“The error in this case is procedural..”

The BBC report that, after lengthy consideration, Mr Justice Morgan has overturned the decision by NI Social Development Minister, the SDLP’s Margaret Ritchie, to cut public funding to the UDA-linked Conflict Transformation Initiative.

Mr Justice Morgan said he was satisfied the issue had come before the Stormont cabinet, with a determination made on how it should proceed. “The error in this case is procedural in that the minister did not act in accordance with that process,” he said.

Presumably that’s a reference to those disputed minutes.. Court ruling available here. I’ll try to find out what it says about that legal advice too.. And we’ll have to wait and see whether those tensions will return. And Some related news. Update More on the ruling.Adds From the Court ruling.

[33] That statutory background casts light on the events which occurred and the consequences in terms of the obligations of those involved. I have found that the announcement of 10 August 2007 was a statement of intent upon which the Minister engaged in a bona fide consultation. In his correspondence of 18 September 2007 the Minister for Finance raised the question of whether any proposed decision ought to be considered by the Executive. In exercise of their powers under section 20 (4) (b) of the 1998 Act as amended the First Minister and deputy First Minister acting jointly determined that the issue should be put on the Executive Committee agenda on 8 October 2007. The Pledge of Office the provisions of which are contained within the Ministerial Code requires a Minister to support and to act in accordance with all decisions of the Executive Committee. The only accurate record of the decision is the minute approved by the Executive Committee at its meeting on 18 October 2007. The relevant terms of that minute are set out in paragraph 11 above.

[34] There is no dispute that the Minister asked the Departmental Solicitors Office for early and immediate advice in respect of the issues. The Minister was obliged to forward the legal advice as soon as possible to the Minister for Finance and Personnel copied to the First Minister and deputy First Minister. In fact not all of the advice was forwarded. At the very least the memorandum which arrived at 2 p.m. on 16 October 2007 was not forwarded. Of more significance, however, is the fact that none of the advice was forwarded until 1:42 p.m. on the afternoon of 16 October 2007 approximately 1 hour before the Minister made her statement to the Assembly. A memorandum was received by the Minister from Senior Crown Counsel on 10 October 2007. An opinion was received on the afternoon of 12 October 2007 and a further memorandum on 15 October 2007. The affidavits do not contain any explanation as to why these materials were not forwarded as soon as they were received. The importance of their receipt lay in the fact that it would, of course, have been open to the First Minister and deputy First Minister acting jointly to have directed that the matter should once again be placed before the Executive Committee and by virtue of 2.4 of the Ministerial Code the Minister would be required to bring the matter for consideration to that Committee. The combined effect of the provisions of section 28A(5) and 28A(10) would mean that in those circumstances the Minister would have no Ministerial authority to take any decision in respect of the issue.

[35] The third requirement in the minutes imposed an obligation on the Minister to defer her decision on the matter until the Minister of Finance and Personnel had an opportunity to consider the legal advice from the Departmental Solicitor’s Office. On behalf of the Minister it is submitted that she did not accept that any such obligation had been imposed upon her at the Executive Committee meeting. Although I entirely accept that that was her firm view it remains the case that by 12 October 2007 she had been provided with a memorandum from the Head of the Civil Service setting out his account of the agreement. She was also expressly advised 30 minutes before she made the announcement that in the opinion of the Head of the Civil Service her planned announcement would if made be in contravention of the decision of the Executive and in breach of the Ministerial Code on that account. The Minister chose to proceed with the announcement on 16 October 2007 rather than wait for the Executive Committee meeting on 18 October 2007. Although I recognise the urgency which the Minister attached to clarification of this issue I considered that by proceeding with the announcement on 16 October 2007 she voluntarily accepted the risk that she was not acting in accordance with the Ministerial Code. I am satisfied that by not deferring her decision on the matter until the Minister of Finance and Personnel had an opportunity to consider the legal advice from the Departmental Solicitor’s Office the Minister was not acting in accordance with a decision of the Executive and accordingly was not acting in accordance with the provisions of the Ministerial Code contrary to section 28A(1) of the Northern Ireland Act 1998 as amended.

[36] The respondent contrasted the express terms of section 28A(10) of the 1998 Act which removes the entitlement to exercise executive power if there is a failure to bring the matter to the attention of the Executive with the fact that no such sanction arises where there is a contravention of section 28A(1). In this case I have decided that no breach of section 28A(10) arises because the matter had been before the Executive Committee on 8 October 2007 and the Committee had determined how the decision-making process should proceed. The error in this case is procedural in that the Minister did not act in accordance with that process. Although there can be political sanctions under the 1998 Act in certain circumstances these do not provide a practical and effective remedy for the applicant. This applicant was directly affected by the decision making in this case as he was at risk of losing his job were it not for the interim relief that was granted. Although not every breach of section 28A(10) must lead to the provision of a remedy I consider that where, as here, procedural default is established which directly affects the applicant a practical and effective remedy should normally follow. Accordingly I make an order of certiorari quashing the decision of the Minister to cease the funding of the CTI.

