Ritchie’s legal advice…

The Belfast Telegraph has both sets of legal advice. This is their commentary on those documents in this morning’s paper. In light of Ms Ritchie’s comments last night it is important to note that the terms of reference of the official advice expressly excluded any reference to Section 75 of the Equality Act Northern Ireland Act 1998:

Senior Crown Counsel for Northern Ireland, Bernard McCloskey, warned if the Social Development Minister made a decision to withdraw funding it ” would be vulnerable to successful legal challenge” – while the independent barrister warned of difficulties but said they could be ” robustly defended”.

Brett Lockhart, QC, said, however, the question remained whether the SDLP minister “is lawfully entitled to cease funding on the basis of events to date”.

Mr McCloskey also advised the minister that the recent events in Carrickfergus, connected to the UDA, should be “disregarded” because the entire south east Antrim area does not constitute a “target area” of the CTI.

His opinion said the International Commissioning on Decommissioning had informed the minister they had “seen a document which they felt was significant” and the Ulster Political Research Group had told her ” the UDA planned to make a significant step forward on November 11 which could be jeopardised by the withdrawal of CTI funding as this would ” derail their efforts to move the UDA forward and play into the hands of those who did not support the winding down of the UDA”.

And Mr Lockhart said: “There is no evidence in my possession that suggests that Farset as an organisation are in breach of any of the funding conditions.”

In a memorandum dated October 16, Mr McCloskey said he could identify ” no freestanding statutory power to either reduce or withdraw the funding.”

Which last point would seem to bring us back to the disputed minutes.

  • Ian

    Here’s a question for the lawyers:

    Can a minister be deemed to be acting illegally by ceasing a contract that is in itself illegal (by virtue of falling foul of Section 75 of the Equality Act)?

    It’s rather akin to someone building a house in a Conservation Area without planning permission, and then been told to remove it by the planning service. Demolitions within Conservation Areas normally require planning permission, but not if it’s to remove a structure that is deemed to have been illegally erected in the first place. For the planning service to insist that the owner applies for planning permission, to carry out the demolition that is being done at their insistence, would be farcical.

  • Stamper

    Was McCloskey not criticised for ignoring equality Legislation when advising Government before? Was it the Victims Commisioners debacle?

    Help from an anorak would come in hany here. Any of them out there?

  • Ian

    Can I use this thread as an opportunity to express my outrage that the Housing Executive alone this year has spent 10% of the disputed sum in cleaning up after this year’s 11th night bonfires?

    The story was in the Irish News earlier this week but no-one appears to have blogged off a thread on it.

  • Mick Fealty

    you can always punt it in an email Ian. Sorry to have missed that.

  • sms

    not being a lawyer ( actual or bar room)I would have thought Margaret Ritchies advice from her own legal eagle that farset ( the group to be handling the money) had not breached any funding conditions would hand a judicial review to them on a plate. Whatever about the political kudos to come the SDLP’s way over this affair . I think the Minister is going to end up with egg on her face and the UDA smelling of roses. What a scenario!

  • URQUHART

    sms, you may not be a lawyer, but you can read Lockhart’s summary – i.e. her decision can be robustly defended. If the case against her is so bloody strong, why has no one taken a case?

    BTW, was Brett Lockhart not a character in Harry Potter?

  • sms

    urquhart
    The money was going to farset to be spent in loyalist communities they breached none of the conditions applied according to the Ministers own legal advice so it would seem to me that farset are being deprived of the funding because of the actions of another group. open and shut case is seems to me!

  • URQUHART

    Yes sms, I’ve heard Frankie Gallagher et al making that same cornflake box argument.

    But again, rather than saying it and hoping it’s true, can you have a look at the summary of the independent advice?

  • interested

    Brett Lockhart could have told her whatever he likes. The unfortunate fact for Ritche is that in a Ministerial decision the only legal advice she can use to make her decision is that of the official solicitor.

    How can that be so hard to understand? She’s wide open for challenge on the basis which she took the decision on.

    Hardly the actions of a competent Minister.

    Mind you, its probably all a conspiracy against her and no doubt some Civil Servant amended the legal advice and leaked it to the DUP – seems that’s the explanation for all her mistakes.

  • URQUHART

    Interested: “Brett Lockhart could have told her whatever he likes. The unfortunate fact for Ritche is that in a Ministerial decision the only legal advice she can use to make her decision is that of the official solicitor.”

    That’s just wrong. Untrue. Not a statement of fact.

    If that’s the best you can do as you now try to portray Margaret as the hysterical, incompentent woman, you’re on a hiding to nothing. Do you hate the SDLP so much, you can’t just do the decent thing?

  • Nevin

    Robert Edward Brett Lockhart QC – REBL with a cause ..

  • Nevin

    Tele in the firing line:

    The Department of Social Development today said: “The opinions you have is privileged information. You should not have it and the Department asks for it to be returned immediately.”

  • URQUHART

    “Robert Edward Brett Lockhart QC – REBL with a cause .. ” LOL

  • The Penguin

    “Brett Lockhart could have told her whatever he likes. The unfortunate fact for Ritche is that in a Ministerial decision the only legal advice she can use to make her decision is that of the official solicitor.”

    Pathetic crap.
    If it goes to court the only thing that will matter is whether her actions are deemed legal – not whether she followed the advice of the in-house brief.

