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High Court of Justice in Northern Ireland Queen's Bench Division Decisions
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> Morrow & Anor, Re Application for Judicial Review [2001] NIQB 13 (30 March 2001)
URL: http://www.bailii.org/nie/cases/NIHC/QB/2001/13.html
Cite as: [2001] NIQB 13
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Neutral Citation no. [2001] NIQB 13
Ref:
KERE3393
Judgment: approved by the Court for handing down
Delivered:
30.03.2001
(subject to editorial corrections)
KERRJ
Introduction
Maurice Morrow and Gregory Campbell are Ministers in the Executive Committee of the Northern Ireland Assembly. They apply for leave to bring judicial review proceedings to challenge the decision of the First Minister, the Right Honourable David Trimble MP, and the deputy First Minister, Seamus Mallon MP, to withhold Executive Committee papers from them.
Background
The applicants are members of the Democratic Unionist Party. That party holds two ministries in the Executive Committee, the Department of Social Development and the Department of Regional Development. On 27 July 2000 Mr Morrow succeeded Nigel Dodds MLA as the Minister for Social Development and Mr Campbell took over as Minister for Regional Development from Peter Robinson MP. This succession was part of the strategy conceived by DUP for their participation in the Executive.
In a press statement released on 31 May 2000, DUP announced its intention to seek support for a motion to exclude Sinn Fein from the Executive. They also signalled that, in the event of failure of that motion to secure the necessary 60% majority, Mr Dodds and Mr Robinson would resign their Ministerial posts and that their departure would "mark a new and radical approach by the DUP to Ministerial positions". Hitherto the DUP Ministers had not attended meetings of the Executive Committee (although entitled to do so) because of the presence at those meetings of Sinn Fein Ministers.
The Press Statement contained the following passages: -
"Using the quirks of the system devised by our enemies to our advantage, we shall deny the supporters of the [Belfast] Agreement these two posts. We intend to make a series of short-term Ministerial appointments replacing resigning Ministers with others at regular intervals. Appointees shall act in a holding capacity only. No appointee will be regarded as being bound in any way by any Ministerial Code of Conduct or any notion of collective responsibility introduced by the Executive that conflicts with their overriding duty to abide by their election manifesto commitments to the electorate."
and
"[This strategy] allows us the opportunity to uncover and reveal what is going on at the heart of government. We shall not hesitate to be whistle-blowers exposing each of Trimble's concessions to Sinn Fein/IRA."
As a result of this Press Release, the First Minister and the deputy First Minister wrote to Mr Dodds on 8 June 2000, as follows: -
"Dear Minister,
We regret that you were unable to meet us on Monday to discuss the recent press announcements about your intentions in relation to the Ministerial position you hold.
We and the Executive Committee have two major concerns in relation to recent press statements by your party. The first concerns the party statement on 31 May which states:
`Appointees shall act in a holding capacity only. No appointee will be regarded as being bound in any way by any Ministerial Code of Conduct or any notion of collective responsibility introduced by the Executive that conflicts with their overriding duty to abide by their election manifesto commitments to the electorate.'
This statement is incompatible with the role of Ministers as set out in the Northern Ireland Act 1998. The statement also indicates that your party policy on the holding of Ministerial office:
` allows us the opportunity to uncover and reveal what is going on at the heart of government.'
These statements put in serious doubt your ability to discharge the duties of Ministerial office in good faith. Accordingly, we are taking the following steps to secure and maintain the principle of good government.
First, neither you nor your fellow DUP ministers will be nominated to attend meetings of the JMC [the Joint Ministerial Council]. As a consequence, we will make arrangements with your Department to be briefed for any such meetings as they arise, to ensure effective representation for Northern Ireland.
Second, until we are satisfied that the confidentiality and integrity of Executive Committee business will be respected, Committee papers will not be copied to you as of right.
We have also instructed our officials to discuss the transaction of business between your Department and the Executive Committee with your officials.
If you wish to discuss these matters further with us please let us know."
There does not appear to have been a response to this letter but on 7 September 2000, Mr Morrow sent to the First Minister and the deputy First Minister a memorandum on the subject of the Ministerial Code which contained the following observation: -
"As before, DUP ministers will, at all times and in all circumstances, operate to the highest standards of probity (including of course, respect for the confidentiality of official papers) and will continue to safeguard the best interests of the people of Northern Ireland."
