“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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