Freedom of Information

Dominic Grieve Excerpts

Wednesday 8th February 2012 Written Statements

[The Attorney-General (Mr Dominic Grieve)]

I have today given the Information Commissioner a certificate under section 53 of the Freedom of Information Act 2000 (“the Act”). The certificate relates to the Decision Notices dated 12 September 2011 (ref. FS50347714) and 13 September 2011 (ref. FS50363603). It is my view, as an accountable person under the Act, that there was no failure by the Cabinet Office to comply with section 1(1 )(b) of the Act in these cases by withholding copies of the minutes of the Cabinet Ministerial Committee on Devolution to Scotland and Wales and the English Regions (DSWR) from 1997 and 1998.

The consequence of my giving the Information Commissioner this certificate is that the Commissioner’s Decision Notices, which ordered disclosure of most of the DSWR minutes, cease to have effect.

A copy of the certificate has been laid before each House of Parliament. I have additionally placed a copy of the certificate and a detailed statement of the reasons for my decision in the Libraries of both Houses, the Vote Office and the Printed Paper Office.

This is only the third time the power under section 53 (otherwise known as the “veto”) has been exercised since the Act came into force in 2005. In that time, central Government have released an enormous amount of information in response to FOI requests—including in October 2010 the minutes of the Cabinet discussion of the Westland affair.

My decision to exercise the veto in this case was not taken lightly, but in accordance with the Statement of Government Policy on the use of the executive override as it relates to information falling within the scope of section 35(1) of the Act. I have placed a copy of that policy in the Libraries of both Houses.

In line with that policy, I have both assessed the balance of the public interest in disclosure and non-disclosure of these minutes, and considered whether this case meets the criteria set out in the Statement of Government Policy for use of the veto.

I consider that the public interest falls in favour of non-disclosure and that disclosure would be damaging to the doctrine of collective responsibility and detrimental to the effective operation of Cabinet government. I have concluded, in light of the criteria set out in the Government’s policy, that this constitutes an exceptional case and that the exercise of the veto is warranted. A detailed explanation of the basis on which I arrived at the conclusion that the veto should be used is set out in my statement of reasons.

Ratcliffe-on-Soar Power Station

Dominic Grieve Excerpts

Tuesday 6th December 2011 Written Statements

[The Attorney-General (Mr Dominic Grieve)]

On 13 July 2011 a written ministerial statement was presented to both Houses setting out the decision by Keir Starmer QC, to ask the Chief Surveillance Commissioner and retired Court of Appeal judge, Sir Christopher Rose, to conduct an independent inquiry following concerns about the non-disclosure of material relating to the activities of an undercover police officer and suggestions that the CPS had suppressed evidence in relation to the Ratcliffe-on-Soar power station protest cases.

The Director of Public Prosecutions committed to making public the findings of the independent inquiry and a copy of Sir Christopher Rose’s report has today been placed in the Libraries of both Houses. The report is also available online at www.cps.gov.uk.

Sir Christopher has concluded that although there were individual failings, there was no deliberate or dishonest withholding of information by the prosecution. More detailed conclusions can be found within the report.

Sir Christopher has recommended that more explicit guidance be included in the prosecution team disclosure manual, a recommendation which the Crown Prosecution Service (CPS) have agreed to adopt. In addition and in light of the report, the Director of Public Prosecutions has decided that specific training should be delivered to all senior lawyers in the CPS casework divisions and complex casework units about the proper handling of cases involving undercover officers. All chief Crown prosecutors and any staff who chair CPS case management panels should undergo the same training.

Sir Christopher worked in tandem with the IPCC in this matter sharing all relevant information. Sir Christopher’s inquiry focused on the CPS’ handling of the Ratcliffe-on-Soar power station protests. The IPCC are conducting their own inquiry which will be published in due course.

Alignment of Prosecutions (DEFRA and CPS)

Dominic Grieve Excerpts

Tuesday 12th July 2011 Written Statements

[The Attorney-General (Mr Dominic Grieve)]

My right hon. Friend the Secretary of State for Environment, Food and Rural Affairs and I have agreed the forthcoming arrangements between the Department for Environment, Food and Rural Affairs (DEFRA) and the Crown Prosecution Service (CPS) for the conduct of prosecutions.

Currently DEFRA prosecutions are conducted by an in-house prosecutions team that is part of DEFRA’s legal team. The forthcoming change is that the conduct of such prosecutions will be assigned by the Attorney-General, with the agreement of the Secretary of State for Environment, Food and Rural Affairs, to the Director of Public Prosecutions under section 3(2)(g) of the Prosecution of Offences Act 1985, and DEFRA legal’s five prosecution posts will transfer to the CPS.

The transfer will take place on 1 September 2011.

DEFRA and the CPS have considered carefully the benefits of the changes and agree that the new structure will provide a better strategic fit for prosecutions. The new arrangement will provide greater resilience in the conduct of DEFRA prosecutions, and the team conducting those cases would have improved access to the range of specialist teams in the CPS that are not available in a small in-house team. The team would also have access to the CPS’s network of advocates serving courts locally.

The new arrangements provide for strong liaison, partnership and accountability between DEFRA and the CPS.

My right hon. Friend is also pleased to announce that with effect from 1 September 2011 the remainder of DEFRA’s legal team will transfer to the Treasury Solicitor’s Department. This transfer will provide greater resilience, flexibility and efficiency in the delivery of legal services to DEFRA.

Phone Hacking

Dominic Grieve Excerpts

Wednesday 6th July 2011 Commons Chamber

[Chris Bryant]

I was going to make that point myself.

[The Attorney-General (Mr Dominic Grieve)]

rose—

[Chris Bryant]

I give way to the Attorney-General, in the hope that he will make the same point as well.

[The Attorney-General]

The hon. Gentleman has taken the wind out of my sails in one respect. I was going to agree with him that it was possible to set up an inquiry. However, I am sure he will appreciate that it becomes extremely difficult for an inquiry to take any evidence while criminal proceedings may still be taking place. That is obviously one reason why the Gibson inquiry has not yet begun its work, which it was hoped would start at the end of last year. I certainly note the hon. Gentleman’s comments about the possibility of setting up an inquiry, but it may not make much progress until the criminal investigations are over.

[Chris Bryant]

I am grateful to the Attorney-General for the way in which he has expressed himself. That is, in fact, a big concession. I think it important for us to make progress, not least because I think that the police themselves would like the sword of Damocles to hang over their necks, so that they know they must proceed and proceed apace. Also, when it comes to an inquiry—especially in this case—they sometimes have to look through the historiography of all the different documentation, and it is important to ensure that that is garnered now, privately.

I see no reason—other than a lack of will, or fear of what it might unveil—for the Government not to set up an inquiry, establish its terms of reference, and appoint its membership immediately.

--- Later in debate ---

[The Attorney-General (Mr Dominic Grieve)]

First, may I congratulate the hon. Member for Rhondda (Chris Bryant) on having secured this debate and thank him, on behalf of the House and on my own behalf, for his courage in raising these matters today? I am absolutely sure that the whole House shares his anxiety, shock and concern about the allegations that have arisen over the last couple of days in relation to phone hacking, just as we share his concern over the past allegations of phone hacking and many of the other matters he raised in his powerful speech.

The suggestion that has now emerged that the phones of Milly Dowler and some of the victims of the 7 July bombings were hacked into must fill any right-thinking person with revulsion, but I hope the hon. Gentleman will forgive me for the fact that, by virtue of being a Minister of the Crown, I am of necessity rather more circumscribed in what I can say at this Dispatch Box than he is in initiating this debate. I must, of necessity, be quite brief, because many of the issues he raised are of a rather delicate nature in view of the fact that criminal investigations are taking place. I shall come back to that in a moment.

Phone hacking is a serious crime and, as the House will be aware, the courts have previously imposed custodial sentences in two cases where it has occurred. The current police investigation is following further evidence, and the most recent allegations, to which we have referred, are being considered as part of that investigation.

It is precisely because of the gravity of the allegations now being made that the Prime Minister announced only a short time ago that there would be a fully independent public inquiry, or set of inquiries, into these matters, but that must not jeopardise any criminal investigation. It is therefore likely that much of the work of the inquiry will be able to start only once the police investigation and any prosecutions that might result from it are concluded. I say that while being mindful of the comments that have been made in the debate that it may be possible to move forward in some areas but not in others. Nevertheless, the burning desire of many people to see finality in this matter and truth to be revealed may take some time because of that, as I am sure the House will appreciate.

In the meantime, however, the Government will do all they can to progress matters further, such as by consulting on appropriate terms of reference, the composition of an inquiry, and whether there should be one inquiry or more than one. The House must bear in mind the fact that there are some very different issues to be considered here. The hon. Gentleman has raised issues about the conduct of the police, for example, and there are also issues about the conduct of the media. There will therefore doubtless be questions as to whether the consideration of these issues can best be merged into one inquiry or should be addressed separately. I merely highlight that point. There is an intention for there to be proper consultation on how to proceed.

[Hazel Blears (Salford and Eccles) (Lab)]

The situation now appears to be that News International is investigating News International and the Metropolitan police are investigating the Metropolitan police. For public confidence, is there not a case to be made for at least some kind of independent supervision, perhaps by a different police force, into the Metropolitan police investigation, so that we can be satisfied that we really are getting to the heart of this matter? I have great confidence in the Met, but they will inevitably know some of the characters involved, so having another police force taking a view would be very helpful.

--- Later in debate ---

[The Attorney-General]

As the right hon. Lady knows, there are mechanisms for inquiries into the conduct of the police to be referred to the Independent Police Complaints Commission and for the IPCC to bring in outside police officers to investigate. As for the News of the World, how it wishes to co-operate with the police in their inquiries is entirely a matter for the News of the World itself. I would not therefore quite join her in saying that the News of the World is investigating itself. My understanding is that the News of the World has appointed independent counsel to try to provide—[Interruption.] No, I am sorry, but what the News of the World chooses to do is a matter for it.

The inquiry that is taking place is a criminal investigation conducted by the police into serious criminal allegations. The question as to how that is responded to by any organisation or individual is a matter for them. I draw neither assurance nor reassurance from the manner in which they choose to do it.

[Helen Jones (Warrington North) (Lab)]

The Guardian has alleged today that News International knew of the existence of e-mails detailing payments to the police some time ago. If that is the case, will the Attorney-General tell the House whether Mr Coulson was aware of the existence of those e-mails before he resigned as the Prime Minister’s spokesman? If so, did he consult the Prime Minister or any other Minister?

[The Attorney-General]

May I respectfully say to the hon. Lady that I am not sure that in my capacity as the Queens’s Attorney-General that is a question to which I would necessarily have the immediate answer? What I can say to her is that a series of criminal investigations are taking place, along with wider inquiry, and the Government are committed, as I have just indicated, to there being an inquiry into the matter. I am sorry to disappoint her but, in any event, I do not think that this is a question that I am in a position to answer.

[Kevin Brennan (Cardiff West) (Lab)]

As a former competition Minister, may I ask the Attorney-General whether, in his view, the Culture Secretary has the power, and always has had the power, to refer the News Corp takeover to the Competition Commission?

[The Attorney-General]

Well, may I say to the hon. Gentleman that my understanding—I checked this before the start of the debate—is that my right hon. Friend the Culture Secretary did refer the takeover to the Competition Commission?

[The Secretary of State for Culture, Olympics, Media and Sport (Mr Jeremy Hunt)]

I was minded to.

[The Attorney-General]

He was minded to. As a result of having done so, a series of assurances were provided, which satisfied him. Thereafter, I suggest that the hon. Gentleman refers that question to my right hon. Friend.

[Helen Goodman (Bishop Auckland) (Lab)]

Could the Attorney-General just tell the House from whom those assurances were received?

[The Attorney-General]

Those assurances were received from News International and were independently validated and referred to Ofcom. May I say to the hon. Member for Cardiff West (Kevin Brennan) that we have to have a little care here? The process by which such a takeover is done follows what is a quasi-judicial procedure, as he is aware. Therefore, in those circumstances, my right hon. Friend’s options in terms of what he had to do were quite severely circumscribed. If the hon. Gentleman feels that that was not properly conducted, I suggest that he raise that with my right hon. Friend directly.

[Mr Straw]

Would the Attorney-General not accept that now that the Secretary of State for Culture, Olympics, Media and Sport is in possession of information relating to the behaviour of News Corp which he could not possibly have been in possession of at the time he made his original decision, it must be open to him, as a matter of law, to reconsider his original decision and make the reference that is now sought?

[The Attorney-General]

My right hon. Friend is sitting next to me and I am sure he will have noted the comments that the right hon. Gentleman has made. He will therefore be in a position to respond to them, if he so wishes.

[Mr Ivan Lewis (Bury South) (Lab)]

The right hon. and learned Gentleman said, in the middle of a quasi-judicial process, that the assurances have satisfied the Culture Secretary, so why is he in the middle of a consultation process, where he is not meant to have made his mind up yet and is still meant to be open-minded about whether to refer this to the Competition Commission? If the assurances have satisfied him, the consultation is a mockery.

[The Attorney-General]

My right hon. Friend said that he was minded to accept the assurances. He is sitting next to me so he is in a position to note the strong views that the hon. Gentleman and the right hon. Member for Blackburn (Mr Straw) have expressed, and I have no doubt that there will be opportunities for him to respond in due course.

[Nicholas Soames]

The Prime Minister made reference, very correctly, in his answers at Prime Minister’s questions this afternoon to due process. It is clear that he was absolutely correct in making that point. Given that there is clear evidence of serious criminality on the part of some people at News International, would not due process also now include, in any event and without necessarily referring this to the Competition Commission, calling a pause pending further evidence?

[The Attorney-General]

My hon. Friend makes a perfectly reasonable point. I have no doubt that my right hon. Friend the Secretary of State will be in a position to note his comments and reflect carefully on whether the situation has changed in such a fashion. However, I come back to my original point, which was that Ministers of the Crown have to be rather careful about simply changing decisions on the hoof, in view of the fact that they are under legal obligations in respect of the way they take those decisions. With great respect to those who have intervened, whose interventions I am happy to field, the nub of this debate is phone hacking and not, at this stage, the takeover policies of the Government.

[Sir Menzies Campbell]

I believe that the Attorney-General is right when, as he has done so far, he confines the argument to the question of competition. But do not the Government, as the overall regulating authority, retain a discretion in relation to the management of this industry throughout the United Kingdom? Does not that discretion, for example, allow the Government to give consideration as to whether the directors of any company have been fulfilling their public obligations?

[The Attorney-General]

I have no doubt at all that my right hon. and learned Friend is correct in what he says, and those are matters that can be borne in mind by the Government in reviewing the process of this takeover bid and, indeed, the competition laws underlying it.

[Keith Vaz]

On the payment of police, which is now in the public domain as a result of the release of the e-mails last night, have there been any discussions between the Home Secretary and the Metropolitan Police Commissioner about this issue? Is everyone absolutely clear that the payment of police officers is a criminal offence?

[The Attorney-General]

I can assure the right hon. Gentleman that I think that nobody in this House, or anywhere else, is in any doubt that payments to police officers—unless they are payments made in relation to a police officer who may have some separate employment, as happens sometimes—in respect of their duties from some extraneous source is illegal. I await any Member of this House who might tell me about a circumstance to the contrary but, at the moment, I cannot think of one.

[Dr Huppert]

It is a pleasure to follow the Chair of the Select Committee on Home Affairs. Does the Attorney-General agree that there are real issues not only about poor behaviour by the media, but about public trust in the police? Does he also agree that we have to be sure that the police will investigate people regardless of how powerful they may be and what the consequences may be, and regardless of whether they have been taking illegal payments from them? That is a serious issue and it does need an inquiry.

[The Attorney-General]

If that situation were not occurring in this country, the rule of law would be undermined, so I can assure my hon. Friend that if there was any suggestion that differential rules were being applied because some people are powerful and some are weak, that would be a very serious matter.

[Frank Dobson (Holborn and St Pancras) (Lab)]

Drawing on his legal knowledge, will the Attorney-General confirm that were News International, with its record of the wrongdoing that it has admitted so far, to apply to run a minicab firm in London, it would not receive a licence? If these are not fit and proper people to run a minicab firm, how can they be a fit and proper outfit to take over a monopoly of a whole television channel?

[The Attorney-General]

As I am sure the right hon. Gentleman will be aware, the question of whether any organisation is a fit and proper person to own a broadcasting licence is a matter for Ofcom, and not the Secretary of State, under section 3 of the Broadcasting Act 1990. Indeed, the Secretary of State would not be allowed to get involved in that matter.

