John Hemming MP: abuse of power, and privilege

by Carl Gardner on March 23, 2011

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

and that

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.

{ 54 comments… read them below or add one }

1 John Hemming March 23, 2011 at 19:43

Try speaking to Andrew France for example. He is willing to talk to people about the situation.

I don’t think it is right to bully people into not talking to their MP.

2 Jim Nately March 24, 2011 at 10:05

With all due respect to Mr Hemming (above), that comment is quite possibly the most incredibly inappropriate comment he could have come up with.

The article is a well reasoned critique of his approach that argues Mr Hemming has failed to distinguish between the interests of the child or dependent in not having his/her name & circumstances divulged to the press, and the interests of the father in attempting to use adverse publicity to encourage the council to change their position.

The reply? Ask the father what he thinks.

I can’t decide if Mr Hemming has simply missed the point of this post, has managed to convince himself that the interests of the child and the interests of the father are analogous, or simply cares not for the interests of the child or dependent.

The cynic would, of course, suggest it’s just Mr Hemming being a media-whore, as is the wont of the average MP. If not, it certainly betrays a lack of judgement that is ill-becoming of an MP.

3 John Hemming March 24, 2011 at 10:44

I have some problem identifying how it can be “in the best interests of a child” to prevent the child’s parent from talking to his MP about problems with the system.

It is quite clear that there are masses of problems with the care system. The damage that it does to the children taken into care is very obvious.

There is an assumption that what the system does when it acts is good for the children. The aggregate evidence is that this is not the case.

In terms of other aspects of the OP it remains that the document which I still believe was inserted retrospectively into the file in the RP caes was wrongly dated, had the address in a different format and had no received stamp. All of these individually are symptomatic of it not being derived from the same source.

The evidence of the financial pressures on the local authority are all in the public domain anyway and the psychologist (who was later found to be wrong) was effectively the agent of the local authority.

The unreliability of expert evidence is the cause of the unreliability of the family justice system.

4 Jim Nately March 24, 2011 at 11:26

Again, Mr Hemming, with all due respect, I think you’re committing an error of logic.

The proposition that a constituent must be able to discuss matters with his MP does not directly conflict with the proposition that it is in the best interests of the child to keep the details of their care proceedings out of the press. It only does if the the aforementioned MP will take the details to the press as a matter of course.

The question then, simply, is should that MP seek publicity for the story? Or, actually, that isn’t the question whatsoever—the answer is self-evidently no. The question then becomes whether if the MP nevertheless pursues the publicity in the face of a court order preventing further discussion in the press, should the father be discouraged or indeed restrained from discussing the problems with the MP?

So we’re left with a balancing act. The freedom of the father to discuss the proceedings with the MP, which will lead to more publicity. Against the interests of the child in avoiding that publicity.

5 John Hemming March 24, 2011 at 11:57

You make an important error in assuming that discussing the matter with an MP will automatically lead to “more publicity”.

The vast majority of cases I deal with do not lead to any publicity at all.

Furthermore there is no court order preventing discussion in the press.

There is a subsidiary issue as to whether given the historic publicity about the father it is in the child’s interests to have that publicity corrected. That has not been considered.

6 Carl Gardner March 24, 2011 at 12:30

Thank you for commenting here in response to my post, John.

In comment 3 you said:

it remains that the document which I still believe was inserted retrospectively into the file in the RP caes was wrongly dated, had the address in a different format and had no received stamp. All of these individually are symptomatic of it not being derived from the same source.

It seems clear from this that you’re maintaining the stance you took before the Court of Appeal, where you apparently suggested that a note in RP’s solicitor SC’s file, dated 11 December 2006, (paragraph 63 of the Court of Appeal judgment) was a fabrication, and that the Official Solicitor’s letter was never sent to her. Is that right? Some readers may find it astonishing if you do maintain that, given what Wall LJ said about that allegation at paragraph 88 of the judgment, which I quoted in my original post.

Could you also make something else clear, John? Are you saying the solicitor’s entire file, including all the notes she made of advice she gave to RP, was false? Unless you were suggesting that it’s difficult to see how you could have maintained RP didn’t know she was being represented by the Official Solicitor. Do you say that?

