Neutral Citation No. [2010] NICA 8	Ref:     	GIR7762

Judgment: approved by the Court for handing down	Delivered:	16/03/10	
(subject to editorial corrections)*			

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
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ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
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QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
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Williamson’s (Michelle) Application [2010] NICA 8

IN THE MATTER OF AN APPLICATION BY MICHELLE WILLIAMSON FOR JUDICIAL REVIEW OF DECISIONS OF THE FIRST MINISTER AND DEPUTY FIRST MINISTER
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Before: Morgan LCJ, Higgins LJ and Girvan LJ
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GIRVAN LJ (delivering the judgment of the court)

Introduction

[1]	This is an appeal brought by Michelle Williamson (“the appellant”) against the decision of Gillen J who dismissed two judicial review applications.  In the first of these on 28 February 2008 the appellant sought judicial review of the decision made by the First Minister (“FM”) and deputy First Minister (“dFM”) announced to the Northern Ireland Assembly on 28 January 2008 whereby they appoint four Commissioners Designate for Victims and Survivors.  In the second application the appellant sought judicial review of the decision made by the FM and dFM to appoint the same four Commissioners Designate as Commissioners under the Commissioner for Victims and Survivors Act (Northern Ireland) 2008 (“the 2008 Act”).  Following a number of interlocutory applications Gillen J heard the substantive applications in late May and early June 2009.  He gave judgment with commendable expedition on 30 June dismissing the applications.  

[2]	On the hearing of the appeal Mr Macdonald QC and Mr Donaghy appeared on behalf of the appellant.  Mr Maguire QC appeared with Mr McMillen on behalf of the respondents.  The court is indebted to them for their carefully presented and cogent arguments, the high quality of their skeleton arguments and the very helpful chronology prepared by counsel for the appellant.

The relief sought in the judicial review applications 

The first application

[3]	In her first application the appellant sought to quash the decision of 28 January 2008.  She sought a declaration that the Ministerial decision was not made in furtherance of the Victims and Survivors Order (Northern Ireland) 2006 (“the 2006 Order”) which made provision for the appointment of a single Commissioner.  It was her case that the decision was unlawful and ultra vires the powers of the FM and dFM; that it breached Section 76 of the Northern Ireland Act 1998; and that it was motivated by improper political considerations.  It was her case that the repeated deferment of the appointment of a single Victims’ Commissioner and the decision to conduct a second round of applications and to make the impugned appointments were actuated by improper political considerations and in breach of Section 76, being made on grounds of religious belief and/or political opinion.  It was her case that there had been a failure to comply with the requirement to make an appointment of a single Victims’ Commissioner on merit in accordance with the Code of Practice for Ministerial Appointments for Public Bodies (“the Code”).

The second application

[4]	In her second application the appellant sought to quash the decision made on 28 May 2008 appointing the four Commissioners Designate as the Commissioners under the 2008 Act.  She sought a declaration that the decision was unlawful and ultra vires; that the decision breached Section 76 of the 1998 Act; and that the appointments were pre-determined and made in circumstances in which the FM and dFM had unlawfully fettered their discretion.  She further relied on the ground that the appointments made under the 2008 Act were pre-determined by the FM and dFM in accordance with their flawed decision under the 2006 Order on the same unlawful basis and therefore were made in circumstances in which the FM and dFM failed to exercise any discretion under the 2008 Act and had failed to conduct any proper process under the Act.

The Issue of Victims and Survivors in Northern Ireland

[5]	Issues relating to reconciliation and to the victims of violence in Northern Ireland were touched on in the Good Friday Agreement of April 1998.  In Section 6 of the Agreement relating to Rights, Safeguards and Inequality of Opportunity under the sub-heading Reconciliation and Victims of Violence it was recorded that the participants believed that it was essential to acknowledge and address the suffering of victims of violence as a necessary element of reconciliation and they looked forward to the results of the work of a Northern Ireland Victims Commission.  It envisaged the provision of services that were supportive and sensitive to the needs of victims and the allocation of sufficient resources to that end.  It is to be noted that the Agreement did not seek to be prescriptive as to the constitution and organisation of the envisaged commission.  

[6]	In August 2001 a Consultation Paper on victims’ strategy was published by the devolved administration and by the Ministers with joint responsibilities for victims.  One of the issues raised was the question whether a Victims’ Commissioner should be established.  In April 2002 the Victims’ Unit published a paper called “Reshape, Rebuild, Achieve”.  At that stage the view was taken that the arguments for the need for a commissioner were not established.  However later in March 2005 the Secretary of State announced proposals for a Victims and Survivors Commissioner and published a further Consultation Paper, paragraph 59 et seq of which dealt with proposals to establish a Commissioner for Victims and Survivors having a key role in promoting the interests of victims and survivors.  The consultation period ended in March 2005.  The Government was satisfied that the need for the appointment of a commissioner was established and concluded that legislation would be introduced to establish the post.  Before the introduction of the legislation an Interim Commissioner was appointed.  In due course the Victims and Survivors (Northern Ireland) Order 2006 gave legislative effect to the policy choice.  The 2006 Order was made on 14 November 2006 and commenced in February 2007.

