This very important debate is about articles 9 and 13 of the Bill of Rights and the role of Parliament in dealing with all grievances and the importance of freedom of communication between constituents and Members, and I know that it is very important, because the Leader of the House trailed it earlier. I remind Members of the importance of privilege, which we have here in Westminster Hall as in other parts of Parliament, but Members should always exercise their rights with care, particularly when naming individuals, and should avoid intrusion into areas that are within the jurisdiction of the courts, particularly things that are active before the courts.
I thank you, Mr Bone, and also the Backbench Business Committee, on which I sit, for providing the opportunity to debate this very important issue.
I often find the older laws interesting to look at, and they are all available on the modern websites. On the statute law website, found at legislation.gov.uk, we can find the Bill of Rights 1688, which is sometimes called the Act of Rights 1689. Article 9 of that Bill is on freedom of speech, and says that
“the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.”
Interestingly, that it is often misunderstood to mean absolute privilege, when it in fact means that the courts cannot look at what is said in Parliament, which gives a defence not only against defamation but against contempt of court. Things that perhaps otherwise could not be spoken of, can be spoken of within Parliament because of article 9. It is absolutely crucial to recognise that that is a liberty of the British people: the powers of Parliament, in the body of democracy, to represent the citizens of the United Kingdom are liberties of the British people. Contempt of Parliament and parliamentary privilege are there to protect the citizens of the UK, and of the world more widely, and I shall go into some detail about that later.
Article 13 is about frequent Parliaments:
“And that for Redresse of all Grievances and for the amending strengthening and preserveing of the Lawes Parlyaments ought to be held frequently.”
That clearly gives Parliament two functions, one being the redress of all grievances. The nub of my arguments today is that if Parliament does not know what is going on, for one reason or another, it is somewhat difficult for it to produce any results whereby the grievances are redressed. We face serious problems if Parliament is blinded or deafened by the actions of others.
I have some other laws here, which are important. In the area of family proceedings, people very often refuse to, or are pressurised not to, give information to Members of Parliament. There have been a number of changes over the years. In 2005, a statutory instrument creaked open the door to the family courts, and then there were the Family Proceedings (Amendment) (No.2) Rules 2009, which are important because they made it clear under “communication of information for purposes connected with the proceedings” that a
“party or the legal representative of a party, on behalf of and upon the instructions of that party, may communicate information relating to the proceedings to any person where necessary to enable that party…by confidential discussion, to obtain support, advice or assistance in the conduct of the proceedings”.
This might come as a surprise to some people: Members of Parliament are human beings. The law was opened up very clearly in 2005, and it was made explicit in 2009 that any person is allowed to have information from a party. Article 9 of the fundamental constitutional law of the UK of course trumps statute and statutory instruments, but we have here a statutory instrument that makes it extremely clear that a Member of Parliament may obtain information from a party; for example, from a parent or a child who is aggrieved at their treatment by the family courts. Often children have great difficulty escaping from this strange world; a number of teenagers who have found it very difficult to escape the system have contacted me.
There is another old constitutional law that I would like to refer Members to, the Magna Carta. The Magna Carta 1297 is the version that is in force—in statute. It is rather sad, in some senses, that so little of it remains. A lot of it has been repealed, and only articles I, IX and XXIX are left. Article I is on the confirmation of liberties, and basically refers to the Church of England. Article IX refers to the liberties of London, and as a Member of Parliament for Birmingham I wonder why an article about London and the Cinque ports has not been repealed when so many of the others have gone.
Article XXIX is an important one, on imprisonment contrary to law and the administration of justice:
“NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.”
I emphasise the last sentence of that article, the key to which, as I see it, is that people are equal before the law, and that one’s wealth should not affect how one is seen by the legal system. There are lots of debates going on about access to justice, and last week I raised the issue of the balance between two different cases, and of how the people involved in them were treated. One case involved a particularly wealthy person and the other a relatively poor person, and I will come on to that later because it is important.
This debate is particularly about the position of communication with Members of Parliament, and Mr Davis has a very important point to raise in association with that. Even if we did not have the Bill of Rights, it is clear that there are circumstances in which it would be lawful for people to communicate with Members of Parliament. There are other situations, when there are court injunctions or other pressures on people through employment contracts and the like, when it perhaps is not as lawful for people to communicate with their Member of Parliament. I am particularly concerned about situations in which people are bullied and threatened to prevent them from raising their grievances with their Member of Parliament, and there is obviously a question as to where the limits of that lie. I tend to construe it more broadly, in that when information is needed for proceedings in Parliament that should be protected by the law. The law of Parliament is part of the law, even if some solicitors firms do not understand that, such as Withers last year.
On that point, and particularly in connection with family law, it is the bullying of constituents that is one of the most offensive aspects of this. In trying to explain to parliamentary colleagues why we sought to hold this debate and what is so important about it, the example that I have given that has most grabbed their attention is that of a social services department saying to a constituent, “If you talk to your Member of Parliament, we’ll make sure you lose custody of your child.” Does that not illustrate vividly the nature of the problem that we are dealing with?
Yes, it is a dreadful abuse of state power to threaten to remove a child from the care of the parents because they deign to speak to their Member of Parliament. That happened to one of my constituents, Andrew France, and I will come to the detailed documentation on that later. I think that is a dreadful thing to do with people.
On the Family Proceedings (Amendment) (No. 2) Rules 2009, I pointed out that it is in fact entirely lawful to talk to anyone. To say, “We will remove your child, because you had the effrontery to raise your concerns about process with your Member of Parliament” is a dreadful thing to do. Parliament should not tolerate that, because it undermines the actions of Parliament. Later, I will come in detail to the example from Australia which demonstrates that it can be interpreted as contempt of Parliament, so Parliament could take action on those grounds to ensure that people’s right to talk to their MP is protected.
Last week, I raised the issue of Fred Goodwin and Lee Gilliland. Everyone tended to concentrate on Fred Goodwin and the banker issue, but I think that the issue of Lee Gilliland is more important. The Gilliland case is slightly complex, and I cannot refer to some things, because proceedings are continuing. However, in the historic proceedings to which I referred last week, he had his mental capacity removed, on his right to instruct a solicitor, on the basis of a report from his GP which was written some five months after his GP had last seen him and which he has still not seen—I spoke to him about half an hour ago.
It took me a little time to get into the issue of mental capacity, when I first encountered it a number of years ago, because it seemed so shocking. Yes, we have the
Mental Capacity Act 2005, which specifies circumstances under which people’s capacity can be removed, but I was surprised to find a situation in which someone who seems coherent could be told, basically, “You’re too stupid to tell a solicitor what to do. And, because you are too stupid to tell a solicitor what to do, we will appoint what is called a litigation friend”—one must distinguish between a litigation friend and a McKenzie friend, because people sometimes confuse the two. The litigation friend acts on someone’s behalf. The Official Solicitor is often appointed as litigation friend even though the Official Solicitor ought really to be appointed as a litigation friend of last resort.
With the agreement of the Official Solicitor on behalf of Mr Gilliland, a decision was made by the court. The house he lived in was to be sold, with half the money going to him—roughly £50,000. However, he was to be evicted and, of the £50,000, more than £37,000 would go to his solicitor. Who is protecting Mr Gilliland’s interests? He did not start out as a particularly wealthy individual, then the state came in and said, “You are too stupid to instruct a solicitor, but you can’t see the basis upon which we have made that decision. Oh, and by the way, we are going to take three quarters of the money you might have had, turfing you out of your house and putting you on the streets, and give it to your solicitor.”
I do not see that as treating Fred Goodwin on the one hand and Lee Gilliland on the other hand equally. Fred Goodwin can afford to spend a lot of money on getting an injunction, or even a super-injunction under which someone cannot even talk about him having the injunction. I will come to what I call hyper-injunctions. One of the freedom of speech issues is that media organisations are generally commercial organisations, and there gets to be a point at which it is not worth their while trying to challenge the system and to get information out. With that, we return to the article 9 issue, because our freedom of speech in the House is obviously on behalf of the citizens. We need to know of grievances so that we can raise them and talk about them publicly, so that the citizens of the UK can know. If it costs £20,000 or £30,000 in legal fees to write an article, in most circumstances a media organisation will just give up. The freedom of speech is basically sold down the river, because of the costs of the legal processes.
I congratulate my hon. Friend on securing the debate on a massively important subject.
I was not at the signing of the Magna Carta, or later ones, but I have been in the House for 22 years and I have a couple of observations. One of the reasons that the Cinque ports and London are still on the statute book is because the redress of grievances was always done before the Crown—the state now—and it got its interest, its reward, its return and its borrowing from the City of London.
What we are seeing, and it has got worse over the course of the past 22 years, is the interests, prejudices and career risks of the organisation dealing with the individual, be it a solicitor or even a family or social services officer, put to the fore—not always, but sometimes—ahead of the interests of the constituent. Those officers of local authorities, courts and so on have put their interests or privileges ahead of ours, and it has happened time and time again. In my constituency, teachers have been accused of sexual misdemeanours which were later proven not to be true, and people have been threatened with their children being taken away—a whole series of areas.
Our job is to be the defence of last recourse for the individual. We stand between the individual and the misdemeanours of the state or, indeed, the lynch-mob law at the other extreme. That is why, in modern terms, and not just in terms of the ancient rights, our access to information is fundamental to continuing freedom in Britain. Once our right to have that information is taken away, the freedoms of our citizens and constituents are undermined. Parliament itself—its officers and the Speaker—should take a stand and make a statement to the effect that we have those rights on behalf of our constituents. May I have the view of my hon. Friend?
I very much agree with my right hon. Friend; he is entirely right. People recognise that we in the House act as the last resort in many ways. I will give examples from among my own constituents for whom I have acted in the last resort. We need to stand up for the citizen.
One of the problems with how things have developed, and with all the secrecy rules, is that they seem to act to protect not vulnerable people but those who make money out of the system. That is dangerous, because we then have what Councillor Len Clark in Birmingham talked about as the “penguin mentality”. Basically, whenever there is any criticism—he was citing social workers—they stand like penguins, back to back, on a different continent to everyone else, Antarctica, and they just refute all criticism. Any real problem in the system is then very difficult to deal with.
We will look at the issue of Dr Waney Squier later. Her problem is that the area on which she can argue her case is trapped by the secrecy of the family courts. That is protecting not children but the judicial process from scrutiny. It is about identifying not the children or the parents involved in the case but the rational process by which a conclusion has been reached.
My right hon. Friend the Member for Haltemprice and Howden is entirely and totally right. We need to stand up collectively, and we hope that the Speaker might do as my right hon. Friend requests.
I will now look in more detail at Andrew France’s case. I have some of the documentation with me, including a county court order—for proceedings that have now completely ended, so it is a public document, and there is no issue of privilege. The document is there in the courts. In the recitals, it states:
“upon the first and second Respondents agreeing that they will make no further disclosure in respect of this matter to any third party, including in particular the media and John Hemmings MP.”
It is somewhat surprising that I am such a threat to the system that so much effort will go into stopping one of my constituents speaking to me. He was wrongly imprisoned on a made-up allegation of rape, so he went through a serious process. He won his criminal appeal but he complained about a social worker in the process, so the authorities decided to start proceedings in the family courts. Luckily, an excellent judge junked it in the bin, because it was transparently such nonsense, and everything ran smoothly for the family. However, my constituent was under no illusion that had he not agreed to those recitals in the court order, the council would have taken action—he was told—which would have been to apply for a care order taking his four-year-old daughter into care.
