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Mr. Kelvin Hopkins (Luton, North) (Lab): My right hon. Friend will be aware that many thousands of people in my constituency and elsewhere are in desperate need of rehousing, and that there are not enough houses for them. In recent discussions with private builders and construction trade unions, it has become obvious that builders are interested in the development of executive homes, on which they can make a big profit, not in the building of social housing on brownfield sites for local authorities or housing associations. Will my right hon. Friend make time for a debate in which we can look at the possibility of developing once again a substantial public sector house building industry, which could provide homes for people in my constituency and elsewhere?

Mr. Hain: The Government have initially been focusing on investment and improvement, rather than on new house building, which is a much-needed task, as I know my hon. Friend will agree. He nevertheless makes an important point on the need for more social housing. That is why the increasing investment going to local government—on a massive scale under this Government—and into housing provision is very important. That contrasts with the policies proposed by the Opposition, who would make cuts of £2.5 billion in local government spending in the first two years following a general election, if they were to come to office.

26 Feb 2004 : Column 427

Katharine Gun

1.12 pm

The Solicitor-General (Ms Harriet Harman): This morning, my right hon. and learned Friend the Attorney-General made a statement in another place about the prosecution of Katharine Gun. I apologise to the shadow Attorney-General and to the hon. Member for Torridge and West Devon (Mr. Burnett), who speaks for the Liberal Democrats on these issues, for the lateness in getting the Attorney-General's statement to them. His statement is as follows.

Yesterday, at the central criminal court, the Crown offered no evidence in the case of Katharine Gun. Ms Gun had been charged under section 1 of the Official Secrets Act 1989. The effect of offering no evidence was that the case against Ms Gun was discontinued. Before I answer the questions that hon. Members will put to me today, I hope that it will help the House if I explain the process in respect of prosecutions under the Official Secrets Act.

Prosecutions under the Official Secrets Act are governed by the normal rules applied by the Crown Prosecution Service when considering any prosecution: the code for Crown prosecutors. There is an additional requirement for the Attorney-General's consent before a prosecution can go ahead under the Official Secrets Act. May I say at the outset that when making decisions under the code for Crown prosecutors, the CPS acts in the public interest? It takes independently the decisions for which it is responsible. I also remind the House that when making decisions on whether to consent to a prosecution, the Attorney-General makes his decisions in the public interest, not in the interest of the Government.

When the CPS is considering a prosecution under the Official Secrets Act, the normal code rules require that it first consider the sufficiency of the evidence—evidence to make out the case and evidence to rebut any defence that might be available and that might be raised. It will not take further action if it thinks that there is insufficient evidence. If its view is that there is a realistic prospect of conviction—that is, the evidence is sufficient to make it more likely than not that a jury would convict—it then considers the public interest test. In the Gun case, the evidential test was met in the view of counsel instructed by the CPS, and in the view of the Director of Public Prosecutions. The evidential test having been met, the CPS next moved on to the public interest test. That test is, quite simply, to ask whether the prosecution would be in the public interest. As this prosecution was taking place under the Official Secrets Act, it also required the consent of the Attorney-General.

When considering whether to consent to a prosecution under the Official Secrets Act, the Attorney-General carries out a Shawcross exercise, whereby he seeks the views of any ministerial colleagues who may have an interest in the case. That is so that he can be informed of their views on the public interest considerations of the case within their ministerial or departmental responsibilities. When those ministerial views are expressed, the Attorney-General takes them into consideration when deciding whether to give his consent.

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In the Gun case, the view of the independent prosecutor, senior Treasury counsel Mark Ellison and his junior Ed Brown, on the review of the evidence available at that time was that the evidence afforded a realistic prospect of conviction. The Crown Prosecution Service applied for the Attorney-General's consent, and he undertook a Shawcross exercise by way of a Shawcross letter to the Secretary of State for Foreign and Commonwealth Affairs, in view of his departmental interest. That letter was copied to other interested ministerial colleagues. Views were expressed that, as always with the Shawcross exercise, the decision was the Attorney-General's. He gave his consent to the prosecution on 13 November 2003.

Under the code, it is the obligation of the prosecutor, as a case progresses, to keep under review the prospects of a conviction resulting. If, on that review, the prosecutor forms the view that the evidence is such that there is no longer a realistic prospect of conviction, it is his or her duty to withdraw the prosecution. Counsel reviewed this case. The decision not to proceed with the prosecution was made by the CPS, after consultation with the Attorney-General. It was based on the advice of senior Treasury counsel in the case. The evidential deficiency related to the prosecution's inability within the current statutory framework to disprove the defence raised on the particular facts of the case. The view of senior Treasury counsel and the DPP was that there was no longer a realistic prospect of conviction.