The Victims and Survivors (Northern Ireland) Order 2006

[7]	The 2006 Order by Article 4 provided:

“(1)	There shall be an officer known as the Commissioner for Victims and Survivors for Northern Ireland.

(2)	The Commissioner shall be appointed by the First Minister and deputy First Minister acting jointly.

(3)	The schedule has effect in relation to the Commissioner.

(4)	This article shall cease to have effect on such day as the First Minister and deputy First Minister acting jointly may by order appoint.

(5)	An order under paragraph (4) may include such transitional provisions as appear to the First Minister and deputy First Minister to be appropriate.

(6)	No order may be made under paragraph (4) unless a draft of the order has been laid before, and approved by a resolution of, the Assembly.”

The principal aim of the Commissioner was to exercise the functions under the Order to promote the interests of victims and survivors.  Article 6 set out the duties of the Commissioner.  These included the promotion of awareness of matters relating to the interests of victims and survivors and the keeping under review of the adequacy of the laws and practices affecting the interests of victims and survivors and services provided for them.  Article 7 conferred various powers on the Commissioner including the issue of guidance on best practice, the provision of advice and information, the undertaking and commissioning of research and educational activities and the publication of the outcome of such work. 

[8]	Article 8(1) to (3) provided:

“(1)	The Commissioner shall, at such time and in such form and in respect of such period as the First Minister and deputy First Minister acting jointly may direct, prepare and submit to the First Minister and deputy First Minister a programme of his proposed activities in exercise of his functions (referred to in this article as ‘a work programme’).

(2)	A work programme submitted to the First Minister and deputy First Minister under this Article shall include:-

(a)	in respect of each activity mentioned in the programme, an estimate of the Commissioner’s expenditure and receipts;

(b)	such other matters as the First Minister and deputy First Minister acting jointly may direct;

(c)	before submitting a work programme under this Article the Commissioner should consult such bodies or persons as he thinks fit.”

The First Minister and deputy First Minister were empowered to approve any work programme.  When a programme was approved the Commissioner was required by Article 8(7) to carry out the activities of the work programme approved under the Article in accordance with that programme.  He was obliged not to carry out activities or incur expenditure in any period except in accordance with the work programme as approved.  

The appointment process

[9]	The post of Commissioner was advertised in January 2007 with a closing date for applications of 16 February 2007.  The advertisement indicated that in expectation of a restoration of the Executive on 26 March the appointment would be made by the FM and dFM acting jointly but if restoration was not achieved the appointment would be made by the Secretary of State.  The advertisement also indicated that the OFMDFM was committed to the principle of public appointments being based on merit, independent assessment, openness and transparency.  

[10]	In preparation for the placement of advertisements a person specification setting out the essential criteria for the Commissioner was drawn up and agreed by the Secretary of State.  The essential criteria, designed for the post of a sole commissioner, were a commitment to promoting the interests of victims and survivors, awareness of the consequences of the conflict in Northern Ireland and similar situations elsewhere, ability to work with people from different sections of the community, ability to empathise with and to communicate with individuals who had suffered bereavement, psychological or physical injury and their carers, presentational skills, ability to work with the media and experience in office management and effective use of resources.

[11]	Of the 46 applicants 14 were invited to interview.  One withdrew.  Interviews were duly held between 12 and 20 March 2007.  6 candidates were considered to meet the essential criteria for appointment and they were believed to represent a broad range of experience and activity.

[12]	The FM and dFM were briefed on 4 April 2007 on the process to date. Mr Clarke, the Head of the Victims’ Unit prepared a submission on 22 May 2007 inviting the Ministers to consider how they would like to proceed.   On 8 May 2007 Mr Clarke made a submission to the Ministers recommending that they determine which of the candidates considered by the Selection Panel met the relevant criteria and was to be appointed as the Commissioner.

[13]	In the course of June the FM and dFM indicated that they expected to make an appointment shortly.  However, on 5 July 2007 following a meeting of the Ministers they sought advice on the option of stopping the current process and commencing a fresh competition.  In his submission of 11 July 2007 Mr Clarke advised against that step which he opined “would lack credibility”.  However the Ministers wished to continue to explore the option of a new competition. Between September and October 2007 discussions and meetings took place and legal advice was taken.  On 8 October the FM and dFM announced that they had decided to extend the process and re-advertise the post.  The FM and dFM made a joint statement to that effect setting out their reasons.  The FM denied that he and the dFM were at loggerheads over the appointment.  They had taken time to consider the best way forward.  It was important that the person appointed to the post had the full democratic endorsement associated with the process.  The Ministers believed that some potential candidates may have been deterred from putting their names forward during Direct Rule because they could not have been confident of securing the broad political support of the local parties that would be needed to become a true champion of victims and survivors in Northern Ireland.  The dFM stated that the Ministers had not played politics with the issue.  They had deliberated long and hard before jointly coming to what they both emphatically believed to be the right decision.  They asked that no one should play political games with the decision. The dFM indicated that the final state of the process would involve a presentation to the FM and himself personally by all candidates deemed appointable.  He stated that the FM and dFM intended to announce the new Commissioner for Victims and Survivors before the end of the year.

