Anti-social Behaviour, Crime and Policing Bill

Debate between Mark Durkan and John McDonnell

Tuesday 4th February 2014 Commons Chamber

[John McDonnell]

In my view, the Government’s test is faulty. I am not convinced of the need for this additional test anyway. At least the House of Lords edges towards some greater level of fairness. I would rather give up on this attempt to redefine.

The hon. Member for Gillingham and Rainham (Rehman Chishti) raised the case of Barry George. There has always been an ability in our system for the court awarding compensation to take into account whether the person contributed towards their plight. That has an effect on compensation levels or even whether compensation is awarded at all. By seeking to arrive at some definition in legislation, we are digging ourselves into a very complicated and costly hole, and that cost will be on the individuals who are desperately trying to ensure that they get some compensation for the ill that they have experienced as a result of the state’s failure to live up to a proper process. Additionally, it will be extremely costly for the state. As a result of the weakness in the definition proposed by the Government, we will see case after case being dragged through the English courts and then the European courts. In trying to remedy some form of perceived ill, we will create greater damage to those who have suffered enough.

In addition, the process that is under way at the moment risks making a laughing stock of the Government. As we have heard today, there will be arguments over the difference between “do not commit” and innocence, between “conclusively” and “beyond all reasonable doubt”. The lawyers will make a fortune. I plead for a common-sense approach. The compensation arrangements at the moment are not absolutely perfect, but at least we have managed to secure some compensation for those cases that have been quashed as a result of the state’s failure, and this is about the state’s failure to act accordingly.

There are many other cases. Susan May recently passed away, unfortunately, but her case is still being pursued to demonstrate her innocence, and I think that, rather than it being proved in the long run that the evidential base was the problem, it will be demonstrated that police processes were not adhered to and it will be another case that is eventually quashed. I hope that the Criminal Cases Review Commission will posthumously provide some proof that she should never have been taken through the courts, but again, the case has been dragged out over years, demonstrating how difficult it is, even when trying to prove the failure of due process, to secure not just a decision but any compensation. The new process will make it even harder to get compensation, drag the decision-making processes out for even longer and prove to be basically unfair.

I support the Lords amendment, because at least it moves us a little further forward, although I think even it will be open to significant challenge in the courts.

[Mark Durkan]

I rise to support Lords amendment 112 and oppose the Government’s amendment in lieu. The Minister told us that the Government were moving to allay the concerns raised by the use of the word “innocence” and its abuse in the Bill as originally drafted. Of course, many of us argued that the wording used in the original Bill changed all the normal presumptions about innocence under the rule of law and that it was tilting things to say that because someone had not proved their innocence they could remain guilty, even though they had been released on a quashed conviction. We were concerned not just about the word “innocence” but about the fact that the burden of proof would be reloaded for cases subject to review on the basis of new evidence that could lead to a quashed conviction. We were concerned that the question of compensation would be tested by altering the burden of proof so that new evidence had to prove someone’s innocence. The onus was being put on that person and their legal team to show the strength of the evidence.

The Government’s response to the Lords’ fairly reasonable and measured amendment is to say that they have solved the problem of innocence by using the term “did not commit” about the offence. The Minister was asked again and again to tell us the difference. A brand of soup—I cannot remember which—used to be advertised by the slogan, “The difference is in the thickness.” We are being told that there is a big difference and the Minister is emphasising its importance, but he cannot explain, specify, spell out or measure in any way the difference between whether someone can show that the evidence proves that they are innocent of an offence or whether they can show that it proves that they did not commit the offence. Even some of the interventions from the Government Back Benches seemed to rest more on whether there was evidence that an offence had been committed than on whether there was evidence that the person had actually committed the offence.

There are cases, of course, in which we know that gross and horrible offences have been committed, but that is very different from saying that that proves that a person who was charged and convicted of that offence has committed it. At other times, offences that might or might not have been committed are subject to questions and conjecture. We might consider our experiences in this House, as we might be thrown into the spotlight of public judgment about whether or not we did something. If we consider “did not commit” and “innocent” in that context, we might start to tease out some of the differences.

