Transparency and Accountability Bill

Debate between John Hemming and Simon Hughes

Friday 17th October 2014 Commons Chamber

[The Minister of State, Ministry of Justice (Simon Hughes)]

I thank my hon. Friend the Member for Birmingham, Yardley (John Hemming) for putting his name into the ballot, and I congratulate him on doing well in it and on bringing forward a Bill to address many issues that are of considerable importance to our country. I am very grateful for that and for the constructive comments from the hon. Member for Liverpool, West Derby (Stephen Twigg), speaking from the Opposition Front Bench. I am grateful, too, for the contributions of the right hon. Member for Haltemprice and Howden (Mr Davis), to which I shall return, and the hon. Member for Christchurch (Mr Chope).

I have only a short time to respond, so I will not be able to do justice to all the issues in the Bill. As I said to my hon. and good Friend the Member for Birmingham, Yardley, I would be happy to sit down with him to ensure that the issues he raises do not die and are pursued generally in the Department, and I extend the same invitation to the hon. Member for Liverpool, West Derby, too, if he or his colleagues would like to pursue the matters for which he indicated support.

For the benefit of those who follow our proceedings, and given that everyone agrees that this is something of a portmanteau Bill in five parts, covering family justice, the administration of justice, consumer complaints in markets for public services and freedom of information as well as a general part at the end, it might help our later consideration to point out that my hon. Friend the Member for Birmingham, Yardley did not take us through the Bill in the order of the parts. Rather, he started with clause 15, which relates to consumer complaints. He referred to Which?, an organisation that we all greatly respect, to which I shall return. He then dealt with freedom of information in clauses 16 and 17, raising issues that are very much on the Government’s agenda. He then went back to the Criminal Cases Review Commission proposal in clause 14, followed by his views and proposals on clause 13. He then went back to part of clause 2, then clauses 8, 11 and 12. Then he covered the rest of clause 2 along with clauses 3, 4, 6, 9 and 12 in that order. I am not setting this out to be mischievous, but if people are to follow important issues, it is helpful to align what he said with the Bill’s proposals so that we all know where we are.

[John Hemming]

Anyone reading this debate may wish to refer to the speech I gave when I first put forward most of these proposals. I had more time to speak to them, so I spoke at greater length. I hope that that will inform people better,

--- Later in debate ---

[John Hemming]

As I have said on a number of occasions, the media cannot afford to have someone in every family court. Does the Minister accept that media access to hearings is not, in itself, that big a thing?

[Simon Hughes]

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

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

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

Death Penalty (India)

Debate between John Hemming and Simon Hughes

Thursday 28th February 2013 Commons Chamber

[Simon Hughes (Bermondsey and Old Southwark) (LD)]

I join others in thanking the hon. Member for Hayes and Harlington (John McDonnell) for initiating this valuable debate. Like the hon. Member for Slough (Fiona Mactaggart) and every other Member who has spoken, I regard myself as a friend of India. I have been privileged to go there twice, and would have gone again this month had not a certain by-election and other distractions forced me to postpone my third visit.

India is a wonderful country. One of the things that is so great about it is that it is not only the largest democracy in the world, but a democracy that has devolved power to its states. It is also very diverse, and it is a place where many faiths, and none, are equally valid, respected, enjoyed and appreciated. It is a melting pot: in my experience, it is the only place in the world, apart from Israel and Palestine in the middle east, where so many different strands of culture, history and faith come together.

We have come here with that attitude, but some of us have come here with, also, a lifelong commitment to fighting the death penalty. I held that position and argued that case before I entered the House, and have continued to do so throughout my time here. I first joined Amnesty International when I was at university, and campaigned on cases individually. I was in Amnesty’s Southwark group before I was elected, and we made representations to Governments around the world asking them not to exercise the death penalty.

For many of us, this is part of a traditional campaign. I pay tribute to the Members who have spoken so far, and spoken extremely well. The right hon. Member for Warley (Mr Spellar) made a very effective contribution, as did my hon. Friend the Member for Bedford (Richard Fuller). We heard an intervention from the hon. Member for Na h-Eileanan an Iar (Mr MacNeil), who is no longer in the Chamber, and I also greatly appreciated the contribution of my friend the hon. Member for Leeds North East (Fabian Hamilton), with whom I travelled to India a couple of years ago.

