The Hain contempt case: a warning to England from Northern Ireland

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.

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  • cynic2

    Perhaps even more of a warning to our own dear political class where behind the doors appointments and cronyism are the order of the day. Public appointments have given way to Ministerial appointments with decisions made by Ministers doling out little pressies to their mates, supporters and (for all we we know as the figures are kept secret) party donors

    Its a corrupt little cess pit….so dont be surprised by anything

  • Mr. Hain was lucky, in my view, that Mr. Larkin did back down. He has got away with the book being sold and more publicity to go with it, thus presumably increasing the sales.

    Mr. Larkin has used an unfortunate choice of words. He might have said “public confidence in the independence and integrity of the Northern Ireland Judiciary.” Instead, he has said:

    “….public confidence in the administration of justice”

    of which I, personally – for reasons connected with the system and administration of legal aid – have very little.

  • “In the end too, no fewer than four Victims Commissioners were appointed.”

    This looks like a politically motivated decision too yet there appears to have been no objection or at least no objection on which the judiciary was minded to intervene.

    “public confidence in the administration of justice”

    Politics and justice can both be dirty businesses; access and leverage favour those with deep pockets and brass necks.

    Imagine this David and Goliath scenario. Solicitors acting on behalf of Goliath offered to take David’s name off a list of Davids that Goliath had decided to prosecute – over a relatively trivial matter – for a token consideration of £5000. Now £5000 is peanuts to Goliath but it was a significant sum for David and the other Davids, especially those who didn’t qualify for public assistance. The solicitors eventually, after an extended period of haggling, settled for a much lesser amount. You can imagine that David was less than impressed with this nefarious expression of the administration of justice.

    In summary, claims to independence by our political and other power-players must be taken with a substantial dose of salt.

  • I’d be very interested to read the original judgements but unfortunately the two links to the 2006 ruling and to the judge’s 67 questions do not work – can they be fixed please?

  • Pete Baker
  • faustus

    I doubt if England sees this as anything but a total victory for Mr Hain. This action was misconceived, conceited and foolish and would almost certainly have been demolished by the supreme court if it ever got that far.

    There is a vast amount of work for the office of AG to engage in without wasting time and resources on this nonsense.

  • tacapall

    Does it matter what your opinion is on this site, if the mods, whoever they are, don’t like your opinion they will either censor your post by making it invisible to others or make sure its not seen until the gist of the debate is going in the direction they want it to. The truth of the matter in this case is John Larkin QC brought the case against a past member of the British establishment, the end result was never going to be allowed to be anything other than a draw with both sides claiming victory.

  • Granni Trixie

    iwas I am surprised to learn that across the water they see this outcome as a victory for Hain. I see it as a neat way out for all parties ..though more satisfactory on the side of JL. In that he has made his point AND drawn attention to Hains track record.

    personally I welcome that JL took this case and do not accept at all that it was a freedom of expression battle,as portrayed by Hains cronies.

    Could it be I also ask myself if this publicity has been the final nail in the coffin of Hains ambitions, given that he has now been
    returned to back benches.

  • “given that he has now been returned to back benches”

    Granni Trixie, this correspondence on the Hain website paints a different picture – one of resignation.

  • socaire

    Brits out?

  • cynic2

    ” I doubt if England ”

    Forgive me but I doubt is 80% of England knows who Hain is

  • cynic2

    “he has now been returned to back benches”

    Surely “saved face on being sacked by going to spend more time with his barrage”

  • Granni Trixie

    Thanks,Nevin. Tthose letters v revealing . Note that Hain is “ready to serve in future”. Note that Milliband sings Hains praises whilst presumably planning to lose him in an imminent reshuffle. Actions louder than words,eh?
    Obviously a face saving exercise cooked up between them. And whatever spin the Hain groupings put on it , trouble from NI hasn’t helped.

    For me Hain also showed bad judgement whilst still a player in politics in disclosing so honestly what he really thought of many in NI .

  • I’m not privy to the internal machinations of the Labour Party, Granni Trixi 🙂 Hain strikes me as a rather vain figure. His role in the Labour leadership was apparently coming to an end so a high profile position in the Severn barrage campaign would certainly have an appeal. On the other hand Milliband might have wanted to introduce new blood to the Welsh team following Labour’s political progress in Wales. There may well have been several factors at play but the NI episode was really a very trivial affair, a damp squib that would have done little more than give MPs some entertainment in the tea-rooms and bars at Westminster.

  • carlota martinez

    Peter Hain’s attack on the judiciary and on Judge Paul Girvan was pointed and motivated by malice and vanity. As has been pointed out by the poster the appointment in question was egregiously unlawful and Hain’s justification for making it was spurious.

    It is unfortunate that, for unrelated political reasons, the decision by the AG, John Larkin, to bring the action was dismissed in a very high handed fashion at Westminster. I think it is a position they will come to regret.

    The Attorney General is to be commended for bringing the action and for settling it expeditiously. To characterise the terms of settlement as a victory for free speech is a nonsense.

    Incidently, I do not believe for a moment that the offence of scandalising the Court is no longer extant and I find it difficult to accept that Hain would have made such comments about an English judge. Furthermore, had he done so the attitude of the British political establishment would have been very different.