Transparency and Accountability Bill

Debate between David Davis and John Hemming

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.

UK Extradition Arrangements

Debate between David Davis and John Hemming

Monday 5th December 2011 Commons Chamber

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

It is a particular pleasure to follow the right hon. Member for Sheffield, Brightside and Hillsborough (Mr Blunkett). He and I crossed swords many times when he was Home Secretary. I am not remotely surprised to hear his reasonable tone in this debate or to hear of his compassionate action on Gary McKinnon, as both are entirely in line with his character. What is more, I can understand only too clearly why he took the stance that he did in the early 2000s, because at that time the extradition situation around Europe and elsewhere was a mess, and it was sometimes very difficult to get people extradited from other countries. It is therefore wholly unsurprising that after 9/11 he took the action that he did. That does not mean that I agree with him about that action, but it is entirely understandable that it was taken. The House will not be surprised that I think it went too far because of, in my view, the pre-eminence of justice in this matter. There is a balance between justice and security, but security without justice is a very fragile security. It is our job to defend our lives and way of life, and in this respect I do not think that we have done so.

Unlike my hon. Friend the Member for Esher and Walton (Mr Raab), I do not speak as a criminal lawyer. What I am about to say is no doubt obvious to all criminal lawyers, but not necessarily so to the rest of us who are laymen. Let me make a simple point. In this country, we presume innocence. That has all sorts of implications that we do not think about most of the time. For example, it means that unless there is a threat to a jury, an ongoing threat to the public, or a risk of absconding, we generally give bail—we do not imprison people who are awaiting trial if we can avoid it. If we do imprison someone, we put them on remand, where they are treated as innocent. They wear their own clothes; they are not made to work; they are called “Sir”: all sorts of things apply to prisoners on remand that do not apply to other prisoners, either in this country or, indeed, abroad. The presumption of innocence has a distinct effect on how we treat people.

Let us compare that with people who are extradited. They feel as though they have been deported. They are in a foreign prison, often with lower standards; my hon. Friend referred to that in terms of Greece. They are not only in a different culture, but often surrounded by people speaking a different language. They are, in effect, in psychological isolation; one might think of it as psychological solitary. They are often thousands of miles away from their family. They are viewed as an alien in the institution in which they are held. That, of itself, is a very serious punishment of people we are presuming innocent at this stage of the process.

In addition, such people face a different justice system; I will describe it only as lightly as that. As was alluded to in the context of the NatWest three, this is a justice system that is not above saying, “Here is a plea bargain. Either you plead guilty or you’re going to stay in this nasty Texan jail for the next two years while we think up the case against you.” That is different from what they face here—and, frankly, I do not think that it is justice. At worst, it is a justice system that is actually corrupt, as we have seen in Greece. Although I understand the ex-Home Secretary’s point of view, this was not new to us even when the EAW was created. I had a constituent who was one of the plane spotters and who was locked up, in effect, for political reasons and not given what I would judge to be anything like a fair trial—and, of course, he was tried for doing something that was not illegal in this country. That is, at this stage, how we treat people who are presumed innocent under our system.

[John Hemming]

I very much agree with my right hon. Friend. Does he agree that that supports a strong argument that, where possible, any prosecutions where there are alternative forums should be in the home forum?

[Mr Davis]

I entirely agree. That is very much the thrust of what I will say in the next few minutes.

Let me come back to the thought process behind this—the intent behind what the then Home Secretary was trying to achieve, with which, as I said, I sympathise. The EAW, the extradition treaty and the 2003 Act were all aimed at dealing with terrorism. What has been the consequence of that? A parliamentary answer told us that between 2003 and 2009 there were 63 extraditions to the USA, of which precisely one involved a terrorist. A number of the others involved serious crimes—although I have to wonder about the two people who were extradited for “satellite signal theft”; Rupert Murdoch’s reach is obviously longer than I thought—but there was only one terrorist extradition. When I looked at it the other way around—extraditions from the Americans to us—I was unable to find any record of terrorists being extradited here. I asked people in the Library to look at it for me. They searched through all the available records and could not find any examples. We should keep in mind that the rather draconian process that we have, which was put in place to defend us against terrorism, does not appear to have had much impact in that respect. In practice, the outcome is much more mundane. The truth of the matter is that we will have far more Gary McKinnons extradited than Osama bin Ladens.

Because of the terrorist problem, the international crime problem, and the pressure for a fast agreement, we have left out some proper protections in the agreements that we have made, particularly with America. Debating this when he was in opposition, the current Attorney-General said that

“we chose in the 2003 Act, bizarrely, to get rid of the protection that existed in article 7(1) of the 1957 convention on extradition, which allowed an extradition to be prevented if the person was being sent to an inappropriate forum for the trial…Every other country has that safeguard. The Irish, who regard themselves as close partners and friends of the United States, and who have an extradition arrangement, have a forum clause in their treaty, which enables the question of the appropriate forum to be considered.”—[Official Report, 12 July 2006; Vol. 448, c. 1419.]

He is right. Not only the Irish, but Norway, Switzerland, Holland, France and Germany all have such provision. In fact, the Germans’ law will not allow the extradition of any of their citizens outside their country. Similarly, two Commonwealth countries—Australia and New Zealand, two of America’s closest allies in the war on terror—have total discretion over who among their own nationals they allow to be extradited. The idea that we are somehow at odds with the accepted—and, indeed, acceptable—approach among the western nations in their battle with terrorism is nonsense.

Bill of Rights

Debate between David Davis and John Hemming

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.