Bill of Rights

John Hemming Excerpts

Thursday 17th March 2011 Westminster Hall

[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.

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

I congratulate my hon. Friend on securing the debate on a massively important subject.

I was not at the signing of the Magna Carta, or later ones, but I have been in the House for 22 years and I have a couple of observations. One of the reasons that the Cinque ports and London are still on the statute book is because the redress of grievances was always done before the Crown—the state now—and it got its interest, its reward, its return and its borrowing from the City of London.

What we are seeing, and it has got worse over the course of the past 22 years, is the interests, prejudices and career risks of the organisation dealing with the individual, be it a solicitor or even a family or social services officer, put to the fore—not always, but sometimes—ahead of the interests of the constituent. Those officers of local authorities, courts and so on have put their interests or privileges ahead of ours, and it has happened time and time again. In my constituency, teachers have been accused of sexual misdemeanours which were later proven not to be true, and people have been threatened with their children being taken away—a whole series of areas.

Our job is to be the defence of last recourse for the individual. We stand between the individual and the misdemeanours of the state or, indeed, the lynch-mob law at the other extreme. That is why, in modern terms, and not just in terms of the ancient rights, our access to information is fundamental to continuing freedom in Britain. Once our right to have that information is taken away, the freedoms of our citizens and constituents are undermined. Parliament itself—its officers and the Speaker—should take a stand and make a statement to the effect that we have those rights on behalf of our constituents. May I have the view of my hon. Friend?

[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.

[Mr Bacon]

For the benefit of the House, can my hon. Friend clarify, in case anyone did not notice? Is he saying that a court order was made prohibiting a constituent from talking to him as a Member of Parliament?

[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.

[Mr Bacon]

Surely, it must be the case that any right-thinking court that had informed itself properly—in this case, it would have to be a higher court revisiting the decision—would come to the conclusion that any agreement made under duress would be a nullity and void.

[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—

[Mr Peter Bone (in the Chair)]

Order. I am sorry to interrupt the hon. Gentleman, but I just want to make sure that this is not sub judice and not active before the court.

[John Hemming]

This particular part is not active. It is a distinct proceeding that relates to a decision taken in 2009. It is important that hon. Members gain an understanding of the basis on which these decisions are taken. It is said in the Court of Protection that decisions are taken via the judge, who relies on an expert witness. I will read out the expert’s report that empowered the local authority to get a decision from the judge to put my constituent in a home. The report has a heading and includes the names of a social worker and the witness, but I shall not mention them. The specific question was: where does she want to live? It went on:

“Does the service user understand the information necessary to make the decision at this time?”

The answer given was “Yes” and the report said that she had

“listened and quickly responded that she had heard but wanted to stay with her family.”

It is clear, therefore, that she had a view of what she wanted.

The report also asked:

“Can the service user retain the information for long enough to make this decision?”

The answer given was that she

“is quickly stating yes, she is not giving reasoning or considering risks which she herself has previously expressed relating to potential forced marriage and not wanting contact with family members.”

The report went on to ask:

“Can the service user weigh up the information in order to make this decision?”

The answer given was that she

“is not weighing up information about different options for her accommodation. She will only state she wants to live with her mum and dad or sisters. She said that she likes to make people happy and that she will be happy if her family are happy. Her family will be sad and angry if she leaves so she would like to stay with them. I suggested she could have continued contact with her family even if living elsewhere but”

she

“said this would make them angry.”

The report concluded:

“The result of this Capacity assessment is that in relation to deciding accommodation”

she “does not have Capacity.”

That is not really a long assessment in terms of the Mental Capacity Act 2005. Where in the assessment is there an attempt to assist her in making her decision? There is no record of it whatsoever. The assessment is given as a sufficient basis to, basically, imprison her. It was in secret and there was no accountability and no second opinion at that stage.

I wrote to a Minister who told me to write to the Care Quality Commission, which told me to write to the solicitors, who did not respond. I wrote to the council, which told me: “The judge has banned us from talking to you.” I wrote to the Official Solicitor—this is a mental capacity case and the Official Solicitor has been appointed to deal with her best interests—and I got a letter back that said:

“You are correct when you suggest that I take the view that I am not accountable to you as an MP for the way in which I act in individual cases.”

We have a sort of vacuum here. There is no proper accountability in this area whatsoever. Her sisters were talking to me and were threatened that they would be in contempt of court if they continued to do so. One of the sisters is a constituent and another one lives just outside my constituency. We have here another contempt of Parliament, where effort is being put into stopping external scrutiny of the processes.

