Transparency and Accountability Bill

Christopher Chope Excerpts

Friday 17th October 2014 Commons Chamber

[John Hemming]

I am not 100% certain that this Bill legally traps it, but that was the intention. I do not think that it is perfectly drafted, so we do not know—that is one of the difficulties with these Bills.

Let us take some examples given by the Campaign for Freedom of Information. The information that the Information Commissioner has said does not have to be made available under FOI includes the number of parking tickets issued, and then cancelled on appeal, by traffic wardens employed by a council contractor and who are offered Argos points as an incentive to issue tickets. That example is similar to what the right hon. Gentleman is talking about. We effectively have the exercise of a public power of enforcement but no proper accountability for it. That is a good example.

Other examples include: how often a contractor-managed swimming pool had been needlessly closed to the public because it had been booked by schools that did not use their slots, which again relates to public resources; the arrangements made by a subcontractor to restore the Leyton marsh after its use as a temporary basketball court during the Olympics; the qualifications of assessors used to verify that incapacity benefit claims have been properly dealt with by Atos, the Department for Work and Pensions contractor; and the cost of providing Sky television to prisoners and the number of cells with their own telephones at HM Prison Dovegate, which is privately managed. As the director of the Campaign for Freedom of Information, Maurice Frankel, said,

“each new outsourcing contract reduces the public’s access to information because of a loophole in the FOI Act. Information that is vital to the public may be kept secret simply because the contract doesn’t provide for access. The Bill would restore the public’s right to know.”

That is another point that shows that this is unfinished business. This cannot just be allowed to drift. We need action from the Government, whoever is in government and at whatever stage, to deal with those exemptions, because what are clearly public functions are escaping accountability.

I will come to the family courts and justice matters later, but the Bill also contains provisions that relate to the Criminal Cases Review Commission.. Again, this is a privatisation issue, because the Forensic Science Service is now a private contractor, rather than one controlled by the state. It no longer has access to information to check whether or not somebody has been subject to a miscarriage of justice. When it was in the public sector, it did have that access, but in the private sector it does not. I believe that the equivalent body in Scotland does have that access.

To me, this is a no-brainer. It is a shame that the Bill will not go to Committee, where those relatively straightforward issues could be resolved. Potentially, they could go through the regulatory reform process, because it could be argued that that would reduce a burden on the Criminal Cases Review Commission. I serve on the Regulatory Reform Committee, and, if I may say so, we are not that busy—not that overwhelmed with things going on. It would be good to free up the Criminal Cases Review Commission to monitor and access information and to reduce the number of miscarriages of justice.

The Bill has another aspect to do with miscarriages of justice. There is the difficulty of people who do not admit their guilt being kept in jail beyond their tariff, and the question of whether their numbers should be counted. If people do not accept their guilt and they are guilty, they are potentially unsafe to release because they do not accept that they have done anything wrong. If they are not guilty and do not admit their guilt, they are stuck. My concern is that the Government do not even count these situations, so we have no knowledge of how many of those cases there are.

Those are the matters that were not covered so much in my previous private Member’s Bill. I will now come to the family court issues and talk more widely about where we stand. I think I mentioned the Brazilian television case. North Tyneside council threatened an injunction against Brazilian television, and there have been attempts to injunct Czech TV as well. The system does not really work. To be fair, I have a lot of time for the current president of the family division, who is making gradual but sustained progress in dealing with the situation. However, there is a long way to go.

Earlier this week, a gentleman from German radio came to see me. He was concerned about the situation in Rotherham, which he had been investigating. Not only did the local authority take children into care, where they were found to be less well protected, but if they became pregnant it put them up for adoption on the basis that there was a future risk of emotional harm. There is always a challenge when medical evidence—medical opinion—is provided as part of judicial processes, and that exists whether it is in the family courts on a balance of probabilities or in the criminal courts on the basis of beyond reasonable doubt. To some extent, when an expert goes around saying that people are guilty, they are treated as guilty. However, a lot of people come to see me saying, “We just took our child to hospital because we thought they were ill and suddenly we find that we are being prosecuted for all sorts of things.”

To be fair, the triad of symptoms of shaken baby syndrome has now been recognised to be flawed. It was always known that this happened spontaneously for cases of butyric aciduria, so we know that in certain circumstances the triad occurs spontaneously. What we do not know is all the circumstances in which that has occurred. However, the symptoms have been used to convict and imprison people and to remove their children and put them up for adoption.

