Transforming Legal Aid

David Davis Excerpts

Thursday 5th September 2013 Commons Chamber

[Chris Grayling]

The key to ensuring there is no miscarriage of justice is to make sure someone is properly legally represented. None of the proposals we have put forward have ever done anything to undermine the principle that in a trial somebody should have a properly qualified advocate of their choice to represent them, and that we must make sure that we have state of the art police and prosecution services—and my right hon. and learned Friend the Attorney-General is working hard to make sure we have a prosecution service that is as state of the art as possible. It is, of course, essential that we do everything we can to make sure there are no miscarriages of justice. Nothing in these proposals should mean that miscarriages of justice are more likely.

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

I welcome unreservedly the Justice Secretary’s response to the House’s concerns about the criminal justice system. What he has done in that regard has been excellent. However, I and other Members still have concerns about some of the proposals that have constitutional implications—judicial review, the residency test and so on. The Joint Committee on Human Rights is reviewing the Justice Secretary’s proposals. Will he wait until it reports before implementing the proposals with constitutional implications?

[Chris Grayling]

The JCHR wrote to me to ask about the timetable, but we tabled our proposals back in April and made it pretty clear what the timetable will be. Of course I will talk to that Committee, but we need to make progress on the financial side. We will shortly be carrying out a further consultation on judicial review matters. I am open to listening to all Members of the House on those elements we are consulting on, and those that require legislation will be fully debated in this House.

Criminal Legal Aid Reforms

David Davis Excerpts

Wednesday 4th September 2013 Westminster Hall

[Karl Turner]

I will address that point later in my remarks.

I am concerned about what seems to be an outdated concept, in the Government’s vision, of a Tesco-style justice system, but I still believe that the defendant is innocent until proven guilty. Surely we should be looking to protect that system. I add that these stereotypical clients are not the only people who seek criminal legal aid. Thompsons Solicitors, in its response to the consultation, made it clear that many who seek legal aid are people such as teachers, nurses and police officers, who are wrongly accused of assault or similar, and who need to clear their names and save their livelihoods.

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

I congratulate the hon. Gentleman on securing the debate. He has not mentioned a category of people who suffer a form of injustice greater than anything he has spoken about. Those people cannot defend themselves, either because they have died as a result of a state action—I am thinking of Baha Mousa, in particular, who was beaten to death by British soldiers—or because they are incarcerated by either British or foreign states. Such people, without legal aid, have no recourse whatever. There is no self-representation, because they cannot do that, and no cheap representation, as they cannot do that either.

[Karl Turner]

The right hon. Gentleman makes an extremely valid point, which I, again, want to address briefly in my remarks. I disagree with many aspects of the proposals—the right hon. Gentleman is correct—but as my hon. Friend the Member for Stretford and Urmston (Kate Green) said, denying prisoners access to legal representation simply goes against everything that a civil society should represent.

Defending prisoners is not a vote winner, but we live in a civilised society, and I believe that prisoners must have the right to legal representation. The reforms will essentially mean that justice stops at the prison gates and that prisoners are denied legal representation, if the Government plans go ahead. As colleagues have said, denying prisoners access to justice in the way that the consultation proposes seeks to save £4 million. In times of austerity, it would be flippant to say that that is peanuts, but actually, when I think about it, those efficiency savings come at what cost? For goodness’ sake—it seems incredible to me.

--- Later in debate ---

[Karl Turner]

The former chairman of the Criminal Bar Association put forward various suggestions in the Justice Committee evidence session. I happen to think that some of them are feasible. He talked about saving money in courts. In my experience, an awful lot of money is wasted in the courts system. Then there is the Crown Prosecution Service. I do not mean to criticise colleagues in the profession, but very often defence lawyers are blamed for delays and loss of court time when in fact it is the CPS, whose staff are rushed off their feet, overworked—in my area, the service is terribly understaffed—that causes the delay. There are all sorts of things that the Government could look at, but the reality is that the Lord Chancellor is simply not prepared to sit down and discuss them. I am hoping that the new chairman of the Criminal Bar Association, Nigel Lithman, QC, has the ability to persuade the Lord Chancellor to sit round a table and discuss the proposals.