If as MPs we were arrested on the basis of some allegation, the fact that we were not charged and nothing more happened would show that we were innocent, but would other people necessarily say that it proved that no offence had been committed and nothing had happened? Things might be different; there can be a difference between “innocent” and “did not commit”. As the hon. Member for Hayes and Harlington (John McDonnell) said, it is hard to prove a negative. We know from recent events of major publicity and political import in which allegations were made that someone had spoken to and treated police officers in a particular way, leading to consequences and all sorts of sweeping media and public judgments—although thankfully not court judgments—that that person was put in the position of having to prove a negative. They were asked to prove that they did not say what they were meant to have said and that they did not behave in the way that they were meant to have behaved.

We need to think not only about the hard and serious cases when we consider miscarriages of justice in this jurisdiction; some of the questions about the difference between “innocent” and “did not commit” can be asked closer to home about cases that do not necessarily reach the criminal courts. If we are conscious about language and the standards, judgments and measure of such things, it might help us and make us a wee bit more sensitive about how we word things as legislators.

The Lords amendment is designed, I believe, to meet the problem that the Government were seeking to address in the Bill. The Government said that they did not want to create a situation whereby the quashing of a conviction led either to the automatic fact of compensation or to the automatic assumption or expectation of compensation. They felt that some other test or qualification was needed. That was what the Government decided; it might not have been the starting point for some of us who have campaigned on miscarriages of justice cases such as those of the Birmingham Six and the Guildford Four. Long after the latter conviction was overturned, I worked with Gerry Conlon and his mother to try to ensure that there was an apology that fully vindicated them and voiced their innocence, because many people in the system and the media were still trying to hide behind the pretence that it was a technical quashing of the conviction but that the conviction itself was due and proper. For them, the issue is not compensation but the absolute assertion of innocence. That was why offence was taken at the use and abuse of the term “innocence” in the original Bill, but that was not the only issue. The burden of proof was altered and an attempt was made to allow in the system for someone who had been convicted and imprisoned for a long period not to be entitled to compensation, because they could not prove beyond reasonable doubt that they did not commit the offence or their innocence.

Lord Pannick’s amendment accepts the Government's premise that there needs to be a definition and bases that definition on many issues that have been tested in other cases, including, as we have heard from the Minister, the Adams case. Based on the working and practical use of the law, the Lords amendment is wise and considered in its suggestion that a new or newly discovered fact should show conclusively that the evidence against the person at trial is so undermined that no conviction could possibly be based on it. That is not a hard test, as it does not open up things to conjecture. It basically allows courts to do what many appeal courts and more senior courts often have to do in considering the material evidence that would have been in front of a lower court and to make a judgment on that basis.

The Lords amendment would simply allow someone, after their conviction has been quashed, to pursue compensation on the basis that the quality of the new evidence shows that there would not have been a conviction in the first place. By refusing that, the Government are basically seeking to return to a situation in which the courts, the police and the prosecution service could be seen as part of a nexus of pursuing and achieving a miscarriage of justice. The beauty of the Lords amendment is that it would clearly take the lower court out of the frame, because it states that had the lower court known about such evidence, it would never have achieved the conviction.

Justice and Security Bill [Lords]

Debate between Mark Durkan and John McDonnell

Tuesday 18th December 2012 Commons Chamber

[Mark Durkan (Foyle) (SDLP)]

Other Members have observed that there seems to be consensus on part 1 of the Bill, but I may be more of a doubting Thomas in that respect. I am not sure that part 1 will do all that it promises to do for the Intelligence and Security Committee, the House or the Bill itself.

I do not, of course, speak with experience of membership of the ISC, although I was offered membership a number of years ago, in bizarre circumstances. In fact, at one point my party was offered two seats on it, which seems bizarre even now. At that time we were negotiating the St Andrews agreement, and Tony Blair got it into his head that I might be prepared to accept annex E—which re-routed some of the Patten provisions relating to intelligence and national security—if I was offered a place on the ISC.

Hours later, I was advised that two places were on offer. I had said that it would be very difficult for a member of my party to sit on the Committee, supposedly to offer scrutiny and challenge, while being unable to tell anyone that he or she had done so or to say anything about it. The consolation was that we would have two members there, each of whom would vouch for the other in our secrecy. It was a bit like King Louie in “The Jungle Book”: “Have a banana; have two bananas.”