    This funding was founded on illegality right from the start. That is, to channel funding to areas solely on the basis of their perceived religious and political make-up is initself highly illegal, because it is in direct contravention of Section 75 of the Equality Act.

    Interesting that Sinn Fein are now talking of the CTI money as money that “…Hain directed to the UDA.”
    Not much mention of Farset involvement there.

  • Edward

    I know Brett Lockhart QC well, and would have every faith in his opinion.

    What is a more interesting point is which set of solicitors did Margaret Ritchie use to brief Mr Lockhart QC, and who is footing the bill?

  • Mick Fealty

    interested,

    “The unfortunate fact for Ritchie is that in a Ministerial decision the only legal advice she can use to make her decision is that of the official solicitor.”

    That’s a strong contention from the Minister of Finance, but as with nearly everything being thrown up by this case it remains to be tested. Presumably in court: which presumably is just where this whole sorry mess could be headed.

    There’s a barrel of questions to be asked, not least: precisely who set Mr McCloskey such limited terms of reference?

  • Alex S

    Ritchie loses in court Robbo wins, UDA are seen by the public as getting their money back, Robbo loses, Ritchie wins were it counts, on the street!

  • willowfield

    This funding was founded on illegality right from the start. That is, to channel funding to areas solely on the basis of their perceived religious and political make-up is initself highly illegal, because it is in direct contravention of Section 75 of the Equality Act.

    Not true. First, there is no “Equality Act”, but presumably you refer to the Northern Ireland Act.

    Second, it is certainly not the case that funding on the basis of perceived religious and political make-up is “in itself highly illegal” or is “in direct contravention of” section 75.

    Section 75 places a duty on the Minister to “have due regard to the need to promote equality of opportunity”. It is quite conceivable that, having had such due regard, a minister may determine that funding of one particular group is reasonable and justified. Indeed, it is conceivable that there are circumstances where funding one particular group is necessary in order to promote equality of opportunity, as is arguable in this case.

  • willowfield

    Incidentally, I’m fully behind Margaret Ritchie on this.

  • The Dubliner

    “Which last point would seem to bring us back to the disputed minutes.” – Mick

    I assume that “freestanding” refers to the absence of Executive approval for the minister’s decision. But, if so, why are Mr McCloskey’s points regarding the opinions of the IICD and the UPRG relevant as grounds for objection? They don’t relate to how the minister made the decision – merely to the advice that she was given by bodies that do not have the authority to make the decision. That decision is to be made by the minister, not the IICD and the UPRG. Presumably he means that even if she made her decision in a non-disputed procedural manner, that there would still be grounds for challenge by vested interests?

    What a mess it is when organised crime is entitled to taxpayers’ money and the public is prevented from doing anything about it. That’s what you end up with when you decide it is a good thing to appease terrorists and criminals with public finances, amnesties, and political careers. The poison in the system and all that.

  • The Penguin

    Willowfield
    You are right of course on the Equality Act the other part of what I say is open to legal interpretation, but seems on the consensus of opinion publicly expressed to lean towards my view. But with legalities that might itself mean nothing.

    However, the question still arises whether this CTI funding was even equality assessed or not as laid out below.

    “The statutory obligations are implemented through Equality Schemes, approved by the Equality Commission, and by screening and carrying out Equality Impact Assessments (EQIAs) on policies.”

  • veritas

    did mccloskey advise hain/hanson as the departmental adviser. no wonder ritchie got her own advice-sensible woman in my opinion

  • J Kelly

    People are asking were are the court cases to test all of this the reason for no cases the money hasn’t stopped…the UDA still get our money..

  • URQUHART

    “People are asking were are the court cases to test all of this the reason for no cases the money hasn’t stopped…the UDA still get our money.. ” – J Kelly

    Indeed. And if her Ministerial colleagues would stop trying to obstruct her, Margaret Ritchie might be able to get on with issuing a Ministerial Directive if her officials still won’t do what they’re told.

    I’m glad to see that the effect of what SF Ministers have been doing is at last sinking in.

  • BonarLaw

    The Penguin

    “If it goes to court the only thing that will matter is whether her actions are deemed legal – not whether she followed the advice of the in-house brief.”

    No, no and thrice no.

    If it goes to court (it will) the only thing that will matter is whether her actions are deemed unreasonable and ignoring the advice of senior Crown counsel could be seen as unreasonable.

    BTW Lockhart is no more or less independent than McCloskey. To suggest otherwise is to seriously misunderstand the role of the lawyers in all of this.

    For what it’s worth I still hope the UDA don’t get a brass fathing but I fear ministerial muddling has made that outcome more likely than not.

  • tweedledee

    URQUHART,

    “but you can read Lockhart’s summary – i.e. her decision can be robustly defended.”

    Is lawyer-speak for give us the money and we’ll argue the toss.

    Ritchie probably messed up legally, but not politically. Until she started getting into a fight over minutes that is, then she messed up politically as well.

    What is the average IQ in that revered chamber anyway?

  • The Dubliner

    “If it goes to court (it will) the only thing that will matter is whether her actions are deemed unreasonable and ignoring the advice of senior Crown counsel could be seen as unreasonable.” – Bonarlaw

    Surely all that a court in NI can concern itself with is whether the decision complies with the law? To concern itself with matters that are properly the discretion of a minister (i.e. what is deemed to be a “reasonable” decision) is tantamount to a court usurping the authority of the state in the decision making process. If a court can presently do that, then it should be prevented from doing so in the interests of democracy.