[14]	A meeting took place on 17 October 2007 between the Commissioner for Public Appointments for Northern Ireland (“the CPANI”) and the FM and dFM and various officers of the OFMDFM.  The Commissioner suggested that a new Panel should carry the process forward.  She considered that the positive response to the advertisements supported the view that the re-advertisement would widen the field of potential candidates.  The notes at the meeting indicated that the FM and dFM wished to take into account the views of the CPANI with whom they wished to work closely.  The CPANI was given full access to all the papers relating to the appointment process.

[15]	The new Panel met on 17 November to lay down the procedures to be followed in the new process.  It was agreed that Mr Clarke who had been involved in the earlier Panel would not take part in the new selection process.  To avoid any unfair advantage to candidates interviewed previously it was decided that the presentations would be different this time.  The FM and dFM were asked to agree the procedures recommended on 13 November 2007 and did so on 15 November 2007.  Interviews took place between 26 November and 3 December 2007.

[16]	A submission was made by Mr Clarke to the FM and dFM.  Eight candidates were deemed appointable, 5 from the first panel and 3 from the second.  One of the 8 withdrew due to bad health.  Presentations were made by 7 of the candidates between 11 and 19 December 2007.  Apart from the FM and dFM two junior ministers, Mr Paisley, Junior and Mr Kelly, were also in attendance together with Mr McMillan, a civil servant.  Apparently no written note was kept in relation to the course of the presentation process.  Discussions took place between the Ministers on 19 December relating to the appointment as evidenced by an e-mail between officials.  Further discussions took place on 28 December and 8 January 2008.  No written note was kept of any of those discussions. There was no legal duty on them to do so.

[17]	On 8 January 2008 the FM and dFM informed officials that they were minded to appoint 4 people whom they believed would collectively do the best job for victims and survivors.  They accepted that this could not be done under the existing 2006 Order and that new legislation would be required.  They asked officials to seek legal advice as to whether it would be possible to appoint four people from the current competition.  They explained that the posts the four would be filling would not differ in content from the Commissioner’s role as set out in the 2006 Order.  Paragraph 40 of the affidavit of Mr Rooney, deputy secretary in the OFMDFM, states that legal advice was received as to the legal issue and a meeting with the legal advisor took place on 8 January 2008.

[18]	An urgent meeting was set up with the CPANI.  On 11 January the FM and dFM informed the CPANI of their intention to appoint 4 Commissioners.  The CPANI agreed to reflect on the issue and to contact officials with her views on whether this would be appropriate in the context of the public appointments process.  Later that day the OCPANI stated that the CPANI was content with this approach, provided it was clear that all of the prospective appointees had met all the criteria as advertised including the cross-community element and that the reason for appointing 4 Commissioners was that they would collectively do the best job for victims and not that it would resolve any cross-community issue.

[19]	A memo of 11 January 2008 from the Private Secretaries of the FM and dFM to Mr McMillan recorded the conclusions of the FM and dFM in relation to the outcome of the appointments process.  These can be summarised as follows:

(a)	The FM and dFM wanted to appoint 4 Commissioners.  They had identified individuals with skills and expertises who they believed collectively would do the best job for victims.

(b)	They recognised a need for new legislation as a matter of urgency after the necessary public consultation.

(c)	Although they were proposing 4 Commissioners the posts would be the same as the post advertised.  The Commissioner would be doing the same work for victims and survivors, the only difference being that they would be working with three other colleagues.  The criteria and skills assessed were the essential criteria relevant to each Commissioner’s post.

(d)	The CPANI was content.

(e)	The Ministers wanted to announce their intentions to the Assembly the following week.  Meantime it would be necessary to ascertain whether the candidates identified would be willing to accept the posts. They were to be asked in writing whether they would be prepared to accept appointment on those terms.

[20]	Internal documentation within the OFMDFM indicated some difficulty on the part of the civil servants in understanding the Minister’s intentions.  A draft letter was prepared and it was approved and sent on 17 January 2008 to each of the proposed appointees namely Marie Breen Smyth, Mike Nesbitt, Patricia McBride and Bertha McDougall.  The letter asked the recipient to state whether he or she would be willing to act as a Commissioner in a Victims’ Commission.  The letter stated that this would require an amendment to the legislation and the letter asked the recipient to state if he or she would in principle agree to be a Commissioner subject to amendments to the legislation.  The letters as sent in fact followed a phone call to each of the four preferred candidates in which they were asked whether they would be willing, subject to amendments to the legislation, to accept appointment.  It appears from the letter sent on 13 January 2008 by Ms Marie Breen Smyth to the FM and dFM that it was proposed that the four would be employed on a consultancy basis in the intervening period until the legislation could be put in place so that the work of advancing the interests of victims could move forward.

[21]	In subsequent correspondence Ms Smyth indicated her concerns about the change of approach in relation to the appointment.  She was of the view that the creation of four Commissioners’ posts would produce additional cost and the four Commissioners would be under-employed.  The equal status of the four Commissioners would create organisational and management difficulties and lead to the possibility of divergent views and approaches.  She had doubts about the viability of interim arrangements to employ commissioners on an ad hoc consultancy basis.  She considered that there was a material change in the job description.  The nature and extent of the consultancy post proposed was unclear.  She pointed out that it would be very difficult to reach a sound conclusion without knowledge of the identity of the three other candidates.  She was concerned that the competency based assessment process which was designed to be fair and transparent and facilitate the clear identification of the best candidate for the job had apparently been set aside.

