Richard Bacon
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Bill of Rights
Richard Bacon Excerpts(13 years, 8 months ago)
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John Hemming (Birmingham, Yardley) (LD)
I thank you, Mr Bone, and also the Backbench Business Committee, on which I sit, for providing the opportunity to debate this very important issue.
I often find the older laws interesting to look at, and they are all available on the modern websites. On the statute law website, found at legislation.gov.uk, we can find the Bill of Rights 1688, which is sometimes called the Act of Rights 1689. Article 9 of that Bill is on freedom of speech, and says that
“the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.”
Interestingly, that it is often misunderstood to mean absolute privilege, when it in fact means that the courts cannot look at what is said in Parliament, which gives a defence not only against defamation but against contempt of court. Things that perhaps otherwise could not be spoken of, can be spoken of within Parliament because of article 9. It is absolutely crucial to recognise that that is a liberty of the British people: the powers of Parliament, in the body of democracy, to represent the citizens of the United Kingdom are liberties of the British people. Contempt of Parliament and parliamentary privilege are there to protect the citizens of the UK, and of the world more widely, and I shall go into some detail about that later.
Article 13 is about frequent Parliaments:
“And that for Redresse of all Grievances and for the amending strengthening and preserveing of the Lawes Parlyaments ought to be held frequently.”
That clearly gives Parliament two functions, one being the redress of all grievances. The nub of my arguments today is that if Parliament does not know what is going on, for one reason or another, it is somewhat difficult for it to produce any results whereby the grievances are redressed. We face serious problems if Parliament is blinded or deafened by the actions of others.
I have some other laws here, which are important. In the area of family proceedings, people very often refuse to, or are pressurised not to, give information to Members of Parliament. There have been a number of changes over the years. In 2005, a statutory instrument creaked open the door to the family courts, and then there were the Family Proceedings (Amendment) (No.2) Rules 2009, which are important because they made it clear under “communication of information for purposes connected with the proceedings” that a
“party or the legal representative of a party, on behalf of and upon the instructions of that party, may communicate information relating to the proceedings to any person where necessary to enable that party…by confidential discussion, to obtain support, advice or assistance in the conduct of the proceedings”.
This might come as a surprise to some people: Members of Parliament are human beings. The law was opened up very clearly in 2005, and it was made explicit in 2009 that any person is allowed to have information from a party. Article 9 of the fundamental constitutional law of the UK of course trumps statute and statutory instruments, but we have here a statutory instrument that makes it extremely clear that a Member of Parliament may obtain information from a party; for example, from a parent or a child who is aggrieved at their treatment by the family courts. Often children have great difficulty escaping from this strange world; a number of teenagers who have found it very difficult to escape the system have contacted me.
There is another old constitutional law that I would like to refer Members to, the Magna Carta. The Magna Carta 1297 is the version that is in force—in statute. It is rather sad, in some senses, that so little of it remains. A lot of it has been repealed, and only articles I, IX and XXIX are left. Article I is on the confirmation of liberties, and basically refers to the Church of England. Article IX refers to the liberties of London, and as a Member of Parliament for Birmingham I wonder why an article about London and the Cinque ports has not been repealed when so many of the others have gone.
Article XXIX is an important one, on imprisonment contrary to law and the administration of justice:
“NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.”
I emphasise the last sentence of that article, the key to which, as I see it, is that people are equal before the law, and that one’s wealth should not affect how one is seen by the legal system. There are lots of debates going on about access to justice, and last week I raised the issue of the balance between two different cases, and of how the people involved in them were treated. One case involved a particularly wealthy person and the other a relatively poor person, and I will come on to that later because it is important.
This debate is particularly about the position of communication with Members of Parliament, and the right hon. Member for Haltemprice and Howden (Mr Davis) has a very important point to raise in association with that. Even if we did not have the Bill of Rights, it is clear that there are circumstances in which it would be lawful for people to communicate with Members of Parliament. There are other situations, when there are court injunctions or other pressures on people through employment contracts and the like, when it perhaps is not as lawful for people to communicate with their Member of Parliament. I am particularly concerned about situations in which people are bullied and threatened to prevent them from raising their grievances with their Member of Parliament, and there is obviously a question as to where the limits of that lie. I tend to construe it more broadly, in that when information is needed for proceedings in Parliament that should be protected by the law. The law of Parliament is part of the law, even if some solicitors firms do not understand that, such as Withers last year.
Mr Richard Bacon (South Norfolk) (Con)
On that point, and particularly in connection with family law, it is the bullying of constituents that is one of the most offensive aspects of this. In trying to explain to parliamentary colleagues why we sought to hold this debate and what is so important about it, the example that I have given that has most grabbed their attention is that of a social services department saying to a constituent, “If you talk to your Member of Parliament, we’ll make sure you lose custody of your child.” Does that not illustrate vividly the nature of the problem that we are dealing with?
John Hemming
Yes, it is a dreadful abuse of state power to threaten to remove a child from the care of the parents because they deign to speak to their Member of Parliament. That happened to one of my constituents, Andrew France, and I will come to the detailed documentation on that later. I think that is a dreadful thing to do with people.
On the Family Proceedings (Amendment) (No. 2) Rules 2009, I pointed out that it is in fact entirely lawful to talk to anyone. To say, “We will remove your child, because you had the effrontery to raise your concerns about process with your Member of Parliament” is a dreadful thing to do. Parliament should not tolerate that, because it undermines the actions of Parliament. Later, I will come in detail to the example from Australia which demonstrates that it can be interpreted as contempt of Parliament, so Parliament could take action on those grounds to ensure that people’s right to talk to their MP is protected.
Last week, I raised the issue of Fred Goodwin and Lee Gilliland. Everyone tended to concentrate on Fred Goodwin and the banker issue, but I think that the issue of Lee Gilliland is more important. The Gilliland case is slightly complex, and I cannot refer to some things, because proceedings are continuing. However, in the historic proceedings to which I referred last week, he had his mental capacity removed, on his right to instruct a solicitor, on the basis of a report from his GP which was written some five months after his GP had last seen him and which he has still not seen—I spoke to him about half an hour ago.
It took me a little time to get into the issue of mental capacity, when I first encountered it a number of years ago, because it seemed so shocking. Yes, we have the Mental Capacity Act 2005, which specifies circumstances under which people’s capacity can be removed, but I was surprised to find a situation in which someone who seems coherent could be told, basically, “You’re too stupid to tell a solicitor what to do. And, because you are too stupid to tell a solicitor what to do, we will appoint what is called a litigation friend”—one must distinguish between a litigation friend and a McKenzie friend, because people sometimes confuse the two. The litigation friend acts on someone’s behalf. The Official Solicitor is often appointed as litigation friend even though the Official Solicitor ought really to be appointed as a litigation friend of last resort.