Several of my colleagues, including my hon. Friend the Member for Bradford East (Mr Ward), have signed the motion that we are discussing. For obvious reasons, some of my colleagues are not present in as large numbers as they might be, and they send their apologies. As the deputy leader of my party, I want to associate them with the motion. I should mention my right hon. Friend the Member for Carshalton and Wallington (Tom Brake), my hon. Friends the Members for Westmorland and Lonsdale (Tim Farron) and for Leeds North West (Greg Mulholland), my right hon. Friend the Member for Hazel Grove (Andrew Stunell), my hon. Friends the Members for Edinburgh West (Mike Crockart), for Argyll and Bute (Mr Reid), for Bristol West (Stephen Williams) and for Solihull (Lorely Burt), my hon. Friend the Member for Birmingham, Yardley (John Hemming)—who is present, and who intervened briefly earlier—my hon. Friend the Member for Caithness, Sutherland and Easter Ross (John Thurso), and my right hon. Friend the Member for Orkney and Shetland (Mr Carmichael), who has campaigned against the death penalty for many years.

It is good that this is not the only occasion on which the issue of the death penalty has been raised this week. A number of questions about it were asked in the other place, including one from Lord Low which specifically concerned the death penalty in India and which was answered by Baroness Warsi on behalf of the Government.

I welcome my right hon. Friend the Minister of State, who has already contributed to the debate. I do not want to make a long contribution myself, but I do want to make a few comments about the logic of the case that we are making to the Indian Government—while respecting the Indian Parliament and Government, and the office of President—before asking the Minister some questions and suggesting ways in which we might proceed. I realise that the Minister will not make another speech today, but I would appreciate it if he could think about those points, and reply later to me and to my colleagues.

I understand why countries have the death penalty, I understand why countries have had the death penalty, as we did until relatively recently, and I understand the difficulty of moving from having the death penalty to not having it. Not having the death penalty looks like a sign of weakness, and may be thought to make it more likely that people will commit serious offences and “get away with them”. I understand that events such as those of the 1980s involving the golden temple, for example, have led to a culture in which it is felt that people must not be allowed to get away with activities of that kind. I understand how terrible terrorism is, in India as in this country and anywhere else, and I understand why people who are involved in and convicted of terrorism are thought to be in need of the ultimate punishment.

However, we should also reflect on the fact that, since India gained independence in 1948, the death penalty has not deterred such people. It did not prevent any of the events of the 1980s, and it did not prevent the events referred to by the Minister when he was in India only the other day. Bomb blasts, revenge killings and assassinations have continued, as they have in other countries where the death penalty operates. The hon. Member for Na h-Eileanan an Iar made the telling point that Europe, where most countries do not have the death penalty, is the safest place in the world. There is no link between a lack of crime and the death penalty. Indeed, according to the most recent evidence that I have seen, in the United States of America the states with the death penalty generally do not have a lower rate of crime than those without it.

[John Hemming]

Does my right hon. Friend agree that the key aspect of deterrence is detecting and identifying criminals, rather than the nature of the punishment?

[Simon Hughes]

It is—as is ensuring that justice is done and is seen to be done, and that justice is done promptly.

A real problem for our friends in India, and for the Government of India, is that justice has often ground to a halt there. That is not just my view. The other day a bench of the Supreme Court in India spoke of how slow the processes are, and in January last year a Supreme Court bench said that people’s faith in the judiciary was dwindling at an alarming rate, posing a grave threat to constitutional and democratic governance of the country. It acknowledged serious problems such as the large number of vacancies in trial courts, the unwillingness of lawyers to become judges, and an inability to fill the highest posts. Dealing with the backlog in the courts is one of the difficulties in India, although it is not unique to that country; we have been dealing with it in the European Court of Human Rights in Strasbourg.