[Oliver Heald (North East Hertfordshire) (Con)]

On the previous occasions these matters were debated in the House, there were many concerns that constitutional issues and issues of privilege arose from the potential hacking of MPs’ telephones. Since that time, the Select Committee on Standards and Privileges has considered this issue and produced its 14th report. In framing the inquiries suggested today, would it be possible to take account of the recommendations of that report, which suggest some ways of clarifying this quite difficult situation?

[The Attorney-General]

My hon. Friend makes a very good point. I have no doubt that that factor, along with every single representation made by Members of this House on how they think the inquiry or inquiries should be conducted, can be taken into account.

[Chris Bryant]

The Attorney-General is absolutely right to say that it is not a matter for the Secretary of State but for Ofcom to decide whether somebody is a fit and proper person, but the whole point is that Ofcom can have no chance to do so unless there is a pause in the Secretary of State’s decision. We need a pause so that Ofcom can come to a conclusion at the end of the police investigation.

[The Attorney-General]

It is a matter that I am very happy to go away and check, but I think the hon. Gentleman might be mistaken. I think that in fact Ofcom could intervene at any stage if it were to conclude that somebody was not a fit and proper person to hold a broadcasting licence. As these matters can be complex and I would not wish in any way to mislead the House, I would be happy to go away and check that point and to write to the hon. Gentleman about it.

[Mr John Whittingdale (Maldon) (Con)]

I can confirm that I spoke to the chief executive of Ofcom yesterday, who told me that Ofcom has the power to intervene at any stage if it determines that somebody is no longer a fit and proper person to own a media organisation.

[The Attorney-General]

I am grateful to my hon. Friend and that confirms what I already thought. Of course, that will not prevent me from going away and triple-checking the matter before I write to the hon. Member for Rhondda about it.

I am conscious that I ought to make progress and I want to allow time for debate. Because of my rather limited ability to comment on many of the allegations made, I was going to remind the House of some of the history of this matter. The House will be aware that these problems originated in November 2005 when the Metropolitan police were contacted by the royal household with concerns that voicemails relating to members of the royal family had been intercepted—

[Chris Bryant]

We know all this.

[The Attorney-General]

The hon. Gentleman says from a sedentary position that he knows all this. He might know all of it, but it is worth reminding the House of some of the salient facts of the inquiry if we are to have an informed debate. I apologise to him if he feels that it is otiose.

In those circumstances, the arrests of Glenn Mulcaire and Clive Goodman took place in August 2006 for unlawful interception of phone messages. Searching Mulcaire’s business premises, police uncovered further evidence of interception relating to a number of other individuals not related to the royal household. As the hon. Member for Rhondda, if not the House, will be aware, Mulcaire and Goodman pleaded guilty— Goodman only to the charges relating to the royal family and Mulcaire to five further counts relating to individuals in the public eye—and were sentenced in January 2007 to four months and six months in prison respectively. It is worth bearing in mind that although I know of the hon. Gentleman’s interest in the matter, after January 2007 matters remained essentially quiet until July 2009, when the media reported fresh allegations relating to further cases of phone hacking.

The Crown Prosecution Service reviewed the material provided to it by the police in order to satisfy itself that appropriate actions had been taken in respect of the material. The CPS was satisfied that the prosecution approach to charging and prosecution was proper and that it would not be appropriate to reopen the cases against Mr Goodman and Mr Mulcaire. It also concluded that any new information should be reported to the police for further investigation.

[Mr David Hanson (Delyn) (Lab)]

It has been reported in the news this afternoon that the former Director of Public Prosecutions, the noble Lord Macdonald, has been appointed by News International to advise it on its dealings with the police at this time. Does the Attorney-General think that that is appropriate, and has he any thoughts from the Government on that development?

[The Attorney-General]

As I am not sure that what the right hon. Gentleman says is correct, I am not minded to comment on it. My understanding of the matter was that Lord Macdonald had been appointed by News of the World to help with the disclosure process to the police. That is a matter for Lord Macdonald in accordance with the professional code of conduct of the Bar. [Interruption.] I can assure the House that I do not think the notes I have just received are necessarily of particular help to me in answering the right hon. Gentleman’s question. He raises a perfectly legitimate point, but without knowing—which I do not—the circumstances in which Lord Macdonald might or might not be involved with advising News of the World in this matter, I do not think it is appropriate for me to comment further.

[Mr Hanson]

Will the Attorney-General give me an assurance that he will look into this matter when he leaves the Chamber today? I, as the then Police Minister, made comments in good faith on 14 July of that year about the DPP’s approach to the case. It is important that there should be clarity on all issues when we consider such matters.

[The Attorney-General]

I entirely agree with what the right hon. Gentleman says and I am happy to go away and consider it. As I have said, a lawyer’s involvement in any matter must ultimately be reconciled with the professional code of conduct and the question of whether any conflict of interest exists. Beyond that, I shall write to the right hon. Gentleman when I have had an opportunity to consider the matter.

Before we were diverted by the subject of Lord Macdonald, I was mentioning the fact that the media reported fresh allegations in 2009. In November 2010, the Metropolitan police approached the CPS for advice about the prospects of bringing further charges. Owing to the non-co-operation of witnesses and the lack of further evidence, however, criminal charges could not be brought. The Metropolitan police asked the News of the World for any new material in January of this year.

Following developments in the civil courts, the CPS then agreed to review everything the Metropolitan police have in their possession to ascertain whether there was any material that could form evidence in any future criminal prosecution for phone hacking. On 26 January this year, in view of the seriousness of the allegations and the fresh information that had come to light, the Metropolitan police announced a new investigation. That investigation, Operation Weeting, is led by Deputy Assistant Commissioner Sue Akers of the specialist crime directorate, which is an entirely different unit within the Metropolitan police from that which carried out the original investigation in 2006.

The Metropolitan police now have 45 experienced police officers working on the case, which illustrates how seriously they are taking this new investigation. It is precisely because of the new investigation that new information is progressively coming to light that is the subject on which the debate requested by the hon. Member for Rhondda has been based. As the Prime Minister has said, the police must be allowed to pursue their criminal investigation in the most vigorous way they can to get to the truth. I simply say to the House that that is one reason why Ministers will not be making pronouncements in detail on some of the matters that the hon. Member for Rhondda has raised.

It is right to point out, as the hon. Gentleman has done, that quite a large number of inquiries have been taking place. We have a CPS review, we have the police pursuing their investigations, we have had a number of activities by the Select Committee on Standards and Privileges and we have also had work done by the Select Committee on Culture, Media and Sport. I hope that the House may derive from all that some reassurance that the issues surrounding these allegations are being taken very seriously. I take them very seriously and it is essential that no stone should be left unturned in ensuring that anyone who is guilty of any criminal offence is brought to justice and that the public are provided, at the end of day, with the truth about has happened and about the lessons needed to ensure that there is no repetition in future.

[Mr Michael McCann (East Kilbride, Strathaven and Lesmahagow) (Lab)]

May I ask the Attorney-General a simple question? Why did it take so long for these issues to be taken seriously?

[The Attorney-General]

May I make a couple of remarks? This Government have been in office since May 2010 and these matters clearly originated some time prior to that. Moreover, I simply point out that the issues reviving in the way they have date back to just before Christmas. The world is not a perfect place, but I note the rather fair comment that the hon. Member for Rhondda made in opening the debate. The House may need to be judgmental about itself in a number of ways, but I rather doubt that it should be selective in how it passes those judgments. In those circumstances, I am satisfied that the Government have acted properly in the past few months in responding to the way this story has developed. I am also satisfied, and I hope the House is satisfied, that the Prime Minister has responded properly to the latest allegations that have emerged today.

[Helen Jones]

The Attorney-General is telling the House that we must await the outcome of the inquiries into these allegations, and I absolutely accept that, but if that is the case why are the Government going ahead with allowing News Corp to take over BSkyB when there are allegations of serious wrongdoing and criminality against it? Surely the Government should wait for the outcome of the inquiries before they proceed.

[The Attorney-General]

At the risk of repeating what I said earlier, the takeover process is a legal one and my right hon. Friend the Secretary of State for Culture, Olympics, Media and Sport will, I have no doubt, receive legal advice about the proper way to conduct that process. I also have no doubt that he is listening and will listen to the representations being made today and the anxieties being expressed on the matter. Beyond that it would not be proper for me to go.

[Chi Onwurah (Newcastle upon Tyne Central) (Lab)]

The hon. Member for Maldon (Mr Whittingdale) said that Ofcom can intervene at any point with regard to the fit-and-proper-person test, but will the Attorney-General give guidance on whether, in applying that test, Ofcom should take into account the ongoing allegations about phone hacking? If it cannot take those allegations into account, will he give guidance on how it should regard the phone hacking issue?

[The Attorney-General]

If Ofcom’s role is entirely independent of Government, I do not think I am the person who should provide it with my opinion on the matter, or the notion of independence is going to be rather lost.

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

rose—

[The Attorney-General]

I really wish to bring my remarks to an end.

[Sir Gerald Kaufman (Manchester, Gorton) (Lab)]

Will the Attorney-General give way?

[The Attorney-General]

Yes, of course I will give way to the right hon. Gentleman.

[Sir Gerald Kaufman]

The Attorney-General says that the Secretary of State for Culture, Olympics, Media and Sport will no doubt receive legal advice, but does he agree that his right hon. Friend is not bound by that legal advice and that as the Secretary of State he has the right, in his quasi-judicial position, to make his own decisions? There is a book about this if the Attorney-General wants to read it.

--- Later in debate ---

[The Attorney-General]

I am sure that my right hon. Friend the Secretary of State is very well advised and will note the right hon. Gentleman’s comments. In order to be equal in my approach, I now give way to the hon. Member for Birmingham, Yardley (John Hemming).

[John Hemming]

In the interests of preventing this from happening again, I should like to know whether the Attorney-General shares my concern that the editors code contains no demand for people to know the basis on which information that has been bought has been obtained or to ensure that it has not been obtained through criminal acts.

[The Attorney-General]

The hon. Gentleman raises an interesting point that can no doubt be looked at by editors and by the Press Complaints Commission.

I wish to conclude simply by saying that these allegations are very grave. In my role as Attorney-General, I have the rather curious title of “guardian of the public interest”, and I have absolutely no doubt that the public interest will be served only if these matters are fully inquired into and if those who have committed or are alleged to have committed criminal offences and are seen to have a prima facie case against them are brought to justice. That will require some forbearance on the part of the House in its desire to see a conclusion to this matter and I ask the House to bear that in mind. With that, I simply reiterate my thanks to the hon. Member for Rhondda for the manner in which he presented the debate.

--- Later in debate ---

[The Attorney-General]

I understand the right hon. Lady’s point, but I think she slightly misunderstood the point I was making. I was referring not just to that, but to the Prime Minister’s statement today. There is a full appreciation, which has grown over time, that this is a serious issue—[Interruption.] Steps have been taken to try to deal with it. I have to say to the Leader of the Opposition that if his Government had been troubled when they were in office, they could have taken steps between 2006 and 2010 to do something about this. Throughout my comments today I avoided making any criticism of the way the previous Government acted, and I think his remarks from a sedentary position are entirely uncalled for.

[Yvette Cooper]

I respect the spirit in which the Attorney-General made his speech, but warn him against any complacency about the number of inquiries solving the issue. The key is whether the overall public inquiry that looks into the matter has sufficient powers and the right remit and can truly get to the heart of what has been happening.

Dr David Kelly

Dominic Grieve Excerpts

Thursday 9th June 2011 Commons Chamber

[The Attorney-General (Mr Dominic Grieve)]

With permission, Mr Speaker, I would like to make a statement about the death of Dr David Kelly and whether an application should be made by me to the High Court for an inquest to be held into his death.

As a Law Officer of the Crown, I am routinely asked to consider such applications as part of my public interest role. It is in that role that I make this statement. I would not normally present the result of my considerations so publicly, but given the interest that this case has attracted from Members of the House and in the media, I think it is right that this House has the chance to consider my conclusions and to ask questions.

The House will be aware that Dr Kelly was a distinguished Government scientist, who became one of the chief weapons inspectors in Iraq on behalf of the United Nations Special Commission and who, from 1991 onwards, was deeply involved in investigating the biological warfare programme of the Iraqi regime. Dr Kelly built up a high reputation as a weapons inspector, not only in the United Kingdom but internationally.

Against a background of allegations of information having been leaked to the media, on Thursday 10 July 2003 both the Foreign Affairs Committee and the Intelligence and Security Committee requested that Dr Kelly appear before them to give evidence. He gave evidence to the Foreign Affairs Committee in a hearing televised to the public on 15 July, and he gave evidence to the Intelligence and Security Committee in a private hearing on 16 July.

In the afternoon of the following day, Dr Kelly left his home to take a walk. By the late evening, he had not returned and his family contacted the police. A search was commenced that resulted in his body being found in the morning of 18 July in woodland on Harrowdown hill in Oxfordshire. It appeared that Dr Kelly had taken his own life by cutting his wrist. Thames Valley police nevertheless commenced an investigation into the case as a potential homicide.

That day, the then Lord Chancellor, Lord Falconer, set up an inquiry chaired by Lord Hutton to investigate the circumstances surrounding the death of Dr Kelly. The Oxfordshire coroner also opened an inquest into the death as he was obliged to do. In August, the Lord Chancellor exercised his powers under the Coroners Act 1988 to transfer the functions of the inquest to the inquiry. The inquest was adjourned on 14 August, after sending the registrar a certificate of death in which the causes were stated to be, first, haemorrhage and incised wounds to the left wrist and, secondly, co-praxomol ingestion and coronary artery atherosclerosis. When the Hutton inquiry reported in January 2004, it confirmed the causes of death as they appeared in the death certificate. Thereafter, on 16 March 2004, the coroner indicated that there was no basis or need to resume the inquest, and that his functions were accordingly at an end.

Because of the interest in the political issues that formed the backdrop to Dr Kelly’s death, a significant number of people have raised concerns about his death and the process used to investigate it, and have called for a new inquest to be set up. At this stage, only the High Court can order an inquest, and then only on an application made by me or by another with my consent. I was asked last year to make such an application and have since been provided with a large amount of information that is said to support the case for an inquest. I am grateful to all those who have taken the time and trouble to put that information together.

As Attorney-General, I had then to exercise a non-political role as guardian of the public interest and consider whether any proper grounds existed for such an application to be made. Recognising the importance of the matter, I have sought the help of independent experts to review the evidence and the new information supplied to me. That has involved help from Dr Richard Shepherd, a leading forensic pathologist, and Professor Robert Flanagan, a distinguished toxicologist. I also sought and received the considered views of Lord Hutton; Mr Nicholas Gardiner, the Oxfordshire coroner; Dr Nicholas Hunt, the pathologist who carried out the original post-mortem; and others in response to the allegations made against their handling of the matter originally. I have also been greatly assisted by officers of the Thames Valley police. I wish to record my thanks to all who have helped me in considering this matter, and in particular to the legal staff at the Attorney-General’s office who have helped me.

Having given the most careful consideration to all the material that has been sent to me, I have concluded that the evidence that Dr Kelly took his own life is overwhelmingly strong. Further, nothing that I have seen supports any allegation that Dr Kelly was murdered or that his death was the subject of any kind of conspiracy or cover-up. In my view, no purpose would be served by my making an application to the High Court for an inquest, and indeed I have no reasonable basis for doing so. There is no possibility that, at an inquest, a verdict other than suicide would be returned.

It is not possible in the short time that I have now to explain in detail the reasoning behind my conclusions. In order to inform the House, I have placed in the Libraries of both Houses today a more detailed statement of my reasons, copies of the independent reports that I commissioned, the responses of Lord Hutton and others, some additional material and a schedule—a 60-page list that I hope covers most, if not all, the arguments that have been put to me and my response to each and every such argument based on all the evidence available.

May I just say, in broad terms, that the suggestion that Dr Kelly did not take his own life is based not on positive evidence as such but on a criticism of the findings of the investigation and inquiry? It began with the views of a number of doctors, undoubtedly expert in their own areas of practice but not qualified as forensic pathologists, that Dr Kelly could not have died from loss of blood from the wounds described. To be fair to those who make such a claim, they did not have access to the material on which those conclusions had been reached in making their own reasoned arguments.