With the agreement of the Official Solicitor on behalf of Mr Gilliland, a decision was made by the court. The house he lived in was to be sold, with half the money going to him—roughly £50,000. However, he was to be evicted and, of the £50,000, more than £37,000 would go to his solicitor. Who is protecting Mr Gilliland’s interests? He did not start out as a particularly wealthy individual, then the state came in and said, “You are too stupid to instruct a solicitor, but you can’t see the basis upon which we have made that decision. Oh, and by the way, we are going to take three quarters of the money you might have had, turfing you out of your house and putting you on the streets, and give it to your solicitor.”
I do not see that as treating Fred Goodwin on the one hand and Lee Gilliland on the other hand equally. Fred Goodwin can afford to spend a lot of money on getting an injunction, or even a super-injunction under which someone cannot even talk about him having the injunction. I will come to what I call hyper-injunctions. One of the freedom of speech issues is that media organisations are generally commercial organisations, and there gets to be a point at which it is not worth their while trying to challenge the system and to get information out. With that, we return to the article 9 issue, because our freedom of speech in the House is obviously on behalf of the citizens. We need to know of grievances so that we can raise them and talk about them publicly, so that the citizens of the UK can know. If it costs £20,000 or £30,000 in legal fees to write an article, in most circumstances a media organisation will just give up. The freedom of speech is basically sold down the river, because of the costs of the legal processes.
John Hemming
I very much agree with my right hon. Friend; he is entirely right. People recognise that we in the House act as the last resort in many ways. I will give examples from among my own constituents for whom I have acted in the last resort. We need to stand up for the citizen.
One of the problems with how things have developed, and with all the secrecy rules, is that they seem to act to protect not vulnerable people but those who make money out of the system. That is dangerous, because we then have what Councillor Len Clark in Birmingham talked about as the “penguin mentality”. Basically, whenever there is any criticism—he was citing social workers—they stand like penguins, back to back, on a different continent to everyone else, Antarctica, and they just refute all criticism. Any real problem in the system is then very difficult to deal with.
We will look at the issue of Dr Waney Squier later. Her problem is that the area on which she can argue her case is trapped by the secrecy of the family courts. That is protecting not children but the judicial process from scrutiny. It is about identifying not the children or the parents involved in the case but the rational process by which a conclusion has been reached.
My right hon. Friend the Member for Haltemprice and Howden is entirely and totally right. We need to stand up collectively, and we hope that the Speaker might do as my right hon. Friend requests.
I will now look in more detail at Andrew France’s case. I have some of the documentation with me, including a county court order—for proceedings that have now completely ended, so it is a public document, and there is no issue of privilege. The document is there in the courts. In the recitals, it states:
“upon the first and second Respondents agreeing that they will make no further disclosure in respect of this matter to any third party, including in particular the media and John Hemmings MP.”
It is somewhat surprising that I am such a threat to the system that so much effort will go into stopping one of my constituents speaking to me. He was wrongly imprisoned on a made-up allegation of rape, so he went through a serious process. He won his criminal appeal but he complained about a social worker in the process, so the authorities decided to start proceedings in the family courts. Luckily, an excellent judge junked it in the bin, because it was transparently such nonsense, and everything ran smoothly for the family. However, my constituent was under no illusion that had he not agreed to those recitals in the court order, the council would have taken action—he was told—which would have been to apply for a care order taking his four-year-old daughter into care.
John Hemming
Exactly. The court order is slightly different from that, because it is in the recitals. Some court orders prohibit people from talking to Members of Parliament, but, because it is in the recitals, it implies an agreement. It is slightly more complex, but, in essence, a lot of pressure was placed on him to agree not to talk to me. The threat was that, if he talked to me, they would apply to take his child into care. A note from his barrister, June Williams, said:
“All the advocates stressed to me the danger of Father having any contact with John Hemmings MP”—
I wish she had got my name right—
“(for the Liberal and Democrats).”
She did not get the party’s name right either. I shall miss out a couple of the points that she mentioned, because they are totally untrue, but she continued that he was “scathing” about the care system
“and had been heavily criticised by the Court of Appeal about his involvement in cases. The collective view was that he would do more harm than good. Mr Grove confirmed that he advised Mother not to contact the media again and she confirmed that she would not. I spoke to Father about this, as the parties had prepared the recital to the order about the parents not contacting the media or John Hemming”—
she got my name right that time—
“or any third party about this case. Father was very defensive at first and said ‘No’ and that effectively this was a gagging order,”
which, of course, it is.
John Hemming
I agree with my hon. Friend that it is completely wrong to be made to agree not to talk to one’s MP. I also think that that process of bullying is a contempt of Parliament and that action should be taken by Parliament to deal with it.
The note continues:
“I explained to Father to think carefully about his actions especially the impact on the child”.
It goes on to talk about other children getting hold of this and causing difficulties, but talking to one’s MP does not inherently mean that something will enter Parliament; it merely means getting additional support and explanations. The note goes on:
“Father said that he went to the media because he wanted to clear his name”—
which is fair enough—
“having suffered negative coverage in the media at the time of his trial. I stated that I understood why he did it, but stressed it was the potential impact on his child that he must give consideration to.”
He has been portrayed by the media as a rapist and wants to get publicity that says that he is not. I find it odd that it is thought that trying to get publicity to clear his name would cause problems for his child.
The note continues:
“Mr Grove joined me, whilst I was speaking to Father in the waiting area, and reiterated the danger in Father in having any contact with John Hemming. I advised Father that he must have faith in his legal team, and that contacting 3rd parties such as John Hemming, would not be consistent with working alongside his legal team. I stressed that John Hemming would not assist him any better than his legal team, at the fact finding hearing. I urged him against such further contact and sought his confirmation as to whether he was agreeable to the preamble to the order. Father at first said that he would agree to it but was not happy about it. I stressed that I needed to be certain that he was in full agreement to it, and after Mr Grove had spoken to Father about this, as mentioned above, Father stated clearly that he would agree to it, and appreciated the point that I was making.”
The essence of it is that he has no real choice. If he does not agree to it, the local council, of which I used to be deputy leader, would take action to take his child into care.
On the processes of councils, it is interesting that I have discovered that their senior management and councillors have no knowledge of what is really going on in social services departments throughout the country on a day-to-day basis. There is no real scrutiny in the councils, and the fact that elected officials are in charge of them does not result in any proper scrutiny.
That is one example where it is obvious that action was wrongly taken to bully somebody into agreeing not to contact me. I have to be very careful with the example of another of my constituents, because proceedings are continuing, so I shall have to refer to historic information. It may be best if I do not name this constituent, because it will save difficulties. She is 26 years old and has mild learning difficulties. She came back to Birmingham, having been separated from her family 10 years ago. A consultant psychiatrist’s report quotes the police in relation to the situation faced by my constituent, who was on the electoral role in my constituency for the general election. I should also add that Acocks Green is part of my constituency and it has an Iceland shop.
The report states:
“Police records made available to me via the instructing Solicitors provide details of the incident on 8/10/09, reported as an abduction.”