In the case I am talking about, a large sum of money has been spent on keeping this particular girl in the custody of the state—she is effectively a secret prisoner. The family has expressed the view that the true reason she was taken into care some 10 years ago was to prevent the investigation of an allegation of sexual assault against a member of staff of the city council. They think that the reason this kicked off is that, when she came back to Birmingham, someone did not want the investigation of the sexual assault from 10 years ago to kick off. I have seen some of the police records, and the family have a reasonable case for saying that that might be the motivation underlying such a massive expenditure of public money. Whatever way we look at the matter, this is a dreadful case and it is very clear what is going on. It has been said that her father is a risk to her. However, he died last July—possibly partly as a result of the stress of the case—so he is not much of a risk now. It is therefore difficult to understand what the justification is for what has been done.

[Mr David Davis]

I am listening with fascination to this case because it seems to me that it is clearly a contempt of Parliament. Who is the Official Solicitor responsible to, if not to us?

[John Hemming]

The Official Solicitor’s answer is that he is accountable to the court. However, I cannot see where the real scrutiny of that process is. Let us consider the case I mentioned earlier—the £37,000 case—which also involved the Official Solicitor. Obviously, Alastair Pitblado does not trundle around the country like Father Christmas, visiting every court for a few seconds. We are talking about members of his staff, who will vary in calibre. As far as I can see, there is no real scrutiny of the Official Solicitor. Yes, the court may spot something, but it is very difficult. Who is actually acting to protect somebody against what the Official Solicitor does? That is a very difficult question. In addition, I have asked if I can go and see the constituent concerned and have been refused. So, someone is being held incommunicado from her Member of Parliament.

On the issues surrounding what can be done as a last resort, I shall discuss another constituent: Michael Singleton. His mum was very surprised that he had been jailed for five years, given that the allegation was that he had intentionally set fire to the house they were living in and had gone back to bed in the same house. She came to see me and we filled in the forms for him to appeal to the criminal Court of Appeal as a litigant in person, after which he was released. That shows the importance of having the last resort because the state would have wasted a lot of money keeping him locked up when there was nothing to be gained from doing so. It was lucky that that case was not covered by any confidentiality and that no one was trying to ban him from talking to me or his mum or anything like that, and he was therefore released.

The other person I have mentioned is still basically in the power of the state, and the people concerned are banned from coming to talk to me. Therefore, I cannot give them any advice on how they might be able to appeal the process and challenge things. I do not have a degree in law, although I have a certain amount of experience with it. My degree is more science-based. I shall also mention another, more recent constituency case. I will not name the person concerned because it might be sub judice. We are trying to get it to be sub judice.

[Mr Peter Bone (in the Chair)]

Order. May I just say to the hon. Gentleman that it is quite proper to refer to cases to illustrate the general debate, but this is a wider debate? He should not spend too much time on any single case because I know that other hon. Members wish to speak.

[John Hemming]

I will speed up a bit. Dr Waney Squier is another example of someone who, to clear her name, needs access to secret material that does not affect any children or parents. However, she cannot get access to that.

We should consider again the wider questions of court decisions in respect of contact with Members of Parliament and others. I have here a case from 2005—folio No. 773. It is an injunction that says that if someone disobeys this order, they may be found guilty of contempt of court and may be sent to prison or fined or their assets may be seized. I am not going to name the parties in that case because more research needs to be done into it. However, without me putting this into parliamentary proceedings, I cannot even write to the people involved. Obviously, an ordinary letter not connected with proceedings in Parliament is not covered by the Bill of Rights. Paragraph (1) of the document concerned states:

“Neither the Defendant nor any third party with notice of the Injunction may communicate with any third party regarding these proceedings in general and the potable water tanks or system referred to in the Injunction in particular.”

[Mr Peter Bone (in the Chair)]

Order. I am sorry to interrupt again. I want to go back to my previous point: we must not deal with active cases. Will the hon. Gentleman assure the House that this is not active?

[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 David Davis]

I do not know which level of court would make that judgment, but it produces an enormous perverse incentive. That became apparent during the case involving my hon. Friend the Member for Ashford (Damian Green)—now the Minister for Immigration. He was arrested for handling information that had been leaked from the Government; it was actually in the public interest that he handled that information, but we will put that to one side. One of his defences was that he used the information in his role as a Member of Parliament. However, there was a vast quantity of information—I handled it and he did, too, because he worked for me at the time—and we made judgments all the time about not putting things in the public domain in Parliament. By doing so, however, we put ourselves at risk. I can think of a couple of secret pieces of information—I will not relay them now—that would have affected terrorism and which we did not put in the public domain. By not putting them into a parliamentary question or into parliamentary debate, we put ourselves at risk. The impact of this judgment therefore seems perverse in terms of public policy and in terms of its impact on the behaviour of individual Members of Parliament.