Once such a doubt had been created, those who believed that Dr Kelly was murdered looked for contradictions in the evidence given to Lord Hutton, for matters that were apparently not followed up by the police and for any other issues that might be considered suspicious. Much has been made, for example, of the position in which Dr Kelly’s body was found. Although all the witnesses bar two gave evidence to the inquiry that Dr Kelly was found lying on his back with, as the photographs show, his head very close to the trunk of a tree, the two witnesses who found the body stated that it was propped against a tree. Lord Hutton, who had considerable experience as a trial judge, recognised that honest witnesses, in genuinely seeking to explain what they saw, can and sometimes will none the less recall the same scene differently. Any Member who has any experience of the trial process will say the same. That is underlined by the fact that one of those two witnesses, in the statement that he made to the police closer to the time of the event, actually described the body as being on its back and not propped. That is not a criticism of that witness, but from that minor contradiction came the view that the body must have been moved.

If the body had been moved, then why, by whom and for what purpose? The issue has proven a fertile ground for imaginative speculation to take over. In fact, all the evidence provided by the very careful forensic examination of the scene at the time and the detailed review that, exceptionally, I have undertaken, supports the view that Dr Kelly died where he was found and from the causes determined. There is no evidence that I have seen that would suggest any other explanation, or that suggests any cover up or conspiracy whatever.

I wish to emphasise that my conclusions and decision are, as they must be, entirely my own and based on my assessment of the evidence. I have received no representations of any kind from the Prime Minister or any other ministerial colleague on this decision.

The material is in the Library for all to consider. I believe that anyone approaching this matter with an open mind, whatever their previous misgivings, will find it convincing. I would add only that I offer to the Kelly family my sincere sympathy, not simply for their loss, great though that undoubtedly is, but for having to bear that loss in the glare of intrusive publicity over such a long period. They have borne that load with great fortitude and dignity. Although I realise that it will always be impossible to satisfy everyone, I would hope for their sake that a line can now be drawn under this matter.

[Catherine McKinnell (Newcastle upon Tyne North) (Lab)]

I thank the right hon. and learned Gentleman for early sight of both his statement and the detailed reasons for his decision not to apply to the High Court for an inquest into the death of Dr David Kelly.

Having been afforded the opportunity to read and examine the documentation relating to the Attorney-General’s inquiries, in so far as time has permitted, the shadow Law Officers are grateful for the opportunity to review the documents, from which we derive confidence that the Attorney-General has addressed himself fully to the issues involved. We have been reassured by the comprehensive nature of the inquiry and the quality of the reports produced. The allegations made have clearly been taken seriously and inquired into, and I should like to commend the thorough and extremely transparent way in which he has handled the issue. I hope that that will give Members of the House and members of the public the reassurance that he was seeking to provide.

The Attorney-General’s findings corroborate those of the right hon. Lord Hutton, who concluded in his 2004 report into the circumstances surrounding the death of Dr Kelly that he was

“satisfied that Dr Kelly took his own life”

and

“further satisfied that no other person was involved in the death of Dr Kelly.”

The Attorney-General’s decision also substantiates the findings of the post-mortem and the toxicology reports conducted following Dr Kelly’s death and published by the Ministry of Justice last October

“in the interests of maintaining public confidence in the inquiry into how Dr Kelly came by his death.”

The Opposition therefore accept the Attorney-General’s decision today, on the basis that he has very carefully and clearly outlined his detailed reasons for not applying to the High Court to request an inquest into Dr Kelly’s death, due to the lack of new, compelling evidence that Dr Kelly did not commit suicide.

We are grateful to the Attorney-General for the written statement and related documents that he has placed in the Libraries of both Houses, which will assist Members and the public in understanding the basis of his announcement today. None the less, I am aware that few in this House will yet have had the advantage of perusing the documents. I therefore wonder whether he will provide for Members of the House, and for members of the public, who may listen to this statement but not peruse the documents in the Library, a brief outline of the legal basis of his decision not to apply to the High Court for a new inquest; confirmation that he is satisfied that, as has been extensively raised in media reports, the evidential burden of proof beyond reasonable doubt as to the cause of Dr Kelly’s death has been met, thereby dispelling concerns that a coroner’s inquest would return a different verdict; and a statement of whether he believes that his decision today would not rule out a future inquest should any new and compelling evidence about the circumstances surrounding Dr Kelly’s death come to light.

Finally, I also wish to extend my sincere sympathy to the Kelly family for both their tragic loss and the undoubted difficulty that the extensive publicity surrounding the matter has caused.

[The Attorney-General]

I am most grateful to the hon. Lady for her kind words. I appreciate them and I have no doubt that they will be appreciated by all those who have been involved in reviewing this case.

The hon. Lady raises a number of important points, which I shall do my best to answer. First, I very much hope for the sake of all concerned that this will produce finality, but it is absolutely right that if some new and compelling evidence were to come to light at some point in future that suggests that there might be something wrong in the original inquiry findings, it would of course be possible for the matter to be looked at again, as in the case of any inquest or inquiry. In that sense, there is no bar as a result of the statement that I have made today.

Secondly, the hon. Lady asked me to explain my legal powers a little. The background is that the inquest process was replaced originally by a decision of Lord Falconer to have an inquiry, pursuant to section 17A of the Coroners Act 1988. That decision was never challenged at the time—somebody could have done so if they had wanted to, and there is no reason whatever to suppose that there was anything improper about the decision. Indeed, as I understood it, the decision marked the seriousness with which Lord Falconer took the matter at that time, and it marked his desire to have an inquiry that would be capable of going further in its scope than an inquest, particularly in respect of looking at some of the surrounding circumstances, which an inquest would not be particularly well placed to do.

Lord Hutton did indeed look at those surrounding circumstances, but they were not really the subject of this review. The review arose from the representations of the memorialist doctors who indicated that they thought that the lack of certainty specifically as to the cause of death was such that I ought to exercise my powers under section 13 of the 1988 Act to make an application to the High Court for the inquest to take place—we may have to face up to the fact that no inquest took place, because it adjourned without being completed.

I do not wish to get involved in legal technicalities, but those powers are of a slightly technical nature. However, I approached the matter on the basis that if there was an evidential basis for calling into question the inquiry’s findings on the cause of death, I would make such an application, whatever the technical difficulties might be, because of my view that in such circumstances, the Court would be minded at least to find a way to allow the matter to be reinvestigated. That was the basis on which I operated. That we have taken some time and, I must say, a lot of trouble, to look at this matter very carefully is a reflection of the seriousness, in my view, of the allegations that were being made, and of the fact that the allegations were being made by apparently sensible and reasonable people. I am grateful to them for bringing those problems forward.

That is the basis on which I operated, but having operated in that way and having reviewed all the evidence—the hon. Lady has seen the schedule, which I hope will be helpful to hon. Members who go to the Library to look at it—I decided that the evidence was overwhelming that this was a tragic case of suicide, and that suicide caused Dr Kelly’s death for the medical reasons that were correctly identified at the time that the death certificate was made out.

[Richard Ottaway (Croydon South) (Con)]

As a member of the Select Committee on Foreign Affairs that took evidence from David Kelly in 2003, I have never doubted that he committed suicide. I have always believed that Lord Hutton was right on that, even though his conclusions on the war have subsequently been challenged.

I have known the Attorney-General for many years, and I know that he will have done a perfectly thorough and diligent job. Will he accept that the evidence is clear, and that it is time to bring closure to this matter and move on?

[The Attorney-General]

I certainly think that the evidence is clear, and indeed that there is no evidence to the contrary—that point will be quite clear to anybody who looks at the schedule—in the sense that I could see perfectly satisfactory answers to every question that was raised with me, all of which led inexorably to the suicide verdict.

I agree with my hon. Friend. I hope that this will enable us finally to draw a line under the matter. It was clearly a matter of huge and legitimate public concern for a variety of reasons, and everything took place in a very difficult political environment. However, I believe that my review and its findings are very clear-cut. This was not a question of my having to make a balancing decision and coming down on one side or the other. I reviewed all the material, and the outcome is that it is quite clear to me that the original inquiry’s findings were correct.

[Andrew Miller (Ellesmere Port and Neston) (Lab)]

May I congratulate the Attorney-General on the clarity of his statement and on his decision, which on the basis of the scientific evidence that I have read is quite right? Will he confirm that the detailed scientific reports are included in the bundle of papers that he has placed in the Library, including those from Richard Shepherd and Robert Flanagan, to which he referred? Will he ensure that an interpretation for lay people of what the scientists wrote is included, so that the conspiracy theories do not develop again?

[The Attorney-General]

The hon. Gentleman will be the best judge of that. Professor Flanagan’s and Dr Shepherd’s reports will both be in the Library. I think they are written in pretty plain English. Clearly, they are also medically based, which is inevitable. In the schedule, I have used that material and other material to seek to set out each matter in slightly plainer terms. I think it is readily comprehensible, and I hope it will help to inform the public as well as Members of the House.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

Will the Attorney-General note that when, along with my Intelligence and Security Committee colleagues, I questioned Dr Kelly two days before he died, I formed the view that a very distinguished public servant was deeply distressed by the situation in which he had placed himself? Although I am wholly unpersuaded by any of the theories that have been put forward as an alternative to suicide, will the Attorney-General spell out what he thinks will be lost by allowing the process of inquiry to be completed by an inquest?

[The Attorney-General]

The first problem is that there is no basis on which the High Court could possibly order an inquest. In my judgment, if I were to go to the Court and make such an application, it would be dismissed, and dismissed with—I assume, on the basis of my reasoning—a certain amount of irritation, because such an application must be made on an evidential basis.

We have also held an inquiry. I make the point in the schedule that the suggestion that the inquiry was in some way inferior to an inquest, in the sense that it was unable to look at some of the things that an inquest could have looked at, really does not bear any reasoned—either logical or legal—examination. Therefore, in practical terms, the inquest—or something tantamount or equivalent to it—has already taken place. On top of that, a review has been carried out in the knowledge of public anxiety by eminent professionals, who have looked specifically at the anxieties that have been raised, either by the memorialists or others. In each case, they have said that the original findings were correct.

I should just make the point that there was one exception: the timing of death was reviewed, because the conclusion was reached that the tables that were used by the pathologist at the time—through no fault of that pathologist—were in fact not accurate. That is a question of the development of medical science. With that exception, nothing calls into question any of the detailed findings or comments that were made originally.

[Mr Tom Harris (Glasgow South) (Lab)]

May I warmly welcome the Attorney-General’s statement? He will of course know that this will do nothing to discourage the paranoid conspiracy theorists, but on the other hand they would not change their minds just because of the existence of evidence even if an inquiry went ahead.

Speaking of paranoid conspiracy theorists, where is the Under-Secretary of State for Transport, the hon. Member for Lewes (Norman Baker)? When only last year he told the media that the Hutton inquiry had cut corners, was he speaking on behalf of the Government?

[The Attorney-General]

I am quite sure that he was not speaking on behalf of the Government. In any case, the Government do not have a position on the matter. I have a position on the matter, based on my review, and I am sure that many Members across the spectrum have individual views on the subject, and that is their entitlement—as it is of anybody in this country.

[Karl MᶜCartney (Lincoln) (Con)]

I listened intently to my right hon. and learned Friend’s statement, particularly the part where he mentioned that he had not received any representations from ministerial colleagues. Will he clarify whether he consulted the Prime Minister in advance of coming to the House to make this statement?

[The Attorney-General]

I most certainly did not, and it would not have been proper for me to do so. Nobody has spoken to me about it, and that applies to all my ministerial colleagues.

[Ms Gisela Stuart (Birmingham, Edgbaston) (Lab)]

As a member of the Foreign Affairs Committee when it took evidence from Dr David Kelly—as was my hon. Friend the Member for Leeds North East (Fabian Hamilton)—I have followed these proceedings probably more closely than other hon. Members. I thank the Attorney-General for his statement and ask him to remind those who remain unsatisfied that they also have a responsibility to the family of Dr David Kelly and, unless they can really substantiate their claims, they should look at the evidence in front of them and be satisfied.

[The Attorney-General]

The evidence is there in the Library to see, and it will be available to the public as well. I hope that those who have concerns will take the time to look at the material. Of course, the background to this is a human tragedy of great pain for the family, and that is why I hope that people will be convinced that this matter should now be laid to rest.

[Sir Peter Bottomley (Worthing West) (Con)]

What in my view distinguishes this case from the sad case of Jay Abatan, who died on 29 January 1999—an inquest was held 10 years later, at which new evidence came forward—is that in this case there were no new witnesses or evidence. In relying on the work of Lord Hutton’s team and others, I hope that my right hon. and learned Friend will accept that those of us who believe that Lord Hutton came to the wrong conclusion on the main parts of the inquiry can maintain that belief. If he had come to a different conclusion and used a gentler form of words than “sexed up”—or whatever the expression was—we would have had a near perfect ending to what was a very bad episode in which the previous Government behaved appallingly.

[The Attorney-General]

I understand the point that my hon. Friend makes. The review that I carried out was focused on the cause of death, because it was the calling into question of the inquiry’s findings and of the signing of the death certificate that started the spiral of speculation that has grown from that. I focused on that issue and my conclusions are directed to it. I appreciate that there are wider issues that Lord Hutton tried to address, but they are not matters that I have sought to reopen. I know that those matters remain controversial to many.

[Kelvin Hopkins (Luton North) (Lab)]

My hon. Friend the Member for Glasgow South (Mr Harris), who is no longer in his place, referred in passing to the book written by the hon. Member for Lewes (Norman Baker), who is now a Minister. Did the Attorney-General respond specifically in his judgment to some of the points made in that book and would he care to say briefly what he thought of it?

[The Attorney-General]

I have looked at the book on several occasions. It is partly a critique of the evidential process of the inquiry and partly a speculation—I do not think it has ever been suggested that it is anything more than speculation—about alternative possibilities for what might have happened to Dr Kelly. Having focused on the evidence, I have come to conclusions on the evidence. I hope that, as a result, my hon. Friend the Member for Lewes (Norman Baker)—quite apart from anyone else—may conclude that this was in fact a case of suicide.

[Patrick Mercer (Newark) (Con)]

May I thank the Attorney-General for the clarity that has been shed on this subject? However, there is no doubt that certain bodies will now ask for a judicial review of his decision. Would the Government care to undertake not to order costs to be raised against them in the event of that application being unsuccessful?

[The Attorney-General]

I have to say to my hon. Friend that that is a hypothetical question. It is obviously open to individuals to apply for judicial review of my reasoning and decisions. At the moment, I simply express the hope that they will not feel the need to do so.

[Thomas Docherty (Dunfermline and West Fife) (Lab)]

Will the Attorney-General say whether he would be content if one of his ministerial colleagues were to publicly dissent from his decision, given his quasi-judicial role?

[The Attorney-General]

I am not aware of any ministerial colleague having expressed any view that dissents from my decision.

[Tom Brake (Carshalton and Wallington) (LD)]

Does the Attorney-General understand why, given that key witnesses were not called during the Hutton inquiry, that the inquiry did not have legal standing and that further evidence has come to light since, some—including Dr Stephen Frost—consider that inquiry to have been inadequate? Does the Attorney-General also understand why doubts will remain about the process followed, if not necessarily about the cause of death?

[The Attorney-General]

I am aware that doubts were expressed about the process. I have reviewed the process, but above all I have reviewed the evidential conclusions based on the process and the evidence. The conclusion that I have reached is that the process came to the correct conclusion. On that basis, it seems to me that it achieved what it set out to do and did it properly.

[Geoffrey Clifton-Brown (The Cotswolds) (Con)]

I came to this statement prepared to be dissatisfied with what I would hear because I have spoken to one of the country’s leading cardiovascular surgeons who has received evidence—admittedly second-hand and not directly—and who has said to me on several occasions that Dr Kelly could not have died from a slit to the wrist, because that would not have caused death. However, that surgeon did not of course consider in that judgment what chemicals or drugs Dr Kelly might have taken. So I commend my right hon. and learned Friend. From what I have heard today, he has conducted a thorough and impartial inquiry. I reserve judgment because I wish to read the material he has placed in the Library, but unless new evidence comes to light, I think a line should now be drawn under this matter to allow the family to put it behind them.

[The Attorney-General]

I am most grateful to my hon. Friend. I listed in my statement the causes of death as they were found and put in the death certificate, and that has been reviewed in great detail. The unequivocal view of Dr Shepherd and Professor Flanagan is that those causes of death are entirely correct, and that the combination of factors as listed was what caused the death of Dr Kelly. Of course, the primary cause was the fact that he slit his wrists and took an overdose.