They say that she was abducted by her family. The report states that the description from the police was that she was
“out shopping in Acocks Green Village, with 2 other residents”
from her home. It goes on to say that, while in Iceland, she
“saw one of her sisters. The sister asked the carer for contact details but this was refused. She left the shop in tears. In the aftermath of this incident”
she
“and her party were walking away from ‘Iceland’ a silver car pulled over, containing”
her “two brothers.” The report goes on to say that
“it is described in the Police report that when the silver car pulled over”
she
“ran and hugged one of the males believed to be her brother, before getting into the car and being driven away. A history of”
her
“being the subject of an allegation of forced marriage was mentioned. Concerns were mentioned in the Police report that family will try to take her out of the country,”
which is refuted by the family.
The report continues:
“It was stated ‘the Airport Unit at Birmingham Airport was informed so that any immediate attempts to remove”
her
“from the country could be identified.’
It goes on to say that she
“was found by the Police at her mother’s home address in Sparkhill, Birmingham. A large number of family members were present and a party atmosphere was described. It was stated that”
she
“‘was unequivocal that she wished to remain with her parents’ and when it was explained by police that it was not possible but she could remain with her sister she was very excited. It was also stated ‘it was established that there was no legal authority to remove”
her
“to the care of Social Services and no authority to use force to do so.’”
She was separated from her family for 10 years and found them near where they live. She ran into the car with her brothers, went to her parents’ house and there was a party because they had found her after 10 years. They went to court and a social worker from Birmingham—
John Hemming
The case has not been active to my knowledge since 2006. It is definitely not active now. I think the case ended in 2006—the date of the injunction—partly because of the trap that the individual concerned has found himself in.
Mr Bacon
It may assist hon. Members if I draw my hon. Friend’s attention to the Select Committee on Procedure’s 2004-05 report on the sub judice rule. On page 19, that report makes it clear that the purpose of the sub judice rule is to protect active proceedings. It also makes it clear that criminal proceedings cease to be active when they are concluded by verdict and sentence or discontinuance, and that civil proceedings are active when arrangements for the hearing—such as the setting down for a case for trial—have been made until the proceedings are ended by judgment or discontinuance. If there has been a judgment or a court order, there can be no question of the matter being sub judice.
John Hemming
I thank my hon. Friend for that. In fact, in this case, that goes even further because there is nothing going on. Not only was there a judgment or court order injunction in 2006, but nothing has been going on since in the courts— although there may have been other things going on in the outside world in relation to the matter. Returning to paragraph (1)(a) of the document, it states:
“The third parties with whom the Defendant (and/or such third party) must not communicate in that regard include (but are not limited to):
(i) A or any other owner or operator of ships.
(ii) The United States Coastguard or any other coastguard or similar organisation;
(iii) B or any classification society;
(iv) Members of parliament, journalists and lawyers, with the exception of lawyers or legal advisors instructed for the purpose of assisting his defence of these proceedings.
(2) The Defendant (and/or such third party) must not communicate to third parties (without prejudice to the generality of the terms of the Injunction):
(a) The existence of these proceedings;
(b) The existence or terms of the Injunction;
(c) The fact that the potable water tanks of C and D were recoated;
(d) The fact that the potable water tanks of other vessels (such as the E and F) were also recoated.
(e) Anything to do with the potable water tanks of any of the above-named vessels, their coating or recoating which he has learned as a result of these proceedings, including without limitation the content of paragraphs 5 to 7 of the first affidavit of G.
(f) Any speculation that the illness of any individual (including without limitation the collapse of H) was, has been or will be brought out by the chemical composition or the chemicals present in the coating of the potable water tanks on the C.”
There is a lot of stuff in that. It goes beyond a super-injunction; it is what I would call a hyper-injunction. It is an injunction in a case where someone is not even allowed to refer to the existence of these proceedings. There is the desire not to have the matter mentioned to Members of Parliament. There is also the interesting reference where it says
“with the exception of lawyers or legal advisors instructed for the purpose”.
I believe that the person concerned got a two-week suspended sentence for talking to a lawyer about whether he could have it on a no win, no fee basis. So there is a real question about whether he can get a fair trial on this basis. One of the things to which he is not supposed to refer is the fact that in the potable or drinking water tanks of these vessels, the paint was defective. In certain circumstances, the coating could break down and release small quantities of a toxic substance into the water contained in the tanks. What we have, therefore, is passenger vessels trundling around the world with potentially toxic substances being released into the tanks, although to be fair, the problem with the coating in the tanks is being fixed; but one of those who worked on the tanks collapsed as a result. We also know that the situation continued.
The reason why I have not named people is simple: I do not know the nature of the toxins or whether they are serious, and they might not be. However, I am greatly worried about transparency, and I might pass these details to a Committee of the House, if there is one that wishes to look at them. From a health and safety point of view, we want to think that the water we are drinking is safe and that it will not cause health problems; the difficulty in this case is that we do not know. What we do know is that corporations used the massive force of the law to gag an individual and truss him up so much that he could not really challenge the process.
Mr Bacon
What my hon. Friend has just said is really quite extraordinary. As I understand him, he is saying that a court in this country made an order with a whole load of provisions in it. What particularly attracted my attention, however, was that it prohibited someone from talking to a Member of Parliament and from referring to the existence of the proceedings. When one thinks of secret courts, one thinks of unsavoury regimes such as those in Burma, Cuba, Hungary in the 1950s or Stalin’s Russia, but one does not think of the United Kingdom. How can a judge feel it appropriate to make an order making it unlawful—supposedly—to refer to the existence of proceedings?
John Hemming
The person in question could actually be jailed for telling his MP that he had been in court case No. 773. What is so sensitive about that? In practice, even family court proceedings are not that confidential. I think this case was in the Commercial and Admiralty court. My first question is not just how the hell this could happen—I apologise for the non-parliamentary language, Mr Bone. How does this happen? How many more of these cases are there? How many secret cases do we have in this country, with people being banned from even saying that the case exists?
In the past couple of days, Lord Neuberger has said that super-injunctions are dubious. There is an argument for a temporary super-injunction from time to time in a fraud case so that money can be chased around the world, but it is complete nonsense to have something that is still in force almost five years later and whose existence cannot even be mentioned outside parliamentary proceedings. In this case, there is also the health and safety issue. I do not know how serious it is, although now that the case has been mentioned in parliamentary proceedings, I will send people a copy of Hansard, ask for their comments and see what explanation they give. If I can find an appropriate Committee in the House to pass the details to, I will do so.
This is not the sort of thing that should happen. This is not about transparency and accountability, but about using lots of money. We come back to Magna Carta and somebody with a lot of money. We are talking about various companies with lots of money gagging some poor individual. Where is the equality of arms in that? Where is the idea that we will not sell justice? The courts may not be selling justice, but the legal process as a whole is not really very balanced if this is the sort of thing that goes on.