There are matters that need to be addressed—matters that can be addressed—which could change the culture in India and give people more confidence. There is, for instance, the need to deal with corruption, which is sometimes a problem in our own country. We have just seen an officer of the Metropolitan police convicted of corrupt activities. Like other Members who have spoken, I am not trying to pretend that we are perfect. However, corruption needs to be dealt with in India and other countries where it undermines democratic values and principles and international credibility. I agree with those colleagues, including the hon. Member for Slough, who have said that if India—its Prime Minister and President—were brave enough to move to abolishing the death penalty, they could be the leaders in their part of the world. They could change the culture of other, smaller democratic countries and later, we would hope, of currently non-democratic countries such as China, so that they could all move on and we would end up not with 110 or 111 countries voting in the UN against the death penalty, but with the remaining countries understanding that there is a better way to proceed—that there is a better and fairer way to punish people.

The ultimate argument is this: not only is it not a deterrent to have the death penalty, but, as the right hon. Member for Warley said, it is a final solution which all too often through history has proved to be wrong. If an injustice is done and the convicted person has been in prison for 20 years, that is terrible but at least they can come out and enjoy the rest of their life, but if there is an injustice and the person is executed, it is too late to undo that, of course.

I want to make the specific case for people like Professor Bhullar and Balwant Singh Rajoana, as I did when I was last in India. I add my voice to those of others calling for the relatively new President of India to return to the moratorium his predecessor followed. I hope that can be a first, or interim, stage before abolition. I understand, too, that having people on death row is a dreadful and inhumane punishment, so a moratorium is not an adequate answer, and I hope that, collectively, we can help India understand the arguments for moving forward.

I have a specific proposal. Later this year there is to be a Commonwealth Heads of Government conference. It is currently scheduled to be held in Colombo, although that is controversial and has been the subject of discussion. Ministers have recently been to Sri Lanka, and our country has rightly not decided what level of representation we will give because of recent human rights issues in Sri Lanka. I assume that there will be such a conference this autumn, however, either in Sri Lanka or somewhere else, and I would like our Government to see whether we can put on its agenda the remaining issues to do with the death penalty in Commonwealth countries, and see whether that could be linked with questions of justice and the speed of justice. I ask the Minister to discuss that with his colleagues, including the Foreign Secretary.

There is a commonality of interest. I do not come to this debate because I have a huge number of Sikh constituents. In fact, I have very few constituents of Indian origin. I have no gurdwaras or temples in my constituency, but I have a large Muslim community and large Roman Catholic Irish and Latin American communities, as well as the largest African community in Britain. Although I have no constituency interest, however, I have worked a great deal with the Sikh and other minority communities in India, and the Commonwealth needs to step up to the plate and do better in making sure these issues are on the Commonwealth agenda. I would like Her Majesty’s Government to put failures of justice and the issue of the death penalty on the agenda this year.

I also ask Ministers to reflect on how we might be more effective more immediately, in the UN Human Rights Committee meeting in Geneva which will take place in the next few weeks, and on whether we might take forward further initiatives there. Sri Lanka is on its agenda, and we might be able to ensure that these death penalty issues are addressed at it, too.

It would be helpful to keep these issues at the top of the EU priority list, too, but not in an old empire way, but because it is good to seek to work with our friends in all countries of the world, as well as our friends in the Commonwealth. The Minister told us he raised these issues when he was in India with the Prime Minister and the UK delegation last week, but it would be helpful to know whether the Prime Minister raised them in his meeting with the Prime Minister of India or with other Ministers. If he did not, would he be willing to do so, because I am sure the increasingly good and frequent links between UK Ministers and Indian Ministers would allow the point to be put respectfully? I also ask Ministers to reflect on whether, irrespective of the Commonwealth conference, there might be an initiative from the UK and other Commonwealth countries asking the Indian Government to return to the moratorium while these issues are under consideration.

May I end by making one final suggestion through you, Mr Deputy Speaker? The Commonwealth Parliamentary Association and the Inter-Parliamentary Union can be influential on occasions, and you, as well as Mr Speaker and his other deputies, can be influential in that regard. There may be a case for a parliamentary initiative. Will you, Mr Deputy Speaker, speak to Mr Speaker and your colleagues about whether we and other Commonwealth Parliaments might seek to convene a gathering or conference on this matter, perhaps to be hosted here, or in India? There is an opportunity for this Parliament and the Indian Government and Parliament and the Commonwealth to be seen to be taking the initiative. I hope this debate does not merely flag up our concerns and our desire to change things; rather, I hope it is a stepping-stone to more practical interventions, so that there can be this change in the largest democracy in the world in the very near future.