Exactly. The court order is slightly different from that, because it is in the recitals. Some court orders prohibit people from talking to Members of Parliament, but, because it is in the recitals, it implies an agreement. It is slightly more complex, but, in essence, a lot of pressure was placed on him to agree not to talk to me. The threat was that, if he talked to me, they would apply to take his child into care. A note from his barrister, June Williams, said:
“All the advocates stressed to me the danger of Father having any contact with John Hemmings MP”—
I wish she had got my name right—
“(for the Liberal and Democrats).”
She did not get the party’s name right either. I shall miss out a couple of the points that she mentioned, because they are totally untrue, but she continued that he was “scathing” about the care system
“and had been heavily criticised by the Court of Appeal about his involvement in cases. The collective view was that he would do more harm than good. Mr Grove confirmed that he advised Mother not to contact the media again and she confirmed that she would not. I spoke to Father about this, as the parties had prepared the recital to the order about the parents not contacting the media or John Hemming”— she got my name right that time—
“or any third party about this case. Father was very defensive at first and said ‘No’ and that effectively this was a gagging order,” which, of course, it is.
Surely, it must be the case that any right-thinking court that had informed itself properly—in this case, it would have to be a higher court revisiting the decision—would come to the conclusion that any agreement made under duress would be a nullity and void.
I agree with my hon. Friend that it is completely wrong to be made to agree not to talk to one’s MP. I also think that that process of bullying is a contempt of Parliament and that action should be taken by Parliament to deal with it.
The note continues:
“I explained to Father to think carefully about his actions especially the impact on the child”.
It goes on to talk about other children getting hold of this and causing difficulties, but talking to one’s MP does not inherently mean that something will enter Parliament; it merely means getting additional support and explanations. The note goes on:
“Father said that he went to the media because he wanted to clear his name”— which is fair enough—
“having suffered negative coverage in the media at the time of his trial. I stated that I understood why he did it, but stressed it was the potential impact on his child that he must give consideration to.”
He has been portrayed by the media as a rapist and wants to get publicity that says that he is not. I find it odd that it is thought that trying to get publicity to clear his name would cause problems for his child.
The note continues:
“Mr Grove joined me, whilst I was speaking to Father in the waiting area, and reiterated the danger in Father in having any contact with John Hemming. I advised Father that he must have faith in his legal team, and that contacting 3rd parties such as John Hemming, would not be consistent with working alongside his legal team. I stressed that John Hemming would not assist him any better than his legal team, at the fact finding hearing. I urged him against such further contact and sought his confirmation as to whether he was agreeable to the preamble to the order. Father at first said that he would agree to it but was not happy about it. I stressed that I needed to be certain that he was in full agreement to it, and after Mr Grove had spoken to Father about this, as mentioned above, Father stated clearly that he would agree to it, and appreciated the point that I was making.”
The essence of it is that he has no real choice. If he does not agree to it, the local council, of which I used to be deputy leader, would take action to take his child into care.
On the processes of councils, it is interesting that I have discovered that their senior management and councillors have no knowledge of what is really going on in social services departments throughout the country on a day-to-day basis. There is no real scrutiny in the councils, and the fact that elected officials are in charge of them does not result in any proper scrutiny.
That is one example where it is obvious that action was wrongly taken to bully somebody into agreeing not to contact me. I have to be very careful with the example of another of my constituents, because proceedings are continuing, so I shall have to refer to historic information. It may be best if I do not name this constituent, because it will save difficulties. She is 26 years old and has mild learning difficulties. She came back to Birmingham, having been separated from her family 10 years ago. A consultant psychiatrist’s report quotes the police in relation to the situation faced by my constituent, who was on the electoral role in my constituency for the general election. I should also add that Acocks Green is part of my constituency and it has an Iceland shop.
The report states:
“Police records made available to me via the instructing Solicitors provide details of the incident on 8/10/09, reported as an abduction.”
They say that she was abducted by her family. The report states that the description from the police was that she was
“out shopping in Acocks Green Village, with 2 other residents” from her home. It goes on to say that, while in Iceland, she
“saw one of her sisters. The sister asked the carer for contact details but this was refused. She left the shop in tears. In the aftermath of this incident” she
“and her party were walking away from ‘Iceland’ a silver car pulled over, containing” her “two brothers.” The report goes on to say that
“it is described in the Police report that when the silver car pulled over” she
“ran and hugged one of the males believed to be her brother, before getting into the car and being driven away. A history of” her
“being the subject of an allegation of forced marriage was mentioned. Concerns were mentioned in the Police report that family will try to take her out of the country,” which is refuted by the family.
The report continues:
“It was stated ‘the Airport Unit at Birmingham Airport was informed so that any immediate attempts to remove” her
“from the country could be identified.’
It goes on to say that she
“was found by the Police at her mother’s home address in Sparkhill, Birmingham. A large number of family members were present and a party atmosphere was described. It was stated that” she
“‘was unequivocal that she wished to remain with her parents’ and when it was explained by police that it was not possible but she could remain with her sister she was very excited. It was also stated ‘it was established that there was no legal authority to remove” her
“to the care of Social Services and no authority to use force to do so.’”
She was separated from her family for 10 years and found them near where they live. She ran into the car with her brothers, went to her parents’ house and there was a party because they had found her after 10 years. They went to court and a social worker from Birmingham—
This particular part is not active. It is a distinct proceeding that relates to a decision taken in 2009. It is important that hon. Members gain an understanding of the basis on which these decisions are taken. It is said in the Court of Protection that decisions are taken via the judge, who relies on an expert witness. I will read out the expert’s report that empowered the local authority to get a decision from the judge to put my constituent in a home. The report has a heading and includes the names of a social worker and the witness, but I shall not mention them. The specific question was: where does she want to live? It went on:
“Does the service user understand the information necessary to make the decision at this time?”
The answer given was “Yes” and the report said that she had
“listened and quickly responded that she had heard but wanted to stay with her family.”
It is clear, therefore, that she had a view of what she wanted.
The report also asked:
“Can the service user retain the information for long enough to make this decision?”
The answer given was that she
“is quickly stating yes, she is not giving reasoning or considering risks which she herself has previously expressed relating to potential forced marriage and not wanting contact with family members.”
The report went on to ask:
“Can the service user weigh up the information in order to make this decision?”
The answer given was that she
“is not weighing up information about different options for her accommodation. She will only state she wants to live with her mum and dad or sisters. She said that she likes to make people happy and that she will be happy if her family are happy. Her family will be sad and angry if she leaves so she would like to stay with them. I suggested she could have continued contact with her family even if living elsewhere but” she
“said this would make them angry.”
The report concluded:
“The result of this Capacity assessment is that in relation to deciding accommodation” she “does not have Capacity.”
That is not really a long assessment in terms of the Mental Capacity Act 2005. Where in the assessment is there an attempt to assist her in making her decision? There is no record of it whatsoever. The assessment is given as a sufficient basis to, basically, imprison her. It was in secret and there was no accountability and no second opinion at that stage.
I wrote to a Minister who told me to write to the Care Quality Commission, which told me to write to the solicitors, who did not respond. I wrote to the council, which told me: “The judge has banned us from talking to you.” I wrote to the Official Solicitor—this is a mental capacity case and the Official Solicitor has been appointed to deal with her best interests—and I got a letter back that said:
“You are correct when you suggest that I take the view that I am not accountable to you as an MP for the way in which I act in individual cases.”
We have a sort of vacuum here. There is no proper accountability in this area whatsoever. Her sisters were talking to me and were threatened that they would be in contempt of court if they continued to do so. One of the sisters is a constituent and another one lives just outside my constituency. We have here another contempt of Parliament, where effort is being put into stopping external scrutiny of the processes.
In the case I am talking about, a large sum of money has been spent on keeping this particular girl in the custody of the state—she is effectively a secret prisoner. The family has expressed the view that the true reason she was taken into care some 10 years ago was to prevent the investigation of an allegation of sexual assault against a member of staff of the city council. They think that the reason this kicked off is that, when she came back to Birmingham, someone did not want the investigation of the sexual assault from 10 years ago to kick off. I have seen some of the police records, and the family have a reasonable case for saying that that might be the motivation underlying such a massive expenditure of public money. Whatever way we look at the matter, this is a dreadful case and it is very clear what is going on. It has been said that her father is a risk to her. However, he died last July—possibly partly as a result of the stress of the case—so he is not much of a risk now. It is therefore difficult to understand what the justification is for what has been done.
The Official Solicitor’s answer is that he is accountable to the court. However, I cannot see where the real scrutiny of that process is. Let us consider the case I mentioned earlier—the £37,000 case—which also involved the Official Solicitor. Obviously, Alastair Pitblado does not trundle around the country like Father Christmas, visiting every court for a few seconds. We are talking about members of his staff, who will vary in calibre. As far as I can see, there is no real scrutiny of the Official Solicitor. Yes, the court may spot something, but it is very difficult. Who is actually acting to protect somebody against what the Official Solicitor does? That is a very difficult question. In addition, I have asked if I can go and see the constituent concerned and have been refused. So, someone is being held incommunicado from her Member of Parliament.
On the issues surrounding what can be done as a last resort, I shall discuss another constituent: Michael Singleton. His mum was very surprised that he had been jailed for five years, given that the allegation was that he had intentionally set fire to the house they were living in and had gone back to bed in the same house. She came to see me and we filled in the forms for him to appeal to the criminal Court of Appeal as a litigant in person, after which he was released. That shows the importance of having the last resort because the state would have wasted a lot of money keeping him locked up when there was nothing to be gained from doing so. It was lucky that that case was not covered by any confidentiality and that no one was trying to ban him from talking to me or his mum or anything like that, and he was therefore released.
The other person I have mentioned is still basically in the power of the state, and the people concerned are banned from coming to talk to me. Therefore, I cannot give them any advice on how they might be able to appeal the process and challenge things. I do not have a degree in law, although I have a certain amount of experience with it. My degree is more science-based. I shall also mention another, more recent constituency case. I will not name the person concerned because it might be sub judice. We are trying to get it to be sub judice.
Order. May I just say to the hon. Gentleman that it is quite proper to refer to cases to illustrate the general debate, but this is a wider debate? He should not spend too much time on any single case because I know that other hon. Members wish to speak.
I will speed up a bit. Dr Waney Squier is another example of someone who, to clear her name, needs access to secret material that does not affect any children or parents. However, she cannot get access to that.
We should consider again the wider questions of court decisions in respect of contact with Members of Parliament and others. I have here a case from 2005—folio No. 773. It is an injunction that says that if someone disobeys this order, they may be found guilty of contempt of court and may be sent to prison or fined or their assets may be seized. I am not going to name the parties in that case because more research needs to be done into it. However, without me putting this into parliamentary proceedings, I cannot even write to the people involved. Obviously, an ordinary letter not connected with proceedings in Parliament is not covered by the Bill of Rights. Paragraph (1) of the document concerned states:
“Neither the Defendant nor any third party with notice of the Injunction may communicate with any third party regarding these proceedings in general and the potable water tanks or system referred to in the Injunction in particular.”
Order. I am sorry to interrupt again. I want to go back to my previous point: we must not deal with active cases. Will the hon. Gentleman assure the House that this is not active?
The case has not been active to my knowledge since 2006. It is definitely not active now. I think the case ended in 2006—the date of the injunction—partly because of the trap that the individual concerned has found himself in.
It may assist hon. Members if I draw my hon. Friend’s attention to the Select Committee on Procedure’s 2004-05 report on the sub judice rule. On page 19, that report makes it clear that the purpose of the sub judice rule is to protect active proceedings. It also makes it clear that criminal proceedings cease to be active when they are concluded by verdict and sentence or discontinuance, and that civil proceedings are active when arrangements for the hearing—such as the setting down for a case for trial—have been made until the proceedings are ended by judgment or discontinuance. If there has been a judgment or a court order, there can be no question of the matter being sub judice.
