Edwin Poots excluded trade unionists from posts due to 'class'
- 21 November 2013
- From the section Northern Ireland
Health Minister Edwin Poots identified trade unionists as a "particular class and excluded them from a public body due to their status", a judge has said.
Earlier this year a court ruled that the minister acted unlawfully over the failure to consider a senior trade unionist who had applied for a post.
Now the judge has given detailed written reasons for his decision.
He held that a change in appointments policy was not subjected to consultation.
Mr Justice Treacy added that the changes were only implemented after Edwin Poots came into office.
John Corey, a former general secretary of public sector union NIPSA, brought a legal challenge after being denied the position on the Northern Ireland Social Care Council (NISCC) after his interview.
'Irrational and biased'
It was specifically advertised as a trade union representative on the regulatory body.
In a legal challenge to the decision Mr Corey's lawyers claimed Mr Poots was "irrational and biased" in vetoing his appointment after becoming health minister in May 2011.
Two other recruitment processes started under his ministerial predecessor, Michael McGimpsey, for the Blood Transfusion Service and the Council for Nursing and Midwifery, had also sought trade union members.
But the court was told none was appointed by the time Mr Poots came to consider candidates.
Mr Corey, who was appointed to the Northern Ireland Human Rights Commission in 2011, had been putforward by NIPSA for a trade union post on NISCC, which regulates the conduct of social care workers.
The department was also seeking to appoint a lay member to the body. Only this position was filled.
Lawyers for Mr Poots said that he did not want to narrow the pool of candidates by ring-fencing positions.
But lawyers for Mr Corey and NIPSA, who mounted a joint judicial review challenge, said the explanation was a smokescreen to hide the minister's opposition to having trade unionists on the panel.
Ruling on the case at the time Mr Justice Treacy acknowledged Mr Poots had a discretion to appoint whoever he wanted.
Class and status
But the judge held that it had been unlawful to "frustrate" public law obligations from a published notice in the process that remained in place.
In newly published further reasons for his decision he said: "I am satisfied that trade unions and their members were identified as a particular class and excluded from consideration on the basis of their status."
Mr Justice Treacy identified a change in policy in relation to appointments to public bodies such as the NISCC, the Blood Transfusion Service and the Council for Nursing and Midwifery following Mr Poots ministerial appointment.
"This important change in policy was not consulted upon," he said.
"It is correct that the minister has a discretion to appoint whomsoever he wants and that there was no statutory obligation to appoint a trade union representative to the relevant council.
"But the clear terms of the published notice and the policy in place at the time the notice was published generated public law obligations which were not complied with in the present case.
"It is accepted that the minister could have simply abandoned the competition instituted by the public notice and/or initiated an entirely new competition to accord with any new policy provided of course the new policy was not unlawful. But he did neither.
"Consequently, in my view the public law obligations generated by the published notice remained in place and were unlawfully departed from by the minister."
Assistant General Secretary for NIPSA, Kevin McCabe, said: "We welcome the court's findings which fully vindicate our decision to challenge the minister's refusal to appoint a trade union representative to the Social Care Council.
"NIPSA calls on the minister to accept the court's findings and to consult properly and fully with the trade unions representing health and social care sector as the court requires.
John Corey also welcomed the ruling: "Unfortunately this is another example where the operation of the public appointments process has been found wanting.
"As well as the need for a full and fair remedy in this particular case, I would expect all those with responsibility for the public appointments process in Northern Ireland to examine this judgement carefully to ensure there is no repetition of such unlawful treatment of candidates for other appointments," he said.
A Department of Health spokesman said: "The department has received the written judgement on the outcome of the judicial review.
"We will wish to consider the detail of the judgment and consult our legal representatives before making any further comment."