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Civil servant faces court grilling on appointment

(Irish News)

The head of the Northern Ireland civil service has been ordered to face a courtroom grilling over the appointment of Victims Commissioner Bertha McDougall, after a judge said his sworn statement was "shrouded in careful terminology".

Secretary of State Peter Hain may also have to follow him into the witness box.

In the High Court yesterday (Tuesday) Mr Justice Girvan ordered Nigel Hamilton to appear for cross-examination by lawyers for Brenda Downes, who is seeking a judicial review of Mrs McDougall's appointment on the grounds that it did not command cross-community support and was a "sop" to the DUP.

Mrs Downes's husband was killed by a plastic bullet fired by an RUC officer while Mrs McDougall's RUC reservist husband was killed by the INLA.

Ordering Mr Hamilton to attend the hearing, Mr Justice Girvan said the way he had expressed himself in his sworn affidavit was so shrouded in careful terminology that the court was left unclear as to exactly what lay behind his statement that the secretary of state was "mindful" that Mrs McDougall's name had been put forward by the DUP.

"Where a deponent has used language of such an ambiguous nature then the court should grant leave to cross-examine," he said.

The judge had also been asked to order Mr Hain to come to court to counter Mrs Downes's claim that the appointment had fuelled allegations that it was made for ulterior political motives in response to DUP demands for "confidence-building measures".

Mr Justice Girvan said the application was premature but the possibility might have to be looked at again if Mr Hamilton's cross-examination did not clear up what exactly was going through Mr Hain's mind about Mrs McDougall's name being put forward by the DUP.

"The court may have to come to the conclusion that the secretary of state himself will have to give evidence," the judge said.

Seamus Treacy QC, for Mrs Downes, said the question to be determined was whether the appointment of Mrs McDougall was merit-based or was made for an improper motive.

"If it was for the latter then it was done for reasons of political expediency and was not impartial," he said.

Mr Treacy quoted from a document obtained following a court order which stated that Mrs McDougall had indicated to NIO officials that she would find it difficult to regard

those convicted of terrorism in the same category as the broad range of victims.

Bernard McCloskey QC said the secretary of state would have been made aware of the views expressed by Mrs McDougall and therefore had not acted irrationally.

"The secretary of state was briefed that she was the outstanding candidate," he said.

Yesterday's court ruling was another setback for Mr Hain.

Last month the grounds for Mrs Downes's judicial review were widened when the Court of Appeal held that Mr Hain may have acted with "improper motive" in appointing Mrs McDougall.

Three judges said there was "material which suggests that only the DUP was consulted and that, despite having claimed that the candidate should have cross-community support, no inquiry into that was conducted".

The full judicial review hearing was due to start tomorrow but yesterday's decision meant it had to be taken out of the list and will now be heard in September.

July 1, 2006

This article appeared first in the June 28, 2006 edition of the Irish News.

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