[Mr David Davis]

First, let me help the hon. Gentleman with a reminder of some of the things that were proposed. There was a proposal for a levy on the commercial courts in London that would raise large amounts of money. There were proposals that the banks should pay for the fraud cases that make up a large part of what we are discussing.

I also want to ask the hon. Gentleman a question. The Law Society has come up with a proposal that maintains choice but still puts in place a bidding system— a rather more thoughtful bidding system, if I may so—a rolling three-year bidding system, which would keep in place some of the smaller specialised companies and so on. Does he think that that is a good route to go down?

[Karl Turner]

Absolutely. The right hon. Gentleman is absolutely right. The Law Society’s proposal, I think, is a much better alternative. To answer the point made by the hon. Member for Warrington South, of course I accept that efficiency savings have to be made across the board in Departments—I made that point earlier—but it seems to me that the Lord Chancellor has just gone off without really being prepared to consult. I think that we are talking about a period of two months. It seems to me—the Minister shakes his head, but this is the justice system. There are a lot of professionals involved. I think that the Government received 16,000 responses. Surely there was a requirement to have some form of proper consultation—I do not think that it was proper, frankly—so these things could have been discussed more properly.

I think—this point was also made by my hon. Friend the Member for Wrexham (Ian Lucas)—that what is proposed defies everything that the Conservatives allegedly stand for. It is contrary to all that they say they are doing to promote growth on the high street. The idea of savagely attacking small businesses seems barmy to me. Do the Tories not believe that small private firms are the backbone of our economy? It beggars belief that this policy will without doubt break the backbone of the legal profession and, in my submission, severely undermine local economies such as my own in Hull. Let me be very clear.

Legal Aid Reform

David Davis Excerpts

Thursday 27th June 2013 Commons Chamber

[Ian Swales (Redcar) (LD)]

I rise to speak as a member of the Public Accounts Committee who is concerned about the effectiveness of the proposed measures, and as a constituency MP who is concerned about access to justice for my constituents.

We are told we have the most expensive system in the world, but only last year the National Audit Office found that the cost of our system was average, after accounting for variances in the role of the civil service and the judiciary, and the costs have been reduced since that finding. As a previous speaker said, 48% of our criminal legal aid costs are for 1% of cases, so why does the Ministry of Justice not look specifically at those cases in order to save money?

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

One of the misunderstandings in the mind of the public is that legal aid is a principal cost. In fact, our legal system costs half that of the Swiss and three quarters of the system in the other major European countries, and it delivers better results. Surely we should be proud of that?

[Ian Swales]

I am proud of that, and I am surprised by some of the comments from Front Benchers that seem to contradict what the right hon. Gentleman just said.

We also have a system in which tariffs vary widely across the country, sometimes paying twice as much for the same activity. Why does the Ministry of Justice not look into that? We often criticise the Ministry for not piloting its ideas, but they have tested this one by setting up five public defender services. They are proving to be three to four times as expensive as present local arrangements, and the one near me in Middlesbrough has already closed down. What has the Ministry learned and why is it planning to protect those offices from competitive tendering?

--- Later in debate ---

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

My name is on this motion not because I do not think we need to control the cost of legal aid—we do—but should it be done in this way and at this speed? I think not. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 is barely complete, and has had no assessment. The consultation was extremely brief and we understand that the Government intend to place contracts in the autumn. Frankly, without primary legislation, the likelihood is that this business will be challenged in the courts. We will have more haste and less speed on the delivery of savings.

I want to deal with some fundamental points. This is not, as has been intimated, about the protection by silver-tongued lawyers of serial offenders: in the Crown courts in contested cases, half are found not guilty. What we are talking about, therefore, is providing justice to the innocent and to victims.

[Mr Raab]

Does my right hon. Friend agree that one of the discrete risks of allowing large firms to swallow up small firms may be a loss of small specialist firms capable of demanding the trust of specific local communities —in particular, practices representing victims such as in the Stephen Lawrence case and others?

[Mr Davis]

My hon. Friend makes a good point that I will return to later. He is exactly right—this is one of the likely unintended consequences of what is being proposed in the consultation.

