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.
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.
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