§ Mr. Dominic Grieve(Urgent Question) (Beaconsfield) (Con)
Will the Solicitor-General make a statement on her Department's wrongful disclosure of court papers to the Minister for Children?
§ The Solicitor-General (Ms Harriet Harman)
This question relates to the case of Re B, a minor, who was the subject of a care order on the ground that the child had been harmed by the mother, who was suffering from Munchausen's syndrome by proxy. The House will remember that I made a statement on 20 January after the Court of Appeal gave its judgment in the case of Angela Cannings. That was a criminal case where the mother was alleged to have been suffering from Munchausen's syndrome by proxy, but she was freed by the Court of Appeal.
The House will remember that I announced that we had set up a review to establish whether there were any other cases where the expert evidence had been central to the conviction and that such cases would be reexamined by the Director of Public Prosecutions and, if necessary, by the Criminal Cases Review Commission.
In answer to questions and expressions of concern about injustices that might have happened, not in the criminal courts but in the family courts, I told the House that the Minister for Children would be responsible for considering the implications of the Cannings case for cases involving care proceedings in the family jurisdiction. That statement in the House received widespread media coverage, which was understood by some to be an announcement that the Minister for Children was herself going to review individual family cases.
On 23 February, the Minister for Children made a statement to this House explaining that she was issuing guidance about how local authorities should proceed to review care cases where the basis of the evidence was expert testimony that the mother was suffering from Munchausen's syndrome by proxy. After the reporting of my statement to the House, I had a number of discussions with people raising the question of reviewing cases involving care proceedings. That includes, for example, discussions with some hon. Members and with the director of social services for Southwark, in my own constituency.
I was told by a solicitor, who happened to be my sister, that she was considering what action to take in respect of a client of hers who was seeking to challenge an order of the High Court taking the child into care. Part of the evidence had been that the mother was suffering from Munchausen's syndrome by proxy, about which I had been liaising closely with the Minister for Children. The solicitor in the case of Re B, a minor, sent me a copy of the High Court judgment, which I read. The names had been blanked out, so I did not, and do not, know the name of the child or the family. I simply looked at the court judgment.
I formed the view, on reading it, that it was likely to form the basis of a ruling by the Court of Appeal that could assist local authorities and others in understanding whether the issues raised in the Cannings case—a criminal case, of course—had any implications 886 for care cases in the family jurisdiction. I thought that the Minister for Children should be aware of the judgment.
I understand that, subsequently, the Court of Appeal had itself notified the Minister for Children of the judgment in Re B, a minor, and offered to send her a copy of that judgment and all the papers, and invited her to consider whether she wanted to intervene in that case. It gave leave for the judgment and associated papers to be sent to her. Before I sent the judgment—without the names—to the Minister for Children, I sought legal advice from my office. I was advised that there was no prohibition on my doing so because the names had all been blanked out, and subject only to checking with the solicitor that there was no specific ruling in the case that prohibited disclosure. Having checked with the solicitor, I then sent the judgment to the Minister for Children.
When the local authority responsible for the care proceedings challenged my sending the judgment to the Minister for Children, the lawyer in my office who advised me reconsidered the question and decided that he probably was wrong, and that I should not have sent the judgment to the Minister for Children without a court order.
However, I can reassure the House that I acted on legal advice. I did not identify the child: I could not do so, in any event, as I did not know the child's identity. Also, in any event, the Court of Appeal subsequently asked the Minister for Children to consider whether she wanted to intervene in the case and gave leave for the disclosure to her of all the papers in this case on 23 February.
§ Mr. Grieve
I thank the Solicitor-General for her statement, which has certainly helped to clarify what appeared in the press this morning. Does she agree, however, that it is an extremely unfortunate state of affairs when the Law Officers Department, which after all is supposed to advise the Government on the law, does not know the rules covering contempt of court and the confidentiality of documents? Does she also agree that, in such cases, it is not appropriate for Law Officers to pass responsibility on to those to whom they turn for advice, as their role and function must require them to take responsibility for their own actions in respect of documents that come into their possession? Will the Solicitor-General assure the House that the case is not another example of the gradual erosion of the principle of the confidentiality of documents, or of the Government taking the view that they have a right to anything that comes into their possession? That must be one of the inferences that could be drawn from how the documentation was handled.