Finally, you maintain in comment 3 that the psychologist in RP’s case was

effectively the agent of the local authority

and say she was later

found to be wrong

Can you tell us where and when she was “found to be wrong”? In the Westminster Hall debate you say (talking about this case, I assume; please set me straight if not)

I have a psychiatric report indicating that she does have capacity.

and in the ECtHR’s statement of facts and questions in RP v UK it says that

In her application she submitted a psychiatric report prepared in June 2008 in order to assess her employment prospects.

Is it in these reports that you say the psychologist was “found to be wrong”, or somewhere else? And can you tell us whether these reports are one and the same?

7 John Hemming March 24, 2011 at 13:41

My view on the single document has remained constant over time. The facts were clear that it had no received stamp, was wrongly dated and had an usual address format. That, to me, is good evidence to question the provenance of the document.

The report I waved around at the debate and referred to in that debate is a report produced at a later stage.

The transcript of the hearing in the court of appeal (which was held in public) makes it entirely clear that RP understood the case (as in she had capacity from the test in Masterman Lister v Brutton & Co) . She presented her own case to the Court of Appeal judges.

Many people who end up represented by the Official Solicitor do not initially understand what that means. The case of Lee Gilliland is one where someone, probably of above average intelligence, has had the official solicitor imposed on him. However, it took some time for him to understand what the consequences were.

8 Jim Nately March 24, 2011 at 13:59

My apologies, the point that discussion with an MP need not result in press coverage was the point I thought—wrongly, it would appear—I was making.

Just for the sake of clarity, are you sayingthat your constituents are routinely finding themsevles being ordered, pressured, or agreeing not seeking your advice? Or just those for whom your involvement appears to have resulted in publicity or a breach of anonymity?

9 John Hemming March 24, 2011 at 14:10

My point is that in two cases my constituents have been pressurised not to talk to me. In one of those cases there was no publicity. I was simply corresponding with the various authorities involved asking them for explanations of their actions.

In the other case the father had obtained some publicity without me being involved. I had assisted him with his CCRC case and also to put an appeal as an LIP on a procedural matter relating to his case.

I am not that enthusiastic about trying to obtain press coverage about live cases. It is sometimes worthwhile, but normally not.

What I do like to do is to test how “the system” responds to particular actions – such as appeals and the like.

Sometimes I help people as LIP, sometimes I refer them to solicitors that I trust, sometimes I can resolve things other ways (through correspondence with public authorities).

10 Jeremy Robert Poynton March 24, 2011 at 16:12

Interesting – so are you saying that an undertaking, as opposed to an injunction, must be agreed to by the defendant? Should it therefore be signed by both claimant (or court) and defendant? I would be very interested to know.

11 Carl Gardner March 24, 2011 at 17:08

An undertaking is a promise given by someone to the court, and it’s enforceable against that person as though the court had ordered it. I think you misunderstand if you approach it as though it’s something a judge wants, but must get agreement to. It’s something people sometimes have to give if they want to persuade the court to grant them something, and sometimes give because other parties want them to do so as part of a compromise (which I assume is what happened here).

Of course we don’t know what the terms of the order were, but we do know from what John Hemming has told us that the other parties, including the mother, wanted Andrew France to make an undertaking in respect of not discussing things with John Hemming. Which he gave. If you read the barrister’s notes quoted by John Hemming in the debate, you’ll see her clearly record getting Andrew France’s agreement.

I don’t think it’s a matter of who “signs” the undertaking, though I think there is provision for the court to send the maker of the undertaking a form to sign afterwards. The undertaking’s recorded in the preamble to the court order anyway.

12 John Hemming March 24, 2011 at 17:16

I don’t think, however, that commital could occur without firstly a penal notice. I am not entirely clear that the recitals equate precisely to an undertaking. Such a warning does not appear in the attendance note and I am unsure that it would be enforceable as it is – particularly enforceable via commital.

However, I am open to clarification on this.

13 Carl Gardner March 24, 2011 at 17:16

John, in comment 7 you say you maintain the stance you took in the Court of Appeal about the “single document” – in other words the file note dated 11 December 2006, (mentioned in paragraph 63 of the Court of Appeal judgment). Okay, that’s clear. You’re saying that was falsified by SC (or someone).