[22]	Subsequently two political advisors visited Ms Smyth on 14 January but they were unable to dislodge her from the views that she had formed in relation to the matter and further correspondence confirmed her reservations in relation to the proposed approach.  A letter was sent to the four candidates on 17 January 2008.  Ms Smyth remained unable to respond definitely without the additional information that she requested.  Subsequently in correspondence from the Private Secretaries of the FM and dFM the Ministers expressed their regret that she was unable to respond positively to the letter of 17 January.  

[23]	On 22 January 2008 a joint meeting took place between the FM and dFM to discuss the steps required to make the announcement to the Assembly on the outcome of the process.  According to Mr Rooney’s affidavit there was discussion making it clear that it had to be borne in mind at all times that the Commissioners Designate would not be the Commissioners and there would not be a Commission until the legislation had been amended.  It was specifically stated that they should not be referred to as Commissioners and the Ministers should be careful not to be seen to pre-empt the will of the Assembly.  On that date a letter was sent to a fourth person as a substitute for Ms Smyth who indicated acceptance of the proposal.

The Ministerial Statement

[24]	On 28 January the FM and dFM announced to the Assembly the intention to appoint four Commissioners.  During his statement the FM said:

“Our firm belief is that a team of four Commissioners working together, in essence a Victims’ Commission, is the best way forward.  Given the significant backlog of urgent work and the range of difficult challenges that face us in this area, these four people will have much more capacity to engage directly with the victims and survivors than a single Commissioner.  To put it simply, they will be much more personally available to victims and survivors than a single Commissioner. 

For example a single Commissioner would inevitably have had to delegate many activities including consultation and liaison to a secretariat. It would also have been inevitable that many specific projects would have had to be undertaken by consultants.  The four Commissioners will be expected to undertake these and other important tasks themselves – although obviously administrative support will be provided for them.

Accordingly, I am pleased to announce that, in response to an invitation, four of the candidates on the list of those considered suitable for the post of Commissioner have indicated their willingness to act in a joint capacity as Commissioners Designate in a new Victims and Survivors Commission.  The four people who will make up the new Commission are Brendan McAllister, Patricia McBride, Bertha McDougall and Michael Nesbitt.

We anticipate the Commission will have the same functions as the post of Victims’ Commissioner described in the Victims and Survivors (Northern Ireland) Order 2006.  It is our intention to make formal appointments in due course, but we must introduce the necessary legislation to create the Victims and Survivors Commission that I have described today.  A Bill to provide for the establishment of the Commission will be introduced as soon as possible.  Subject of course to the decision of the Assembly we will wish to proceed with the formal appointments as soon as possible thereafter.

I want to make it clear that in the interim there is much important work for the four Commissioners Designate to carry out.  We want them to sit down together and to get to grips with setting out an agreed work programme for the new Commission ….”

The dFM in his statement stressed that at no stage in their deliberations did the FM and dFM have a situation where the First Minister proposed someone and the dFM proposed an alternative.  He said:

“That never happened.  Some people might greet that with incredulity but it is a symbol of the way in which he and I proceed with business.  We are conscious of the need to take the right decision.  Therefore I can say without fear of contradiction that we were never in a position of disagreement on the way forward.”

He went on to say:

“Other commentary over the weekend stated that the First Minister and I appointed Victims’ Commissioners Designate who have particular appeal to one section of the community or the other.  Again nothing could be further from the truth.  We expect the four Victims’ Commissioners Designate to engage with everyone in society and to lend a sympathetic ear to everyone who has been affected by the conflict.  We do not wish to create a situation whereby people will have a particular view of the politics and allegiances of the Victims’ Commissioners.  We are moving forward on the basis that these four people must represent the interests of all victims and survivors without fear or favour.”

He further stated:

“The Commissioners will work by consensus.  When I met the Commissioners Designate I cited the example that the First Minister and I have given since we took office – working positively and constructively together.  Although there will be times when people do not agree, the trick is to find solutions to the problems faced.  That is what the First Minister and I have attempted to do during our stewardship of the Office of the First Minister and Deputy First Minister.  That message was not lost on the Commissioners Designate, and they will do a good job.  Although the jury will be out on them for a short time, I have tremendous confidence in them.”

The 2008 Act

[25]	A Commission for Victims and Survivors Bill was introduced in the Assembly on 31 March 2008 and received a second reading on 1 April the Bill provided for amendment of the 2006 Order.  The amendments were intended to achieve the sole purpose of establishing a Commissione to have the same role and functions as envisaged in the 2006 Order for a single Commissioner.  The Assembly agreed to accelerate passage of the Bill.  The Bill was duly passed as the Commissioner for Victims and Survivors Act (Northern Ireland) 2008 and received the Royal Assent on 23 May 2008 and the Assembly was so informed on 27 May 2008.  The Commission under the Act is given the powers and duties previously to be vested in the Commissioner under the 2006 Order.

The appointment of the Commissioners

[26]	Following the enactment and coming into force of the 2008 Act the FM and dFM met with officials on 28 May 2008 and confirmed that with the legislation in place they wished to proceed with the appointment of the four individuals identified as Commissioners Designate to the Commission for Victims and Ssurvivors.  Their decision was made followed by a formal recommendation by Mr Jack that the Ministers confirmed their decision to appoint the four Commissioners Designate as members of the new Commission and to issue letters offering them membership.  Letters were duly sent to the four Commissioners Designate and each of them in turn accepted the appointment.