  • Mr McCloskey also advised the minister that the recent events in Carrickfergus, connected to the UDA, should be “disregarded” because the entire south east Antrim area does not constitute a “target area” of the CTI.

    So the (violent, potentially murderous) actions of leading members of the UDA should be ignored if they happen to fall outside a particular ‘target area’? This, remember, includes the ‘good UDA’ planting a bomb outside a house in Carrick less than two fucking weeks ago for Christ’s sake.

    His opinion said the International Commissioning on Decommissioning had informed the minister they had “seen a document which they felt was significant” and the Ulster Political Research Group had told her “ the UDA planned to make a significant step forward on November 11 which could be jeopardised by the withdrawal of CTI funding as this would “ derail their efforts to move the UDA forward and play into the hands of those who did not support the winding down of the UDA”.

    This is not a legal opinion; it’s a personal opinion of Mr McCloskey, and one of the “don’t ever say anything bad to terrorists or they might start killing you again” school that has been discredited time and again over the past decade or so. The UDA will not disarm if they think they can get away with not disarming, nor will they stop shooting police officers if they think they can get away with it.

    And their “significant statement on 11 November” is not only an attempt to hijack Remembrance Day that will sicken many people but is worth about as much as the UDA’s promise to stop using violence when they got this funding in the first place – i.e. sweet FA.

    So Mr McCloskey’s personal opinion which, you may just have gathered, I believe is based on 2 parts wishful thinking to 1 part pure shite, somehow becomes a ‘legal’ opinion because he’s a lawyer and he said it at work.

    If he said to the Minister that Celtic were going to win the Champions League this year, would that be a legal opinion too?

    Who runs this place – the representatives of the people or lawyers?

  • tweedledee

    Who runs this place – the representatives of the people or lawyers?

    That’s the crunch, and that’s where Ritchie should have stayed focussed. She had the high ground and she should have maintained it by brushing off all that guff about minutes and so on. She’s an elected representative, and she’s representing the wishes of the vast majority of people across the board. Instead she let them yank her chain.

  • “If it goes to court (it will) the only thing that will matter is whether her actions are deemed unreasonable and ignoring the advice of senior Crown counsel could be seen as unreasonable.”

    Exactly Bonarlaw

    This is something that the stoop hacks who are infesting this place at the moment fail to realise.

    If this goes to court (I have no doubt it will) and the UDA get their money back because Ritchie did not follow the correct procedures then the procedures will become very important.

    If such a senario comes to light the stoops are sunk like a dead duck.

  • BonarLaw

    Dubliner

    “[For a court]To concern itself with matters that are properly the discretion of a minister (i.e. what is deemed to be a “reasonable” decision) is tantamount to a court usurping the authority of the state in the decision making process. If a court can presently do that, then it should be prevented from doing so in the interests of democracy.”

    Welcome to the world.

    We live in a common law jurisdiction where Judicial Review is an important element of executive accountability. The role of the court in the decision making process has been deepened by the Human Rights Act- are you calling for the repeal of that in the “interests of democracy”?

    I don’t want to come over all lawyerly here but perhaps the lay posters should take some time to research what’s actually going on. Try Googling “Judicial Review”.

    BTW, oh dear god, Chris Gaskin (lawyer-to-be) and I actually agree.

  • LOL, I know BonarLaw, the world has gone mad!!

  • Nevin

    “then the procedures will become very important.”

    The ‘procedures’ probably give the Chuckle Brothers an unfair advantage. Don’t they ‘control’ 9 of the 12 votes on the Executive Committee? Ritchie, Empey and McGimpsey are sitting ducks.

  • susan

    Perhaps the lawyers will establish that Ritchie had no political authority to upset the applecart, after all. But if so, it only goes to further reveal how right David Adams and others making the point here and elsewhere are that the Executive is functioning less as leaders of a representative democracy than as window dressing on the continuance of the course set down under direct rule.

    McCloskey’s counsel was classic carrot and stick. The carrot was the hope of movement towards UDA disarmament on November 11, the stick was the threat of Ritchie being open to legal challenge or consequence.

    The somewhat baffling actions and reactions on Tuesday from Robinson and SF and from the UDA itself over the last several months make perfect sense if they had already been fully briefed on what sole course of action Ritchie would be advised was open to her.

    If Margaret Ritchie had done as she was told, Robinson would have gained some assurance of the UDA being kept in check, or at least not doing too much to damage mainstream unionism and/or the DUP in the immediate future. SF would have gained some cheap political capital by doing and saying nothing about CTI for months — Martin McG’s long overdue sound-bite from yesterday aside — and then blasting the SDLP’s sole minister for “funding the UDA” (as, bizzarely, several SF Assembly members proceeded to do anyway on Tuesday, to the bafflement of all who had just listened to Ritchie’s public and, as it turns out , quite inconvenient refusal to fund the UDA.)