You didn’t answer my question about SC’s file as whole, though. Should we take it that you don’t maintain that the other contents of the file were fabricated or falsified? It’d help if you could clarify that.

And again, about the psychological report you also mention in comment 7 above:

The report I waved around at the debate and referred to in that debate is a report produced at a later stage.

Are you saying it’s in that report that the psychologist was “found to be wrong”, or in some other document or ruling? I’m just trying to clarify what you meant when you said she’d been “found to be wrong”.

14 Jeremy Poynton March 24, 2011 at 17:21

Thanks,

In my case, the undertaking I was given by the court I did not agree to. It arrived in the post some days later, after being discussed in court. It is a total nonsense, as it bans me, sine die, from contacting in any way members of a certain professional association ([..edited - CG..]). Thing is, my wife is a member of said association, so legally I can have nothing to do with her. Of course I don’t – we adore each other. Similarly, she as my “agent or servant” is also banned from the same – I.e. she cannot talk to the many friends she has in this association, or attend conferences. The judge refuses to discuss the matter. CAB don’t have the know how to deal with this. You have to be destitute to get legal aid, and I spent my last £2000 for some totally useless legal advice on this matter.

The law, I conclude, is truly an ass. Interestingly, … [edited - CG].

I’m very tempted to force this matter back to court, as [edited - CG].

I’m sorry, Jeremy – but you must understand I have to reserve the right to edit comments to make sure no one could think them defamatory. – Carl

15 John Hemming March 24, 2011 at 17:35

Carl – it was a letter. It almost certainly was not SC who produced it. Who it was I don’t have any idea.

Most of the file was legit.

The report I waved around was the one I was referring to in the debate and have been referring to here.

16 Carl Gardner March 24, 2011 at 17:39

Sorry, John, maybe you’ll think I’m being obtuse, but I take it when you say the psychologist in RP’s case was “found to be wrong”, you mean found in that report you waved around to be wrong. Is that right? I’m not clear yet whether that’s what you mean by her being found to be wrong.

17 Jeremy Poynton March 24, 2011 at 17:42

Carl,

Absolutely no problem, fully understood!

18 Jim Nately March 24, 2011 at 17:59

Just wanted to double check, Mr Hemming, when you wrote that ‘in one case there was no publicity’, were you referring to RP’s case?

If so, are you saying that Wall LJ, at para 94–6, reproducing posts from your blog (which state RP’s name—or at least would if Wall LJ hadn’t redacted them), is lying? Or that printing RP’s name on your blog doesn’t amount to publicity?

Just so I’m clear, can you explain to me exactly how it benefits RP for her name to be public?

19 John Hemming March 24, 2011 at 19:03

>Just wanted to double check, Mr Hemming, when you wrote
>that ‘in one case there was no publicity’, were you referring to
>RP’s case?

No.

Rachel wishes to be associated with the judgment so that she can demonstrate that she is not as she puts it a vegetable.

Carl – I think the answer is yes. However, I am not really giving masses of attention to this blog. I have already done one typo and could have done more.

20 Carl Gardner March 24, 2011 at 19:59

Fair enough, John – obviously you have other things to do apart from comment here. I’m grateful that you’ve done so.

I am a bit surprised by your answer though. Since you said in Parliament [sorry: you said it in comments above, of course, not in Parliament] that the psychologist has since been “found to be wrong”, isn’t it reasonable to expect you to be able to identify that finding clearly, rather than just say you think the finding’s in that report?

And if it is that report, isn’t saying she was later “found to be wrong” possibly putting it slightly high? Isn’t it more reasonable to say another expert has since reached the opposite conclusion?

21 John Hemming March 24, 2011 at 21:07

I suppose you have a complex question as to what is proof. What you would need to do is to read all of the reports and read the transcript of the court of appeal (particularly concentrating on Rachel’s own presentation of her case).

I take the view that if someone is capable of presenting their case at the CoA then this is a higher threshold than the capacity to instruct a solicitor to present their case.

However, you could take a different view which is that there was one psychologist who assessed her as not having capacity and two psychologists who produced contradictory reports as well as a common sense/scientific conclusion that comes from observation.