One of the clauses that I am particularly interested in would allow for academic scrutiny of court proceedings. I am talking about academic social workers, medical challenge and psychological challenge. At the moment, in essence, the only really effective audit on family court proceedings, particularly for public family law, is the example of international cases. The advantage of international cases is that two different jurisdictions are looking at the same case. Earlier I cited the King case, where the family went off to Spain and are now in the Czech Republic. Obviously that case was considered by the Spaniards. The family were lucky because they managed to get their story out on YouTube and were not injuncted.

There are similar cases. The Paccheri case is well known—it concerns the lady who was forced to have a caesarean when she visited the UK whose child was then adopted. When we investigate the medical evidence put to the Court of Protection, we find, looking at the considerations by experts on the internet—there are experts on the internet and some people do that work very well, but not everything on the internet is true: do not believe everything you read on the internet—that there was a good, detailed critique of the judgment, but it was published only because we found out about what had gone on; it was not published as part of an ordinary process.

The judge was in a very difficult situation. The court was presented with one piece of medical evidence by the hospital. The medics from the hospital came and said, “You’ve got to force this lady to have a caesarean.” There was no medical challenge to that. There was somebody representing the hospital trust and somebody representing the official solicitor, who is in theory representing the protected person, although I do not think they had spoken to the protected person. The decision, however, was based on medical evidence, but there was no challenge or second opinion. I have been going on about this issue for some time: there is no right to a second opinion. Had detailed consideration been given to a second opinion in this case, it would have said, “Actually, this isn’t necessary.” The traumatic way in which the lady was treated did not help her in the long term.

Last Monday’s “Inside Out” was about refugees from the UK and the issue was also covered in “Panorama” earlier this year. I understand that there are more than 100 families in Ireland who left the UK to escape the system. That is a lot of people. I have been dealing with cases such as that of Angela Wileman for about seven years, so this has been going on for some time. My own personal recommendation is not to go to Ireland, because its authorities will tend to act on behalf of the English authorities, whereas those in Spain or France will not and will treat the case properly.

There are two types of international cases: those whereby people leave the UK to escape the system, and those whereby a foreign citizen’s case is decided on by the UK jurisdiction. The advantage of the Paccheri case is that the Rome family court gave a judgment that is publicly available and basically says that it does not understand what is going on in England.

Another judgment has been issued this week—I think it was last night—in respect of a Czech case. Under The Hague convention, each country has a central authority that deals with international family law issues, be they public or private. The Czech central authority—which, about two years ago, refused to do anything on any case—said, “We can’t understand this case. There is a Czech family living in the Czech Republic with a baby and you won’t let them have their two-year-old.” How is that in accordance with article 8 of the European convention on human rights? If we are going to talk about critiques of the convention, it has been the dog that has not barked in the night about public family law. Marica Pirosikova, who is one of the Slovak Government’s two representatives at the European Court of Human Rights, has expressed concern about that particular aspect. In fact, she was one of the organisers of a conference in Prague about a week and a half ago on public family law, with a particular focus on the UK.

Interestingly, the Council of Europe carried out an investigation on public family law and it was headed by a Russian politician who came to visit me here. Sadly, because the Russians have withdrawn from the Council of Europe, that particular inquiry has got stuck. My understanding is that it managed to get a lot of useful comparative information from different jurisdictions about how they deal with public family law. The inquiry found it odd that more complaints were made about England and Wales than about other countries combined. There was a real hubbub of complaint with regard to the UK. In fact, petitions were presented to the European Parliament either earlier this year or late last year, and a lot of things have been going on at the Council of Europe: this is its second inquiry, but it is much bigger than the first one. When I was asked why the volume was so low, I said it was because people do not do the maths right. My critique has often been that the Government are not adequately scientific.

[Mr Christopher Chope (Christchurch) (Con)]

May I correct the hon. Gentleman on one thing? The Russians have not withdrawn from the Parliamentary Assembly of the Council of Europe. Many members of the Parliamentary Assembly wish that they would until they allow Crimea to be part of Ukraine again and take their troops off Ukrainian soil, but they have not withdrawn. There is no reason for there to be any delay at the Council of Europe.