[John Hemming]

The question is how closely something is connected with proceedings in Parliament. A Member might say that something will, under no circumstances, be connected with proceedings in Parliament. I think that deals with my right hon. Friend’s valid concern. We all deal day to day with real situations and we sift information, and it should not have to find its way into a debate to be protected by privilege. I was particularly concerned about the arrest of my hon. Friend the Member for Ashford because the Executive were interfering with Parliament; there is no question about that. Parliament is here to protect citizens of the UK, not MPs. The individual who was trussed up by that secret hyper-injunction needs protecting. We all need protecting from water that people are being told to drink without being warned that there are potentially toxins in it. That causes me great concern. This is about protecting people, not about using money and wealth to get legal processes to gag people. There is a way round these issues, but it requires Parliament to stand up for the people and for people’s right to communicate with Members of Parliament.

The same issues have cropped up in other jurisdictions. Obviously, all the common law jurisdictions tend to have a similar process. I gave the example from Australia, which was valid there; however, there is also the interesting case of Germany, which involves a similar sort of protection. Obviously, the exemptions on the continent are quite different. There is protection for members of the Bundestag, but not members of the Bundesrat, which is not too surprising. That protection is under article 47 of the Basic Law, which relates to the right of refusal to give evidence. Members of the Bundestag have a right to refuse to say where the information they have has come from.

We need to go further than that. We need to protect people’s right not be bullied. Somebody might say, in all innocence, that they would like to talk to their MP about a housing problem or something else, but they might then be threatened and told that if they try to get help, action will be taken against them.

We have looked at the issue of the accountability of the Official Solicitor, who is basically not accountable at all, not on an individual case basis. We were lucky with the Gilliland case because that is a probate case in open court. Most of the cases are in secret: there is no access to the transcripts, there is no way of challenging the experts’ opinions, and there is no independent scrutiny. Often the people involved are quite poor and may not be very bright, and it is a challenge getting accountability in that situation.

The accountability of the judiciary depends to some extent on openness, at least open judgments. There is the issue of article 6 subsection (1) of the European convention on human rights, though some people may not be so enthusiastic about it:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

There are exemptions to parts of the trial mentioned there, but judgment should be pronounced publicly. What is the basis of banning the mention of proceedings and banning telling MPs about proceedings’ existence? How many of those cases do we have?

Looking further into issues of accountability, I will cover two other cases quickly. One is of Rachel Pullen, which is in the European Court. She can be named; there are no problems there. I have a psychiatric report indicating that she does have capacity. The Official Solicitor conceded the case against her when she was told she did not have capacity. I have Husan Pari—a very similar case. The Official Solicitor was appointed in part because an IQ test was given through an interpreter who did not speak the right language. With someone who could speak to her in her own language, she has the capacity to understand the case. She was not allowed to run her own case. I am doubtful about the case I mentioned earlier. The European Court is going to look at two of those cases.

The question is: is the inter-play between the estates of our constitution operating correctly? Obviously, Government Ministers should not be looking at the decisions of judges, but Parliament should, and particularly at the secret courts. Parliament has a role to do that. I have asked for an inquiry into all the secret prisoners we have. There are a number of different types of secret prisoner. There are people such as Matthew Hawkesworth; I cannot work out why he is in jail, but he is locked up. Martin McCabe is an interesting one. His wife, Susan McCabe is living on the continent, having been on the run. He was jailed for driving her to Dover. Susan McCabe’s mother, Conservative County Councillor Janet Mockridge, is particularly irate about the situation. She lives in the constituency of the Minister with responsibility for for children, who must know about some of the strange things that get done by the family courts.

