27th May 2021
There is a stand-off between the home office and the Daniel Morgan independent panel over publication of the panel’s report.
From the perspective of the Morgan family this is unfortunate – and even heart-breaking.
Very tired now. 34 years and 3 months and we're still wondering when this is going to end.
— Alastair Morgan (@AlastairMorgan) May 25, 2021
It is a horrible situation.
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The report will be important – whatever its content – for three reasons.
First: it will be nearest we get to a definitive account of the circumstances of the 1987 death of Daniel Morgan, the private investigator murdered in south London.
Second: it will also set out, as far as possible, how and why investigations and prosecutions kept failing, again and again – and the relevance (if any) of the relationships (corrupt or otherwise) between the metropolitan police, the press and the private investigation industry in explaining those failed investigations and prosecutions.
And third: it will be the nearest we get in practice to ‘Leveson 2’ – the general inquiry into the relationships between the metropolitan police, the press and the private investigation industry, an inquiry which has now been cancelled by the current government.
So far, the coverage of hacking and the other (so-called) ‘dark arts’ have given a lop-sided view of what happened, focusing on the press and newsroom culture – but the press was the customer in the wrongful trade in personal information at the relevant times – the ‘demand-side’.
What is still obscure is the ‘supply-side’ of what happened – especially the role of the police and the private investigators.
Even without the particular circumstances of the death of Daniel Morgan and its aftermath, it all would be an extremely complicated world to understand.
So it is no surprise that panel has spent since 2013 putting this report together.
And now the report is ready to be published.
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But.
The report has not been published.
The home office is insisting that they review the report before publication and they will not commit to a date for publication.
Under the terms of reference for the panel it is envisaged that the home secretary arrange for the report to be placed before parliament – and that would be the means by which the report would then be published and thereby enter the public domain.
The understanding is (though I am aware of different opinions) is that by placing the report before parliament that it would thereby acquire absolute privilege – which means that nobody can be sued for defamation in respect of the content of the report.
Whether or not this legal analysis is correct, it was certainly envisaged that his would be the procedure and – regardless of the legalities – it is certainly the fitting way for such an important report to be dealt with.
Not many reports are solemnly placed before the parliament by the home secretary.
And although some say the report should just be leaked, this is one report that – perhaps more than any other – should be published ‘by the book’ – as it is ultimately about the rule of law itself.
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What is the reason for the current stand-off?
We appear not to have the true reason – but we do know this because the reasons so far given do not make sense.
According to one blogpost – which I cannot vouch for as I did not write it and I have not seen the underlying evidence for its assertions – there has been a succession of home office excuses for the delay.
Whether or not there have been earlier home office excuses for the delay, the current reasons are that the home secretary needs time to review the report because of the home secretary’s responsibilities in respect of national security and under the human rights act.
Balderdash.
Codswallop.
Flapdoodle.
Utter twaddle.
These cannot be serious grounds for the following reasons.
First, the home office do not yet have a copy of the report and so cannot know in advance whether a report into the circumstances and aftermath of a murder in a south London carpark in 1987 raises any current national security and under the human rights act issues in 2021.
Second, the report has already been vetted by the metropolitan police legal department who would have been able to identify any such issues – and indeed the home secretary would presumably have to rely on the metropolitan police for this supposed review, given the report deals with police operational issues.
And third, the panel has itself ensured that it has had experienced and extensive legal advice – and have followed the usual ‘Maxwellisation’ process of ensuring what is to be published would be legally sound.
Indeed, the terms of reference envisaged that the emerging findings of the inquiry and the final report could be released directly and freely to the Morgan family, and this provision would not make sense if there was a prior formal home office review stage.
The excuses of of national security and under the human rights act are improvised and artificial excuses to justify delay – and one suspects that there is not a single person inside or outside the home office who has a sincere belief in these excuses.
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But why these two particular excuses?
At first, it seemed a puzzle.
My best charitable guess was perhaps the home office simply did not want to set a precedent for immediately publishing reports that were outside the scope of the inquiries act.
Yet that did not explain why these two particular excuses were selected.
And then it became obvious.
This is all about litigation – and about providing cover for litigation risk.
National security is one issue that the courts will invariably defer (with nods) to the home office – and if the home secretary makes an assessment then even the current president of the supreme court will say this has to be accorded ‘respect’.
And the human rights act point, a clever one, is that under article 2 of the European convention there is a ‘right to life’ which again, once invoked, means that the courts are unlikely to conduct any balancing exercise.
The combination of these two grounds mean that the home office would be able to resist any judicial review of their delay – for government lawyers would just need to say national security and the human rights act, and a court would be unlikely to intervene.
And – and this is crucial – it also works the other way round: for if the panel threatened to publish the report itself then the home office could use the same two grounds for obtaining an injunction against publication.
Indeed, one suspects that the home office lawyers are currently insisting on formal undertakings from the panel that the panel will not publish the report directly.
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If my reasoning here is correct – and I cannot think of any other plausible explanation for why the home office has invoked national security and the human rights act – then the home office and its lawyers are engaged in a cynical exercise of making the delay to be litigation-proof.
Such gaming of the judicial process is not necessarily an abuse of process – indeed civil lawyers often use such tactics and even have a big white book packed with ways by which parties can win cases other than on the actual merits of the case.
But if such tactics are legally permissible that does not make them normatively acceptable.
And in these circumstances, such tactics are nothing other than disgusting.
There is no good reason for this delay – and the brother of Daniel Morgan should not have had to tweet this.
Very tired now. 34 years and 3 months and we're still wondering when this is going to end.
— Alastair Morgan (@AlastairMorgan) May 25, 2021
The independent panel report should be published without any further delay.
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“if the panel threatened to publish the report itself then the home office could use the same two grounds for obtaining an injunction against publication.”
Perhaps the panel might call the Home Office’s bluff, and release the report to the family and to the media, and resist any attempt by the Home Office to injunct such moves. How would that be worse than the current situation where the threat of such an injunction is holding back release?
It is I suppose possible that there really are national security issues involved, and that there has been a private briefing of the Home Office to this effect, but it seems highly implausible. It is much more likely that the reason for the attempt to sit on the report is that it will be embarrassing for the press.
The danger of covering things up is that the cover up becomes even more embarrassing than the original offence. Ms Patel might want to reconsider.
But what is secret? That there has been and still may be relationships between the metropolitan police, the press, and the private investigation industry is commonly assumed. If Pritti Patel seeks to suppress the report, one may draw a logical conclusion. One can only conjecture as to the Home Secretary’s interest in the matter.
“Perhaps the panel might call the Home Office’s bluff, and release the report to the family and to the media, and resist any attempt by the Home Office to injunct such moves.”
And perhaps the panel know full well that in doing so they would have no protection from action for defamation?
Their t.o.r. envisaged the Home Secretary putting he report to Parliament. I continue to think they and the HO did not fully understand what that involved.
Surely any lawyer asserting a ground that they know or believe to be is untrue is committing professional misconduct (and potentially attempting to pervert the course of justice)? Sadly, I have little faith that either the courts or the professional regulators would do much about it.
Freedom of information requests are frequently met with national security grounds for refusals, even if in some cases they are unfathomable.
But in such cases the ICO will, if approached, willingly apply as much muscle as is statutorily available – which in my own not inconsiderable first-hand experience (primarily though not entirely on the DPA side) is significant – to address wilfully non-compliant refusals.
The information here are likely to be what is referred to in information law circles as “hybrid data” – ie a combination of explicitly personal, and non-personal data, but the ICO’s reach addresses both categories of data, and I have an unfeasibly large degree of respect fot the integrity of the ICO in cases like this, born(e) of much personal experience.
If indefinite delay is the Home Office goal then perhaps we’ve reached the Pentagon Papers moment, where for the greater good the report should be leaked.
It might be objected that this risks tarnishing the contents and so losing the momentum for necessary changes, greater probity by the state and especially the police, etc. But with recent governments and the incumbents in particular we’ll see a snowboarding Satan before any of that happens, so it’s publish or be damned.
Perhaps the commissioner of the inquiry, Theresa May, could offer to present the report to Parliament? If TMay was allowed sight of the report and was able to present a summary to the commons, confirming no security or human rights problems, the family could get their report.
Is it clever, though?
I cannot conceive of any circumstance, no matter how contrived, where the release of the report might have the effect of intentionally depriving anyone of their right to life – it’s a complete nonsense.
Hmmm. The hypocrisy reeks. The only interest the Home Secreatry has is the Human Rights Act is to undermine it at every turn and as for “national security”, is the Home Secretary not the very same individual who secretly undertook her own foreign policy initiatives with Israel, undermining the FCO, for which she was sacked?
If the panel released the report independently, a Parliamentarian lodged it in Parliament, and it was blatantly obvious there were no national security implications, how on earth could Ministers realistically challenge that? I can see that in a genuine national security case you wouldn’t want the relevant evidence disputed in open court, but would the courts entertain that argument if (for example) a Minister’s Sainsbury’s receipt was published, and HO claimed it was a matter of national security because of their addiction to creme eggs/patronage of a particular branch of Sainsbury’s?
“The understanding is (though I am aware of different opinions) is that by placing the report before parliament that it would thereby acquire absolute privilege – which means that nobody can be sued for defamation in respect of the content of the report.”
I have posted twice my a dissenting view, citing Select Committe reports, Erskine May and the House authoities in support of my view that merely laying the report (as a Command Paper) does convet absolute privilege. As a layman my views patently cannot compete with yours. But I am sad that you have not found time to point to where those have cited have erred in their interpretation of the the 1840 Act.
Regarding absolute privilege conveyed by laying a report before Parliament, Lord Denning was nervous about the prospect that he could face defamation suits if he named names in his report. He was also concerned about the issue of revealing information that had been given to him on condition that it would be kept secret and that the source would not be identified.
Just for thoroughness, it is absolutely the case that confidentiality does not attach just because a promise has been made to keep something on the QT.