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26 Jan 2009 : Column 50

Today we learn that the appointment has effectively been postponed for another whole year, and that the Government have appointed a “champion”. I welcome that, but I am left with the feeling that it was a fig leaf for their failure. It is another case of more talk and no action. If the Justice Secretary is really serious about victims, why does he not introduce what we have called for—a proper victims fund, funded through the earnings from prisoner work schemes and the proceeds of crime?

The Bill will do little to strengthen criminal punishment but plenty to weaken British justice. The proposal, in the part of the Bill dealing with coroners, to remove juries and hold proceedings in secret is an even broader version of the proposal defeated in the other place during the debate on the Counter-Terrorism Bill. The House will recall that in June Ministers failed to make the case that the security case justified this draconian step. What new evidence does the Justice Secretary offer up on this point? When the proposals were withdrawn—we greatly welcomed that—I was under the impression that the Government might embark on considerable consultation to see whether there was an alternative way forward, given the level of disquiet, which was brought home to them very clearly, yet I see no such consultation. Instead, they have just come back to the House and regurgitated the same proposals with some very minor changes.

The challenge of reconciling sensitive evidence with the demands of transparency and due process is not new, and I do not see the specific problem that cannot adequately be addressed within the current system. The Secretary of State said that this was an inquisitorial process, so we could not have the public interest immunity approach, involving an adversarial process. I accept that that is an issue, but substituting something that has all the hallmarks of a secret investigative process will never command the public acceptance and confidence that an inquest process must do if it is to have any relevance—or to be held at all. On that basis, we might as well say that there is no point in having an inquest.

If the Government were prepared to show the necessary flexibility—although I fully accept that it might in some cases mean that some evidence could never be brought before inquest juries—it would be possible to put in place a system with the flexibility that would still allow the process to be open, and would ultimately still enable the Government truly to say, “We have done our best to enable openness to be maintained.” Without that, I fear that these proposals will simply undermine public confidence still further. We will therefore consider them very carefully, and it is most unlikely that they can command our support.

Mr. Straw: I am grateful for the hon. and learned Gentleman’s recognition that there is a problem, and that the parallel with criminal trials is not really accurate. Since he accepts that there may be circumstances in which evidence would have to be kept from a coroner’s jury, which is at the heart of these proposals, we are ready to consider any constructive suggestions that he or other colleagues make to us.

Mr. Grieve: There is evidence that has to be kept from coroners’ juries at the moment, but in almost all cases—I know that there may be two in which the Government see a particular difficulty—those problems have been overcome. The route that the Secretary of State is
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taking raises the probability that the number of secret inquests without juries will grow, and that they will then be deemed convenient. That is why we are so concerned about the proposals. I hope that there will be constructive engagement in Committee, and I know that my hon. Friends who will serve on it want that, but I would not be doing my job or expressing my own feelings if I were not to say that I find it difficult to see how the proposals could command our acceptance. Indeed, I think that there is considerable disquiet about them across the House.

I spoke earlier about opposition to data-sharing powers. The Government’s track record of protecting the personal data that they hold on citizens is appalling. They have demonstrated serial, serious and systematic incompetence. They have lost the details of 130,000 prisoners held on a computer memory stick, and Driver and Vehicle Licensing Agency information on 3 million learner drivers, not forgetting half the nation’s child benefit records, which I believe were lost in the post. Members should view with deep scepticism the proposal massively to increase ministerial powers to share data across Government.

The clauses on data sharing are tucked away at the back of the Bill, but that should not conceal their dramatic impact. The Secretary of State said that I was exaggerating, but I take the view of the hon. Member for Somerton and Frome (Mr. Heath), who said that I was rather understating the matter. As a result of the proposals, Ministers will have carte blanche to expand data sharing between officials across Whitehall, local authorities and even companies in the private sector. Privacy International warns of the

and the British Medical Association has stated that the proposals will strip patients of any rights in connection with the control of their medical records. As I tried to point out to the Secretary of State earlier, that goes to the heart of the relationship between state and citizen. The proposals would, if the public interest required it, allow a statutory instrument to be made allowing the sharing of medical records data with Departments that are not at all concerned with treating individuals, for other purposes. I believe that that is unacceptable. If there is to be change to take account of the growing amount of data, it should be made with great caution and should not be the “open sesame” to a vast increase in Government power.

It is worth bearing in mind the fact that the security case has not been made, that we do not believe that the safeguards are good enough, and that all this is being done at a time when, I gently point out to the Secretary of State, public trust in the Government’s ability to protect data is at an all-time low. I recall the Prime Minister saying:

Indeed not—and that is one reason why the House should be very careful about the powers that it gives the Government in this area.

