Transparency and Accountability Bill

David Davis Excerpts

Friday 17th October 2014 Commons Chamber

[John Hemming (Birmingham, Yardley) (LD)]

I beg to move, That the Bill be now read a Second time.

This is in a sense the Bill’s second outing. I had the impression from its previous outing that it would be allowed to get its Second Reading, but now I know that it will be talked out. That is rather sad, because in the long term the Government will regret not having adopted a number of the measures in the Bill at an earlier stage because of the wider impact throughout the world.

There are greater tensions in today’s society. One of the failures of society rests in the tension between the Executive and the legislature. The issues in the Bill are not party political, but they are political in the sense of the tension between the Executive and the legislature. I find sympathy for my concerns across the House in all parties, but there is a blockage when it comes to the Executive responding. It tends to be very difficult to get anything out of the Executive.

For example, in the Ashya King case, the father talked of himself as being a refugee from the UK because he was threatened with care proceedings, and we know that there was a wardship application against the family. It was clear that the hospital would have had an emergency protection order had they not left the country. When I raised that with the Prime Minister, he did not understand that I was asking Parliament to have a collective investigation into what is going on.

There are many issues in the Bill that I will come to, but the difficulty is that, because of the secrecy surrounding such issues, it is easier for this to be debated in other countries. For instance, English family law has been the subject of television programmes in Brazil and Belgium, and there was a three-hour debate on Slovak television, but there is very little discussion in the UK, mainly as a result of the constraints on debate.

I will look first and foremost at some of the matters that were not in my previous Bill and then deal with the others. I aim to finish by 2.10 or 2.15 pm to allow for two other speeches before the 2.30 deadline. Sadly, when the Procedure Committee on which I sat put forward proposals to make private Members’ Bills more effective and to strengthen the legislature, the Executive decided that they did not like it.

The context of the Bill is to improve transparency and accountability in the public sector, and within that I have included a number of different elements. With regard to the super-complaints proposal from Which?, the idea is basically to give a designated representative body the power to make a super-complaint to regulators of public services to address systemic issues. That sort of thing does go on. There can be difficulties within the health service. It is far better to enable challenge from outside the system. We saw with the Commission for Social Care Inspection and the Care Quality Commission the tendency for even the regulators to cover things up.

We have too many cover-ups in Britain, and the Bill seeks to reduce their number. If we try to challenge the state, we tend to be hit by costs, which is another aspect dealt with in the Bill. Basically, a super-complaint allows the representative body to bring forward evidence that a feature of a market is harming the interests of service users and ensures that the relevant regulator considers the response to the issue. Under the Enterprise Act 2002, designated representative bodies can make super-complaints to the Competition and Markets Authority about detrimental features of private markets. This power does not currently extend to markets for public services where detrimental features can also arise. We know all about that.

My Bill would address that gap in the super-complaint regime, and in the protection of consumers, by giving designated bodies the power to make super-complaints to regulators of public services to address systemic issues on behalf of consumers. Public services are vital to millions of people across the UK, but people’s voices are not always heard when they experience a problem.

Also, people do not always speak up when they have a problem. Which? has found that a third of people who have experienced a problem with public services in the past 12 months did not complain. That is potentially a huge number of people whose experience, if shared, could help improve public services for everyone. Which? also found that people would be more likely to complain if they felt that it would make a difference to other people’s experience and result in a change. More needs to be done to ensure that people’s voices are heard in our public services.

Those clauses have obviously been written by Which?, and of course it will be progressing the issue outwith the Bill. I scheduled my Bill for the same day as the European Union (Referendum) Bill because I thought that nobody else would, and I think that my judgment was right—ordinarily, I would not have had an opportunity to say anything, so I am pleased to have such an opportunity today. The advantage of a private Member’s Bill is that we get a response from the Government and the Opposition and the issue gets an outing in front of colleagues. It is a way of progressing an idea. It would be nice if we had greater powers for the legislature, but we do not—that is life.

Another organisation that contributed to aspects of the Bill is the Campaign for Freedom of Information. This relates to closing a loophole in the Freedom of Information Act 2000 that allows contractors providing public services to escape scrutiny. They are not subject to FOI requests in their own right and so provide only the information that they are considered to hold on behalf of the authority.

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

Does the provision also deal with the issue of limited companies being created to provide public services? The most egregious example was the Association of Chief Police Officers, which, as a limited company, could refuse to answer FOI requests, even though it did serious and sensitive public work.

[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.

--- Later in debate ---

[Simon Hughes]

As my hon. Friend said, this is the second time that he has had the opportunity to address some of these issues through a private Member’s Bill.

Let me briefly put the Government’s commitment on the record. The coalition agreement drew from the manifestos of both the Liberal Democrat and the Conservative parties and made a commitment to extend the scope of the Freedom of Information Act 2000 to provide greater transparency, as well as to reform family law, reduce delays in care proceedings and reinforce the principle that a child benefits from the involvement of both parents provided that is safe and in the best interests of the child. We also made a commitment to make it easier for loving parents to adopt children.

We have made progress on extending the Freedom of Information Act. My right hon. Friend the Member for Haltemprice and Howden gave a specific example of the illogicality of the Association of Chief Police Officers, which had turned itself into a company. Its exemption was corrected in the early part of this Parliament and is now covered by the Freedom of Information Act.

[Mr David Davis]

There are other examples.

[Simon Hughes]

There are other examples, but that one has been remedied by this Administration.

Let me summarise what we have done in response to these important issues. About 250,000 people go into our family courts every year in connection with care proceedings, children’s proceedings, adoptions or family divorce and separation. We are not talking about insignificant numbers, and my hon. Friend the Member for Birmingham, Yardley reminded us that this was the context of the Ashya King case, the Rotherham scandal and many other issues. The Ministry of Justice is not the only Department involved; the Department for Education plays a lead role, and I know that my hon. Friend has talked to the Under-Secretary of State for Education, the hon. Member for Crewe and Nantwich (Mr Timpson), who is responsible for children’s issues.

On family justice, we have introduced wide-ranging reform of the family justice system so that cases do not drag on for long periods. We have thus provided greater certainty for the children and families involved, which is positive and a plus. I pay tribute, as did my hon. Friend the Member for Birmingham, Yardley, to the president of the family division for how he has led on this and other issues. We have also reformed the way in which cases are managed before and during the court process so that children are placed firmly at the heart of the system. This very weekend, we are going to confirm that next week the law comes into operation that will mean that the presumption thereafter will be that children will benefit from both parents continuing to be involved in their lives. That is a hugely important principle. It may not always be possible, but that will be the legal presumption from next week onwards.

We have also taken steps to shine a light on the activities of the family court and the Court of Protection by encouraging the provision of more media access to hearings, and by publishing judgments to show how decisions are reached. That is still work in progress, and I spoke to the president of the family division only this week about the need for us to do better.