Bill of Rights

David Davis Excerpts

Thursday 17th March 2011 Westminster Hall

[John Hemming]

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.

[Mr David Davis (Haltemprice and Howden) (Con)]

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?

[John Hemming]

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.

--- Later in debate ---

[Mr David Davis]

I am listening with fascination to this case because it seems to me that it is clearly a contempt of Parliament. Who is the Official Solicitor responsible to, if not to us?

[John Hemming]

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.

--- Later in debate ---

[John Hemming]

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 18 December 1952, concluded that a communication with a Member of Parliament is not automatically privileged, even if it is handed over in Parliament. It is the institutions that matter; in that respect, we constitute Parliament just as much in this Chamber as in the main Chamber. If something is not connected with proceedings in Parliament, it is not privileged; if it is connected with proceedings in Parliament, it is privileged. That obviously gives the House control over which communications with Members of Parliament are privileged and protected by article 9.

[Mr David Davis]

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 the Member for Ashford (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.

[John Hemming]

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. She lives in the constituency of the Minister with responsibility for for children, who must know about some of the strange things that get done by the family courts.

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 17 January 2000, the capacity of her mother Efi Goder-Marsh to manage her own affairs was taken from her and given to her husband, who denies ever getting it. On 26 May 2000, 37 Montague road, Tottenham was sold—this is all in the public records—for £107,000 to George Leonidas of an address in Chingford. On 11 August 2000, 339 Green lanes, Harringay, N4 1DZ was sold for £230,000 to Tracey Emanual of the same address in Chingford. Then 8 Etherley road, N15 3AJ was sold on 18 January 2002 for £195,000 to Southern Territory Ltd, one of whose shareholders was George Leonidas, also of the same address in Chingford. All these properties are going to the same address in Chingford. I have the transfer deeds; each was signed differently by somebody in an illegible manner, claiming to be Efi Goder-Marsh’s husband. It looks different and he denies signing them. The documents were all witnessed by somebody in a particular solicitors’ firm, with which I am in communication.

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. The hon. Member for Heywood and Middleton (Jim Dobbin) has been working with me and my hon. Friend the Member for South Norfolk (Mr Bacon) on the issue. He had a situation with a family judge pressuring constituents not to talk to him. My hon. Friend the Member for Carshalton and Wallington (Tom Brake) had a similar problem, with pressure put on his constituents not to talk to him. I hope that my hon. Friend the Member for Wells (Tessa Munt) will be here later to explain a similar problem. My right hon. Friend the Member for Orkney and Shetland (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 the Member for Winchester (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.