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“It is in vain to say that enlightened statesmen will be able to adjust these clashing interests and render them all subservient to the public good. Enlightened statesmen will not always be at the helm.”
These provisions are based on the assumption that we are all good chaps together so the powers will not be abused. That is an assumption that we cannot make.
The provisions would also allow all the restrictions on data sharing in the Identity Cards Act 2006 to be overridden by order. Under that Act, identity data may be shared only with the bodies specified in sections 17 to 21 of the Act—the security services and, with important exceptions as to the type of data, other public authorities, departments and the police. Under the Bill, the Government would be able to authorise sharing the data collected in the national identity database with absolutely anyone without any of the safeguards in the Act. In theory, it will also be open for the Government to sell that data to the highest bidder.
The provisions also allow the override of any safeguards against the sharing of medical records and DNA records. That includes the provision of medical and DNA records not just to public authorities but to anyone, including employers, insurance companies and even the media. The same goes for tax records. Many Members will have received a briefing from Privacy International, which goes on to give yet more examples of what can be done under the provisions.
The Government say that the orders will be subject to scrutiny by the Information Commissioner and to an affirmative vote by Parliament. In extremis, all that will mean will at best be a 90-minute debate in a Committee, with the Government side of that Committee carefully chosen and a whipped deferred vote just after Prime Minister’s questions.
The Government’s main defence today has been that the provisions are in line with the recommendations of the Thomas and Walport review on data sharing, but that is not the case. That report did say that there should be a fast-track secondary legislation route to allow data sharing, but it also said that the power to do so should exist only in precisely defined circumstances, which is certainly not what has happened. Any person, any relevant Government policy and any enactment are hardly precise circumstances. The Thomas and Walport report expressly says at paragraph 8.47 that
“we believe this process would not be appropriate for large-scale data-sharing initiatives that would constitute very significant changes to public policy, such as those relating to the National Identity Register or the National DNA database.”
That is exactly what the Bill as drafted would allow.
Alun Michael: Does the hon. Gentleman agree with me about how the provisions of proposed new section 50A(4) apply? It requires that the
“sharing of information enabled by the order is necessary to secure a relevant policy objective”,
which is, I think, the point that he has made quite strongly. However, it goes on to require that
“the effect of the provision made by the order is proportionate to that policy objective”—
and, and this is my point, that—
“the provision made by the order strikes a fair balance between the public interest and the interests of any person affected by it.”
In other words, the requirement for balance in coming to a conclusion about whether data should be shared is clearly written into the Bill.
David Howarth: If the right hon. Gentleman is saying that a court might say that on judicial review, he is whistling in the wind. That is precisely the kind of provision that a court would say was plainly political and not for them to judge.
Emily Thornberry: Would the hon. Gentleman’s fears be somewhat allayed if there were an express restriction in the Bill stating the need for compliance with article 8 of the Human Rights Act 1998?
David Howarth: That would help a little, but I think that it is already implied in any legislation. The circumstances in which the power can be exercised need to be reduced to the precise terms that Thomas and Walport required.
Mr. Grieve: Does the hon. Gentleman not agree that the argument comes back to the central point that the measure has completely bypassed any public debate on the circumstances in which Parliament would even contemplate public policy objectives overriding the privacy rights that are implicit in the existing relationship when individuals give information to specific Government Departments? We will be dispensing with that without any real debate about the principles and simply creating a system in which such things can be done at will by the Government based on single votes in this House.
David Howarth: That is a very important point that goes back to debates on other Bills that create such broad powers.
May I also say to the Government that it is somewhat alarming that the recently published impact assessment on the Bill seems to mention these provisions only in passing and fails to say what the intended costs and benefits of their specific use will be? Will the Government say precisely what they intend to use the provisions for? Some examples have been given, but there seems to be no limit to what that intention could be in the future.
Mr. Heath: My hon. Friend is making a very strong case. Does he agree that even if any malevolent intent on the part of anyone in putting together these databases is discounted, it is inherent that the more information that is put into a single database and the more accretions that are there, the bigger the impact of any accidental loss of data? We have seen material being put together and then lost by Departments time and time again, to the great discomfort of the people whose information has been supplied.
David Howarth: That is the inherent problem with data sharing—it increases the risks of things going wrong, not necessarily because of malice but by accident.
My conclusion on those clauses is that, as drawn, they are outrageous. They should be withdrawn, thought about again and introduced in a separate Bill. In my view they alone, in their present state, justify rejecting the Bill.
Let me now turn to the red rag—the provisions for secret inquests without juries.
