Last week John Hemming MP secured a debate in Westminster Hall about the role of Parliament in dealing with all grievances and the importance of freedom of communication between constituents and Members. Here’s the debate in Hansard, and here’s the video of the debate.
He raised a number of very serious issues: the main issue he drew attention to is what he said are some court orders preventing constituents from communicating with MPs about their cases, but he also complained about people being in effect “secret prisoners” held by or at the urging of public authorities.
For example, he raised the case of Andrew France, whose rape conviction was quashed on appeal in 2009, and who Hemming says was pressurised by a local authority into agreeing not to contact Hemming:
The essence of it is that he has no real choice. If he does not agree to it, the local council, of which I used to be deputy leader, would take action to take his child into care.
Hemming calls this bullying, and a contempt of Parliament.
He also raises the case of a young, vulnerable woman who he says is being effectively held as a “secret prisoner” and kept from her family because of a decision by the Court of Protection. Again he complains that the family are not allowed to contact him:
Her sisters were talking to me and were threatened that they would be in contempt of court if they continued to do so.
He suggested in the debate that there’s a reasonable case that the young woman might be in detention because someone in the council wants to stop the investigation of an allegation of sexual assault by a council employee.
These do indeed sound like very serious issues, and unsurprisingly they’ve been picked up by Anna Raccoon on her blog (hat-tip to CharonQC – who else? – for drawing my attention to her post), by Alex Massie at the Spectator and by the Telegraph and Daily Mail (both focusing on a case about toxins I mention below). But do John Hemming’s variety of complaints really add up to the outrageous situation he claims? Might Andrew France’s undertaking, for instance, to
make no further disclosure in respect of this matter to any third party, including in particular the media and John Hemmings MP
actually have been a reasonable thing to ask him to agree, in the circumstances?
Because it was an undertaking – a promise made by Mr. France to the court – rather than an order imposed on him without his agreement. [Update: see the correction in comment 29 below by family law barrister Lucy Reed, who says it's not an undertaking, in fact, but just the record of an unenforceable agreement]. Did he agree under duress, though, as John Hemming says? Well, in a sense he did, of course; all compromises reached in court or at the door of the court are made under some amount of pressure. If you won’t agree to what the other side wants, you may not reach agreement.
What’s clear however from the notes of Andrew France’s own barrister June Williams, extracts from which John Hemmings read out in the House, is that not just the council, but lawyers for the mother of Andrew France’s child wanted the undertaking:
All the advocates stressed to me the danger of Father having any contact with John Hemmings [sic] MP …
It’s also clear that his own barrister advised him that the undertaking was in the interests of his child:
I explained to Father to think carefully about his actions especially the impact on the child … Father said that he went to the media because he wanted to clear his name having suffered negative coverage in the media at the time of his trial. I stated that I understood why he did it, but stressed it was the potential impact on his child that he must give consideration to … I urged him against such further contact … I stressed that I needed to be certain that he was in full agreement to it, and after Mr Grove [the mother's lawyer] had spoken to Father about this, as mentioned above, Father stated clearly that he would agree to it, and appreciated the point that I was making.
Interestingly, in the debate John Hemming did not accuse Andrew France’s barrister of doing anything wrong. Nor do I. What her notes indicate is that all sides in the case felt Andrew France’s disclosures to John Hemming MP were not in the interests of his child. Why might they think this?
Again, the barrister’s notes quoted by John Hemming say that someone
had been heavily criticised by the Court of Appeal about his involvement in cases. The collective view was that he would do more harm than good.
This seems to be a reference to John Hemming himself: he was indeed heavily criticised in 2008 by the Court of Appeal in another case in which he was involved. Here’s the judgment in that case, RP v Nottingham City Council.
I won’t go into the details except to say that John Hemming acted as McKenzie friend to RP, whose child had been taken into care – and he was allowed by the court to make submissions on her behalf. Hemming criticised the involvement of the Official Solicitor, who actually represented RP, RP having been assessed by a clinical psychologist as unable to instruct lawyers. [Disclosure: when in the Government Legal Service I met Alastair Pitblado, now the Official Solicitor, I think a couple of times].
Hemming also criticised the clinical psychologist who assessed RP, saying the psychologist, “HJ”, was biased. This is what Lord Justice Wall, now President of the Family Division of the High Court, said about that allegation (paras. 124-125 of the judgment):
Even more unarguable – indeed it is outrageous – is Mr Hemming’s allegation that HJ was the paid expert of the local authority. She was nothing of the kind. Such an allegation is not only without any evidential foundation of any kind: it is plainly contradicted by the evidence. Mr. Hemming’s allegation that HJ is part of an “evil” system only warrants comment because it comes from a Member of Parliament, and thus from a person in a responsible public position whom one ought to be able to trust only to make serious accusations when they are based on evidence. I am astonished that somebody in Mr. Hemming’s position should have seen fit to put such a disgraceful allegation into the public domain. I reject it unreservedly.
Hemming also criticised RP’s legal representative, a trainee solicitor, who he suggested had fabricated her attendance notes. This is what Wall LJ made of that (paragraph 88 of the judgment):
I find it not only unacceptable but shocking, that a man in Mr Hemming’s position should feel able to make so serious an allegation without any evidence to support it. In my judgment, it is irresponsible and an abuse of his position. Unfortunately, as other aspects of this judgment will make clear, it is not the only part of the case in which Mr Hemming has been willing to scatter unfounded allegations of professional impropriety and malpractice without any evidence to support them.
RP’s case, which has now been taken to the European Court of Human Rights, appears to be another one of those he mentioned in the debate. Before we leave it, here are two more things Wall LJ said about John Hemming. At paragraph 164:
… the danger of the mother’s approach, reinforced as it has been, in my judgment, by Mr Hemming’s partial and tendentious advice, is that it has been entirely adult focused. Not once in his argument did he mention the welfare of KP. His emphasis, and that of RP was entirely on her rights and the alleged wrongs which had been done to her.
And at paragraph 168:
As to Mr. Hemming, my judgment is that his self-imposed role as a critic of the family justice system is gravely damaged, and speaking for myself I will not be persuaded to take seriously any criticism made by him in the future unless it is corroborated by reliable, independent evidence.
There may be injustices and unfairness in some or even all of the cases John Hemming raises; we don’t know. Injustices do happen in court cases. But John Hemming’s saying so doesn’t mean we should automatically think so too.
Going back to the case of the young woman Hemming said in the debate is being held as a “secret prisoner”, his approach seems quite similar to the line he took in RP: again the expert has got it wrong, he suggests; again the Official Solicitor should not be involved, even though he quotes the expert as reporting that the young woman
is not giving reasoning or considering risks which she herself has previously expressed relating to potential forced marriage and not wanting contact with family members
She said that she likes to make people happy and that she will be happy if her family are happy. Her family will be sad and angry if she leaves so she would like to stay with them.
Hemming seems to discount the possibility that the professionals involved may actually be genuinely trying to do what we pay them to do – protect young people like this. What he did in the debate was to “scatter allegations of professional impropriety and malpractice” to use Wall LJ’s words – in this case, suggesting there may be a council cover-up of sexual assault allegations. Given what seems to have been his conduct in RP, might it be reasonable for some other party to this other case to want John Hemming to butt out, and to want the family to stop talking to him? Might it be reasonable in Andrew France’s case, too?
Reading back over last week’s debate, it’s clear that John Hemming repeatedly complains about social workers – a classic easy target – and other professionals who have important responsibilities to children and their often vulnerable clients. None of these people will find it easy to answer these sometimes very serious allegations, bound as they are by obligations of confidentiality. John Hemming, on the other hand is free to make whatever allegations he wants, safely sheltered by Parliamentary privilege.
It’s important to add that, in addition to these family law and Court of Protection cases (some of which may well involve injustice; I’m not saying that can be excluded) he mentioned in the debate a civil case about toxins in which apparently what he calls a “hyper-injunction” has been ordered, barring someone from disclosing anything about the proceedings to an MP. There may well be something very wrong here. I don’t know. It sounds extraordinary, and on the face of it raises serious questions that need to be answered. But all we know at the moment is what John Hemming has told us.
Anna Racoon, Alex Massie and the others who’ve picked up on this story are right to have done so. An MP raising these issues is a serious matter, and they ought to be looked into.
But what MPs do must be subject to scrutiny, too. The public is entitled to ask whether there have been abuses of power here – or an abuse of privilege.