had been nominated by the DUP and her appointment was intended to be a confidence building measure towards that party. In all the circumstances the appointment was indeed, as Girvan J found, politically motivated, though as he noted this in no way reflected on Mrs McDougall’s competence or integrity.

(c) The reason for the unacceptable terms of the response was in all probability the misguided view of a senior civil servant that it was not for the OFMDFM to reveal in a FoI response the political motivation for Mrs McDougall’s appointment. That was, in his view, primarily the responsibility of the NIO and so the FoI response from the OFMDFM should be framed accordingly.

(d) The reason for the failure of the NIO to respond in accordance with arrangements made with the OFMDFM and its own statutory responsibility was a failure to collate the necessary information and respond to the request in a timely fashion.

(e) Neither the officials in the NIO nor those in the OFMDFM acted in relation to the FoI response with the intention of obstructing or perverting the course of justice. The effect on the subsequent litigation was neither foreseen nor intended by those involved, nor was it appreciated during the early stages of the litigation.

(f) The Secretary of State was not at the material times aware of the FoI request, nor was he involved in any way in dealing with it.

(g) The relevant facts as to the political motivation for Mrs McDougall’s appointment were eventually put before the Court in affidavits sworn with the approval of the Secretary of State by two senior civil servants.

(h) The first affidavit was not prepared as carefully as it should have been, failed with sufficient precision to make the factual position clear, and under pressure in the litigation had to be supplemented by a second affidavit and by concessions to the Court as to the basis of Mrs McDougall’s appointment.

(i) However, I accept that the Secretary of State and those involved in the drafting and swearing of the two affidavits acted in good faith and did not intend to pervert or obstruct the course of justice. In the case of the Secretary of State, his role was essentially to consider the accuracy of the draft submitted to him so far as they dealt with matters within his own knowledge, and he duly did this.

(j) From the outset, the litigation lacked the strategic direction and control that it should have had at a sufficiently senior level, and coordination between the two Departments involved was inadequate. These failures meant that adequate attention and care was not given to the matters which later led to Girvan J’s criticisms, including the failure properly to instruct solicitors and Counsel appropriately at the early stages of the litigation.

(k) Errors which occurred were however due in considerable part to the complexity of government in Northern Ireland at a time when devolution was still suspended, the fact that the two Departments concerned had divided responsibilities, and the fact that those involved especially at senior level had demanding and competing pressures of work.

And the new Secretary of State’s response.

Added From the Report [pdf file]

The Secretary of State’s Involvement in the Affidavits

248. The Secretary of State was invited to consider and approve or otherwise the affidavits of both Mr Hamilton and Mr Phillips before they were sworn. Each affidavit said that the deponent was authorised to swear it by Mr Hain.

249. In the case of Mr Hamilton’s affidavit a draft was submitted to Mr Hain and his attention was drawn to specific passages to which he was asked to give careful consideration; these included the references to himself and his decisions. Mr Hain was asked to agree that the affidavit be sworn subject to any views he might have.

250. Mr Hain considered the passages referred to, and authorised the swearing of the affidavit. One of the passages said that Mr Hain had in mind when appointing Mrs McDougall that her name had been put forward by the DUP; this was (as explained at paras 228 and 241 above) later altered to say that he was “mindful” of that fact. In my view, both statements like the others to which Mr Hain’s attention was drawn were in fact accurate. Understandably, Girvan J did consider that for the purposes of judicial review the word “mindful” was ambiguous in all the circumstances. This judicial perception is not one which could reasonably have been expected to be shared by a non-lawyer in the position of the Secretary of State and its use does not in my view justify criticism of Mr Hain. For completeness I should add that Mr Hain did make a suggestion about Mr Hamilton’s affidavit. He said that it might be amended to refer to the way in which Mrs McDougall had carried out her role and handled the media, which in Mr Hain’s view demonstrated that she was the correct choice. In my view, nothing turns on that.

251. The pattern in relation to the draft of Mr Phillips’ affidavit was similar to that in relation to that of Mr Hamilton. Again, Mr Hain approved the execution of the affidavit, and suggested adding that Mrs McDougall was a good candidate in her own right. As to the phrase “did not opt to” (take informal soundings from political parties apart from the DUP), Mr Hain considers that the phrase reflected the true position. He had not abandoned the option of taking such soundings, but nor had he actually decided not to take them. He points out that if Mrs McDougall’s appointment did not work out as hoped, it might in Mr Hain’s view have been necessary to take wider soundings. In my view, this is and was a reasonable approach, and neither this nor his approval of the two draft affidavits suggest to me that Mr Hain was being or intended to be less than candid with the Court.

And

Conclusion

267. In general, I have found that although there were serious short-comings in the handling of the FoI request of 28.11.05 and in some respects of the litigation which followed, I do not consider there was an intention on the part of the individuals involved to mislead or obstruct the Court. Accordingly, I have not during the Review thought it necessary or appropriate to advise the Attorney General of evidence that might warrant police investigation, and I do not consider that it is necessary to do so at the end of the Review.

Which, regardless of my [or anyone else’s] opinion of the report, still leaves the issue of the original ruling.. Which was outside the remit of Peter Scott’s inquiry..

[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.

A ruling which, of course, the then-Secretary of State for Wales etc Peter Hain has appealed..