Finally—I disagree with my hon. Friend the Member for Buckingham (John Bercow) here—this would not be a new Labour justice Bill without some attempt to curtail freedom of speech. The balance between protecting
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society from incitement to homophobic hated, which I entirely applaud, and preserving legitimate public debate is delicate. I do not recall the Secretary of State, or the Home Secretary, who I believe was responsible, giving the impression that the decision to accept the Lords amendment to the Criminal Justice and Immigration Bill was a mere tactic for returning to the issue later. It appeared to involve an acceptance that the Lords amendment was sufficient to command acceptance.

The Parliamentary Under-Secretary of State for Justice (Maria Eagle): If the hon. and learned Gentleman looks at what was said on that occasion—it was I who said it—he will see that I made it clear that we would return to the matter at a further opportunity as soon as possible.

Mr. Grieve: I thought that the intention to return to the matter meant coming back with some other proposal that met the concerns that had been expressed about preserving freedom of speech. No case has yet been made—I wait to hear it—to show why the words that were included in the other place do anything to undermine the ability to prosecute the offence that has been created. If the Secretary of State or the Under-Secretary of State for Justice, the hon. Member for Liverpool, Garston (Maria Eagle), can make that case cogently, we will listen. In the meantime, I simply do not see it.

I perceive the provision as a saving clause, designed to deal with the chilling effect that always arises when restrictions are placed on freedom of speech. We debated it and commented on it previously, when we considered issues such as incitement to religious hatred. I want individuals who incite homophobic hatred to be prosecuted just as much as the Under-Secretary does, but I do not want the circumstances that I am about to outline to be repeated, and I do not believe that the Government want that either. Old age pensioners living in Blackpool wrote to their local authority, as is their right, to say that they did not approve of its giving money to a gay organisation. Instead of getting a reply saying, “Terribly sorry. We were voted in, and this is what we believe in. We disagree with you,” they got a visit from two police officers telling them that if they wrote such letters again, they might—even under the old law—be prosecuted. They recovered damages and got an apology, but only after a time. They received treatment that makes me ashamed of the system that we seem to be creating in this country. We must ensure that such things do not happen. A sensible freedom of speech clause would be helpful, to reassure those who want to continue to express views that are legal—even if I disagree with them.

Mrs. Humble: If I heard the hon. and learned Gentleman correctly, he said that individuals wrote to Blackpool council about that matter. Although the individuals are my constituents, it was not Blackpool council but Conservative-controlled Wyre borough council with which they had a problem.

Mr. Grieve: I am most grateful to the hon. Lady for putting me right, and I apologise for any calumny—it was unintended—against Blackpool. However, the hon. Lady reinforces my point. All the evidence shows that when the House legislates about such matters, the manner in which those who have some authority lower down the
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chain, and have to implement the legislation, interpret or understand it, is often at variance with what is intended. That is why problems have arisen. There was a street preacher in my constituency who said that people should repent and turn to God, and that if they did not repent they risked going to hell. The police came along and said, “You can tell them that they should repent and turn to God, but you shouldn’t give them the other half of the message.” [Interruption.] I agree with the Secretary of State that that is absurd, but the House must pay attention to the consequences of its actions in creating absurdities, which may appear amusing to us but are not amusing to those on the receiving end of individuals who take it upon themselves to interpret the law in a way that we did not intend.

David Howarth: Are not the hon. and learned Gentleman’s comments proof of the point that some of us made when the matter was originally discussed? Surely the right way to deal with this matter is by issuing guidance to the police and the prosecution authorities, and procedural protection, rather than including a pointless but potentially dangerous blanket exemption in the Bill.

Mr. Grieve: If the hon. Gentleman feels that the exemption is too wide and would therefore do damage, I encourage him to ascertain whether there is another way it can be drafted to meet my point; that may be possible. We have been content with such a provision in other cases where we have imposed restrictions on freedom of speech. I simply ask the House to consider the matter carefully, because I think that there is a genuine problem, which past experience has demonstrated. I hope that the Secretary of State will bear that in mind.

John Bercow: As my hon. and learned Friend knows, I yield to none in my admiration for his parliamentary and other talents. I have to say to him, however, that in this particular matter his memory serves him ill, and that the Under-Secretary of State for Justice, the hon. Member for Liverpool, Garston (Maria Eagle), is entirely correct in her recollection of the sequence of events. The Government made it clear that they intended to bring back this provision in a later measure; there was no question of their backing down or qualifying their position. The point about the Government’s policy on this matter, as encapsulated in the legislation, is that it is aimed at catching words or behaviour that are not merely insulting or abusive but threatening. The fact is that the Waddington amendment is a wrecking amendment; it is a menace, and it has to be defeated.

Mr. Grieve: I am afraid that I do not agree with my hon. Friend that the amendment was intended as a wrecking amendment. Indeed, reading it, as I did at the time, and re-reading it, as I have done more recently, I do not believe that it would have that effect at all. If he wishes to discuss this with me in greater detail, I would be only too happy to do so. That said, I have made it clear that that proposal might not be the only available solution, but I believe that it is important for there to be safeguards. If there are none, the law of unintended consequences will lead to people who express views that are perfectly legitimate—even if they are views with which we disagree—feeling as if they are being persecuted. That is not something that the House should embark on lightly.