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  • Ian

    What about the fact that the decision by the direct rule administration to allocate the funding in the first place was illegal, since it hadn’t undergone equality impact assessment and was a blatant one-sided sop to loyalists?

  • fair_deal

    “Presumably that’s a reference to those disputed minutes.. Court ruling available here. I’ll try to find out what it says about that legal advice too..”

    He has accepted the Exec minutes. Para 34 of judgement deals with the legal advice – she did get it as required but did not forward all of it or did so in a manner which gave exec collegaues insufficient time – some 1 hour in advance of her announcement another 20 minutes in advance.

  • fair_deal

    Ian

    EQIA’s do not apply to an individual funding application.

  • Ian

    Sorry to go off topic, but I haven’t been on Slugger for a while, and was wondering if anyone had picked up on the total irony bypass inherent in the SDLP’s ‘Easter Rising’ statement:

    SDLP issues ‘historic’ Easter address

    The SDLP made its own piece of history yesterday by issuing an Easter statement.

    While Easter statements have traditionally been regarded as the sole preserve of republicans, Newry and Armagh MLA Dominic Bradley appeared to break new ground yesterday by issuing a message on behalf of the SDLP in what is being seen as a thinly veiled attack on the Sinn Fein leadership.

    “There are some who react to violence and murder by saying it serves no purpose, as if wrong could become right if it were better directed,” Mr Bradley said.

    “There are some who would have us believe that if the groups who seek to use violence to promote their political ends had more support or a discernible strategy, that would in some way justify their use of violence.”

    Accusing mainstream republicans of attempting to justify their previous support for ‘armed struggle’ during the Troubles while attempting to distance themselves from dissident groups’ killings of security forces members.

    “I suspect that those who make such arguments are more concerned about attempting to justify their own past violent actions than dissuading those currently involved in violence,” he said.

    “To paraphrase George Orwell, their slogan seems to be: ‘old bullets good, new bullets bad’.

    “In trying to sell this contorted logic and sheer inconsistency they end up praising the
    dissidents with faint damns.”

    And he chose to make this statement at Easter, a time when the southern Irish parties celebrate the violent insurgence of the ‘old’ (‘good’) IRA…

  • picador

    The law is an ass.

  • fair_deal

    “Although there can be political sanctions under the 1998 Act in certain circumstances”

    Will there be any?

  • “Reacting to the High Court judgement, a spokesman for the Department for Social Development said the Minister held the view she was right to stop funding the UDA linked project at that time and would take the same decision again.

    “Obviously the Minister has to take time to read the judgement. However, she welcomes the fact that on the main substantive points her decision was sound,” he said.

    “The arguments against her i.e. that she had failed to consult, that her mind was made up, or that she had no right to take the decision were thrown out by the court. The judge in effect ruled that the problem was an “error in procedure”.” News Letter

  • It’s an entirely surreal that a group which is illegal, holds arms illegally and engages in illegal activities such as drug dealing, extortion and various assorted acts of violence, can challenge in the courts a Minister who decides to ends funding to which they should never have been entitled in the first place. The law is a ass!

  • loftholdingswood

    Congratulations to the staff of CTI who have worked diligently throughout this and have achieved remarkable results. It is a shame that £300,000.00 of taxpayers money has been wasted because of the political spite of Ms Ritchie. I hope that she now takes more suitable advice and embraces the concept of CTI and indeed work with the staff to champion disadvantaged Loyalist areas. This could be a good opportunity for her to help the staff make a difference.

  • picador

    ‘Minister in no sinecures for paramilitary thugs shocker’

    Congratulations to the staff of CTI who have worked diligently throughout this and have achieved remarkable results.

    Perhaps you could detail these, loftholdingswood.

    It is a shame that £300,000.00 of taxpayers money has been wasted

    Sure that’s less than André Shoukri bets on the horses. With an insider tip she could win it all back.

  • red

    I would be interested to hear more of these ‘remarkable results ‘referred to by an earlier contributor.

    Also what about the audit report into funding for The Peoples’ Museum at Fernhill House, Glencairn, which stated that funding given to the Project was ‘novel, contentious with favouritsm shown towards it’?

  • loftholdingswood

    I understand that targets relating to a significant reduction in interface violence have been met. Issues relating to flags,emblems and murals have also received positive feedback. As I am not an official of the DSD I can’t give chapter and verse but the very fact that they (the DSD) are keen to continue with CTI and have continued the relationship even during this whole court case (2007 initially) means that they see merit in the initiative.

    The Minister Ms Ritchie has also implied that she will not appeal this ruling and I fully expect it to expand and flourish.

  • iluvni

    Anyone totalled up the amount of cash wasted on legal challenges, Inquiries etc over the last 10 years?

    Mustnt be a kick in the arse off £500 million now.

  • joeCanuck

    Margaret Ritchie did her best and IMO did the right thing.
    I don’t like to second guess Judges since they have far more information that we see reported in the press. Nonetheless, I am disappointed in this outcome. C’est la vie.

  • fionn

    ‘remarkable results’ means they haven’t resorted to killing Catholics, despite provocation.

    This ruling is no surprise really, given that the status quo hasn’t changed. Pro Union terrorists good, anti Union terrorists bad.