“A working democracy must have in place effective mechanisms for holding the Executive to account…”

As the BBC reports, the Northern Ireland Appeal Court has delivered, “with regret”, its judgement on the NI Department of Education’s appeal of the “abuse of power” ruling that followed a judicial review of the then-minister Sinn Féin’s Caitríona Ruane’s refusal to provide funding for Loreto Grammar School’s planned new-build on its existing site in Omagh.

As the BBC report notes

In ruling the court said: “The representations and actions by the Department of Education and the minister of education did not give rise to a substantive legitimate expectation that a new Loreto Grammar School, financed by public funding, would be built on the existing site.”

And

…the court ruled the Department of Education was wrong to label the schools plans as non-compliant.

The three judges said the department’s decision was flawed and has been quashed by the court.

The BBC report also notes that

The school has been awarded all legal costs and said it was satisfied the case had been given a thorough hearing.

It said it looked forward to talking to the Department of Education about a new building which it said is desperately needed.

In response to the judgement the current minister for education, John O’Dowd, said: “I welcome the prompt delivery of this judgement and will consider the detail and implications of the judgement in due course.

“I am keen to move forward constructively in the best interests of the young people of the area.”

At which point it’s instructive to look at the actual judgement or, for now, the summary of the judgement

The judge said that a legitimate expectation can only arise where there has been a “clear and unambiguous representation devoid of relevant qualifications” as to the decision maker’s future conduct.  It may arise from an express promise given by or on behalf of a public authority or it may arise from the existence of a clear and regular practice which a claimant can reasonably expect to continue.  Lord Justice Girvan said that “wise judicial minds can come to diametrically opposite views on whether the circumstances of individual cases give rise to legitimate expectations” and that this was a case in point.  He considered that in this case the evidence fell short of establishing the type of clear unambiguous representations devoid of qualification required to give rise to a substantive legitimate expectation on the part of the School.   Lord Justice Girvan said that it was plainly implicit that the delivery of a project of such scale, duration and ambition would always be conditional on the availability of the requisite funds and on the policy decisions of the Government of the time.  He concluded that no legitimate expectation could arise until the final approval of an application for funding – a stage which has not yet been reached in this case.

Lord Justice Girvan said that the Court reached this decision with regret.  He said it was not difficult to understand “the School’s increasing sense of impotence and frustration in what was becoming an increasingly obstructed obstacle course”.   The process had been highly bureaucratic and the Department’s documentation at times was opaque and laden with jargon.  He said it was important that Government departments act in a way that maintains the highest standards of trust:

“Trust can be broken by over stated public statements which appear to be unqualified though as a matter of law they are qualified.  It can be broken by leading parties along a track which appears to lead inevitably to an ultimately favourable outcome and while they are on that path throwing up new hurdles.  Trust in the system is undermined when that outcome is frustrated by long delays on the part of the relevant department and by its introduction of additional hoops and policies through which the parties must pass.  The way a Government department treats an individual or an organisation such as the School and the way it conducts is processes and implements its bureaucratic processes are all matters for which the Department is and should be accountable in the democratic process.  A working democracy must have in place effective mechanisms for holding the Executive to account if its conduct, actions and practices fall below appropriate standards of good and fair administration.” [added emphasis throughout]

And on the issue of the Department’s labelling of the school’s plans as “non-compliant”

Lord Justice Girvan found that the Department failed to provide clarification of what it expected from the School.  He said that the conclusion to be drawn was that the Department’s thinking of the impact of Lisanelly on the School project was unclear.  The judge said that the School accepted and interpreted the Department’s response as an indication that the Lisanelly idea would not frustrate the School’s project of building on its existing site.

Lord Justice Girvan said the following conclusions could be drawn from the evidence before the Court:

• Before the feasibility study and economic assessment were finalised and submitted the Department’s officials led the School to believe that the Lisanelly option could be dealt with by the School discounting it by setting out the reasons why the School needed to remain on its existing site;
• To the knowledge of the Department the consultants did not carry out an economic assessment of the Lisanelly option because they were led to believe this was not necessary as the School would be setting out the reasons why it was discounting the option.  The Department should and would have known that without input from expert consultants the School could not be expected to provide an economic assessment of the option;
• The decision to categorise the economic assessment as non-compliant was made a considerable time after the assessment had been submitted – “It may well have been influenced by the intervening strong Ministerial support for Lisanelly”;
• The inference to be drawn is that the Department failed to take into account that the economic assessment had been prepared and worded as it was in light of the School’s understanding of the Department’s stance;
• If the Department was requiring the School to provide a financial assessment of the Lisanelly option it was necessary for the nature of the actual requirement to be clear and focussed – “the Department did not bring focus and clarity to what it was demanding of the School”;
• Having led the School to believe that the economic assessment could discount the Lisanelly option without an economic assessment, it was unfair for the Department to subsequently condemn the assessment as inadequate because it failed to do what it had been led to believe was not required. [added emphasis throughout]

The Court of Appeal concluded that the decision to treat the School’s economic assessment as non-compliant was, accordingly, flawed in that the Department in so deciding failed to take into account the fact that the School and its consultants had prepared the economic assessment on the basis of a belief induced by Departmental officials that it did not need to provide an economic assessment of the Lisanelly option as it could be discounted by the School giving its reasons for doing so.  Furthermore, the Department was bound to make clear to the School the nature of what was required of it.  The Court concluded that the Department failed to take into account that it had not clearly indicated to the School what it expected of it in this context and accordingly the decision to designate the School as non-compliant must be quashed and the Department must reconsider this matter.

“Abuse of power”, much?  [It’s still “a fragile flower which requires careful tending…” – Ed]  Apparently so.