In their efforts to cut legal costs overall, the Government are overlooking a far bigger cause of waste in the system than legal aid, namely the sheer inefficiency of the Crown Prosecution Service. In 2011-12, more than 123,000 prosecutions failed after charge because either no evidence was presented or the case was eventually dropped. The cost to the service, the courts and aborted defences was measured in tens of millions of pounds, not to mention the stress faced by people who were, presumably, innocent.

[Meg Hillier]

Will the right hon. Gentleman give way?

[Mr Davis]

If the hon. Lady will forgive, I am very tight on time. I will give way if I can a little later.

That does not tell the whole story, however. Time and again, we see trials delayed and extended by CPS incompetence. In my part of the world alone, the newspapers are littered with cases of lawyers not turning up, evidence not being presented and cases being adjourned again and again. I suspect we all have constituency cases just like that. This happens right across the country. We should not pretend that the legal aid system is a model of efficiency, but when it comes to finding savings and better, effective justice across the whole system, we should look first at the CPS itself before we let the axe fall again on legal aid.

I am yet to be convinced—this addresses the point made by my hon. Friend the Member for Esher and Walton (Mr Raab)—by Government assurances that the quality of legal aid providers will be guaranteed by a state body. This debate comes barely a week after the Care Quality Commission scandal. That demonstrates how difficult it is to guarantee the quality of complex intellectual services, which, of course, justice is. We should notice that even where the state has direct control—namely, the CPS and the Serious Fraud Office—it cannot guarantee quality there either. A judge in a recent murder case described the CPS lawyer as “completely inadequate”. The judge said that the lawyer cited old law, did not understand the current law, fell out with the prosecution team, and then simply did not show up on the following Monday. As a result, the trial had to be held six months later. If we cannot guarantee our own system and our own service, how are we going to guarantee 400 private operators around the country?

[Mr Lammy]

Does the right hon. Gentleman also recognise a Conservative idea that competition can drive down costs?

[Mr Davis]

The right hon. Gentleman is almost taking the words out of my mouth. I cannot believe that a Conservative Government are going to mandate how many companies and providers there should be. I know of no example in the world where a Government mandated the number of companies and then improved the efficiency of provision—not one. This is a Soviet proposal that I do not want to see. I do not mind if there are better ways of finding efficiency—as has been said, that is what we must find—but please do not lay down laws like that.

I wish briefly to discuss a couple of other troubling issues in the consultation document, the first of which is the 12-month residency test. That could deny justice to people who have suffered because of the actions of the UK Government—under UK jurisdiction—which we are responsible for resolving. Just to mention cases in which I have been directly involved, I can cite those of Binyam Mohamed, Serdar Mohamed, Yunus Rahmatullah, who is still in Bagram prison, and Baha Mousa. We are talking about: people who were subject to torture in which Britain was complicit; an innocent man beaten to death by British soldiers; people who have been rendered—and still are—to other countries; people who have been handed over to our allies—[Interruption.] From a sedentary position, my hon. Friend the Member for Esher and Walton mentions de Menezes, who was shot, although accidentally, by the British Government. All those people would be denied their justice. More important, given that in many of those cases the person is deceased, the British people would not know about the misdemeanours of their own Government.

That brings me to my final point, which is about judicial review. I sympathise with Ministers who find it irksome that we have so many judicial reviews, but the Government are in danger of getting themselves a reputation for wanting to act above the law. Irksome as it is, judicial reviews are what keeps British Governments honest—it does not matter of which party or of which origin, they keep the Government honest. I say to the Government that before they strike down these things at their own convenience, they should think again, come back more slowly and present this House with some primary legislation we can then be proud of.

Leveson Inquiry

David Davis Excerpts

Monday 3rd December 2012 Commons Chamber

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

The right hon. and learned Lady has a strong and honourable history on this matter. Earlier this year, she spoke to the Oxford convention and announced she was firmly in favour of press freedom. She said:

“Because the press are now in the dock, it looks like special pleading from a vested interest when they make the case for press freedom. That’s why it is all the more important that politicians must insist on the freedom of the press.”

What has changed?

[Ms Harman]

Indeed, and that is why one of Lord Leveson’s proposals, which we think justifies the support of the House, is for a duty on Ministers to guarantee the freedom of the press, and that that duty should be in statute.

