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As the hon. Member for North-West Norfolk said earlier, the fact that the Minister has found it necessary to bring to the House with very little notice-her letter is dated 19 February-a series of important amendments to clauses 32, 33, 34, 37, 38, 40 and 41 is the clearest possible indication that the groups that have made representations to us are right, and that we should not rush such complex and sensitive legislation in the limited time that we have before a general election. That is particularly true given that many of the concerns expressed by groups such as the NSPCC seem to be precisely the
opposite of the concerns expressed about serious case reviews that we have just discussed. While the Government claim to be taking the side of groups such as the NSPCC on the protection of sensitive information from serious case reviews, they appear to be taking the opposite side on many of the arguments.
I genuinely feel that it would be extremely unwise of Members of this and another place to seek to make such important judgments in the absurdly short time that is available to us. I will confine myself to saying that Members of both Houses will do all we can to ensure that the proposals are not enacted, so that we can consider them in the detail that they deserve.
The Parliamentary Under-Secretary of State for Justice (Bridget Prentice): I rise relatively early in this fairly short debate, partly to respond to the amendments tabled by the Opposition but partly to agree with both Opposition spokesmen that it is a matter of regret to us all that these matters were not debated in Committee. I sat through every Committee sitting, including the public evidence sessions, and I assure Members that it is pretty frustrating to sit there and be unable to make at least some comment on a part of a Bill for which one has some responsibility.
I also rise to speak at this point in the debate because in the course of the public evidence sittings and throughout the period when this part of the Bill was being discussed outwith this House, including by the many organisations that have contributed to it, we listened to what people had to say, which is why we have tabled our amendments in this group. I hope that my comments will lead the hon. Member for North-West Norfolk (Mr. Bellingham) to appreciate that I am doing all I can to try to be helpful and to assuage some of the concerns people have raised, even though they were not debated in Committee.
I want to begin by considering why we have come to our current situation. I acknowledge that the hon. Gentleman said at the beginning of his speech that he and the Opposition agree that transparency in the family courts is an important issue, and that they support that and find it unacceptable that the family courts differ so much from the rest of the Courts Service. For a number of years-in fact, since Lord Justice Munby's Re B judgment in 2004-we have been consulting on, and slowly changing, the extent to which individuals can share information from the family courts, and we have been able to move from a system that, for example, did not even allow a man or wife to disclose to their new partner the fact that they were involved in Children Act proceedings for contact arrangements for their child from a previous relationship. They were not allowed to talk to their MP about such issues either, and given that over the past year we have, for a variety of reasons, been very concerned about the relationship between the MP and their constituents, that is a pretty large hole in the system.
Those aspects of the system were clearly unhelpful for the people involved, and unhealthy for democracy and justice. We therefore changed the rules so that the situation is now more open and transparent, but always with checks and balances to make sure that the publishing of information, for example, is permissible only within a very specific framework. Those changes have proved to be relatively successful.
The hon. Member for North-West Norfolk has mentioned that last year we introduced the family court information pilots, which are looking at the impact on the judiciary and the court system of publishing anonymised judgments online. Anonymised judgments were established not for the benefit of the media, but, rather, to see how the system impacts on the judiciary. They also protect the identity of those involved, which is a key factor in their success. Again, checks and balances are in place. The hon. Gentleman asked about Wolverhampton. Its pilot started in January, so it has been running for only two months so far.
In April last year, we made a very important change to the rules of court, so that the media now have the right to attend most family proceedings. The hon. Gentleman rightly pointed out that they could attend the top and bottom ends, so to speak, of the family proceedings, but not some of the more central areas, such as the High Court. Again, we have put in place sufficient checks and balances to ensure that the courts can choose to exclude them, where appropriate.
The recent evaluation showed that the changes have presented few problems, and that the major block to their achieving their objectives is that the media are not attending family proceedings to the extent that we had expected, largely because they can report so little of the information that they might learn from the proceedings. Whereas the other measures that we have introduced have made a positive contribution to making the family courts more open and transparent, allowing the media to attend has not as yet added to that. The limits on what can and cannot be reported are such that the media do not, on the whole, bother to attend. Because the media are not allowed to report anything of substance, the public are not able to grasp how the family courts work, or how the courts reach very difficult decisions every day about children and families. The concept of open justice is all the poorer for that.
That is why we have introduced these provisions. Their aims are to allow the media to report on the family courts more fully, to allow the public to be more aware of the work of these courts and the decisions they make, and to afford family courts the openness and transparency other parts of the judicial system have had for many years. We do not and would not tolerate such restrictions in other parts of the justice system, so these changes are long overdue, but I seek to persuade Members that while the changes we have made so far have been relatively successful, and while I hope those I propose in today's amendments will also be successful, they are all proposed with the privacy and safety of children in mind, and with checks and balances to ensure that that is achieved.
