Lord Chief Justice: “it is difficult to regard the remarks as anything other than undermining and unhelpful to the administration of justice in Northern Ireland”

Apparently, I haven’t read it, former Secretary of State for Northern Ireland, Peter Hain, MP for Neath, devotes two pages of his recently published memoirs to an attack on Lord Justice Girvan.  More specifically, an attack on the then Mr Justice Girvan for his 2006 High Court ruling that Peter Hain “acted for an improper motive” when appointing Bertha McDougall Interim Victims Commissioner and was “in breach of the Ministerial Code of Practice” and that the then Secretary of State “approve[d] and sanction[ed] the swearing and filing of an affidavit” that “was ambiguous and failed to disclose all the relevant material pertaining to the appointment”, a course of action that resulted in Mr Justice Girvan ruling that “the respondent [Hain] failed in his duty of candour to the court.”

This latest outburst from Peter Hain is in keeping with his initial reaction to that ruling.

The News Letter report has some extracts from the book

“Instead of simply dismissing out of hand the judicial review reference for the sectarian political ploy it was, Judge Girvan flamboyantly treated it all very seriously indeed,” [Peter Hain] said. He went on: “It was a pantomime absurdly given credence by Judge Girvan.”

Mr Hain said that he “thought the judge off his rocker” and claimed that the then attorney general [Lord Chancellor], Charlie Faulkner [Falconer], privately agreed with him. He also accused the judge of “high-handed and idiosyncratic behaviour”. [corrected text]

And Mr Hain even said he had wondered whether the judge’s legal opinion had been motivated by displeasure at some of Mr Hain’s tax policies.

“I did wonder whether some history explained the eccentricity of the judge, or even whether in common with other high earners he had been unhappy about my reforms of the property tax system…”

Although Mr Hain eventually endorsed a recommendation to promote Sir Paul to Northern Ireland’s Appeal Court in 2007, he said in the book that he had considered blocking the appointment because Sir Paul had been “going out of his way legally to damage me”.

However, the case didn’t end with the 2006 High Court ruling.  Because Mr Justice Girvan referred the case to the then attorney general, Lord Goldsmith.

The subsequent Scott Report found that “the appointment was indeed, as Girvan J found, politically motivated”, but “the Secretary of State and those involved in the drafting and swearing of the two affidavits acted in good faith and did not intend to pervert or obstruct the course of justice.”

There was, apparently, a “misguided” “senior civil servant” and the “demanding and competing pressures of work” to blame.

Nevertheless, Hain battled on [in abstentia].  Only to find the Appeal Court upholding the original ruling that the appointment “was not lawfully made”.

Hain’s resurrection of the issue has prompted an unusual public statement by Northern Ireland’s Lord Chief Justice, Declan Morgan.  As the News Letter report also notes

The statement [by Lord Chief Justice Morgan] said that the 2006 case had “raised important and serious questions of constitutional law, public appointments, the Ministerial Code and the provision of incorrect information under the Freedom of Information Act.

“The judge identified a number of serious questions in respect of the challenged decision-making process and the way in which evidence had been produced to the court in response to the challenge.

“The Scott Inquiry [set up in response to Sir Paul’s judgment] identified a number of significant shortcomings and made a number of important recommendations for the future.

“At no time since the judge’s initial decision in 2006 has Mr Hain made any official or disciplinary complaint impugning the judge’s integrity in his conduct of the case.

“Nor did the secretary of state’s notice of appeal raise any ground of appeal alleging that the judge had acted improperly, idiosyncratically or in a partisan way. On the hearing of the appeal no challenge was made in respect of the competence or integrity of the judge or the manner in which he conducted the case.”

The statement added: “The Lord Chief Justice considers it highly regrettable that Mr Hain now seeks to call into question the honour and integrity of the trial judge who, in accordance with his oath of office, was duty bound to decide and did decide the case in accordance with his entirely independent judicial assessment of the case in the light of the evidence and arguments presented to him at the time.

“He is seriously concerned that a judge should be publicly subject to such unwarranted and wholly inappropriate remarks arising out of the discharge of his judicial role.

“The comments impact not just on a single judge but are potentially an assault on the wider independence of the judiciary which is a principle underpinning our democracy.

“There is a statutory obligation on those in ministerial office to uphold judicial independence. In this instance however it is difficult to regard the remarks as anything other than undermining and unhelpful to the administration of justice in Northern Ireland.”

Indeed.  

Although, a subsequent High Court ruling rejecting a challenge to the appointment of replacement Commissioners, and the rejection of an Appeal, on the grounds that “the process of joint decision making which will command public trust and confidence is a fragile flower which requires careful tending”, suggests Peter Hain may be justified in feeling hard done by.  As I said at the time

If Peter Hain’s improper political motivation had been equally exempted from scrutiny would his Interim appointment have been ruled unlawful?

[OFMDFM never got around to appointing a new commissioner, did they? – Ed]  No.

Of course, the Interim Victims Commissioner wasn’t the only time an appointment by Peter Hain was ruled unlawful…  that time by the then Mr Justice Morgan…  It was overturned on appeal.  Although there was a report of a House of Lords hearing…

[And that’s only some of the stories we know about… – Ed]  Indeed.

As an aside, I see that Peter Hain, who was himself appointed by Tony Blair as firstly, Secretary of State for Wales in 2002, then Secretary of State for Wales and Northern Ireland in 2005, has also claimed that Tony Blair and his team never really gave Wales “proper respect and attention”.

You might well think that, Mr Hain, I couldn’t possibly comment…