Voting Eligibility (Prisoners)

David Davis Excerpts

Thursday 22nd November 2012 Commons Chamber

[Chris Grayling]

I welcome the right hon. Gentleman’s comments. I think it is worth recalling that when the convention was written, back in the 1950s, Stalin was in power in Russia and people were being sent to the gulags without trial. That is what the convention was all about, but over the past 50 or 60 years the Court has moved it away from those fundamentals, and into a territory that many of us find deeply unsettling and wrong. I think there is a compelling case for reform, but while the current situation continues, we must none the less respect the laws of which we are part, and put to Parliament the questions that I am putting to it today.

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

As the right hon. Member for Blackburn (Mr Straw) has just demonstrated, this is a non-partisan, parliamentary issue—a matter of debate across the House. In that context, I congratulate my right hon. Friend on doing exactly the right thing in the Bill and handing the decision back to Parliament. I am sure, given the debate that the right hon. Gentleman and I secured some time ago, that the House will effectively decide on the status quo, but that is for the House to decide. If that is what the House decides, does he accept that it will set a precedent, and that every time the European Court goes beyond the remit set by the treaty, to which we did sign up, Parliament will reserve the right to correct it and put things back into proper law?

[Chris Grayling]

My right hon. Friend has set out clearly the legal position: Parliament has that right. It has been endorsed in the comments made to a Committee of this House by the Attorney-General, as it was in the House of Lords 13 years ago by Lord Justice Hoffmann. That is the legal position—Parliament is sovereign, and long should it remain so.

Oral Answers to Questions

David Davis Excerpts

Tuesday 3rd July 2012 Commons Chamber

[Nick Herbert]

I would be very happy to meet the hon. Lady to discuss that issue.

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

On 4 September, the European Court of Human Rights will hear the case of Nadia Eweida v. the United Kingdom Government. I understand that the Government are resisting the case. Miss Eweida is the lady who effectively lost her job with British Airways for wearing a cross, a symbol of her religion, at work. Is it any part of the British Government’s policy to support the denial of people’s religious rights at work? If not, will we reconsider our position on that case?

[Mr Kenneth Clarke]

I will consult the Attorney-General, who is no doubt preparing the Government’s defence in this case. This is obviously a hugely difficult issue; the case has gone through the courts here and is now going to be heard in Strasbourg. Whatever one’s feelings about the narrow facts of the individual case, there are wider issues about the enforcement of religious rights in employment, and I have no doubt that they will be properly canvassed. I will consult my right hon. and learned Friend the Attorney-General.

Defamation Bill

David Davis Excerpts

Tuesday 12th June 2012 Commons Chamber

[Mr Clarke]

I shall try to swivel in your direction more frequently, Mr Speaker. In case you missed it: if you ever have to bring a defamation action, it is unlikely to be heard before a jury. But I do apologise.

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

I, like my right hon. and learned Friend, am hoist with two petards: one is my belief in the principle of jury trial; the other is the practicalities that he quite rightly outlines. What I want to understand in his description of the Bill is under what circumstances a jury trial will be triggered. What are the criteria that will trigger a jury trial instead of a judge-only trial?

--- Later in debate ---

[Sadiq Khan]

I associate myself completely with the hon. Gentleman’s comments. I will come to Dr Wilmshurst, the cardio surgeon he mentioned, shortly.

I pay tribute to the work done by the Joint Committee that considered the draft Bill under the chairmanship of Lord Mawhinney. I will come later to some of the excellent conclusions reached by the Committee, some of which have not been adequately addressed in the Bill. I also recognise the hard work of Lord Lester in his original private Member’s Bill.

Finally, I pay tribute to this Government for running with libel reform despite a change of Administration. New Administrations do not often stick with plans that are not wholly their own; this one has. This is not a partisan issue but a problem that needs rectifying. I commend the way in which the Government have gone about doing so and the pre-legislative scrutiny that has been carried out. I commend the Justice Secretary for taking on the baton of reform and ensuring that time was made available in this Session for a Bill to be brought before us.

Time in this House is precious, and using that time for legislation should be done only when there is a clear and demonstrable problem that needs new laws or a change in existing laws, especially when the subject is uncontroversial. Our libel laws deserve this attention, and it is right that we seek to update them. Libel laws were first established in statute through the Libel Act 1843. Since then, only limited changes have been made through the Defamation Act 1952 and the Defamation Act 1996. The law on defamation has primarily been developed by judges via case law.

