High Court of Justice in Northern Ireland Queen's Bench Division Decisions

The Issues Relating to Victims Interests

"11. The participants believe that it is essential to acknowledge and address the suffering of the victims of violence as a necessary element of reconciliation. They look forward to the results of the work of the Northern Ireland Victims Commission.

12. It is recognised that victims have a right to remember as well as to contribute to a changed society. The achievement of a peaceful and just society would be the true memorial to the victims of violence. The participants particularly recognise that young people from areas affected by the Troubles face particular difficulties and will support the development of special community based initiatives based on international best practice. The provision of services that are supportive and sensitive to the needs of victims will also be a critical element and that support will need to be channelled through both statutory and community based voluntary organisations facilitating locally based self-help and support networks. This will require the allocation of sufficient resources including statutory funding as necessary to meet the needs of victims and to provide for community based support programmes."

"One of the specific questions asked in the consultation paper is whether a Victims Commissioner should be established. Again, a wide range of responses was received to this question with a diverse range of opinions being expressed. As some respondents pointed out if this strategy is implemented properly and efficient structures put in place, then any perceived need for a Commissioner should be eroded. Some respondents felt that the appointment of a Commissioner would be a positive move as such a person could provide a voice for victims, while others felt that no clear role existed and that the money to fund a Commissioner could be better spent on providing services. There was also a range of views as to whether a Commissioner should be victim or should come from Northern Ireland. Given that clear view emerged during the consultation as to whether a Commissioner should be appointed and, having considered the matter carefully, we are not convinced of the need for a Commissioner at this stage and do not intend to proceed in this area, although the situation will be reviewed in due course."

The Respondents' Evidence

"Following further consideration, in September 2005 the Secretary of State decided in principle on the appointment of an Interim Commissioner for a period of a year while in parallel taking steps to bring forward the legislation mooted in paragraph 13. It was intended that the Interim Commissioner would focus, in particular, on reviewing arrangements for service delivery, coordination of services across departments and agencies, reviewing current funding arrangements in relation to services and grants paid to victims and survivors groups and individuals and consideration of the modalities of establishing a victims and survivors forum. The thinking was that all of this work could be usefully and constructively carried out in the public interest in advance of a permanent appointment."

The announcement of the appointment of an IVC was made on 24 October 2005. Mr Clarke points out that there was no statement or representation in any of the Government publications including the consultation paper that the Government would consult with the public or any section of the public or any group or any individuals on the appointment of a Victim Commissioner or Interim Victims Commissioner. There was no intention to represent that any such consultation would be undertaken and no such representation was made at any time.

"List of Potential Candidates

5. We can discuss this at the proposed meeting with officials, but in general it is thought that someone from an academic or professional background may be best suited to the role. In particular, we would be seeking someone who would:

i. have an established record in dealing with conflict situations either within Northern Ireland or elsewhere;

ii. have the capacity and interpersonal skills to work with the diverse range of groups and organisations in the victims sector;

iii. have the necessary analytical skills to organise and prepare a report on his or her findings and be able to

iv. command cross community support."

In paragraph 14 of his affidavit Mr Hamilton translates the criteria into criteria that the person "should" have the various criteria. Whether there is a difference between the use of the word "would" in Mr Clarke's paper and "should" in Mr Hamilton's affidavit is a matter to which I shall have to return. According to Mr Hamilton's affidavit the Secretary of State was content with the qualities indicated but considered that the search should not be confined to those with an academic or professional background. Initially the process which officials had in mind was that they would draw up a list of potential candidates which would then be the subject of soundings with local political parties followed by the checking of availability of candidates to take up early appointment. The Secretary of State approved this approach. A list of candidates was accordingly drawn up by senior officials. This consisted of 16 names. It included one name put forward by the DUP but that person almost immediately withdrew his/her name and the DUP then provided Mrs McDougall's name. Mr Hamilton's affidavit does not deal with the question of how it came about that the DUP had put forward a name in the first place or how it came about that they then provided the alternative name. Both those matters are a matter of some significance. Mr Hamilton selected two candidates whose names should be forwarded to the Secretary of State for discussion. One was Mrs McDougall. According to a Note for the Record prepared by Mr Hamilton dealing with the appointment of the Interim Commissioner under "Shortlist" Mr Hamilton stated:

"Following my personal consideration of each candidate, I was of the view that the following two candidates met all the criteria and would be, by far the strongest in respect of those criteria ie Mr X and Mrs Bertha McDougall.

I had also discussed with NIO/OFMDFM colleagues the possibility that if Mrs McDougall was appointed Mr X might be approached to see if he would be available on a part-time basis to offer advice on the trauma issues, particularly since that is required under the terms of reference of the Interim Commissioner.

Following discussion with the Secretary of State Jonathan Phillips and I met with Mrs McDougall to explore her availability. During this discussion, she was at pains to point out that she is not, never has been, a member of any political party (including the DUP) and sees the need for the Commissioner to be seen as independent of any such political affiliation. I subsequently advise the Secretary of State that in our view Mrs McDougall had the range of experience, knowledge and ability to undertake this role satisfactorily. I also advise that while her associations with RUC widows and trusteeship of the RUC GC Foundation would mean that her appointment might attract some criticism from Nationalists, we were of the view that her personal dispositions seemed to us likely to enable her to handle such criticism sensitively."