[Mr Robert Buckland (South Swindon) (Con)]

As someone who also harboured doubts about the quality of the process before the Attorney-General’s review, may I welcome the clarity of his statement? Does it amount to this—in focusing on the function of a coroner’s inquiry, which is to look into nothing more or less than the cause of death and to reach a verdict from a range of options available as a matter of law, is he telling the House that any inquest would have been driven to a verdict of suicide?

[The Attorney-General]

Yes, indeed. There is no evidence that I have seen, including the material that has been produced on the review, that could lead to an inquest coming to any other conclusion.

[Bob Stewart (Beckenham) (Con)]

Does the Attorney-General agree that his statement today should put to bed some of the outrageous and fallacious speculations that members of our security forces might have murdered Dr Kelly?

--- Later in debate ---

[The Attorney-General]

I entirely agree with my hon. Friend. I have to say that those suggestions have always struck me as being at the rather far-fetched end of the spectrum. The evidence overwhelmingly shows that Dr Kelly committed suicide: he was not killed by anyone.

[Mr Peter Bone (Wellingborough) (Con)]

The Attorney-General has done the House a great favour by coming here and making such a full statement. It should be an example to other Ministers. He said in his statement that he is routinely asked to apply to the High Court for inquests. For the House’s information, will he say how many times he has actually gone to the High Court?

[The Attorney-General]

Generally speaking, I do not have to do it myself, but give permission for it to be done. I did that very recently in a case where a body had been found and never identified. Some considerable time afterwards identification became possible, so the inquest had to be reopened for the purpose of identifying that the person who had died and had been long buried was, in fact, the person concerned. That is an example. It is part of my functions to do it. I have to review each such case, but generally speaking, I give my permission to others to do it, and do not have to take that role myself.

[Robert Halfon (Harlow) (Con)]

I commend my right hon. and learned Friend on his statement, and hope very much that it will draw a line under all these conspiracy theories. Does he agree that these theories came about because of the previous Government’s mishandling of the case for the Iraq war, particularly the 45-minute claim about an attack on British targets?

[The Attorney-General]

My hon. Friend asks me to stray from the role that brought me to the Dispatch Box as the guardian of the public interest and into the realm of politics. I shall restrain myself from doing so.

[Madam Deputy Speaker (Dawn Primarolo)]

Attorney-General, thank you very much. I know that the whole House appreciates the detailed answers and your statement today. It is widely appreciated.



Postal Services Bill (Programme) (No. 2)

Motion made, and Question put forthwith (Standing Order No. 83A(7)),

That the following provisions shall apply to the Postal Services Bill for the purpose of supplementing the Order of 27 October 2010 (Postal Services Bill (Programme)):

Consideration of Lords Amendments

1. Proceedings on consideration of Lords Amendments shall (so far as not previously concluded) be brought to a conclusion three hours after their commencement at today’s sitting.

Subsequent stages

2. Any further Message from the Lords may be considered forthwith without any Question being put.

3. The proceedings on any further Message from the Lords shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.—(Mr Dunne.)

Injunctions

Dominic Grieve Excerpts

Monday 23rd May 2011 Commons Chamber

[Mr John Whittingdale (Maldon) (Con)]

(Urgent Question): To ask the Attorney-General if he will make a statement on the granting and enforcement of privacy injunctions, particularly in light of the recent report chaired by the Master of the Rolls.

[The Attorney-General (Mr Dominic Grieve)]

I am grateful for the opportunity to respond to my hon. Friend on an issue that I know is of considerable concern in this House as well as to the public and the media. The Government believe that freedom of speech is a cornerstone of our democracy, and that it is of the greatest importance that people should be able to discuss and debate issues as freely and openly as possible. This includes those occasions when freedom of speech is exercised provocatively, as it is supposed to be in a free country.

Plainly, however, there are also occasions when an individual is entitled to have their privacy protected. There is a balance to be struck and this is reflected in our existing legal framework. The Government recognise the importance of finding the correct balance between individual rights to privacy on the one hand and rights to freedom of expression and transparency of official information on the other. We also recognise that there are widely differing views on what that balance should be. It is in no one’s interest to rush to judgment on this.

The complexity of the issue and the lack of consensus are some of the reasons why the report of the Master of the Rolls’ committee on the procedural aspects of super-injunctions and anonymity injunctions published last Friday is to be welcomed, and why we will want to take on board its carefully thought through recommendations. It reaffirms that open justice is a fundamental constitutional principle, and that exceptions are permissible only to the extent that they are strictly necessary in the interests of justice. While such decisions will necessarily be made in each particular case, dependent on the facts of that case, it does offer a likelihood of some greater clarity.

The report indicates that when some degree of secrecy is necessary, the facts of the case and the reason for secrecy should be explained, as far as possible, in an openly available judgment. It also emphasises that super-injunctions—where the fact that there is an injunction, as well as the substantive issues, has to be kept secret—are now only being granted for very short periods where secrecy is necessary to ensure that the whole point of the order is not destroyed. We hope that its analysis and recommendations should help to allay concerns that super-injunctions were being granted far too readily and about their potential open-endedness.

Of course, a range of wider issues has been raised by the events of the past few months and especially the past weekend. We take seriously the need to ensure that we have the correct balance between privacy and freedom of expression. Today, the Prime Minister will write to my hon. Friend the Member for Maldon (Mr Whittingdale) recommending that a Joint Committee be established to consider how current arrangements can be improved. Such a Committee will be able to use representation of both Houses and the considerable expertise that Select Committees have to examine whether the current arrangements are working and to consider whether we might make any changes that would make things work better.

In the meantime, it is right to emphasise that just as any change in the law is a matter for Parliament, the interpretation of the law is a responsibility placed on the judiciary. Legal mechanisms exist to review individual decisions that may be mistaken. If we believe in the rule of law, it is our duty as parliamentarians to uphold those principles.

[Mr Whittingdale]

I welcome the report from the committee of the Master of the Rolls, which contains a number of sensible recommendations, and also the Prime Minister’s decision to establish a Committee to examine all the issues surrounding the granting of injunctions and super-injunctions. Does my right hon. and learned Friend accept, however, that matters are developing very rapidly? Does he accept that the revelation on Friday of some of the details of the injunction granted to Sir Fred Goodwin raised important issues of public interest, and that that raises the question of why the injunction was granted in the first place? Does he agree that he would virtually have to live in an igloo not to know the identity of at least one premier league footballer who has obtained an injunction, and that the actions by thousands of people who posted details of it on Twitter are in danger of making the law look an ass?

In the report by the Master of the Rolls, doubt is cast once again on the right of the press to report the proceedings of Parliament. Does that not have worrying implications for the rights of Members of the House of Commons, and for parliamentary privilege?

More than a year ago, the Select Committee on Culture, Media and Sport called for the Parliamentary Papers Act 1840 to be replaced by a clear and comprehensive statute upholding the fundamental rights of the press to report what is said in this place. Will he ensure that that, too, is considered by the Prime Minister’s Committee as a matter of urgency?

[The Attorney-General]

Let me respond to my hon. Friend’s reference to individual cases by saying that he will not be surprised if I am not drawn into commenting on the matter. What I can say is that widespread public interest and, indeed, disquiet have been expressed about the events of the past few weeks and days, and that—as the report by the Master of the Rolls clearly showed—they raise the question of how a person’s privacy can be balanced against the requirement for the public to be properly informed, and also the question of how injunctions may be enforced. I would add, however, that the courts have power to punish those who breach injunctions, and those who decide flagrantly to do so should bear that in mind when they embark on such a course.

The question of parliamentary privilege is not a new issue. While it is fully recognised that we have complete privilege in this Chamber to say what we like—and the Lord Chief Justice reiterated that in the clearest and most unequivocal terms in his comments last Friday— the question of the extent to which communication between a constituent and a Member of Parliament is covered by parliamentary privilege remains uncertain. What is entirely clear is that—from the judiciary’s point of view as much as those of the Government and Parliament—that is an undesirable state of affairs, which is undoubtedly susceptible to both clarification and rectification if the will is there for that to be done.

[Sadiq Khan (Tooting) (Lab)]

I thank the Attorney-General for his answer to the urgent question. I also thank the committee chaired by the Master of the Rolls for its report.

Will the Committee that the Prime Minister is to establish be a Joint Committee consisting of the Culture, Media and Sport and Justice Committees, and how soon will it report?

Until now, the Government’s position on this issue has been a muddle. The Attorney-General may be aware that I raised the issue last week during Justice questions, when I reminded the Lord Chancellor about the importance of balancing freedom of expression with an individual’s right to privacy. I also asked the Government to give clarity and guidance on an issue that has become increasingly confusing and where Parliament has been slow to act. In response, the Lord Chancellor said that

“it is probably right that Parliament passing a privacy Act might well be the best way of resolving the issue”.—[Official Report, 17 May 2011; Vol. 528, c. 137.]

However, on the following day the Culture Secretary said:

“I don’t believe a privacy law is the way forward.”

The Government appear to be at sixes and sevens on their policy on privacy injunctions and freedom of the press. Will the Attorney-General clarify their position?

Does the Attorney-General believe that a new privacy law is needed? If so, how will it differ from article 8 of the Human Rights Act 1998? He will be aware that super-injunctions and anonymised orders should apply only in exceptional cases. There is a concern that they are being applied for, and granted, too readily. Does the Attorney-General believe that this report will address those concerns, and how soon will the Committee report?

Does the Attorney-General believe that the sanctions for those who break injunctions are sufficient? What are the Government’s views on how the right to privacy can be balanced with the growing usage of internet-based communications such as Twitter?

Finally, being able to speak freely in the House of Commons and House of Lords is an essential part of parliamentary scrutiny. Can the Attorney-General confirm that the Government will not allow this principle to be undermined in any way?

[The Attorney-General]

I shall deal, so far as I can, with each point in turn. First, the Government have made it clear that it will be a Joint Committee, and have asked

“Business Managers to establish a Joint Committee of both Houses to consider these issues. The remit will be to advise the Government on how current arrangements can be improved and put on a more sustainable footing, aiming to report in the autumn.”

The Government have also

“asked the Justice Secretary and Culture Secretary to liaise…on the Terms of Reference.”

The right hon. Gentleman’s second question was about privacy law. It is undoubtedly the case that it would be open to this House to enact a privacy law, if it wished. However, I have to say to the right hon. Gentleman that he misquoted my right hon. Friend the Culture Secretary, as what he actually said was:

“We’re not minded to have a new privacy law but we’re not ruling out the need for legislative changes.”

If I may say so, it is possible to have legislative change without necessarily having a full-blown privacy law, and this seems to me to be precisely the sort of issue that the Committee will need to consider, and in a measured and sensible fashion.

The right hon. Gentleman rightly raised the question as to whether a privacy law would make any difference to the existing arrangements. That, too, is an interesting subject for both legal and political debate, and it is precisely because that needs to take place that the suggestion has come forward that this is the best way in which to proceed.

Finally, the right hon. Gentleman asked a number of questions about enforceability. It has been clear for some time in a number of different spheres that the enforceability of court orders and injunctions presents a challenge now that information can rapidly be posted on the internet, but that does not necessarily mean that the right course of action is to abandon any attempt at preventing people from putting out information that may, in some circumstances, be enormously damaging to vulnerable people or, indeed, be the peddling of lies.

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

May I press my right hon. and learned Friend further on the second issue raised by my hon. Friend the Member for Maldon (Mr Whittingdale): the protection of parliamentary privilege? Last week in the report and the subsequent press conference, the Master of the Rolls and the Lord Chief Justice intimated that they wanted the House of Commons to extend the sub judice rules in order to restrict the use of freedom of speech under parliamentary privilege in this House and/or the reporting of it. Had that applied in 2009, the public would not be aware today of the Trafigura super-injunction and this whole issue would not have come to light. Can my right hon. and learned Friend please ensure that these proposals by the Master of the Rolls and the Lord Chief Justice do not in any way restrict either our rights or the rights of the press to report?

[The Attorney-General]

I have to say to my right hon. Friend that my reading of what was said is rather different. In the clearest and most unequivocal terms, both the Lord Chief Justice and the Master of the Rolls spelled out the existing fact: that the privilege we have under article 9 of the Bill of Rights is unimpeachable in any court in respect of what is said in this Chamber. The control mechanism that is put in place is, in fact, entirely dependent on yourself, Mr Speaker. That then raises the question of the extent to which there is a necessity, by convention, for comity, whereby this House, through Mr Speaker’s authority, respects the rulings of other courts, being a court itself. As I understand it, there has never been any suggestion that any of the proposals being put forward call into question those basic principles. Indeed, as I pointed out in an earlier answer, the evidence is pretty overwhelming that where there is a lack of clarity in this area in terms of communication between constituent and Member of Parliament, there seems to be a universal view that it would be well if we could clarify things, and the Government recognise that.

[Sir Stuart Bell (Middlesbrough) (Lab)]

We welcome the Attorney-General’s clarification, but is it not a fact that if we continue to use parliamentary privilege to usurp court orders, we are not only bringing Parliament and the courts into conflict, but interfering with the separation of powers. Is that desirable or is it not?

[The Attorney-General]

I would assume that across the House it would be considered that the abuse of parliamentary privilege to subvert court orders made with the express intention of implementing Parliament’s legislation through the courts is improper. Ultimately, however, that is a matter for this House and Mr Speaker to regulate, and it is through our own mechanisms that we do so; that is the right and privilege we have. I certainly agree with the hon. Gentleman that it is a privilege that must not be abused.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

We would expect a Joint Committee to uphold the necessary rights of Parliament and defend them, but would any Committee not also have to look at the separate question of whether it can be right for someone to use Twitter or electronic media of other kinds to place something in the public domain with the express intention of allowing it then to be reported?

[The Attorney-General]

The right hon. Gentleman raises an important point, but it ties in with the earlier point about how all this can be enforced. As I said earlier, however, those who take an idea that modern methods of communication mean that they can act with impunity may well find themselves in for a rude shock.

[Keith Vaz (Leicester East) (Lab)]

I, too, welcome the establishment of this Joint Committee, which is sensible in view of the difficulties in interpreting the law. There are reports that the Attorney-General is considering prosecuting an individual for a breach of one of these injunctions. Is that the case? Is he considering such a prosecution?

[The Attorney-General]

I would not normally comment on the role I have to carry out as Attorney-General in the public interest and not as a Minister of the Crown, but there is no secret in the fact that, as matters stand, I have received no referral whatsoever in relation to any civil contempt of court.

[Mr William Cash (Stone) (Con)]

Does the Attorney-General accept that the fault in this case lies with Parliament itself in not repealing the Human Rights Act 1998? As the then shadow Attorney-General, I advocated doing that and it remained Conservative policy until the general election. Does he accept that it is about time that we legislated on our own terms in Westminster to deal with these matters, and in terms of parliamentary privilege, to ensure that the British voter actually sees legislation that is what he wants and that we have British law for British judges?

--- Later in debate ---

[The Attorney-General]

My hon. Friend raises a perfectly legitimate issue, which may doubtless be the subject of debate in this Chamber. Like me, he will recall that when we enacted the Human Rights Act the issue of the balance between privacy and freedom of expression was extensively debated. Indeed, not only was it extensively debated, but its detail was looked at, as were its possible implications in respect of introducing a privacy law into our national legal framework. Therefore, it cannot be said that the consequences that flow from it can be unexpected; I strongly suspect that he predicted them at the time, and I believe I did too.

[Dr Eilidh Whiteford (Banff and Buchan) (SNP)]

I hope that the Attorney-General will acknowledge the independence of the Scottish courts. Will he confirm that no application was made for an interdict at the Court of Session on the news reported in the Sunday Herald yesterday and will he assure the House that no legal action will be taken against the newspaper or its staff?

[The Attorney-General]

Scotland enjoys and has always enjoyed a separate legal system. It follows that orders made by the courts of England and Wales, generally speaking, do not have application there, although there are at times some exceptions.

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

With about 75,000 people having named Ryan Giggs on Twitter, it is obviously impracticable to imprison them all, and with reports that Giles Coren also faces imprisonment—

[John Hemming]

The question is, what is the Government’s view on the enforceability of a law that clearly does not have public consent?

[The Attorney-General]

It is our duty as parliamentarians to uphold the rule of law.