However, let us move on. I hope I have given enough examples and that everyone is happy, but I think we should move on to the more general points about contempt of Parliament. As colleagues know, the House of Commons has the power, by referring cases to the Standards and Privileges Committee, to deal with contempt of Parliament. In fact, the last example came about at my suggestion. I moved a motion to refer someone to the Committee last year, when Withers threatened me with legal action unless I agreed not to say something in the House. That was an obvious and very straightforward contempt of Parliament.
There is an interesting case involving the Member for Preston in the Parliament of Victoria in Australia, and I have a copy of the Legislative Assembly Privileges Committee report if any hon. Member would like to see it afterwards. The case is interesting because it involved threats of legal action against a constituent for passing information to a Member of that Parliament, with a view to preventing that Member from speaking about an issue there. I think we are bang to rights, because the case provides exactly the precedent that would be necessary to justify using contempt of Parliament proceedings against those who wish to prevent people from talking to Members of Parliament in the UK.
The issue is quite straightforward; in fact, it has been looked at in the domestic courts to determine the extent to which communications with Members of Parliament are potentially privileged. In the case of Rivlin v. Bilainkin, the judgment, which was delivered on 18 December 1952, concluded that a communication with a Member of Parliament is not automatically privileged, even if it is handed over in Parliament. It is the institutions that matter; in that respect, we constitute Parliament just as much in this Chamber as in the main Chamber. If something is not connected with proceedings in Parliament, it is not privileged; if it is connected with proceedings in Parliament, it is privileged. That obviously gives the House control over which communications with Members of Parliament are privileged and protected by article 9.
Mr Richard Bacon (South Norfolk) (Con)
It is a pleasure to take part in this debate, Mr Bone. I was very keen to do so after discussions with my hon. Friend the Member for Birmingham, Yardley (John Hemming), because of some of the things that he had described about the bullying of constituents. The idea of a debate immediately commended itself to me because of instances in my own constituency. You will be pleased to hear, Mr Bone, that I shall not dwell in great detail on any of them, and also that the particular instance I had in mind was nothing like as severe as those mentioned by my hon. Friend the Member for Birmingham, Yardley.
I had a case where two parents came to see me about their child, who was being bullied in school. The child had an autistic spectrum condition and was also visually impaired. Those were contributing factors to his being bullied at school and the parents wanted me to help to sort it out. On a subsequent occasion, at a meeting with the school, the parents were told that it would probably be better if they did not go back and see me again. Naturally enough, I took umbrage at that, on the same basis as the stories told by my hon. Friend the Member for Birmingham, Yardley. In substance, however, it did not make much difference, because in essence I ignored the school’s request, which it had not made to me. I continued to help the parents, continued to advocate on their behalf and, indeed, met with the school. The issue was—how can I put it?—improved, if not fully solved satisfactorily.
The principle of constituents being told that they should not contact Members of Parliament is deeply offensive to me, as I think it would be to most Members. The principle that a court of law should order someone not to contact their Member of Parliament, which I was not aware of until I had detailed discussions with my hon. Friend, is even more offensive. I contend that, according to the Bill of Rights, it is not correct or possible for a judge to make such an order, because the ability of a constituent to contact an MP so that they can help to deal with a grievance, whatever it is, is of the essence—it is fundamental.
John Hemming
Does my hon. Friend agree that making such an order is, in effect, an attempt to interfere with the workings of Parliament by preventing Parliament from obtaining information?
Mr Bacon
Yes, I absolutely would. I am no constitutional lawyer, but my belief is that an English judge trying to make such an order is in contempt of Parliament, which is, after all, a court. I know that people tend to roll their eyes when the subject of the High Court of Parliament is raised, but the fact is that it is a court, and that, ultimately, it has sovereign power in this country.
The subject of parliamentary privilege has been raised on several occasions, and I, too, shall refer to it. The phrase “parliamentary privilege” is particularly unfortunate, especially in the modern world. The word “privilege” has almost entirely pejorative connotations. I prefer to call it the right of MPs to speak up for and defend the British people, which I think is a much better way of conveying what we mean by parliamentary privilege. In my parliamentary career, I have certainly taken advantage of my right as an MP to use parliamentary privilege to speak up for and defend the British people in my work.
A particular case came to my attention because of paperwork that was sent to me by an official in Her Majesty’s Revenue and Customs. The dossier showed that people from eastern Europe—criminal gangs, in fact—were coming to this country, getting employment in low-paid jobs and then applying for tax credits. Once the tax credit claim had been made and a British bank account had been set up for the payments, the fraudsters returned to their home country. They left their employment but continued to receive tax credit payments which were extracted using a cash card in various points east—in different cities in eastern Europe. In some cases, the fraudsters managed to make several thousand pounds, which they used to buy homes in parts of eastern Europe where property is much cheaper: Slovakia, parts of Romania and elsewhere.
When I was sent the information, I thought that it was in the public interest that something should be done, and that that was part of my job as an MP. I have sat on the Public Accounts Committee since I was elected in June 2001. Indeed, my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) was the Chairman of the Committee on the day that I first attended a meeting of it. I have had great concern throughout my parliamentary career for the proper use of public money, and for ensuring that it is not squandered.
I thought that the right thing to do was to make sure that the information came into the public domain, but I was careful to ensure that nothing might be disclosed that would impede any investigation of what was happening, or disclose to anyone how it was that I had come by the information, other than to say that it was sent to me by an official. I certainly did not want to disclose who the official might be. I had his name and mobile phone number on my Blackberry and other information that would have disclosed his identity, but I felt safe in the knowledge that were I simply to send the dossier to the Comptroller and Auditor General at the National Audit Office and ask him to investigate it, things would happen, something would be done and the fraud would be stopped. Indeed, that is what happened.
Imagine my surprise to find that, in doing his job, another MP—a colleague of mine to whom my right hon. Friend the Member for Haltemprice and Howden referred a moment ago—who is now the Minister for Immigration was arrested by the police. That caused me not a little concern. I remember at the time that my hon. Friend’s office was ransacked by the police in what I regarded as an unlawful and unwarranted search—in fact, unlawful search and seizure of his possessions and documents—and that his Blackberry was taken away from him. One can imagine what I started to think: what if that happened to me? What if my Blackberry were taken away from me, with the telephone number on it of the HMRC official who had given me important information which I thought it was my job to disclose, in the public interest?
For that reason, I was deeply perturbed by the arrest of my hon. Friend. It breached some important principles. One of the most important is that there has to be a certain amount of agreement. Our political system can operate only if there is agreement between different political actors and parties on certain fundamentals, and one of them is that the Government of the day shall not use the resources of the state to harry and intimidate their opponents. Indeed, I was pleased when Her Majesty’s inspectorate of constabulary produced its report, “Review of the Lessons Learned from the Metropolitan Police Service’s Investigation of Home Office Leaks”, in which it stated:
“Departments and the Cabinet Office should have the capability to deal with the matter”—
the leaks from the Home Office—
“and should not have to rely on the police. The smooth running of Government is an understandable concern but not an obvious matter for the police.”