The key legal questions

[27]	The trial judge identified the following questions as the key legal questions for determination in the course of the two judicial review applications.

(i)	Did the Ministers have legal authority to appoint four Commissioners Designate for victims and survivors on 28 January 2008?

(ii)	Were the Ministers decisions actuated by improper political considerations, religious belief, political opinion or made in breach of Section 76 of the Northern Ireland Act 1998?

(iii)	Did the Ministers fail to comply with a requirement to make an appointment on merit in accordance with the applicable guidelines, namely the Code?

(iv)	Was there was an improper failure to consult in relation to the decision to introduce the 2008 Bill leading to the 2008 Act?

(v)	Were the appointments under the 2008 Act pre-determined and did the FM and dFM unlawfully fetter their discretion and fail to exercise a discretion under the 2008 Act properly?

The judge rejected the appellant’s arguments in relation to each of those questions.  His judgment provides a helpful distillation of the essential issues and supporting arguments.

The legal authority to appoint the Commissioners Designate

[28]	Once the 2008 Act was enacted and the four Commissioners were formally appointed under that legislation the true focus of the appellant’s challenge inevitably shifted.  As in the case of Shrewsbury and Atcham Borough Council v Secretary of State for Communities and Local Government and Shropshire County Council [2008] EWCA Civ. 148 there would be no purpose in the court setting aside the pre-2008 Act decisions while leaving the post 2008 Act decisions in place since it is only the latter which provides the direct legal foundation for the actual appointment of the Commissioners who are currently in office.  As Carnwath LJ put it in that case:

“The only legal issue which ultimately matters is the legal effect of the (December decisions) and the steps taken pursuant to them.  This issue must be considered in the context of the statute under which they were purportedly made.  Previous events are material only to the extent that they impinge on the legality of their actions.”

At the heart of the appellant’s challenge to the appointments under the 2008 Act is the contention that the decision to appoint the Commissioners Designate rubberstamped as Commissioners under the 2008 Act the Commissioners Designate whose appointment was itself legally flawed.  In making the appointments under the 2008 Act the Ministers proceeded on the erroneous basis that their decision to appoint them as Commissioners Designate was lawfully made.  

[29]	There is little doubt that when enacting the 2006 Order the legislature envisaged the appointment of a single Commissioner with the statutory powers set out in the Order.  There was no statutory power to appoint more than a single Commissioner.  The question is whether the statutory scheme for creating a single commissionership with the statutory powers conferred by that Order expressly or implicitly excluded any residual power on the part of the Executive, whether under the prerogative or under ordinary governmental powers, to appoint individuals to carry out some of the functions which it was envisaged would be exercisable by the single Commissioner when appointed.  The “inconsistency principle” emerges from Attorney General v De Keyser’s Royal Hotel Limited (1920) AC 508 and was succinctly stated by Lord Browne-Wilkinson in R (Fire Brigade Union) v Secretary of State for Home Office [1995] 2 AC 513.  At 552D he said:

“It would be most surprising if, in the present day, prerogative powers could be validly exercised by the Executive so as to frustrate the will of Parliament expressed in the statute and, to an extent to pre-empt the decision of Parliament whether or not to continue with the statutory scheme even though the old scheme has been abandoned.  It is not for the Executive to state as it did in the White Paper that the provisions in the Act of 1988 ‘will accordingly be repealed when a suitable legislative opportunity occurs’.  It is for Parliament not the Executive to repeal legislation.  The constitutional history of this country is a history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature of the sovereign body.  The prerogative powers of the court remain in existence to the extent that Parliament has not expressly or by implication extinguished them.”

[30]	As Gillen J concluded, the respondents were not under an obligation to implement the provisions of the 2006 Order within any prescribed time limit.  Where the view had been formed by the Ministers pursuant to a legitimate policy decision that it was appropriate to propose amending legislation to change the statutory structure of the framework for dealing with victims’ issues it would have made little sense to proceed to appoint a single Commissioner.  Ministers must have the capacity to reformulate governmental policy in the light of changing circumstances.  However, pending a change in the law the existing law, of course, remains in force and is applicable until any change is approved and enacted by the legislature in accordance with constitutional norms.  The 2006 Order, however, did not compel the appointment of single Commissioner at any particular time.  The question is, as it was in Shrewsbury and Atcham, whether the existing legislation covered the whole of the relevant field. If it did, there was no residual common law power.

[31]	If the Ministers were entitled to decline to appoint a single Commissioner pending a conclusion by the Assembly as to whether or not to pass the proposed new legislation there would inevitably be a period of time in which the functions of a single Commissioner would not be exercisable.  During that period the issue of victims and survivors remained very much alive and did not disappear. The promotion of new legislation requires the taking of extensive preliminary steps. Such steps will often involve an early consideration of issues which are intended to be the subject of statutory responsibilities by those who are likely to be subject to those responsibilities. Such preliminary work will not offend the inconsistency principle as long as it does not stray into the territory occupied by statute. Any recognition of the responsibilities which the Commissioners Designate would acquire under a new statutory regime could not, of course, offend this principle. The main argument advanced by the appellant related to the statutory requirement under the 2006 Order to prepare and submit a work programme. In our view a distinction is to be drawn between the preparation and submission of a statutory programme and preliminary work associated with an anticipated statutory scheme. There is no doubt that consideration of the work programme by the Commissioners Designate was intended in the period from January 2008 until their appointment under the 2008 Act in May 2008 but their first work programme was not completed and agreed until February 2009. The evidence indicates that between January and May 2008 the Commissioners Designate were engaged in preliminary work which did not offend the statutory scheme established by the 2006 Order.