[Mr Chuka Umunna (Streatham) (Lab)]

I should like to return to the response to the question asked by my hon. Friend the Member for Middlesbrough (Sir Stuart Bell). Although it is right that we do not have a strict separation of powers in this country, we adhere to the principle to some degree as it is accepted that we write the laws and the courts interpret and apply them. In that context, does the Attorney-General agree that Members of this House should exercise extreme caution when, as we have in some senses just witnessed, they take it on themselves to breach court orders using parliamentary privilege when they are not fully apprised of all the evidence in the way that the judges who hear the cases are appraised? We have the power, after all, to change the law if we see fit.

[The Attorney-General]

Yes.

[Mr Peter Bone (Wellingborough) (Con)]

May I take a contrary view? Members of this House have absolute privilege that they use responsibly and for judges to criticise Members of this House seems to me to be an abuse of their power. Will the Attorney-General spell out quite clearly that judges should butt out?

[The Attorney-General]

I have to say to my hon. Friend that I am not quite sure what they are supposed to butt out from. If he is suggesting that they should butt out from doing their duty and following the judicial oath that they take, I am afraid I disagree with him.

[Ms Gisela Stuart (Birmingham, Edgbaston) (Lab)]

Could the Attorney-General reaffirm for the benefit of all Members that if this House does not like the way the judiciary interprets law, it is up to this House to change it?

[The Attorney-General]

The hon. Lady is absolutely right and it is therefore open to this House and the Government to consider those issues. To return to where I started in my answer to the urgent question, a mechanism has been put in train that will, I hope, allow, on the basis of some cross-party consensus, a sensible view to be taken of how the law can be improved in this area.

[Sir Menzies Campbell (North East Fife) (LD)]

Does my right hon. and learned Friend agree that some important issues of principle and of the constitutional rights of Members of Parliament are under discussion, as some of the exchanges have already demonstrated? Is it not now time for either the Joint Committee that he mentioned or a special Select Committee of the House of Commons to determine the boundaries of privilege in the modern day and age, some of which were touched on by the special Select Committee that examined the case of Mr Damian Green in the last Parliament?

[The Attorney-General]

May I reassure the right hon. and learned Gentleman that that matter is in the Government’s programme? Indeed, there should be a draft Bill on that very subject before the end of the Session.

[Mr Tom Watson (West Bromwich East) (Lab)]

The internet heralded the age of information abundance, whereas once newspapers could enforce information scarcity. Our dilemma is caused by our failure to respond to that challenge as a Parliament, so I welcome the review. Given that at least one person who took out a super-injunction is also talking to solicitors about the illegal hacking of their phones, does the Attorney-General not think that to balance this up we must consider the massive covert and illegal invasion of individuals’ privacy so that we can have a framework of laws that protects people from technological invasion of their privacy while also allowing freedom of the press?

[The Attorney-General]

As the hon. Gentleman will be aware, the question about phone hacking is currently the subject of criminal investigation. For that reason, I am sure he will appreciate why it is not a subject on which I wish to comment further in any detail, but I will say that the Government are perfectly aware of the issue.

[Philip Davies (Shipley) (Con)]

Surely, we cannot have a situation in which celebrities court positive publicity to gain sponsorship and other endorsements and then rush to take out super-injunctions when negative publicity comes their way. There are not many cases of people taking out injunctions regarding positive publicity. Does the Attorney-General therefore agree that what we do not need are more privacy laws, of which we seem to have plenty at the moment, and that we need freedom-of-speech and freedom-of-the-press laws?

[The Attorney-General]

May I say to my hon. Friend that our laws already provide very substantial protection for the freedom of the press? The question arises as to how a balance should be struck. Even before the operation of the Human Rights Act, the power of the courts to protect the vulnerable and children, for example, was well established in our law. In that sense it is not a novelty. That balance is always going to be a subject of legitimate debate and I hope that, as a result of the steps that the Government are taking, that debate will take place.

[Eric Joyce (Falkirk) (Lab)]

The Attorney-General has rightly concentrated on matters of law but does he agree that equally important, arguably, are matters of technology? If it is not technologically possible to enforce a particular law, there is hardly any point in having that law in the first place.

[The Attorney-General]

I am not sure that I entirely agree with the hon. Gentleman. Ultimately, the enforceability of any order made by a court depends first on people obeying the law and, secondly, if people do not obey the law, on the capacity to bring them to justice and to make the court’s order felt on them. That is a slightly different issue but, as I acknowledged earlier and as was acknowledged by the Lord Chief Justice when he gave his press statement last Friday, the multiplicity of available communication media certainly do pose a particular challenge for the courts.

[Mr Robert Buckland (South Swindon) (Con)]

I wonder whether my right hon. and learned Friend could assist me with a point raised by the Neuberger report—the change allowing members of the media to be present when applications are made. Am I right in presuming that the press will be able to report unsuccessful applications with full details? If so, will that perhaps serve as a further check on the makers of these applications in future?

[The Attorney-General]

I think that will be very much a matter for the discretion of the judge hearing the case. I do not think that one could make some kind of blanket pronouncement as to how it would operate in practice, but clearly the merit of the course of action being proposed is that it would remove the element of total secrecy, which—I can well see this argument—fuels speculation and in some cases, I have little doubt, a lack of understanding as to why the application was made in the first place, whether it was successful or not.

[Mr Matthew Offord (Hendon) (Con)]

I think that we all agree in the House that the law should be used to protect the vulnerable and not to hide the misdemeanours of those with large cheque books, but does my right hon. and learned Friend agree that we have found ourselves in this situation because of the behaviour of some of the newspaper press? Super-injunctions have emerged because of the ineffectual and impotent way in which the Press Complaints Commission works, but we can regulate that and give ourselves greater protection from abuse.

[The Attorney-General]

Looking at the matters that have been complained of recently, it seems to me fairly noteworthy that the press appear generally to observe the terms of injunctions against them. Indeed, from that point of view the injunction system appears to be quite effective; it is in other respects, such as the blogosphere and Twitter, that the difficulty emerges. What is absolutely clear is that breaches of court orders should not take place.

[Mr Ben Bradshaw (Exeter) (Lab)]

Following on from that question, does the Attorney-General agree that members of the Press Complaints Commission are the last people who should be policing this area—an idea that has apparently been floated by the Prime Minister—given their feeble record and complete failure over the phone-hacking scandal?

[The Attorney-General]

The question of what role the Press Complaints Commission may play is clearly another subject that the House may wish to consider. I am not sure that I entirely subscribe to the right hon. Gentleman’s very pessimistic view of the Press Complaints Commission. I have seen examples where, it seems to me, it has operated quite effectively. That is a further reason why that may be a sensible area for debate.

[Mr Stewart Jackson (Peterborough) (Con)]

I welcome the review, but does the Attorney-General share with me the concern at the deeply sinister and Kafkaesque prospect, under the present super-injunction regime, that an unnamed journalist could be imprisoned in a secret court for having revealed the name of a hitherto anonymous personality who had a lot of money to bring that legal action? That is more like the actions of a state such as North Korea or Zimbabwe than the United Kingdom.

[The Attorney-General]

I am not going to comment on individual cases.

[Tom Brake (Carshalton and Wallington) (LD)]

Does the Attorney-General agree that in seeking a solution we need to balance sensitively the right to respect for private and family life with freedom of expression and fair and public hearing, but we must avoid rushed legislation and we must as far as possible future-proof the legislation against any technological changes?

[The Attorney-General]

Yes, and that is why I hope the route proposed by my right hon. Friend the Prime Minister today commends itself to the House.

[Geoffrey Clifton-Brown (The Cotswolds) (Con)]

Does my right hon. and learned Friend agree that although we must use the naming of individuals in the House with great caution, a quick trip into the blogosphere and the Twittersphere, to use his words, would have revealed the names of those two individuals? Does he agree that what is happening in relation to injunctive law is bringing the law into wide public disrepute? Although I welcome the setting up of the committee, does he agree that ultimately there will be a need for a change in the law to clarify the matter?

[The Attorney-General]

As I indicated at the outset, it is possible for Parliament to enact changes to the law. The fact that the courts may not be able to and may not seek to control everything that might be said in breach of an injunction does not necessarily mean that that injunction does not have a valid purpose. It can at least limit the circulation of the damage, even if it cannot stop it. So for those reasons—we do not live in a perfect world—I do not think that the fact that an injunction can be breached and may be breached by some individuals invalidates it, although a point can sometimes be reached where a matter becomes so public and the currency so total that the existence of the injunction becomes pointless.

[Mr Dominic Raab (Esher and Walton) (Con)]

I welcome the review. Twittergate is just the latest example of judicial legislation distorting the balance of human rights under article 8 of the European convention. There have been other examples recently, including the defeating of deportation orders under article 8 in relation to convicted criminals. The Attorney-General rightly points out that there is a big difference between judges interpreting the law and judges making new law, which is for elected representatives. Does he agree that the Human Rights Act has at least contributed to undermining that separation of powers?

[The Attorney-General]

In constructing the Human Rights Act, I do not think Parliament can be described as anything other than open-eyed as to what it intended to do about privacy law. It debated the issue extensively, there was a great deal of polemic on the Floor of the House, and it put in section 12 to try to emphasise that the balance should be in favour of freedom of expression. I am well aware of the fact that the way that interpretation has taken place has come in for criticism. It is also true, and the point was made by the Lord Chief Justice on Friday, that a remarkable feature of many of these orders is that they have never been appealed or taken further once they have been granted, so the development of case law in this area has as a result, on some of the matters complained of, not necessarily taken place. We clearly set out a framework and asked the judiciary to interpret it. Whether we were right or wrong to do that is a matter of legitimate public debate.

[Dr Julian Huppert (Cambridge) (LD)]

I agree with the Attorney-General that there is a balance to be struck between privacy and freedom of expression, but does he share my grave concern that how that balance is struck seems to depend more on the wealth of the individual concerned than on the facts of the case? Will he make sure that in any legislation or any other changes that happen, all people have access to the law, regardless of their wealth, whether in this area, libel reform or any other aspect?

[The Attorney-General]

As my hon. Friend will appreciate, that is ultimately a matter for my colleagues in the Ministry of Justice, with regard to the legal aid framework, but it is right to say that the vulnerable in our society do enjoy legal aid in order to bring cases before the courts and, indeed, to get the help necessary to do so. It is perhaps also worth pointing out, as the Lord Chief Justice said on Friday, that a slightly odd feature of these cases, although an understandable one, is that those people in whom the media have an interest appear to be those who are very wealthy.

Voting by Prisoners

Dominic Grieve Excerpts

Thursday 10th February 2011 Commons Chamber

[Mr Davis]

My hon. Friend is right—he makes a very good point. The then Labour Government well understood this when they excluded from the text the words “universal suffrage”. They did that because although we have a very wide and general suffrage and a very democratic state, we do not have universal suffrage. The Strasbourg Court has imposed judgments on Britain that are outside the original treaty. We have signed a contract; it has gone beyond that contract.

[The Attorney-General (Mr Dominic Grieve)]

Will my right hon. Friend give way?

[Mr Davis]

If my right hon. and learned Friend insists, although I am very short of time.

[The Attorney-General]

I have one advantage over my right hon. Friend, which is to have been able to go and look at the archives on what happened in 1951. I think the reasons why we objected to the use of the words “universal suffrage” were twofold: first, there was some anxiety over the position in the colonies; and secondly, there was a concern about whether proportional representation would be imposed on us as a result. Once those issues were clarified and removed, the United Kingdom signed up.

[Mr Davis]

I am sure that my right hon. and learned Friend, who is a very close friend as well, checked the travail préparatoire in which one of his predecessors—Dowson, I think—said in terms that we had general suffrage but it could not be described as universal suffrage. That is what I was resting the point on.

Since about 1978, the European Court has adopted the view that the convention was what it termed “a living instrument”. That meant that the Court could arrogate to itself the right to decide what its remit was. It did that without any mandate from this House or any other house of representatives of the member states of the Council of Europe. This has been picked up, not by some Tory or right-wing Eurosceptic, but by Lord Justice Hoffmann, an eminent judge with enormous civil liberties credentials, who said that the Strasbourg Court has

“been unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on member states”.

Even the Court itself understands this. In the minority report, Judge Costa, the President of the Court, a man who believes in extending the powers of his own court, said that he

“accepted that the States have a wide margin of appreciation to decide on the aims of any restriction, limitation or even outright ban on the vote”

and pointed out that the judges were not legislators and should not overrule the legislatures of the Council of Europe.

I want the European Court to succeed at its main business, which is why I differed from my hon. Friend the Member for Harlow (Robert Halfon). However, I do not want it to try to interfere in the business of legislatures around the European continent.

--- Later in debate ---

[Mr Straw]

No, I have to make progress.

The issue before us today—here is the heart of the matter—is by no stretch of the imagination a breach of fundamental human rights. Rather, it is a matter of penal policy, which the minority of judges at Strasbourg—and very senior they were, too—said should be left to the UK Parliament. Through the decision in the Hirst case and some similar decisions, the Strasbourg Court is setting itself up as a supreme court for Europe, with an ever-widening remit. That is why the tension that I mentioned now threatens to become a collision.

Even in countries with supreme courts much more powerful than ours, there is a democratic override of their decisions. For example, in the United States or Germany, which have very strong courts that can strike down primary legislation, the courts’ decisions can be overridden by, for instance, democratic amendment to their constitutions. There is no such democratic override available for decisions of the Strasbourg Court, so we are faced with a court judgment following which, without warrant from the treaties to which we signed up, we as elected MPs are expected to do the opposite of that in which we believe.

My predecessor as Lord Chancellor, Lord Falconer, and I wrestled for five years to find a way through the problem. Initially, Lord Falconer’s view was that the requirement on us following the 2005 Hirst decision was simply

“to consider carefully the basis”

of our law. He went on that it could be the case

“that it is a proportionate conclusion that all people who are convicted and sent to prison cannot vote.”

He began one consultation, and when that was inconclusive I launched a second. However, unless and until I found a way—if one existed—that could satisfy the Strasbourg Court, this House and the British people, there was no appetite throughout the House, or among our Whips, for me to bring forward legislative proposals.

[The Attorney-General]

I am grateful to the right hon. Gentleman for giving way and for how he is articulating his powerful case. Does he not agree that, with hindsight, it is rather unfortunate that such a debate did not take place? When we were first confronted with the problem we had only the Hirst judgment, but since then we have had a number of further judgments without the UK Parliament’s having had an opportunity to influence how the Court’s jurisprudence evolved. He may recall that I asked for such a debate when we were in opposition.

[Mr Straw]

I understand the right hon. and learned Gentleman’s point, and hindsight is a wonderful thing. If I thought that the only thing preventing the Court from coming to a reasonable compromise was the fact that I had not organised an earlier debate, I would be happy to be taken to Strasbourg to make my apologies. He knows better than anybody that neither set of Whips was keen on such a debate, not least because it was clear that it would be impossible, particularly in the pre-election atmosphere, to have the sober debate that we are to have today.

--- Later in debate ---

[The Attorney-General (Mr Dominic Grieve)]

I congratulate my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) and the right hon. Member for Blackburn (Mr Straw) on securing this debate. My right hon. Friend quoted my belief that this was a subject that needed debate. That was something I said in opposition, but it is a view that I continue to hold in government. I am therefore delighted that the House at last has an opportunity to have this debate. If I quipped the right hon. Gentleman, I am grateful to him for having facilitated it now that he is freed from the shackles of Government.

If the House is to have the debate that I think can help to inform this tension between ourselves and the European Court of Human Rights, it is important that as many Members as possible participate. I note, therefore, that the Government Benches are well crowded; I am sorry, however, that, for reasons on which I cannot speculate, the Opposition Benches seem to be, with a number of notable and eminent exceptions, rather bare. That might be a problem later in terms of the impact that this debate may have. From that point of view, the contribution of the right hon. Member for Rotherham (Mr MacShane), even if many Members disagreed with it, was nevertheless very valuable.

My reason for speaking at this stage of the debate, with the leave of the proposers of the motion, was to try to provide some assistance to the House in explaining the legal considerations relating to this complex, difficult and extremely controversial issue. As the House is aware, there will be a free vote for Government Members, so that the Back Benchers can express their views. Ministers will abstain. The Government believe that the proper course of action will be to reflect on what has been said and think about what proposals to bring back to the House in the light of the debate. The Government are here to listen to the views of the House, which are central and critical to this debate, as was acknowledged in the Hirst case and as was the subject of the critique that I raised earlier about the fact that we have not had this debate before. I look forward to taking on board and considering all the points raised, and to doing my best, as far as I can, to join the debate and assist the House.

