It’s worth taking a closer look at the Peter Hain contempt case before it’s written off as a straightforward free speech victory for the metropolitan Mr Punch over the paddywhackery of Northern Ireland’s appointed and politically independent Attorney General. John Larkin QC brought the case against the former Northern Ireland Secretary Peter Hain on the admittedly antiquated grounds of “scandalising the court, “after Hain had made extraordinary remarks in his autobiography about the then Northern Ireland High Court Judge Paul Girvan. We’ll come to those remarks shortly.
Our story begins in 2006, when the judge found (link repaired) that Hain’s appointment of a Democratic Unionist Party (DUP) nominated Victims Commissioner had probably broken a whole battery of rules including the ministerial code and the duty of candour to the court, when two of the province’s most senior civil servants, the political director of the NIO and the head of the NI civil service, failed to give a convincing account of how she was appointed. In Northern Ireland, public employment laws are especially strict under the Good Friday Agreement to ensure equal treatment of unionists and nationalists. And in no case more so, one would have thought, over the appointment of a post entitled “Victims Commissioner,” when the concept of victim can mean fundamentally different things to different people. The importance of the integrity of civil servants put into bat for their minister hardly needs stating beyond adding that it is an especially prized quality in a region where politics have for so long been so bloody and divisive and civil servants to a great extent have held the ring.
On the facts of the appointment, there was not really any argument from day one, in or out of court. Girvan had Hain bang to rights, although he allowed the commissioner to keep her job. Nationalists were sure to object and so they did, politically and through judicial review. The judge dismissed Hain’s contention that he had a higher purpose, namely the success of the peace process at a critical juncture and he condemned the Secretary of State‘s (rather post hoc?) invocation of the royal prerogative in making the appointment, when detailed legislation regulated such matters. Two could play at invoking an old standby, it seems. According to Judge Girvan, an important constitutional principle was also at stake if courts could not rely on civil servants’ “candour” about how the blameless victims commissioner Bertha McDougall had been appointed. (A quick chat with each of them separately was all that happened, it emerged). Girvan spelt out the abuse of process in relentless detail and this – I speculate – greatly embarrassed Hain. In a follow up judgment Girvan instanced 67 questions he wanted answered about how the appointment was made.
What also seems to have incurred Hain’s wrath was the judge’s dismissal of his point of extenuation, that the appointment was made to keep the DUP sweet at an important stage of negotiations, as the British government nudged them towards re-forming the Northern Ireland Executive with their arch opponents on the nationalist side, Sinn Fein. But such a one-sided appointment was always bound to create a distracting controversy. How Hain could have thought otherwise is a mystery.
But in the end as all the world knows, the political efforts of Peter Hain and many others were crowned with political success. In the end too, no fewer than four Victims Commissioners were appointed.
So what was it that Hain wrote about the judge six years later?
Mr Hain said that he “thought the judge off his rocker” and claimed that the then attorney general, Charlie Faulkner, privately agreed with him. He also accused the judge of “high-handed and idiosyncratic behaviour”.
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”.
Consider the two statements I’ve highlighted. The first speculates grossly if weirdly that the judge who presumably lives in a quite a large house, might have resented Hain’s attempts to put up NI domestic rates and might have allowed such resentment to affect his judgment.
The second toys with the idea that Hain might have withheld ministerial approval of Girvan’s promotion as an Appeal Court judge, on the basis as far as I can make out, of the NI Secretary’s inheritance of a prerogative power of the long defunct office of Lord Lieutenant of Ireland ( another antique device, you’ll have noticed.).
“Off his rocker” might be written off as vulgar abuse but the comments highlighted packed a bigger and more precise punch. Whether they amounted to defamation or contempt is a matter of expert legal opinion which will not now be put to the test. But coming from a former Northern Ireland Secretary, they were undoubtedly damaging. In short, the office Hain had held seems to have been crucial to the legal action.
Consider next Northern Ireland today. This is a political system still bedding down after 30 years of the Troubles and at least 90 years without cross community consensus. Power sharing devolution stabilised only in 2007 and justice powers were transferred from Westminster even later, two years ago. The system is dominated by the two parties on the edge of the two political traditions, both of which in different ways had bones to pick with the criminal justice system.
The rather remarkable fact is that today, both political extremes have expressed broad confidence in the judiciary. In turn however, the judiciary still harbours doubts whether politicians new to government fully understand the subtleties of judicial independence. And the judges have a lurking fear that the historic militancy of either DUP and Sinn Fein or both could resurface to attack judicial decisions they might not like. The Chief Justice has already written to the First Minister Peter Robinson to complain about comments by two of his party’s ministers that sailed close to the wind.
Peter Hain’s autobiographical effusion broke into this delicate atmosphere, provoking the Chief Justice to make a rare public statement:
The judge (Girvan) 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 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”
To this statement Hain made no reply. And it was because of this omission we are now told, that the Attorney General decided to prosecute. Readers can come to their own judgment on whether Hain’s statement to the court adequately answers the charges.
I have never qualified [Girvan’s] standing and motivation as a judge before that case nor have I done since. My words were never intended to, nor do I believe that they did, in any way undermine the administration of justice in Northern Ireland or the independence of the Northern Ireland judiciary, that very independence and integrity I worked so hard as secretary of state to achieve support for from all sections of the community, including those who had previously denied it.”
We hope that this will mark the end of any ill-judged attempt in future to prosecute for the ancient offence of ‘scandalising a judge’ and ask that the government and the Supreme Court consider how it can be confined permanently to history.”
It was however enough for Larkin to back down — but not without a parting shot about the legal basis for the action.
It is not obsolete, whether it will be replaced is a matter for the legislature. “My own view is that so much of our human rights, our core human rights, depend upon considerations by judges in courts, and if the public loses confidence in that, something irreplaceable is lost and therefore there must always be some protection accorded to public confidence in the administration of justice.”
How has the NI establishment reacted? There is a good deal of doubt over whether Larkin was right to bring charges. Opinion was divided but not entirely along party lines. Some DUP figures deplored the likely cost of going all the way to the Supreme Court. A majority deplored such gross comments from someone who should have known better. But for some lawyers among the public representatives the action was justified because the attack was so severe. Most wanted the quick resolution that transpired. There is every indication that the Attorney took his own decision and did not seek advance judicial approval. How his reputation will be affected remains to be seen; but at least he vigorously asserted the independence of his new office.
It’s likely that the natural nervousness of the judiciary about politicians generally was increased by the unwelcome publicity and by Westminster’s casual disapproval of the prosecution. For their part local politicians are unlikely to be any clearer about the parameters of judicial independence. Perhaps the Attorney will now feel free to explain himself to the Assembly’s Justice Committtee.
Quite a few local politicians asked: could someone in Hain’s position attack an English judge so blatantly and get away with it? The answer surely is, quite probably yes. And that may be another uncomfortable legacy of Peter Hain’s vanity outburst against a Northern Ireland judge.
This post first appeared in the blogs of the Judicial Independence section of the website of Constitution Unit, University College London. My thanks to Mick and in particular Pete Baker for his meticulous posting on the ongoing story.