28/04/2009

Courts Reject Victims Commissioner's Appointment

The courts have decided against a now controversial decision on the appointment process for an interim NI Victims Commissioner.

The Court of Appeal today said that the then NI Secretary of State failed to take into account the Code of Practice for Ministerial Appointments to Public Bodies.

A statement released this morning said that all the available evidence pointed to the conclusion that the Secretary of State "did not have regard to the provisions of the Code at any time during his deliberations".

The decision to appoint Bertha McDougall as the Interim Victims Commissioner was therefore "not lawfully made".

The rejection of the appeal is despite also concluding that an NIO appeal against an earlier ruling should in fact be allowed, but on other grounds.

The Lord Chief Justice, sitting with Lord Justice Higgins and Mr Justice Morgan, concluded that none of the grounds, which underpinned the original judgment, could be sustained.

The Court therefore decided that it "allowed the appeal by the Secretary of State against the making of those declarations".

The Court of Appeal, however, concluded that the Secretary of State had failed to take account of the requirement that he have regard to the Code of Practice for Ministerial Appointments to Public Bodies.
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The Lord Chief Justice said: "It appears to us to be clear that the Secretary of State, in making this appointment, was not bound to comply with the terms of the Code of Practice but it is equally clear that he was obliged to take the requirements of the Code into account when deciding whether to make the appointment."

Mr Justice Girvan (now Lord Justice) ruled on 9 November 2006 that the Secretary of State's appointment of Mrs McDougall was unlawful for several reasons, being in breach of section 76 of the Northern Ireland Act 1998 and in breach of "the accepted merit norms applicable to public appointments" and in breach of the Ministerial Code of Practice and in the circumstances the appointment was in breach of the power of appointment under the Royal Prerogative.

The earlier ruling also said that it failed to take account of the fact that there was "no evidential basis for concluding that the appointee would command cross-community support".

The Secretary of State then appealed this ruling to the Court of Appeal with today's conclusions pointing to both the appeal being 'allowed' and also 'rejected' at one and the same time.

Sinn Féin MLA and Victims Spokesperson Francie Molloy said: "Sinn Féin welcomes the decision by the Court of Appeal on the unlawfulness of the appointment by Peter Hain of Bertha McDougall as the Victims Commissioner in 2005.

"There were serious shortcomings and flaws in the appointment of the Commissioner by the former British Secretary of State and the NIO."

(BMcC)

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