Yvonne Goder was jailed in secret for a short while last year. Her committal hearings and various discussions were all held in secret. She believes that three properties were taken from her family. This is a Court of Protection matter. On 17 January 2000, the capacity of her mother Efi Goder-Marsh to manage her own affairs was taken from her and given to her husband, who denies ever getting it. On 26 May 2000, 37 Montague road, Tottenham was sold—this is all in the public records—for £107,000 to George Leonidas of an address in Chingford. On 11 August 2000, 339 Green lanes, Harringay, N4 1DZ was sold for £230,000 to Tracey Emanual of the same address in Chingford. Then 8 Etherley road, N15 3AJ was sold on 18 January 2002 for £195,000 to Southern Territory Ltd, one of whose shareholders was George Leonidas, also of the same address in Chingford. All these properties are going to the same address in Chingford. I have the transfer deeds; each was signed differently by somebody in an illegible manner, claiming to be Efi Goder-Marsh’s husband. It looks different and he denies signing them. The documents were all witnessed by somebody in a particular solicitors’ firm, with which I am in communication.

Here is the difficulty. As it is a Court of Protection, the person cannot be identified without matters going into parliamentary proceedings. That causes all sorts of problems in terms of investigation. I hope that that will not be a problem in future. She is another secret prisoner; what was the situation there? Why were there secret committal hearings? It is a contempt issue.

Other MPs have cases. The hon. Member for Heywood and Middleton (Jim Dobbin) has been working with me and my hon. Friend the Member for South Norfolk (Mr Bacon) on the issue. He had a situation with a family judge pressuring constituents not to talk to him. My hon. Friend the Member for Carshalton and Wallington (Tom Brake) had a similar problem, with pressure put on his constituents not to talk to him. I hope that my hon. Friend the Member for Wells (Tessa Munt) will be here later to explain a similar problem. My right hon. Friend the Member for Orkney and Shetland (Mr Carmichael) had a constituent threatened over an employment case, who was told not to speak to the MP and that they would suffer at work if they did so. There have been secret meetings with soldiers about weaponry. My hon. Friend the Member for Winchester (Mr Brine) referred to me a case where a housing association had been getting aggressive towards a constituent with learning difficulties, and refused to consider her case because her MP had been involved.

I am not the only one having problems. When I talk to colleagues of all parties, they all find similar problems with the aggressive way in which apparatchiks of the state attempt to ban constituents from talking to MPs. We have judges creating situations where it is made an imprisonable offence to tell an MP that a case exists. I do not think that is right, transparent or accountable.

I would like to thank the Backbench Business Committee, on which I sit, for agreeing to this debate. I am sorry about going on for such a long time, though I do not think I have repeated myself. I thank hon. Members for their forbearance, and hope that Parliament will act in future.

--- Later in debate ---

[Paul Flynn]

Well, I have looked at “Erskine May”. Perhaps we could have a ruling. I believe these are points of order, Mr Bone, between you and me. There is clearly no point in continuing if I cannot have the debate that I applied for. That was the understanding of the Backbench Business Committee. I was clear at the Backbench Business Committee that I wished to raise the conduct of Prince Andrew and the harm that many people believe it is doing. If I am to be denied the chance of doing that, I will end my speech now and apply in different circumstances.

[John Hemming]

Perhaps the hon. Gentleman could cite an example of something that he thinks should be allowed to be said under article 9 of the Bill of Rights that may not be allowed to be said.

[Paul Flynn]

I do not know if I can proceed on those lines, because the subject is one of—

--- Later in debate ---

[Paul Flynn]

I am grateful to you, Mr Bone. I shall apply to the Backbench Business Committee for a full debate entirely on that subject so that we can test whether the House is under censorship.

[John Hemming]

Will the hon. Gentleman cite an example of some criticism that he thinks should be allowed to be made?

[Paul Flynn]

I could, but it would be an unsatisfactory way of conducting the debate. There is a principle involved. Can we, or can we not, discuss the conduct of minor members of the royal family? That is what I want to do. To do it under a device here, where I would be limited to what could be discussed, would seem to be futile. What I want to challenge today—

--- Later in debate ---

[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.

--- Later in debate ---

[Mr William Cash (Stone) (Con)]

I had not intended to speak in this debate. Tomorrow we have a debate on the Floor of the House on parliamentary sovereignty, an issue on which I have spoken several times in this Chamber, which is the best means of expressing views that sometimes get lost in the House, with all the restrictions on debate that are imposed on Members of Parliament through the wilful use of programming. I wait with enormous interest to hear what the Deputy Leader of the House has to say.

I alluded to one aspect of this matter just now; I have spent some time taking an interest in the principles that hinge on the question of a Bill of Rights. I am all for a Bill of Rights, but the question is: which one? Similarly, on the question of the rule of law: which law, whose law, and who is going to enforce it?