On 2 October and 2 November 2000, Mr Morrow wrote again to the First Minister and the deputy First Minister demanding, in light of this assurance, that he and Mr Campbell be provided with copies of all Executive Committee papers. The First Minister and the deputy First Minister replied on 14 December 2000. Their letter suggested that the applicants had taken up office on the same basis as their predecessors and that while the press release of 31 May remained the basis of the DUP's nominations to public office, the private assurances offered by Mr Morrow were not regarded "as a sufficient acceptance of the confidentiality and integrity of Executive business". Mr Morrow was informed that the First Minister and the Deputy First Minister were prepared to reconsider their decision if he confirmed that he would respect the confidentiality and integrity of Executive business but that this would require "appropriate and satisfactory public assurances".
At present, the applicants are not supplied with the working papers for Executive Committee meetings until after they have taken place.
The Ministerial Codes
The Statutory Code
The Code contained in Schedule 4 to the Act is in the following terms: -
"CODE OF CONDUCT
Ministers must at all times:
observe the highest standards of propriety and regularity involving impartiality, integrity and objectivity in relationship to the stewardship of public funds;
be accountable to users of services, the community and, through the Assembly, for the activities within their responsibilities, their stewardship of public funds and the extent to which key performance targets and objectives have been met;
ensure all reasonable requests for information from the Assembly, users of services and individual citizens are complied with; and that Departments and their staff conduct their dealings with the public in an open and responsible way;
follow the seven principles of public life as set out by the Committee on Standards in Public Life;
comply with this code and with the rules relating to the use of public funds;
operate in a way conducive to promoting good community relations and equality of treatment;
not use information gained in the course of their service for personal gain, nor seek to use the opportunity of public service to promote their private interests;
ensure they comply with any rules on the acceptance of gifts and hospitality that might be offered;
declare any personal or business interests which may conflict with their responsibilities. The Assembly will retain a Register of Interests. Individuals must ensure that any direct or indirect pecuniary interests which members of the public might reasonably think could influence their judgment are listed in the Register of Interests."
It was submitted by Mr Hill QC on behalf of Mr Morrow and Mr Campbell that they had complied with all the requirements of this Code. They had therefore fulfilled all statutory requirements in relation to the discharge of their duty as a Minister and were entitled to receive the papers generated for Executive Committee meetings so that they could properly perform their ministerial role.
The Code agreed by the Executive
After the Executive was formed the Assembly approved a Ministerial Code. The relevant sections of this Code are as follows: -
"1.2 Under the Belfast Agreement and under sections 16, 18 and 19 of the [Northern Ireland] Act [1998] it is a condition of appointment that Ministers of the Northern Ireland Assembly, including the First Minister and the Deputy First Minister and junior Ministers, affirm the terms of the following pledge of office.
(a) to discharge in good faith all the duties of office
(b) commitment to non-violence and exclusively peaceful and democratic means;
(c) to serve all the people of Northern Ireland equally, and to act in accordance with the general obligations on government to promote equality and prevent discrimination;
(d) to participate with colleagues in the preparation of a programme for government;
(e) to operate within the framework of that programme when agreed within the Executive Committee and endorsed by the Assembly;
(f) to support, and to act in accordance with, all decisions of the Executive Committee and Assembly;
(g) to comply with the Ministerial Code of Conduct."
Although it deals with access to papers of a previous Administration it is noteworthy that paragraph 2.28 of this Code provides that documents will not be exploited for political gain.
Paragraph 3.3 of the Code provides: -
"The Act provides that the Executive Committee shall have the functions set out in paragraphs 19 and 20 of Strand One of the Belfast Agreement.
The Executive Committee will provide a forum for:
(i) the discussion of, and agreement on, issues which cut across the responsibilities of two or more Ministers;
(ii) prioritising executive proposals;
(iii) prioritising legislative proposals;
(iv)recommending a common position where necessary; and
(v) agreement each year on (and review as necessary of) a programme incorporating an agreed budget linked to policies and programmes (Programme for Government)."
Mr Hill submitted that the range of functions performed by the Executive Committee as outlined in this paragraph was such that the applicants required to have access to the papers to be considered by the Committee if they were to discharge properly their functions as Ministers. If they did not receive these until after the meeting of the Executive Committee, they could not contribute in a meaningful way to the Committee's deliberations. (The practice of the DUP Ministers has been to respond in writing to working papers to be considered by the Executive Committee).