    And the UDA? Certainly the UDA gave every indication by their statements, actions and inactions the last two months that they fully expected no consequence to come from ignoring Ritchie — she’s only an elected representative of the people, after all — and waiting until November 11 to deliver their statement on their progress towards their goal of not killing any more people, or at least towards killing a lot less people, on a day traditionally set aside to remember the fallen.

    Heartwarming. Heartwarming all around.

  • The Dubliner

    “We live in a common law jurisdiction where Judicial Review is an important element of executive accountability.” – Bonarlaw

    Here is the point which you misunderstood: “Surely all that a court in NI can concern itself with is whether the decision complies with the law? To concern itself with matters that are properly the discretion of a minister (i.e. what is deemed to be a “reasonable” decision) is tantamount to a court usurping the authority of the state in the decision making process.” – The Dubliner

    In reply to: “If it goes to court (it will) the only thing that will matter is whether her actions are deemed unreasonable and ignoring the advice of senior Crown counsel could be seen as unreasonable.” – Bonarlaw

    The court cannot decide executive policy, which is properly the function of an excutive body, i.e. the government. A court can only decide if the policy complies with the law. Ergo, a court cannot decide what Margaret Ritchie’s polciy should be in regard to the funding of organised crime.

  • The Dubliner

    Great post, Susan.

    Chris, it’s great to see that the Shinners are all for upholding the letter of Her Majesty’s law. 😉

  • Billy Pilgrim

    Chris

    Gotta say, SF’s performance this week has made me sick. Every nationalist I’ve spoken to this week is saying the same thing. Doesn’t this worry you?

    Tweedledee

    “That’s the crunch, and that’s where Ritchie should have stayed focussed. She had the high ground and she should have maintained it by brushing off all that guff about minutes and so on.”

    This assumes that she’s not correct about the minutes having been changed – which frankly is a massive assumption.

    I think the most important thing to have come out of all this is that the sheer extent of corruption that exists in the civil service and indeed the legal establishment here has been demonstrated to all.

    The judges and the civil servants are still the ones in charge here – look how they are hounding Margaret Ritchie, a mere representative of the people. They are rotten to the core.

    We need a justice ministry here soon, so we can root out this corruption.

  • BonarLaw

    Nevin

    “The ‘procedures’ probably give the Chuckle Brothers an unfair advantage”

    That is why judicial scrutiny is important.

    Susan

    “Perhaps the lawyers will establish that Ritchie had no political authority…”

    No, the problem is that she took a political decision that has left her open to being subject of a Judicial Review.

    “If Margaret Ritchie had done as she was told…”

    ie acted in accordance with legal advice provided by senior Crown counsel.

    The Dubliner

    You still don’t understand how central the judicary has become in the British body politic. Legialation passed to give force to government policy has been declared incompatible with the HRA and ammended accordingly. Ask Charles Clarke about activist judges.

  • BonarLaw

    Billy Pilgrim

    “We need a justice ministry here soon, so we can root out this corruption.”

    What, to put manners on the judges? Ever hard about judicial independence?

  • The Dubliner

    Bonarlaw, rather than me asking Charles Clarke, why don’t you support your claim (citing precedents would he helpful) that the court has the authority to usurp the function of an elected exective and formulate executive policy on its behalf, rather than simply having the power to declare an exective decision to be incompatible with law, based on the spurious grounds that it is “unreasonable” for a minister not to do as directed by a law officer? 😉

  • BonarLaw

    The Dubliner

    the opinion that you require would:

    a) disrupt my visit to my favoured public house
    b) cost you your arm & leg (although still cheaper that Lockhart)

    In any event I would pay money to see the unreasonableness test described as spurious in the High Court.

    As for Charles Clarke, ask yourself whether the law for pre charge detention currently reflects government policy or the view of the High Court.

    BTW “Swing low, sweet chariot…”

  • Dread Cthulhu

    BonarLaw: “What, to put manners on the judges? Ever hard about judicial independence?”

    There is a unsubtle difference between “judicial independence” and the judiciary being a law unto itself, BonarLaw. With that independence is supposed to come a certain amount of restraint.

    The judiciary, if it wants to be above politics, should not get itself into scenarios where it can be seen playing politics.

    Now, as for Ms. Ritchie, we shall see what we shall see. To paraphrase Mick, nowhere near all the facts are in just yet. I would personally add that if the current theory on how Judicial Review will pull Minister Ritchie up short comes to pass, a great many other things will (or at least should) be re-thought, or is judicial review something that only happens to smaller parties?

  • tweedledee

    Billy,

    This assumes that she’s not correct about the minutes having been changed – which frankly is a massive assumption.

    You can’t assume that she’s correct either. She should have held off on that, waited to see if she could line her ducks up first. Without evidence of wrongdoing, rather than different recollections or genuine mistakes, she went off half-cocked and entered the realms of conspiracy theorists.

    Just because you’re paranoid doesn’t mean they’re not out to get you, but you’d better make sure you can make the accusations stick before voicing them.

    How’s she going to look if after looking at the paper trail there’s no evidence of any wrongdoing, and it’s simply a case of different recollections, misunderstandings and misinterpretations? What if there’s a legal challenge to her decision and she loses? Combine those two, and it’s not good for her. The next step for her opponents would be to say she acted inappropriately, tossed out wild accusations, and all for political capital for herself and her party.

    All unnecessary as all she had to do was play it cool and stay focussed on her decision to cut the funding.