[32]	Accordingly, we agree with Gillen J’s conclusion that the FM and dFM did have the power to decline to make an appointment of a single Commissioner and, having decided not to do so, they had a power to appoint four individuals to carry out preparatory work which was intended to advance the interests of victims and survivors.  The nomenclature “Commissioner Designate” indicated that they were in effect shadow commissioners pending and subject to the passing of new legislation.  Had the proposed legislation been rejected the FM and dFM would have been bound to give effect to the will of the Assembly and the legislation still in force.  They could not have indefinitely declined to appoint a single Commissioner for to have done so would have frustrated the legislature’s intent.  Nor could they have appointed four Commissioners in such circumstances.  That, however, was not the position.

The question of improper considerations.

[33]	The appellant’s case was that the respondents declined to disclose and explain the facts and reasoning behind their decisions.  According to Mr Macdonald as a matter of law they were bound to disclose the details of their deliberations to the extent necessary to enable the court to decide whether they acted lawfully.  He contended that the Ministers were at fault in not keeping proper minutes and in not recording their reasons.  The way in which they proceeded and their refusal to provide evidence to the court should lead the court to draw adverse inferences against them.  It was argued that the Ministers protracted delay showed disagreement between them. The whole process gave rise to the inference that the Ministers reached a conclusion which was motivated by improper political considerations and political manoeuvring resulting in an appointment that clearly sought to produce an outcome of balanced representation of the two Northern Ireland communities.  That was a discriminatory outcome.  Mr Macdonald pointed out that one individual is currently pursuing a claim of religious and political discrimination.  

[34]	The duty of candour was summarised in paragraph [21] in Re Downes [2006] NIQB 77 and Quark Fishing Limited v Secretary of State for Foreign Affairs [2002] EWCA 149.  In the latter case Laws LJ pointed out that if the court had not been given a true and comprehensive account but has had to tease the truth out of late discovery it may be appropriate to draw inferences against the Minister upon points which remain obscure.

[35]	The factual situation in Re Downes was materially very different from the present case in terms of how the evidence was produced and the accuracy of the material put before the court and the manner of its disclosure at various stages.  In the present case there has been disclosure of material documents and there were detailed statements by the Ministers to the Assembly where they were answerable pursuant to the democratic process.  Once it is clear that there were no minutes of Ministerial meetings between the FM and dFM other than those disclosed Mr Macdonald’s criticism of lack of supporting minutes and records of ministerial meetings is, in reality, a criticism of the way the Ministers organised and recorded their ministerial meetings and discussions.  However, the question whether the Ministers might have done things differently or in a better or more systematic way is not a matter for the court.  These are matters that fall within the realm of the proper administrative discharge by Ministers of their duties, a matter for debate in the Assembly rather than before the court whose sole function is to determine the lawfulness of ministerial actions.  There is no legal requirement for the maintenance of particular records or minutes of ministerial meetings.  Joint decision-making by two Ministers acting jointly is a novel form of constitutional arrangement, as Mr Maguire pointed out in his submissions.  How the power is exercised will depend on matters such as the nature of the issues under consideration, the relationship between the individual Ministers, their way of going about things and their views on how it is best to try to reach a consensus.  Different Ministers will have different approaches and they must work out for themselves what they consider to be the most suitable modus operandi.  To draw adverse inferences from a lack of documentation by the FM and dFM would be unfair as an adverse inference can only be properly drawn if the evidence leads to the clear conclusion of improper conduct on the part of the decision-makers.  The evidence does not justify   such an inference in this case.

[36]	Since there appears to be a pending discrimination claim brought by an individual it would be inappropriate for this court to make further comment on that point.  Discrimination claims raise quite distinct procedural and evidential issues as compared to a public law challenge.  A conclusion by this court for public law purposes that it has not been shown that there was discriminatory or improper motivation on the part of the Ministers will not be determinative of any matter that arises for determination in an actual discrimination claim though a tribunal would, no doubt, be mindful of the matters to which we refer in paragraph [36].

[37]	For the purposes of the appellant’s public law challenge we must accordingly conclude that Gillen J was correct to hold that there was no evidence that the Ministers were actuated by improper political considerations or acted in breach of Section 76 of the 1998 Order on the grounds of political opinion or religious belief.  That is a conclusion which must be reached on the evidence since the court should read Ministers’ statements to the Assembly in bonam partem in the absence of countervailing evidence (of which there is none).