Paragraph 3.6 of the Code provides: -
"Attendance at meetings of the Executive Committee shall normally comprise the First Minister, the deputy First Minister, the Northern Ireland Ministers, the Secretary to the Executive Committee. Officials may attend, with the approval of the First Minister and the deputy First Minister."
Paragraph 3.7 provides: -
"In accordance with the terms of the Pledge of Office, the Northern Ireland Ministers must participate with colleagues in the Executive Committee in the preparation of the programme for Government, operate within the framework of the programme for Government when it is agreed within the Executive Committee and endorsed by the Assembly, and support, and act in accordance with, all decisions of the Executive Committee and the Assembly."
The applicants contend that they are not bound by this provision since they did not agree to it when the Assembly endorsed the Code. They dispute any requirement that they subscribe to any notion of collective responsibility.
Paragraph 3.10 provides: -
"Executive Committee meetings take precedence over all other business. Members of the Executive should attend all meetings except in the most exceptional circumstances. A Minister should as early as possible inform the Secretary to the Executive Committee if he or she is unable to attend a meeting of the Committee and of the exceptional circumstances which cause the inability to attend the meeting."
For the same reasons the applicants claim that they are not bound by this paragraph.
Paragraph 3.17 of the Code provides: -
"Save in exceptional and unavoidable circumstances and subject to the agreement of the First Minister and the deputy First Minister, memoranda for consideration at Executive Committee meetings should be circulated at least two working days plus a weekend in which they are to be discussed to allow sufficient time to enable Ministers to read and digest them and to be properly briefed. "
The applicants argue that this paragraph illustrates the need for them to receive the working documents for the Executive Committee meetings promptly if they are to make effective contribution to the work of the Committee and, in particular, to safeguard the interests of those affected by decisions which are taken by the Committee in areas for which they have Ministerial responsibility.
Paragraph 3.24 provides: -
"Ministers should not make public statements or comment on policy proposals which are to be brought to the Executive Committee or are under consideration by it. The privacy of opinions expressed in the Executive Committee must be respected. The Head of the Executive Information Service should be the sole source of briefing to the media about discussions held in the Executive Committee. Once taken, Ministers must publicly support decisions of the Executive Committee."
Again, the applicants claim not to be bound by this provision.
The application for leave
On behalf of the applicants, Mr Hill argued that the applicants were entitled to have the Executive Committee papers in advance of the meetings of the Committee by virtue of sections 20 and 23 of the Northern Ireland Act 1998. Under those provisions they were constituted members of the Executive Committee and they had a Ministerial responsibility to contribute effectively to the work of the Executive Committee. The actions of the First Minister and the deputy First Minister frustrated their effective participation in the work of the government and compromised their ability to discharge their Ministerial duties.
The avowed justification for the withholding of the documents viz the need for confidentiality had been catered for by the assurances given by Mr Morrow. It was wholly unreasonable to ignore those assurances. Moreover, if there was any basis for the First Minister and the deputy First Minister's belief that the applicants' undertaking of confidentiality could not be accepted, they could be excluded from holding office under section 30 of the 1998 Act. The failure of the First Minister and the deputy First Minister to invoke section 30 betokened a recognition that the applicants had not breached (and would not breach) the confidentiality properly associated with Executive Committee business. The action had been taken for the collateral political purpose of disadvantaging the DUP.
The statutory framework
Section 20 of the Northern Ireland Act 1998 provides: -
"20. (1) There shall be an Executive Committee of each Assembly consisting of the First Minister, the deputy First Minister and the Northern Ireland Ministers.
(2) The First Minister and the deputy First Minister shall be chairmen of the Committee.
(3) The Committee shall have the functions set out in paragraphs 19 and 20 of Strand One of the Belfast Agreement."
Paragraphs 19 and 20 are as follows: -
"19. The Executive Committee will provide a forum for the discussion of, and agreement on, issues which cut across the responsibilities of two or more Ministers, for prioritising executive and legislative proposals and for recommending a common position where necessary (e.g. in dealing with external relationships).
20. The Executive Committee will seek to agree each year, and review as necessary, a programme incorporating an agreed budget linked to policies and programmes, subject to approval by the Assembly, after scrutiny in Assembly Committees, on a cross-community basis."
