Northern Ireland chief justice to confront critics on bail decisions

15th March 2013

The Lord Chief Justice of Northern Ireland Sir Declan Morgan has given a rare TV interview designed to take the heat out of allegations of partiality between unionists and nationalists in granting bail. He is offering to explain the basis of recent decisions to the Justice Committee of the Northern Ireland Assembly and is making himself available to his most prominent critic, the Democratic Unionist First Minister of the powersharing Executive Peter Robinson. The meeting was in fact pre-arranged but will now take on a more urgent character. His private secretary had earlier sent a letter to the Assembly   explaining that in bail decisions  judges carefully weigh the risks – such as a risk of flight, likelihood of committing further offences, interfering with witnesses and preservation of public order – against the rights of the untried accused.

“It is essential that they are free to do this independently and without being subject to external influence.”

Now the chief justice has widened his response to add the offer of an appearance before Assembly members and a meeting with the First Minister if he still wants one. As a direct response to a running controversy this move is unprecedented and as I’ll argue shortly, carries risks which Morgan himself will be aware of.

Even post- Troubles Northern Ireland politics is still largely a zero sum game. In this case unionists are up in arms at bail being denied to two ring leaders of sporadic protests at the decision of Belfast City Council to reduce the number of days for flying the Union Jack above the City Hall. One of them Willie Frazer attracts both sympathy and hostility. Four family members including his father, all of them members of the security forces, were killed by the IRA over 10 years. He is head of a movement called FAIR,  Families Acting for Innocent (unionist) families  which campaigns for justice for victims of the Troubles  but specialises in provocative demonstrations and comments.   He was refused bail on March 1. At another hearing when bail was refused to another alleged loyalist agitator Jamie Bryson, the judge hit out against “ill informed debate” about bail decisions. This attracted the comment of “ judicial arrogance “ from a DUP minister.

Meanwhile, switching sides,  two prominent republicans in south Armagh  were  granted bail in connection with demonstrations eight years ago in favour of the ( not quite disbanded ) IRA which had been held responsible  for the notorious  murder of a Belfast man Robert McCartney in 2005. Despite a McCartney family campaign which reached Downing St and the Oval Office, IRA omerta  has held. The arrests of the two men Padraic Wilson and Sean Hughes were attacked by Sinn Fein politicians as “ political policing”  to  counter balance the actions against loyalists. Unionists immediately claimed partiality in deciding bail between republican and loyalists.

I accept that there are grounds for interesting speculation about how and why bail has been granted or refused but this has little to do with the judiciary.

Why charge Hughes and Wilson with IRA membership and encouraging a proscribed organisation in a demo that happened eight years ago? Is this a real new lead in the MCartney case? It doesn’t feel like it but who can tell at this stage? If there is no fire behind the smoke this might be seen as an unnecessarily provocative move just as the very moment a dissident republican attack had been foiled.

Why wait so long to lift the loyalists Frazer and Bryson? That one is easier to speculate about – because it’s better to exploit a lull (if that’s what is it is ) in the flags protest. But we’re unlikely to get straight answers to such questions and certainly not from the judiciary. Answers in some form may emerge from the PSNI and the DPP if charges are proceeded with.

Although the judges – and of course the police and the DPP – are now being attacked by both sides, this is not a full blown crisis between the politicians and the criminal justice system.  It even represents a sort of progress.  Republicans now argue for fair treatment from the criminal justice system rather than rejecting it altogether. What is happening is a symptom of the tensions created by an underlying shift in power between unionism and nationalism as a result of growing nationalist numbers and the  implementation of the equality provisions of the Good Friday Agreement.  From time to time there is controversy over where fairness lies and the criminal justice system is caught in the middle.

In an arid zero sum debate –  unionist loss is republican gain or vice versa – the judiciary has boldly moved to assert its good faith and educate the politicians in an impartial justice system which like any other body can make mistakes. The risk the chief justice is taking is that is that he may unwittingly feed an appetite for routine explanations of verdicts and sentences and produce disillusion and even louder complaints when he refuses. This could turn  the judiciary into what he and his colleagues greatly fear, a political football.   Much hangs on Northern Ireland’s politicians behaving responsibly to prevent the judiciary being sucked into their zero sum game.