I consider this to equate to “found to be wrong”, but that is based upon my own judgment.

I have seen a number of really rubbishy assessments as to capacity. I suppose I view those from a scientific perspective rather than a legalistic perspective. My academic background is a scholarship in Natural Science at Magdalen College, Oxford followed by a degree in Physics specialising in Atomic, Nuclear and Theoretical physics. That gives me a philosophical perspective that reality exists in a defined state whatever people’s opinions are.

22 Andrew France March 24, 2011 at 21:15

Where were the interests of my child when i was wrongly convicted and sent to prison for 7 years. Where? My child was born whilst i was in prison, where are the childs interests there? My name and address were posted in the press when i was convicted and the family had to have an emergency protection order from the Police. Where were the childs interests there? You all seem to miss the point. I was FORCED to AGREE with penalty for not doing so.
This country is very one sided.

23 Jim Nately March 24, 2011 at 22:37

Unfortunately, Mr Hemming, the typos are not all yours… I asked what the benefit of publicity was to RP (the mother); I had intended to ask what the benefit of publicly naming the mother—thus revealing the identity of the child—to KP (the child)? (It’s tricky to keep track, what with it being ‘alphabet soup’!)

Mine was an ironic question to have put. Not least when the Court of Appeal is rapping you over the knuckles for basing RP’s case on RP’s interests, not KP’s…

24 Carl Gardner March 24, 2011 at 22:40

Thanks, Andrew, for commenting here, and thanks John for coming back.

I wasn’t asking for proof, John. All I was trying to do was clarify what you meant when you said in Parliament that the psychologist in RP’s case had been “found to be wrong”.

I’m sorry to seem obtuse yet again, but you’ve said

there was one psychologist who assessed her as not having capacity and two psychologists who produced contradictory reports

You’ve already said you’ve seen one report, the one that you said you waved around in Westminster Hall; and that you think this is where the psychologist HJ was found to be wrong.

So when you now talk of two psychologists producing contradictory reports, do you mean simply that HJ and this other expert whose report you’ve seen contradict each other? Or are you saying there are actually two later expert reports that contradict HJ?

25 John Hemming March 24, 2011 at 22:43

Roughly half of the babies put through the process of being removed at birth then adopted end up so psychologically damaged that when adopted (and that happens for about 60% of them) the adoption either fails or has severe problems.

This is damage done by the state not done by the mother who does not keep the child for long enough to have done any damage.

It is really an evil system that does massses of damage whilst failing to protect children as well. I have the stats on this as well.

Where parents are adequate it protects the child to keep the child with the parents. Hence arguing to protect Rachel’s rights to have a fair assessment is in the child’s interest.

26 John Hemming March 24, 2011 at 22:45

Yes there are two reports that contradict HJ on various bases.

It is also obvious if you talk to Rachel. As it should have been to the Court of Appeal.

27 Carl Gardner March 24, 2011 at 22:55

Thanks, John – that makes clearer what you meant.

28 ObiterJ March 24, 2011 at 23:15

I will avoid commenting on any of the specific cases.

In the Westminster Hall debate, Mr Hemming made the point that people often seek to talk to their MP as a last resort. I tend to think that there ought to be no way that this right of access to one’s Member of Parliament should be restricted. It is a separate question what the MP does with the information and I can see that there might be difficulties there. However, Mr Hemming is quite right in staing that talking to one’s MP does not automatically mean a debate on the floor of the House or in a committe or even a letter to a Minister or some other body. The person may just need some advice.

Mr Bacon (MP for S. Norfolk) gave some graphic description of ordinary people breaking down in his “surgery” as they spoke about their fights with officialdom.

The debate also showed how officials deflect requests for information from MPs. This is extremely poor administration in a democracy. Elected representatives should receive full and frank answers.

When we talk these days of the rights of the people there is a tendency to just think about the Human Rights Act 1998. Our rights as a people go back long before any of this European jurisprudence and the Bill of Rights 1689 contains very valuable protections for the citizen. I congratulate Mr Hemming and the others for standing up for those rights even if the wording of them perhaps needs some modernisation.

Hopefully, though I do not hold my breath, the Commission on a Bill of Rights will realise that there are many pieces to our rights jigsaw and that “Europe” is not the only one.