John McDonnell (Hayes and Harlington) (Lab): The hon. Gentleman is right to cite a potential parliamentary tactic, in that those measures are at the end of the Bill. Can we as a House make it clear to the Government that any programme motion on Report should not put us in a position where that subject slips off the end of the debate, as has occurred on a number of occasions with important matters?
David Howarth: That is a very important point, and I hope that the Government and the usual channels are listening.
Let us turn to subject of secret inquests without juries. My starting point is that the Bill is already somewhat defective as it fails to guarantee that there will be a jury in any case where there is reason to suspect that the death occurred in any way at the hands of the state. Provisions in the Bill move in that direction, but they do not go far enough. Deaths at the hands of the police and in custody count, but a jury should be required in any case of any death in which state power is implicated. My starting point is therefore with the jury rather than with secrecy.
There are problems with secrecy and privacy—it is important to recall the points raised by the hon. Member for Hendon (Mr. Dismore), such as the question of how a family will get closure if it is excluded from the process—but the jury is at the heart of the question. The main historic function of the inquest jury is to provide a check on the abuse of state power and on the temptations for state officials to mislead and to gloss over the facts about what has happened.
The Secretary of State’s defence of the provisions on secret inquests did not go to the heart of the problem about juries. In my view, the Government appear to think that juries are not to be trusted—that juries are members of the general public and that we need to have as few of them taking part in the process as possible. That seems to me to be entirely the opposite of the attitude that we should be taking. Instead, we should be looking for ways in which juries can take part in even the most sensitive cases. As the hon. and learned Member for Beaconsfield (Mr. Grieve) said, if there is a limit to how sensitive the information might be, we can deal with that by excluding some of it from the information made available to the juries. Our initial reaction should not be that the best thing to do is to get rid of the jury.
Such matters are very important in a range of cases. They are not merely important in the politically embarrassing cases, although they are important in those cases, too: in the de Menezes case, the Baha Mousa case, the inquests into the deaths of soldiers in Iraq and Afghanistan and any repeat of the David Kelly affair. It is enormously important from the point
of view of maintaining faith in the system that when the Government assert in such a case that nothing really went wrong, they should be able to say, even if all the facts do not come out in public, that the matter was decided by independent members of the public who were not part of the state or of the Government apparatus and that those people back up what the Government say.
I admit that the provisions in this Bill are better than those in the Bill that became the Counter-Terrorism Act 2008. Thankfully, the provisions in that measure that allow the Secretary of State to influence the selection of a special, trusty coroner have been removed from this Bill. I hope that whoever advised the Government to include those outrageous provisions will never again be allowed to advise them on a matter of constitutional importance, but we are still left with inquests that are not just secret but jury-less.
The conditions under which the Secretary of State may issue a certificate that bans or removes the jury from a case are still the enormously wide ones contained in the Counter-Terrorism Act 2008. They include anything to do not just with national security but with relations with another state, and anything that the Secretary of State thinks might cause real harm to the public interest. I suppose that one might wonder what unreal harm to the public interest might be but, even so, the conditions seem extraordinarily broad
Mr. Grieve: Does the hon. Gentleman agree that one thing that the Government could have considered, but did not, was requiring the Secretary of State to make an application to a judge to make an order?
David Howarth: Absolutely. It would be a far better procedure to put the whole question into the hands of the judiciary in the first place, rather than into the hands of the Secretary of State. Part of the background problem is that the Executive distrust almost everyone else. In the Counter-Terrorism Bill, they attempted to take control of the selection of judges: that proposal was got rid of, but they are still obsessed with having some control over getting rid of anyone in the process who they feel might not be on their side.
That leads me to another point—the link that the Bill makes between the use of intercept evidence and the absence of a jury. I and many other hon. Members favour greater use of intercept evidence in the criminal justice system in general, and I believe that many of the Government’s objections to that are incomprehensible when compared with what happens in other countries. I welcome this small chink in the Government’s previous opposition to the use of intercept evidence in court, but I do not like at all the way the use of intercept evidence is linked with getting rid of the jury. The idea that intercept evidence can be used only when members of the general public are excluded from a case would be a dangerous precedent to allow when it comes to the future development of this part of the law.
I object to the red rag, but the Secretary of State talked about the possibility of different proposals coming forward and of amendments being accepted. For that reason, I suspect that the person who holds the red rag will be tempted simply to put it away once the bull has charged, as it will have served its purpose and attracted our attention. Even so, if the Government are interested, I will take up their offer of trying to work towards a better solution to the problem.
I turn now to the rest of the Bill and all the square miles of text that separate the red rag from the contraband. Some of the material—such as the references to knives and criminal memoirs—is plainly designed for the media grid. By the way, the provisions relating to criminal memoirs contain an amazing section that enshrines populism in statute. When deciding what to do about criminal memoirs, the court will have to take into account whether the public would be offended by the criminal making money out of them. The Bill might as well say that the court should pay attention to what the editors of the Daily Mail and The Sun think.
I do not oppose everything in the Bill, as some of its provisions are to be welcomed, but I believe that parliamentary scrutiny of the rest of it will be largely prevented by the fact that so many different subjects have been jammed together. However, some of the material in the Bill needs more than just tidying up, because it is seriously misguided. I am referring to the attempted reforms of the law of murder, which the Secretary of State passed over very rapidly in his speech.
The impact assessment reveals that the intention of the reform is to convict more people of murder and fewer of manslaughter. It talks about 100 to 200 more murder convictions over the next eight years, at a cost of between £4 million and £8 million. People will no longer be convicted of manslaughter: they will be convicted of murder instead, but who will those people be?
One group who will be convicted of murder rather than manslaughter might be mercy killers. At present, they are often—but not always, as a case last year showed—convicted of manslaughter, rather than of murder, by reason of diminished responsibility. That is because the present definition of manslaughter is fairly loose. It says that a person
“shall not be convicted of murder if he was suffering from such abnormality of mind”
“as substantially impaired his mental responsibility”.
That is quite vague stuff, and it allows prosecutors and courts some leeway when deciding whether to go for a charge of murder or manslaughter. Under the Bill, however, the defendant will have to have suffered from a specific, recognised medical condition, and not just from some “abnormality of mind” or other problem. Moreover, the Bill requires the condition involved specifically to have caused the homicide, and not just reduced the defendant’s responsibility for it.
There are different views on mercy killing. Personally, I oppose euthanasia, but I cannot see what good it does to hand out more mandatory life sentences to mercy killers as opposed to letting the judge decide the penalty. That penalty might be life, but need not be in any given case.
The current law includes a phrase about the arrested development of mind, but this Bill leaves it out. Combined with the strict causation requirement, and given what happens in the courts now, that seems to me likely to mean that another group of people—those with learning difficulties—will be convicted of murder rather than manslaughter. Why do the Government want that to happen?
I turn now from diminished responsibility to provocation. There is further confusion in the Government’s proposals on provocation, which have been variously described as
“a dog’s breakfast” and “a pantomime horse”. One group of defendants who under the new definitions might well find themselves convicted of murder rather than manslaughter—although that would be contrary to what the Government apparently intend—are abused wives. The Bill retains a condition in the current law that has often thrown into doubt an abused wife’s ability to use a provocation defence. That condition is that there must be a loss of control.
I am not a criminal lawyer, so I have always been rather puzzled by the requirement in the law that there must be a loss of control for provocation to reduce murder to manslaughter. It seems to me that, apart from contract killings, all murders involve some sort of loss of control, but I am reliably informed that that is not the view that the law takes and that wives who kill their abusive husbands by waiting for them to go to sleep and then attacking them, for example, are usually said not to have lost control.
The Bill seeks to overcome that problem by declaring in clause 41(2) that
“it does not matter whether...the loss of control was sudden.”
That does not seem to help at all. Loss of control must happen at some point. Someone has control, and then they do not. In some cases, there might be a longer lead-in time for the loss of control—it might take a longer time, rather than a shorter one, to lose control—but in the end, there comes a point where control is lost. A statute can do many things, but it cannot change reality. An abused wife will have to show that she lost control at the point that she killed to qualify under the statute. If she has not lost control at that point, she will still be guilty of murder.
The Government also say that clause 42(3) means that it is enough to convert murder to manslaughter through provocation, or what replaces it, to fear serious violence from the husband, but that is not what the clause says. It says that a loss of control can be attributable to such a fear. If there is no loss of control in the first place, the fear is not relevant. So I fear that, under the Bill, the 100 to 200 extra convictions for murder will include abused wives.
Another type of defendant—perhaps it is one with which Members will have less sympathy, but such cases happen—who will be convicted of murder under the Bill, as opposed to manslaughter, is those currently covered by the Doughty decision: parents who were previously loving and caring but who, under pressure of stress and fatigue over a long period, suddenly snap and kill their children. They are not threatened with serious violence, but neither do they have, in the words of the statute,
“a justifiable sense of being seriously wronged”.
Such people would not be able to bring themselves at all within what those words describe. They lose their temper, although under serious stress. Perhaps the Government intend that such defendants should be convicted of murder, rather than manslaughter, and receive the mandatory life sentence, but they have not said so, and it is unclear to me why they would want that.
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