[John Hemming]

I thank the hon. Gentleman for correcting me. As the previous inquiry’s rapporteur, he will obviously have better knowledge than me. I have been told that there is a problem, so I will need to chase that up. I might visit his office for some assistance. That would be good.

The Government have always got themselves confused on the flows and quantity of children in care. On compulsory care, if we look at emergency protection orders, police decisions, interim care orders and care orders, we will see that about 12,000 children a year are removed from their families compulsorily, leaving about 65,000 in care. When calculating the proportion of children who were adopted, the Government always made the error of comparing it with the total number in care and concluded that 6% or 7% is not very many. However, given that 5,000 children left care in the year to 31 March 2014 and 12,000 a year are going into care, that is quite a high proportion. When one drills into the figures for children under five years old, one sees that the majority of them are in care. One can see where the criticism is coming from. I have always argued that the Department has got the formula wrong.

We know what happens. The managerial priorities of local authorities determine what their staff do. If they do not do those things, we see what happens. There is the case of Joanna Quick, who wanted to recommend the return of a baby to its parents. She would not do what she was told by the management, so they fired her. One cannot blame social workers who are in that environment for doing what their management tell them to do.

The difficulty is that the system makes the assumption that the evidence is independent. That relates to the issue in Lashin v. Russia, which is that if a serious decision is to be made on expert evidence, that evidence should be independent of the bodies that have an interest in the decision. That is obviously the case when it comes to public family law, because the system is being driven to do the wrong thing so much that people do not even notice. Relatively poor people, people with learning difficulties and people who are on the margins of society, such as immigrants, are complaining, but their voice is not heard and they get injuncted.

People are still going to jail for what they put on Facebook. I am tracking the number of people who do not have public judgments in accordance with the practice direction that was issued in May last year. Clause 8 states that there should always be a published judgment if somebody is imprisoned for contempt of court. One of the good things about the previous version of the Bill is that things are gradually happening, although things are not going as far as the provisions in the Bill. The Government are counting the number of people who are in prison for contempt of court. Six, seven or eight people a month are imprisoned for contempt of court, but there are perhaps one or two published judgments, which means that about five people each month are imprisoned in secret. As the Minister said, I talked to judges in the Court of Appeal about one particular case earlier this week.

Let us look at the effect that the clauses in the Bill would have. There are issues with litigation capacity. I am aware of only one case in which there was an attempt to remove a lady’s litigation capacity and it failed. That was the subject of a parliamentary petition. In that case, it failed because she contacted me and I found a McKenzie friend who could assist her in representing herself against her own solicitor. Someone’s capacity is removed when their solicitor does not think that they have the capacity to make decisions on their own behalf and so asks the court to appoint the Official Solicitor or some other litigation friend, rather than a McKenzie friend, on their behalf. In this case, the lady worked in compliance in financial services, so she was very bright, but she was deemed not to have capacity because she had querulous paranoia as she did not trust the system. If they did the same to me, I would not trust the system, so it is rather a self-fulfilling prophecy.

A couple of the clauses deal with the issues of litigation capacity. It is a difficult position, conceptually, if one’s lawyer says, “Next week, I am going to apply to the court to remove your capacity to instruct me because I do not like your instructions and think that they are stupid.” That is what happened in the situation that I am describing. How can one challenge that? It is difficult to do so. There are issues with legal aid in such circumstances. How can someone fight an overweening state that says, “I’m sorry, but you’re stupid,” when they are not?

I have met a number of people whose litigation capacity has been removed. In some of those cases, it clearly was not valid. There are cases in which the power is needed. If somebody is in a coma, it has to be possible to remove their litigation capacity, because they cannot make decisions. However, there are clearly cases in which people’s litigation capacity has been removed wrongfully. They are then stuck. They are a non-person as far as the system is concerned. If they want to appeal to the court, the application cannot be accepted because they have no capacity. People go down to the courts, but get turned away on that basis.

Clause 7 is about the right to report wrongdoing. Some interesting progress has been made on that. There was a privilege case in Victoria in Australia, in which the owner of a caravan site threatened litigation against a citizen if an MP spoke about the site. That was rightly found to be a breach of privilege. I think that privilege is involved when it people prevent MPs from finding out about things.

