In January 2006, Mrs Brenda Downes commenced judicial review proceedings in the High Court in Belfast relating to the Secretary of State for Northern Ireland’s appointment of Mrs Bertha McDougall as interim victims commissioner. At the conclusion of the proceedings, the trial judge, Girvan J, raised a number of issues relating to the way in which the Government have complied with their duty of candour in the proceedings and listed 68 questions that he considered needed investigating. He referred the matter to my predecessor in office, Lord Goldsmith.
Lord Goldsmith told this House on 23 November 2006 that he had decided to appoint an independent reviewer to investigate the concerns raised by Girvan J and to report to him. On 4 December 2006, he announced that he had appointed a very experienced counsel, Peter Scott QC, to carry out the review. His terms of reference were, further to the referral of papers to the Attorney-General by Girvan J and in the light of his judgments of 9 November and 20 November 2006:
to examine the concerns raised by the judge;
to examine in particular the way in which the Government carried out their obligation of candour in the judicial review proceedings relating to the appointment of an interim Commissioner for Victims and Survivors; and
to report to the Attorney-General with recommendations to prevent a recurrence of any shortcomings identified.
Mr Scott completed his review and reported to the Attorney-General on 25 June 2007.
In the course of carrying out a thorough investigation, Mr Scott has said that he received prompt and helpful responses from all those involved and that he believed that he had access to all the material that he required. He found no evidence that warranted police investigation. Nor was there any intention on the part of the individuals involved to mislead or obstruct the court.
Mr Scott has, however, concluded that there were serious shortcomings in the handling of a request under the Freedom of Information Act that preceded the litigation and, in some respects, in the litigation that followed, and he concludes his report by making a number of recommendations aimed at preventing a repetition of the issues that have arisen in this case. The recommendations are in three key areas—the handling of freedom of information requests, the handling of judicial review applications and, finally, on Northern Ireland court procedures. He recommends that, while FoI requests and judicial review proceedings create handling difficulties, both would benefit from greater strategic control and more effective controls over processing, these to be strengthened by regular review to identify and address problems arising. In respect of court procedure, Mr Scott suggests that consideration be given to the adoption of a pre-action protocol, similar to that in use in England and Wales.
I have placed copies of report in the Library. In order to protect the identity of civil servants cleared of any intention to mislead or obstruct the court, with the exception of the most senior officers, the report has been anonymised.