A second question relates to the handling of cases involving Munchausen's syndrome by proxy under civil proceedings. The Solicitor-General will confirm that we were told that the matter would be reviewed by local authorities, according to guidelines set out by the Minister for Children. However, does not this episode highlight the fact that that system does not appear to be working properly? The Solicitor-General has, at least, intervened to pass documents to the Minister for Children that would allow her to intervene against a decision made by a local authority. Can the right hon. and learned Lady reassure the House about how the 887 process is working in practice? Are there other examples of local authorities being unwilling to co-operate or to act according to the guidelines laid down by her and the Minister for Children?
These are important issues. I hope that the Solicitor-General can provide some proper reassurance.
§ The Solicitor-General
I am sure that I can give the hon. Gentleman that reassurance. It is not a question of not knowing the rules. I am very clear that I take responsibility for my actions in the case, and I remind the hon. Gentleman what the rules are. They state that it is a breach of the Children Act 1989 to do anything that identifies, or which would tend to identify, any child involved in any proceedings. I think that I have made it absolutely clear that it was not the case that I breached those rules.
Under the Administration of Justice Act 1985, a second prohibition prohibits some publications of proceedings in private. The question that arises at that point has to do with what constitutes a publication. The hon. Gentleman will know that that has been the subject of some considerable consideration by the courts. Therefore, this is not an open-and-shut case, in which the only question is whether the action taken was in breach of the rules. It is a question of how far the rules extend, but it is certainly absolutely clear that I was fully aware of the provisions of the Children Act 1989. I did not breach them and I did not identify the child involved.
One approach that I could have adopted, but did not, was to argue before the court that to send one copy of the judgment to a fellow Minister did not amount to publication within the meaning of the Administration of Justice Act 1985. That was an approach that I could have taken, but I left it. I am happy to accept responsibility, and I hope that I have made that clear.
The hon. Gentleman's second point concerned any erosion of the principle of confidentiality. There was no erosion of that principle, or of any other principle. The hon. Gentleman also made a wider point and implied that because I had discussions with my right hon. Friend the Minister for Children the system had not worked and that somehow I had intervened. The system did work. I became aware that a judgment by the Court of Appeal was forthcoming. As it happens, I took the same view as the Court of Appeal. It became aware that it was about to make a judgment that would have implications for the review by the Minister for Children. It thought that she should know about the case and it wrote to her. I became aware that the Court of Appeal was about to consider a case that might have implications for the review by the Minister for Children. I thought that she needed to know about it and, having taken legal advice and considered the legal issues myself, I sent her information about that case.
The hon. Gentleman would have more justification if he had said that on this important issue of the crossover between the civil and criminal jurisdictions, in cases involving Munchausen's syndrome by proxy, the left hand of Government does not know what the right hand 888 is doing. One Minister considered the criminal issues and another considered the family issues. All such cases involve a lack of confidence in and a fresh consideration of Munchausen's syndrome by proxy and, therefore, the primary responsibility for the family jurisdiction lies with my right hon. Friend the Minister for Children. I thought that it was right that she should see the case, and the Court of Appeal thought the same, separately. On that issue, it was a case of great minds thinking alike.
§ Mr. David Heath (Somerton and Frome) (LD)
I am grateful to the Solicitor-General for the clarity of her reply. It is a misfortune that the solicitor in the case in question is her sister, but let us set that aside. Let us also recognise that whatever she may have done in the court system is a matter for the courts, not for the House. We need to consider what the Solicitor-General has done.