The criterion on cross community support was viewed by Mr Hamilton as not simple to satisfy. It was clear that it would be difficult to find persons who would be acceptable to all sides of the community. Mr Hamilton noted that the appointment would be warmly welcomed within the broad Unionist community particularly by the DUP but was likely to be criticised by the Nationalist community, particularly Sinn Fein. However Mr Hamilton in his affidavit said he was satisfied that "she was an individual who had the qualities to secure sufficient cross community support and acceptance." In paragraph 30 Mr Hamilton stated that in the view of the Secretary of State and of Mr Hamilton and Mr Phillips, having regard to her track record and general approach she would be able to establish credibility and sufficient acceptance across the community. Mr Hamilton asserted that while it was the case that Mrs McDougall's name was fed into the process by the DUP his recommendation was based exclusively on Mrs McDougall's personal merits for the appointment given the range of the criteria and her qualities and experience. "Merit was the sole criterion applied" he asserts in paragraph 32. He stated that the DUP provided a curriculum vitae for Mrs McDougall and when this was examined it was demonstrated that she was a candidate of considerable strength and ability. Her name was placed on the list with other persons whose names had been generated internally. In paragraph 34 of his affidavit he stated:

"In considering the appointment, the Secretary of State was mindful that Mrs McDougall's name had been put forward by the DUP. I have confirmed with him that he gave careful consideration to the possibility of a different candidate and would not have appointed Mrs McDougall had he not been persuaded by the information and advice submitted to him that she genuinely satisfied the criteria that had been devised for the appointment."

"[18] The Secretary of State did decide, however, that given the continuing interest by the DUP in the establishment of a Victims Commissioner and the background outlined above, 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. The Secretary of State's expectation was that, having regard to the background outlined above and the other evidence, the DUP would be likely to propose a candidate for appointment to the post of Interim Victims Commissioner. This expectation was duly fulfilled as described in paragraph 17 of Mr Hamilton's affidavit, together with the letter dated 27 September 2005 exhibited at paragraph 9 of the accompanying documents.

[20] Accordingly, the views and representations of the DUP and the possible establishment of a Victims Commissioner and Interim Victims Commissioner and their suggestions regarding a suitable candidate for the interim appointment constituted factors taken into account by the Secretary of State in making the impugned appointment. However, this was simply one of the factors in the decision to appoint Bertha McDougall. The Secretary of State also considered carefully her ability to command sufficient cross community support and her individual merits generally. The Secretary of State in considering the appointment of Mrs McDougall was of the clear view that her considerable personal qualities together with a constructive outlook and relevant background and experience made her a strong candidate in her own right. Both Mr Hamilton and I had been of the same opinion and we had advised the Secretary of the State accordingly."

Mr Phillips concluded his affidavit resolutely rejecting the ground of challenge that the impugned appointment was activated by some improper motive on the part of the Secretary of State was rejected. The Secretary of State was acting on what he considered to be the public interest at all material times. He was making a political judgment about what he judged to be in the public interest.

The applicant's challenge on the issue of candour

"There is a very high duty on public authority respondents, not least central government, to assist the court with full and accurate explanations of all the facts relevant to the issue the court must decide. The question here is whether in the evidence put forward on his behalf the Secretary of State has given a true and comprehensive account of the way the relevant decisions in this case were arrived at. If the court has not been given a true and comprehensive account but has had to tease the truth out of late discovery it may be appropriate to draw inferences against the Secretary of State upon points which remain obscure."

A breach of the duty of candour and the failure by the Executive to give a true and comprehensive account strikes at the heart of a central tenet of public law that the court as the guardian of the legal rights of the citizen should be able to rely on the integrity of the executive arm of government to accurately, fairly and dispassionately explain its decisions and actions.

"The general absence of orders of disclosure in judicial review is largely sustained by the fact that the court feels able to trust public authorities to approach judicial review in a spirit of candour. It is not surprising that the courts have both praised defendants for frank disclosure and expressed troubled disappointment should have transpire that a public authority has fallen short of the expected duty of openness."

The words "troubled disappointment" fails to meet the strength of the trenchant criticism that on occasions courts feel compelled to make. For example Lord Lowry in R v IRC (ex parte Continental Shipping) [1996] STC 813 lamented:

"the excessive degree of reticence of the Revenue in the case and then the uncommunicative intransigence in correspondence which admittedly without knowing all facts I found difficult to reconcile with the reasonable attitude which ought to characterise a government department in its dealings with the public."

"because the post is an "interim" position for the purpose of having the post holder carry out some advance preparatory work as early as possible a list of potential candidates was prepared by senior officials from the Office of the First Minister and Deputy First Minister and the Northern Ireland Office. Mrs McDougall was considered by ministers as the best candidate for the interim position." (Italics added).