Justice and Security Bill [Lords]

Debate between John Hemming and Simon Hughes

Tuesday 18th December 2012 Commons Chamber

[Simon Hughes (Bermondsey and Old Southwark) (LD)]

It is pleasure to follow the right hon. Member for Blackburn (Mr Straw), the former Home Secretary, and the House will give due weight to his considered contribution. This Bill is clearly important. The world outside might not have realised that it is in three parts: the third is the ancillary part and is very small, the first appears almost to have consensus on both sides of the House, and the second is clearly still controversial.

Let me first say a word about part 1. Ever since I have been in this place, I have felt that it was right that the responsibility for intelligence and security matters should transfer from the Prime Minister to Parliament. It has been a gradual, careful and considered process, but it is right that we have now done that as all three major parties made a commitment that it should happen. I pay tribute to the current Committee and its predecessors, but it is clearly right that people elected by the people should hold our security and intelligence services to account. With some small further changes that colleagues have debated, we will be on the right track and I anticipate that the newly reconstituted Committee will soon be doing a very important job. I pay tribute to all colleagues who are members of the Committee.

That leaves part 2, which is about the hugely important issue of how we deal with civil cases—I repeat, civil cases—in which there are intelligence issues that cannot easily be shared with the watching world. I say civil cases, but there is one question that was not entirely answered by my very good and noble Friend Lord Wallace of Tankerness, who spoke for the Liberal Democrats and the Government in the House of Lords, when he was asked about the application of habeas corpus, which is not necessarily a civil case in the full sense. He was not entirely clear whether closed material proceedings could apply in a habeas corpus application, and that will need to be specifically addressed as we have to know exactly where we stand as we deal with the Bill.

When the first proposals were published in the Green Paper, my Liberal Democrat colleagues and I were extremely nervous about them. We were concerned that they gave far too much power to the state and far too little power to the courts, and that they crossed the line between the open courts we have always accepted as the right principle and courts with a restricted process. The former Secretary of State for Justice and Lord Chancellor, the Minister without Portfolio, fairly said that the Government wanted to consult and they did, and they have listened to the responses to the Green Paper. There is an argument that there could have been a White Paper, but that is not a central argument for today. It is particularly helpful that not only at the beginning, but by the time the Bill came to the Lords, some changes had already been made. My right hon. Friend the Deputy Prime Minister and colleagues had argued for these changes and set out what, for us, were the bottom lines. In April that was made clear. One of them was that we should restrict the scope of the Bill to national security cases only: done. The second was that we should remove inquests: done, although I hear what the right hon. Member for Salford and Eccles (Hazel Blears) said. There is an inquest question and I do not want to be dismissive of that. The third was ensuring that closed material proceedings were triggered by an application to a judge, not by a decision by Ministers.

Those steps represented good progress. The Bill then went to the Lords, where it was the subject of long deliberation. It was also examined by the Joint Committee on Human Rights. I pay tribute to my hon. Friend the Member for Edinburgh West (Mike Crockart) who served on the Committee for almost its entire work on the Bill. I declare an interest: I joined the Committee at the very end of its proceedings on the Bill. Effectively the work had been done. There was unanimity on the Committee as to the changes that should be made.

I welcome the fact that the recommendations made by the Joint Committee have almost entirely been picked up by the House of Lords on Report and supported by a majority in the Lords—in many cases, large majorities—against the Government. They have made the Bill a better Bill, with many of the safeguards that we want. I hope the Minister without Portfolio and his colleagues in the Home Office will accept the principle of all the amendments that have come to us from the Lords. The Joint Committee wants that to happen and I would urge that, as would my party colleagues.

In between those two things we debated the Bill at our Liberal Democrat conference in Brighton, and it got a resounding thumbs-down from my colleagues as going far too far across the line to closed courts from open courts. I understand that, and I am sensitive to it as I make my remaining comments this afternoon.

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

With reference to our party conference, there are those who, like me, would perhaps see closed material proceedings limited to the quantum and the consideration of the quantum rather than the substantive issue. Perhaps that would be an alternative that would attract more support from the party.

