23.11.06
Northern Ireland secretary Peter Hain had no idea that his
choice of interim commissioner for victims of the ‘troubles’ would
threaten his political career.
The extraordinary turn of events, which jeopardises his bid to become
deputy leader of the Labour party, began in October last year when Hain appointed
Bertha McDougall, the widow of a part-time RUC reservist shot dead in 1981
by the Irish National Liberation Army, as the ‘interim commissioner
for victims and survivors of the troubles’.
The role of the interim commissioner was to review services for victims
and survivors across government, as well as grants paid to them and various
survivors’ groups.
Hain said at the time of McDougall’s appointment: “Her
experience in working with victims and victims support groups will be vital
in helping to address the needs of those who have suffered great personal
loss.”
No one questioned McDougall’s qualifications for the role, but
the failure to advertise the post or consult the public led to raised eyebrows
about the appointment – especially in the nationalist comm-unity. The
issue for many was whether the appointment was made on merit or as a political
favour to unionists.
Brenda Downes, whose husband was killed by a plastic bullet fired by
an RUC reservist in 1984 during a republican rally, considered seeking a judicial
review of the appointment.
As a preliminary step, a request was made under the freedom of information
act (FOIA) to the Northern Ireland office (NIO) asking how McDougall became
aware of, or was made aware of, the vacancy; who approached her; and who was
consulted.
The reply, in a letter of last January 5, stated: “No consultation
was considered necessary, and none took place,” adding, “Mrs McDougall
was considered by ministers as the best candidate for the interim position.”
Downes filed an application for a judicial review, the first step before
the high court can consider a judicial review substantively, claiming that
there was an improper motive for the choice of appointment.
At a high court hearing in Belfast in March, the NIO repeated the position
of its FOIA reply.
Justice Hart duly threw out all the grounds for the judicial review
based on the claim of improper motive, but allowed a challenge to go ahead
based solely on the legitimate expectation of consultation.
Downes went to the court of appeal in May, to try to reinstate the
rejected grounds of her judicial review. In front of Northern Ireland’s
lord chief justice, Sir Brian Kerr, and two other appeal judges, the NIO again
relied on the position outlined in the FOIA reply of January: as there was
no consultation, there could not have been any improper political involvement
in McDougall’s appointment.
Unfortunately for the NIO, Jeffery Donaldson, democratic unionist party
(DUP) MP for Lagan Valley, had told the press that his party had been fully
consulted and was delighted by the appointment.
This time, it was Sir Brian Kerr who raised an eyebrow, and he allowed
the challenge to go ahead on all fronts.
At this point, the NIO’s story began to unravel.
For the hearing before Justice Girvan of the judicial review itself,
the head of the Northern Ireland civil service, Nigel Hamilton, swore an affidavit
on behalf of the NIO, which, he said, had been seen and approved by Hain.
Hamilton revealed that there had, after all, been some political input
into the decision-making process: but only to the extent that the DUP had
suggested McDougall. She was subsequently chosen solely on merit, he added.
This version meant that the account in the January FOIA reply, to which
the NIO had adhered in hearings at the high court and then the court of appeal,
was materially wrong.
Worse was to come. Downes applied to cross-examine Hamilton and, if
necessary, call Hain as a witness. Justice Girvan agreed.
The response from the NIO was to lodge another sworn affidavit: this
time from its then political director, Jonathan Phillips. He was further up
the hierarchy and his affidavit, too, had been authorised by Hain.
As far as the DUP’s influence on the appointment was concerned,
he said, the secretary of state had decided, “if they wished to informally
propose a particular individual for the interim appointment, he would consider
their recommendation. This was duly conveyed to the DUP.”
So, not only was the FOIA response wrong, but Hamilton’s affidavit
evidence, seen and approved by Hain, was also incorrect.
The secretary of state had not impartially stood by in the selection
and appointment process but, we learnt from the Phillips affidavit, Hain had
specifically asked the DUP to propose a candidate. Phillips further revealed
that Hain had decided against consulting the other political parties.
Justice Girvan’s response to this gradual and begrudging unfolding
of the truth was damning. In early November, he ruled in favour of Downes
that there had been improper political motivation behind the appointment made
as a confidence-building gesture to the DUP. (In an odd twist, he rejected
the legitimate expectation argument, the one ground that had survived the
very first hearing.)
But he went on to attack the NIO’s approach to the FOIA request
and subsequent court hearings. “I am satisfied that the information
supplied in the letter of January 5, 2006 was evasive, misleading and in certain
respects clearly wrong.”
Furthermore, it was not just Downes that had been misled. “Since,
within the NIO… the true factual situation was known, it must be concluded
that it was decided that the correct information should not be placed before
the court.”