I thank my hon. Friend for that. In fact, in this case, that goes even further because there is nothing going on. Not only was there a judgment or court order injunction in 2006, but nothing has been going on since in the courts— although there may have been other things going on in the outside world in relation to the matter. Returning to paragraph (1)(a) of the document, it states:
“The third parties with whom the Defendant (and/or such third party) must not communicate in that regard include (but are not limited to):
(i) A or any other owner or operator of ships.
(ii) The United States Coastguard or any other coastguard or similar organisation;
(iii) B or any classification society;
(iv) Members of parliament, journalists and lawyers, with the exception of lawyers or legal advisors instructed for the purpose of assisting his defence of these proceedings.
(2) The Defendant (and/or such third party) must not communicate to third parties (without prejudice to the generality of the terms of the Injunction):
(a) The existence of these proceedings;
(b) The existence or terms of the Injunction;
(c) The fact that the potable water tanks of C and D were recoated;
(d) The fact that the potable water tanks of other vessels (such as the E and F) were also recoated.
(e) Anything to do with the potable water tanks of any of the above-named vessels, their coating or recoating which he has learned as a result of these proceedings, including without limitation the content of paragraphs 5 to 7 of the first affidavit of G.
(f) Any speculation that the illness of any individual (including without limitation the collapse of H) was, has been or will be brought out by the chemical composition or the chemicals present in the coating of the potable water tanks on the C.”
There is a lot of stuff in that. It goes beyond a super-injunction; it is what I would call a hyper-injunction. It is an injunction in a case where someone is not even allowed to refer to the existence of these proceedings. There is the desire not to have the matter mentioned to Members of Parliament. There is also the interesting reference where it says
“with the exception of lawyers or legal advisors instructed for the purpose”.
I believe that the person concerned got a two-week suspended sentence for talking to a lawyer about whether he could have it on a no win, no fee basis. So there is a real question about whether he can get a fair trial on this basis. One of the things to which he is not supposed to refer is the fact that in the potable or drinking water tanks of these vessels, the paint was defective. In certain circumstances, the coating could break down and release small quantities of a toxic substance into the water contained in the tanks. What we have, therefore, is passenger vessels trundling around the world with potentially toxic substances being released into the tanks, although to be fair, the problem with the coating in the tanks is being fixed; but one of those who worked on the tanks collapsed as a result. We also know that the situation continued.
The reason why I have not named people is simple: I do not know the nature of the toxins or whether they are serious, and they might not be. However, I am greatly worried about transparency, and I might pass these details to a Committee of the House, if there is one that wishes to look at them. From a health and safety point of view, we want to think that the water we are drinking is safe and that it will not cause health problems; the difficulty in this case is that we do not know. What we do know is that corporations used the massive force of the law to gag an individual and truss him up so much that he could not really challenge the process.
What my hon. Friend has just said is really quite extraordinary. As I understand him, he is saying that a court in this country made an order with a whole load of provisions in it. What particularly attracted my attention, however, was that it prohibited someone from talking to a Member of Parliament and from referring to the existence of the proceedings. When one thinks of secret courts, one thinks of unsavoury regimes such as those in Burma, Cuba, Hungary in the 1950s or Stalin’s Russia, but one does not think of the United Kingdom. How can a judge feel it appropriate to make an order making it unlawful—supposedly—to refer to the existence of proceedings?
The person in question could actually be jailed for telling his MP that he had been in court case No. 773. What is so sensitive about that? In practice, even family court proceedings are not that confidential. I think this case was in the Commercial and Admiralty court. My first question is not just how the hell this could happen—I apologise for the non-parliamentary language, Mr Bone. How does this happen? How many more of these cases are there? How many secret cases do we have in this country, with people being banned from even saying that the case exists?
In the past couple of days, Lord Neuberger has said that super-injunctions are dubious. There is an argument for a temporary super-injunction from time to time in a fraud case so that money can be chased around the world, but it is complete nonsense to have something that is still in force almost five years later and whose existence cannot even be mentioned outside parliamentary proceedings. In this case, there is also the health and safety issue. I do not know how serious it is, although now that the case has been mentioned in parliamentary proceedings, I will send people a copy of Hansard, ask for their comments and see what explanation they give. If I can find an appropriate Committee in the House to pass the details to, I will do so.
This is not the sort of thing that should happen. This is not about transparency and accountability, but about using lots of money. We come back to Magna Carta and somebody with a lot of money. We are talking about various companies with lots of money gagging some poor individual. Where is the equality of arms in that? Where is the idea that we will not sell justice? The courts may not be selling justice, but the legal process as a whole is not really very balanced if this is the sort of thing that goes on.
However, let us move on. I hope I have given enough examples and that everyone is happy, but I think we should move on to the more general points about contempt of Parliament. As colleagues know, the House of Commons has the power, by referring cases to the Standards and Privileges Committee, to deal with contempt of Parliament. In fact, the last example came about at my suggestion. I moved a motion to refer someone to the Committee last year, when Withers threatened me with legal action unless I agreed not to say something in the House. That was an obvious and very straightforward contempt of Parliament.
There is an interesting case involving the Member for Preston in the Parliament of Victoria in Australia, and I have a copy of the Legislative Assembly Privileges Committee report if any hon. Member would like to see it afterwards. The case is interesting because it involved threats of legal action against a constituent for passing information to a Member of that Parliament, with a view to preventing that Member from speaking about an issue there. I think we are bang to rights, because the case provides exactly the precedent that would be necessary to justify using contempt of Parliament proceedings against those who wish to prevent people from talking to Members of Parliament in the UK.
The issue is quite straightforward; in fact, it has been looked at in the domestic courts to determine the extent to which communications with Members of Parliament are potentially privileged. In the case of Rivlin v. Bilainkin, the judgment, which was delivered on
I do not know which level of court would make that judgment, but it produces an enormous perverse incentive. That became apparent during the case involving my hon. Friend Damian Green—now the Minister for Immigration. He was arrested for handling information that had been leaked from the Government; it was actually in the public interest that he handled that information, but we will put that to one side. One of his defences was that he used the information in his role as a Member of Parliament. However, there was a vast quantity of information—I handled it and he did, too, because he worked for me at the time—and we made judgments all the time about not putting things in the public domain in Parliament. By doing so, however, we put ourselves at risk. I can think of a couple of secret pieces of information—I will not relay them now—that would have affected terrorism and which we did not put in the public domain. By not putting them into a parliamentary question or into parliamentary debate, we put ourselves at risk. The impact of this judgment therefore seems perverse in terms of public policy and in terms of its impact on the behaviour of individual Members of Parliament.
The question is how closely something is connected with proceedings in Parliament. A Member might say that something will, under no circumstances, be connected with proceedings in Parliament. I think that deals with my right hon. Friend’s valid concern. We all deal day to day with real situations and we sift information, and it should not have to find its way into a debate to be protected by privilege. I was particularly concerned about the arrest of my hon. Friend the Member for Ashford because the Executive were interfering with Parliament; there is no question about that. Parliament is here to protect citizens of the UK, not MPs. The individual who was trussed up by that secret hyper-injunction needs protecting. We all need protecting from water that people are being told to drink without being warned that there are potentially toxins in it. That causes me great concern. This is about protecting people, not about using money and wealth to get legal processes to gag people. There is a way round these issues, but it requires Parliament to stand up for the people and for people’s right to communicate with Members of Parliament.
The same issues have cropped up in other jurisdictions. Obviously, all the common law jurisdictions tend to have a similar process. I gave the example from Australia, which was valid there; however, there is also the interesting case of Germany, which involves a similar sort of protection. Obviously, the exemptions on the continent are quite different. There is protection for members of the Bundestag, but not members of the Bundesrat, which is not too surprising. That protection is under article 47 of the Basic Law, which relates to the right of refusal to give evidence. Members of the Bundestag have a right to refuse to say where the information they have has come from.
We need to go further than that. We need to protect people’s right not be bullied. Somebody might say, in all innocence, that they would like to talk to their MP about a housing problem or something else, but they might then be threatened and told that if they try to get help, action will be taken against them.
We have looked at the issue of the accountability of the Official Solicitor, who is basically not accountable at all, not on an individual case basis. We were lucky with the Gilliland case because that is a probate case in open court. Most of the cases are in secret: there is no access to the transcripts, there is no way of challenging the experts’ opinions, and there is no independent scrutiny. Often the people involved are quite poor and may not be very bright, and it is a challenge getting accountability in that situation.
The accountability of the judiciary depends to some extent on openness, at least open judgments. There is the issue of article 6 subsection (1) of the European convention on human rights, though some people may not be so enthusiastic about it:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
There are exemptions to parts of the trial mentioned there, but judgment should be pronounced publicly. What is the basis of banning the mention of proceedings and banning telling MPs about proceedings’ existence? How many of those cases do we have?
Looking further into issues of accountability, I will cover two other cases quickly. One is of Rachel Pullen, which is in the European Court. She can be named; there are no problems there. I have a psychiatric report indicating that she does have capacity. The Official Solicitor conceded the case against her when she was told she did not have capacity. I have Husan Pari—a very similar case. The Official Solicitor was appointed in part because an IQ test was given through an interpreter who did not speak the right language. With someone who could speak to her in her own language, she has the capacity to understand the case. She was not allowed to run her own case. I am doubtful about the case I mentioned earlier. The European Court is going to look at two of those cases.
The question is: is the inter-play between the estates of our constitution operating correctly? Obviously, Government Ministers should not be looking at the decisions of judges, but Parliament should, and particularly at the secret courts. Parliament has a role to do that. I have asked for an inquiry into all the secret prisoners we have. There are a number of different types of secret prisoner. There are people such as Matthew Hawkesworth; I cannot work out why he is in jail, but he is locked up. Martin McCabe is an interesting one. His wife, Susan McCabe is living on the continent, having been on the run. He was jailed for driving her to Dover. Susan McCabe’s mother, Conservative County Councillor Janet Mockridge, is particularly irate about the situation.
Yvonne Goder was jailed in secret for a short while last year. Her committal hearings and various discussions were all held in secret. She believes that three properties were taken from her family. This is a Court of Protection matter. On
Here is the difficulty. As it is a Court of Protection, the person cannot be identified without matters going into parliamentary proceedings. That causes all sorts of problems in terms of investigation. I hope that that will not be a problem in future. She is another secret prisoner; what was the situation there? Why were there secret committal hearings? It is a contempt issue.
Other MPs have cases. Jim Dobbin has been working with me and my hon. Friend Mr Bacon on the issue. He had a situation with a family judge pressuring constituents not to talk to him. My hon. Friend Tom Brake had a similar problem, with pressure put on his constituents not to talk to him. I hope that my hon. Friend Tessa Munt will be here later to explain a similar problem. My right hon. Friend Mr Carmichael had a constituent threatened over an employment case, who was told not to speak to the MP and that they would suffer at work if they did so. There have been secret meetings with soldiers about weaponry. My hon. Friend Mr Brine referred to me a case where a housing association had been getting aggressive towards a constituent with learning difficulties, and refused to consider her case because her MP had been involved.
I am not the only one having problems. When I talk to colleagues of all parties, they all find similar problems with the aggressive way in which apparatchiks of the state attempt to ban constituents from talking to MPs. We have judges creating situations where it is made an imprisonable offence to tell an MP that a case exists. I do not think that is right, transparent or accountable.
I would like to thank the Backbench Business Committee, on which I sit, for agreeing to this debate. I am sorry about going on for such a long time, though I do not think I have repeated myself. I thank hon. Members for their forbearance, and hope that Parliament will act in future.