Even though the details were not discussed in Committee, I am aware that a number of concerns have been raised since the original clauses were introduced. I hope Members will agree to the amendments tabled today or late last week-I am sorry it took so long for that to happen, but that was entirely outwith my control. I say to the hon. Member for North-West Norfolk that I would never dream of describing him as churlish, and I hope that, like me, he has come to this debate in a spirit of openness and with the aim of trying to take this matter
forward and of putting measures in place that will be better for the justice system and all those involved in it. We have considered the concerns raised, such as protecting privacy, while also ensuring the system can be as open as possible, and I hope these amendments will allay some of those concerns. We also want to ensure the integrity of the process in making a considered transition to a second, more open, phase.
First, let me address the amendments dealing with the issues of privacy and identification. Government amendments 113, 114 and 115 all deal with the publication of information contained within court orders. Taken together, these amendments will make it clear that, while the default position is that court orders in relevant family proceedings will remain publishable without the court's permission being required, the publisher will need to remove any identification information from the text or summary of the order before publishing. The publication of an order complete with any identification information that the order contains will require the court's permission. These amendments are offered in response to concerns raised about the important question of how best to ensure that orders in family proceedings may be made public without an excessive risk of identification of those involved. By placing the responsibility for redaction on the publisher, the Government are ensuring that no undue burden is placed on busy family court judges to have to check every family court order in order to make sure that identification information has been removed.
Mr. Bellingham: May I draw attention to the extra safeguards in our new clause 9, which differentiate it slightly from Government amendment 130?
Bridget Prentice: I hope that, as I go into the detail of our amendment, that differentiation will become clear. However, let me say to the hon. Gentleman, as I have said before, that I am happy to look at some of these issues further to see if changes need to be made in the other place. I hope that he will forgive me if, for the moment, I stick to arguing my case as I have it before me. Those amendments seek to assist the operation of the legislation. I hope that they will satisfy some of the calls for additional clarity, because I accept that originally the provisions were rather opaque.
Amendments 131 and 132 would plug the gap in ensuring that a person who has provided a statement to the court within the relevant proceedings would count, along with witnesses actually called to give evidence, as being "involved in" proceedings for the purpose of the Bill. On amendment 130, I accept that, as has been mentioned by the hon. Members for North-West Norfolk and for Yeovil (Mr. Laws), the addition of a list similar to that in section 121(3) of the Australian Family Law Act 1975 was strongly advocated by a wide variety of stakeholders. We have therefore accepted that it is appropriate to include in the Bill a list of what constitutes "identification information". Having said that, I believe that the Bill, as introduced, was fit for purpose and that provisions on what constitutes information "likely to identify" are equally so.
I am aware of the need for as much clarity as possible if the Bill is to work as intended, so the amendment builds on the Australian model and provides additional guidance for both parties and the media as to what
constitutes "identification information", highlighting the sorts of information that are most likely to be "identifying" and in respect of which particular care should accordingly be taken. In addition, amendment 117 adds a provision that mirrors section 97(2)(b) of the Children Act 1989 in prohibiting publication of information likely to identify the home address or the school of a child involved in proceedings. That would remove any scope for arguments as to whether such information might identify the child.
The hon. Member for North-West Norfolk made a number of points that have been raised by the judiciary and, in particular, by Sir Mark Potter, and I hope that he will accept that although amendments 115, 118 and 119 are technical, they address the points made by the senior judiciary. Amendments 118 and 119 would remove the additional explanations of what amounts to
"information relating to the proceedings".
That term will continue to have the meaning established by the case law on the identical wording in section 12 of the Administration of Justice Act 1960.
Amendment 115 mirrors section 97(2) of the 1989 Act-and the Australian legislation-in referring to identification by members of the public, rather than by "one or more persons", which might have had the unintended effect of preventing publication in almost every case however little information might be made available. Within those provisions, however, not only do we wish to ensure privacy where required, but we wish to make reporting as open as it can be. We have, thus, responded to concerns in that regard too.
Amendments 116, 117, 118, 121, 124 and 126 would remove references to persons "referred to in" proceedings from clauses 34, 37, 38 and 41. That would mean that the publication of identification information relating to persons referred to in proceedings but with no direct link to them-I call this the David Beckham amendment, because it deals with cases where a child's favourite footballer or pop star is mentioned-would not be prohibited, as clearly that is not what is intended. Having said that, there may occasionally be exceptional cases where the court would need to protect a person who is "referred to" in proceedings, as opposed to more actively involved. Such a person might be, for example, a neighbour who has reported domestic violence to the police. The Government feel that the court's discretionary power to restrict publication in clause 37(2) will cover such situations.
These amendments do not cover references to a person "referred to in" proceedings in clauses 35 and 36, because they serve a different purpose. In clause 35, the avoiding of an injustice to a person referred to in the proceedings, or the protection of the welfare of a child or vulnerable adult referred to in the proceedings, may well be a reason for permitting the publication of information. The court will decide this, and in so deciding whether to permit that publication, it will have to take into account the risk that would be posed to the safety or welfare of a person "referred to".
A number of concerns have been raised about the contempt provisions for circumstances where the reporting restrictions are breached. Amendments 119 and 120 deal specifically with defences to contempt of court. The amendments provide those republishing information from another publication with a defence if they did not
know, and had no reason to suspect at the time of publication, that the information already published was in breach of any of the requirements for an authorised news publication. Without the amendments, there would be a risk that someone republishing information already in the public domain could find themselves charged with contempt for publishing information that they could not have known was in breach of reporting restrictions. Although it is right and proper that the courts pursue those who knowingly publish information that is in breach of reporting restrictions governing family proceedings, it is also right and proper that those who seek only to inform the public in good faith are provided with a defence against being held in contempt of court.
So that the courts can continue to authorise publication in individual cases, amendment 111 responds to judicial concerns raised in the evidence of the president of the family division, Sir Mark Potter, and is intended to make it clear that courts may continue in the exercise of their inherent jurisdiction to authorise disclosure of information in limited circumstances not covered by rules of court, at the request of the parties or upon the court's own motion.
Finally, we have considered the concerns about the review process that will be required prior to moving to a more open second phase. I understand that the hon. Member for Yeovil has particular concerns about this area, and I hope that amendments 122 and 123 will allay some of them. Our amendments would require that the Lord Chancellor commissions an independent review of part 2 of the Bill before the amendments concerning sensitive personal information in schedule 2 may be commenced. We recognise that it is in everyone's interest, particularly that of children, that we get the review process right and ensure that the initial set of changes are subject to a considered and robust examination-it would be in nobody's interest to do anything less.
Mr. Timpson: Will the Minister explain why she does not see the pilot that is under way and an evaluation of the changes that were introduced in April 2009 as an integral part of that review? Should we not be able to see the outcome and evaluation of those two aspects before we look towards having an independent review of part 2 of the Bill?
Bridget Prentice: To some extent, I would say that they will be an integral part of that review. I shall go on to explain in more detail about how I think that that review might work, and I would expect it to take those pilots into consideration. It would consider the whole procedure of openness and transparency in the family courts, and the pilots would be included. We will review the pilots before then anyway, as part of their timetable. There seems to me no reason why the review, when it comes about, could not also take them into consideration.
The hon. Gentleman is right to say that the benefits of an independent review are significant, not least because it will be crucial for its report to be accepted as a fair and accurate account of how those initial changes have operated. It is also important, therefore, for the independent reviewer to consult publicly on that. If the review is to
have the respect that we want it to command, it needs to be set up on the right footing. That is why we are also giving a commitment that its terms of reference will be agreed by the Justice Committee. The Chair of that Committee, the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), was here during the earlier part of the debate and I am sure that he will be looking at the details later. As I have said, if the Justice Committee were to include the pilots as part of the review procedure, I see no reason why that would not be perfectly acceptable. It might give the reviewer more credibility when the review takes place.
Mr. Timpson: In that case, what is the Minister's objection to our new clause 2?
Bridget Prentice: On one level, I have no objection to it in principle. There is much to be said for some of the things in it. However, I do not think that it is appropriate at this stage. I shall come to that point in a moment, but I want to finish talking about the review first.
The review will not start until at least 18 months after the commencement of this legislation, to give the first set of changes time to bed in. It will be something between 18 and 24 months, I would envisage, before the review will take place. That will give considerable time for the production of evidence for it to consider.
New clause 2 is unnecessary at this stage, because the amendments that we have tabled make it clear that the move to the new regime will not happen automatically. The review is therefore not a rubber-stamping exercise.
Mr. Mike Hancock (Portsmouth, South) (LD): I am grateful to the Minister for giving way. Will she explain why, if she has no objection in principle to new clause 2, it would be inappropriate to accept it tonight?
Bridget Prentice: I am not prepared to accept it tonight because I think that our amendments satisfy the concerns that people have raised. I said to the hon. Member for North-West Norfolk that after this debate I would look further, if necessary, at whether other tweaks might be necessary in another place. At the moment I am not absolutely convinced that they are, but I am happy to consider the matter further later. At the moment, I think that the amendments that we have tabled instead of new clause 2 are sufficient.
Mr. Bellingham: I am grateful to the Minister for giving way; I wanted to help her a bit on the subject of the pilots, following the point raised by my hon. Friend the Member for Crewe and Nantwich (Mr. Timpson). Would it not be better to put the requirement for a review of those pilots and an evaluation in the Bill? It would be easy to do that. Surely she can accept that point, as we move forward to make part 2 work through this process, which is phase 2 overall-well, perhaps phase 3, because phase 1 involved the changes that the Government brought in a year or so ago. The pilots were part of that, and obviously they need to be properly evaluated. To have such a provision in the Bill would, I am sure, satisfy the concerns of many of those who attended the Public Bill Committee hearing.
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