1.The judges need to respond to Chris Grayling’s challenge to the authority of the European Court of Human Rights

This is Part One of a personal dialogue between a former political journalist and a lawyer over the increasingly politicised question of how the UK upholds human rights law. In particular it focuses on the role of the European Court of Human Rights which is being blamed for delay and perverse decisions. While in this post I do not support the simplistic case against the ECtHR   I argue that the independent judiciary ignores it at its peril, even while the political parties are in deadlock over what to do. If you haven’t already guessed, I’m the ex political journalist. Part 2 of the dialogue is by my legally qualified colleague, Patrick O’Brien.    

There is a real problem about the roles of the European Court of Human Rights and Convention which judges and lawyers who live with it should not dismiss as mere ignorance and political bigotry. By itself the usual retort that such questioning  only encourages dictators and damages Britain’s human rights reputation no longer carries the day. In high profile cases, appeals to the Court have lengthened the process of obtaining decisions and  have delivered results which distance justice from current political and public opinion. More significantly, the Court’s very status in our system is being questioned.  The new Justice Secretary and Lord Chancellor Chris Grayling, the first non- lawyer to hold the office, wishes  to tilt the traditional balance between the legal and political parts of the constitution in favour of asserting parliamentary sovereignty above the authority of the Convention and the Court and to some extent, British judges.

Is there a sense in which the ECtHR is the “real” Supreme Court of the United Kingdom, as many people seem to believe?  If it is not, why do we pay so much attention to it and why does it attract so much political ire? Why does it seem to be so difficult to correct misunderstandings about the Court and the Convention upon which its rulings are based? Can we clear up once for all, when we comply with its rulings and when not?  Could we even ignore it altogether? Surely the Human Rights Act was intended to deliver rights based justice more quickly and more sensitively to British public opinion?

This is a problem which Parliament will not solve any time soon. With an all-party Commission on a  Bill of Rights unlikely to heal a coalition split over the future of human rights law when it reports shortly, could the judiciary solve at least part of the problem themselves?

The ECtHR’s distance from British political opinion was evident over prisoners’ voting rights, when the court handed down a decision which was compatible with much practice on the continent but furiously opposed by the Conservatives with tacit support across the floor. This ruling has led to Grayling  presenting for consideration  the option of Parliament defying the Court and substituting new legislation which could create a constitutional impasse.  To be fair, it is hard to see what British judges could do to prevent it. Of this more later.

Judges however may be able to do something about the number of appeals in controversial cases. In September the outgoing Lord Chief Justice Lord Judge expressed “real fury” that it had taken eight years to extradite the Muslim cleric Abu Hamza to the US. and gave a broad hint that  the ECtHR  was partly to  blame.

“ I do not think, if you go through the processes, you will discover that the delays in that particular case, or in many like it, are actually to be levelled at the doors of the courts here. I cannot remember when — I was one of the judges who decided that case in the extradition proceedings. Was it 2007? So far as we were concerned, that was the end of it. That is really all I can say.”

But was it all he could say? Answering a different question, on whether in certain important cases the “real” Supreme Court was in Strasbourg, he replied :

“Well, I do not agree with the premise. The Human Rights Act is absolutely unequivocal in its language .  It requires our courts to “take account” of decisions of the European Court in Strasbourg, and, properly applied, that means that the decisions of the European Court are not necessarily binding on our courts. It is inevitable that cases which involve the interpretation of the Convention will end up — go to the European Court for decision. But, as I said, the Human Rights Act itself is quite unequivocal in its language — and, if I may say so, that is as it should be.” 

Another cause célèbre is Abu Qatada. A succession of Home Secretaries have been made to look like fools. In this area, ministers have become critics of the system more than its guardians. This may not be the fault of the courts alone but the timeline of the Abu Qatada case is surely unacceptable. Not only is the Court’s efficiency but its very role is questioned and not only by Conservatives.