Eventually, one returns to a question that I am sure exercised those who devised the original Bill of Rights in 1689, which as it happens was never incorporated in an Act of Parliament. Nevertheless, by convention, and therefore by custom, that statement was enforceable in its own fashion, and deals with some fundamental matters. I want to know exactly how, in the context of the review set up by the coalition Government, matters concerning the proposed new Bill of Rights will be tackled. I may be unduly suspicious, but I want to know whether the Bill of Rights will enhance and increase the rights of the people of the United Kingdom. That point will emerge in due course and perhaps the Deputy Leader of the House will be in a position to tell us when he responds to the debate this afternoon.

One difficulty is that, as I conceive it, the Bill of Rights would not withstand measures such as the European arrest warrant, investigative orders and powers of entry. We heard about such matters in a debate the other day on the so-called Protection of Freedoms Bill, and about the problem of the rulings by the European Court of Human Rights. Fairly recently—I think it was 11 March 2010, almost exactly a year ago—the Lord Chief Justice made a speech to the Judicial Studies Board. He said that judges were interpreting Strasbourg precedents in such a way that they were applying them as if they were UK law. The concerns of the Lord Chief Justice were encapsulated by his warning, “We must beware.” Those are the words he used and he was talking specifically to the judges. I want to know that the Bill of Rights, which includes, or is associated with, matters as important as habeas corpus, will be retained. If such things are to be given renewed constitutional primacy, they must be absolute and not a sub-text of a European legal system that overrides them.

Two days ago I attended a European Committee with the Lord Chancellor, a man I greatly respect. We have totally different views about these matters, but we should not think that he does not understand that the arguments I present must be answered. That is why he came to the Committee. He was talking about the charter of fundamental rights, which is directly related to the issue of the Bill of Rights. If we have a Bill of Rights, will it be superior in some fashion to the European treaties and to the European Communities Act 1972, which incorporates the protocol for the charter of fundamental rights? If people do not understand that matter, they should start reading the material. There is no point in pontificating about a Bill of Rights if we do not understand the hierarchy of laws. That hierarchy says that European Community law comes first and is enforceable by the European Court.

When the Lord Chancellor says, “Oh, nothing has changed; we had a discussion on the Lisbon treaty and a lot of people got it all wrong”, I am bound to point out that he voted for the Lisbon treaty and for the charter of fundamental rights—unlike the Conservative party—and he voted against the referendum. I am not criticising him for that; I respect him for it. That is his right. However, one provision in the Bill of Rights is the right of free speech, including in the House of Commons and elsewhere. It is similar to the question about privilege, or about how the rights of people in this country are expressed through the rights of their Member of Parliament, to which my hon. Friend the Member for South Norfolk (Mr Bacon) so rightly referred.

If we are to talk about a Bill of Rights, let us get the hierarchy right. I do not want a public relations job done on that, or any Government spin or spivvy attempt to convince the British people that they are getting something that they are not getting. Let us have it out; let us know that this is the supreme law of the United Kingdom, and not something churned out to give people the impression that they are getting something when they are not.

I want to know what the relationship will be between the Bill of Rights and the European convention on human rights, and between the Bill of Rights and the charter of fundamental rights. Therefore, I have two simple questions. At its apex, will the Bill of Rights be supreme in UK law, enforceable and enforced by the Supreme Court, as against, contradictory to and, if necessary, inconsistent with the European Court, and the assertions of certain members of the Supreme Court that they have ultimate authority? Will that be the case notwithstanding the European convention, the charter of fundamental rights and the European Communities Act 1972 and all treaties under that? If the Bill of Rights is to be effective, I want it to be a real Bill of Rights and not simply a rather obscure version of an amalgamation of those other charters and conventions. At the moment—I do not know whether the Deputy Leader of the House knows this—chapter 3, I think, of the Lisbon treaty sets out, in article after article, the source and derivation of the charter of fundamental rights. In terms of derivation, there is the United Nations this and the European Court of Human Rights that. There is a list of sources, and I trust the Minister has it with him so that he will be in a position to answer my question. Which legislation will have superiority?

[John Hemming]

One topic that has been at the top of media issues recently is the development of the law of privacy. A number of us share concerns about that, and I am interested in the hon. Gentleman’s views.

[Mr Cash]

My views are very strong indeed. I can reasonably claim to have been the progenitor of the Calcutt inquiry, because some years ago I tabled an early-day motion that attracted more than 300 signatures and called for an Act on privacy, which would have been a tort, and ensured that the ordinary citizen had the right to privacy compared with those in the public eye. I distinguished matters of interest to the public from those genuinely in the public interest, and that subject remains a matter of deep concern.