The right hon. Member for Haltemprice and Howden (Mr Davis) and the Secretary of State for Business, Innovation and Skills did some work on ensuring that reports to Members of Parliament are treated as protected disclosures for employment purposes. That was excellent work. I asked local schools that were subject to the Trojan horse inquiries—a long saga—to put out copies of the library research document that claimed that talking to an MP about issues is a protected disclosure, to ensure that people had the comfort of knowing that they could come and talk to me about things—and people do, which is important. The issue does not always get into the public domain, of course, but it gives people a way of challenging the system.

I saw one case in which the police would not investigate something because of an injunction, and that is dangerous. The police have the right to ignore somebody—that is fair enough—but an injunction to stop people reporting things to the police is fundamentally wrong yet it still goes on from time to time. If somebody is vexatious, there is an issue about phoning 999 all the time, because people can be obsessive, but they should not receive an injunction to bar them from reporting to the police what they see as wrongdoing. The police should have the option—as they do—to say, “That’s rubbish” and ignore it or potentially prosecute that person for wasting police time, but for the information not to get to the police is fundamentally wrong. This is about the right to report wrongdoing, which has clearly been a particular problem.

As I said, the president of the family division has done a lot of good work and there has been gradual progress in dealing with issues in the family courts. The recent work on expert witnesses is also good—there is no question about that. Clause 2(1) would allow people to have observers with them to provide them with a little support. When I go to the courts, I find that my constituents get treated with a bit more respect than they do if I am not there, and they have told me that when I disappear they get treated completely differently from when I am present, which is wrong. To have other observers is a useful process—I always refer to the social science equivalent of Heisenberg’s uncertainty principle, which is that the observer interferes with what is observed, and people behave better in circumstances under which they can be observed. Even if people expect somebody to observe them, they behave in a better way than if they know they are not being observed and there is no accountability.

Clause 2(2) is about providing information for academic research. The Department says, “Well, we can instruct people to make inquiries”, but it does not. It does one or two inquiries every so often—the Ireland report found that two thirds of the psychological reports in the family courts were rubbish, or sufficiently bad not be relied on, but that still goes on. The problem is that the system always protects itself, and as we have seen in many circumstances—Hillsborough is a good example, or the Savile case—the system is good at covering up.

Having mechanisms for an external challenge would be better, and the academic challenge is actually the best challenge because we are trying to do what is best for children and families. My view is that what we are doing is awful for children and families and, as time goes on, we are finding out more and more that that is the case. The situation first seen in A and S (Children) v. Lancashire county council showed that an independent reviewing officer challenging the local authority was a waste of time, because that officer was an employee of the local authority. We saw the same situation in Rotherham, because children were taken into care and treated worse there, and accountability was all to the same management structure. There was no independence in terms of accountability.

On the maltreatment of grandparents—I went to a Grandparents Plus event, and grandparents are not treated with respect by the system. There is evidence that each change of placement for a child taken into care, including the first change of placement, is psychologically damaging, but obviously at times we need to do that because leaving a child where it is can be worse—although the Rotherham case showed that at times that does more damage than in other circumstances. Going and staying with granny, however, is generally not that much of a problem because it is the sort of thing that has happened and the child is used to it. We should be a little more focused on families and the wider family—aunties, uncles and so on—than the current system, which is very much driven by the system. Contact with grandparents is an issue. There are circumstances where people fall out with each other. The courts cannot solve everything and we cannot make everything perfect in this world, but we can try to do some things to be more supportive of the family.

Children in care is an issue that Ivor Frank, a barrister who was brought up in care, drives quite strongly. A remedy for children in care is crucial. Clause 3 comes down to the issue, as we saw in Rotherham and in the case of A and S v. Lancashire county council, that children can be maltreated in care and have nowhere to go, because at the end of the day it all comes back to the head of children’s services in the local authority. We have checks and balances and we try to maintain a separation of powers, but there is no separation of powers in a local authority. If somebody thinks a child in care is suffering as a result of an authority’s treatment, there is nothing much that can be done, as the system is effectively unaccountable. Clause 3 would deal with this issue.

We are making some progress on the matters raised by clause 4, which seeks to get an explanation of why parental consent needs to be dispensed with. This is where the international dispute rests in particular, although the idea that all the cases where consent is not dispensed with in the statistics are ones where people have not been pressurised is not one that I think is actually true.

