Police (Detention and Bail) Bill

Michael Ellis Excerpts

Thursday 7th July 2011 Commons Chamber

[Yvette Cooper]

That would have been one way to do it. When the issue came to light last week, we suggested that one option might be to introduce emergency legislation with a sunset clause before considering the subject more widely. The most important thing, given the time we have available, is that the Government have proposed a way to restore the system, and the whole House should support it. I hope that the Government will have further discussions with ACPO about whether any other developments are needed.

As several hon. Members have said, we should never legislate lightly when it takes retrospective effect. Changing the law retrospectively is, in general, undesirable and creates great uncertainty. It threatens natural justice if people end up breaking a law when they did not know of its existence, when it did not exist at the time the act was committed and when they could not have been expected to know that it would exist.

I have thought very carefully about the question and I know that members of the Government have, too. I am clear that a retrospective clause is justified in this case. Indeed, I urged the Minister for Policing and Criminal Justice to include a retrospective clause when I discussed the issues with him last Thursday. In this case, we are simply restoring the law to what we in Parliament thought it was, to what we intended it to be and to that which the police, the CPS and others have been following in good faith for many years. We have made clear our intention and so in this period of uncertainty the police, suspects and others should know what Parliament intends. If we had not made our intentions clear, we would have opened the police and victims up to considerable uncertainty about the prospects for individual cases, especially those under investigation at the moment. It would be deeply wrong for a victim to be denied justice and for the offender to escape on a technicality simply because the crime was committed in the limbo period between 19 May and Royal Assent and the police interviews did not comply with the temporary legal position owing to any confusion.

An even more troubling possibility is that historic cases, in which the standard practice was followed in good faith by the police and CPS, could end up being overturned or dragged back through the courts because of the Hookway judgment. In such circumstances, we should legislate retrospectively but we should be clear that we are doing so because we have considered the seriousness of the issue and that we have made the judgment after serious consideration rather than lightly.

I have some concerns about the process and about why we are doing this now, in such a way. I am concerned about the initial judgment. My right hon. Friend the Member for Salford and Eccles (Hazel Blears) mentioned the judgment of the judge in Salford, which was confirmed by the High Court judge. Judges, not Parliament, interpret the law and it was the role of the High Court judge to come to a view on what the legislation meant. The fact that the judge came to a new view on the interpretation of the law or a different view from experts, such as Professor Zander QC, is still part of the judicial process. It is possible for us to disagree with the judge’s decision while respecting his constitutional role in making such decisions.

My greatest concern is about the final paragraph of the High Court judge’s judgment, which the Home Secretary quoted. He does not simply interpret the law but makes a practical assessment of the impact of his judgment:

“It seems to me however...the consequences are not as severe as might be feared in impeding police investigations in the vast majority of cases. This is simply because in the usual case a suspect returning on bail will either be released because the evidence is not sufficient to warrant a charge or he will be re-arrested under statutory powers because new evidence has come to light.”

I strongly disagree with that practical assessment and the evidence of cases that the police have to handle at the moment disproves it.

[Michael Ellis (Northampton North) (Con)]

That does not tally well with the right hon. Lady’s earlier suggestion that the Home Secretary and others have acted in a dilatory fashion, because the judge himself said in his oral judgment that he did not think that the judgment would have those consequences. Was it not right, therefore, to wait for the written judgment and find out what the consequences would be?

[Yvette Cooper]

No, I disagree. I think that the judge was wrong in that aspect of his judgment. There are serious questions about the fact that there is no sign that he considered any extensive evidence on the practical application of his judgment and about why he did not consider making clear that the judgment should be stayed pending appeal and consideration of the wider evidence. However, that does not go to the heart of the role of the Home Office and the Home Secretary. The Home Office could have done considerable things between the oral statement and the written judgment, rather than simply hoping for the best, which is what it appears officials have done.

Let me turn to the Government’s response. The oral judgment was given on 19 May and Home Office officials were informed soon after that—certainly before the end of May. The Home Secretary and the hon. Member for Northampton North (Michael Ellis) have claimed that they had to wait for the written judgment, and of course the written judgment brings the decision into effect and can provide further clarity, but that does not mean that everybody had to suspend action and judgment until the written judgment was available. Given what Home Office officials should have known from the oral judgment, they should immediately have notified the CPS and the Attorney-General. The Home Secretary did not explain when she discussed the decision with the Attorney-General or at what point the Attorney-General was made aware of the seriousness of the case.

[Michael Ellis]

Does the right hon. Lady not appreciate that, at the time of the oral judgment, it could have related only to the instant case before the judge in question? It was only clear later that it would have a wider-reaching effect.

[Yvette Cooper]

The point is that the Home Office should have prepared. Immediately after the oral judgment was issued, it was possible that there would be concerns and Professor Zander knew enough about the judgment to write a considered view in Criminal Law and Justice Weekly on 17 June. He was clearly extremely worried and on that basis he was already offering advice. Home Office officials should have sought information and should have been concerned even on the basis of the oral judgment.

--- Later in debate ---

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

I, too, will support the emergency legislation, but two questions seem to have been raised: first, what happened; and secondly, what are the implications of the legislation itself? On the question of what happened, there seem to be two different versions of events. The Government version suggests that they acted within one hour and two minutes, and we have heard a lot of support for that view, with Members telling us about the speed of events. Another version suggests that the clock started ticking on this issue on 5 April, when the judgment was made in the Salford court, and that it has been going on for three months. There has been a crucial judgment, albeit after a 25-year gap, about the interpretation of a piece of parliamentary legislation that identifies a drafting error that no one appears to have spotted in 25 years, which I find slightly strange.

[Michael Ellis]

Will the hon. Gentleman give way?

[Steve McCabe]

I will in just a second.

I understand that the Government need to deal with the immediate situation, but I find it slightly strange that we are going to do so by simply sweeping the matter under the carpet, because it is worth holding a debate in the future about how the situation could have occurred.

--- Later in debate ---

[Steve McCabe]

They are queuing up for me, but I will go first to the hon. Member for Northampton North (Michael Ellis).

[Michael Ellis]

Does the hon. Gentleman not realise that the alleged drafting error in the 25-year-old Bail Act has been referred to before in learned texts, and that other judges have used common sense in applying the law as they thought Parliament intended? That is where there has been a departure by the judge in the instant case.