It is also true—here I make a concession—that article 8 of the European convention contains a right of privacy, but my answer to that is not that I have any objection to the rights of privacy that are now in that convention. The question that is far more important than any other, in my view, is this. Why should people assume that we need a European convention? By the way, we drafted the convention for the purposes of—shall I put it delicately?—helping other countries to understand that there were rights that might be usefully employed in their own countries. There, we were helpful, but what is to prevent us from legislating, from passing laws, on our own terms, through our own elected representatives, that provide the kind of rights that otherwise are provided under things such as the European convention or the charter of fundamental rights? In other words, will this law be indigenous? I look at the Deputy Leader of the House deliberately at this point. Will it be, to use a slightly unusual expression, an autochthonous United Kingdom law or will it be a dependent law? Will there be a surrender to the so-called universality of law, or will it be something that is modelled and devised by the British people, for the British people, given that we are able to claim that we have been the defenders of liberty and freedom throughout the world for a very long time?

Last night I was at a dinner at which people were discussing the future of conservatism. I had the temerity—I think some people were quite glad—to mention Edmund Burke. I do not have the whole quotation at hand, but he wrote very clearly about the fact that there are no discoveries to be made. We have already understood, as he put it, what is a proper kind of freedom. That compares with Thomas Paine’s “Rights of Man”, which was an entirely abstract and in the event utterly destructive approach, adopted, as it happens, by the French revolutionaries with dreadful consequences.

Our rights and freedoms are based on practical experience, not on theory, so some of us get a little amused, if not bored, by people who make certain assertions about those of us who are interested in having referendums or, for that matter, insisting on the sovereignty of the United Kingdom Parliament when all we are doing is seeking to ensure that the rights that are conferred on the British people and the legislation that is passed are consistent with what the British people in general elections, rather than coalition agreements, have actually agreed to do. That is my template: if I have made a promise to my constituents, I intend to stick to it. I also think that it is good for our democracy that people should be able to accept that the promises made in general elections are carried through.

I do not want in any way to prejudge, and I do not think that I have said a word today to prejudge, what the Bill of Rights will contain or what the new commission that has been set up will come up with, but I have taken this opportunity, at very short notice, to try to set out, very simply, the principles on which that entire judgment must be made. First, foremost and exclusively, not partially, it must be based on the Bill of Rights being supreme in terms of the law applied to the people of this country through our courts and notwithstanding any other legal systems or legal requirements, whether emanating from the European Community, the European convention on human rights, the European Union or any other source. That must be the case if the Bill of Rights is to mean anything. We are not an island in the sense that we are exclusively unaffected by other parts of the world, but we do have the right to determine our own jurisdiction and the right to determine it through this Parliament. Because we are elected by the voters of this country, we can insist that the Bill of Rights is indigenous to this country and not dependent on some other hierarchy of law.

--- Later in debate ---

[John Hemming]

Does the hon. Lady agree that if Parliament were to show some willingness to act in one or two cases, it might result in a shift of culture?

[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.

--- Later in debate ---

[Mr Heath]

I think that we would be in the same position that we are in now, with the present interpretation of the absolute parliamentary privilege that we enjoy in the comments that we make in this House. I do not see that there would be any difference if we were to extend our statutory interpretation of proceedings to include correspondence in the way that the hon. Lady suggests. However, let me not attempt to pre-empt a serious debate that will inevitably need to happen in preparing the statute on which this Bill will be based, both in terms of the pre-legislative scrutiny and then our scrutiny of whatever is proposed.

[John Hemming]

I may not be right but I am thinking of the Strauss case, which was about a letter from a Back-Bench MP to a Minister about cables. I believe that at the time the Standards and Privileges Committee recommended that the House should consider that case to have privilege, but the House voted—albeit not unanimously—not to treat it as being privileged.

[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.

--- Later in debate ---

[John Hemming]

I thank everyone who attended this debate, and I thank the Backbench Business Committee for allowing it. I also thank you, Mr Bone, for chairing it so ably.

The debate can be summed up in a few words. Parliament needs to know about grievances and to be able to take action. We need to take action to protect our constituents. The accountability of the courts rests on people knowing what is going on, even if anonymously. The difficulty with the operation of the Official Solicitor’s office is that people do not know what is going on. There is no question but that reform is needed in that area. However, the points have been reasonable and we have had a good debate. I thank my hon. Friend the Member for South Norfolk (Mr Bacon) for working with me on the debate. On that point, I shall end.

Question put and agreed to.