In my view, there is nothing in any of these provisions which suggests that the applicants should be provided in advance of the meetings of the Executive Committee with the working papers for those meetings. Paragraphs 19 and 20 describe the work that it was envisaged would be carried out by the Executive Committee; they did not prescribe how the Executive Committee was to be serviced, much less the mechanics of keeping Ministers informed of the matters to be discussed at meetings.
So far as is material, Section 23 of the 1998 Act provides: -
"23. (1) The executive power in Northern Ireland shall continue to be vested in Her Majesty.
(2) As respects transferred matters, the prerogative and other executive powers of Her Majesty in relation to Northern Ireland shall, subject to subsection (3) be exercisable on Her Majesty's behalf by any Minister or Northern Ireland department."
Again, there is nothing in these provisions, in my opinion, to warrant the view that, in order to fulfil their duties as Ministers, the applicants must be provided with the working papers of the Executive Committee before the meetings of that Committee take place. In the first place, I do not consider that the "prerogative and executive powers" referred to in subsection (2) are the powers which the applicants exercise in the deliberations of the Executive Committee. Of more importance, however, is the consideration that the exercise of such powers as have been conferred on the applicants by this subsection has not been inhibited in any way by the refusal of the First Minister and the deputy First Minister to provide the applicants with the working papers in advance of the Executive Committee meetings.
So far as is material, Section 30 provides: -
"30. (1) If the Assembly resolves that a Minister or junior Minister no longer enjoys the confidence of the Assembly-
(a) because he is not committed to non-violence and exclusively peaceful and democratic means; or
(b) because of any failure of his to observe any other terms of the pledge of office,
he shall be excluded from holding office as a Minister or junior Minister for a period of twelve months beginning with the date of the resolution."
There is nothing in this subsection which prevents the First Minister and deputy First Minister from taking action against an individual Minister who has not been the subject of a no confidence resolution. Section 30 does not purport to be comprehensive of the action that may be taken against a Minister who is deemed to be in default of his obligations, in my opinion
The right to receive papers
I am satisfied that nothing in the legislation or the Belfast Agreement invests Ministers in the Executive Committee with the right to receive working papers in advance of meetings. In so far as it may be claimed that Ministers have a right to have such papers, it derives from paragraph 3.17 of the Code which the applicants assert does not bind them. Whether it does or not, I am of the clear opinion that paragraph 3.17 relates to the circulation of papers among those Ministers who propose to attend the meeting. It does not extend to those who have disavowed the Code.
Even if I am wrong in that conclusion, I am also of the opinion that the First Minister and the deputy First Minister are entitled to direct that working papers should be withheld from those Ministers who have signalled their intention not to attend Executive Committee meetings. The Code requires Ministers to give priority to attendance at these meetings. The provisions of paragraph 3.17 must be read in light of that requirement. It is inconceivable that a Minister who refuses to obey the requirement in paragraph 3.10 of the Code could nevertheless insist that he is entitled to the facility afforded by paragraph 3.17. Quite independently of the considerations of confidentiality, therefore, I consider that the First Minister and the deputy First Minister were entitled to order that the applicants should not receive the papers in advance of meetings that they refused to attend.
Confidentiality
I am of the opinion that the First Minister and the deputy First Minister were also entitled to withhold the papers on the ground of confidentiality. The Press Release indicated a clear intention to breach the confidentiality of Executive Committee meetings. The assurances contained in Mr Morrow's letters did not address directly the matters raised in the Press Release. He did not state that the applicants no longer considered themselves bound by the statements of party policy contained therein. The decision of the First Minister and the deputy First Minister not to accept the assurances proffered by Mr Morrow (or, rather, their conclusion that they were not sufficient) is susceptible of challenge on Wednesbury unreasonableness grounds only. In this context a soft-edged review is appropriate see Re Williamson's Application [2000] NI 294 and Re de Brun and McGuinness [2001] unreported. I am satisfied that the decision cannot be impeached on this basis.
Conclusions
On an application for leave to apply for judicial review an applicant faces a modest hurdle. He need only raise an arguable case; or, as it is sometimes put, a case which is worthy of further investigation. I am satisfied, however, that the applicants have failed to raise an arguable case in this instance and the application for leave to apply must therefore be dismissed.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND