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.
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.
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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