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Mr. Geoffrey Cox (Torridge and West Devon) (Con): Does my hon. and learned Friend consider, as I do, that there is something anomalous in the Government’s proposal to remove the clause that protects free speech in relation to the discussion of homosexuality, given that they are not proposing its removal in the case of religion?

Mr. Grieve: There are indeed anomalies, and they were discussed at some length when this matter appeared previously, if rather bizarrely, in another piece of legislation. I very much hope that we will be able to look at those matters sensibly. There are no easy solutions, and I am the first to accept some of the examples that we have been given, including that of gangsta rap lyrics, which I regard as revolting. I have no difficulty at all in wishing to see them criminalised and stopped—absolutely none. Nor is this the pillar of some religious viewpoint; I do not think that it should be. I want to see a right for people to express their views, including views that other people might not like. That is what a free society is about, and the House must ensure that that can still happen, even when we have ensured that expressions of rabid hatred and incitement to hatred can be curbed. That must be the aim that we seek to achieve.

We will work constructively with the Government to improve the Bill, wherever that is possible. We agree that there are good things in it, and we want to facilitate their passage on to the statute book if possible. That is why we will not seek to oppose the Bill’s Second Reading tonight. We will strive to improve it in Committee and on Report, and to remove those parts that are unnecessary or counter-productive, or that we deem to be merely offensive. I hope that the Secretary of State and the Government will listen, although in the light of past experience I am not altogether optimistic about that. I put the Government on notice that if the Bill is not substantially amended—particularly in the area of data sharing, but also in other areas—we will oppose it on Third Reading, because its mischief will wholly outweigh the undoubted benefits that it could confer if the Government would listen sensibly to the views being expressed right across the House.

Finally, I want to come back to something that I said earlier. The clauses of the Bill are littered with the tacit admissions of a decade’s worth of failure. There is nothing in it to suggest that the Government, who have created a large part of this mess, have the slightest idea, or any overall plan, for how to put things right.

Mr. Deputy Speaker: I remind the House that Mr. Speaker has selected the Liberal Democrat amendment.

5.19 pm

Alun Michael (Cardiff, South and Penarth) (Lab/Co-op): I am a member of the Justice Select Committee, which has considered many of these issues. I am sure that the Committee Chairman will, if he catches your eye, Mr. Deputy Speaker, summarise some of the Committee’s comments, but I want to underline some specific points and to make some personal observations.

I must say that I was disappointed by the rhetorical flourishes that we heard from the shadow Justice Secretary. Of course we would all agree that the line between free speech and protecting the public is a very fine one, but preserving that fine line needs a constructive approach
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rather than caricature. Bureaucratic insanity in the interpretation of legislation is a problem, even when the law is sensible and very precise.

Let me start by referring to data sharing and the Information Commissioner’s work. As I said, the Justice Committee has made a number of helpful comments about that, and I think that the present Information Commissioner, Richard Thomas, has worked hard in that role to achieve a constructive balance, while being both clinical and challenging.

The first intimation I had of the difficulty of getting the line right on this issue came when, both in opposition and as deputy Home Secretary—in that role I worked very closely with my right hon. Friend the Secretary of State for Justice—I found that there was immense reluctance on the part of local government and the police to share data for the purposes of preventing crime. Indeed, we were so concerned about that that a clause went into the Crime and Disorder Act 1998 to say that preventing crime is a legitimate reason for sharing data. Lawyers told us that that was already the case, but, frankly, lawyers and data protection officers refused to accept that and to act on it, which is why we felt it necessary to put the provision in the legislation.

The hon. and learned Member for Beaconsfield (Mr. Grieve) referred to the Soham case in his response to my intervention, but that case exposed a problem of systems failure and systems not speaking to each other between two police forces. Actually, what came out of the failure of the police collectively to use information that was available in one part of the police service and to share it with another was a “headline” view among the public that everything must be shared in order to protect the vulnerable, particularly children. On the other hand, news reports on data protection and the data loss that we have seen on a number of occasions led to the equal and opposite headline that nothing should be shared. Both of those arguments are untenable and inappropriate.

The advice still given on occasions by lawyers and data protection officers is, “If in doubt, don’t share the data.” That is wrong—and wrong in principle. It is just as wrong as saying, “All data must be shared without reservation.” The important thing is that on every occasion, a balanced judgment must be made by those who have the information as to whether it is in the public interest, as well as in the interest of individuals, to share it. Nobody who is a holder of data can escape the specific responsibility to balance the pros and the cons and address the public interest. There is no escape from that responsibility. I fear that the shadow Justice Secretary went very wide of the mark by coming down on just one side of that equation.

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