Downes' Application (Brenda)
| Jurisdiction | Northern Ireland |
| Judge | Kerr LCJ |
| Judgment Date | 28 April 2009 |
| Neutral Citation | [2009] NICA 26 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 28 April 2009 |
| Year | 2009 |
1
Neutral Citation No.: [2009] NICA 26 Ref:
KER7491
Judgment: approved by the Court for handing down Delivered:
28/04/09
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
_________
Downes’ Application (Brenda) [2009] NICA 26
AN APPLICATION FOR JUDICIAL REVIEW
BY BRENDA DOWNES
____________
Before Kerr LCJ, Higgins LJ and Morgan J
____________
KERR LCJ
Introduction
[1] This is an appeal from the judgment of Girvan J whereby he granted
judicial review of the decision of the then Secretary of State for Northern
Ireland, the Right Honourable Peter Hain MP, appointing Mrs Bertha
McDougall as the Interim Victims Commissioner. The lawfulness of the
decision to appoint Mrs McDougall was challenged on five separate grounds
that are set out in the first paragraph of Girvan J’s judgment of 9 November
2006.
[2] The judge made an order declaring that the Secretary of State’s
appointment of Mrs McDougall was unlawful for the following reasons: -
1. It was in breach of section 76 of the Northern Ireland Act 1998;
2. It was 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”;
3. The appointment was motivated by “an improper political purpose,
namely, (so called confidence building) which could not be
legitimately pursued at the expense of complying with the proper
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norms of public appointments where merit is the overriding
consideration”; and
4. It failed to take account of the fact that there was “no evidential basis
for concluding that the appointee would command cross-community
support”.
[3] The Secretary of State has appealed that decision on a number of grounds
and a respondent’s notice was served under Order 59 of the Rules of the
Supreme Court (Northern Ireland) 1980 in which further challenges to certain
of the findings of the judge were raised. The respondent was also permitted,
somewhat unusually, to include additional grounds in the Order 53 statement
before the hearing of the appeal and fresh evidence was adduced by both
sides with the leave of the court. In the event, therefore, no fewer than eight
separate issues arise on the appeal, although many overlap or are aspects of
the same ground of challenge. They may be summarised as follows: -
1. The legal authority (prerogative power) to make appointment (and the
manner of the exercise of this power);
2. Whether a relevant factor (cross community support) was taken into
account in the decision-making process;
3. Whether there was an improper motive in the making of the
appointment;
4. Was there a legitimate expectation of advance consultation before the
appointment was made;
5. Did the appointment involve a failure to observe the requirements of
section 76 of the Northern Ireland Act 1976;
6. Was the appointment made in bad faith and did it constitute an abuse
of power;
7. Was the decision irrational;
8. Whether there was a breach of the duty of candour on the part of the
Secretary of State.
The legal authority to make the order
[4] As originally framed, the Order 53 statement asserted that the Secretary of
State did not have lawful authority to make the challenged appointment. It
was argued before Girvan J that there was no statutory or other legal power
to appoint Mrs McDougall as interim commissioner. The judge accepted the
argument made on behalf of the Secretary of State that the appointment fell
within the realm of governance of the Executive and that such an
appointment could therefore be made in the exercise of the Royal Prerogative.
He said this at paragraph [39] of his judgment: -
“I accept Mr McCloskey’s argument that this is a
matter which belongs to the domain of
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