29 Lucy Reed March 24, 2011 at 23:22

Sorry, point of technicality here: the recital as read out in Parliament was “upon the first and second Respondents agreeing that they will make no further disclosure in respect of this matter to any third party, including in particular the media and John Hemmings MP”.

I draft these every day. That isn’t an undertaking. It’s a record of an agreement, no more than that. Not enforceable by way of committal, although a clear flag of the Father’s stated intention at the time, which no doubt weighed against any application for injunctive relief that might otherwise have been forthcoming.

Evidently the Father has thought better of his agreement since he appears to have obtained his solicitors’ file and sent his counsel’s attendance note to Mr Hemming.

Mr Hemming may be protected by Parliamentary privilege but I would guess that the net effect of this very public disclosure of private information upon Mr Hemming’s 3 consituents (I assume he is MP for all 3 and that he has an equivalent responsibility to each of them) is unlikely to have been helpful. It might benefit Mr Hemmings’ cause but I’m can’t see at present how it benefits his constituents.

I’m reserving my more substantive thoughts on this topic until I’ve got time to comment fully.

30 Jeremy Poynton March 25, 2011 at 09:48

I have wondered, and had a not very convincing reply from our (excellent) MP – given that we already have a Bill of Rights, why do we need another, and how will any new one affect the existing one?

31 Carl Gardner March 25, 2011 at 10:42

Fair points, Obiter.

But I’m also concerned about the recent tendency of some MPs to assert Parliamentary privilege in a more arrogant and expansive way than has traditionally been done. The defence of David Chaytor and the other MPs and former MPs charged with offences is the worst example; MPs’ misplaced outrage at the police search of Damien Green’s Commons office – a search that was lawful and permission for which had been sought entirely properly – is another.

Freedom of speech in Parliament is a very important principle indeed, and one that MPs can use to expose genuine wrongdoing. Paul Farelly’s outing of Trafigura is a good example.

But MPs’ power to say what they like without restraint or comeback can be abused, too – and if we’re not vigilant, it will be. MPs have the vital ability to protect people from political power. But they have political power themselves, too, and any abuse of their power has potential to damage people.

If an MP is going to make serious allegations against individuals under cover of Parliamentary privilege, the public needs to have confidence that the allegation or suspicions he or she is raising have substance, and that he or she is expressing them fairly – not in way that is exaggerated, self-serving or in any way misleading, or in a selective way that gives only part of the picture.

32 John Hemming March 25, 2011 at 10:51

I am quite happy to substantiate anything that I have said in the house.

There are challenges with secret court proceedings, however. The judge has control over whether the proceedings are released. However, it is a detailed consideration of the proceedings and in particular the transcript that indicates whether the judge is doing his or her job properly.

Hence the wrong person is in control of the release of information about the proceedings.

33 Anonymous March 25, 2011 at 11:35

“But I’m also concerned about the recent tendency of some MPs to assert Parliamentary privilege in a more arrogant and expansive way than has traditionally been done.”

Have you thought that this may be because MP’s and, god forbid, members of the public feel that the functionaries of the state may be operating in a way that is “arrogant and expansive”?

“But MPs’ power to say what they like without restraint or comeback can be abused, too – and if we’re not vigilant, it will be. MPs have the vital ability to protect people from political power. But they have political power themselves, too, and any abuse of their power has potential to damage people. ”

In this case, I believe that John Hemming is trying to protect the public from the civil service, which I understand is supposed to be politically neutral.

If the Civil Service or Judiciary abuse their position then they are not likely to punished in the same way that an MP can be.
He can lose his seat, it’s very unlikely that any one working for the government would lose their job.

34 Carl Gardner March 25, 2011 at 12:12

I’m not sure social workers or their jobs are quite as safe as you suggest, Anonymous.

35 Anonymous March 25, 2011 at 12:29

I bet they are a lot safer when there is less public scrutiny.

36 Carl Gardner March 25, 2011 at 12:50

Thanks again for comment 32, John.

Who do you say should control the release of information about court proceedings? Do you say the parties and their advisers should be free do so, unrestricted?