When the former chief constable of the British Transport Police, Sir Ian Johnston, undertook his inquiry at the request of the Government, he also found that the actions of the Home Office and of the police had not been proportionate. He said that the leaks amounted to embarrassment for the Government but did not threaten national security.
The whole case was peculiar to anyone who had followed the legislation in the late 1980s which put the security service on a statutory basis and separately redefined the law of official secrets. A significant purpose of the legislation was to remove from the ambit of the criminal law whole swathes of Government information, so that the wrongful disclosure of information by an official to someone else would not itself be a criminal act but would be a civil matter that would be dealt with under the law of employment contract. That was a welcome development. One would not have expected that disclosures of the kind that were made could possibly have led to an arrest for potential criminal action because there was no criminal action, as was subsequently shown.
I certainly would not have expected to have the police knocking on my door, looking for papers, because of what I had been doing in respect of the tax credits fraud committed by people from eastern Europe. Following the scandal of the arrest of my hon. Friend the Member for Ashford (Damian Green), I hope that we have taken a step back and recognised more rightly where the parameters should lie.
John Hemming
Would my hon. Friend agree that as the legislation aimed to protect whistleblowing, given that MPs are the whistleblowers of last resort, there should be greater protection of disclosures to MPs?
Mr Bacon
I absolutely agree. The role of an MP is to be an advocate of last resort. We all know that people come to us when they do not know where else to turn. Sometimes, sadly, they come to us too late, when there is nothing that we can do. Sometimes we see in our surgeries cases about which we think, “If only they had come a bit sooner, we might have been able to act.” I had that happen with a farmer in my constituency who had been made bankrupt by the time he came to see me, by which time it was too late to do anything for him. My hon. Friend is absolutely right. Because of the nature of an MP’s work, and the nature of the contact between a constituent who has a grievance and the MP, we should get extra protection.
I mentioned that I would speak about parliamentary privilege, or the right of MPs to speak up for and defend the British people. A quite different case involved an approach made to me by people who were concerned about what was happening at the Manchester College of Arts and Technology, or MANCAT, as it is better known. They approached me in my capacity as a member of the Public Accounts Committee and because of my known predilection for detestation, if one can have a predilection for detestation—my known dislike of the waste of public money might be a better way of putting it.
The case involved MANCAT, which has subsequently merged with City College Manchester, and basically concerned investigations into management practices which had been hampered because MANCAT officials were alleged to have destroyed auditable documents and had reached financial settlements with certain ex-members of staff on the condition that they signed confidentiality agreements—gagging clauses—in their settlement agreements, which were obviously paid for with public money.
The point at issue was that staff felt that they were under pressure from the college to falsify student attendance registers and other funding-related paperwork in order to enable MANCAT to claim extra money from the then Learning and Skills Council. Indeed, one witness was planning to explain the extent of the malpractice at an employment tribunal where she had been in the process of seeking redress for constructive dismissal, but she was offered a financial settlement with a gagging clause, so she could not easily take the matter further.
As a result of the privilege granted to Members of Parliament, I was able to draw those matters to public attention in two Adjournment debates over a period of months. The Guardian later wrote an article on 27 January 2009. It was headed, “College faces fraud claims” and sub-headed, “A Manchester institution stands accused of altering registers to claim extra funding, reports Andrew Mourant”. In my view, and I suspect in the view of most hon. Members, such matters should be brought to public attention. My point is that that would not have been possible without parliamentary privilege and the right of Members of Parliament to speak up for and to defend the British people. That is why I feel so strongly about the matter.
Mr William Cash (Stone) (Con)
I totally and absolutely endorse what my hon. Friend is saying. I was much involved in the Damian Green affair—
Mr Cash
I accept your point, Mr Bone, and will refer to the matter of my hon. Friend the Member for Ashford (Damian Green). Does the Minister worry that there are moves afoot to adjust, in the light of political correctness, the so-called role of the Member of Parliament and degrade it? Are they not missing the biggest wood for the biggest trees by not realising that the Member of Parliament, who is elected by voters and who, if given privilege and using it responsibly, is the best possible defence for the right of the individual to obtain the protection that they need through that privilege, not for our sake but for theirs?
Mr Bacon
My hon. Friend is absolutely right, and that is why I labour the point that “privilege” is an unfortunate word. It is better to speak of the right of Members of Parliament to speak up for and to defend the British people, because that is what we are talking about. My hon. Friend is right that those who want to chisel away at the rights of Members of Parliament are chiselling away at the rights of the British people.
At the time of the arrest of my hon. Friend the Member for Ashford, I received a number of e-mails from people who were under the impression that I, as a Member of Parliament, thought that some people, including Members of Parliament, should be able to break the law, and that we were somehow above the law. That was another aspect of the unfortunate phrase, “parliamentary privilege”, because that is how they had understood it. It surprised me—I had always understood it in the terms used by my hon. Friend the Member for Stone—to realise that the majority of people had put a completely different connotation on it. My hon. Friend the Deputy Leader of the House is listening to this debate, and perhaps Parliament should consider the whole question of what we call such things. It is misleading, and it is important that we understand what we are talking about.
One of the stupidest things I ever heard a journalist say was when someone was defending The Daily Telegraph sting, when Members of Parliament were secretly recorded in their surgeries. I thought that that was an outrage, as did many other people, including many in the media who thought that it was a step too far. I did not catch the journalist’s name, but when trying to defend the sting he said on the radio, “Well it’s not exactly the confessional.” I remember thinking at the time, as I shouted at the radio, as we sometimes do, that that is exactly what it is.
All Members of Parliament know that it is a fairly common experience for people to come to our surgeries and to burst into tears. Last time that happened to me was the week before last, not last week, but two weeks ago. It happens quite frequently, because when dealing with constituents, we are often dealing with them as an advocate of last resort when they have nowhere else to turn. Sometimes they come with a supporter—a friend—to help them, because they do not know whether they will get through it and whether the Member of Parliament will be helpful or a scary and intimidating figure of authority.
I have had people come to see me who looked completely balanced and calm, and in full possession of their faculties, only to discover when I said the wrong thing that I triggered a wave of emotion about things that had happened to them. From being perfectly collected, the constituent would suddenly break down in tears. It is exactly a confessional. I can think of a range of hypersensitive cases at my surgeries involving child custody, marital breakdown, allegations of paedophilia, armed robbery, allegations of corruption, and so on, and other hon. Members will have had similar experiences. Our ability to help people in desperate situations is what we want to protect.
Mr Cash
Does my hon. Friend accept that journalists are liable to be at the rough end of this, because of certain aspects of investigative orders, European arrest warrants and so on? Here we go again on the European issue. The plain fact is that the defences that are available through Members of Parliament to protect the public include invasion from external legal requirements that are imposed on us and undermine our ability to carry out our duties. That includes the Bill of Rights and a whole raft of other things. People may find that funny, but it is deadly serious, and the more they laugh, the more stupid they look.