  • Dread Cthulhu

    tweedledee: “How’s she going to look if after looking at the paper trail there’s no evidence of any wrongdoing, and it’s simply a case of different recollections, misunderstandings and misinterpretations?”

    Frankly, that the majority had it in for her, regardless of how piously they try to hold themselves. That she has Unionist support in her position means its not just her and takes a fair bit of the wind of the “she’s paranoid” accusation, esp. given the behavior of Robbo and a few others.

    Likewise, your argument equally gets her off the hook as well — if its all a big misunderstanding, then she gets a few points for sticking to her guns (assuming she is graceful enough to dance the dance to get there) and things go foreward — and this time, she’s armed with a punch-list…

    tweedledee: “What if there’s a legal challenge to her decision and she loses?”

    One of two things. She starts again from the beginning, armed with the aforementioned punch-list or she get’s removed. If “B,” then it depends on what people remember. Are they going to remember Ritchie standing up and saying “no,” and being pulled down by a band of moral pygmies, or are the going to remember the minutiae of the judicial review.

    Between you and I, Robbo throwing himself on the grenade to try and save Freaky Franky G’s sinecure is gonna stick around, at least for a while.

  • The Dubliner

    “In any event I would pay money to see the unreasonableness test described as spurious in the High Court.” – BonarLaw

    Well, despite not being a lawyer (thank g-d!), I think I’m closer to the mark than you are:

    “Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body.

    In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.”

    http://www.judiciary.gov.uk/judgment_guidance/judicial_review/index.htm

    It makes no attempt to usurp the function of an executive body to formulate policy. In fact, it can’t even concern itself with the executive policy. I very much douct that “unreasonableness” is defined by a Court as the act of a minister choosing one lawyer’s advice over another lawyer’s advice. Indeed, it sounds very reasonable to get as much advice as possible. At any rate, advice or none, the decision is properly that of a minister, not a lawyer.

    “The judiciary, if it wants to be above politics, should not get itself into scenarios where it can be seen playing politics.” – Dread Cthulhu

    I’ve scant idea how it works in the UK, but the Irish constitution makes it clear that the government has the executive power and that the judiciary concerns itself only with whether that executive power is exercised in accordance with the law. If it is held by a Court not to be, then the government can simply amend the law and carry on regardless! I much prefer that system to one where lawyers and judges think they are the powers-that-be.

  • “If it goes to court (it will) the only thing that will matter is whether her actions are deemed unreasonable and ignoring the advice of senior Crown counsel could be seen as unreasonable.”

    Surely a judge will decide for themselves whether the decision was lawful, and the issue of advice becomes irrelevant?

    If they finds the decision was lawful, they’re not then going to conclude that it was unreasonable for Ritchie to ignore erroneous advice.

  • The Spectator

    Dubliner

    I’m afraid Bonar Law is quite correct.

    And the case you need to read is “Wednesbury” – Which makes it quite clear that if the executive makes an ‘unreasonable’ decision, the court can and will overturn it. Indeed, it is being ‘unreasonable’ that makes the decision against the law.

    Indeed, Wednesbury Unreasonableness is one of the the most common reason for successful judicial reviews. Another way to describe it is a perverse decision, or a decision agaisnt all available evidence – and that’s where wilfully ignoring professional legal advice would cause the problem.

    From the ASAP Factsheet

    “Grounds for Judicial Review

    The grounds for Judicial Review are known as Irrationality or Perversity, Illegality and
    Procedural Impropriety.

    Irrationality means unreasonable.

    Unreasonableness was defined in a case
    called Associated Provincial Picture House v Wednesbury Group which held
    a decision will be considered unreasonable if “no sensible person could
    have ever dreamt that it lay within the powers of the Authority”.

    Note, the moral or commonsense is irrelevant, it’s the appreciation of one’s own executive power

    The courts
    can reverse decisions that are so unreasonable they would be regarded as
    “perverse”.

    Illegality means that a decision making body has gone beyond their powers.
    This is called acting ultra vires.

    Examples of illegality include; where a decision making body
    has taken irrelevant facts into account whilst making a decision, where the
    decision maker has an unfair blanket policy rather than making decisions on
    a case by case basis or where the law has been applied incorrectly.

    Procedural Impropriety means the decision making body has failed to follow
    certain procedural rules or have acted unfairly…. if the decision maker fails to do so this could be a
    ground for Judicial Review.”

    In this case however, Margaret needs to be very aware of all three.

    PS, it’s the legislature (Parliament) that is sovereign in the UK, not the Executive. The former are the people’s representatives, the latter are appoiness of Her Maj (or in the case of NI, beneficiaries of a mathematical formula approved by the legislature).

  • Pete Baker

    Spectator

    But it’s not a foregone conclusion.

    Any judicial review would also have to assess the validity of all legal advice given before assessing whether any subsequent decision was unreasonable.

  • The Dubliner

    Spectator,opinions differ, so favouring one opinion over another isn’t evidence of “unreasonableness” but is, in reality, a discretionary choice an executive must make. If an appeal was upheld on those grounds, then it would mean that all decisions of government must be made by an unelected lawyer in order to be lawful – which would make an utter nonsense of the democratic process. But Her Majesty’s law works in mysterious way, apparently.