I am grateful for the opportunity to speak today, Mr Bone. I was about to say that your career has peaked by your elevation to your present job. However, that would not be true, because your career peaked when you were running a business in my constituency. Any move from being a businessman in Newport to a Conservative MP is a descent rather an ascent. However, we wish you well.
The case being presented today is one with which I am familiar. I congratulate John Hemming on securing the debate. We all listened in fascination to the surprising facts he detailed. I hope that there will be a positive outcome. The Backbench Business Committee has allowed me to have this micro-debate within a debate on a subject of parallel interest, although that might not be obvious. They are, however, connected by the rights and duties of Members of Parliament.
I want to talk about the conduct of our trade representative, Prince Andrew. There are difficulties. I was told on Monday that it might be unfair to say anything that might be derogatory of a member of the royal family, on the grounds that they cannot answer back. Indeed, the person involved has been defended very adequately by both the Prime Minister and the Secretary of State, and he has the 24-hour support of the generously taxpayer-funded royal spin machine working on his behalf. If he is not defending himself, he is being more than adequately defended by others. I believe that he can without any problem defend himself if he so wishes, if he thinks he is being criticised unfairly.
The question of parliamentary convention has been discussed; whether there is a convention that nothing disrespectful or derogatory is said about members of the royal family. There is nothing, as far as I can see, in “Erskine May” on the matter. If there is some spectral convention that we are not allowed to speak on the matter, I believe it should have a stake driven through its heart, and should be buried today. These issues have been debated at great length in the media, in blogs and everywhere else. Why on earth should the only people to have their mouths bandaged into silence on the issue be elected Members? Why on earth should we not be free to talk about this matter, which is of considerable interest and importance? I will be very selective in what I say today. I will certainly not quote the salacious tittle-tattle that has been in the press and I will not quote from sources that appear to be ill-founded rumours. What I want to speak about are the comments made by serious people making serious criticism.
I am determined that this debate will be as wide as possible, but it does have to be within the framework of the motion before us. It is entirely right for the hon. Member to talk about the convention and whether it should apply, and whether there even is a convention, but we cannot have a long debate on the substance. As I said to Mr Hemming, it is right to mention an individual case in illustration, but we cannot have a debate purely on that subject.
I previously had difficulty when I wished to have a debate on the subject of the misrepresentation of the swine flu pandemic by Governments throughout Europe. I was told that I could bring the subject up in a debate on the general issue of health. There is a real problem of order, Mr Bone, because of the view taken by the Backbench Business Committee. I communicated my problems with the previous debate to the Committee, where the previous Chair and the Minister involved did not think that the swine flu issue should be considered in such detail, although that was what was in the mind of the Backbench Business Committee. We are in the area of new procedures in the House and it was the suggestion of the Backbench Business Committee, including the hon. Member who secured this debate, that the debate should be allowed. If it is not going to be allowed, well so be it, but I wish to—
Order. I have the slight advantage of chairing the debate and also being a member of the Backbench Business Committee. In granting the debate, it was thought appropriate for the hon. Gentleman to speak, but not that there would be a substantive debate in relation to what the hon. Gentleman wants to talk about. He can talk about the principle, but he would have to apply elsewhere if he wanted a substantive debate on what I think he was leading to. I would also say that there is something in “Erskine May” on that.
Well, I have looked at “Erskine May”. Perhaps we could have a ruling. I believe these are points of order, Mr Bone, between you and me. There is clearly no point in continuing if I cannot have the debate that I applied for. That was the understanding of the Backbench Business Committee. I was clear at the Backbench Business Committee that I wished to raise the conduct of Prince Andrew and the harm that many people believe it is doing. If I am to be denied the chance of doing that, I will end my speech now and apply in different circumstances.
Perhaps the hon. Gentleman could cite an example of something that he thinks should be allowed to be said under article 9 of the Bill of Rights that may not be allowed to be said.
That may well be a point of order. [ Interruption. ] It was. Right. Just to help the House, “Erskine May” states on page 384:
“Unless the discussion is based upon a substantive motion, drawn in proper terms, reflections must not be cast in debate upon the conduct of the Sovereign, the heir to the throne, or other members of the Royal Family.”
Therefore, while it is possible to talk about the principle and the convention, the hon. Gentleman cannot talk about the substantive issue, because it is not a substantive motion on that point. That is my ruling.
In those circumstances, there really is no point in continuing. We are clearly in a position where there is censorship on hon. Members discussing an issue of great importance, where our country’s interests and business may be damaged. The view of the House, however, seems to be that MPs have a rule of omertà and we cannot discuss it.
Order. What the hon. Gentleman is saying now is absolutely in order, because he is referring to the principle of whether we should be debating it or not. What we cannot do is actually have the debate.
I could, but it would be an unsatisfactory way of conducting the debate. There is a principle involved. Can we, or can we not, discuss the conduct of minor members of the royal family? That is what I want to do. To do it under a device here, where I would be limited to what could be discussed, would seem to be futile. What I want to challenge today—
On a point of order, Mr Bone, it might help the hon. Gentleman to know that there is nothing to prevent him from bringing such a matter forward on a substantive motion. The problem is that he cannot do so, according to “Erskine May”, in the context of another debate, or other than in the context of a substantive motion. That is a very clear way in which he must proceed if he wishes to carry on with the comments that he wishes to make.
I say again that the way the hon. Member for Newport West was speaking just now, when he was talking about the principle and the convention, is absolutely what this debate is about. What we cannot go into, because of that convention, is the detail of what he wants to do. By all means, the hon. Gentleman should carry on and talk about the principle and whether he thinks it is right or wrong, but we cannot actually go into the substance because we are not allowed to.
I can only describe what the position is, as far as I understood it. I understood that these were new procedures under the Backbench Business Committee. I had an e-mail from my hon. Friend Natascha Engel, the Chair of that Committee, saying—because I anticipated this difficulty—that she had communicated with you, Mr Bone, and the Minister responsible. I understood that under the new procedures, micro-debates of this kind, which are not entirely within the boundaries of the motion before us, would be allowed. If that is not so, I must seek a further opportunity to debate the matter elsewhere.
It is a pleasure to take part in this debate, Mr Bone. I was very keen to do so after discussions with my hon. Friend John Hemming, because of some of the things that he had described about the bullying of constituents. The idea of a debate immediately commended itself to me because of instances in my own constituency. You will be pleased to hear, Mr Bone, that I shall not dwell in great detail on any of them, and also that the particular instance I had in mind was nothing like as severe as those mentioned by my hon. Friend the Member for Birmingham, Yardley.
I had a case where two parents came to see me about their child, who was being bullied in school. The child had an autistic spectrum condition and was also visually impaired. Those were contributing factors to his being bullied at school and the parents wanted me to help to sort it out. On a subsequent occasion, at a meeting with the school, the parents were told that it would probably be better if they did not go back and see me again. Naturally enough, I took umbrage at that, on the same basis as the stories told by my hon. Friend the Member for Birmingham, Yardley. In substance, however, it did not make much difference, because in essence I ignored the school’s request, which it had not made to me. I continued to help the parents, continued to advocate on their behalf and, indeed, met with the school. The issue was—how can I put it?—improved, if not fully solved satisfactorily.
The principle of constituents being told that they should not contact Members of Parliament is deeply offensive to me, as I think it would be to most Members. The principle that a court of law should order someone not to contact their Member of Parliament, which I was not aware of until I had detailed discussions with my hon. Friend, is even more offensive. I contend that, according to the Bill of Rights, it is not correct or possible for a judge to make such an order, because the ability of a constituent to contact an MP so that they can help to deal with a grievance, whatever it is, is of the essence—it is fundamental.
Does my hon. Friend agree that making such an order is, in effect, an attempt to interfere with the workings of Parliament by preventing Parliament from obtaining information?
Yes, I absolutely would. I am no constitutional lawyer, but my belief is that an English judge trying to make such an order is in contempt of Parliament, which is, after all, a court. I know that people tend to roll their eyes when the subject of the High Court of Parliament is raised, but the fact is that it is a court, and that, ultimately, it has sovereign power in this country.
The subject of parliamentary privilege has been raised on several occasions, and I, too, shall refer to it. The phrase “parliamentary privilege” is particularly unfortunate, especially in the modern world. The word “privilege” has almost entirely pejorative connotations. I prefer to call it the right of MPs to speak up for and defend the British people, which I think is a much better way of conveying what we mean by parliamentary privilege. In my parliamentary career, I have certainly taken advantage of my right as an MP to use parliamentary privilege to speak up for and defend the British people in my work.
A particular case came to my attention because of paperwork that was sent to me by an official in Her Majesty’s Revenue and Customs. The dossier showed that people from eastern Europe—criminal gangs, in fact—were coming to this country, getting employment in low-paid jobs and then applying for tax credits. Once the tax credit claim had been made and a British bank account had been set up for the payments, the fraudsters returned to their home country. They left their employment but continued to receive tax credit payments which were extracted using a cash card in various points east—in different cities in eastern Europe. In some cases, the fraudsters managed to make several thousand pounds, which they used to buy homes in parts of eastern Europe where property is much cheaper: Slovakia, parts of Romania and elsewhere.
When I was sent the information, I thought that it was in the public interest that something should be done, and that that was part of my job as an MP. I have sat on the Public Accounts Committee since I was elected in June 2001. Indeed, my right hon. Friend Mr Davis was the Chairman of the Committee on the day that I first attended a meeting of it. I have had great concern throughout my parliamentary career for the proper use of public money, and for ensuring that it is not squandered.
I thought that the right thing to do was to make sure that the information came into the public domain, but I was careful to ensure that nothing might be disclosed that would impede any investigation of what was happening, or disclose to anyone how it was that I had come by the information, other than to say that it was sent to me by an official. I certainly did not want to disclose who the official might be. I had his name and mobile phone number on my Blackberry and other information that would have disclosed his identity, but I felt safe in the knowledge that were I simply to send the dossier to the Comptroller and Auditor General at the National Audit Office and ask him to investigate it, things would happen, something would be done and the fraud would be stopped. Indeed, that is what happened.
Imagine my surprise to find that, in doing his job, another MP—a colleague of mine to whom my right hon. Friend the Member for Haltemprice and Howden referred a moment ago—who is now the Minister for Immigration was arrested by the police. That caused me not a little concern. I remember at the time that my hon. Friend’s office was ransacked by the police in what I regarded as an unlawful and unwarranted search—in fact, unlawful search and seizure of his possessions and documents—and that his Blackberry was taken away from him. One can imagine what I started to think: what if that happened to me? What if my Blackberry were taken away from me, with the telephone number on it of the HMRC official who had given me important information which I thought it was my job to disclose, in the public interest?
For that reason, I was deeply perturbed by the arrest of my hon. Friend. It breached some important principles. One of the most important is that there has to be a certain amount of agreement. Our political system can operate only if there is agreement between different political actors and parties on certain fundamentals, and one of them is that the Government of the day shall not use the resources of the state to harry and intimidate their opponents. Indeed, I was pleased when Her Majesty’s inspectorate of constabulary produced its report, “Review of the Lessons Learned from the Metropolitan Police Service’s Investigation of Home Office Leaks”, in which it stated:
“Departments and the Cabinet Office should have the capability to deal with the matter”— the leaks from the Home Office—
“and should not have to rely on the police. The smooth running of Government is an understandable concern but not an obvious matter for the police.”
When the former chief constable of the British Transport Police, Sir Ian Johnston, undertook his inquiry at the request of the Government, he also found that the actions of the Home Office and of the police had not been proportionate. He said that the leaks amounted to embarrassment for the Government but did not threaten national security.