I find it difficult to reconcile what the Solicitor-General has told us today—that the paper passed was an anonymised judgment—and what Mr. Justice Munby is reported as having said, which was that a Department had no right to see a family division file. He said that it needed leave from a judge to do so and found that a contempt had been committed in this case. I do not doubt the good intentions of the Solicitor-General in this important and difficult area of public policy. However, given that her ministerial responsibilities include civil litigation and advice on civil law matters, including charity and family law issues, and that her secretariat is intended to provide high-grade legal advice, it is a matter for concern that matters were got wrong in this instance, because that undermines confidence in her Department.
Does the Solicitor-General agree that wider issues still need to be resolved? I suggest that one is the quality of advice available to families who have been involved in a case of Munchausen's syndrome by proxy. It should be possible to gather information in a way that does not conflict with court rules to inform Government policy on the issue. She is right to say that we need an effective crossover between civil and criminal practice in that area. Does she accept that, in this instance, she did not choose the right way to go about it?
§ The Solicitor-General
The hon. Gentleman is right to say that Mr. Justice Munby says that a Minister has no right to see a family court file, but, of course, I do have the right to see family court files in some cases because I have a responsibility to intervene to assist the courts in family cases.
§ The Solicitor-General
The right hon. Gentleman assists me by saying that the right is limited. Perhaps I can just make it absolutely clear to the House that I want to do my job properly. I want to assist with the administration of justice. I want to abide by the rules. I want to be absolutely clear that that is the case. Obviously, I shall consider how the different Acts of Parliament—the Children Act 1989 and the Administration of Justice Act 1985—and the different jurisdictions with which I have some involvement intersect. I will make the position clear, and perhaps that will assist the House. 889 The quality of the advice that is available to people who challenge care rulings in respect of their families is a matter for the Department for Constitutional Affairs and the Law Society.
On the point about gathering information, there is an issue about how we can discuss cases in principle and how the law is working in principle when there is an absolute prohibition on discussing the circumstances of individual cases, but that is a wider point about which the House has been concerned.
§ Mr. Gwyn Prosser (Dover) (Lab)
My right hon. and learned Friend will be more aware than most of the excellent work that Sarah Harman—the solicitor in this case—has done over recent years. She takes on some of the most difficult and, frankly, unpopular cases. She is held in the highest esteem, not just in east Kent but right across the country. However, does my right hon. and learned Friend share my additional concern that Friday's judgment could effectively deny MPs access to papers and documents that could be crucial in their assisting with certain casework? Frankly, some of that casework involves the most difficult and sensitive subjects that ever come to visit us in our surgeries.
§ The Solicitor-General
I thank my hon. Friend for his comments about Sarah Harman, and I wish to take up the additional point that he raises, which is important for the whole House. There can be very few hon. Members on either side of the House who have not had a man come into their surgeries saying, "There has been an injustice. I'm not allowed to see my children." That is the background of the case, and it is what the court has said. There can be very few hon. Members who have not experienced a woman coming to their surgeries saying, "The council has got a court order to take my children into care, and this is wrong and an injustice." That happens regularly. There is a question about where the correct response lies because Parliament must perhaps provide an avenue, a safety valve, an opportunity for those who feel that they have suffered an injustice to come to speak to their MP. Perhaps that is the right position; or perhaps the right position is that, because of the laws that we have passed in the House and their interpretation by the judges, we should tell those constituents, "Don't speak to me about this. By speaking to me, you are in contempt. Please go away. I'm not even going to talk to you."
On the point raised by the hon. Member for Beaconsfield (Mr. Grieve)—I do not know whether he has had the opportunity to see the full judgment—we need to be clear exactly how the situation lies, so that we can protect the interests of children, the administration of justice in the family division and the opportunity for the House to be a safety valve for our constituents who feel that they have suffered an injustice, rather than seeing them dress up as Spiderman and climb up on to a crane.