As for substantiating what you say, in the nature of things an MP may well be unable to provide evidence substantiating serious allegations, except in Parliament. I’m not expecting you to provide evidence here of anything you say, obviously.

What I am doing is scrutinising what you’ve said and asking questions so as (I hope) to help readers make their minds up whether that debate last week was a proper use of Parliamentary privilege, or whether what you did was

to scatter unfounded allegations of professional impropriety and malpractice without any evidence to support them

as Wall LJ put it in the Court of Appeal. I appreciate your having given answers – it says a lot for you that you’ve been prepared to do so.

But I think people are entitled to think some questions remain about your approach. You’ve maintained in comments here your claim in RP’s case that a solicitor’s file was in effect falsified, in spite of the Court of Appeal’s having said that allegation is “shocking” and “an abuse of your position”.

You’ve also said here (comment 3) that the psychologist in RP’s case, HJ, was later “found to be wrong”, but what you mean by that, it turns out having asked you about it, is that two subsequent experts reports have reached a contrary conclusion to her. You said

I consider this to equate to “found to be wrong”, but that is based upon my own judgment

but is that enough to justify saying simply that she’d been “found to be wrong”? There seems to me a shade of difference, but an important one, between being subsequently contradicted by other experts and being “found to be wrong”.

And so for instance, in the case of that other young woman, about whom you said (correct me if I’m wrong) there’s a reasonable case she’s being held as in effect a “secret prisoner” because someone at Birmingham council wants to cover up an allegation of sexual assault by one of its staff – something that would be a genuine scandal if true – can we be confident you have not used Parliamentary privilege

to scatter unfounded allegations of professional impropriety and malpractice without any evidence to support them

and that you can provide your fellow MPs with supporting evidence?

37 John Hemming March 25, 2011 at 13:00

I have provided supporting evidence to some MPs.

If I can look at two particular issues. One is that of the letter which I believe was retrospectively inserted in the file. That is founded upon three facts relating to the date, absence of received stamp and format of the address. That is not “unfounded”.

The second one is as to whether Rachel Pullen has a “significant learning disability”. She doesn’t. Only one expert argues that she does. I think this justifies me saying what I did.

38 Carl Gardner March 25, 2011 at 13:24

What about the Birmingham case, John, and your suggestion a woman may be in effect imprisoned because of a council cover-up of sexual assault allegations? Have you given other MPs evidence in support of that?

39 John Hemming March 25, 2011 at 13:30

Yes. I have shown a number of other MPs the relevant material in connection with the speech.

40 Carl Gardner March 25, 2011 at 13:38

Thanks, Lucy, for setting us straight about Andrew France’s agreement (comment 29).

41 Jim Nately March 25, 2011 at 16:39

With all due respect, Mr Hemming, I can’t help but find your remarks in comment 32 to be bordering on sophistry.

It’s certainly very true to say that a judge has a conflict of interest in deciding whether to open the proceedings. As you say, if she has done her job poorly than she will prefer to avoid anyone knowing about it. (Ignoring, for the sake of argument, the oversight of the appeal court.)

That conflict, however, is dwarfed by the conflict of interest facing the parent/guardian. When faced with the dilemma of balancing their desire to recover their child versus the child’s interests in keeping the details of exactly how it came to be taken into care private, do you really expect a parent to be able to carefully balance the two carefully?

Again, with all due respect, to suggest that the parent is the most appropriate person to take that decision is a mistake. Or, to put it another way, it is the child’s interest, not the parents interest, which must come first.

And if that should mean that the parent is unable to re-litigate their case in the court of public opinion? So be it.

42 John Hemming March 25, 2011 at 16:45

My proposal is in fact that it should be within the territory of the information commissioner. However, No 32 above merely gives the reason why it should not be the judge.

43 Lucy Reed March 25, 2011 at 16:55

Mr Hemming,
I’m struggling with the idea of the Information Commissioner dealing with these issues. Can you explain how the Information Commissioner is going to be best placed to analyse all the competing welfare issues, privacy issues, free speech issues etc? It seems to me that the question of what material can be released can only be assessed by the judge – or by someone else who is as able as the judge in the case to consider those issues in the light of all the papers and the views of all the parties, the children’s guardian etc. Surely if the judge trying the case does not permit the release of material you would trust in the appellate court or judge to properly reassess the decision and correct it if it is wrong? If so, why do we need an alternative system? How do you envisage the information commissioner would be able to properly listen to and factor in the views of all the other parties (including the child) about what the right decision is without some kind of court like process and what powers does he have / would he need in order to properly manage the publication or protection of information? Can you explain your proposal in a little more detail?