The whole case was peculiar to anyone who had followed the legislation in the late 1980s which put the security service on a statutory basis and separately redefined the law of official secrets. A significant purpose of the legislation was to remove from the ambit of the criminal law whole swathes of Government information, so that the wrongful disclosure of information by an official to someone else would not itself be a criminal act but would be a civil matter that would be dealt with under the law of employment contract. That was a welcome development. One would not have expected that disclosures of the kind that were made could possibly have led to an arrest for potential criminal action because there was no criminal action, as was subsequently shown.
I certainly would not have expected to have the police knocking on my door, looking for papers, because of what I had been doing in respect of the tax credits fraud committed by people from eastern Europe. Following the scandal of the arrest of my hon. Friend Damian Green, I hope that we have taken a step back and recognised more rightly where the parameters should lie.
Would my hon. Friend agree that as the legislation aimed to protect whistleblowing, given that MPs are the whistleblowers of last resort, there should be greater protection of disclosures to MPs?
I absolutely agree. The role of an MP is to be an advocate of last resort. We all know that people come to us when they do not know where else to turn. Sometimes, sadly, they come to us too late, when there is nothing that we can do. Sometimes we see in our surgeries cases about which we think, “If only they had come a bit sooner, we might have been able to act.” I had that happen with a farmer in my constituency who had been made bankrupt by the time he came to see me, by which time it was too late to do anything for him. My hon. Friend is absolutely right. Because of the nature of an MP’s work, and the nature of the contact between a constituent who has a grievance and the MP, we should get extra protection.
I mentioned that I would speak about parliamentary privilege, or the right of MPs to speak up for and defend the British people. A quite different case involved an approach made to me by people who were concerned about what was happening at the Manchester College of Arts and Technology, or MANCAT, as it is better known. They approached me in my capacity as a member of the Public Accounts Committee and because of my known predilection for detestation, if one can have a predilection for detestation—my known dislike of the waste of public money might be a better way of putting it.
The case involved MANCAT, which has subsequently merged with City College Manchester, and basically concerned investigations into management practices which had been hampered because MANCAT officials were alleged to have destroyed auditable documents and had reached financial settlements with certain ex-members of staff on the condition that they signed confidentiality agreements—gagging clauses—in their settlement agreements, which were obviously paid for with public money.
The point at issue was that staff felt that they were under pressure from the college to falsify student attendance registers and other funding-related paperwork in order to enable MANCAT to claim extra money from the then Learning and Skills Council. Indeed, one witness was planning to explain the extent of the malpractice at an employment tribunal where she had been in the process of seeking redress for constructive dismissal, but she was offered a financial settlement with a gagging clause, so she could not easily take the matter further.
As a result of the privilege granted to Members of Parliament, I was able to draw those matters to public attention in two Adjournment debates over a period of months. The Guardian later wrote an article on
I accept your point, Mr Bone, and will refer to the matter of my hon. Friend Damian Green. Does the Minister worry that there are moves afoot to adjust, in the light of political correctness, the so-called role of the Member of Parliament and degrade it? Are they not missing the biggest wood for the biggest trees by not realising that the Member of Parliament, who is elected by voters and who, if given privilege and using it responsibly, is the best possible defence for the right of the individual to obtain the protection that they need through that privilege, not for our sake but for theirs?
My hon. Friend is absolutely right, and that is why I labour the point that “privilege” is an unfortunate word. It is better to speak of the right of Members of Parliament to speak up for and to defend the British people, because that is what we are talking about. My hon. Friend is right that those who want to chisel away at the rights of Members of Parliament are chiselling away at the rights of the British people.
At the time of the arrest of my hon. Friend the Member for Ashford, I received a number of e-mails from people who were under the impression that I, as a Member of Parliament, thought that some people, including Members of Parliament, should be able to break the law, and that we were somehow above the law. That was another aspect of the unfortunate phrase, “parliamentary privilege”, because that is how they had understood it. It surprised me—I had always understood it in the terms used by my hon. Friend the Member for Stone—to realise that the majority of people had put a completely different connotation on it. My hon. Friend the Deputy Leader of the House is listening to this debate, and perhaps Parliament should consider the whole question of what we call such things. It is misleading, and it is important that we understand what we are talking about.
One of the stupidest things I ever heard a journalist say was when someone was defending The Daily Telegraph sting, when Members of Parliament were secretly recorded in their surgeries. I thought that that was an outrage, as did many other people, including many in the media who thought that it was a step too far. I did not catch the journalist’s name, but when trying to defend the sting he said on the radio, “Well it’s not exactly the confessional.” I remember thinking at the time, as I shouted at the radio, as we sometimes do, that that is exactly what it is.
All Members of Parliament know that it is a fairly common experience for people to come to our surgeries and to burst into tears. Last time that happened to me was the week before last, not last week, but two weeks ago. It happens quite frequently, because when dealing with constituents, we are often dealing with them as an advocate of last resort when they have nowhere else to turn. Sometimes they come with a supporter—a friend—to help them, because they do not know whether they will get through it and whether the Member of Parliament will be helpful or a scary and intimidating figure of authority.
I have had people come to see me who looked completely balanced and calm, and in full possession of their faculties, only to discover when I said the wrong thing that I triggered a wave of emotion about things that had happened to them. From being perfectly collected, the constituent would suddenly break down in tears. It is exactly a confessional. I can think of a range of hypersensitive cases at my surgeries involving child custody, marital breakdown, allegations of paedophilia, armed robbery, allegations of corruption, and so on, and other hon. Members will have had similar experiences. Our ability to help people in desperate situations is what we want to protect.
Does my hon. Friend accept that journalists are liable to be at the rough end of this, because of certain aspects of investigative orders, European arrest warrants and so on? Here we go again on the European issue. The plain fact is that the defences that are available through Members of Parliament to protect the public include invasion from external legal requirements that are imposed on us and undermine our ability to carry out our duties. That includes the Bill of Rights and a whole raft of other things. People may find that funny, but it is deadly serious, and the more they laugh, the more stupid they look.
I would never say of my hon. Friend, “There he is, going on about the European issue again”, and I certainly do not intend to do so today. He is right. What exercised me most in the recent debate that the Backbench Business Committee held in the main Chamber on prisoners voting was not whether prisoners should have a vote but, as my right hon. Friend the Member for Haltemprice and Howden said in that debate—sadly, he is not in his place at the moment—the second of the two main points at issue. The first was whether prisoners should have a vote; the second was who should decide. As he pointed out at the time—I subsequently read the judgment of the European Court of Human Rights—the court misinformed itself. It said things in its judgment about why it thought prisoners in the UK should have a vote that were factually inaccurate. I have a lot of sympathy with what my hon. Friend the Member for Stone says.
I do not want to detain the House much longer, except to say that, as my hon. Friend the Member for Birmingham, Yardley said at the outset, if Parliament is blinded or deafened by the acts of others, it cannot see or hear all grievances, and it is very clear from the Bill of Rights that one of our purposes is to be able to see and hear all grievances—I emphasise “all grievances”—and to do something about them. If Parliament cannot see or hear all grievances, it cannot seek to remedy them.
The whole development of English constitutional thought owes a great deal to the word “remedy”. The history of administrative law in this country and how it has grown over the past 300 years shows that the seeking of a remedy was the point at issue. When our constituents come to us with a grievance, they are seeking a remedy. The connection and the relationship between us and our constituents is a sacrament. It is something that we must work hard to protect; it is not something that we can take for granted. We must uphold it, cherish it, and protect the right of Members of Parliament to speak up for and to defend the British people.
I had not intended to speak in this debate. Tomorrow we have a debate on the Floor of the House on parliamentary sovereignty, an issue on which I have spoken several times in this Chamber, which is the best means of expressing views that sometimes get lost in the House, with all the restrictions on debate that are imposed on Members of Parliament through the wilful use of programming. I wait with enormous interest to hear what the Deputy Leader of the House has to say.
I alluded to one aspect of this matter just now; I have spent some time taking an interest in the principles that hinge on the question of a Bill of Rights. I am all for a Bill of Rights, but the question is: which one? Similarly, on the question of the rule of law: which law, whose law, and who is going to enforce it?
Eventually, one returns to a question that I am sure exercised those who devised the original Bill of Rights in 1689, which as it happens was never incorporated in an Act of Parliament. Nevertheless, by convention, and therefore by custom, that statement was enforceable in its own fashion, and deals with some fundamental matters. I want to know exactly how, in the context of the review set up by the coalition Government, matters concerning the proposed new Bill of Rights will be tackled. I may be unduly suspicious, but I want to know whether the Bill of Rights will enhance and increase the rights of the people of the United Kingdom. That point will emerge in due course and perhaps the Deputy Leader of the House will be in a position to tell us when he responds to the debate this afternoon.
One difficulty is that, as I conceive it, the Bill of Rights would not withstand measures such as the European arrest warrant, investigative orders and powers of entry. We heard about such matters in a debate the other day on the so-called Protection of Freedoms Bill, and about the problem of the rulings by the European Court of Human Rights. Fairly recently—I think it was
Two days ago I attended a European Committee with the Lord Chancellor, a man I greatly respect. We have totally different views about these matters, but we should not think that he does not understand that the arguments I present must be answered. That is why he came to the Committee. He was talking about the charter of fundamental rights, which is directly related to the issue of the Bill of Rights. If we have a Bill of Rights, will it be superior in some fashion to the European treaties and to the European Communities Act 1972, which incorporates the protocol for the charter of fundamental rights? If people do not understand that matter, they should start reading the material. There is no point in pontificating about a Bill of Rights if we do not understand the hierarchy of laws. That hierarchy says that European Community law comes first and is enforceable by the European Court.
When the Lord Chancellor says, “Oh, nothing has changed; we had a discussion on the Lisbon treaty and a lot of people got it all wrong”, I am bound to point out that he voted for the Lisbon treaty and for the charter of fundamental rights—unlike the Conservative party—and he voted against the referendum. I am not criticising him for that; I respect him for it. That is his right. However, one provision in the Bill of Rights is the right of free speech, including in the House of Commons and elsewhere. It is similar to the question about privilege, or about how the rights of people in this country are expressed through the rights of their Member of Parliament, to which my hon. Friend Mr Bacon so rightly referred.
If we are to talk about a Bill of Rights, let us get the hierarchy right. I do not want a public relations job done on that, or any Government spin or spivvy attempt to convince the British people that they are getting something that they are not getting. Let us have it out; let us know that this is the supreme law of the United
Kingdom, and not something churned out to give people the impression that they are getting something when they are not.
I want to know what the relationship will be between the Bill of Rights and the European convention on human rights, and between the Bill of Rights and the charter of fundamental rights. Therefore, I have two simple questions. At its apex, will the Bill of Rights be supreme in UK law, enforceable and enforced by the Supreme Court, as against, contradictory to and, if necessary, inconsistent with the European Court, and the assertions of certain members of the Supreme Court that they have ultimate authority? Will that be the case notwithstanding the European convention, the charter of fundamental rights and the European Communities Act 1972 and all treaties under that? If the Bill of Rights is to be effective, I want it to be a real Bill of Rights and not simply a rather obscure version of an amalgamation of those other charters and conventions. At the moment—I do not know whether the Deputy Leader of the House knows this—chapter 3, I think, of the Lisbon treaty sets out, in article after article, the source and derivation of the charter of fundamental rights. In terms of derivation, there is the United Nations this and the European Court of Human Rights that. There is a list of sources, and I trust the Minister has it with him so that he will be in a position to answer my question. Which legislation will have superiority?
One topic that has been at the top of media issues recently is the development of the law of privacy. A number of us share concerns about that, and I am interested in the hon. Gentleman’s views.