§ Mr. Edward Garnier (Harborough) (Con)
Is it not regrettable that the Solicitor-General thought it appropriate to refer us to the internal workings of her Department in mentioning another lawyer's advice? It is her advice as the Solicitor-General that is important, and not the internal advice that she may have received from her lawyers in the Department. She is here as the 890 Solicitor-General and is accountable to us in that guise. Surely, the matter is all the more regrettable when one considers her involvement in the law of disclosure. She will remember, 25 years or so ago, the case of Harriet Harman v. the Home Office, which related to improper disclosure of documents. It seems to me that her conduct over the past few days in this matter, although understandable, is regrettable.
§ The Solicitor-General
The hon. and learned Gentleman raised the question of the case of Harman v. the Home Office, but what he omitted to say was that it was subsequently decided that I had not acted improperly. Perhaps I could remind the House, for those who cannot remember this case of 25 years ago, that it was decided I had not acted improperly in that case. I should like to set the record straight on that, in case anybody is putting two and two together and making five.
On the question of the internal workings of the Department, the local authority in question wrote to me and sought information about exactly what had happened prior to my being sent the judgment and after my having been sent the judgment. I responded to it, and copied this into the court. Having written to the local authority and sent a copy to the court, I do not think that it is right to give a partial version to this House. Therefore, I am giving the House the information in as full a form as that in which I gave it to the local authority and the court. It was in that spirit that I gave that information.
As former Law Officers will know, it is not at all unusual for Law Officers to take a preliminary view and then ask for a lawyer in their Department to give it further consideration. Indeed, leading counsel will often take a preliminary view and ask junior counsel to check it out. I am not resiling from or trying to shed responsibility
§ The Solicitor-General
No, I am not trying to shed responsibility. I am trying to explain the procedures. I hope that they will lead the House to reflect on and accept the fact that I acted in good faith and with due diligence, and that the interests of the child were not harmed, although there are some further issues that we need to consider in relation to the contempt proceedings and the relationship between Members of this House and our constituents.
§ Mr. David Kidney (Stafford) (Lab)
I am sorry for any personal embarrassment that has been caused to my right hon. and learned Friend, as she does an excellent job in her post, and long may that continue. However, it occurs to me that the review of the criminal cases and the investigations of the decided family cases that are going on at the moment will put a lot of Departments and other organisations into a position of some conflict and doubt about whether to respond to the requests for information for the review and investigation, and about their duties under contempt of court rules. I wonder what the position is in terms of the Government requesting information or somebody else, such as the courts, giving some absolute advice to people so that that can be clear. Beyond that, I wonder whether this is 891 a passing phase to do with the investigations following the Cannings decision or whether, bearing in mind that the Children Bill has just started its progress in the other place, a more general application needs to be considered for inclusion in that Bill before it makes it on to the statute book.
§ The Solicitor-General
I thank my hon. Friend for his question. There are more general issues that need reflection and consideration. Whether they need a statutory amendment to children's legislation is not at all clear, but I think that further consideration is needed. He is right that we want to be sure that Ministers in other Departments and, indeed, Members of this House are in no doubt about the position when people come to see them, particularly if they have seen reports of such judgments. We do not want anybody to be in any doubt about whether they can carry out their duties by proceeding to discuss a case, or whether they would be in breach of contempt rules.
I hope that the House will find it helpful if I offer to consider how we think about clarifying the situation. It is an issue not only for Ministers, but for Members in general. Perhaps, as I am fully respectful of the long years of experience of the shadow Attorney-General, I will offer to consult him, and he can help us to ensure that we have an agreed position that everybody in this House can be clear about, as they should be able to feel certain of their duties to their constituents and their duty to obey the law.
§ Mr. Peter Lilley (Hitchin and Harpenden) (Con)
Does the Solicitor-General accept the traditional doctrine of ministerial responsibility, under which Ministers are responsible for the advice that they take and are therefore obliged and have an incentive to probe, question and validate that advice? Or is she joining the long list of Ministers who seem to be enunciating a new doctrine under which, if the advice proves correct and successful, Ministers take responsibility, but if it does not do so, they invoke an official and point the finger at them?