“Had the court of appeal not allowed the appeal, the [NIO] would
have successfully frustrated the applicant’s legal challenge by the
withholding from the court of material evidence. This case, thus, raises very
serious issues which should be the subject of immediate and searching inquiry
at a high level.”
Hain later said: “Obviously, we're studying the judgement carefully
and we're looking at the consequences of that. But the big picture is, I was
acting on behalf of victims and will continue to do so.”
“I absolutely reject any suggestion that there was a deliberate
attempt to mislead the court. I would welcome any decision to hold an inquiry.
It will receive our full co-operation.”
In an unscheduled hearing less than a fortnight later, Justice Girvan
was moved to take the rare step of publishing an explanation of what was meant
in the earlier judgment. In an acidly calm commentary, he made three simple
points.
First, Hain and the NIO could have no say whatsoever regarding his
call for an inquiry: “The reference to an inquiry was intended to be
a reference to an investigation… If such an investigation is to be fair
and meaningful it could not be conducted by any of the personnel involved
in the handling of the case.”
Next, Downes could seek her own remedies for receiving incorrect and
misleading information in response to her FOIA request by citing maladministration
to the Northern Ireland Commissioner for Complaints.
Third (and, by this point, Justice Girvan had evidently hit his stride),
his primary concern was how that information had been used in the hearings
for the judicial review. “The papers and manner in which the [NIO] met
the legal challenge raised serious issues as to whether there was an attempt
to allow the court to be misled as to the true factual and legal situation.”
The FOIA reply, he said, “evaded providing certain information
and gave a false answer in relation to the question of consultation.”
“The question which arises in this case is whether there was
a deliberate attempt to mislead and if so by whom.”
The legal consequences of such action were then spelt out: “The
[FOIA reply letter] was… written in the context of a likely judicial
review challenge. If incorrect and misleading information was deliberately
given to put the applicant on a false trail then, prima facie, that
conduct would appear to fall within the concept of perverting the course of
justice. If, in the course of the substantive judicial review itself, there
was a deliberate attempt to mislead the court, the same would be true.”
Justice Girvan then announced that, because one of the attorney general’s
functions is the duty of protecting due administration of justice, the papers
in the case were to be forwarded to him.
He spelt out a list of 67 questions (see link below) that needed to
be addressed by the attorney general, half of them directed at the handling
of the FOIA request that lay at the heart of the case.
Hain has suggested that the government might appeal Justice Girvan’s
ruling, saying: “It is important that everybody understands –
and it is clear that not everybody does – that we asked Bertha McDougall
to prepare a report on the victims' issue for me and the incoming permanent
victims' commissioner who will go through the standard public appointments
procedure.
“This will enable the victims' commissioner, when he or she is
appointed, to get off to a flying start. I make no apology for doing that.
“The cause and the interests of victims have been badly neglected
for far too long. What we want to see is a fresh recognition and momentum
for victims in Northern Ireland.”
Meanwhile, the attorney general, Lord Goldsmith, is in the process
of setting up an inquiry. He has said in answer to a parliamentary question
that any report will, in principle, be published but that it may be delayed
“if for any reason it were to lead to disciplinary or other proceedings
following from it.”
Whether ‘other proceedings’ is a reference to the possibility
of bringing charges for perverting the course of justice remains to be seen.
Mark Lloyd is a barrister and former reporter on Channel 4 News.
FOIA
Centre commentary
Public bodies that think they can lie or mislead the public in response
to FOIA requests should learn from this sorry episode. No doubt, the UK government,
which is using the spurious excuse of cost to threaten greater restrictions
on FOIA, would consider that having to reply to FOIA requests truthfully is
especially inconvenient and burdensome.
While FOIA in the UK has a regulator who is widely seen as ineffectual,
we consider that Justice Girvan has struck a mighty blow in FOIA’s favour,
albeit as a by-product of the judicial review case before him in Belfast.
Below, we link to the full list of questions that he says the attorney
general’s inquiry must address, many of them focussed on how the FOIA
request was handled.
Fortunately for Justice Girvan, he is not seeking answers to his questions
under the freedom of information act. Among other exemptions that the NIO
would cite in its refusal to answer, it would certainly claim that providing
the information would be too onerous: they would exceed the maximum cost threshold.
Perhaps it would also describe such a requestor as vexatious. After all, the
government has made clear that it regards FOIA requests about the handling
of a FOIA request as an abuse of FOIA.
We shall see whether the attorney general’s inquiry succeeds
in providing the answers.
Comment
on this article
Justice Girvan’s questions for Hain
inquiry in full
Hain
faces inquiry following untruthful FOIA reply
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