[Mr Jenkin]

I am sure that it will be useful to the House that my right hon. and learned Friend intervenes at this stage. However, when he says that the views of the House are critical, does he not mean that they are decisive? We are a sovereign House; we make the law and the courts interpret it. This is a matter of policy, not a question of legal technicalities. If we do not want prisoners to have the vote, Parliament can legislate for it and that will be final. Does he agree that that is the power of the House?

[The Attorney-General]

First, I would say this to my hon. Friend. I am very respectful of the powers of this House and, having been a Member of it for 13 years, consider it to be very important. As he will also be aware, it is Parliament that is sovereign. I hope that he will excuse my making that delicate point. The Queen in Parliament is sovereign, and that includes the ability of both Chambers to legislate and to enact primary legislation. We are dealing with an international treaty. That international treaty was signed by the United Kingdom Government under the royal prerogative and was laid before both Houses of Parliament for their consideration. The rule that has been long established in this country is that once a treaty has been ratified by the United Kingdom Government through that process, the Government and their Ministers consider themselves to be bound by its terms. Indeed, as the right hon. Member for Blackburn will know, the ministerial code specifically says that that is the case, and the new ministerial code says it in exactly the same way as the old one did. From that point of view, although my hon. Friend is absolutely right, that does not remove the necessity for the Government to be bound by their treaties and international obligations.

[Mr Jenkin]

I am most grateful to my right hon. and learned Friend for giving way again. It has also been recognised that statute law overrides international law. It is statute law that should bind the courts of this land. Does he agree with that?

[The Attorney-General]

It is certainly true that our international legal obligations may alter by virtue of what Parliament has enacted, but the current position is that we have an international obligation that, if I understood correctly from what they said, is not one from which, in its principles, my right hon. Friend the Member for Haltemprice and Howden or the right hon. Member for Blackburn would wish to resile. We are bound by it as Ministers of the Crown. However, if my hon. Friend will bear with me, I will come to that in a moment.

I repeat the point that the Grand Chamber in the Hirst case commented on the lack of any substantive debate in Parliament. It must be the case, therefore, that the existence of a substantive debate—indeed, we may have to have more than one substantive debate on this issue—will be helpful to the process of finding a way through the problem that is exercising many Members of this House. However, although Members are fully entitled to express their disagreement with the judgment of the European Court—indeed, I have done so myself: I said that I consider the judgment in the Hirst case to be an unsatisfactory one, for precisely the reasons, which I will not repeat, that the right hon. Gentleman and my right hon. Friend articulated—the fact that we may be in disagreement does not in itself solve the problem.

In order for the views of this House to be helpful, we need to demonstrate that we are engaging with the concerns of the Court and that we are not just expressing our frustrations—although I have to say that on occasion I have felt very frustrated on this issue in the last few years, and actually rather angry. Through a dialogue about what the House considers to be proper and reasonable in respect of prisoner voting, we have to see whether we can bring our weight to bear as a legislature in the development of the jurisprudence of the Court. That will give us the best possible chance of winning the challenges that may arise thereafter. As we know, given the litigiousness of those who think that there is a gravy train on which they might be able to climb, we can guarantee that, whatever we do, there will be legal challenge to it that will go back to the European Court of Human Rights for determination.

[Ian Paisley]

I appreciate the Minister’s helpful guidance. Will he address the point made by the right hon. Member for Blackburn (Mr Straw) when he quoted Lord Hoffmann, the former Law Lord, saying in a lecture that it cannot be right for a European supranational court

“to intervene in matters on which Member States of the Council of Europe have not surrendered their sovereign powers”?

Will the right hon. and learned Gentleman give us some guidance on that point?

[The Attorney-General]

The hon. Gentleman is right that there has been a great deal of commentary, including in some learned lectures by judges, such as Lady Justice Arden, Lord Hoffmann and others, who have expressed growing concern about the way in which the jurisprudence of the European Court of Human Rights is being developed and about the Court’s tendency towards micro-management. That is the nature of the challenge. That said, for the reasons I gave a moment ago, the judgments of the Court constitute an international obligation, so far as we subscribe to the convention and to membership of the Council of Europe. That is the dilemma the Government face, as did the previous Government: how can we find a way to persuade the Court to respect the views that the legislature may express without having to withdraw from the convention or the Council of Europe entirely, which, I have to say, would not come without cost or consequence for this country?

[Claire Perry (Devizes) (Con)]

Can the Attorney-General help the House understand by what mechanism the European Court’s judgment and—rather more unpalatably —the award of compensation to a convicted axe murderer could be enforced in this country?

[The Attorney-General]

There is no mechanism to enforce—[Hon. Members: “Ah!] My hon. Friend must listen carefully. The truth is that enforcing something against a Government who do not wish to have it enforced against them is very difficult, because the Government retain Executive power. If a judge in our High Court said that the Government should do something and the Government said, “We won’t do it,” it would be very difficult to do. Equally, however, it is worth bearing it in mind that the Government would be in rather serious breach of the principles of the rule of law and would, in fact, be behaving tyrannically. One needs to be careful. The principles on which United Kingdom Governments have always operated is that if international obligations confer a power on a court and a court orders compensation, we will honour those international obligations as it is our duty to do so, because without that we diminish our own status, in terms of our respect for international law as much as domestic law. It is therefore a bit of a red herring to suggest that just because something cannot be enforced, that is a justification for ignoring it. It might be a justification for enacting other legislation or taking other steps, but it would be a fairly momentous change in UK practice if we ignored something to which we had indicated by international treaty we subscribe.

[Mr Richard Shepherd (Aldridge-Brownhills) (Con)]

We of course have confidence, by and large, in our judicial system and our courts. I see this issue as a crisis in the question of whether we have confidence in the workings of another court system. That is the tension that underlines so much of what we are discussing today—whether we are talking about a credible court, with the extension of its remit as a living instrument, and so on. That is the criticism that is now coming from judges too. We respect one court; do we respect the European Court, and therefore the international obligation that my right hon. and learned Friend mentions?

[The Attorney-General]

There is no doubt that there has been criticism of the Court, just as I have at times heard views expressed in this House applauding judgments made in the European Court of Human Rights—the judgments on stop and search and on DNA databases come to mind. We therefore need to be careful about too much picking and choosing of what we might think is desirable or not. I recognise that there is a fundamental issue in this debate, which the right hon. Member for Blackburn and others touched on, about the extent to which the Court is turning into a micro-manager.

[Kate Hoey (Vauxhall) (Lab)]

If compensation was awarded, would it not be appropriate for the Government to decide to take it from the legal aid budget of the civil lawyers who will have brought most such cases about?

[The Attorney-General]

That is an interesting proposal from the hon. Lady, but, if I may say so, I would not seek to answer that question at the Dispatch Box today. It raises a number of ethical and practical issues to which, on the whole, I would want to give further consideration.

[Rehman Chishti (Gillingham and Rainham) (Con)]

Will my right hon. and learned Friend give way?

[The Attorney-General]

I must make progress; otherwise I will not be able to do what I principally came here to do.

I want to deal with the point about the Grand Chamber in the Hirst case. The Grand Chamber declined, properly, to provide any detailed guidance on how to make our current regime compatible with the convention. It also made it clear that special weight should be given to the role of the domestic policy maker. Despite the difficulties that the House might face, we have a real opportunity, through debate, to shape the dialogue with the Court if we focus on the key issues.

I will now deal with the main legal issues on prisoner voting. I will set out the main points raised by the main judgments, because it might make the debate more difficult if the House does not have them in mind. I shall first outline the key points in the Hirst judgment, which dates back to October 2005. The Court took the view that it was well established that article 3 of protocol 1 to the convention, to which we are signatories, guarantees individuals the right to vote and to stand for election. The Court considered that to be a right, not a privilege. It also considered that that principle was important in ensuring an effective and meaningful democracy governed by the rule of law. It therefore felt that departure from the principle of universal suffrage risked undermining the democratic validity of the elected legislature and the laws that it promulgates. That might not have exercised us very much here, but in the context of the many east European states that have joined the European convention it is probably right to say that those are really serious, material considerations.

In the view of the Court, prisoners continue to enjoy all the fundamental rights and freedoms guaranteed by the convention. I do not think that either my right hon. Friend the Member for Haltemprice and Howden or the right hon. Member for Blackburn disagree with that. The Court’s reasoning, with which I appreciate many hon. Members disagree, is that, in view of the fact that the convention does not allow prisoners to be subjected to inhuman or degrading treatment or to have restrictions placed on their freedom of expression or freedom to practise their religion, a restriction on their right to vote should have the aim only of

“preventing crime by sanctioning the conduct of convicted prisoners, and enhancing civic responsibility and respect for the rule of law”.

The Court also recognised that the participating states had a wide margin of appreciation in deciding on such restrictions, but that that was not an unlimited discretion. It felt that the restriction should be proportionate and—this is the nub of the issue—that section 3 of the Representation of the People Act 1983 imposed a blanket ban, which was seen as being so indiscriminate as to fall outside the acceptable margin of appreciation.

[Mr Baron]

The central questions are whether the interpretation of the treaty that we signed has gone beyond what the original treaty contained, and who, thereafter, has the right to make a decision on the matter. Should it be this Parliament or an unelected European institution that makes such decisions? The clear evidence is that it should be this House, and that the interpretation has gone beyond the terms of the original treaty. That is what this vote is about today.

[The Attorney-General]

I appreciate that that is what my hon. Friend and many others believe the issue for debate to be. I recognise that it is going to be a major topic for debate this afternoon, but, if he will forgive me, I will suggest that hon. Members might also wish to focus on why they consider the current ban, or some variant of it, to be reasonable and proportionate in our own national context. It was the absence of debate on that issue that appeared to make the Court take the view that our ban was indiscriminate—

[Chris Bryant (Rhondda) (Lab)]

Really?

[The Attorney-General]

Well, it was one of the reasons it took that view.

[Mr Andrew Turner (Isle of Wight) (Con)]

Does my right hon. and learned Friend accept that we do not want a discriminatory rule on what we took a view on, but that they want an absolute rule?

[The Attorney-General]

I hope that I have understood my hon. Friend correctly. I do not think that the Court has suggested that there should be an absolute rule. In fact, it has made it quite clear in that and later judgments that there could be substantial flexibility for national legislatures to set their own criteria, which could be variable. For example, leaving a blanket prohibition to one side, it might be desired that a prohibition could be imposed after a particular period, so that someone could be banned from voting if sentenced to one, two, three or four years. The criteria could be different if the judiciary were given complete discretion over whether people should be banned and when such a ban should be applied. So there is a whole range of possible variants available to a legislature, if it were minded to consider them, that might well satisfy the Court’s concerns.

I am mindful of the strong views held in the House on this matter. On the maintenance of a blanket prohibition on all sentenced prisoners, the House should note that the Hirst case was followed by two other cases. This was the cause of my criticism of Labour’s dilatoriness on this matter. The first was Frodl v. Austria, in which the Court found that a ban on voting imposed on people sentenced to more than 12 months was wrong. The second case was Greens and M.T., in which the Court appeared to make it clear that it wanted the United Kingdom to enact some form of legislation.

[Mr Leigh]

It seems that everyone who has spoken so far is trying to have their cake and eat it. They all say that they want this incorporated into our law, but they do not like this particular judgment. They think that a debate will solve the problem. If the vote goes against us this afternoon, will the Attorney-General do the right thing and withdraw us from our incorporation in the convention?

[The Attorney-General]

My hon. Friend takes a very absolutist stance, although I have heard him utter such a view before. That is not Government policy, however.

[Jeremy Corbyn (Islington North) (Lab)]

Is not the fundamental issue that the European convention on human rights applies to everyone, including those who are in prison, and that when people are convicted they do not lose their convention rights? They have to suffer a penalty following conviction, but losing their right to vote is outwith the terms of the convention.

[The Attorney-General]

The hon. Gentleman makes a perfectly reasonable point. Indeed, in some countries, the removal of the right to vote effectively forms part of the sentencing exercise. However, that has not been part of our national tradition in this country. I will be interested to hear hon. Members’ reasoning in the debate. I assume that the underlying principle behind the ban—given that many people are convicted and not sent to prison—was that a person who was sent to prison had done something so antisocial towards the civil order that it was justified to remove their right to vote. Speaking personally, I have never thought that there was anything unreasonable about that approach, although I appreciate that some hold other views, including non-governmental organisations such as the Prison Reform Trust, which has argued powerfully in favour of giving prisoners the right to vote.

[Mr David Nuttall (Bury North) (Con)]

In answer to the Court’s concerns, may I point out that criminals in this country choose of their own free will to commit serious crimes, and they know that, if they are found guilty and sent to prison, they will lose their right to vote?

[The Attorney-General]

That is a very good argument, and it might be helpful to me if I ever have to stand up in front of the European Court of Human Rights to explain the reasoning of the United Kingdom Parliament.

I have pointed out that matters were made more difficult following the judgment in Frodl v. Austria, in which it was held that the disfranchisement of a person sentenced to more than one year in prison was a violation of article 3, and in the Greens and M.T. case, although the Court clearly stated at that time that judicial discretion was not a requirement. From that point of view, it is clearly open to the United Kingdom Government to put in place a system that would not involve judicial discretion. I have some hesitation, in any event, about whether the judiciary would wish to have that discretion inflicted on them. As hon. Members might be aware, however, the Government have made it plain that, even on minimal sentences, the power to remove the right to vote—in cases involving electoral fraud, for example—ought to be retained by the judges in any event.

It is for the House to provide a response today. I hope that that response will be useful to the Government in representing the House’s views in what I anticipate will be a rather drawn-out dialogue between ourselves and the Court.

[Mrs Anne Main (St Albans) (Con)]

I concur that we have already set quite a high bar for getting behind bars in this country. Given that, why is it any more reasonable to pick an arbitrary figure of one, two, three or four years than to set the bar at the point when people pass through the prison gates?

[The Attorney-General]

My hon. Friend makes a very reasonable point. If she looks around other European countries, she will find a great deal of variety in approach. Some countries do not allow any convicted prisoners to vote, although they might well be in serious difficulty as a result of the Hirst judgment. The Irish Government, for example, changed the law and gave their prisoners the vote. Others lay down differential criteria, and it seems clear that the Court is influenced by the consideration of whether those convicted to very short terms of imprisonment should retain the right to vote and those with longer terms of imprisonment should lose it. Four years, for example, has usually been regarded in our judicial system as the benchmark that separates a long sentence from a medium or short sentence. That is one reason why such benchmarks might play a role, and used to play a role, in providing some definition.

[Naomi Long]

The Republic of Ireland provides an interesting case. Although the Government have allowed their prisoners to register to vote, they do not necessarily guarantee that they will be able to vote in the sense of attending a polling station to exercise their franchise. I suspect that this is an interesting example of sleight of hand.

[The Attorney-General]

I would have to check that position. My understanding was—it might be incorrect—that the Irish Government provided a postal voting system.

[Chris Bryant]

Is it not an irony that prisoners in Britain had the vote for a while, but were unable to register and therefore were unable to exercise their right to vote?

[The Attorney-General]

I have no doubt that at one time that was correct. Indeed, before 1870, large numbers of people did not have the right to vote in any case, which adds another complicating issue. I think we should look at the here and now.

[Ben Gummer (Ipswich) (Con)]

I am slightly worried by what my right hon. and learned Friend said earlier about the purpose of this debate. Surely the purpose of this Chamber hitherto has been to form statute law. He suggests that we should now take on the function of influencing the jurisprudential evolution of the European Court of Human Rights. Would it not be helpful to him if this debate also engaged with the realm of the relationship between this House and the European Court?

[The Attorney-General]

I certainly do not want to prevent my hon. Friend from debating such an important issue. He must forgive me for perhaps being too much of a lawyer, but on the whole I tend to look at the terms of the motion, which are very specific and quite interesting. The motion first emphasises our respect for our international obligations, which I do not believe was included accidentally by the right hon. Member for Blackburn or my right hon. Friend the Member for Haltemprice and Howden. I assume that the motion thus encompasses our international obligations under the European convention on human rights. Secondly, the motion expresses what I take to be a view that we believe that our existing arrangements, which deny sentenced prisoners the right to vote, are fair, reasonable and proper and we wish to continue them. That seems to be the motion that we have to debate, and which we ought to debate, which is why I sought to answer the question in this way, although I accept that some wider issues could also be considered. At the end of the day, as I have also emphasised, the Government are bound by their international obligations. They have to think, sometimes laterally if not horizontally, about how to get themselves out of the conundrum of respecting the views expressed in this House while also wanting to see that the international obligations that this House wants to be respected are respected.