    I think Sammy Morse has it right that the advice given by the Senior Crown Counsel for Northern Ireland, Bernard McCloskey, to Minister Ritchie was de facto political rather than objective.

    To quote Mick Fealty’s post:

    His opinion said the International Commissioning on Decommissioning had informed the minister they had “seen a document which they felt was significant” and the Ulster Political Research Group had told her “ the UDA planned to make a significant step forward on November 11 which could be jeopardised by the withdrawal of CTI funding as this would “ derail their efforts to move the UDA forward and play into the hands of those who did not support the winding down of the UDA”.

    It is up to the minister to determine if she believes that the UDA was prepared to desist from criminality or not. The IICD and the UPRG may give their opinions on the matter, but the minister is not under any legal obligation to give priority to their opinion before her own. She has formed the opinion that the UDA are not committed to ending criminality, that retaining illegal weapons is a criminal act, and that the CTI contract is void because the UDA are in breach of the terms by failing to get rid of their illegal weapons. So her decision can be “robustly defended” if challenged.

  • The Dubliner

    By the way, is it just me or is discussion of legal technicalities as entertaining as going shopping with one’s wife to help her choose a new outfit?

  • The Spectator

    Pete

    I’m not suggesting it is a foregone conclusion.

    My point was purely legal, not evidential i.e. general in nature, not specific – in this case that willful ignorance of legal advice, or any other specialist, by an executive authority who has agreed on record to obtain and consider such advice, could in theory ground a successful judicial review.

    Whether this is such a case is of coursew beyond my knowledge.

    Dubliners first line of attack seemed to be that this was impossible as it was ‘undemocratic’ – which is patently untrue – see Wednesbury. Undemocratic or not it may be, but it’s the law.

    Byt he way, dubliner, who get’s the last word on whether an act of the Oireachteas, or of a minister is ‘constitutional’ – the democrats or the judges? I point ye to A-G v X

    Dubliner seems to, understandably I suppose, mistake discretion with unfettered discretion. A minister has the first, but not the second. She must act within the law, and that includes reasonably. See Wednesbury.

    It’s a mistake Peter Hain made in the Interim Victims Commissioner debacle. He had a discretion there too, but he took into account issues that he was not legally allowed to, and the exercise of the discretion wqas declared illegal and 0verturned.

    As to the merits of this particular case, I’m in no position to know – i was making a far more general point.

    Both McCloskey and Lockhart are, to my certain knowledge, bright and ethically sound.

    I would read their opinions carefully to see how much they truly differed, or was it just two different ways of saying, “go ahead if you want, but be aware of the risks”.

    I also happen to think the publication of the opinions in this way was shocking, and pretty close to breaching Offical Secrets – It certainly breached convention and, frankly, good manners.

    Dubliner

    final point – we will no doubt see a challenge, at least on s28A(10) of the NI Act. I have to say i’d be amazed if Farset don’t JR on illegality and procedural impropriety too. court cases are never sure bets – nut I’d say their odds are at least reasonably attractive. Certainly no worse than 5/2.

    p.s. The department is a legal entity onto itself, above and beyond the minister – i wonder will the Perm Sec seek his own legal advice on whether to follow Mrs ritchies direction?

  • Comrade Stalin

    Chris Gaskin,

    Still not buying it. Why didn’t Sinn Fein support Ritchie on the Executive when the proposal was first announced over two months ago ? If the decision does get struck down in court, aren’t you concerned that the failure of Sinn Fein to support it in the first place will be one of the main reasons for that ?

  • The Dubliner

    “Byt he way, dubliner, who get’s the last word on whether an act of the Oireachteas, or of a minister is ‘constitutional’ – the democrats or the judges? I point ye to A-G v X”

    Missing the point: the AG only advises if a proposed act complies with the law – he doesn’t determine the outcome on what the executive policy should be by stating that there is only one option available to the minister when there are other options, as Bernard McCloskey effectively did with Ms Ritchie, even though the AG is a de facto member of the Irish government. The Irish government can either amend the proposed act or amend the existing law via the Oireachtas if the proposed act conflicts with it. It took an independent lawyer to advise the minister that she had the option of stopping the funding for organised crime on the basis of her opinion that the UDA’s retention of its illegal weapons is a criminal act, and that, ergo, they are in breach of the CTI contract by failing to get rid of their illegal weapons. She is correct: holding illegal weapons is a crime, so the UDA are continuing to engage in criminality. That is the position that can be “robustly defended” if challenged. Ergo, she is wrongly advised that she was acting outside of the law by stopping the funding.

    My point regarding “reasonableness” referred to this: “If it goes to court (it will) the only thing that will matter is whether her actions are deemed unreasonable and ignoring the advice of senior Crown counsel could be seen as unreasonable.” – Bonarlaw

    A court will not declare a minister’s decision to be “unreasonable” on the simple grounds that “ignoring the advice of senior Crown counsel could be seen as unreasonable.” As I said, opinions differ, so a discretionary choice must be made to favour one opinion over another. Were it deemed unreasonable for a minister not to do as directed by a senior Crown counsel, then the policy would be made by the senior Crown counsel and not the minister. What is “unreasonable” is for a senior Crown counsel to interfere in the minister’s department and proffer his single option advice on the basis of privileged information that the minister then informed him he should not have been given access to.