Alleged breach of the Code

[38]	The CPANI’s statutory role is to regulate monitor and report on ministerial appointments to executive non-departmental public bodies and Health and Personal Social Services bodies.  Other public appointments, such as the appointment of a Victims’ Commissioner or Commissioners, falls outside her statutory remit.  However, the Northern Ireland Departments have agreed, as far as practicable and with due regard to proportionality to apply the Code published by the Commissioner in March 2005.  The Code sets out the regulatory framework for public appointments based on the principles recommended by the Committee of Standards on Public Life.  These include accountability, openness and objectivity.  Paragraph 1.7 of the Code indicates that as the range of appointments is so varied occasionally a situation may arise not covered by the Code.  In that event the Office of the CPANI (“OCPANI”) must be informed.  Similarly any significant proposed departure from the proscribed process must be discussed with the office and the outcome duly recorded.  The principles underpinning the Code are stated in Chapter 2.  These include the principle of ministerial responsibility, the merit principle and openness and transparency.

[39]	In the context of ministerial responsibility paragraph 2.3 states that to ensure that Ministers can fulfil their role properly departments must agree appointment criteria and the process to be followed with Ministers at the outset to avoid disruption of the process.  Once the process is underway the criteria are not to be changed.  To gain public confidence the workings of the appointment system must be clearly visible.  All stages of the process including relevant conversations must be documented and the information should be readily available for audit.  All information should be stored for a minimum of two years.  Paragraph 2.18 indicates that while the Code sets out the minimum measures that departments are required to implement within the framework  Departments have flexibility to adopt their approach as they consider most suitable and effective.  These include special factors relevant to the appointment.  Paragraph 2.20 states:

“The Commissioner can grant specific exemptions where it is judged they are justified by exceptional circumstances.”

[40]	The appointment process is dealt with in Chapter 3 and envisages three stages namely planning, preparation and selection.  At the selection stage decisions arising from interviews and conversations including those to reject must be fully documented.  Candidates must only be assessed against the criteria which have been included in the role and personal specifications.  The ultimate stage in the process is the final ministerial decision.  The Panel may provide a list of candidates and merit order and it may follow a less strictly defined approach where candidates passing a grade mark may be recommended but not ranked.  

[41]	If a Minister wishes to set aside any of the provisions of the Code the department is advised to consult the CPANI.  Where instances of non-compliance with the Code occur the CPANI may decide to comment publicly on the decision and require that any announcement made by the Department make it clear that the required procedure had not been followed.  It follows that the Commissioner may not require compliance with the Code.

[42]	In Re Downes [2009] NICA Kerr LCJ stated:

“[12]	It appears to us to be clear that the Minister making his appointment was not bound to comply with the terms of the Code of Practice but it is equally clear that he was obliged to take the requirement of the Code into account in deciding whether to make an appointment.  To this extent there is a restraint on the exercise of the Royal Prerogative.  We consider that the Minister was required to have regard to the terms of the Code before he made the appointment and should at least have sought to comply with them.”

[43]	It is clear that in reaching their decision the Ministers did not leave out of account the Code or the role of the CPANI who was involved at relevant stages in the process with the FM and dFM who made it clear that they wished to work closely with the CPANI.  She was satisfied with the procedures up to the ministerial conclusions.  She then met the Ministers on 11 January 2008 to discuss their intention to appoint the Commissioners Designate.  She confirmed that she was content provided that all the prospective appointees had met advertised criteria and that the reason for appointment was that they would collectively do the best job for victims and not that their appointmentwould remove any cross-community issues.  The Ministers were thus clearly aware of what the CPANI regarded as appropriate under the Code and the factors that they should take into account in finalising their decision.  Reading the subsequent Ministerial Statements to the Assembly in bonam partem and having no evidence that the Ministers disregarded the CPANI’s conditions for approval we are bound to conclude that the Ministers took into account the terms of the Code before they made the appointments and sought to comply with the Code.  There is thus no evidence that the Ministers acted unlawfully in relation to their obligation to have proper regard to the terms of the Code.

[44] Mr Macdonald argued that the criteria which were drawn up for the purpose of appointing a single Commissioner required to be changed once consideration was being given to appointing four Commissioners. A team of four is a different thing from a single post holder and the criteria needed to reflect that. Furthermore the presentations made to the FM and dFM were made in the context of an appointment of one Commissioner. The Ministers’ investigation of the merits and suitability of appointees for a single post would or should have been different from an inquiry into candidates’ suitability for joint posts as four Commissioners. However, the CPANI clearly accepted that the procedure as followed was within the spirit and intent of the Code or she was happy to treat the process as acceptable in the event. The Ministers did direct their minds to the question whether the candidates could work together and carry out the functions involved in furthering the interests of victims and survivors. Their approach was a tenable one and it could not be said that they left out of account relevant considerations in reaching their decision.

 Lack of consultation

[45]	It was Mr Macdonald’s case that the Act was passed without the necessary consultation and he referred to the confidential memorandum from the Private Secretaries of the FM and dFM on 11 January 2008 which referred to a decision to take the necessary amending legislation through the Assembly as a matter of urgency after the necessary consultation.  A further affidavit indicated, however, that due to the limited nature of the changes and the urgent need to move forward consultation was not considered appropriate. In fact of the last six Executive Bills introduced in the Assembly consultation took place on the terms of only one.