My views are very strong indeed. I can reasonably claim to have been the progenitor of the Calcutt inquiry, because some years ago I tabled an early-day motion that attracted more than 300 signatures and called for an Act on privacy, which would have been a tort, and ensured that the ordinary citizen had the right to privacy compared with those in the public eye. I distinguished matters of interest to the public from those genuinely in the public interest, and that subject remains a matter of deep concern.
It is also true—here I make a concession—that article 8 of the European convention contains a right of privacy, but my answer to that is not that I have any objection to the rights of privacy that are now in that convention. The question that is far more important than any other, in my view, is this. Why should people assume that we need a European convention? By the way, we drafted the convention for the purposes of—shall I put it delicately?—helping other countries to understand that there were rights that might be usefully employed in their own countries. There, we were helpful, but what is to prevent us from legislating, from passing laws, on our own terms, through our own elected representatives, that provide the kind of rights that otherwise are provided under things such as the European convention or the charter of fundamental rights? In other words, will this law be indigenous? I look at the Deputy Leader of the House deliberately at this point. Will it be, to use a slightly unusual expression, an autochthonous United Kingdom law or will it be a dependent law? Will there be a surrender to the so-called universality of law, or will it be something that is modelled and devised by the British people, for the British people, given that we are able to claim that we have been the defenders of liberty and freedom throughout the world for a very long time?
Last night I was at a dinner at which people were discussing the future of conservatism. I had the temerity—I think some people were quite glad—to mention Edmund Burke. I do not have the whole quotation at hand, but he wrote very clearly about the fact that there are no discoveries to be made. We have already understood, as he put it, what is a proper kind of freedom. That compares with Thomas Paine’s “Rights of Man”, which was an entirely abstract and in the event utterly destructive approach, adopted, as it happens, by the French revolutionaries with dreadful consequences.
Our rights and freedoms are based on practical experience, not on theory, so some of us get a little amused, if not bored, by people who make certain assertions about those of us who are interested in having referendums or, for that matter, insisting on the sovereignty of the United Kingdom Parliament when all we are doing is seeking to ensure that the rights that are conferred on the British people and the legislation that is passed are consistent with what the British people in general elections, rather than coalition agreements, have actually agreed to do. That is my template: if I have made a promise to my constituents, I intend to stick to it. I also think that it is good for our democracy that people should be able to accept that the promises made in general elections are carried through.
I do not want in any way to prejudge, and I do not think that I have said a word today to prejudge, what the Bill of Rights will contain or what the new commission that has been set up will come up with, but I have taken this opportunity, at very short notice, to try to set out, very simply, the principles on which that entire judgment must be made. First, foremost and exclusively, not partially, it must be based on the Bill of Rights being supreme in terms of the law applied to the people of this country through our courts and notwithstanding any other legal systems or legal requirements, whether emanating from the European Community, the European convention on human rights, the European Union or any other source. That must be the case if the Bill of Rights is to mean anything. We are not an island in the sense that we are exclusively unaffected by other parts of the world, but we do have the right to determine our own jurisdiction and the right to determine it through this Parliament. Because we are elected by the voters of this country, we can insist that the Bill of Rights is indigenous to this country and not dependent on some other hierarchy of law.
It is a privilege to speak under your chairmanship, Mr Bone. This has been a very interesting debate. I congratulate John Hemming, the other hon. Members in charge of the debate and the Backbench Business Committee on bringing it about, because it raises fundamental issues about the role of Members of Parliament and about Parliament itself. As hon. Members rightly said, the rights and privileges of Parliament exist not to provide protection for MPs merely, but to protect the rights of their constituents. In that sense, articles 9 and 13 of the Bill of Rights are complementary. We all know, and the hon. Member for Birmingham, Yardley quoted clearly, article 9, which states that
“the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.”
Article 13 makes it clear that one purpose of holding frequent Parliaments is to be able to redress grievances. In other words, Parliament is here not just to make laws, but to address the grievances of Members’ constituents—the two are part of the same thing.
I do not want to take the hon. Lady into a great dialogue on this; I will simply ask her a question. Is she as confident of what she has just quoted in the light of the judgment in the Jackson case, in which several members of the Supreme Court questioned the extent to which they had ultimate authority and said that parliamentary sovereignty was being qualified? They used those words, and many more besides.
If the hon. Gentleman allows me to proceed a little, perhaps I can touch on the issues that he raises, but I want to keep my remarks to the subject of the debate.
One reason why becoming a Member of this House confers huge privileges on us all is that it enables us to act on behalf of our constituents. To be able to do that effectively, as several hon. Members have said, Members of Parliament must have access to information. A number of cases have been raised today, and many of us have had experience of hospitals, schools sometimes and councils trying to deny hon. Members the information that they request. In my experience, that is normally fairly easy to deal with, although the cases involving the courts are much more complex. I hope to be able to come to those in a moment.
Hon. Members know that they must use the protection granted by parliamentary privilege sparingly and not for their own advantage, but use it they must if it is necessary to right a wrong or to get justice for a constituent. Since I came into the House, I have seen a number of examples of hon. Members rightly taking up issues on behalf of their constituents and using parliamentary privilege to do so, because that is the only way to get something done.
If I may speak anecdotally, I have had experience of that myself. Not long after I came into Parliament, I felt it necessary to initiate an Adjournment debate about a charity that I felt was not operating properly. I came under huge pressure from the people running that organisation, but I felt that it was necessary to do that and to use parliamentary privilege to do it, because I believed that the people who were supposed to be being looked after by that organisation, many of whom suffered severe learning difficulties and did not have friends or family to speak up on their behalf, were being done out of their rights. Many other hon. Members will have come across cases such as that. At some point or other, we have all known of constituents who have been told that they cannot or should not approach their Member of Parliament. I say gently to the hon. Member for Birmingham, Yardley that I have known councils and public bodies tell people that, and he must have known of it, too. I have also known Liberal Democrat councillors tell my constituents that they should not come to see me.
A case can probably be made for educating people, but we certainly need a clearer definition. Indeed, the rights of Parliament need to be made clear to many who work for public bodies. In these circumstances, I normally find that a fairly stroppy letter from me—I can write very stroppy letters when I need to—usually puts the matter right. However, some of the cases that we have heard of today are much more serious.
We have to face up to the difficulties of interpreting article 9 that arise simply because of its age. Parliament has developed and changed since 1688. It would be strange if it had not. We now live in a multi-media age, which covers aspects of communication that were not known when the Bill of Rights was drafted.
Many Members would be surprised to learn the limits of parliamentary privilege. For that reason, a review of parliamentary privilege was undertaken by a Joint Committee in 1999. The Committee drew attention to the fact that although Members are not exposed to any civil or criminal liabilities in respect of what they say and do in the course of proceedings in Parliament, there is no comprehensive definition of what “proceedings in Parliament” covers. Equally, there is no proper definition of what constitutes a place “out of Parliament”. That needs to be tackled.
It is generally accepted that proceedings in Parliament are covered by the formal proceedings of the House and its Committees and any documentation directly associated with those proceedings, but there are grey areas around that, as Mr Bacon noted about the documents that he had received. The Committee said that article 9 needs clarification. It clearly does, in light of Members’ experience and given what we have heard today.
The hon. Gentleman touches on an important point. I am a great defender of this House and of Members of all parties having the right to carry out their functions properly. Any review should strengthen the work of Members of Parliament, not undermine it.
The Committee believed that the general principle of article 9, which prohibits the examination in any court of parliamentary proceedings, should be confirmed. It also believed that three exceptions should be made to that general principle. That is something that the House will have to consider in due course.
First, the Committee believed that nothing in article 9 should prevent proceedings in Parliament being examined in court in so far as the examination related to the interpretation of an Act of Parliament or subordinate legislation. That would enshrine in statute the decision of the court in the case of Pepper v. Hart; that case made many Ministers much more careful about what they said in Committee and on the Floor of the House, because their words could be used to help the courts consider what purpose Parliament intended for an Act.
Secondly, the Committee suggested that nothing in article 9 should prevent parliamentary proceedings being used in court for the purpose of judicial review, or in other court proceedings where a Government decision was a material factor. That is not to question the decision itself; again, it is about interpreting the decision.
Thirdly, the Committee believed that courts should be able to examine parliamentary proceedings when there is no suggestion that anything forming a part of those proceedings is untrue or misleading, and—the “and” is very important—there is no question of legal liability.
I suspect that these recommendations, especially the last, will provoke hours of debate when we come to the privilege Bill, but other matters will probably need to be considered as well. The first is the status of Members’ correspondence, particularly that between Members and Ministers about constituency cases or proceedings before Parliament. At the moment, that is not covered by privilege. As we do more and more of our work through correspondence—not everything is done on the Floor of the House, as it was in 1688—the House will need to consider carefully how to deal with it.
The second matter is correspondence with Members of Parliament, a subject raised by the hon. Member for South Norfolk. It is clearly difficult to get the drafting right in such cases. Taking the two extremes, one wants to protect genuine whistleblowing and disclosure without protecting those who write to accuse their neighbours of all sorts of crimes but who have no evidence.
The third matter that we shall have to deal with is defining proceedings in Parliament that are placed “out of Parliament”, and the replacement of section 13 of the Defamation Act 1996. The Joint Committee recommended a new procedure, allowing the House to waive article 9 in appropriate circumstances. Again, that allows Members to defend themselves in defamation proceedings, and we have seen cases like that in past years.
There are serious matters to be considered. I know that the hon. Member for Birmingham, Yardley has already had a case referred to the Standards and Privileges Committee, in which a law firm was held to be in contempt of the House for telling him not to repeat something in the House. I confess that I do not understand how a firm of lawyers could ever draft a letter suggesting that; it is first-year law stuff. It seemed to take the firm an awfully long time to discover its error, but in the end it apologised unreservedly to the House.
The hon. Gentleman and others raised various important matters. One is that in order to redress grievances Members of Parliament need access to information. The hon. Gentleman was right to say that the family courts are opening up, and that information can be given to Members of Parliament with the agreement of the parties concerned, but it is often not recognised. Another problem, when minors are involved in proceedings, is the question of who is able to give consent on their behalf. There is also the question of bullying constituents, and Parliament needs to consider that very carefully. As I said earlier, such matters are often dealt with swiftly; but if they go beyond that, Parliament needs to consider carefully people’s right to consult their MP.
First, Parliament needs to define what it wants to do. The question of privilege is complex. Although I might disagree with the hon. Gentleman on numerous issues, I would defend absolutely the right of any of his constituents to consult him whenever they wished to do so, as I would for any other Member of this House.
Another matter of concern was raised today—the role of the courts and of court orders when the preamble to the order or the order itself prevents people from speaking to their Member of Parliament. That is a serious issue, which the House needs to consider in some detail. Like the hon. Member for South Norfolk, I have great concern about whether such an order can stand in law. None the less, I understand that in some cases, particularly family cases, the pressure is on people to agree to such a preamble.
The hon. Member for South Norfolk asked how information coming to MPs should be protected. Many of us remember the case of Clive Ponting, who was tried for giving out information about the sinking of the Belgrano. His defence was that he had given the information to a Member of Parliament.
I remember the case very well because I wrote a book about it. Unfortunately, I was not able to persuade a publisher to publish it, but that is another matter. When my papers are published, it will come out. Ponting’s defence was that he communicated the information to a person to whom it was, in the interests of the state, his duty to communicate it. That was the point; not that it was a Member of Parliament, although it was, of course, the marvellous Tam Dalyell to whom he communicated it.
I had not quite finished my sentence, but the hon. Gentleman is right; Ponting said that it was in the public interest to communicate the information. Whether or not that defence was sound, the jury simply refused to convict him.
This is, of course, related to the proposed parliamentary privilege Bill to which the hon. Lady has referred. The Duncan Sandys case turned on the question of proceedings in Parliament. It was clear that there was a total and deliberate breach of the Official Secrets Act and that that, in itself, was in the public interest because Whitehall, or the Defence Department at the time, was correctly alleged to have been misleading the House of Commons. There are cases, therefore, in which a breach of the criminal law and the Official Secrets Act can be justified on the grounds of parliamentary “privilege”. I mention that as a good example.
The hon. Gentleman makes a point, but the public interest defence in all these cases is the one that is usually used.
I cannot comment on some of the individual cases that were raised today because I have no personal knowledge of them. None the less, they are serious matters that deserve to be addressed. We have all encountered people who do not want to answer MPs, or who just want to send a brush-off answer. In minor cases, I find that a nice letter from me saying that if they do not answer me, I will just table questions in Parliament and they will have to answer anyway sorts it out. However, we have heard about much more serious cases where there is a refusal to recognise the representative role of a Member of this House acting on behalf of a constituent. I will be interested to hear what the Deputy Leader of the House has to say about that.
Article 9 exists to facilitate article 13; the two are inextricably linked. There is no doubt that we need to clarify the scope of privilege and the rights of Members of this House. Concerns have already been expressed about the way in which some legislation might be eroding those privileges. Although the Government disagreed with this, the Clerk of the House raised concerns about the Fixed-term Parliaments Bill and how it could bring proceedings in Parliament into the ambit of the courts. Similar concerns were raised about the Parliamentary Standards Act 2009. Moreover, there were issues about putting lay members on the Committee on Standards and Privileges and whether they would be able to vote on matters relating to privilege.
As Parliament has expanded its role, a load of issues have emerged that need to be clarified. We look forward to the publication of the draft parliamentary privilege Bill. I hope that the House will be given sufficient time to consider the matter seriously. We have to get it right not just for ourselves but for future Members of this House. It is not a party political issue but about getting the workings of the House right and about the privileges that need to be accorded to hon. Members to allow them to do their job.
I hope, too, that when the Bill finally comes before the House, we get sufficient time to examine it and, if necessary, to amend it. If we do not give proper consideration to this matter and ensure that the drafting is right and that Parliament works properly on behalf of the people we represent, we will be failing not ourselves but our constituents, and that is the important point that has been raised in this debate. I look forward to a proper examination of that draft Bill and to hearing the Deputy Leader of the House’s response.
I am pleased to see you in the Chair this afternoon, Mr Bone. Let me start by congratulating my hon. Friends the Members for Birmingham, Yardley (John Hemming) and for South Norfolk (Mr Bacon) on securing this debate. This is the second time in recent weeks that I have participated in a Westminster Hall debate that was initiated by the Backbench Business Committee. I am also grateful to Helen Jones for her comments, most of which I entirely agreed with. As she said, this is not a party political issue; it is a matter of Parliament standing up for the privileges of our constituents, who are so important to our process.
The debate has focused largely on the right of constituents and others to approach their own MP to share information with them lawfully, without fear of reprisals, and the right of hon. Members, having received that information, to raise any matter in the House, without fear of legal action. It is those two issues that I wish to address this afternoon. References have been made to specific cases during the course of the debate. Like the hon. Member for Warrington North, I do not propose to comment on them today, as it would not be proper to do so in a general debate of this kind. In particular, I am mindful of the risk of contravening the House’s resolution relating to matters sub judice, and I know that hon. Members will understand why I will exercise extreme caution in everything that I have to say about the relationship between this House and the courts.
Article 9 of the Bill of Rights applies only to proceedings in Parliament, and its protection is absolute. The meaning of “proceedings” in this context is open to interpretation, but the House has never sought to assert that it should apply to dealings between Members and their constituents or other members of the public. My hon. Friend the Member for Birmingham, Yardley asserts that it should and I am simply stating the fact that it never has. However, the courts have regarded the communication of information to a Member of Parliament by a constituent as enjoying qualified privilege at law. Similarly, a Member who passes on a constituent’s concerns in good faith to the proper authority, such as a Minister, will not be protected by parliamentary privilege, but is likely to be protected by qualified privilege. Qualified privilege provides protection in certain situations where a person, acting in good faith and without any improper motive, makes a statement about another person, which is in fact untrue and defamatory. According to the case of Adam v.Ward in 1917,qualified privilege arises in situations where
“the person who makes a communication has an interest, or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it.”
That point was clearly made during the debate. There are other cases, such as Rivlin v.Bilainkin to which my hon. Friend the Member for Birmingham, Yardley referred, where the courts held that it was not lawful for a person to pass on information if they were not seeking to bring to the attention of a Member of Parliament something which was his duty to pass on to another authority, but was simply making a point. In that case, a woman was making a point about her former husband, and it was held that that was not proper use of the facility and did not benefit from the qualified privilege that would otherwise apply.
The issue of passing on correspondence to a Minister is important and it was referred to by the hon. Member for Warrington North. As I have said, at the moment that does not have absolute privilege—parliamentary privilege—but it has qualified privilege. However, there is the very important case of Beach. In that case, an MP passed on a constituent’s letter that complained about a local firm of solicitors to two third parties, the Law Society and the Lord Chancellor, and the firm of solicitors took action for defamation against the MP. The court held in that case:
“1. MPs have an interest in receiving correspondence from constituents bringing matters of concern to their attention;
2. MPs have a consequential interest or duty in “passing the complaint on to the proper quarter”;
4. Consequently, a qualified privilege was made out in this case which acted as a bar to an action for defamation”.
That is a very clear illustration of where qualified privilege assists an MP in the exercise of their proper duties and in the sort of action that we would expect any hon. Member of this House to take on behalf of their constituents.
The Deputy Leader of the House is quite right about the case that he has just quoted. However, does he think that it is now time to consider whether an MP who is carrying out their proper duties should be subjected to a case in court and have to defend it with qualified privilege, or should we consider enshrining privilege in statute?
I am certainly open to the suggestion that we should consider that issue as part of the privilege Bill that we intend to introduce. I will discuss that Bill in a little while.
What the hon. Lady has just said raises the question of who would actually interpret the statute. So we are back to the courts in that event. What we need to do is entrench a procedure into the privilege Bill, when we pass it into law, that might, for example, prevent such a case being taken to court, or that at least would ensure that if the case went to court a judge would have a kind of pre-trial opportunity to consider it. It is probably a procedural question, but we cannot avoid the fact that even if privilege is put into statute it will still be open to interpretation.
I think that we would be in the same position that we are in now, with the present interpretation of the absolute parliamentary privilege that we enjoy in the comments that we make in this House. I do not see that there would be any difference if we were to extend our statutory interpretation of proceedings to include correspondence in the way that the hon. Lady suggests. However, let me not attempt to pre-empt a serious debate that will inevitably need to happen in preparing the statute on which this Bill will be based, both in terms of the pre-legislative scrutiny and then our scrutiny of whatever is proposed.
I may not be right but I am thinking of the Strauss case, which was about a letter from a Back-Bench MP to a Minister about cables. I believe that at the time the Standards and Privileges Committee recommended that the House should consider that case to have privilege, but the House voted—albeit not unanimously—not to treat it as being privileged.
My hon. Friend brings me on to a very important point about the attitude of the House to date. He is eager to change that attitude, but the House has not yet shown a predilection, to use his own word, to do so, because in the past the House itself has not regarded attempts to interfere with or to frustrate a constituent’s communication with their MP as a breach of privilege. “Erskine May” records cases where threats have been made against a constituent by his employer in respect of communications with the constituent’s MP and either the House has declined to refer the matter to the Standards and Privileges Committee or the Committee has found that the actions alleged did not amount to a breach of privilege.
My hon. Friend addressed the situation in Australia, where the position in the state of Victoria is slightly different from that here. There was a 2006 case in the Parliament of Victoria, in which the Parliament upheld a privilege complaint from Michael Leighton, the Member for the electoral district of Preston. In that case, the complaint was that a constituent who provided information to Mr Leighton relating to an issue that he had previously raised in the Parliament later received a solicitor’s letter threatening legal action if Mr Leighton repeated certain allegations in the Parliament. That illustrates that there might be particular circumstances in which interference with communication between an MP here and a constituent might be regarded as a contempt of the House, although it does not demonstrate that communications between MPs and constituents should generally be regarded as being protected by parliamentary privilege.
However, there are two points that we must remember about the Victoria case. First, the threat to take legal action against the constituent was specifically in respect of any allegations that might be repeated by the Member in the Parliament of Victoria and it was therefore an indirect attempt to constrain the Member’s freedom of speech in the Parliament. I have to say that that bears some level of similarity with my hon. Friend’s case against Withers, where the House acted quite properly in his defence, or perhaps it would be more correct to say that it acted in defence of his constituent.
The second point, or rather the second difference between the situation here and the situation in Australia, is quite important in the context of this debate. It is that parliamentary privilege in Australia is defined in the Parliamentary Privilege Act 1987, so Australians do not rely on the Bill of Rights as we do. In addition, there is a definition of “proceedings” in that Act, which is
“all words spoken or acts done in the course of, or for the purposes of or incidental to, the transacting of the business of a House or of a committee.”
I think that my hon. Friend is arguing that we ought to have some similar provision here and we will need to look at that issue when we consider the matter of parliamentary privilege more widely.
I am listening with great interest to the Deputy Leader of the House. There is an article 13 point here, which is that the Bill of Rights says that Parliament should “frequently” meet
“for redress of all grievances”.
Is it not an axiom of that, in effect, that Parliament can only do its job of redressing “all grievances” if MPs know about “all grievances”, and therefore that communications that are intended to ensure that MPs do know about “all grievances” are inherently bound up with the Bill of Rights?
I hear what the hon. Gentleman says and I have some sympathy with what he says. However, I have some difficulty with the interpretation of article 13 of the Bill of Rights. I say that not as a constitutional lawyer, but as someone who is making the simple observation that article 13 of the Bill of Rights is headed, “Frequent Parliaments”, and therefore it seems to me to that article 13 is inherently about the frequency of Parliament rather than the reason for holding Parliaments frequently, which is
“for redress of all grievances”.
It is the emphasis within article 13 of the Bill of Rights that I am addressing. Having said that, we are talking about a 1688 Act and it would be very surprising indeed if it was construed in 1688 in exactly the same way that modern eyes construe it. Therefore, I do not want to replace centuries of jurisprudence on the subject with my lay observations today. However, I hear what the hon. Gentleman says.
I want to move on to Parliament and the courts, because a lot of what my hon. Friend the Member for Birmingham, Yardley had to say was about the relationship between Parliament and the courts. Yet again, I enter the caveat that as a member of the Executive I need to be careful about what I say about that relationship and I hope that hon. Members will understand that.
My hon. Friend the Member for Birmingham, Yardley referred to circumstances in which parties to court proceedings are forbidden to talk about them, either because of a specific injunction to that effect or, as in the case of certain family court proceedings, because proceedings are conducted in private, for example in the family court or the Court of Protection. That would not prevent a Member from raising in the House matters that it would be a contempt of court to raise elsewhere. We saw that in the recent Trafigura case, in which I had an interest. I was clear about what Parliament’s position should be, and I am happy that that was supported by others. If proceedings had been concluded, the House’s sub judice resolution would not necessarily prevent such matters being referred to.
The crux of the issue is the degree of legal protection offered, not to my hon. Friend the Member for Birmingham, Yardley were he to raise the matter in the House—as he has done this afternoon—but to an individual who discloses information to their Member of Parliament. The extent of that protection is less clear, as in many cases it depends, as we have heard, on qualified privilege. In family proceedings, the Family Proceedings (Amendment) (No. 2) Rules 2009 include certain exemptions about the disclosure of information, including in rule 11.4(1)(d), which provides that a
“party or the legal representative of a party, on behalf of and upon the instructions of that party, may communicate information relating to the proceedings to any person where necessary to enable that party…to make and pursue a complaint regarding the law, policy or procedure relating to a category of proceedings to which this Part applies.”
However—that is a significant “however”—I emphasise that that is a general rule, which is subject to any direction of the court, and the court may direct that such disclosure, though generally allowed, should not be allowed in certain cases. That, I think, is the circumstance to which my hon. Friend refers.
I agree with the many Members who have said that an individual’s right to approach his or her MP should be regarded as an essential part of the democratic process. However, we need to consider how to deal with cases in which one person’s right of access to their MP could interfere with the rights of others, including the right to a fair trial and the right to privacy. There is no point in Parliament making laws conferring decision-making powers on the courts, if an individual Member can vitiate those decisions by disclosing on the Floor of the House information that might fatally undermine their purpose. For example, if a court orders that the identity of a party to legal proceedings should not be disclosed—usually because it would render the proceedings nugatory—Members should think very carefully before using the auspices of parliamentary privilege to subvert such a judgment.
The guiding principle must be one of comity: the House and its Members will respect the jurisdiction of the courts, and the courts will not trespass on to territory that is properly occupied by Parliament. If Parliament collectively believes that some injustice arises from how the courts apply the law, it is open to Parliament to change the law. There is no need to use the blunt instrument of parliamentary privilege as a battering ram with which to beat the courts.
If there are deficiencies in family court proceedings, my hon. Friend ought to seek to amend those rules, in the first instance, or the statute under which they operate, if he feels that they are ineffective in allowing him properly to represent the interests of his constituents.
I appreciate that I am intruding somewhat into this rather narrow debate about parliamentary privilege and the Act. The Deputy Leader of the House referred to family law. As such matters are absorbed into the broader context of the jurisdiction of the European Court of Justice, the manner in which the courts respond to them within the framework of the law will be interpreted by that Court. I fear that some of the assumptions being made, including that we will be able to legislate in line with the kind of principles that the Deputy Leader of the House has referred to, will not be applicable, because it will not be a matter exclusively for our courts.
I hear what the hon. Gentleman says. He talks about the European Court of Justice. I thought that he was going to talk about the European convention on human rights, because it could be argued that the way these matters operate is outwith ECHR provisions, other than the fact that we are using the licence within the relevant article in the convention, which allows for specific items—the interests of minors are mentioned—to be excluded from the general rule of open proceedings in court. We must bear that in mind. I understand the hon. Gentleman’s point, and I have no doubt that we will discuss the matter on many other occasions.
Coming back to what my hon. Friend the Member for Birmingham, Yardley was saying, I think that he is particularly exercised about the office of the Official Solicitor. He seems to have an interesting relationship with the Official Solicitor, in the pursuance of his various interests in the cases in which he has been involved. He essentially asks where the Official Solicitor’s supervision and accountability are, in the exercise of his duties. My hon. Friend knows that the antecedents of the office go back a long way, to its origins in the Six Clerks Office, which was mentioned by Pepys. This officer of the court has a long pedigree, and he acts on behalf of those who were originally defined as paupers, including lunatics and infants, and needed protection under the law. The office is an ancient one, but it has always been an office of the court.
Under the most recent legislation, the office is a statutory office of the Supreme Court, and we have been very clear in the House, by statute and otherwise, that we respect the independence of the Supreme Court, and that we will not seek to interfere with the activities of the Supreme Court, as a legislature. We have to be very careful in expecting something of an officer of the Supreme Court, who I suppose is answerable in extremis to the Lord Chancellor in the exercise of their duties. It is not a matter for normal, democratic control, any more than a judge sitting in the High Court is a matter that should be under the control of the House.
I have listened to the Deputy Leader of the House with great interest. He said that we should not seek to interfere with the operation of the Supreme Court as a legislature. Did he mean that we should not, as a legislature, seek to interfere with the operation of the Supreme Court? There is a fundamental difference.
I meant that we, as a legislature, should not seek to interfere with the activities of the Supreme Court. There was a comma, which the hon. Gentleman did not, I think, hear. It was there; I assure him.
I regret that I did not hear the comma, but does the Deputy Leader of the House not agree that this goes to the heart of what my hon. Friend Mr Cash was talking about? Although the late and much-lamented Lord Chief Justice, Tom Bingham, made it extremely clear in his recent book, “The Rule of Law”, that he thought that the Court should ultimately defer to the democratic will of the elected legislature, my hon. Friend the Member for Stone says that there is abroad—“abroad” is the wrong word, although it is also true—around the place, including here and also abroad, a kind of judge who does not take that view. That is a source of great concern.
I understand the concern about what is normally described as judicial activism, and about the judiciary perhaps wishing to extend its role beyond what has been the traditional separation between its role and that of the House. We have to be extremely wary about that. Nevertheless, I maintain that it is not and never has been the role of Members of Parliament to decide whether officers of the court are behaving properly in the exercise of their duties. Our role is to create the statutory environment in which they work, and that is a very different matter.
It is a difficult area, but does the Deputy Leader of the House agree that while we would not wish to see Members of Parliament interfering in the judicial process—we have both probably had experience of telling constituents that we cannot do that—a constituent who feels that they have not received justice or due process ought to be free to raise that with a Member of Parliament? There are two different issues.
The hon. Lady puts it very well. There is a distinction, and we are right to make it.
I share the concern of my hon. Friend the Member for Birmingham, Yardley about the growth of the super-injunction, and what he described as the hyper-injunction.
I was concerned when the issue arose during the Trafigura case. I am also concerned that we have allowed a whole new jurisprudence to develop without any real consideration of where it will end, or the consequences for our judicial process.
Happily, the Master of the Rolls, who has a proper role in the matter, has recognised the public concern. He established a committee in April last year to examine the use of injunctions that bind the press, including super-injunctions. He brought together a committee of the judiciary, the legal profession and the press. I anticipate that it will report soon, and we in the House should have particular concern about what it says.
Such injunctions have an impact, potentially, on what we do in the House, and certainly on the interests of our constituents. Personally, I look forward to seeing whether the Master of the Rolls wishes to bring into effect any significant changes to how the courts interpret the whole role of super-injunctions, and what he has to say about the position that has been established whereby my hon. Friend, as a Member of Parliament, cannot know that his constituent is even involved in a case, let alone get involved in it, because his constituent is injuncted by a super-injunction to prevent him passing on that information. My hon. Friend’s concern is perfectly legitimate and I am glad he has had the opportunity to express it today.
Many people, including Paul Farrelly, who raised the Trafigura case, have had concerns about super-injunctions. Does the Deputy Leader of the House agree that such people should also be concerned about what my hon. Friend the Member for Birmingham, Yardley has identified as another category, hyper-injunctions, whereby a court makes an order not to refer to the existence of proceedings? Is that not simply a step far too far?
I am not sure that I understand the distinction that my hon. Friend was making between a super-injunction and a hyper-injunction, because what is called a super-injunction is an injunction that requires a particular course of action to be taken, including not reporting that the injunction in place is proceeding. It is an injunction squared, or a self-referring injunction. I am concerned about it, as are a lot of hon. Members, but we must wait and see what the Master of Rolls has to say on the subject when he—or, rather, his committee—reports.
I want to conclude by talking about the draft parliamentary privilege Bill.
I realise that I asked a much broader question than was intended for the debate, so I do not ask the Deputy Leader of the House to go into any detail, but in general does he take on board my point about the hierarchy of laws and the necessity to ensure where the final jurisdiction lies? The issue has come up in various forms in exchanges on the draft parliamentary privilege legislation and its proposals. The Supreme Court and other courts in the European dimension are claiming greater jurisdiction than previously over what we do, indirectly and, sometimes, more directly. That is an innovation, which was certainly not around five years ago. I ask the hon. Gentleman to do no more than take into account the fact that these points are not just the emanations of those who are concerned obsessively about such matters; they need to be taken very seriously because the process is on the march.
I was going to come to the hon. Gentleman’s points at the conclusion of my other remarks, but I will answer them now.
I am loth to usurp the authority of the Lord Chancellor, which I suspect would be lèse majesté on the part of a junior Minister. Therefore, it would not be appropriate for me to second-guess the Lord Chancellor’s views, in particular as he had the opportunity recently to set out some concerns in a Committee, as the hon. Gentleman said.
The hon. Gentleman knows that the Government are setting up a commission to look at the case for a UK Bill of Rights. He knows that the announcement has been made and that that will happen. He knows what is in the coalition agreement in respect of the issue, and I do not need to remind him of that. He also knows, because I heard him recently ask the question of my right hon. Friend the Minister for Europe, that the Government strongly support reform of the European Court of Human Rights in Strasbourg. There is a package of considerations and I will not pre-empt any conclusions, but I hear what the hon. Member for Stone has said. I am sure that other colleagues in the Government will have heard his comments as well. It is probably safest if I leave it at that. He understands that there is a limit to how far I can expand on the subject.
Returning to a perhaps slightly safer area for which I do have some responsibility, the Government intend to bring forward a draft parliamentary privilege Bill. As we have heard this afternoon, it is a complex subject. We have the report from some years ago to which the hon. Member for Warrington North referred. We need to revisit it, to ensure that it meets all our present circumstances, but we hope that we will soon be able to provide a draft Bill on which every hon. Member will have the opportunity to comment. In particular, I hope that Members involved in this afternoon’s debate will make their views well known as part of the consultative process, because they will have the opportunity to shape the content of the Bill.
I was intrigued by the suggestion of Mr Bacon that we should do away with “privilege” altogether and call it something else. I make no commitment that that will form part of the Bill, but “privilege” is sometimes misinterpreted, deliberately or purely by ignorance, and assumed to mean that we somehow place our interests, and ourselves, above those of other people, rather than what it does mean, which is that it enables us to do our job on behalf of the people we represent.
Such interpretations were perhaps exaggerated by the recent court cases involving former Members of the House. The proposition before the court was that parliamentary privilege somehow prevented them from facing due criminal proceedings in the courts. Of course, privilege did not do that; we said so at the time and I am pleased that the courts held it to be the case. However, that message simply must go out: parliamentary privilege is not about privileges for Members, it is about privilege for our constituents to have a Member of Parliament who can stand up and speak without fear or favour on their behalf in the House, and to do so on whatever terms that Member feels fit, and without the threat of court action or the actions of the Executive preventing them from acting in the fullest capacity as a Member of Parliament. We intend to produce the draft Bill by the end of this Session, in spring 2012. That will provide us with a further opportunity for these matters to be discussed.
I am grateful to you, Mr Bone, for chairing this sitting and to the Backbench Business Committee for providing us with the opportunity to debate the subject. I am grateful too to my hon. Friend the Member for Birmingham, Yardley for bringing forward matters of considerable importance, which have now been given an airing in the House.
I thank everyone who attended this debate, and I thank the Backbench Business Committee for allowing it. I also thank you, Mr Bone, for chairing it so ably.
The debate can be summed up in a few words. Parliament needs to know about grievances and to be able to take action. We need to take action to protect our constituents. The accountability of the courts rests on people knowing what is going on, even if anonymously. The difficulty with the operation of the Official Solicitor’s office is that people do not know what is going on. There is no question but that reform is needed in that area. However, the points have been reasonable and we have had a good debate. I thank my hon. Friend Mr Bacon for working with me on the debate. On that point, I shall end.
Question put and agreed to.