§ The Solicitor-General
I have never been in any doubt—and I think that the Law Officers are in a particular position on this—that responsibility lies not with the adviser, even where that adviser is the Law Officer, but with the person who is taking the decision. In this case, the person who was taking the decision was me, and I take responsibility for it. I simply described to the House, in the way in which I described it to the local authority and the court, what the process was.
I want to be clear that I take responsibility for the actions that I took. There was nothing improper about the actions that I took. The court has no criticism of me or of the actions that I took, and I do take responsibility for them. I do not want the House to be left with the idea that my explanation of the background to my actions was somehow a denial of responsibility. I accept responsibility, and no harm was done.
One of the things that I would be very concerned about and would regret would be if the excellent work of the legal secretariat to the Law Officers, which has served Law Officers down the decades excellently and 892 with a high degree of professionalism, somehow was criticised as a result of what has happened. The Attorney-General, Lord Goldsmith, and I value most highly the work of the legal secretariat of the Law Officers, which is recognised throughout the profession as providing the highest quality legal advice.
§ Vera Baird (Redcar) (Lab)
Although I am rather late in the day, may I congratulate the Solicitor-General on the blow that she struck 25 years ago by breaking the barrier of contempt of court, which was a real obstacle to freedom of information in those days? I congratulate her on that and I am sorry not to have done so earlier.
May I also congratulate my right hon. and learned Friend on her wisdom in taking a second opinion and not relying solely on her own legal advice in making the decision? May I deplore the criticism that has been levelled at her when she has asked to come to the House and explain how the decision was taken? If she did not explain that she had taken advice and how it turned out, she would have been heavily criticised for not mentioning it. No doubt, she would also have been belaboured for taking the decision on her own. May I congratulate her, as she did absolutely the right thing?
May I express very briefly my sympathy with anyone who finds themselves in the complicated, multi-layered depths of contempt of court? It is often very hard to know where the public interest lies in that sector, and frankly that whole area of law needs urgent review.
Further to the comments of the hon. Member for Somerton and Frome (Mr. Heath), I have certainly seen a letter from the Law Society suggesting that it is considering writing to all its family practitioners inviting them to review their files to see whether there is a case to be brought out and put into this whole area of review. Is my right hon. and learned Friend aware that the Law Society is going to write to all family solicitors inviting them to submit cases for review, and is that being done with the encouragement of her Department or the Minister for Children?
§ The Solicitor-General
I thank my hon. and learned Friend for the points that she made. Issues have arisen around the edges of the case that require further review, and I am aware of those that the Solicitors Family Law Association and the Law Society have been looking at.
§ Rev. Martin Smyth (Belfast, South) (UUP)
The Solicitor-General suggested that we should broaden consideration of the problem, particularly as a reference in the press suggested that a Member of Parliament could be in contempt of court if a constituent brings an issue to him. In reality, as she said, most Members of Parliament will deal with cases, from both men and women, which go on to the family division. I dealt with one case in which fighting had been going on for two years—not with the courts but with the evidence given by social services to the courts. Ultimately, a guardian ad litem was appointed for court proceedings, which confirms that the guidance I was given was correct. It is important that the right of the citizen to see their Member of Parliament as an ombudsman is maintained.
§ The Solicitor-General
I am sure that we all want to be reassured that citizens maintain the right to meet their Members of Parliament, tell them what has been going on in a case that affects their life profoundly and, if they want the opportunity, to protest to them and ask for something to be done. Of course, we all want to be absolutely clear that we are sticking to the letter of the law. I suspect that custom and practice operates when a Member writes to social services on behalf of a constituent, as the hon. Gentleman may have done, and asks for background to the case. However, if such information consists of issues that have formed the background to court proceedings that custom and practice may not be within the strict letter of the law. We have to be absolutely sure about that—we do not want to invite social services to break the law in communicating with MPs; we do not want to give comfort to constituents but at the same time breach the law; and we do not want to break the law in anything that we do in the House or debates. We need to discuss the issues of principle and we need to support our constituents. When we discuss those issues, it will assist us to have an understanding of the way in which the courts deal with those issues in practice