44 John Bolch March 25, 2011 at 18:35

With reference to comment 32, the idea that judges keep proceedings private merely to prevent their decisions from being open to public scrutiny is both absurd and offensive.

45 Andrew France March 25, 2011 at 18:54

Dear Lucy
Both respondants were forced to agree. And we will stand in any court in the land and say so. We had NO CHOICE or our child was under threat to be taken away.
Any right minded person would have had no choice but to agree when such a traumatic threat to both of them was made. And would have lost their child, causing huge suffereing all round.

46 Andrew France March 25, 2011 at 20:26

I was convicted on 18-10-2004, Cleared 15-12-2009. I put a claim in against my ex barrister via Bar Mutual.
They say my claim starts when i made my first complaint 2008. I made my first complaint actually in 2005.
Now the problem i have is the bar mutual have his 2008 indemnity @ £500k, and his 2004 indemnity @ £2.5million. 2008 he was not practicing.
My belief and that of many others is that the 2004 indemnity should be used as this is the date when the alleged negligence took place, not as they claim when he was no longer practicing.
Bar Mutual claim Barristers are exempt from this common factor.
NO one in any legal capacity will answer this question, but every MP will, every lay man will.
What are anyone elses thoughts on this matter.?
Incidentally Bar Mutual Claim James Norris QC of Goldsmiths Chambers is dead. My Private Investigator does not believe this and neither do I as he is untraceable Dead or Alive. Strange therefore that 5 PI’s now have not come up with anything.
Sorry to go off topic but i need to know urgently. Any information i get good or bad will be of help to me.
anythoughts or do you have knowledge?
Sorry to bother you.
Regards Andy France

47 Lucy April 1, 2011 at 16:34

James Norris is dead, I attended his funeral

48 Andy France April 2, 2011 at 23:03

Thank you Lucy. I have now got all details of his alleged death so can now move forward.
Why is there so much a cover up of details in this country?
Seems to me this whole Country is a place of cover up’s and very much black market going on, secretacy a whole new era. Well on Tuesday when the papers get involved what a bang into society that will be. See you all in the headlines in a few months.

49 Sam Smith April 5, 2011 at 12:54

Hi,

I totally support John. My experience of government is as a former Labour Councillor and former spin doctor. My professional experience is that at local and national level the instincts of any state body that has made an error are almost always to cover up the error rather than admit to it and fix it. Indeed it is some of my experiences that made me become a Conservative.

It is a fundamental flaw of human nature to refuse to admit error – lamented throughout history, in the holy scriptures of religions, through the writings of philosophers and artists such as Shakespeare and even in good old Dale Carnegie’s ‘How to Win Friends and Influence People’.

As a general many local councils, corporations and government departments would rather spend £50,000 defending a decision than £50 admitting it was wrong and removing it.

Turning then to Rachel Pullen. This is a woman, capable and by no means disabled – but equally and with respect her own expert viewed her as ‘normal’ but at the lower end of the ability scale.

The difficulty is that she was subject to a process that is slow, expensive, cumbersome and weighted against people who are not either very, very clever or very, very rich. The issue is that presumably most people who are found to lack capacity ‘wrongly’ may be not the most able or brightest.

So even though they may *have* capacity they may find it very hard to challenge the decision. There is no automatic right, for example, to a second opinion. How can this be just?

It is necessary that people who genuinely lack capacity be protected in litigation, but in practise that is not what the current process does. A person can be found to lack capacity to instruct a lawyer on the evidence of a single expert witness and thereafter the Official Solicitor becomes involved. The Official Solicitor is subject to resource constraints and may find it difficult to fight every case that should be fought. They may be under pressure to concede in harder cases.