[Simon Hughes]

That is a point of view, but I am not sure. I have not discussed it with my hon. Friend. The point of view of our colleagues was that we have to be very careful when we move away from open justice. We have to accept the evidence of those who say it is not necessary. The Joint Committee heard from the special advocates that it was not necessary. They did not support the proposal and we should give that due weight.

The central issue is what the procedure will be in order to protect the security interests on the one hand, but make sure that we deliver a fair outcome to a reasonable case on the other. The existing system, the public interest immunity system, means that Ministers declare documents secret and therefore they cannot be used. It is a very simple system, although it can be time consuming. I accept the argument that that often means that a case cannot be carried through to a conclusion, so I am not here to defend the idea that the PII system is the solution to all our difficulties.

Happily, the Bill is now drafted in such a way that consideration has to be given to that option first, and to whether, if certain documents are withheld, the trial can none the less proceed fairly. But if that is not the answer entirely, we have to consider whether there is something else. I want to flag up the changes that have been made and the ones that I think might get us nearer to what my party colleagues would like to see, as would many people who have written to us.

First, it is right that we should stick to the idea that the discretion is with the judge, not with Ministers of the state as an alternative. That is why the change referred to by the hon. Member for Oxford West and Abingdon (Nicola Blackwood), that the judge “may” do things, rather than “must” do things, is the right change—small word but big implication in the context of clause 6. We have added the requirement to look at alternatives, such as the PII alternative. We have also added the requirement—a good one—that all parties to the proceedings can apply for closed material proceedings, or that could happen at the judge’s instigation, which is a good thing. We have also dealt with the inquests issue.

However, we have not dealt with the fundamentally important issue of how a defendant can see the evidence against them, and that is what gave the Joint Committee on Human Rights its biggest difficulty. The Committee made it absolutely clear in its report’s conclusions that, because we had not had the information that justified the case and had heard from the special advocates that they were not persuaded, even though the Government’s official reviewer said he was persuaded, the Committee was not persuaded either. That is set out in paragraphs 44 to 46. There was uncertainly about how many cases we were talking about. Paragraph 42 states:

“In the light of the lack of clarity about whether the number of pending claims is 27, 15, 6 or 3, and in the light of the Independent Reviewer’s evidence we wrote to the Minister in charge of the Bill on 23 October to ask how many civil damages claims were currently pending”.

Just after the Committee wrote the report, the Advocate-General for Scotland, my noble Friend Lord Wallace of Tankerness, replied to that:

“I can confirm that as of 31 October 2012, there are 20 such live civil damages claims (including those stayed and at pre-action stage). There are also a number of other live cases, including judicial review challenges.”

He went on to elaborate the detail of that figure. I think we have to accept that that is roughly the number of cases we are talking about, but some of them are very significant cases and cannot be dismissed.

We must therefore take seriously the challenge that the Government have brought us. My honest view is that we have to allow the defence better access to the information, either through special advocates or by another means. It is on the new word that has only recently come into our language—“gisting”, which means allowing the defence to see not every iota of evidence, but the gist of it—that we need to do the most work in Committee. I think that there must be a mandatory requirement that the information be given in summary to the defence and that the defence—they can be specially cleared defendant advocates or representatives—can see the evidence, respond and take instructions on it. If we are going to say that we will allow the courts to go into closed session, it seems to me that we need the security of knowing that the defendant will have the right to know the case against them and the right to challenge. I hope that the Committee will do some detailed work on that over the coming weeks.

I agree that we need to deal with the Norwich Pharmacal situation, because at the moment we are precluded from using intelligence from abroad because of the court’s overriding power to have that put into the public domain. That has to be dealt with, because it is clearly unsatisfactory. I agree that we need to have a reporting and reviewing process and allow the media to make representations, as recommended by the Joint Committee.

I have two final points. First, we must ensure the judicial balance of national security against the public interest takes place in the second stage of the closed material proceedings process, not just at the gateway. Secondly, we have to consider whether we can just sign off this legislation forever or whether we have to come back to it in a certain number of years. This is very unusual territory for us. Civil liberties are at risk. We have made progress, but we are not there yet.