[46]	There is no right to be heard or consulted before the making of primary or delegated legislation unless that is provided for by statute.  In Bates v Lord Hailsham [1972] 1 WLR 1373 Megarry J stated:

“Nevertheless the considerations in relation to a general duty of fairness do not seem to me to affect the process of legislation, whether primary or delegated.  Many of those affected by delegated legislation and affected very substantially are never consulted in the process of enacting that legislation and yet they have no remedy.  I do not know of any implied right to be consulted or to make objections or any principle whereby the courts may enjoin the legislative process at the suit of those who contend that insufficient time for consultation and consideration has been given.”

In Re Northern Ireland Commissioner for Children [2004] NIQB the court rejected an argument by the Commissioner for Children that there had not been a proper consultation process prior to the decision to introduce legislation in relation to ASBOs.  The court held:

“No question of legitimate expectation arises in this context having regard to the absence of a right to be consulted.  In many cases consultation will take place before the introduction or enactment of legislation but situations will arise where through urgency or policy consideration consultation may not be considered appropriate or necessary.”

[47]	Accordingly, we conclude that Gillen J was right to reject the suggestion that there was a legitimate expectation that consultation would occur or that there had been an improper failure to consult.  In any event, as Mr Macdonald appeared to accept, the absence of consultation, even if there was a legitimate expectation of consultation, would not invalidate the 2008 Act which was duly enacted and forms part of the law.

Were the appointments under the 2008 Act predetermined?

[48]	Mr Macdonald contended that the FM and dFM had pre-determined the issue of who would be the four Commissioners under the 2008 Act.  He referred to the initial letters sent to the Commissioners Designate which he said constituted a clear assertion that the Commissioners Designate were going to be appointed even before the new legislation had been introduced. The new posts were not advertised, there was no recruitment process, no consultation and no other candidates were considered.  The First Minister’s statement in the Assembly made clear that the four people who would make up the new Commission are Brendan McAllister, Patricia McBride, Bertha McDougall and Michael Nesbitt.  The dFM stated that the post of Victims’ Commissioner was advertised as attracting a salary of £65,000.  The Commissioners Designate would each be paid that amount.  These statements it was suggested, indicated a clear fixed intention to appoint the four Commissioners Designate as the Commissioners under the Act.

[49]	Mr Maguire countered these arguments by contending that it was a proper exercise of ministerial discretion to use the 2007 competition for the appointment of the Commissioners Designate for the appointment of the Commissioners under the 2008 Act.  It was a process approved by the CPANI.  To revert to an open competition would be to repeat the same criteria and the same process with attendant delay and waste of public money in circumstances where the candidates had already been found by means of a fully blown competition.  While the Ministers could have chosen to run a competition they did not have to and there was nothing unlawful in the way in which they approached the matter.

[50]	Gillen J concluded that having gone through the selection process twice the Ministers were entitled to consider that the individuals were appropriate for the posts bearing in mind that it was known that they would be working as a team when they were selected as Commissioners Designate.  No final decision had been taken pending the advent of the new legislation albeit the preference was clear.  A detailed analysis of the qualities of the members of the Commission and their competencies were set out in the documentation relating to the decision to make the appointments.  

[51]	A public authority cannot disable itself from carrying out its statutory powers or bind itself to exercise its powers in a particular way.  As Lord Browne-Wilkinson stated in R v Home Secretary (ex parte Venables) [1998] AC 407 at 497:

“The person in whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future.  He cannot exercise the power nunc pro tunc.  By the same token the person to whom the power has been conferred cannot fetter the way he will use that power by ruling out of consideration on a future exercise of that power factors which may then be relevant to such an exercise.”

A person on whom power is conferred may establish a policy as to the approach to be adopted in relation to the exercise of the power but the policy cannot be inflexible or invariable and preclude him from taking into account circumstances relevant to the particular case.

[52]	In the present case when the Ministers appointed the Commissioners Designate they were not doing so under any statutory discretionary power but rather under the prerogative powers of governance.  They were not committing themselves to appoint the Commissioners Designate whatever the future circumstances in the event of the proposed legislation being passed.  It could not be said that they had inevitably committed themselves to such an appointment.  There was no binding contractual commitment to the Commissioners Designate. It could not be said that the Ministers had inflexibly committed themselves to appoint the Commissioners Designate as Commissioners under the new legislation.  The dFM in his statement to the Assembly when the nomination of the Commissioners Designate was announced stated that “although the jury is out on this for a short time I have tremendous confidence in them”.  Had any Commissioner Designate behaved or spoken inappropriately during the lead in period before the introduction of the 2008 Act the Ministers would clearly have been free to decide against making an appointment of that person.  It is not possible to infer from anything said or done by the FM and dFM that they had closed their mind to considering the situation prevailing at the time they made the decision to appoint.  They clearly reviewed the question whether they should appoint each of the Commissioners Designate as a Commissioner under the new Act before making the appointment.

[53]	The CPANI having been consulted and having given her approval to the process it cannot be said that the FM and dFM acted unlawfully in concluding that the process to date was sufficient to identify the most suitable persons the to be appointed.  While the Ministers could have decided to carry out a fresh or different process after the 2008 Act was brought into force the decision not to so, in the light of the background and of the views of the CPANI, could not be described as improper, unlawful or wrongly motivated.

Disposal of the appeal

[54]	For these reasons we must dismiss the appeal.