    However, I’m not a lawyer, do it might be deemed “unreasonable” to take my advice on complex legal matters. 😉

  • Comrade Stalin

    Spectator:

    Both McCloskey and Lockhart are, to my certain knowledge, bright and ethically sound.

    How can you say this, given that McCloskey is quoted as having argued that UDA activity outside of the “target area” should be overlooked when considering whether or not to allocate funding ? How is that ethically sound ?

  • Ian

    “Surely all that a court in NI can concern itself with is whether the decision complies with the law?”

    Am I right in saying that the fact she didn’t get Executive backing (leaving aside whether she should have or not which comes down to those disputed minutes) doesn’t affect whether or not her actions would be regarded as being lawful?

    ‘Collective responsibility’ means ‘collective risk-taking’, so if her actions were to be judged unlawful (on the basis of disputes about details of the CTI contract, etc) then she would be out on a limb as opposed to being covered by her Ministerial colleagues, but the fact that she didn’t get that backing won’t materially affect the legal outcome of any decision on whether she acted lawfully in making the decision to stop the funding?

  • Ian

    “It took an independent lawyer to advise the minister that she had the option of stopping the funding for organised crime on the basis of her opinion that the UDA’s retention of its illegal weapons is a criminal act, and that, ergo, they are in breach of the CTI contract by failing to get rid of their illegal weapons.”

    Surely she could stop the funding on the basis of the rioting in Bangor alone (backed up by the Chief Constable’s ’50p’ remarks), aside from the issues of decommissioning and the UDA’s behaviour in Carrick?

  • Ian

    “Mr McCloskey also advised the minister that the recent events in Carrickfergus, connected to the UDA, should be “disregarded” because the entire south east Antrim area does not constitute a “target area” of the CTI.”

    That statement is contradicted by the following quote (from an admittedly unimpartial source):

    George Gilmore, a member of the group Beyond Conflict – linked to the South East Antrim UDA – told the BBC: “The mainstream UDA have got funding from the government and they are being told that they need the full six brigadiers.

    “They need the UDA as a whole or they are not getting their funding – this is down to money, that all that this is down to.”

    (Taken from a BBC report last July, following the riots in Carrickfergus when a policeman was shot in the back):
    http://news.bbc.co.uk/1/hi/northern_ireland/6911899.stm

  • Ian

    This story confirms that the CTI was intended for “six loyalist areas”:

    http://news.bbc.co.uk/1/hi/northern_ireland/6479293.stm

    The UDA is divided into six so-called brigades, and the projects will be divided into similar geographic areas.

    The government says the funding is conditional.

    It will be provided in three stages of £400,000 in each of the three years and the UPRG has been told that the funding will only continue if there is clear evidence of a reduction in UDA violence and crime.

    So McCloskey’s advice is not only ethically unsound, but incorrect.

  • Mick Fealty

    Can I just thank all our learned commenters (how often do I get to say that?) for some very useful insight. Can I also say to other lay commenters (like myself) its probably best not to try and outdo a lawyer on the complex issue of Northern Irish law. I would only add, that moral high ground may have no place in law, but in politics it can be very powerful, especially when, as in this case, it is also a deeply popular one.

    I would also add that law that comes into disrepute is regarded in most democratic polities as bad law.

    I think we have established that Ms Ritchie has taken a considerable legal risk, along with the more obvious political ones (that Executive could hardly be more hostile). Not forgetting that she is the only one in this whole sorry saga proceeding through all of this with a specific death threat hanging over her.

    Chris, I would say it is still too early to gauge the fallout from this. A JR is likely to take months to complete its work before it would be in a position to ‘reverse’ the Ministers decision. In the meantime, the public rounding of her cabinet (and Assembly) colleagues on her for making a popular decision (thus SF’s abortive broadside on Tuesday) have done them no favours.

    That said, it is hard to tell how it will pan out. But Sinn Fein’s capacity to ‘bury’ the SDLP on this matter faded from the moment she made a decision contrary to the one they had clearly choreographed for. And they have some particularly rough ‘water’ (pardon the pun) of their own to cross between now and then.

  • The Spectator

    Comrade Stalin

    You are confusing legal ethics and general morality. Law and morals are not the same.

    McCloskey’s job and ethical duty is to provide sound advice on the legal risks of certain actions that is as accurate and good faith as possible, allowing his client to as far as possible avoid illegality. That’s Mr Lockhart’s ethical duty by the way as well.

    McCloskey is not trying to morally defend or attack either the NIO position or Margaret’s – that’s for them to do themselves – his ethical duty is to properly access his client’s LEGAL risk.

    If the law is that, for pure hypothetical example, the contract contains terms that allow for the contract to be suspended if, and only if, illegal activity takes place in a specified geographical area, or by specified people, it is absolutely ethically right of Mr McCloskey to point out to Margaret that violence in another area, or by other people, LEGALLY, does not allow her void the contract, and her legal duty to perform her side of it is undisturbed, however distasteful that is.

    Indeed, it would be unethical for him to not do it, because he would be opening his client up to unnecessary legal challenge.

    But McCloskey can only advise on legal consequences – he can’t take the decision for her.

    It’s not a Lawyer’s job to tell you right from wrong. It’s his job to tell you legal from illegal. And if he does so, he has behaved perfectly ethically.

