These are the 67 questions that Justice Girvan wants addressed by the investigation into an apparent attempt to pervert the course of justice.
He says that the inquiry, which has been set up by the attorney general, should answer these questions – set out here in full – which he raises over the conduct of Peter Hain, Northern Ireland secretary, and his officials. Half of the questions are directed at the handling of the request under the freedom of information act (FOIA) that lies at the heart of the case.
1. Who drafted the [FOIA reply] letter of January 5, 2006?
2. What information was supplied to the drafter of the letter?
3. Who supplied that information?
4. From what source did that information come?
5. Did the letter, as sent, incorporate all the supp-lied information?
6. If not, who decided to omit certain information, what information was omitted and who authorised or required the omission of the information?
7. At what level within government was the request for information considered?
8. How many drafts of the proposed letter were pre-pared?
9. Who prepared those drafts?
10. Who considered the drafts?
11. Who settled the final draft?
12. Do all the drafts continue to exist and, if so, where are they?
13. What are the normal practices to be followed in the preparation and approval of a FOIA letter and in the retention of documents and drafts?
14. Were the normal practices followed in this case and, if not, why not?
15. What safeguards exist within the OFMDFM [the ‘office of the first minister and deputy first minster’ in the Northern Ireland government] and NIO to ensure that a FOIA letter contains correct information?
16. How did those safeguards fall down in the pres-ent case?
17. Who authorised answers indicating that no con-sultation took place?
18. Who authorised answers indicating that Mrs McDougall was the best candidate in terms of merit?
19. Who decided not to answer the question how Mrs McDougall became aware of the post?
20. To what records and documents was the drafter of the reply given access in preparing the response contained in the letter?
21. To what documents and records did the person who approved the letter have access when the letter was being considered?
22. Was the letter considered by the secretary of state (“the SoS”) before it was sent?
23. Did the SoS play a role in the settling of the document and, if so, what role?
24. Was the letter considered by Mr Hamilton be-fore it was sent?
25. Was it considered by Mr Phillips?
26. Was it considered by government lawyers be-fore it was sent and, if so, were they given access to all the records relating to the appointment and were they fully briefed? If not, why not?
27. At what point did (a) the SoS, (b) Mr Hamilton, (c) Mr Phillips become aware of the contents of the letter and become aware that the letter was inaccurate?
28. Before swearing his affidavit, did Mr Hamilton consider the exhibits to the applicant’s affidavit, which included the letter?
29. Did he review the accuracy of the contents of the letter?
30. Why did he not correct the false impression, which, it is now accepted, was created by the letter?
31. Did Mr Hamilton draw the attention of the SoS to the contents of the letter?
32. Did the SoS consider the terms of the letter be-fore authorising Mr Hamilton to swear the affidavit?
33. If the SoS did not consider the terms of the let-ter before authorising Mr Hamilton to swear the affidavit, what documents and material did the SoS consider before so authorising the affidavit?
34. Did anyone in the NIO and/or OFMDFM, and, if so, who, review the papers and records to ensure that the correct factual situation was known to the [government’s] legal advisers before the hearing before [Justice] Hart and before the hearing in the court of appeal?
35. Was Mr Hamilton aware of the [first] hearing and the appeal hearing and of the information that was being put before the courts?
36. When Mr Hamilton swore that merit was the sole criterion in relation to the appointment, was he not aware that no exercise had been carried out to assess the comparative merit of Mrs McDougall and Mr X?
37. If the appointment was not the product of an ex-ercise designed to ascertain who was the best qualified for the job, on what basis did he assert that merit was the sole criterion?
38. To what material set out in Mr Phillips’s affidavit did Mr Hamilton not have access when he swore his affidavit?
39. Of what material in Mr Phillips’s affidavit was Mr Hamilton unaware when he swore his affidavit?
40. By the time of the substantive hearing in the judicial review were any of the deponents aware that the letter contained incorrect information?
41. If they were, why were no steps taken to correct the errors and false impression created by the letter?
42. Before Mr Hamilton swore his affidavit, did he prepare a statement to enable the affidavit to be drafted?
43. What material was provided to those engaged in drafting the affidavit?
44. How many drafts of the proposed affidavit were prepared?
45. Are these drafts still in existence, and, if so, are they still available?
46. What changes were made to the drafts before the affidavit was finalised?
47. Did the SoS make or suggest or require any changes to the draft of the affidavit before it was finally sworn? If so, what changes did he make or suggest or require?
48. Why was it decided that Mr Phillips swear the final affidavit, and who made that decision?
49. Was Mr Hamilton a party to that decision?
50. Did he participate in any discussion relating to the decision to file a final affidavit?
51. Was Mr Hamilton involved in the decision to appeal against the decision that he should submit to cross-examination?
52. Was the SoS involved in the decision to appeal the order for cross-examination?
52. When the appeal was brought to the cross-examination order was Mr Hamilton or the SoS aware that the letter contained incorrect and misleading information?
53. Was the decision to file the affidavit of Mr Phillips made after the order for cross-examination?
54. Were minutes kept of the meeting at which it was decided that Mr Phillips should swear the final affidavit and are they available?
55. How was it discovered that Mr Phillips had information of which Mr Hamilton “might not have been aware”?
56. Who discovered that Mr Phillips had such information?
57. Had Mr Philips played any role in the letter of January 5, 2006 or in the judicial review proceedings previously? If so, what role?
58. Had Mr Phillips seen Mr Hamilton’s affidavit before it was sworn or before the application for cross-examination?
59. If he had, did he record any concerns about its contents?
60. Did anyone express concerns in writing or orally about the contents of the affidavit before it was filed? If in writing, in what documents, and where are those documents? To whom were such concerns expressed?
61. Did anyone express any written or verbal concerns about the contents of the letter before it was sent? If in writing, in what documents, and where are those documents? To whom were such concerns expressed?
62. Did anyone express any verbal or written concerns about the contents of the letter before the hearing before [Justice] Hart or before the court of appeal hearing on the question of leave? If in writing, in what documents, and where are those documents? To whom were such concerns expressed?
63. Did anyone express any verbal or written concerns about the contents of the affidavit of Mr Hamilton before the application to cross-examine Mr Hamilton? If in writing, in what documents, and where are those documents? To whom were such concerns expressed?
64. If any concerns in relation to any of the foregoing matters were expressed, how were those concerns dealt with?
65. If any such concerns were expressed by anyone, were those concerns brought to the attention of the SoS and, if so, how did he deal with them?
66. Was there any information in Mr Phillips’s affidavit of which the SoS was not aware and, if so, what information?
67. If the SoS was aware of all the information contained in Mr Phillips’s affidavit, why did he not bring that to the attention of Mr Hamilton before the affidavit was sworn?
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