Belfast Telegraph

Tuesday 21 October 2014

Respecting the law? That's just for little people, right?

Courting trouble: Peter Hain is being prosecuted by Attorney General John Larkin

Not since Rachel wept in Rama has such a howling been heard in the land. Rachel was weeping for her children.

David Cameron, David Blunkett, Ed Miliband, the Guardian, the Daily Telegraph, Sammy Wilson, Index on Censorship weep that the right of a Northern Ireland Secretary to slag off efforts to make him answerable for unlawful behaviour is being challenged in the courts.

Peter Hain resigned in January 2008 from the Cabinet position he'd moved on to, not for improper behaviour in office, but for having failed to notify the Electoral Commission of how much he'd spent campaigning for the Labour Party deputy leadership.

A breach of electoral law in Britain and you're out on your ear. But polluting a public appointments procedure in Northern Ireland? No problem.

January 2008 was an action-packed month for Hain. Not only did his political ambitions come to a juddering halt, at least temporarily, but the Law Lords ruled that his November 2005 appointment of Portadown Orangemen David Burrows and Don MacKay to the Parades Commission had been "improper" and "unlawful".

The appointments had been challenged by Joe Duffy, of the Garvaghy Road residents' group, alleging that Hain had breached statutory requirements of impartiality in inviting nominations from the Orange Order, but not from any equivalent nationalist group.

Hain chose not to come to court, but instead sent an official, Carol Moore, to explain that the inclusion of the order on a list of organisations to be asked to nominate was none of Hain's doing: the order had, apparently, been included without his knowledge by another official, who couldn't attend court on account of being on maternity leave.

Lord Justice Nicholson commented: "It's rather remarkable that a decision of that kind should be taken by a middle-management official without consultation. Bizarre, it strikes me."

The court was told that Mr MacKay had named SDLP MLA Dolores Kelly as a referee. Ms Kelly declared that she had supplied no reference and would have refused if she'd been asked.

Ms Moore testified that, in spite of Hain having had the application citing Ms Kelly's support on his desk as he made the appointment, he had paid it no heed: "I am informed by [Hain] and believe that the identity of each of the candidates' (sic) referees (including those of Mr MacKay) played absolutely no part in his decision."

The Law Lords were to comment that "no reasonable person" could have accepted these explanations.

Thus, when it came to consideration by the courts of the appointment of Bertha McDougall as Interim Victims' Commissioner - the issue at the heart of the current imbroglio - Hain had form.

The October 2005 appointment of Ms McDougall, the widow of a reserve police officer gunned down by the INLA in 1981, was queried by Brenda Downes, whose husband had been killed by a rubber bullet in 1984.

The NIO told Ms Downes (in response to a Freedom of Information Act request) that "No consultation was considered necessary and none took place". Ms Downes applied for a judicial review - the beginning of the proceedings now back in the news.

In the Court of Appeal in May 2006, the NIO stood by its FOIA position: no political group had been consulted. Unfortunately for the NIO, Jeffrey Donaldson, responding to journalists' questions, had already said that the DUP had been "fully consulted". The court allowed a judicial review, before Mr (now Lord) Justice Girvan.

Northern Ireland Civil Service boss Nigel Hamilton swore an affidavit to Girvan's court, which he testified had been approved by Hain.

It was now admitted that the DUP had "suggested" Ms McDougall. Ms Downes applied to cross-examine Hamilton and, if necessary, to have Hain summoned for an explanation of the disparity. Girvan agreed.

The NIO wasn't much impressed.

The response came in the form of another affidavit authorised by Hain, from political director Jonathan Phillips, conceding that it had been Hain, not the DUP, who had made the first move, asking the party whom it would like appointed and being told: Bertha McDougall.

Girvan commented that the explanations previously provided under oath for the appointment had clearly been "evasive, misleading and in certain respects plainly wrong". He ordered an inquiry.

Hain said he'd think about it.

Girvan moved swiftly to disabuse Hain of the notion that it was up to him to decide whether the inquiry into his own behaviour ordered by the court should happen.

In his autobiography, published in January, Hain made critical reference to Lord Justice Girvan.

This, then, is the background to the case being taken by the Attorney General, John Larkin, which appears to have united in anger the entire British and Irish political and media establishments.

Respect the law? That's for little people, the great - and supposedly good - all agree.

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