Mr Bacon
I would never say of my hon. Friend, “There he is, going on about the European issue again”, and I certainly do not intend to do so today. He is right. What exercised me most in the recent debate that the Backbench Business Committee held in the main Chamber on prisoners voting was not whether prisoners should have a vote but, as my right hon. Friend the Member for Haltemprice and Howden said in that debate—sadly, he is not in his place at the moment—the second of the two main points at issue. The first was whether prisoners should have a vote; the second was who should decide. As he pointed out at the time—I subsequently read the judgment of the European Court of Human Rights—the court misinformed itself. It said things in its judgment about why it thought prisoners in the UK should have a vote that were factually inaccurate. I have a lot of sympathy with what my hon. Friend the Member for Stone says.
I do not want to detain the House much longer, except to say that, as my hon. Friend the Member for Birmingham, Yardley said at the outset, if Parliament is blinded or deafened by the acts of others, it cannot see or hear all grievances, and it is very clear from the Bill of Rights that one of our purposes is to be able to see and hear all grievances—I emphasise “all grievances”—and to do something about them. If Parliament cannot see or hear all grievances, it cannot seek to remedy them.
The whole development of English constitutional thought owes a great deal to the word “remedy”. The history of administrative law in this country and how it has grown over the past 300 years shows that the seeking of a remedy was the point at issue. When our constituents come to us with a grievance, they are seeking a remedy. The connection and the relationship between us and our constituents is a sacrament. It is something that we must work hard to protect; it is not something that we can take for granted. We must uphold it, cherish it, and protect the right of Members of Parliament to speak up for and to defend the British people.
Helen Jones
If the hon. Gentleman allows me to proceed a little, perhaps I can touch on the issues that he raises, but I want to keep my remarks to the subject of the debate.
One reason why becoming a Member of this House confers huge privileges on us all is that it enables us to act on behalf of our constituents. To be able to do that effectively, as several hon. Members have said, Members of Parliament must have access to information. A number of cases have been raised today, and many of us have had experience of hospitals, schools sometimes and councils trying to deny hon. Members the information that they request. In my experience, that is normally fairly easy to deal with, although the cases involving the courts are much more complex. I hope to be able to come to those in a moment.
Hon. Members know that they must use the protection granted by parliamentary privilege sparingly and not for their own advantage, but use it they must if it is necessary to right a wrong or to get justice for a constituent. Since I came into the House, I have seen a number of examples of hon. Members rightly taking up issues on behalf of their constituents and using parliamentary privilege to do so, because that is the only way to get something done.
If I may speak anecdotally, I have had experience of that myself. Not long after I came into Parliament, I felt it necessary to initiate an Adjournment debate about a charity that I felt was not operating properly. I came under huge pressure from the people running that organisation, but I felt that it was necessary to do that and to use parliamentary privilege to do it, because I believed that the people who were supposed to be being looked after by that organisation, many of whom suffered severe learning difficulties and did not have friends or family to speak up on their behalf, were being done out of their rights. Many other hon. Members will have come across cases such as that. At some point or other, we have all known of constituents who have been told that they cannot or should not approach their Member of Parliament. I say gently to the hon. Member for Birmingham, Yardley that I have known councils and public bodies tell people that, and he must have known of it, too. I have also known Liberal Democrat councillors tell my constituents that they should not come to see me.
A case can probably be made for educating people, but we certainly need a clearer definition. Indeed, the rights of Parliament need to be made clear to many who work for public bodies. In these circumstances, I normally find that a fairly stroppy letter from me—I can write very stroppy letters when I need to—usually puts the matter right. However, some of the cases that we have heard of today are much more serious.
We have to face up to the difficulties of interpreting article 9 that arise simply because of its age. Parliament has developed and changed since 1688. It would be strange if it had not. We now live in a multi-media age, which covers aspects of communication that were not known when the Bill of Rights was drafted.
Many Members would be surprised to learn the limits of parliamentary privilege. For that reason, a review of parliamentary privilege was undertaken by a Joint Committee in 1999. The Committee drew attention to the fact that although Members are not exposed to any civil or criminal liabilities in respect of what they say and do in the course of proceedings in Parliament, there is no comprehensive definition of what “proceedings in Parliament” covers. Equally, there is no proper definition of what constitutes a place “out of Parliament”. That needs to be tackled.
It is generally accepted that proceedings in Parliament are covered by the formal proceedings of the House and its Committees and any documentation directly associated with those proceedings, but there are grey areas around that, as the hon. Member for South Norfolk (Mr Bacon) noted about the documents that he had received. The Committee said that article 9 needs clarification. It clearly does, in light of Members’ experience and given what we have heard today.
Helen Jones
The hon. Gentleman touches on an important point. I am a great defender of this House and of Members of all parties having the right to carry out their functions properly. Any review should strengthen the work of Members of Parliament, not undermine it.
The Committee believed that the general principle of article 9, which prohibits the examination in any court of parliamentary proceedings, should be confirmed. It also believed that three exceptions should be made to that general principle. That is something that the House will have to consider in due course.
First, the Committee believed that nothing in article 9 should prevent proceedings in Parliament being examined in court in so far as the examination related to the interpretation of an Act of Parliament or subordinate legislation. That would enshrine in statute the decision of the court in the case of Pepper v. Hart; that case made many Ministers much more careful about what they said in Committee and on the Floor of the House, because their words could be used to help the courts consider what purpose Parliament intended for an Act.
Secondly, the Committee suggested that nothing in article 9 should prevent parliamentary proceedings being used in court for the purpose of judicial review, or in other court proceedings where a Government decision was a material factor. That is not to question the decision itself; again, it is about interpreting the decision.
Thirdly, the Committee believed that courts should be able to examine parliamentary proceedings when there is no suggestion that anything forming a part of those proceedings is untrue or misleading, and—the “and” is very important—there is no question of legal liability.
I suspect that these recommendations, especially the last, will provoke hours of debate when we come to the privilege Bill, but other matters will probably need to be considered as well. The first is the status of Members’ correspondence, particularly that between Members and Ministers about constituency cases or proceedings before Parliament. At the moment, that is not covered by privilege. As we do more and more of our work through correspondence—not everything is done on the Floor of the House, as it was in 1688—the House will need to consider carefully how to deal with it.
The second matter is correspondence with Members of Parliament, a subject raised by the hon. Member for South Norfolk. It is clearly difficult to get the drafting right in such cases. Taking the two extremes, one wants to protect genuine whistleblowing and disclosure without protecting those who write to accuse their neighbours of all sorts of crimes but who have no evidence.
The third matter that we shall have to deal with is defining proceedings in Parliament that are placed “out of Parliament”, and the replacement of section 13 of the Defamation Act 1996. The Joint Committee recommended a new procedure, allowing the House to waive article 9 in appropriate circumstances. Again, that allows Members to defend themselves in defamation proceedings, and we have seen cases like that in past years.
