Minister claims legal privilege means he can't say whether he ignored advice defending own department

controversy over make-up of tribunal panel

controversy over make-up of tribunal panel

By Barry McCaffrey

A STORMONT minister is claiming legal privilege prevents him telling a scrutiny committee whether or not he ignored legal advice which could have overturned a £150,000 Fair Employment Tribunal ruling against his own department.

In June 2012 a Fair Employment Tribunal ruled that Dr Alan Lennon had been the victim of religious discrimination after then Department for Regional Development (DRD) Minister Conor Murphy failed to appoint him as chairman of Northern Ireland Water (NIW).

However Mr Murphy’s successor as DRD Minister, Danny Kennedy, has told The Detail that legal privilege prevents him from clarifying whether or not he chose to ignore legal opinion which had advised him to challenge the validity of the tribunal hearing, after it was learned that a panel member had not been eligible to take part in the hearings.

The Detail understands that Mr Kennedy has also refused to provide the Stormont committee charged with scrutinising the actions of his department with any legal papers relating to the case.

Mr Kennedy has told the Regional Development Committee that legal privilege means he is unable to allow them to scrutinise the legal advice he received in the case.

This is despite the fact that Mr Kennedy had previously shared some of the same legal opinions with colleagues on the Stormont Executive.

A leading legal academic today tells The Detail that there is no legal reason why the DRD minister cannot provide the scrutiny committee with the papers they have requested.

The matter is expected to be discussed when Mr Kennedy is called to the DRD committee today (Wednesday) to explain his decision.

In April 2012 Dr Alan Lennon took a case against DRD claiming it had discriminated against him on religious grounds when he was not appointed as director of Northern Ireland Water (NIW).

The tribunal had ruled that the successful applicant, Sean Hogan, had been selected because “he was not from a Protestant background” and because he was known to Mr Murphy.

The tribunal strongly criticised Mr Murphy, describing some of his evidence as “implausible” and lacking “credibility”.

Mr Murphy refused to accept the ruling.

Danny Kennedy and Conor Murphy

Danny Kennedy and Conor Murphy

It later emerged that Mr Kennedy, who had succeeded Mr Murphy as minister, had received a series of legal opinions which had recommended that his DRD department should legally challenge the tribunal ruling.

On June 21, 2012, less than 24 hours after the tribunal’s ruling, Attorney General John Larkin QC, provided a written legal opinion to the Stormont Executive, describing the tribunal’s approach to evidence as “erroneous” and stated that some of its decisions “borders on absurd".

Two weeks later another legal opinion, sought by Mr Kennedy, advised that DRD should appeal the decision.

“Put simply, the tribunal did not have any evidential basis upon which to found the conclusion that the pair (Mr Murphy and Mr Hogan) had met and knew each other in the manner suggested,” it said.

The tribunal’s finding that Mr Murphy had breached the ministerial code of public appointments was described as “puzzling and deeply unconvincing”.

The legal advice concluded: “To put it in plain terms, the conclusions reached by the tribunal in these key respects are arguably perverse in the sense that no reasonable tribunal properly directing itself could have reached the conclusions that this tribunal reached.”

While the legal opinion warned that there was no “absolute certainty” that an appeal would succeed, it added:

“Nevertheless, we can advise that the arguments in the department’s favour are sufficiently robust to permit us to conclude that an appeal would enjoy a reasonable prospect of success.”

Two weeks later the Stormont Executive received a third legal opinion, the second from Attorney General John Larkin, which again recommended that DRD should challenge the tribunal decision:

“I had no previous engagement with the case and my concerns about the quality of the decision were initially centred only on the reasoning of the tribunal rather than on its findings of fact (notably the findings of fact on credibility),” Mr Larkin said.

“In recent weeks I have had the opportunity to reflect on the fact finding by the tribunal and am now of the opinion that in this area, too, the tribunal decision is unsatisfactory and ripe for challenge.”

Despite the various legal opinions recommending a legal challenge against the tribunal decision, on July 30, 2012 Mr Kennedy informed his executive colleagues that he had decided not to appeal.

The DRD minister said that he had taken a “measured look” at the case and, despite the three legal opinions, had decided “in the public interest” not to appeal the tribunal decision.

“Substantial public money has already been expended contesting the matter,” he said.

Mr Kennedy said that the prospect of success in any appeal was at “best uncertain” and warned that further costs to the public purse of any appeal would be substantial.

“Even if an appeal was successful this could result in further proceedings before a tribunal incurring further cost to the public purse. Such costs are at this time unquantifiable.”

The tribunal reconvened on October 8, 2012 but was unexpectedly cut short when tribunal chairman Samuel Crother told the hearing:

“It came to my attention this afternoon that a member of the panel sitting to my right (Barry Maguire) attained the age of 70 in May of this year and had not been re-appointed by the relevant minister,” he said.

The tribunal was postponed until November 7 when Mr Lennon was awarded £150,000 in damages.

The Detail now understands that Mr Kennedy received a further – fourth – legal opinion which stated that the involvement of an ineligible panel member in proceedings meant that the tribunal should be legally reconstituted.

Despite having shared previous legal opinion with his executive colleagues it is understood that Mr Kennedy did not share the legal opinion on this occasion.

The Detail understands that the Regional Development Committee, which scrutinises the actions of the department, requested copies of all department legal papers in the case on December 12, 2012.

However DRD refused to provide the committee with the legal papers stating:

“The legal advice provided in respect of this case is protected by legal privilege and therefore it would not be appropriate to disseminate to committee members as this would breach the privilege.

“The minister will seek to assist the committee as far as possible without trespassing on privilege.”

The Detail asked Mr Kennedy to clarify whether or not he had requested and received a fourth legal opinion above and beyond those which had been previously shared with his ministerial colleagues.

We asked, if this legal opinion exists, for the minister to explain his reasons for seeking the new opinion and, subsequently, why, if it does exist, he had failed to share this with the Executive as he had done so with previous legal opinions?

We asked Mr Kennedy to clarify whether this legal opinion (on the eligibility of one of the tribunal panel members) had advised that the tribunal had been invalid and therefore should have been reconstituted, thereby avoiding the necessity of his department having to launch a costly appeal against the original verdict.

Finally we asked why, if he had sought and received this legal opinion, he had chosen not to act upon it.

Despite having chosen to share previous legal opinions with executive colleagues, a DRD spokeswoman said:

“Legal advice (or indeed the seeking of it) is a privileged matter and it would not be appropriate for the department to comment further on the questions you have raised.”

However Queen’s University Belfast Head of Law Professor Sally Wheeler casts doubt as to whether legal privilege prevents the DRD minister from sharing information in the case with the scrutinising committee at Stormont.

“Privilege is not a reason for a client not to disclose material,” she said.

“Privilege means that something does not have to be disclosed.

“It is the client’s choice (Mr Kennedy) whether to disclose something and in fact material can be disclosed on a confidential basis to a group of people and still retain the status of ‘privileged’ against the rest of the world.

“If he did that and confidentiality was broken then he might lose privilege on that material.

“Mr Kennedy could disclose this material if he wished, but he can’t be made to do so, as the material is covered by litigation privilege or legal advice privilege.

“These are not the same, but the issue is not relevant in this instance.

“However the point remains the same – privilege does not stop a client if he wants to disclose material; rather it merely means he cannot be forced to disclose it.”