Members have said that the Bill is a significant advance on existing law, but I am not sure whether it is adequate or truly accountable. Part 2, obviously, has raised the more substantial issues and differences. I am at a bit of a loss, because I hear differing and confusing arguments. I hear those who commend part 2 saying that closed material procedures are not a particularly big departure because they are already used in cases of various types, and that the Bill merely codifies them in a particular area. I also hear the argument that PII is no good, that it cannot be used, that it stops cases being defended and that by its very nature it means that evidence cannot be brought. The reality is that PII can be dealt with on an evidence-by-evidence basis, and does not have to be done entirely wholesale. We have seen where it has worked in the past when the courts have granted immunity in relation to certain material, evidence and witnesses. They have protected their anonymity and secrecy and have protected material from being disclosed altogether. In other cases, they have protected material by due and measured redaction. The idea that PII is basically just a one-size-fits-all option is nonsense, as it can be used in a measured way.

I feel almost as though I am involved in some sort of closed material proceedings, because everyone else seems to be aware of why certain cases were settled as quickly as they were. I do not know why the al-Rawi case was settled in the way that it was. It had not even gone to the Supreme Court once appeal was allowed, yet settlement took place. Was it so compelling that the state had no other choice? Was there no way of having more measured terms? I do not know, but other people seem to. They seem to have been briefed and perhaps they are privy to such things, but I certainly am not and as a legislator I am not prepared to pass serious, significant legislation on spec based on somebody else’s hunch that the state would not have settled if it did not really have to.

I come from a part of the world where the state has done many things and failed to do many things. People attributed all sorts of reasons and pure motives to it, saying, “They wouldn’t have done that if they didn’t have to.” We know from last week’s revelations that that logic absolutely stinks. One of the worst things was that all down the years, when such things were happening, they were not sufficiently challenged by enough people in this Chamber and in other places.

When we receive such legislation, we must question it and ask what the compelling reason for it is. We must also look to those who know something about such things. Lord Justice Kerr has been widely quoted today on the subject of closed material proceedings, but he was not the only one to make significant statements in the al-Rawi judgment. Lord Dyson, giving the lead judgment, said that the introduction of closed proceedings in ordinary civil claims would involve

“an inroad into a fundamental common law right.”

He went on to say:

“The PII process is not perfect, but it works well enough. In some cases, it is cumbersome and costly to operate, but a closed material procedure would be no less so.”

Other hon. Members have quoted Lord Kerr’s concluding judgment. An additional point he made was:

“This would not be a development of the common law”

as the Government

“would have it. It would be, at a stroke, the deliberate forfeiture of a fundamental right which…has been established for more than three centuries.”

In those circumstances, I do not think that we should lightly pass the Bill on the basis that the other place has made a few amendments that make it good enough.

[John McDonnell]

The point has been made throughout the debate—I have not heard it all as I have been in a Westminster Hall debate—that in a piece of legislation that is actually flawed, we must ask whether the balance of interest lies in protecting the state or the individual. Clearly, the Bill protects the state rather than the individual.

[Mark Durkan]

That is exactly the nature of the Bill. It is a measure to ensure that the state will be protected in various litigations and that it will have an absolutely unequal power to use a procedure that will frustrate a case against it using a special secret procedure.

We are told—I have listened to other hon. Members say it—that the amendment to clause 6 in the other place that changed “must” to “may” now means that the proceedings are entirely a matter of judicial discretion and that we should therefore trust the courts. Of course, however, that is only in relation to clause 6. Once the national security case has been engaged by a judge under clause 6, clause 7 means that what happens is entirely in the hands of the state. That joker is played by the state and cannot be predicted. PII means that a judge can be selective and can scrutinise what evidence might compromise national security and what should or should not be admitted in balancing the interests of hearing the case and protecting national security, but that will no longer be the case. We are being sold a false argument about just how big a difference there is because of the change from “must” to “may”.

As well as listening to learned judges who have considered the matter, we should look to those who also have experience of closed material proceedings and such legislation—the special advocates. The Minister without Portfolio told us, in effect, that special advocates underestimate their own power—they do rather well under such provisions and have quite a good score rate. Let us listen to what the special advocates and other observers say. The late Lord Chief Justice, Lord Bingham, described the role of a special advocate as akin to

“taking blind shots at a hidden target”.

Special advocates themselves have described it as “shadow boxing” in circumstances where

“you are speaking into a black hole because you have no idea if your strategy and points are on the money or wide of the mark”.

So special advocates are frustrated by their own professional standards. They must be particularly frustrated in relation to the interests and rights of their clients.

