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Christmas Adjournment

Volume 537: debated on Tuesday 20 December 2011

We now move on to the main business. As hon. Members know, it has been divided into several sections. It is all very complicated, but we have fingertip control in the Chair. [Interruption.] None of you believe it. I call John Hemming to move the motion in the name of the Backbench Business Committee.

I beg to move,

That this House has considered matters to be raised before the forthcoming Adjournment.

In addition to moving the motion, I have been requested to speak briefly on what I was going to say later in the proceedings. Chapter 23 and the United Nations convention against corruption both enable the review of judicial procedures to ensure they maintain the rule of law. Chapter 23 was brought in for the accession of Croatia to the EU. Reviewing this, it seems that the EU does now pass Groucho Marx’s test, in that it is a club that would not allow us to join. One area of concern is the inaccessibility of many judgments. Ignoring secret judgments, even public judgments are not always published. If they are not handed down by the judge, then copyright rests with the shorthand writers and they are not published by the British and Irish Legal Information Institute. This would need resolving to satisfy chapter 23.

The underlying question for both the UNCAC and chapter 23 is that of the accountability of the judicial system. The courts are accountable through the appellate structure, article 3.7 of the Act of Settlement 1701 and public scrutiny. The latter is the area, perhaps, where England and Wales fall down most severely. I have come to the conclusion that secrecy undermines the rule of law. This has been recognised by many learned judges, but it remains the case that our courts have a considerable tendency to go into secret.

The case of CTB v. NGN highlights a number of problems with this. An ex parte injunction was obtained indicating that the second defendant had been blackmailing CTB. However, last week CTB accepted that this was not true. This was more than six months after the original injunction was obtained. What was particularly interesting was that the original injunction acted to prevent the second defendant from writing to eBay and BlackBerry to obtain evidence to disprove the allegations made in the ex parte hearing, relating to a shirt and text messages. Potentially, even laughter from a public gallery could have alerted the judge to the falsity of some of the claims. It appears that only when CTB was named in proceedings of the House did it become easier to obtain the evidence to prove that the injunction was not properly obtained.

That injunction was clearly a gift that keeps giving. It is like an ace serve that cannot be returned, because the serve itself prevents it bring proved that there was a foot fault. The injunction was even effective at the weekend, when it acted to prevent three Sunday newspapers from writing articles reviewing allegations that there were unlawful elements to the statement of claim and original witness statement. It also acts to prevent the Attorney-General from investigating whether any regulatory action is required.

Sir David Eady kindly referred to me as a “national treasure”. I was pleased that my cutting of the Gordian knot assisted in resolving a case in his court. We will never know whether it would have been possible to obtain the evidence as to the truth of the matter of CTB v. NGN without me fulfilling my duty of protecting ordinary citizens from secretive, wrongful and oppressive applications for committal. The case is now ended and no further action is required. However, it does raise serious questions about how injunctions undermine the rule of law and whether there should be statutory limitations on injunctions to prevent this from happening in future.

My concern about secret court hearings and their unreliability stems mainly from the miscarriages of justice seen in the family division. Here we have a further problem of accountability, again relating to evidence. The difficulty, again, is that a secret court operates in a pool of reality that is not linked directly to the public domain. Much of the decision making in care proceedings rests on reports from experts such as Dr George Hibbert. He is someone about whom a number of people have complained, and I am told that at least one person has refused to work for him because of what she saw as his unethical provision of reports to suit the demands of local authorities.

The difficulty is a question of how to ensure that this issue is properly investigated. The courts refuse to accept that an expert may be the hired gun of the local authority; at the same time, there is no right to a second opinion. Indeed, the court often refuses to accept additional evidence on behalf of parents and against the state. It is this procedural problem that in my view gives rise to thousands of miscarriages of justice in care proceedings. This may not involve models and footballers, and therefore may not get the same attention from the media; however, to me and many other hon. Members it is at least as important, if not much more so. We do not have the proper checks and balances that can ensure a truly independent investigation of miscarriages of justice in secret courts.

There are two recent privacy cases—CTB and Clarkson—where it is accepted that the original claims of blackmail are not strong enough for the claimant to wish to press them in a trial. It is alleged that in the DFT case this is also true. ZAM and OPQ have not seen any attempt at a criminal prosecution. However, two recent criminal prosecutions for blackmail—the Rooney and Ecclestone cases—were not subject to anonymity orders. This is actually a high proportion of those cases where a claim of blackmail has been made. Many involve the same legal advisers, who, when giving evidence to the Joint Committee on Privacy and Injunctions, made no reference to the fact that some of the allegations of blackmail are false.

In my view, Parliament has a duty to investigate secret courts. It has the power to do this, but it needs to go further than it has so far.

One issue that needs a detailed review is secret expert reports. This could be done by a parliamentary Committee. A second issue that needs a detailed review is secret imprisonments. The Hammerton case was corrected by the Court of Appeal. However, there are others, such as that of Yvonne Goder, where it is difficult to find out what has been happening.

Order. Everybody in these debates is going to be on the six-minute limit, and I am afraid, Mr Hemming, that you have just reached your limit. So, I am now reminding everybody that they are on a six-minute limit.