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Peter Hain has fundamentally undermined the rule of law

26 October 2018

5:42 PM

26 October 2018

5:42 PM

For all the praise heaped on Peter Hain for revealing the details of a legal case subject to injunction, there’s been depressingly little acknowledgement of what this really means: namely that a senior politician has fundamentally undermined the rule of law.

Hain – who, unlike many of his peers, has never been a lawyer– has taken it upon himself to usurp the function of the courts. And not just any court – the Supreme Court, where the case was probably heading.


In fact, the judge he overruled is Sir Terence Etherton, the head of the Court of Appeal and the second highest judge in the country (after the Lord Chief Justice). Famously, he’s one of the judges that the Daily Mail called an ‘enemy of the people’ when the Supreme Court ruled that the Government needed the consent of parliament to trigger Article 50. I suspect, though, that Sir Terence will be much angrier at Hain’s behavior than a newspaper calling him rude names. There really is nothing more offensive you can do to a judge (it’s called contempt of court for a reason).

Then there’s the fact that at least two of the women concerned did not want the case to be revealed. In its decision, the court expressly mentioned that one of the women was concerned about her privacy if the case should be made public. Given that tabloid journalists are already trying to uncover the identities of the women concerned, you can see where she was coming from.

The case is another example of the harm caused by the half-completed constitutional reforms instigated by the Blair government (if the Lord Chancellor had not been turned into a political role, he could – and presumably would – seek to discipline Hain). If it’s achieved anything, it’s provided a reminder of the need for serious constitutional reform. It’s time to look again at parliamentary privilege which, in my view, should be restricted to cases which are national emergencies, rather than any live case before the court.

Such a broad approach serves no real purpose – except, of course, to massage the egos of vain parliamentarians.

Charles Day is the pseudonym of a commercial barrister in London


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