As with many elements of our legal system, legislating on defamation is about calibration. We must calibrate correctly the balance between freedom of expression and the protection of reputation. Freedom of expression is one of the essential foundations of a free and open democratic society: citizens must be free to express their opinions and views on issues, people and organisations. However, there are limits to the freedom to express opinions. Freedom of expression does not trump everything else. Indeed, in the Human Rights Act 1998, it is a qualified right. It must be balanced against the impact that the expression may have on the reputation of those affected. That is obvious.

The besmirching of reputations without supporting evidence, perhaps for vindictive reasons, is something that society should rightly guard against. That is why we have defamation laws. They are a deterrent against the unwarranted or vindictive expression of opinion, and provide recourse for those who have suffered damage to their reputation. Exactly where the line is drawn between what causes injury to reputation and what is simply the expression of free opinion is not clearly defined, nor could it be. There will always be the need for discretion at the interface of those two opposing tenets.

That said, there has been growing concern in recent years that our libel laws have not kept pace with the changing nature of society. Some have expressed concern that the balance has become too tilted towards protecting reputations, at the expense of free speech, leading to a chilling effect whereby the legitimate right to speak freely and openly is inhibited or discouraged by the threat of legal sanction. Others are worried that England and Wales have become a destination for libel tourists because our perceived claimant-friendly environment attracts litigants who are unwilling or unable to pursue cases in Europe or the USA. Technology, through the expansion of the internet, has transformed the way in which comment and opinion are disseminated in a way that the world has never before witnessed.

Our overriding objective must be to ensure that people from all backgrounds have access to the legal system, should they be genuinely defamed. The chilling effect is underpinned by the system appearing to be out of reach for many people. We therefore risk a dangerous skewing of the balance away from freedom of expression and towards those seeking to protect reputations. The Defamation Bill should leave us with laws that are clearer and more proportionate.

I will now discuss specific provisions of this relatively short Bill, which contains only 16 clauses. Clause 1 will introduce the hurdle of “serious harm” and states that a statement does not defame

“unless its publication has caused or is likely to cause”

serious reputational harm. That is sensible. That hurdle is intended to prevent mundane actions that can cost considerable amounts of time and money to head off. We want to discourage trivial claims.

However, how does “serious harm” differ qualitatively from harm? On that, the Bill is not clear. My right hon. Friend the Member for Tottenham (Mr Lammy) has illustrated some of the problems. Case law refers to a “threshold of seriousness” in determining what is defamatory. To provide genuine protection against trivial cases, we need greater clarity. Otherwise, vexatious claims will not be tackled. The Law Society, of which I am still a member, is concerned that this higher hurdle is likely to inhibit many people in making valid attempts to protect their reputation. That is one issue that I hope the Committee will clarify when the Bill moves upstairs.

[Mr David Davis]

This matter was raised with my right hon. and learned Friend, the Secretary of State by the hon. Member for North Antrim (Ian Paisley). Does the right hon. Gentleman agree that the measure of serious harm for a corporation or large profit-making body should be very different from that for a small company or less well-off individual, and that as a result the provision should act as a deterrent against big companies using libel laws as a bullying mechanism?

[Sadiq Khan]

As the right hon. Gentleman will know, the Joint Committee looked into that issue and wanted a first hurdle before a corporation could sue. The Government decided not to accept that recommendation. He raised the example of corporations. The use of defamation laws by corporations has a chilling effect, especially given the inequality of arms. I am sure that that issue will be teased out and clarified in Committee, given the expertise that it will have.

As has been said, clauses 2 to 7 set out the defences that will be available to a claim for defamation. Some simply replace and codify common-law defences, while others provide new defences. I wish to touch on some of those defences.

Clause 4 is intended to address responsible publication of matters of public interest, the so-called Reynolds defence. That is a defence of responsible journalism in the public interest. The clause will abolish Reynolds and codify the factors that a court may consider when judging whether a defendant has acted responsibly.