The rights of children to have access to their records is important, too. There are a number of other issues in the Bill. For instance, the Official Solicitor deals with protected parties, but he is not accountable to Parliament. If I write to him and say, “What is going on in, say, the Paccheri case?” he can say, “Nothing to do with you, guv. I am not accountable to Parliament; I am accountable to the court.” Well, that is great—it is a secret court. So he pops along to the secret court and, unless there is a published judgment, there is no accountability at all. There needs to be some mechanism of scrutinising how litigation friends are performing. These are not McKenzie friends, and a lot of issues to do with McKenzie friends are not covered in this particular process.

Clause 12 relates to reasonableness in capacity and is based on Canadian principles that if a protected person is deemed not to generally have capacity, one generally does what they want anyway unless it will do them some harm. One of the saddest parts of mental capacity issues is that when somebody is deemed to have lost their capacity, they have lost it and they are not allowed to make decisions for themselves. The decisions are all taken for them and, very often, are done for the convenience of the state. Clause 12 is therefore very important and would make a big difference.

To be fair there are people, such as Allan Norman in Birmingham, who is both a solicitor and a social worker, so he has the double training, which is quite helpful. When he deals with people who have lost capacity, he does try to work with them. That is much better than a situation where people say, “Well, basically, you’ve lost your capacity, so you might as well be in a coma, because we’re not going to treat you with respect.” That is how it comes across a lot of the time.

Obviously, the system does not always go wrong and we need a system. But the system in the jurisdiction of England and Wales does go wrong a lot of the time. Scotland has its problems, but they are nothing like as bad as those in England. The number of complaints in Scotland is much less, I think partly because of the system of children’s hearings. The difficulty, particularly with regard to section 38 of the Children Act 1989, which basically requires “reasonable grounds” to get an interim care order, is that one does not really have to prove a case to get a child into care. Although the Human Rights Act 1998 would require, in a sense, a continual review of whether it is in the child’s interests to be in care and of the evidence base for that, that does not really happen. There is a great tendency for a child to be taken into care and held there for ages while the local authority tries to find something to stick.

I am moving towards the end of my speech, so we have enough time for the Opposition to respond and for the Minister to talk the Bill out, as is the case with private Members’ Bills. It would be nice for the legislature to have more ability to challenge the Executive than we do at the moment, so I will continue to work towards that end on the Procedure Committee.

The Government should recognise that considerable concern has been expressed in a number of countries. I shall cite an example relating to Latvia. An excellent piece of work was done by the Latvian embassy and the Latvian central authority to challenge the proposed adoption of a Latvian citizen in London. The case was very well argued, but whether it will get anywhere is another question. That brings us back to this week’s judgment. I hope that my Bill will receive its Second Reading, although I am not under the misapprehension that it will actually do so.

--- Later in debate ---

[Mr Christopher Chope (Christchurch) (Con)]

I shall be brief, because I do not want to deprive the Minister of the opportunity of talking out his own colleague’s Bill.

I congratulate the hon. Member for Birmingham, Yardley (John Hemming) on bringing forward this Christmas tree of a Bill. I liked what he said about the tensions between the Executive and legislature and how unsatisfactory it is that so often we see them writ large on a Friday. By way of illustration, I point out that my Bill, the EU Membership (Audit of Costs and Benefits) Bill, which was next on the list, will be objected to by the Government, notwithstanding the amazing vote earlier. Everyone is clearly in favour of a referendum, but the Government are going to prevent the information necessary to inform the referendum from being made available, despite the fact that when the Conservative party was in opposition, both the Conservative spokesman and the Liberal Democrats supported the Bill. That is just an example of the problem the hon. Gentleman rightly addresses in his Bill.

I support many parts of the Bill, particularly clause 13, which would clarify the position of people deprived of parole because they deny the offence for which they have been convicted. However, I feel that clause 16, on freedom of information, is rather unbalanced. If we are to extend FOI legislation, first we need to ensure that the person seeking the information discloses their identity. At the moment, there is a great imbalance. It is at odds with the principles of English equity in law that somebody who submits an FOI request does not have to disclose their identity, and that problem would be made worse if we extended FOI legislation to private sector contracts with the Government.

In clause 8(4), the hon. Gentleman refers to extradition orders and the need for the children of a person being extradited to be consulted about the impact on them of the extradition. However, the Bill does not deal with the much more fraught issue of the European arrest warrant. I am pleased that from today’s press it looks like the Prime Minister might no longer be insisting that we opt back into the EAW. Let us hope that those reports are correct. If there is a problem with extradition proceedings involving children, there is an even greater problem with the EAW and its impact on individuals, because no one has the chance to argue anything. If a warrant is issued, the EU member state is obliged to implement it, irrespective of how unjust it might be and without the courts having the opportunity to examine it.

I hope the Bill gets a Second Reading, but I share the hon. Gentleman’s pessimism. I hope in due course, however, because of his valuable work on the Procedure Committee, that we can give private Members’ Bills more prominence and ensure that the Executive interfere less.

--- Later in debate ---

[Simon Hughes]

It is, in fact, quite a big thing. What has always been of concern is how to protect the confidentiality of the proceedings, which will involve all sorts of sensitive issues, and now that judgments are being made public, a delicate balance must be struck. In some cases in which publicity has been given only to the judgment, the identities of the parties have none the less been revealed, because in a small community it may be quite easy to put the pieces of the jigsaw together. The position is not as uncomplicated as my hon. Friend suggests. As he knows, there are tensions and difficulties, not because we do not want to be more transparent, but because the protection, safeguarding and interests of children and families must be weighed in the balance.

We have also taken steps relating to the workings of the wider justice system. It is no longer an offence to scandalise the court, so clause 8(1) is not necessary. There are already many provisions in legislation, rules and guidance that provide for access to the courts and their information and enable concerns to be raised about process, appeals to be lodged against decisions, and information to be shared. In respect of protected cost orders for judicial review proceedings, the Government have announced their intention to pursue a different approach from that proposed in this Bill in the Criminal Justice and Courts Bill, which is currently before the House of Lords.

In respect of freedom of information, we have extended the Freedom of Information Act 2000 to more than 100 additional bodies during this Parliament. Information about contracts between public authorities and private companies is already available from public authorities, and—this is important, and is relevant to the points made by the hon. Member for Liverpool, West Derby and my hon. Friend the Member for Christchurch—we will be publishing a revised code of practice later in the year. The code will ensure that all those in the private sector who are contracted to do work for the public sector, involving central or local government, must, by contract, observe the same standards of openness that they would observe if they were in the public sector. That does not mean that the same law applies to them, because they are private sector organisations. If that does not work, we shall need to come back to it, but I hope everyone accepts that it is a move in the right direction.

[Mr Chope]

Will the code also require those who seek information to allow themselves to be identified?

[Simon Hughes]

That is certainly on our agenda. Whether we can secure cross-Government agreement to deal with matters other than the code of practice during the current Session has not yet been established, but it is on the list of matters that I want to consider. I am happy to talk to my hon. Friend about how we can make freedom of information work. I have already listened to the views of Members on both sides of the House.

We have also improved the way in which complaints can be made about public bodies. I have only a couple of minutes left, but let me briefly say something about that, and something about clause 14. Under the Enterprise Act 2002, a number of consumer bodies are able to make complaints to industry regulators. The Bill proposes that that should be extended to public as well as private services. Mechanisms already exist for the making of complaints about public services, and various ombudsmen are able to consider individual complaints. We do not think that a “super-complaint mechanism” is necessary.

The concept of a single-portal mechanism for complaints has been raised several times. The single gov.uk platform is now largely satisfying that need, because it is easy to find out how and where to submit a complaint. I advise people to refer to that website, which should help them. In addition, the Minister for Government Policy and Chancellor of the Duchy of Lancaster recently asked officials in the Cabinet Office to pilot a new digital channel enabling the public to register complaints about public services. I think that that will be regarded as progress.

There is one clause with which the Government have absolutely no problem, in principle. Having said that the others pose varying degrees of difficulty, I can say that clause 14, entitled “Criminal Cases Review Commission: extension of powers to obtain documents and other material”, has merit on its own terms. The Government do not think this is the right place to do it, but I am absolutely willing to negotiate with my hon. Friend the Member for Birmingham, Yardley to see whether we can include it in legislation in this Session or have it ready for legislation in the next. Private Members’ Bills do not have enough time to make progress—I have not changed the view I held before I became a Minister—and I hope the ideas in this one will make progress.