The prosecution consulted the Attorney-General before offering no evidence in this case. However, the decision not to pursue the case was that of the Crown Prosecution Service, as it was based on the view that there was no longer a realistic prospect of conviction. The Attorney-General made it clear, however, that he agreed with it. At the central criminal court on 25 February 2004, senior Treasury counsel informed the court that the prosecution was offering no evidence, as there was no longer sufficient evidence for a realistic prospect of conviction. Perhaps at this point I may tell the House of a statement made this morning by the Director of Public Prosecutions, Ken Macdonald. He said:

That was the DPP's statement.

I recognise that many in the House will want to know more about the detailed basis on which counsel concluded that there was no longer a realistic prospect

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of conviction. However, as the matter concerns issues of intelligence, it is not appropriate for me to go into that, even to this House.

As for the impact of the decision on the conduct of future prosecutions, the substantive law is always kept under review, and the effect of particular prosecutions on the substantive law considered.

Mr. Dominic Grieve (Beaconsfield) (Con): May I first thank the Solicitor-General for giving me an advance copy of the statement? I make no criticism of the slight lateness of its arrival, and I accept her apology for that. I should also like to say at the outset that I see no reason to express any criticism whatever of the conduct of the Attorney-General, on the facts as they are available at present, or indeed of the Solicitor-General. Nevertheless, this case raises some very important and worrying features.

It is an unusual feature of the case, as the Solicitor-General will confirm, that the facts of Ms Gun's actions were not in dispute. The defence that had been raised was one of necessity. When was that defence first expressed? Was it, as has been suggested and as I believe to be the case, in the numerous interviews that took place between Ms Gun and her interviewers, under caution, in the spring and summer of last year, leading to her being charged with this offence in November?

Was it the case that, prior to charge, the Director of Public Prosecutions and the Attorney-General were consulted, so that the Shawcross exercise of which the Solicitor-General spoke was carried out? If so, why did the evaluation of the chances of conviction change so dramatically between the date of charge in November and the events yesterday? When did it become clear that the case would not succeed? When was it decided by the Attorney-General that it should not go ahead? I have heard what the Solicitor-General said about that decision being made prior to a request for further material from the prosecution on 24 February, but will she be more specific about that? I understand that the Attorney-General had discussions with the Foreign Secretary on 14 and 24 February. Will she amplify from that when the decision was taken?

Why was the view changed? There is no suggestion in this case that a defence statement had yet been served, because none was required prior to the plea and directions hearing. It was suggested by the Attorney-General in his statement in the House of Lords that new material had come to light. I appreciate that the Solicitor-General will not be able to comment on specific material, but will she tell the House why that material was not available earlier? Was the material produced for the prosecution by those supplying it with information within the intelligence services, or was it served by the defence?

I understand that the Attorney-General properly consulted Cabinet colleagues, as he is entitled to do under the Shawcross rules. As I said earlier, I believe that he consulted the Foreign Secretary on at least two occasions. Will the Solicitor-General tell us whether, in addition to that, the Prime Minister was consulted about this case at any time between its first investigation and its discontinuance?

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It has been widely suggested and publicised that the discontinuance followed a request by the defence for a copy of the Attorney-General's advice on the Iraq war. I cannot see a reason why the Solicitor-General cannot indicate whether such a request was made prior to discontinuance yesterday, and I would be grateful if she would tell the House whether that was indeed the case. I would obviously agree with her if she were to confirm that that document would be covered by privilege and therefore be unobtainable, unless of course the Government chose to waive the privilege upon it.

The Attorney-General made an important point in his statement, which was repeated by the Solicitor-General:

That is a very serious statement, and if that is so, is the Solicitor-General saying that, under the Official Secrets Act, no defence of necessity can be rebutted, so that in future no such prosecution can ever succeed, allowing anyone who chooses to leak official documents—potentially causing great damage to our freedom—to escape conviction? Or is she saying that, as Official Secrets Act prosecutions usually require the withholding of certain material from a jury under public interest immunity, resulting in the acceptance by the jury of the good faith underlying the prosecution process brought by the state, that the current state of public distrust of the Government over their actions in Iraq has rendered the process of justice impossible in this instance? Whichever is the case, this is a disastrous state of affairs for the due process of justice in this country.

In the House of Lords, the Attorney-General suggested that a review of the Official Secrets Act was to be conducted. Will the Solicitor-General tell the House when that might happen, and when a statement might be made to the House of the implications of this case? There have been previous requests by many people to see a copy of the Attorney-General's advice. There are perfectly good legal reasons for not making it available, but does the Solicitor-General agree that it is open to the Government, if they so choose, to waive their privilege and to allow the advice to be made available to the public? Will she consult her Cabinet colleagues about whether that might help to restore faith in the administration of justice in this country? There are very serious matters that go way beyond the issues surrounding the case in the Solicitor-General's and Attorney-General's statements. I very much hope that the Solicitor-General can clear up some of these matters.

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