I am aware that some groups, including the Libel Reform Campaign, are unhappy with the clause, believing that the Government have not gone far enough, that the defence is too time-consuming and expensive, and that it is unreliable because defendants are often required to clear a series of complex hurdles to gain legal protection. They also believe that it will simply freeze the Reynolds defence at the current point in time. There is genuine concern that subsequent case law may develop based on what is in the Bill. Would a “son of Reynolds”, as it were, be in the best interests of our defamation laws? We will need further debate and discussion on that important issue, and I look forward to that in Committee.

As has been said, clause 5 is intended to address defamation involving websites. It creates a new defence for operators of a website when a defamation action is brought against them in respect of a statement posted on that website by a third party.

Data Protection in the Areas of Police and Criminal Justice (EU Directive)

David Davis Excerpts

Tuesday 24th April 2012 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)]

I beg to move,

That this House takes note of European Union Document No. 5833/12 and Addenda 1 and 2, relating to a Draft Directive of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data; and supports the Government’s recommendation not to exercise its right to opt out of this draft Directive under Protocol 19 of the Treaty on the Functioning of the European Union (The Schengen Protocol).

The motion stands on the Order Paper in my name and that of my right hon. and learned Friend the Lord Chancellor.

I welcome the opportunity to debate the proposed data protection directive, which the European Commission published on 25 January. The directive would repeal and replace the 2008 framework decision on data protection in the police and criminal justice sector. It is an important instrument for law enforcement in this country and across the European Union, and it is right that this House is given the opportunity to consider the effect of the proposals on both the security and the freedoms of UK citizens. The debate fulfils the commitment made by my right hon. Friend the Minister for Europe to seek Parliament’s views on an opt-in decision in justice and home affairs matters, as well as opt-out decisions under the Schengen protocol, and I am keen to hear the views of right hon. and hon. Members.

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

In the Ministry of Justice’s impact analysis, the summary is that the overall impact is

“likely to be substantially negative”.

Given that, can the Minister explain why he does not want to opt out?

[Mr Blunt]

I will deal with that, but in deciding whether to exercise the opt-out, the Government looked at the most pessimistic reading of events. The conclusion to which my right hon. Friend refers has been before the European Scrutiny Committee, but that impact assessment does not take into account some of the consequences that would flow if we exercised an opt-out. I shall talk about those consequences later in my speech, but they include negotiating all the bilateral data protection arrangements that would be required were we not party to the directive.

Having held the responsibility of Europe Minister, my right hon. Friend, of all people in this House, will understand the complexity of the legal basis—complexity that has increased considerably since he and I were serving in the Foreign Office together, I as a special adviser and he as a Minister. If he will forgive me, I will get my arguments on the record, give right hon. and hon. Members the opportunity to contribute in the light of that, then respond to their remarks at the end of the debate. I will therefore resist taking too many interventions. This area is complex enough without adding further to that complexity—

Justice and Security Green Paper

David Davis Excerpts

Wednesday 19th October 2011 Commons Chamber

[Mr Clarke]

The right hon. Lady is also a member of the ISC, so I am grateful for her support for our proposals. She is quite right to stress the need for public confidence generally. The present situation is wholly unsatisfactory. The Guantanamo Bay case, which we settled recently, showed exactly what can go wrong. I had to come to the House to announce that we had paid out a total of £20 million, together with costs, because we had ceased to defend the action. Everyone who was inclined to believe the detainees thought that there was secret information that would confirm everything they said, and everyone who was against the detainees thought that the security services had been crippled, that they could have defended themselves and that we were paying money to worthless people. Every conspiracy theory could flourish, depending on temperament, before we even started. That is no way to retain public confidence. In our view that definitely requires closed material procedures, which means that we must have special advocates, so we welcome views on how to improve the way in which they carry out that very difficult task.

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

The purpose of state secrecy is to protect the safety of citizens, not to cover up criminality or to avoid embarrassment. In the Binyam Mohamed case, which led to the Gibson inquiry, the very senior judges involved went to a great deal of trouble to balance the requirements of security and open justice, but, from what I understand of this Green Paper, I am concerned that had my right hon. and learned Friend’s proposals been in place a few years ago, what we learned from the Binyam Mohamed case would not have been put in the public domain, that we would not have had the Gibson inquiry and, indeed, that we would not have been able to resolve the issues arising from it. Other nations—Canada, Australia, Germany, France and Italy; all our major allies other than America—are able to be very robust about that. Why can we not be?