Remember, that is what we are talking about—people who have reason, good or ill, for taking a case against the state. If, in doing so, they are speaking of actions that have fundamentally affected their human rights, that have done damage or harm to them which in other circumstances and at the hands of someone else would be deemed to be illegal, that is serious. We should not treat the issue as a matter of administrative convenience. The argument should not be that it takes Ministers too long to decide whether they want to look for public interest immunity certificates in respect of all the different pieces of information, that it could take them a whole day to do so, and that we have to come up with something quicker, so we go for closed material proceedings. That is not the way in which we should legislate for justice to be done.

Others have quoted the Government’s independent reviewer of terrorism legislation, David Anderson. On one occasion he attended a session with representatives of the Government and of all three intelligence services and counsel. He was talked through seven significant cases and left with a bundle of top-secret material in each case, including evidence and internal and external advice, which he had taken the opportunity to read. Three of those seven cases were civil damages cases. His conclusion was that

“there is a small but indeterminate category of national security-related claims . . . for civil damages, in respect of which it is preferable that the option of a CMP . . . should exist”—

only preferable that the option of a CMP should exist, but the Bill goes down an almost compulsive route in relation to that and legislates too far.

There is the irony that the very procedure that the independent reviewer engaged in was a closed material procedure. He looked at files that were presented by Government. He listened to the representatives of the intelligence agencies and their legal advisers, and he formed an assessment with no other view being given from special advocates or anybody else, yet it is his advice and his conclusions that we are told we should listen to.

Public Service Pensions Bill

Debate between Mark Durkan and John McDonnell

Tuesday 4th December 2012 Commons Chamber

[John McDonnell]

That is exactly right. There has to be openness and transparency. The point has already been made, but some of us will now have to go out there and campaign to keep people in these schemes. The way to do that is by having openness and transparency about what they are paying in, the benefits being made and, I agree, the overall contribution made by taxpayers.

I fear for the future. We have seen the Fire Brigades Union survey of what would happen if there were increases in pension contributions to those workers’ scheme and also a reduction in benefits. Some 30% told the survey that they would question whether they wished to continue in the scheme. A 30% withdrawal rate would undermine some of those schemes. That is why openness and transparency are important. One of the key areas for openness and transparency is in the valuation process, with the terminology and methodology agreed with the employee representatives, so that they have confidence that the process is being conducted fairly, openly and, to be frank, professionally. In addition, once the revaluation is done, the report should be provided to the employee representatives. I can see nothing in that with which the Government could disagree.

[Mark Durkan (Foyle) (SDLP)]

The hon. Gentleman is right that many of us might well have to campaign to ensure that people invest in and stick with these schemes, but even if we get valuation and transparency right, is there not a “There’s a hole in the bucket, dear Liza” syndrome with these Henry VIII powers? People will say, “You can say all that, but you can’t promise that it will be so when I reach pension age.”

[John McDonnell]

I fully agree. What concerns me is that the Henry VIII powers in clause 3 are retrospective. This is another reason why the valuation process is so critical: if there is not full openness, transparency and consultation, in particular with employee representatives, the Government could in future use the valuation process to withdraw some of the benefits of the scheme or increase the contributions retrospectively. People can sign up to a scheme and pay into it for 20 years, but then be told that the benefits are different—although I think that will be tested in law, because I believe that legally we are talking about accrued rights that are protected under European legislation. The Government do not accept that argument, but it is a critical point. That is why I have tabled my amendments. The Government underestimate the anxiety and fears out there—particularly among trade unions, but also in other organisations—which arise from the lack of confidence in the future management of the schemes in the best interests of employees and members.

Let me turn to my amendments 7 and 8. The Government’s reform was meant to change the nature of the schemes, so that they would be based on career averages, exactly as my hon. Friend the Member for Nottingham East said from the Front Bench. However, that is for a defined benefit scheme, not a defined contribution scheme, yet the Government have not committed themselves to that in the legislation. That is why I have tabled amendments 7 and 8, so that where a scheme is rearranged or staff are transferred into a new scheme, they must be defined benefit schemes, because that is what was promised in the negotiations with the trade unions. It is argued that we are binding future Governments, but all legislation is meant to bind future Governments, and any future Government could revisit this matter. At the same time, we need to try to give at least some security and ensure that the promises given by the present Government are adhered to. That is not much to ask, and it is all my amendments are designed to do.