Consider a couple of prominent responses to the Abu Qatada case.  The reaction from the voluble Conservative backbencher Peter Bone is not untypical. Here, as clearly as it could possibly be put, is a bundle of misunderstandings and prejudices about the European Court of Human Rights and its relationship to British Courts.  Even so, does Mr Bone have a point?

Enough is enough – put this terrorist on a plane and send him home and worry about the European Court afterwards.

.The highest court in this land, our Supreme Court, has said he can go back. Now, if the highest court in this land says he can go back, then he can go back.

We should not be kow-towing to this ‘Mickey Mouse’ European court.

More worrying because rather more sophisticated is the reaction to the prisoners’ voting rights decision from the former solicitor general Edward Garnier QC, to Joshua Rozenberg on BBC Radio 4’s Law In Action:

If this were a decision of the Supreme Court in this country, or the high court or the court of appeal, I would feel a lot more uncomfortable, both as a politician and as a lawyer. Because it is this interesting, and strange, and somewhat small ‘p’, political body known as the European Court of Human Rights are from all sorts of different backgrounds, political and legal, the imperative to bend the knee is less.

 Adhering to judgments of a court to which we are signed up by treaty is an aspect of the rule of law, which we must obey. And we can’t pick and choose the laws we want to obey. But, the prime minister has a choice to make and I suspect that the choice he will make is: ‘Thank you, Mr Attorney, for your very careful advice, but I can’t quite hear you.'”

From a former law officer, this seems like breathtaking casuistry and cynicism to this ordinary citizen. No wonder that public opinion is becoming exasperated with the criminal justice system when ECtHR decisions can be received on a take- it- or leave- it basis one day and a matter of painful compliance the next. Just as depressing is that the point doesn’t seem to have clocked with the legal establishment who seem to accept such arbitrariness as a matter of course.

What sounds like more nudge- nudge, wink- winking was apparent on 22 November when the new Lord Chancellor and Justice Secretary Chris Grayling announced a joint committee of MPs and peers to consider three options, two  a choice between  limited prisoners’ voting rights and the third, retaining an outright voting ban. On the advice of the Attorney General he personally forbore from recommending his ideal last option of defving the ECtCR, because this could mean he was breaking the law, unthinkable for a Lord Chancellor as a leading guardian of respect for the law and  judicial independence. Later he speculated that others ministers might be similarly bound by the ministerial code but the rest of  Parliament  he claimed, could act differently. The episode may still turn out to be  no more than a  melodramatic demonstration against an ECtHR ruling loathed by the Conservatives and which indeed makes the Prime Minister “physically sick.”  But the world has been put on notice that a majority Conservative government would wish significantly to curtail the role of the ECtHR in the British system.

The widening gap between the “legal” and “political” understandings of the status of the ECtHR could not have been more clearly expressed than in following exchanges between Grayling and prominent lawyers at his appearance before the Lords Constitution Committee the previous day.

Lord Pannick :… This country signed up to the convention and it might be thought therefore we have a legal obligation as a matter of international law to comply with the judgments of the European Court of Human Rights—not just those that we agree with, but all of them, and not to do so, to defy the European Court, is simply a breach of the rule of law.

 Chris Grayling: It is certainly the case that we have an obligation to comply with the rulings of the European Court but, as we also know, parliamentary sovereignty supersedes those rulings…. Ultimately, Parliament can say, “We are not prepared to accept that.”…

 Lord Goldsmith: Can I follow that up please, Lord Chancellor, because I am a little taken aback by the way you have expressed that? The point that Lord Pannick was putting to you, with which I agree, is that the obligations that we assumed as a country when we signed up to the European convention are not political obligations, they are legal obligations, and we are therefore obliged to follow them

 Chris Grayling: You would be aware that any legislative change that results from a court decision has to pass through Parliament. You talk about the legal position: the legal position as set out by Lord Hoffmann, as acknowledged and set out by the Attorney General two weeks ago, is that Parliament has the right to exercise sovereignty and to decide not to follow the instructions of the European Court of Human Rights. That is the legal position. That is a matter for Parliament to decide whether it wants to follow that route.

 Lord Goldsmith: I do not agree with that as a statement of the legal position, but that may be the difference between us.