[Mr Clarke]

If my right hon. Friend will excuse me, I shall not comment on the Binyam Mohamed case in detail. The judges take one view and others take another, but the Green Paper addresses the problem. One would need the facility for closed material procedures, so the starting point would be a decision, confirmed by the judge, that in the interest of national security the case should take place in closed proceedings and, therefore, not be revealed afterwards. That is an altogether better way of resolving the issue than allowing an argument to break out between judges, the Security Service and everybody else afterwards about whether something has been revealed that should not have been. That was where we were in the case of Binyam Mohamed.

I cannot remember my right hon. Friend’s second point, but we have got the balance right. Members of the Intelligence and Security Committee have said that confidentiality vis-à-vis allies is absolutely crucial, and it is no good currying favour by trying to get behind that, because in fact the safety of people in this country would be endangered if we did not have the full and frank co-operation of allied countries providing us with their intelligence, just as we provide them with ours.

Anonymity (Arrested Persons) Bill

David Davis Excerpts

Friday 4th February 2011 Commons Chamber

[Philip Davies]

I am not a fan of restricting the information that people can give when it comprises simple fact. The hon. Member for Stoke-on-Trent South made the point particularly well. These things normally work through reports such as “A 25-year-old man from Hastings has been arrested for a crime.” I do not understand how that damages the judicial system. In many respects, the Bill is a solution looking for a problem because, in the vast majority of cases, crimes tend to be reported in the way in which my hon. Friend wants.

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

My hon. Friend probably acknowledges that I yield to nobody, not even him, in defending people’s rights against unlawful arrest. His case would stand up better if what was being argued was for no naming whatsoever rather than naming at the point of charge. Since we have limitations on detention without charge—about which I am quite expert—my hon. Friend’s case would fall after two or three days.

[Philip Davies]

My right hon. Friend knows that no one in the House admires him more than I do, although we do not always agree. Indeed, many people have said that he did not become leader of the party because my support for him was disclosed far too early. There is some truth in the assertion that his candidacy went downhill from the very moment that I declared my support for him. The fact that he still talks to me is testimony to his courtesy.

However, if it is damaging to someone who is arrested that their name is mentioned, because they can be vilified through a “no smoke without fire” approach, that applies not only to them, but to those who are charged with an offence, those who go to court and those who are acquitted. I am sure that my right hon. Friend would acknowledge that, in many cases, people go to court and are acquitted, and local people still say, “He must have been up to something; they wouldn’t have arrested him for no reason.” In dealing with the “no smoke without fire” issue and in arguing that people should not be vilified just because they have been arrested, the ultimate logic of the Bill is that we should not name anybody charged with something until they have been convicted. My right hon. Friend might consider that desirable, and it is a perfectly respectable view to hold—although I do not know whether he does hold it—but it is not one I agree with. It would not be a positive, but a negative development.

The thing that I most wish to defend is not just the freedom of the press—although that is important—but the important principle of open justice in this country. A Government research paper last November entitled, “Providing anonymity to those accused of rape: an assessment of evidence”, helpfully included the reasons why an open justice principle is so important to this country. It is important because it

“helps ensure that trials are properly conducted”,

it

“puts pressure on witnesses to tell the truth”,

and it

“can result in new witnesses coming forward”,

which is an important point made by the hon. Member for Stoke-on-Trent South. It also

“provides public scrutiny of the trial process”,

which is also an important factor, and

“maintains public confidence in the administration of justice”.

I am a big believer that the more information the public know the better. Finally and crucially, it

“reduces the likelihood of inaccurate and uninformed comment about proceedings”.

That final point is one of the most crucial. Following a high-profile case, no matter what laws the House decides to pass, we cannot prevent people from speculating on what has happened, on who was involved, on who might be guilty or on who they think it is. I am sure it happens in many households around the country following a crime; I am sure that every household has its resident Inspector Clouseau listing who they think is guilty—“It must be somebody they knew,” “It’s probably a relative,” and all that kind of thing. That is not going to stop, no matter how many laws we pass.