    Ian

    “Am I right in saying that the fact she didn’t get Executive backing (leaving aside whether she should have or not which comes down to those disputed minutes) doesn’t affect whether or not her actions would be regarded as being lawful”

    No, you are wrong. Paragraph 1.4 of the Ministerial Code contains the pledge of Office, and paragraph (f) of the Pledge obliges Ministers to support and abide by decisions of the Executive. To do otherwise is therefore to breach both the Pledge and the Code.

    Section 28A(1) of the NI Act 1998 puts this on a statutory basis, and 28A(10) makes it clear that a Minister has “no ministerial authority” to make a decision that breaches the Ministerial code. Having no authority means that to attempt to do so, is to attempt to act outside her legal powers, and thus ultra vires, both for illegality and procedural impropriety.

    This is the key feature changed since the St Andrews Agreement, indeed s28A was inserted by the Northern Ireland (St Andrew’s Agreement) Act 2006

    1. So McCloskey’s advice is not only ethically unsound, but incorrect.

    Judging the strength of Mr McCloskey’s case from a couple of Newspaper snippets of it and the anecdotal evidence of the contents of the contract provided is, to put it mildly, not necessarily solid base for criticism.

    Mick

    “I would also add that law that comes into disrepute is regarded in most democratic polities as bad law”

    Bad law is still Law, Mick.

    Disrepute is really only a person’s opinion of morality, and like arseholes, everyone has one.

    Many people think R v Bourne (NI’s abortion law) is bad law. Many people think changing it would be bad law (á la Abortion Act). Many people thought A-G v X was bad law. Many people thought changing it would be bad law. Didn’t make a button of difference to the validity.

    You seem to hint otherwise, and if you are hinting otherwise, you’re wrong. Sometimes, Mick, you’re a little too empressed by and enamoured of both politics as a science and early public opinion.

    Even the Euro Convention on Human rights, or EU law, used so often to overturn domestic law, only does so because it itself IS law. We live in a country of law, and under the rule of law – not a country of repute, under the rule of repute. We left that behind with King John and the Magna Carta. Frankly, the alternative is the rule of the Mob – and while mob decisions are popular, they aren’t always right, or as ethical as they think. Think Witchcraft.

    A JR is likely to take months to complete its work before it would be in a position to ‘reverse’ the Ministers decision.

    True, but actually an interim injunction could and would be done rather quickly, within a few weeks – and we still don’t know if the Perm Sec will obey Ritchie on this.

  • Mick Fealty

    TS,

    I happy to cede ground to legal experts Spec, but I am not foolish enough to try and second guess the judgement of a Belfast court on a contract none of us (I presume) have seen.

  • The Spectator

    Mick

    It’s not the contract that will be judged necessarily, it is the procedural propreity of Mrs Ritchie – and the terms governing that are open to the public in statute.

    It seems to boil down to the minutes – if Robbo’s right, she’s in breach, and the decision is ultra vires under 28A(1).

    What the contract says is to an extent secondary to that.

    p.s don’t presume 😉

  • Mick Fealty

    Spec,

    The biggest challenge here, it seems to me, is not to presume anything. Let the courts do their work. Ms Ritchie is a politician. She has no proprietorial right to anyone’s sympathy other than the fact that she is the only one of the major players currently working under a significant threat to her personal safety.

    However I am very suspicious of this attempt to narrow the field of vision to an after-the-fact dispute over the minutes of the previous Executive Committee meeting. We should not prematurely lose sight of Ms Gildernew’s apparent dissent (as reported in the MSM) in that meeting either.

    Much of the DUP action is attributable to a proper concern for coherence in government. To that extent I am sympathetic to the frustration that’s been obvious in some senior members of that party: to whit, an apparent rupture between the Executive and an individual Ministry.

    Under the 2007 Act, the Ministerial Code provides guidelines for a functionable relationship between individual Ministers and the Executive. But as things stand, this apparent departure from protocol appears to revolve around the Executive’s reluctance to handle a controversial issue brought to them, (even if proved ‘after-the-fact’) by the Minister for the Department for Social Development.

    Whoever was at fault, no clarity emerged at that stage. What seems beyond dispute is that the agreed process broke down.

    By contrast, it is entirely reasonable to suppose that the minutes will be subject to various interpretations by different parties. It’s not unusual, or necessarily controversial. However, the purpose it is being put to is. Without having to make wild accusations, Reg Empey has suggested that irregularities in the procedures of that meeting have significantly blurred its outcomes. Perhaps the courts would better sorting that one out too?

    As to the latest matter arising, it is possible/probable that the Minister only partially briefed others within government before making her announcement on Tuesday. But, as is transparent from Sinn Fein’s hostile questions on Tuesday, Ms Ritchie had clearly been set a trap by at least one of her partners in government.

    Why on earth would you give a full briefing to people who are clearly in a position to use their internal government position to undermine your own political standing?

    In such circumstances, which is going to count more: collective responsibility to a potentially treacherous cabinet; or responsibility to her own party (and, ultimately, her voters), not to let others use their privileged position within government for own ‘narrow party political advantage’.

    In such circumstances is it ‘reasonable’ to oblige Ministers in the Executive to fully appraise another Executive colleague from another party who is then free to use that privileged information in whatever way they wish?

    It would be very interesting to see what a court of law would make of that one too.