There are serious matters to be considered. I know that the hon. Member for Birmingham, Yardley has already had a case referred to the Standards and Privileges Committee, in which a law firm was held to be in contempt of the House for telling him not to repeat something in the House. I confess that I do not understand how a firm of lawyers could ever draft a letter suggesting that; it is first-year law stuff. It seemed to take the firm an awfully long time to discover its error, but in the end it apologised unreservedly to the House.
The hon. Gentleman and others raised various important matters. One is that in order to redress grievances Members of Parliament need access to information. The hon. Gentleman was right to say that the family courts are opening up, and that information can be given to Members of Parliament with the agreement of the parties concerned, but it is often not recognised. Another problem, when minors are involved in proceedings, is the question of who is able to give consent on their behalf. There is also the question of bullying constituents, and Parliament needs to consider that very carefully. As I said earlier, such matters are often dealt with swiftly; but if they go beyond that, Parliament needs to consider carefully people’s right to consult their MP.
Helen Jones
First, Parliament needs to define what it wants to do. The question of privilege is complex. Although I might disagree with the hon. Gentleman on numerous issues, I would defend absolutely the right of any of his constituents to consult him whenever they wished to do so, as I would for any other Member of this House.
Another matter of concern was raised today—the role of the courts and of court orders when the preamble to the order or the order itself prevents people from speaking to their Member of Parliament. That is a serious issue, which the House needs to consider in some detail. Like the hon. Member for South Norfolk, I have great concern about whether such an order can stand in law. None the less, I understand that in some cases, particularly family cases, the pressure is on people to agree to such a preamble.
The hon. Member for South Norfolk asked how information coming to MPs should be protected. Many of us remember the case of Clive Ponting, who was tried for giving out information about the sinking of the Belgrano. His defence was that he had given the information to a Member of Parliament.
Mr Bacon
I remember the case very well because I wrote a book about it. Unfortunately, I was not able to persuade a publisher to publish it, but that is another matter. When my papers are published, it will come out. Ponting’s defence was that he communicated the information to a person to whom it was, in the interests of the state, his duty to communicate it. That was the point; not that it was a Member of Parliament, although it was, of course, the marvellous Tam Dalyell to whom he communicated it.
Helen Jones
I had not quite finished my sentence, but the hon. Gentleman is right; Ponting said that it was in the public interest to communicate the information. Whether or not that defence was sound, the jury simply refused to convict him.
Mr Heath
My hon. Friend brings me on to a very important point about the attitude of the House to date. He is eager to change that attitude, but the House has not yet shown a predilection, to use his own word, to do so, because in the past the House itself has not regarded attempts to interfere with or to frustrate a constituent’s communication with their MP as a breach of privilege. “Erskine May” records cases where threats have been made against a constituent by his employer in respect of communications with the constituent’s MP and either the House has declined to refer the matter to the Standards and Privileges Committee or the Committee has found that the actions alleged did not amount to a breach of privilege.
My hon. Friend addressed the situation in Australia, where the position in the state of Victoria is slightly different from that here. There was a 2006 case in the Parliament of Victoria, in which the Parliament upheld a privilege complaint from Michael Leighton, the Member for the electoral district of Preston. In that case, the complaint was that a constituent who provided information to Mr Leighton relating to an issue that he had previously raised in the Parliament later received a solicitor’s letter threatening legal action if Mr Leighton repeated certain allegations in the Parliament. That illustrates that there might be particular circumstances in which interference with communication between an MP here and a constituent might be regarded as a contempt of the House, although it does not demonstrate that communications between MPs and constituents should generally be regarded as being protected by parliamentary privilege.
However, there are two points that we must remember about the Victoria case. First, the threat to take legal action against the constituent was specifically in respect of any allegations that might be repeated by the Member in the Parliament of Victoria and it was therefore an indirect attempt to constrain the Member’s freedom of speech in the Parliament. I have to say that that bears some level of similarity with my hon. Friend’s case against Withers, where the House acted quite properly in his defence, or perhaps it would be more correct to say that it acted in defence of his constituent.
The second point, or rather the second difference between the situation here and the situation in Australia, is quite important in the context of this debate. It is that parliamentary privilege in Australia is defined in the Parliamentary Privilege Act 1987, so Australians do not rely on the Bill of Rights as we do. In addition, there is a definition of “proceedings” in that Act, which is
“all words spoken or acts done in the course of, or for the purposes of or incidental to, the transacting of the business of a House or of a committee.”
I think that my hon. Friend is arguing that we ought to have some similar provision here and we will need to look at that issue when we consider the matter of parliamentary privilege more widely.
Mr Bacon
I am listening with great interest to the Deputy Leader of the House. There is an article 13 point here, which is that the Bill of Rights says that Parliament should “frequently” meet
“for redress of all grievances”.
Is it not an axiom of that, in effect, that Parliament can only do its job of redressing “all grievances” if MPs know about “all grievances”, and therefore that communications that are intended to ensure that MPs do know about “all grievances” are inherently bound up with the Bill of Rights?
Mr Heath
I hear what the hon. Gentleman says and I have some sympathy with what he says. However, I have some difficulty with the interpretation of article 13 of the Bill of Rights. I say that not as a constitutional lawyer, but as someone who is making the simple observation that article 13 of the Bill of Rights is headed, “Frequent Parliaments”, and therefore it seems to me to that article 13 is inherently about the frequency of Parliament rather than the reason for holding Parliaments frequently, which is
“for redress of all grievances”.
It is the emphasis within article 13 of the Bill of Rights that I am addressing. Having said that, we are talking about a 1688 Act and it would be very surprising indeed if it was construed in 1688 in exactly the same way that modern eyes construe it. Therefore, I do not want to replace centuries of jurisprudence on the subject with my lay observations today. However, I hear what the hon. Gentleman says.
I want to move on to Parliament and the courts, because a lot of what my hon. Friend the Member for Birmingham, Yardley had to say was about the relationship between Parliament and the courts. Yet again, I enter the caveat that as a member of the Executive I need to be careful about what I say about that relationship and I hope that hon. Members will understand that.
My hon. Friend the Member for Birmingham, Yardley referred to circumstances in which parties to court proceedings are forbidden to talk about them, either because of a specific injunction to that effect or, as in the case of certain family court proceedings, because proceedings are conducted in private, for example in the family court or the Court of Protection. That would not prevent a Member from raising in the House matters that it would be a contempt of court to raise elsewhere. We saw that in the recent Trafigura case, in which I had an interest. I was clear about what Parliament’s position should be, and I am happy that that was supported by others. If proceedings had been concluded, the House’s sub judice resolution would not necessarily prevent such matters being referred to.
