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.
It is a horrible situation.
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.
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.
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.
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.
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.
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.
The independent panel report should be published without any further delay.
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