[Rehman Chishti]

On that very point of international obligations, Lord Hoffmann has said that

“with support of other European states”

that have also been at odds with the Court,

“we can repatriate our laws on human rights.”

What steps are we taking to work with other European states that have also been badly treated to withdraw from the scope of the Human Rights Act 1998?

[The Attorney-General]

I am grateful to my hon. Friend, who is absolutely right; I have not had time to develop the point. Quite simply, negotiations have taken place concerning the difficulties facing the Court, in which the different countries making up the Council of Europe are, in many ways, expressing the common view that the Court is not functioning properly. Quite apart from anything else, there is a backlog of 120,000 cases. This matter is therefore not being ignored by the Government; we would like to make some progress to see whether reform can be achieved.

[Mr Davidson]

rose—

[The Attorney-General]

If Mr Deputy Speaker does not stop me, I shall give way.

[Mr Davidson]

Does the Attorney-General accept that, in being a lawyer, he has the problem of over-complicating matters? [Laughter.] Is not the basic issue whether we in this country should decide our line on whether prisoners should be able to vote—or should it be decided by somebody else? Where do the Government stand on that question?

[The Attorney-General]

The object of lawyers is to take people’s concepts and to try to navigate them to their correct destination, if at all possible. [Interruption.] In this case, there is no specific financial benefit, however pleasant it would be to be able to charge a special fee to my Government colleagues for appearing here this afternoon. I do not think that they would have condescended that to me.

I hope that what I have said has been of assistance to the House. I look forward to hearing the rest of the debate and, above all, to helping the House further if I can during the course of it.

--- Later in debate ---

[Chris Bryant]

My hon. Friend makes a remarkably subtle and nuanced point, which is unusual for him. [Interruption.] I think he knows that I mean that in the kindest way. Following on from his point, I would add that the Court has been wrong to assert that we have a blanket ban in the UK. As has already been said by several speakers, we do not ban those on remand, or those who are in prison by virtue of contempt of court or for fines. It is therefore not a blanket ban, and I think the Court should have taken that into consideration.

I want now to refer briefly to the Government’s record, as they have hardly covered themselves in glory. [Interruption.] I was not going to make these points until the Attorney-General decided to attack the previous Labour Government; I had crossed these remarks out, but I have now decided to reinstate them.

In opposition, one Conservative right hon. and learned Member dismissed the idea of prisoners’ votes as “ludicrous” and said that

“it will bring the law into disrepute and many people will see it as making a mockery of justice”.

I think many people would agree. The right hon. and learned Member who said that was the current Attorney-General. He also said that

“there is no reason why our courts should be bound by Strasbourg Court jurisprudence”

and

“the obligation on the UK to respect Strasbourg Court adverse decisions, in a particular case to which it is a party, is an international treaty obligation and not a legally enforceable matter at all.”

I do not think that is quite what he said this afternoon.

[The Attorney-General]

I thought I had made the position clear. First, this Parliament is entirely sovereign in both Houses in the enactment of primary legislation and can resolve what it wants. Secondly, the Executive are bound by the ministerial code to observe their international treaty obligations that have been ratified.

[Chris Bryant]

That is not quite how the right hon. and learned Gentleman expressed it on the radio before the general election, but I just want to check this: is it still the Attorney-General’s legal advice that there is no need for Parliament to adhere to the treaty, the convention and the judgment of the Court? That seemed to be the point that he was making previously—I know the point that he is making about the Government’s requirement.

[The Attorney-General]

If I may say so, I think the hon. Gentleman has taken my comments slightly out of context in the following sense. The debate that was taking place, and which has often been a problem, is about conflating EU law and the EU with the Council of Europe. EU law, by virtue of the treaty of accession—

[Mr Straw]

The ’72 Act.

[The Attorney-General]

Yes, the European Communities Act 1972. I am grateful to the right hon. Gentleman for that. By virtue of the ’72 Act, EU law has direct application in this country, whereas the Council of Europe and European convention on human rights do not, except in so far as we incorporate that in the Human Rights Act 1998. That is the distinction.

[Chris Bryant]

Fine; I am glad that the Attorney-General has clarified that. Can he clarify one other point, too? The one element on which he has not given us any advice today—and if he has any legal advice, I would be grateful if he published it—is his interpretation of the wriggle room or margin of appreciation that is genuinely available to us. He seems to have suggested today that one area that was insisted on in Frodl v. Austria—namely that judges should have to be able to make an individual decision on each person for that to be valid—is no longer necessary for us, although that was in the ministerial statement issued by the Parliamentary Secretary, Cabinet Office, on the day before we broke for Christmas. [Interruption.] The Attorney-General appears to be disagreeing with that, but it was in that ministerial statement.

I also want to know whether the Attorney-General has had legal advice on whether four years is necessary, or whether one could get away with less than that. Those of us who want to be able to do everything we can are keen to know the absolute minimum that the Government would have to do to comply.

[The Attorney-General]

The hon. Gentleman knows the conventions in government—one of which is that Law Officers’ advice, and whether it has been sought and what they have advised, is not published. I can say two things, however. First, I have sought to explain something of the legal framework. As for the questions about Greens and M.T. and Frodl, read on its own the Frodl judgment would suggest that judicial discretion was required. Subsequently however, Greens and M.T. does not appear to insist on judicial discretion. Judicial discretion appears to have particularly exercised people in this country, because they do not think the judges should necessarily make such a determination. In those circumstances, although the House might wish to look at judicial discretion issues—and it has been suggested that that might be a way of dealing with those who fell below a benchmark for normally being allowed to retain the vote—that is not necessary.

[Chris Bryant]

Again, I am grateful to the Attorney-General, as I agree with him; my reading of the Greens and M.T. case is wholly consistent with his in relation to judicial oversight. That was one of the questions that we raised in the debate in January, and I received responses from the Minister who took part in that debate only at 8.31 pm yesterday.

I reiterate that the Government have made various statements over the past few months. The Lord Chancellor made one yesterday on the radio, the relevant Minister made one in the House of Lords and the Minister who responded to the Adjournment debate in Westminster Hall made one then. Those statements have not been consistent with each other, but they have adverted to legal advice. It is the tradition of this House that when one relies on evidence, that evidence is published.

So what is the Government’s policy? What is the absolute minimum that they believe the UK has to deliver to meet its treaty obligations?

[Chris Bryant]

I hope that the hon. Gentleman does not mind if I do not give way, because others want to speak and I ought to be drawing my comments to a close.

Would it be sufficient for the Government to present proposals—[Interruption.] I would be grateful if the Attorney-General would listen, just briefly. Would it be sufficient for the Government to present proposals—introduce legislation—but for Parliament not to agree them? Would that, in some sense, satisfy the Court? What do the Government believe will happen if the House supports the motion this afternoon? How have the Government arrived at the compensation figure? Previously it has been said that £160 million-worth of compensation will be entailed, but I gather that last night the media were briefed that the compensation figure will be £143 million. I understand that that has been arrived at on the basis not of the Attorney-General’s legal advice, but of advice given to the Government by others. Will that be published? Can he explain how the compensation would be enforced, given that all applications for compensation to the county court should surely be struck out by dint of section 6(2) of the Human Rights Act 1998, which reinforces parliamentary sovereignty? Indeed, is there not a claim in the High Court today from the Treasury solicitor to that effect?

[The Attorney-General]

All I will say on the issue of compensation is that it is very difficult to know how much compensation might or might not have to be paid. Let us suppose that there were two elections in which the entirety of the sentenced population in the prison system were deprived of the right to vote and they were all to bring a claim. On the basis of there being about 73,000 people in the prison system in that category and on the basis that about £1,000 to £1,500 of compensation and costs might have to be paid, the hon. Gentleman will be able to start to work out what sort of total cost might be involved. Of course, lots of prisoners might decide not to bring a claim, so I must accept that all the Government can do is provide a reasonable guide of the potential for the matter to be very costly. The hon. Gentleman will have no difficulty acknowledging that when he does the calculation.

[Chris Bryant]

I note that the Attorney-General was referring to general elections, but of course it was stated in evidence last week to the Select Committee that the Scottish and Welsh elections in the next few weeks present a real problem. I accept that there are problems, but I wonder how anybody conceives that compensation payments would be enforced.

[The Attorney-General]

rose—

[Chris Bryant]

I will, of course, give way, but I am trying to end my speech.

[The Attorney-General]

I apologise for intervening, and the hon. Gentleman will appreciate that I had to bring my remarks to a close earlier as I did not want to take up too much time. He rightly says that arguments were placed before the Select Committee by lawyers saying that they thought that the matter applied also to voting in devolved legislatures. That is not the Government’s view.

[Chris Bryant]

I am grateful to the Attorney-General for that. This is a Back-Bench debate and it provides an opportunity for the Government to take the temperature of the House without the intervention of a Whip. We believe that the Committee of Ministers, which is charged with ensuring the execution of the Court’s judgments, should take proper cognisance of a clear, un-whipped majority in this House. The Court should step away from insisting on its most draconian interpretation of the margin of appreciation available, not just to this country, but to others, as there is no one European standard on this matter. Indeed, many countries maintain a complete ban. Finally, any British Court considering compensation or action based on the Hirst judgment should also think twice before “impeaching or questioning” this proceeding in Parliament.

--- Later in debate ---

[Thomas Docherty]

I have a great deal of time for the hon. Lady, but on this occasion she and I will have to disagree, although I hope she will be agreeing with me next Tuesday and Wednesday as we play ping-pong with the other place.

I have been raising the issue of prisoner voting rights for several months, particularly with reference to the Scottish Parliament elections. It is incredibly disappointing that none of the Scottish nationalists saw fit to grace us with their presence today, given that it is their Government in Scotland who have responsibility for the forthcoming parliamentary and local government elections next year. I raised the matter with the Cabinet Secretary for Justice last year. I do not intend to go through all the correspondence that my colleagues and I have had with him and with ministerial teams on this. However, the situation has been confirmed to me and to my colleague, Richard Baker, who is, for now, the shadow Minister but will, I am sure, become Justice Secretary. The SNP Government have not even bothered to write to the Deputy Prime Minister—who, let us be clear, is behind the move to give prisoners the right to vote—to express the Scottish people’s opposition to it.

[The Attorney-General]

indicated dissent.

[Thomas Docherty]

The Attorney-General shakes his head, but this is a Liberal Democrat policy. I remind him that in 2007 the right hon. Member for Gordon (Malcolm Bruce), who was president of the Scottish Liberal Democrats, urged the then Government to give prisoners voting rights in the Scottish elections. I am delighted that my right hon. Friends resisted that request by Scottish Liberal Democrats, and delighted that today we will again be resisting the pressure from Liberal Democrats to give people who have broken the law the right to vote.

I am deeply concerned by the Government’s attitude towards the ongoing test case involving the devolved Parliaments and Assemblies. It is clear from the 2007 case that the European Court is minded to grant prisoners the right to vote in Scottish Parliament elections, because, as my hon. Friend the Member for Rhondda (Chris Bryant) has said repeatedly in this debate and elsewhere, the Scottish Parliament is a primary legislative body. It is difficult to envisage how the Attorney-General, as fleet-footed and talented as he is, will persuade the European Court that the Scottish Parliament is exempt. I hope that the Attorney-General, when he is not looking at his BlackBerry, will clarify why he thinks the Scottish Parliament will be exempt from this issue.

My colleague Richard Baker MSP wrote to soft-touch Kenny MacAskill on 10 December last year. As I said, the Scottish Government do not believe that they have any role to play in lobbying the UK Government. That is another stain on the record of the SNP Government, who seem quite happy to pick fights with the UK Government, but will not stand up for what the people of Scotland want.

I think that Members from all parts of the House hold principled views on this issue. Although I fundamentally disagree with the Liberal Democrats on this issue, I respect their stance. I hope that they understand that voting is a right. As a former Prime Minister said, there are rights and there are responsibilities. People who break the law and who commit heinous crimes should not be allowed to vote.

As the Government have yet to clarify what the tariff limit will be if they lose the case, we have to assume that it will still be four years, as was leaked previously. I draw the Attorney-General’s attention to one of the problems in Scotland, which is that the Scottish Parliament has its own sentencing policy, its own judiciary and its own tariffs. Under a tariff system, the limit might be set at one year, six months or four years. Crimes that have a certain sentence in England, Wales and Northern Ireland might not have the same sentence in Scotland. I hope that the Government will reflect carefully on what the impact will be on Scotland if they use a tariff system, rather than using specific crimes. I accept that the Liberal Democrats probably do not intend to give paedophiles the vote. However, if the limit was set at four years or less, the disgusting individuals involved in the shocking case of child abuse in the south of England last year would qualify to vote. I am sure that that is not the intention of any party.

I am conscious that other hon. Members wish to speak, and I have said my piece. I will vote tonight for the motion in the names of my right hon. Friend the Member for Blackburn (Mr Straw) and other hon. Members.

Crown Prosecution Service Restructure

Dominic Grieve Excerpts

Monday 31st January 2011 Written Statements

[The Attorney-General (Mr Dominic Grieve)]

: This statement sets out the forthcoming changes to the current Crown Prosecution Service (CPS) structure, which the CPS is introducing from 1 April 2011.

Under the current CPS structure there are 42 areas aligned to individual police force boundaries. These areas are presently organised as 13 regional groups. In the new structure the 13 groups will become 13 new larger areas, with a chief Crown prosecutor (CCP) supported by a number of deputy chief Crown prosecutors to provide leadership across the new areas.

This change builds on the experience and success that the CPS group structure has provided over recent years. It establishes a solid foundation for the future and provides the CPS with greater capacity, capability and flexibility to respond to the challenges that lie ahead.

The CPS has carefully considered the changes taking place in the criminal justice system (CJS) and believes that the new structure will provide a better strategic fit with its partners and places the CPS in the best possible position to deal with the modernisation of the CJS including digital working. The new structure will also provide an improved service for serious and sensitive casework, especially work received from regional intelligence units and regional asset recovery teams.

Under these new arrangements there will continue to be a strong presence in each police force area with dedicated teams working with local police forces and senior CPS leaders to provide a strong focus on local liaison, partnership and accountability.

The CCPs for the new CPS areas are set out below.

Departmental Expenditure Limits

Dominic Grieve Excerpts

Tuesday 23rd November 2010 Written Statements

[The Attorney-General (Mr Dominic Grieve)]

Subject to parliamentary approval of any necessary supplementary estimate, the Attorney-General’s total DEL will be increased by £10,977,000 from £686,875,000 to £697,852,000. Within the total DEL change, the impact on resources and capital are set out in the following table:

Ian Tomlinson

Dominic Grieve Excerpts

Monday 26th July 2010 Commons Chamber

[Emily Thornberry (Islington South and Finsbury) (Lab)]

(Urgent Question): To ask the Attorney-General if he will make a statement on the decision not to prosecute any police officer in connection with the assault and subsequent death of Ian Tomlinson?

[The Attorney-General (Mr Dominic Grieve)]

I thank the hon. Lady for her question. I wholly understand the reaction of the public and of this House to the news that the Director of Public Prosecutions considers that he cannot bring a criminal prosecution following the Independent Police Complaints Commission’s investigation into the death of Mr Ian Tomlinson in April 2009. No one who has seen the pictures of his treatment that day could fail to be disturbed by them. The facts were rightly and thoroughly investigated by the IPCC. In recognition of the strong public interest in understanding how that decision had been reached, last Thursday the Director of Public Prosecutions, who has responsibility, independently of Government, for the decision, made a detailed and lengthy statement explaining it. The statement is available on the Crown Prosecution Service website, and I have also asked for copies of it to be placed in the Library.

Once the IPCC has concluded its report, an inquest will follow into the death of Mr Tomlinson under the direction of Her Majesty’s coroner. The Metropolitan police will also consider whether disciplinary or any other action should be brought. It has to be remembered that the detailed statement made by the DPP did not purport to set out any defence that the suspected police officer would have advanced had the case come before a criminal court; it only centred on the evidential issues faced in any prosecution.

From the outset, the CPS and the IPCC approached this case on the basis that there may be evidence to justify a charge for manslaughter. Expert evidence was obtained with a view to establishing the cause of death. After the original pathologist, who was appointed by Her Majesty’s coroner, provided a second statement about his findings, the factual basis on which the other experts had given their opinions about the cause of death was seriously undermined. The CPS concluded that there was no realistic prospect of conviction for manslaughter.