The crux of the issue is the degree of legal protection offered, not to my hon. Friend the Member for Birmingham, Yardley were he to raise the matter in the House—as he has done this afternoon—but to an individual who discloses information to their Member of Parliament. The extent of that protection is less clear, as in many cases it depends, as we have heard, on qualified privilege. In family proceedings, the Family Proceedings (Amendment) (No. 2) Rules 2009 include certain exemptions about the disclosure of information, including in rule 11.4(1)(d), which provides that a
“party or the legal representative of a party, on behalf of and upon the instructions of that party, may communicate information relating to the proceedings to any person where necessary to enable that party…to make and pursue a complaint regarding the law, policy or procedure relating to a category of proceedings to which this Part applies.”
However—that is a significant “however”—I emphasise that that is a general rule, which is subject to any direction of the court, and the court may direct that such disclosure, though generally allowed, should not be allowed in certain cases. That, I think, is the circumstance to which my hon. Friend refers.
I agree with the many Members who have said that an individual’s right to approach his or her MP should be regarded as an essential part of the democratic process. However, we need to consider how to deal with cases in which one person’s right of access to their MP could interfere with the rights of others, including the right to a fair trial and the right to privacy. There is no point in Parliament making laws conferring decision-making powers on the courts, if an individual Member can vitiate those decisions by disclosing on the Floor of the House information that might fatally undermine their purpose. For example, if a court orders that the identity of a party to legal proceedings should not be disclosed—usually because it would render the proceedings nugatory—Members should think very carefully before using the auspices of parliamentary privilege to subvert such a judgment.
The guiding principle must be one of comity: the House and its Members will respect the jurisdiction of the courts, and the courts will not trespass on to territory that is properly occupied by Parliament. If Parliament collectively believes that some injustice arises from how the courts apply the law, it is open to Parliament to change the law. There is no need to use the blunt instrument of parliamentary privilege as a battering ram with which to beat the courts.
If there are deficiencies in family court proceedings, my hon. Friend ought to seek to amend those rules, in the first instance, or the statute under which they operate, if he feels that they are ineffective in allowing him properly to represent the interests of his constituents.
Mr Heath
I hear what the hon. Gentleman says. He talks about the European Court of Justice. I thought that he was going to talk about the European convention on human rights, because it could be argued that the way these matters operate is outwith ECHR provisions, other than the fact that we are using the licence within the relevant article in the convention, which allows for specific items—the interests of minors are mentioned—to be excluded from the general rule of open proceedings in court. We must bear that in mind. I understand the hon. Gentleman’s point, and I have no doubt that we will discuss the matter on many other occasions.
Coming back to what my hon. Friend the Member for Birmingham, Yardley was saying, I think that he is particularly exercised about the office of the Official Solicitor. He seems to have an interesting relationship with the Official Solicitor, in the pursuance of his various interests in the cases in which he has been involved. He essentially asks where the Official Solicitor’s supervision and accountability are, in the exercise of his duties. My hon. Friend knows that the antecedents of the office go back a long way, to its origins in the Six Clerks Office, which was mentioned by Pepys. This officer of the court has a long pedigree, and he acts on behalf of those who were originally defined as paupers, including lunatics and infants, and needed protection under the law. The office is an ancient one, but it has always been an office of the court.
Under the most recent legislation, the office is a statutory office of the Supreme Court, and we have been very clear in the House, by statute and otherwise, that we respect the independence of the Supreme Court, and that we will not seek to interfere with the activities of the Supreme Court, as a legislature. We have to be very careful in expecting something of an officer of the Supreme Court, who I suppose is answerable in extremis to the Lord Chancellor in the exercise of their duties. It is not a matter for normal, democratic control, any more than a judge sitting in the High Court is a matter that should be under the control of the House.
Mr Bacon
I have listened to the Deputy Leader of the House with great interest. He said that we should not seek to interfere with the operation of the Supreme Court as a legislature. Did he mean that we should not, as a legislature, seek to interfere with the operation of the Supreme Court? There is a fundamental difference.
Mr Bacon
I regret that I did not hear the comma, but does the Deputy Leader of the House not agree that this goes to the heart of what my hon. Friend the Member for Stone (Mr Cash) was talking about? Although the late and much-lamented Lord Chief Justice, Tom Bingham, made it extremely clear in his recent book, “The Rule of Law”, that he thought that the Court should ultimately defer to the democratic will of the elected legislature, my hon. Friend the Member for Stone says that there is abroad—“abroad” is the wrong word, although it is also true—around the place, including here and also abroad, a kind of judge who does not take that view. That is a source of great concern.
Mr Heath
I understand the concern about what is normally described as judicial activism, and about the judiciary perhaps wishing to extend its role beyond what has been the traditional separation between its role and that of the House. We have to be extremely wary about that. Nevertheless, I maintain that it is not and never has been the role of Members of Parliament to decide whether officers of the court are behaving properly in the exercise of their duties. Our role is to create the statutory environment in which they work, and that is a very different matter.
Mr Heath
The hon. Lady puts it very well. There is a distinction, and we are right to make it.
I share the concern of my hon. Friend the Member for Birmingham, Yardley about the growth of the super-injunction, and what he described as the hyper-injunction. I was concerned when the issue arose during the Trafigura case. I am also concerned that we have allowed a whole new jurisprudence to develop without any real consideration of where it will end, or the consequences for our judicial process.
Happily, the Master of the Rolls, who has a proper role in the matter, has recognised the public concern. He established a committee in April last year to examine the use of injunctions that bind the press, including super-injunctions. He brought together a committee of the judiciary, the legal profession and the press. I anticipate that it will report soon, and we in the House should have particular concern about what it says.
Such injunctions have an impact, potentially, on what we do in the House, and certainly on the interests of our constituents. Personally, I look forward to seeing whether the Master of the Rolls wishes to bring into effect any significant changes to how the courts interpret the whole role of super-injunctions, and what he has to say about the position that has been established whereby my hon. Friend, as a Member of Parliament, cannot know that his constituent is even involved in a case, let alone get involved in it, because his constituent is injuncted by a super-injunction to prevent him passing on that information. My hon. Friend’s concern is perfectly legitimate and I am glad he has had the opportunity to express it today.
Mr Bacon
Many people, including the hon. Member for Newcastle-under-Lyme (Paul Farrelly), who raised the Trafigura case, have had concerns about super-injunctions. Does the Deputy Leader of the House agree that such people should also be concerned about what my hon. Friend the Member for Birmingham, Yardley has identified as another category, hyper-injunctions, whereby a court makes an order not to refer to the existence of proceedings? Is that not simply a step far too far?
Mr Heath
I am not sure that I understand the distinction that my hon. Friend was making between a super-injunction and a hyper-injunction, because what is called a super-injunction is an injunction that requires a particular course of action to be taken, including not reporting that the injunction in place is proceeding. It is an injunction squared, or a self-referring injunction. I am concerned about it, as are a lot of hon. Members, but we must wait and see what the Master of Rolls has to say on the subject when he—or, rather, his committee—reports.
I want to conclude by talking about the draft parliamentary privilege Bill.