How will the judiciary respond to Grayling? Are they in any position to present a united front?  They must be worried. Interpretations of Strasbourg decisions vary. British courts are obliged to “take account” of the Court’s rulings; but what does “take account” mean?  In his paper “Smoke and Mirrors: the Human Rights Act and the impact of the Strasbourg case law”, Richard Clayton QC observed:

When Lord Phillips and Lord Judge gave evidence to the Select Committee on the Constitution in October 2011, Lord Phillips expressed the view that in the end, Strasbourg was always going to win because we have the HRA. Lord Judge on the other hand stressed that it is at least arguable that having taken account of the decisions of the ECtHR  our courts are not bound to follow them. Lord Judge’s views were given strong support by Lord Irvine the former Lord Chancellor who presided over the enactment of the HRA, in his recent lecture, A British Interpretation of Convention Rights; and in February 2012 ,the Supreme Court appeared to welcome the possibility of going beyond the Strasbourg case law.

In his Kingsland lecture a year ago, the former Conservative leader Michael Howard said he didn’t think it would be “enough” even if British efforts succeeded to extend the “margin of discretion” for national governments to interpret the Convention. Howard called for  “something more comprehensive”, such as that hinted at by the Attorney General Dominic Grieve for a British Bill of Rights to carry out a “rebalancing” of the Human Rights Act. Howard went on to observe:

Little wonder that we have already heard demands for parliamentary input into the selection of the next British judge to be nominated to the European Court of Human Rights. If present trends continue it can only be a matter of time that similar demands are made in the context of the appointment of judges to our domestic courts. After all, this is what happens in countries like the United States where the judges exercise similar power.

What effect would such a development have on judicial independence? Is it not time that the judges got their act together on the ECtHR? The prospects for Parliament acting soon are not good.  In its report due out by the end of year, the Commission on a British Bill of Rights is unlikely to reconcile conflicting views on the scope of human rights.  A  Conservative majority government would probably try to enact a British Bill but it could be a long haul to reach the sort of consensus needed for a constitutional measure of this kind.

In the meantime with a new President of the Supreme Court in post and a new Lord Chief Justice of England and Wales imminent, is it too much to hope for, that the judges might steal a march on the politicians and reach greater clarity among themselves?

Over to you, Patrick.  


The Hain contempt case: a warning for 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 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 addition 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 Falconer, 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. On their part, local politicians are likely to be no clearer about the parameters of judicial independence arising from the case. Perhaps the Attorney will now feel free to explain himself to the Justice Committee?

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.

One less of his nine lives for Ken, after Maya the moggie

The conventional political analysis of the “cat flap” between Home Secretary Theresa May and the Justice Secretary and Lord Chancellor Ken Clarke is that  by criticising  a cabinet colleague in public Ken used up another of his nine lives and may be heading for the chop in next spring’s reshuffle. The political world likes to have it both ways: to encourage speaking openly but when anybody actually  does, they get hammered for ill discipline.

Siding with Theresa and defending her conference speech flourish (I am not making this up), David Cameron rebuked Ken at least twice and has since promised to tighten up immigration rules.

Looked at differently however Ken was only doing his job as the defender of the judiciary in government, as he explained to his local paper the Nottingham Post.

“It’s not only the judges that all get furious when the Home Secretary
makes a parody of a court judgement, our commission who are helping us form our view on this (a British Bill of Human Rights) are not going to be entertained by laughable child-like examples being given,” said Mr Clarke.

“We have a policy and in my old-fashioned way when you serve in a
Government you express a collective policy of the Government, you don’t go
round telling everyone your personal opinion is different

As later reports made clear, the reference to Maya the cat was lighthearted (“the cat need no longer fear having to adapt to Bolivian mice” –  always dangerous when judges try to get funny) and  was part of a much fuller description of the stability of the immigrant appellant’s life in this country.

As for the prime minister, between pushing the popular cause of tighter immigration controls and defending (or at least not distorting) a judicial ruling, is there any contest? If Ken is sacked, what does it say about the coalition’s respect for judicial independence?