THE Attorney General John Larkin fairly threw the cat among the pigeons when he took on the former NI Secretary Peter Hain over the content of his memoirs.
Larkin appeared earlier this week at the Royal Courts of Justice for the first public hearing into “scandalising the court” to have taken place in decades anywhere in the UK.
The past week in particular has seen extraordinary attacks heaped upon the attorney by politicians, accompanied by some remarkably hostile news coverage and commentary, for reviving this offence and for bidding to silence criticism of judges – as it would seem.
But the events unfolding around this case also provide a window into the wider issues of how events of public importance in Northern Ireland can end up being portrayed and of the subterranean tensions between the two most powerful realms here: politics and the law.
Larkin straddles both these worlds at the highest level; he became the first locally-appointed attorney general in 37 years when he took up office two years ago and he has since thrown himself into the role with energy.
His decision to go after Hain, however, surprised many; likewise the incensed reaction earlier in the year of the Lord Chief Justice Sir Declan Morgan to Hain’s comments in his book “Outside In” about the Appeal Court Judge Sir Paul Girvan.
Suddenly, politicians who have previously been at best neutral on the subject of freedom of speech are now queuing up to defend it. Even David Cameron has weighed in.
It’s understandable that those in the political sphere are alarmed: they do a lot of talking in public; an important part of their make-up is a compelling narrative which voters buy into. What happens in the courts is part of the public discourse here and often the subject of critical comment.
But this runs deeper. The legal fraternity doesn’t seem to see this as just an insult; but rather an attack on the independence of the courts. Ministers are duty-bound to uphold this principle – which is what has the polticos sweating: this case isn’t really about Joe Public slagging off judges; it’s about them. And more particularly how far they can resort to the favoured political tactics of spin and whispering campaigns when a court holds them to account.
And in that sense it’s a neat reflection of the case which Hain’s reminiscences have resurrected to such toxic effect
Hain was abjectly humiliated by Sir Paul Girvan in the now infamous judicial review into the appointment of Bertha MacDougall as Interim Victim’s Commissioner back in 2005. What’s easy to forget is that the appointment made up only part of the judgment. The rest concerned the conduct of Mr Hain and his team in attempting to keep the full facts out of the public domain – and away from the scrutiny of the courts.
Sir Paul found that civil servants had covered up the political nature of the appointment, firstly in their handling of a Freedom of Information request from Brenda Downes, a victim who ended up challenging the appointment, but also subsequently with the court as well. The judge didn’t spare the blushes of either Hain or the then Head of the Civil Service, Sir Nigel Hamilton, putting on record that Sir Nigel had provided a misleading affidavit and this had been sanctioned by Hain.
This damning and highly public spectacle led to the then Attorney General Lord Goldsmith – the Westminster Attorney then had jurisdiction over here – to commission a review by an English barrister, Peter Scott QC. Scott took some of the heat off Hain but still backed up much of what Sir Paul had to say.
The whole affair now serves as a study of the role of courts and judges in holding politicians and civil servants to account for abuse of power; it could only have been administered by a judge, confidently sitting independent of the political sphere.
It’s no wonder Hain is sore. But his reaction to recount the story with himself cast as the victim – none of the awkward facts make it into Hain’s account – is an extreme example of the default positions of the political world: defend, deny, counter-attack – and spin.
Likewise his reaction to the Larkin prosecution. Hain initially ignored it. His subsequent handling of the publicity surrounding it is instructive. The Detail got wind of the case and approached his parliamentary office to check if it was true. His staff said he was on a flight between New Zealand and Australia and they’d get back to us when they got hold of him to confirm its accuracy or otherwise. Four hours later Hain’s people broke the story simultaneously on the BBC national news and the Press Association wire, complete with quotes lamenting the violation of his right to freedom of speech. The Detail is still waiting to hear from Hain’s office.
Meanwhile Hain’s allies in the political world have mounted a highly aggressive offensive against Larkin which has been played out in Parliament, backed up by a willling media as the case moved towards the courts this week – as only a political campaign can do. There has been little reflection on whether the backlash against Larkin is proportionate to what he’s doing – and what that tells us about the nature of information management and power and accountability in Northern Ireland.
Since the devolution of justice there have been clear signs of increasing tensions between “the law” and the politicians and bureaucrats who now have greater power to challenge what’s going on in and around the courts here. It’s no longer just the courts holding politicians to account as at the time of the Victims’ Commissioner case; on the other side there is greater scrutiny of lawyers by elected representatives, such as the Justice Minister David Ford and the Justice Committee – and linked to that is the real power to shape what happens in courts by dictating budgets.
Of course lawyers have done themselves no favours over the years; collectively they have done next to nothing to engage meaningfully with the public; that has left them vulnerable to attacks about pay and to their various pronouncements being misunderstood.
Nowhere is this clearer than the repeated skirmishes over legal aid. The debate over the past five years has been overwhelmingly driven by politicians and bureaucrats, through PR and with the focus solely on money: the annual publication of big earners on the legal aid list being one of the few areas of public life where public spending is willingly volunteered – while to this day the incomes of senior civil servants and the 161 press officers at Stormont are off-limits.
The legal fraternity remains way behind the Stormont power machine in this game, but it’s the public who end up paying the price when access to justice is strangled by lack of funding for professional services – The Detail has already highlighted the reality of getting justice for members of the public who have to self-represent at tribunals, especially when taking on government agencies – which, incidentally, still have well-resourced in-house legal services to defend them, paid from the public purse.
Ultimately the legal fraternity only has itself to blame for this. Politicians live and die in the public gaze; if they fail to win over the voting population, it’s game over; not so for the legal profession.
When the story becomes a personal attack, lawyers unsurprisingly reach for the law and they’ve already been doing so; in recent years two judges here have pursued defamation cases and The Detail understands Sir Paul has instigated a libel action against Hain and his publisher. This compensates them personally, but it doesn’t help the public see the bigger picture; the case being taken by Larkin is an attempt to do that, although this point has been drowned out in the noise of recent weeks.
It’s true that the remoteness of the legal world from the argy-bargy of modern-day public discourse can be argued as an aspect of its independence – but it really doesn’t excuse the continued failure of a profession built around advocacy from making the public case for itself.
And that’s unfortunate for everyone here because a political system comprising a permanent coalition of parties almost devoid of opposition and backed by a civil service as resistant as ever to questions about the exercise of power, badly needs a healthy, independent, fearless court system more than ever to provide checks and balances.
The new relationship between the political and legal worlds needs time to mature. Some testing of boundaries is inevitable in the meantime. For now though, when politicians posture and bluster and lawyers reach for the law, the rest of us will sometimes have to stand back and puzzle over what’s really going on.