The process for challenging a finding of incapacity is impenetrable to normal people. The person basically needs an expert witness of your own, ideally some lay evidence and some luck. They must do all this themselves without legal aid. This cannot be acceptable. Surely it cannot be in accordance with the human right to a fair trial.

More generally one wonders if the concept of a compulsory litigation friend should exist at all. I suggest it is discriminatory and a barrier to justice. If people who are genuinely lacking in capacity or irrational due to illness or disability bring claims due to misunderstanding, delusion or vexatiousness I think the Court should be able to use its case management powers instead, for example to strike out, reserve further applications to a particular judge or to eventually make orders as for a vexatious litigant.

A litigation friend should not be appointed unless a person consents or literally cannot convey their wishes due to being (for example) in a coma or unable to speak.

These bureaucratic, secretive, patronising processes are amongst the last bastions of discrimination against the disabled in a society that is slowly improving its treatment of them. It needs to be fixed. It can be fixed cheapy. All that is needed is the will.

50 Andrew S May 24, 2011 at 16:16

I would like to congratulate John Hemming on his decision to name the footballer yesterday. I’m afraid it’s judges and the legal profession in general who are guilty of arrogance as far as “gagging orders” are concerned.

51 Andrew France May 24, 2011 at 19:17

Hi Carl
Let me pose this then. You say John is wrong to critise professionals who he claims are wrong. Well what about every official who was wrong about me through the whole prison system, physcologists (or trainees as the case behind prison walls), police, prison officers, governors, socail workers, probation staff. I WAS NOT IN DENIAL i was in fact innocent.
We all have different views due to our circumstances.
What about James Leslie Norris my top flight barrister, huh he was a chronic alcholic, no wonder he then forgot to ask vital questions at my trial.
How did his Chambers Goldsmiths allow him to practice, how did the Bar Council allow him to practice, how did the Bar Mutual insure a chronic alchololic to practice law? How dangerous was that?

52 Andrew S May 24, 2011 at 19:40

I believe it’s only a matter of time before we in the UK adopt American-style freedom of speech laws. Any attempt to prevent this from taking place will be rather futile and akin to King Canute trying to hold back the waves.

53 Mini Sarla August 8, 2011 at 19:20

Would like to send you a complementary copy of my book titled, “Power & Privilege – Their Abuse in the World.” If you would like to read it, let me know the best mailing address to use.

54 TimBo June 4, 2012 at 05:50

From personal experience I can confirm that EU Convention Articls 9 and 10 are ignored by judges sitting in the Family Court System. Only last Friday (01/06/2012) I was present when a Circuit judge made an order barring a Father from disclosing any information in relation to the case to anyone who was not involved in the case witohut obtaining the permission of the court. That order was made following a ‘suggestion’ by the other party’s counsel (without any evidence being given) that the Father ‘may have disclosed information’, which resulted in the circuit judge adding a sentence to the order without having heard the Father at all. The Father (who is disabled) had to stand up and wait until he finally was given attention, before being to ask if he was going to be heard on that matter at all? The Father then correctly pointed out that disclosure was permitted under FPR 2010 r 12.73 and 12.75 and stated that he had at all times complied with the rules. However, the Circuit judge responded by saying, they were not going to get embroiled in a discussion on the matter and the order was left in place unchanged, thereby deliberately and unnecessarily restricting (gagging) the Father’s ability to make permissible disclosures provided for under the rules. The fact that this was done during a permission appeal hearing, meant that the Father has no opportunity to challenge that aspect of the judge’s order; and it is notable that part of the order was made without the Father having been given any notice by the other side that such an order would be sought and without the Father having been given any opportunity to provide any argument against it, before it was actually made. While it is true that the Father was subsequently permitted to address the Court about that matter, the fact is that the order had already been given and the Father’s subsequent response and ability to challenge that part of the order was interrupted by the judge, who clearly had no intention of either listening to or properly taking into account the counter argument the Father correctly made by stating what the rules actually permitted. It was very clear that the attitude displayed following the making of that part of the order was nothing less than sheer arrogance from the judge involved. It was also clear that there was no justification for that part of the order and that it was made solely on the basis of the supposition and conjecture (suspicions) of the other party’s counsel.

Leave a Comment

{ 5 trackbacks }

Previous post:

Next post: