by Democrat Reporter
BRITISH DIRECT ruler Peter Hain has refused to suspend top top civil servants after they were criticised by a High Court judge in Belfast last month.
Mr Justice Girvan ordered an "immediate and searching" inquiry into the appointment of Bertha McDougall as Interim Victims' Commissioner after west Belfast resident Brenda Down's challenged the NIO selection.
Justice Girvan said the appointment had been motivated by an "improper political purpose".
Mr Hain rejected calls from the Belfast-based Relatives for Justice group for the immediate suspension of the head of the Northern Ireland Civil Service, Nigel Hamilton, and the Northern Ireland's Office's permanent secretary, Jonathan Phillips. The NIO are accused of attempting to pervert the course of justice.
"Both Jonathan Philips and Nigel Hamilton are outstanding public officials with a tremendous record of dedication," Mr Hain insisted. Mr Hain refused to accept the ruling.
Lord Goldsmith, the Attorney General, has approved an inquiry after the senior judge posed 67 questions about misleading material in three documents that the NIO supplied to the High Court.
Mr Justice Girvan said the inquiry needed to find out if the NIO tried to deliberately mislead the court - which is a criminal act - to hide the DUP's role in a sensitive appointment.
The judge found Mr Hain had failed to acknowledge there was had been no evidential basis for concluding that Mrs McDougall - whose RUC husband was murdered by the INLA - would command cross-community support. Her appointment, he said, was in breach of the accepted merit norms applicable to public appointments.
He concluded that civil servants had "provided partial, misleading and incorrect information" as to the manner of the appointment and that the court had been misled.
The judge added that the departments run by Hamilton and Phillips had also failed to "disclose the true nature of the limited consultation which took place with one political party (the DUP)".
He said there had been a "significant lack of candour" and concluded evidence had been deliberately withheld from the High Court - a matter which should be investigated and which raised serious questions of Mr Hain, Mr Hamilton and Mr Phillips. The later two interviewed Mrs McDougall prior to her appointment and give affidavits to the court, with the authorisation of Mr Hain.
Justice Girvan said Mr Hain, as respondent, had "failed in his duty of candour to the court".
"The inference to be drawn in the circumstances is that the respondent was attempting to divert attention from the true course of events," he said.
He said the NIO and the first ministers' office failed to disclose the "true nature" of the way the DUP Was consulted about Mrs McDougall's appointment to the exclusion of other parties.
The judge said that the departments had implied "that no consultation took place when it had taken place" and gave "the false impression" that the merit principle had been used when, he concluded, it had actually been "disregarded".
"Since within the NIO and OFMDFM 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," the judge concluded.
He said a letter explaining the appointment was "evasive, misleading and in certain respects clearly wrong. The judge singled out Mr Hamilton's affidavit about the appointment's background, saying it had "failed to disclose all irrelevant material". He said it was "ambigious and incomplete" and used "guarded, shrouded and carefully crafted language," to put a misleading "spin on the true situation".
The judge said:
"No explanation was provided as to how the Secretary of State came to approve and sanction the swearing and filing of an affidavid which Mr Phillips acknowledged was incomplete."
"If there has been a significant breach in the duty of candour it poses the question as to why the decision-makers considered it necessary to be less than open and frank in presenting their evidence and in dealing with pre-action inquiries."
NIO officials at heart of further controversies
HIGH COURT criticism of interim victim's commissioner Bertha McDougall's appointment is not the first time that top NIO civil servants have been accused of creating political mischief over the last 12 months,
In April 2006, Nigel Hamilton and the Department of Social Development were heavily criticized for "sectarianising poverty", when £33 million social funding was allocated to Protestant areas in the north.
The move came less than one year after a special Protestant Taskforce was established in 2005, prompted by four days of unionist rioting after an Orange Order march was restricted from passing Belfast's nationalist Springfield Road. The funding move effectively supplanted the government's stated social principle of targeting "objective need" in the north.
The department, under British minister David Hanson, has also been criticised for its public procurement and public-private investment initiatives, worth billions of pounds. The schemes are not subject to equality impact assessments.
Campaigners say this has seriously undermined the effectiveness of Section 75 equality legislation, written into the NI Act 1998.
In May 2006, a judge ruled against a NIO appointment to the Parades Commission. The Belfast High Court give a Garvaghy Road resident leave to challenge the appointment last November of prominent Portadown Orangeman, David Burrows. Mr Hain said he "regretted" the judge's ruling.
A second Orangeman on the commission, Don McKay, resigned shortly before the hearing, after it emerged he had not sought the prior approval of assembly members Dolores Kelly of the SDLP and David Simpson of the DUP, who were named as referees in his application. NIO officials claimed they had not checked his references.
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