“a fragile flower which requires careful tending”

BBC NI political editor Mark Devenport has some interesting observations on the High Court ruling on the challenge to the appointment of four Victims Commissioners by then First and deputy First Ministers. Ian Paisley and Martin McGuinness were not subpoenaed about their un-documented and witness-free meetings, in office, about the eventual appointments. BBC report here. The ruling is not yet online. From the Devenport Diaries

Ms Williamson’s lawyers had argued that the failure of Messrs Paisley and McGuinness to keep a paper trail documenting their decision to switch from appointing just one Victims Commissioner to a team of four called in to question the candour of the evidence provided by the Executive.

However the judge rejected this arguing that “the process of joint decision making which will command public trust and confidence is a fragile flower which requires careful tending”. He said it would be “singularly unhelpful” for the courts to prescribe how the First and Deputy First should secure unity of decision making. The judgment appears to approve of private deals in what would have been described in days gone by (prior to the smoking ban) as “smoke filled rooms”.

Or, in other words, the courts should be a helpful witness.. Adds If Peter Hain’s improper political motivation had been equally exempted from scrutiny would his Interim appointment have been ruled unlawful?Mark Devenport continues

In short, this judgment looks to have cut the legs off any future attempt to judicially review the OFMDFM and to provide a “carte blanche” for meetings without officials and note takers present.

But never fear, if you disagree in the future with an OFMDFM decision, you don’t need to turn to the courts, because our ministers, as Mr Justice Gillen notes “are accountable to the Assembly where they are likely to be questioned and scrutinised”. And we all know just how effective the Assembly has been at carrying out that job in the past.

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  • Dave

    “This is a new model of governance and old procedural straight jackets may have to be modified so long as the parties have acted within the rule of law and the terms set down by Parliament.” – Mr Justice Gillen

    Oh dear… I wonder what Patrick Murphy will make of that? As I said to you previously: “… the functions of government are not performed by quangos and courts and are not controlled by rights-based legislation. Government in NI has power and how that power is used still depends on who is using it – a minister’s discretion, his parties policies, etc, are all influenced by which nation he belongs to, so these factors cannot be ameliorated even by a government that is so hamstringed by legislation that everything is effectively predetermined and determined for all time. It isn’t, of course, but the point being that even if such an attempt was made, it can’t control ministerial discretion.”

    Mr Justice Gillen is, of course, correct. As long as everything is within the law, decision-making all comes down to the discretion of those who are democratically elected to make those decisions – and, as Brian Walker pointed out, that may well mean “Government for Glengormley.” What form of democracy would you actually have if “everything is effectively predetermined and determined for all time” by external constraints on the power of government? A form that would be a sham – even more so than the present arrangement.

    My view would be that electing those who were most responsible for creating victims (Paisley and McGuinness in this example) ensured that those victims would be shafted since the guilty parties would want to be presented in their shambolic roles as peacemakers and would not want the public to be reminded of what these people actually are. Likewise, the public would not want to be reminded that they rewarded serial murderers and bigots with power contrary to any civilised convention, so just as surely as these politicians would shaft the victims, the people would turn a blind eye to that shafting. The establishment would do the same, since it’s just a wee “delicate flower” that requires the constant nurturing of that establishment.

    But, of course, proving that the two stooges acted to disable and discredit the Victims Commission because of their own self-serving interests is another matter. That is why those who think that quangos and courts will expose the true underhanded motives behind the discretionary use of power, and thereby prevent them, are blatantly in error.

  • Pete Baker


    Mr Justice Gillen goes further than merely excluding the decision itself from his consideration.

    As I suggest in the update to the original post.

    If Peter Hain’s improper political motivation had been equally exempted from scrutiny would his Interim appointment have been ruled unlawful?

  • William

    My commnets censored by Mr. P. Baker. Disgraceful

  • Cynic

    Why does this all matter at all?

    Has anyone found out yet what the Victims Commissioners do?

  • barnshee

    So much for the fabled independence of the judiciary