It is noted that the draft of the letter simply evaded answering the question how she became aware of the post or how she got unto the list. On the question about the consultation on the need for an IVC the answer given was that as it was an interim post with a specific focus on particular areas:

"No consultation was considered necessary and none took place." (italics added)

On the question of the appointment process for the actual appointment the answer given was:

"No consultation took place on this issue. Based on the criteria set out at (f) above senior officials within the Office of the First Minister and Deputy First Minister and the Northern Ireland Office drew up a list of potential candidates for the post. After further detailed consideration of these candidates against the criteria at (f) officials produced a short list of two persons whom they considered most suitable for the post. Mrs McDougall was considered the most suitable candidate and had discussions with senior officials from both the above departments. Subsequently it was recommended to the Secretary of State that Mrs McDougall be appointed as Interim Victims Commissioner." (italics added)

"Any person making a request for information to a public authority is entitled –

(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b) if that is the case, to have that information communicated to him."

There are exceptions to this duty but the OFMDFM did not seek to rely on any of the exceptions. The duty lying on the relevant department was thus to provide the information honestly and correctly. For some reason it was decided within government that incorrect and misleading information would be supplied. It may be the case that the writer of the letter acted conscientiously in passing on the information that was supplied to him to pass on. Questions, however, arise as to the source of the incorrect information that was sent out in the letter of 5 January 2006; as to who decided to provide that information in that form; and as to who decided to effectively withhold the correct information that the DUP was consulted, played a role and had nominated Mrs McDougall at the request of the Secretary of State. When the matter was mentioned before me when I indicated my provisional views I raised the question as to how it came about that the incorrect information came to be sent out in the letter. The respondent did not explain that and the additional submissions left that question unanswered.

The legal authority of the Secretary of State to make the appointment

"Subject to the above paragraphs and to the constitution of the body to which the appointment is made, public (non-civil service) appointments are the responsibility of the minister concerned who should appoint the person he or she considers to be best qualified for the position. In doing so, the minister should have regard to public accountability the requirements of the law and to the Commissioner for Public Appointments Code of Practice for Ministerial Appointments to Public Bodies. The process by which such appointments are made should conform to the principles in the Code – ministerial responsibility, merit, independent scrutiny, equal opportunities, probity, openness and transparency, and proportionality – and to the procedures set out in detail in the Code." (Italics added).

Counsel also referred to the principles of personal conduct of those in public life established by the Committee on Standards in Public Life. Under the heading "Objectivity" it is stressed that in carrying out public business including making public appointments, awarding contracts or recommending individuals for rewards and benefits, holders of public office should make choices on merit.

"All public appointments should be governed by the overriding principle of selection based on merit, by the well informed choice of individuals who through their abilities, experiences and qualities match the needs of the public body in question." (Italics added).

Under the heading of "Merit and Diversity" it is pointed out in paragraph 2.4 that appointment on merit is the overriding principle within the appointments process. In line with the Nolan Committee's original recommendations criteria for selection can take account of the need to make appointments which include a balance of skills and experience. Nonetheless, departments must guard against positive discrimination and political activity cannot be used as a criterion for selection unless there is a statutory requirement to do so. Under the heading "Openness and Transparency" in paragraph 2.16 it is pointed out that the workings of the appointment system must be clearly visible. All stages to the process including relevant conversations must be documented and the information should be readily available for audit. Under the heading of "Proportionality" it is pointed out that proportionality arguments must not be used to circumvent proper procedures. All deviations from the process set out in the Code of Practice must be fully recorded and departments are advised to consult OCPANI in advance of any significant departure.

"(1) It shall be unlawful for a public authority carrying out functions relating to Northern Ireland to discriminate, or to incite another person to discriminate, against a person or class a person on ground of religious belief or political opinion.

(2) An act which contravenes this section is actionable in Northern Ireland at the instance of any person adversely affected by it; and the court may –

(a) grant damages;

(b) subject to sub-section (3) grant an injunction restraining the defendant from committing, causing or permitting further contraventions of the section."

Improper Motive

Cross-Community Support

Legitimate Expectation

"Government has the ultimate responsibility for ensuring that an appropriate mechanism is found for dealing with the past to the satisfaction of all sections of the community. But I recognise too that, for some, the Government's role in past events is itself seen as an issue and it is hard for some sections of the community to see us as a genuinely neutral party. Neither does the Government have an monopoly of wisdom, and I recognised the major contribution that many practitioners and other bodies are already making in this field.

These considerations have led me to conclude that any process for dealing with the past in Northern Ireland cannot be designed in isolation or imposed by Government there will need to be broadly based consultation that allows individuals and groups across the community to put their views on what form any process might take and that consultation process would need broad cross-community support if the ideas it generates are to be constructively received."

Conclusions

(a) breached section 76 of the Northern Ireland Act 1998;

(b) being in breach of the accepted merit norms applicable to public appointments and in breach of the Ministerial Code of Practice in the circumstances the appointment, was in breach of the power of appointment under the Royal Prerogative;

(c) was motivated by an improper purpose, being motivated by a political purpose ( so called confidence building) which could not be legitimately pursued at the expense of complying with the proper norms of public appointments where merit is the overriding consideration; and

(d) failed to take account of the fact that there was no evidential basis for concluding that the appointee would command cross-community support.