24th May 2021
Today in parliament there was a short debate on the delays in the report in respect of the murder of Daniel Morgan, why there were successive collapses of investigations and prosecutions, and the significance of potential corrupt relationships between the press, the police and private investigation industry.
The link for watching the debate is here – and it is worth watching in full.
You will rarely see a junior minister so obviously unconvinced by their own brief – and there is an apparent contrast between her conciliatory manner and the content of what she had to read out.
(It is not unusual for junior ministers to stand in for cabinet ministers for these urgent debates – though it would have been appropriate for the home secretary to have been there.)
You get the impression that nobody – inside or outside of government – is actually convinced of the ‘national security’ and ‘human rights act’ points being taken to justify the home office’s position.
Indeed, both points seem to be ‘lines to take’ – formulated by some clever central government lawyer – as giving wriggle-room to the home office.
But neither contention adds up.
The panel report is not under the Inquiries Act 2005 – and so the exceptions under section 25 do not apply.
The most charitable explanation I can can conceive is that the government wants to avoid creating a precedent for other non-2005 Act reports being free from the same exceptions.
There are more plausible, less charitable explanations.
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The reason why the report being presented to parliament is legally important (as well as constitutionally appropriate) is that it will give the report absolute privilege in respect of defamation when it is published to the general public.
And although a publication of the report directly to the public by the panel without going through the home secretary and parliament would be an exciting event – and no more than the home secretary deserves – it would not be legally prudent.
But it is worth looking at the terms of reference carefully on this point – as there may be another way forward in the face of home office obstinacy.
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The terms of reference are here – and they should be looked at in full.
Paragraph 6 indeed provides:
‘The Independent Panel will present its final Report to the Home Secretary who will make arrangements for its publication to Parliament.’
But one sentence in the following paragraph 7 is also interesting:
‘In the meanwhile, it is also envisaged that the Panel will brief the family incrementally, both on the progress of its work and on its emerging findings.’
And so is also paragraph 4(c):
‘…the Independent Panel will…brief members of the family through a final report which would be made available first to the family and then to the public at large’.
In other words: it was envisaged in the terms of reference that, although publication to the world was to be done through the home secretary and parliament, it was open to the panel to share its findings and indeed the final report directly with the family.
(Note the ‘will’ in 4(c).)
I do not know if the panel has shared the findings and the final report with the Morgan family – but not only is there nothing in the terms of reference to prevent the panel from doing this, the terms of reference expressly envisage this being done.
And there would be no greater check on any untoward redactions by the home office than the Morgan family having the original, unredacted report before them.
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Thank you for the very interesting post.
If laying the report before parliament is so legally important, could the impasse be headed off by asking any other MP to do this; is the Home Secretary playing a particular role here that others can’t?
Interesting debate. Good, indeed, to see it all the way through. National Security, of course, if you are PP, is bound up with making sure that Rupert and Rebecca are on side. I really wonder if there is something here, or whether the News angle will be a damp squib. If it is meaningful, then there must be constant pressure for Levision 2 to get underway.
A nit-picking point on: I am still unclear how the mere presentation of the report to Parliament conveys absolute privilege. As I mentioned in response to your blog on 19 May it was the generally accepted view in the 1990s that the protection of the 1840 Act did not extend to everything published by Parliament, only to papers ordered to be printed by the House[1]. That appears to still be the view of the House authorities[2][3].
I do not argue that this is the reason for the HO delay. I do know that publication is by order of the House is a bit more complicated and not as quick compared with simply laying a Command paper. And the more so if para 34 quoted below is in play.
[1] para 343 et seq. in https://publications.parliament.uk/pa/jt199899/jtselect/jtpriv/43/4312.htm#n390
[2] 13.6 in Erskine May (4th para) https://erskinemay.parliament.uk/section/4585/protections-for-publication-outside-parliament-of-parliamentary-proceedings/
[3] https://www.parliament.uk/globalassets/documents/upload/laying-papers.pdf
“33) Papers ordered to be printed by the House of Commons attract the protection of parliamentary privilege under the Parliamentary Papers Act 1840 from the moment they are laid. This ensures that legal proceedings cannot be brought against persons for the publication of the document. Papers ordered to be printed are printed as part of the HC reference series which is administered by the House of Commons Journal Office.
34) However, papers should not, other than in exceptional circumstances, knowingly make references or comments which are in breach of an injunction or other order of any court, or which might, without the protection of privilege, give rise to an action for defamation. If circumstances arise when parliamentary privilege will be used to protect the content of a paper, the authorities of the House must be consulted beforehand. ”
I have been asked where Erskine May supports my view. A fair question as it is explicit only in footnote 5. That concludes:
“Papers presented by command are not, however, printed by order of either House, and notwithstanding these judgments, where the protection of the Parliamentary Papers Act is particularly desired, the normal practice is for a paper presented in response to an order for a return to be ordered to be printed (see paras 7.30–7.33 )”.
Secret, however justified as raison d’état, has shady roots and rightly generates doubt. The least the better.
David
Given the HO appear to be citing national security in order to game avoiding publication of the report, do you think that it would be possible for the report to be leaked to an *offshore* publisher who could publish on the internet – and the resultant piece be so widely read that the courts wouldn’t uphold the government’s position on continued withholding?
Am thinking of the Spycatcher case, where Peter Wright’s book was first published overseas, and (from memory) so widely available that the courts quashed the government’s publication ban because it was effectively being circumvented anyway?