It is not appropriate practice in possible homicide cases to bring a charge for a lesser offence such as common assault while there remains a prospect of a prosecution for manslaughter. But once it was clear that a charge for manslaughter was not going to be possible, the CPS turned to consider whether proceedings could be brought for assault occasioning actual bodily harm. In law, a charge of assault occasioning actual bodily harm can be brought in respect of quite minor injuries. However, to bring a measure of consistency to charging decisions in assault cases the CPS applies charging standards. In the case of the G20 demonstration, for example, after a police officer struck a woman twice with his baton causing a similar level of injury, the CPS brought a prosecution for common assault applying exactly the same guidance. That officer was of course recently acquitted by the courts.

I understand the dismay of the House at the outcome of this case, which is that a prosecution will not be brought for any offence. That outcome was reached after an independent investigation of the facts by the IPCC and independent and thorough consideration by a senior and experienced Crown Prosecution Service prosecutor, with the added benefit of advice from independent leading counsel under the oversight and with the approval of the Director of Public Prosecutions. I have seen nothing to make me doubt the seriousness and propriety of the decision-making process in this case.

[Emily Thornberry]

Does the right hon. and learned Gentleman believe that if a member of the public had launched an unprovoked attack on a police officer that was immediately followed by the officer’s death, and if that incident was on film, a pathologist of highly dubious professionalism would have been appointed to investigate and that that pathologist would have been allowed to throw away samples that could have proved the link between the assault and the death? Does he also agree that it would be highly unlikely, even if one were to leave aside the evidence in connection to the manslaughter, that there would be no action on the assault?

We have all seen the film. The man was clearly assaulted. We have also, have we not, read Nat Cary’s evidence in which he says that there is an area of bruising consistent with being hit with a baton? As Nat Cary says, if that is not ABH, what is? How can the CPS have taken 15 months to come to no conclusion? It is not going to take any action. I suggest that that would not have happened if the tables had been turned and this shows that there is no equality before the law. If the right hon. and learned Gentleman agrees, what is he going to do about it?

[The Attorney-General]

I should say at the outset that I think that the first part of the hon. Lady’s question is based on a slightly false premise. The appointment of a pathologist is a matter for the coroner, not for the CPS. The first pathologist appointed in this case was appointed by the coroner—he has the power to do that. The hon. Lady will be aware from what was said by the DPP and from what I said a moment ago that much flows from that appointment. It is clear that a report was produced that provided an indication to lead to further reports that looked as though it might lead to showing a causal connection between the assault and the death but that subsequently a further factual statement from the pathologist first appointed by the coroner entirely undermined the basis on which any further expert view could be taken of the case by other pathologists. That is at the root of the problem.

As for the hon. Lady’s suggestion that in some way this case would have been treated differently had it involved the death of a police officer, I have no reason to think that that is the case. It is right to say that when the matter was first drawn to the attention of Her Majesty’s coroner, it might not have been apparent at that stage—because the video evidence had not become available—that this was not a sudden death on the fringe of the G20 demonstration rather than something that was intimately linked to it, as became clear when the video evidence became available.

[Maria Eagle (Garston and Halewood) (Lab)]

I should like to thank the Attorney-General for the elaboration that he has given. It seems to me that the decision not to prosecute appears to rest on the divergence of medical opinion between the three pathologists who have conducted post-mortems, creating evidential problems for the DPP when considering the likelihood of proving a causal link between the push and the blow that, as we have all seen, were struck at Mr Tomlinson and his subsequent death. However, is it not the case that the decision of medical authorities to charge Dr Patel, the first pathologist, with 26 counts of misconduct is materially important?

The public will find it difficult to understand how the opinion of a doctor facing 26 charges of misconduct before the General Medical Council can in effect muddy the evidential waters in this very serious case to such an extent that a prosecution cannot proceed in a case where the public interest is not served, as I think the right hon. and learned Gentleman would probably agree, by such a decision.

Prosecuting authorities, of course, are rightly independent, but what powers of supervision does the Attorney-General have over their decisions? In view of the GMC’s charges against Dr Patel, has the Attorney-General asked the DPP to review his decision about whether to bring charges, given that the other two pathologists—Dr Cary and Dr Shorrock—agree that Mr Tomlinson’s death was a result of internal bleeding from blunt force trauma to the abdomen? If not, will he now do so?

I am sure that the Attorney-General agrees—and would say again—how important it is that justice is seen to be done, freely and fairly, with all being equal before the law. The unfortunate circumstances of this case do not appear to show that at present.

[The Attorney-General]

As for the hon. Lady’s last comment, I entirely endorse what she says. On her earlier comments, I am not in a position to make a judgment on the misconduct allegations that may pertain to the pathologist, Dr Patel, which I understand arise out of other matters. Neither am I in a position to comment on questions of expertise. As I tried to make clear a moment ago, this is about an issue of fact. Dr Patel carried out the first post-mortem examination, which included certain conclusions about blood in the abdominal cavity. Subsequently, he factually retracted those statements, or altered them markedly, putting a completely different complexion on what conclusions could be drawn from the evidence and whether, in particular, any connection could be made between the blow that one can see being struck on the video, the fall that followed and the actual cause of death. I understand that that lies at the root of the Crown Prosecution Service’s difficulties in this case.

The hon. Lady also asked about my powers of supervision and superintendence. I have those—they are my ability to ask questions. As she might appreciate, I have certainly had an opportunity to do that, but this is not my decision and I have not been in a position to review the evidence. As I said earlier, I have no reason to think, from anything I have heard, that this matter was not most conscientiously and fully inquired into with a clear desire to see justice being done. The decision is potentially open to being reviewed by means of judicial review—that could happen if someone wished it to take place—but I want to make it clear that on the basis of what I have been told and what I have discussed, but not on a review of the evidence, it seems to me that the CPS has acted with complete propriety in this matter and in trying to take it forward.

[Dr Julian Lewis (New Forest East) (Con)]

Does my right hon. and learned Friend accept that the CPS might have acted with complete propriety but that its actions have nothing to do with the delivery of justice in this case? Does he understand that to allow the findings of a pathologist who has previously found a victim of the Camden ripper in 2002 to have died of natural causes resulting from heart disease to trump the considered verdicts of two other pathologists is far from satisfactory? Is he more understanding than I am of the fact that the Director of Public Prosecutions can take the view that the findings amount to an irreconcilable disagreement between experts rather than between two experts and one incompetent who ought to be disregarded?

[The Attorney-General]

I fully understand my hon. Friend’s concerns, but at the risk of repeating myself, I must restate the key point. This is not just a disagreement between experts: it is about a key matter of fact that had to be established at the outset, which has been left completely unclear. On the basis of the facts as now stated, it does not lend support to there being a causal connection between the blow and the death. That might be a profoundly unsatisfactory state of affairs, but I simply say that the CPS has to go with the material that is available to it, and it cannot manufacture it or wish that something different had happened from what actually happened. From that point of view and bearing in mind my responsibility in this matter, in seeking to answer the House’s questions properly, I repeat that the CPS seems, from what I have been told, to have acted with complete propriety in investigating this matter.

[Keith Vaz (Leicester East) (Lab)]

The Attorney-General might recall that at the instigation of the hon. Member for Carshalton and Wallington (Tom Brake) the Select Committee on Home Affairs held an inquiry into the G20 riots and made passing comment on the case of Ian Tomlinson. Two recommendations were put forward, one of which concerned the use of untrained officers. The other involved the Committee’s concern about the prospect that communication between the police and the public at that time, and the tactics that were used, might undermine public confidence and trust in the police. Have those two recommendations been addressed? If not, will the Attorney-General write to me and let me know what progress has been made?

[The Attorney-General]

I think the right hon. Gentleman will understand that those questions fall slightly outside the remit of my area of responsibility. My right hon. Friend the Home Secretary is sitting on my left, however, and I am sure that is a reflection of the seriousness with which she takes the entirety of the matters that the right hon. Gentleman has just expounded. I hope very much, therefore, that my right hon. Friend will be in a position to answer the question that he raised.

[Tom Brake (Carshalton and Wallington) (LD)]

It is important not to prejudice any further action, but does the Attorney-General agree that to avoid the impression of a cover-up it is also important that the CPS considers all the evidence that will be presented at the inquest and whether it warrants taking action against the officer then?

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[The Attorney-General]

The hon. Gentleman makes a perfectly good point. As I indicated, the matter is not at an end. There will be an inquest and there is the IPCC report to the Home Secretary. If it were, indeed, the case that further evidence emerged, I have not the slightest doubt that the CPS would wish to consider it.

[Glenda Jackson (Hampstead and Kilburn) (Lab)]

The issues causing my constituents concern are, first, the seeming failure of the Metropolitan police ever to learn from their past mistakes and, secondly, that the CPS seems to have endowed the medical evidence with undue weight and ignored the other manifest evidence that was in the public domain. If there is to be an inquest, will the family of Mr Tomlinson be afforded any kind of financial support by the Government, given the swingeing cuts that have been introduced to the legal financial service?

[The Attorney-General]

On that latter and final point, I have to tell the hon. Lady that it is a matter for my right hon. and learned Friend the Secretary of State for Justice. As she is aware, provision is available to help families in certain inquests and that matter would have to be considered. It would also have to be considered by the Legal Services Commission to which application would be made.

May I return to this point: I do not think it is a question of the application of undue weight on anything? The responsibility of the CPS is to apply the code and test of Crown prosecutors as to whether there is a basis on which a prosecution can be brought. In a case of prosecution for manslaughter, that is not possible for the reasons I have already given the House and the hon. Lady. In a case of assault occasioning actual bodily harm, if the CPS were to depart from its own standards and guidelines, which have, I think, been in existence for some 15 years—I seem to recollect they were introduced following some criticisms that there were excessive variations in when assault occasioning actual bodily harm was charged or not—that decision could be open to criticism and challenge.

[Mark Pritchard (The Wrekin) (Con)]

Is it not time that coroners were issued with new guidance that they should not appoint pathologists when there is a direct and/or present relationship with the police force they are investigating?

[The Attorney-General]

My hon. Friend raises an interesting question. Normally, as I understand it, that is a matter for the discretion of the coroner. It may be that one of the matters arising from this case that needs to be considered is how pathologists are appointed by coroners in all cases.

[Ms Diane Abbott (Hackney North and Stoke Newington) (Lab)]

Does the Attorney-General agree that a key element in upholding the rule of law is people’s confidence in the rule of law? Does he also agree that a number of issues associated with this case have tended to undermine that confidence both for the tragic Tomlinson family and for the community as a whole? The question of the pathologist’s competence has been touched on, but there is also the chequered history of the policeman involved—at one point, he was actually discharged from the Metropolitan Police Service. There is also the question of the length of time it took the CPS to finish the inquiry, which has meant that no prosecution of any kind may be brought. Does the right hon. and learned Gentleman agree that all of us in the House who are committed to upholding the rule of law have reason to be concerned about what has happened in this case?

[The Attorney-General]

I certainly endorse the hon. Lady’s final comment. Yes, and I hope I made it clear that there is something profoundly unsatisfactory about a conflict of evidence arising on facts and matters of this kind. Some matters the hon. Lady raises are not within my province, but there may well be some lessons to be learned, and as I indicated previously, this matter is at least not yet completely at an end. That having been said, prosecutors have to see that the law is observed, but they have to act within the law and on the evidence. They are constrained by that; indeed, that is one of their responsibilities and duties. The fact that the evidence ends up unsatisfactory and that the matter cannot therefore be taken any further does not mean that they have not done their job properly.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

Does the Attorney-General accept that, whatever may be the normal practice, there was nothing to prevent the CPS from bringing a simple assault charge while other matters continued to be investigated? Does he also recognise that the urgency of creating a system of genuinely independent medical examiners, as recommended after the Shipman case and by the Justice Committee, is confirmed by aspects of this case?

[The Attorney-General]

The right hon. Gentleman raises the question of whether an assault charge could have been brought while the investigation continued. I say simply that it could have been. The difficulty that might have arisen is that if that assault charge had been taken to conclusion through the courts during the period of the investigation and subsequently the material on which a manslaughter charge could have been based became apparent, it might then have been impossible to proceed with the manslaughter charge. I do not think that that matter can simply be overlooked.

I did not fully respond to the point put by the hon. Member for Hackney North and Stoke Newington (Ms Abbott) about the timing. I simply say this: there was an IPCC inquiry first of all, which took some months. By the time the Crown Prosecution Service got the material in this case, time had already gone on a fair bit. In those circumstances, I do not take the view from what I have seen that the CPS was in any way dilatory in trying to bring this matter to a conclusion.

[Jeremy Corbyn (Islington North) (Lab)]

Does the Attorney-General understand that a lot of people view his remarks today and his response to my hon. Friend the Member for Islington South and Finsbury (Emily Thornberry) with utter consternation? As my hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott) pointed out, this is a question of justice and of seeing justice to be done. If we are to have any confidence in the judicial system and in the ability of the Government or the CPS to mount a prosecution, something must happen in this case where a wholly innocent man was killed in broad daylight on the streets of London and no action appears to be imminent on this matter.

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[The Attorney-General]

As I said, anyone who saw the video of what happened must be seized with very serious concern about the matter. That is a view that I entirely endorse. Therefore, for the same reason, I am extremely unhappy, as I am sure everyone in the House is, that we should be in the position that we are in today with such a complete lack of clarity in the matter. There may well be lessons to be learned overall, but I came to the House to answer for the CPS, which had to take the material available to it and act on it. As I said before, I do not believe there is anything in what I have seen of how the CPS has conducted itself in this matter to make me think that it was not seeking throughout to try to ensure that justice was done in this case. I hope that the hon. Gentleman will be able to accept that.

[Mr Peter Bone (Wellingborough) (Con)]

Does the Minister agree that the liberty of every citizen in this country relies on the separation of powers, that members of the public should not be tried by television and the media and that the CPS has looked at this properly and reached a proper decision?

[The Attorney-General]

My hon. Friend does make an important point—in this country, we have the presumption of innocence and it is also right that we only prosecute where the code test is passed and there is a credible basis on which a prosecution can be brought. Those are onerous burdens for the CPS, which it has to discharge impartially, free of political control and fearlessly. I have not the slightest doubt that in this matter that is what it has sought to do. The fact that the outcome is unsatisfactory—from the House’s viewpoint and that of many, particularly, I might add, the family of the deceased, for whom everyone in the House must have the greatest sympathy—does not, in fact, undermine the validity of what the CPS was trying to do.

[Jim Fitzpatrick (Poplar and Limehouse) (Lab)]

Does the right hon. and learned Gentleman accept that, on the CPS’s lack of proceeding against the officer, one aspect that causes concern is his alleged chequered history? According to press reports, he left the Met under a cloud, was re-employed as a clerk, successfully applied to Surrey constabulary for a position and then transferred back to the Met. Can the right hon. and learned Gentleman advise us, to his knowledge, whether that aspect of Metropolitan Police Authority recruitment policy is being examined as part of the process in respect of the prosecution, and whether, if there is a lesson for the Home Office on inter-constabulary transfers, that matter will be brought to the attention of the House?

[The Attorney-General]

The Home Secretary is sitting on my left, and she has had the opportunity of hearing the hon. Gentleman. As he will appreciate, the points that he makes are again outside the remit of myself as a Law Officer and, indeed, of the Crown Prosecution Service, but I fully accept that they are perfectly pertinent.

[Anna Soubry (Broxtowe) (Con)]

Would my right hon. and learned Friend be able to assist in this way: cases involving causation are always difficult, but did the Crown Prosecution Service consider two other charges available to it, neither of which would have been time-barred, namely affray and misfeasance in public office?

[The Attorney-General]

So far as affray is concerned, I am not aware of whether it was considered, and it does not immediately spring to mind as appropriately reflecting what happened in the case. So far as misconduct in public office is concerned, the matter can be looked at, but the test for misconduct in public office is quite clear: it should not be used as a substitute to get around a substantive offence being brought. For those reasons, the CPS took the view that misconduct in public office was not an appropriate charge to bring, and in that it is certainly backed by all precedent.

[Steve McCabe (Birmingham, Selly Oak) (Lab)]

Is it true that the coroner, Professor Paul Matthews, refused to allow two IPCC investigators to attend the first post-mortem and failed to advise Mr Tomlinson’s family about their rights in relation to the second post-mortem? If so, how can any of us have any confidence in his ability to conduct an inquest that will have such a crucial bearing on any future decision by the CPS?

[The Attorney-General]

As to the latter point about the family, I am not in a position to comment. As to the first, on whether the coroner insisted that a post- mortem go ahead with Dr Patel only, I think that I am in a position to confirm that that is what he did.