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Intro: [00:00:00] You are listening to Parliament Matters, a Hansard Society production supported by the Joseph Rowntree Charitable Trust. Learn more at hansardsociety.org.uk/pm.

Ruth Fox: Welcome to Parliament Matters, the podcast about the institution at the heart of our democracy, Parliament itself. I'm Ruth Fox.

Mark D'Arcy: And I'm Mark D'Arcy. Coming up this week.

Ruth Fox: Thousands of people were put at risk of murder by the Taliban and millions, potentially billions, in taxpayers' money were spent on a secret Afghan relocation scheme.

We talk to legal expert Joshua Rozenberg about why this week's revelations of a data leak of Afghan personnel who worked with British forces poses serious questions for Parliament.

Mark D'Arcy: Should secret evidence to the Northern Ireland committee be handed to the inquiry investigating whether the security services could have stopped one of the worst atrocities of the Troubles, the 1998 Omagh bombing.

Ruth Fox: And withdrawing the party whip from the [00:01:00] government's social security rebels - necessary action to restore the government's authority or deepening the rift on the Labour benches?

Mark D'Arcy: But first, Ruth, let's turn to the astounding story that emerged this week about how a Government data breach leaked details of thousands of people who had applied to come to Britain under the scheme to help Afghans that had worked with British forces and about the extraordinary veil of secrecy that was drawn over it for two years.

Ruth Fox: Yeah, Mark, I mean, what seems to have happened is the leak came when a spreadsheet was accidentally emailed from outside the Government in February, 2022. The fear was that if the Taliban regime now in control of Kabul got hold of the data, those people on that spreadsheet would be at risk of revenge attacks.

But extraordinarily, it seems the Defence Secretary and other senior MOD officials didn't know about the breach for 18 months and when it was discovered, the Government went to court to seek an injunction to keep [00:02:00] news of the data breach from being published. But it seems that the judge in that case went further than the government's lawyers had asked and granted what's known as a super injunction. An injunction that's so powerful that even its very existence can't be disclosed.

Mark D'Arcy: And the injunction remained in place when Labour came into office last year. It effectively prevented not only media reporting, but also parliamentary discussion. So the fact of a major data breach in government, the creation of a new immigration route for Afghans now thought to be at risk because of it, and the multimillion pound costs it created all went un debated at Westminster.

Ruth Fox: This week after a fresh risk assessment, the government's gone public and the high court judge, Mr. Justice Chamberlain, bit of a hero in this case, has finally lifted the super injunction. And the Defence Secretary John Healey, made the statement to MPs.

Mark D'Arcy: So what price parliamentary scrutiny and parliamentary privilege, the special rights that allow MPs and Peers to speak freely without facing prosecution in the courts.[00:03:00]

Well, to explore the intricacies of all this, we turn to legal expert Joshua Rozenberg, and we began by asking him to explain what exactly is a super injunction and can it really bind Parliament.

Joshua Rozenberg: An injunction in England or Wales is simply a court order telling you to do something or not to do something.

The equivalent, I think, in Scottish law is an interdict. This injunction was granted against everybody. Contra Mundum is the Latin phrase used. But it was a super injunction because its very existence couldn't be reported. The judge who was first asked to make a court order, Mr. Justice Robin Knowles, decided I think on his own initiative that the safest thing to do was to say that nobody could even say that such an injunction existed for fear that once you knew it existed, you might know what it was all about.

Mark D'Arcy: And one of the peculiarities of this situation was precisely that, that the judge in fact gave the government more than they [00:04:00] wanted, because they wanted an injunction against discussing this subject. They didn't ask for a super injunction that was unreportable.

Joshua Rozenberg: That's right. This came before the vacation judge, the judge who has the rather miserable job of being on duty when all the other judges are on holiday in August.

Well, they have fled. They've all fled the country and he's got to deal with anything that comes along. And the natural thing in those circumstances is to err on the side of caution. Hold the fort and let somebody else sort it out later, and that's what this judge did. I don't think he can be blamed for doing that.

He obviously thought that if he gave the order in the terms that the Government's lawyer had asked for, well that might then cause problems. He probably thought that the Government's lawyer hadn't really thought it through. She was working during August as well. And maybe the idea was simply to hold the status quo until somebody could work out what was best to do.

Mark D'Arcy: The status quo persisted though for some years after [00:05:00] this, and one of the most interesting effects from our point of view is that it seems to have foreclosed the possibility of Parliament debating what was a grave matter of public policy. And I mean, this isn't some super injunction about which public figure can't keep their hands to themselves.

This was a matter of billions of pounds, the safety of thousands of people, all down to a mistake by a public official.

Joshua Rozenberg: Certainly the effect of the super injunction was that nobody talked about it in Parliament, but that was not the position as a matter of law. If you look back to what was said by Mr. Justice Chamberlain, the senior high court judge who took over the case later on in 2023, he gave a decision in November in which he said the injunction did not constrain what could be said in Parliament. He said, under Article Nine of the Bill of Rights, no such constraint would be constitutional or lawful, and he made that clear when he [00:06:00] varied the injunction, but he added MPs and Peers cannot ask questions about something they don't know about, and the parliamentary authorities may regard the existence of an injunction as relevant to their decisions about what can and cannot be raised. And everybody seems to have assumed that if this couldn't be talked about publicly, it couldn't be talked about in Parliament, but as I see it as a matter of law because of parliamentary privilege MPs can choose to say whatever they like regardless of a court injunction.

And we've seen several examples in the past, haven't we, where an MP or a Peer has named somebody in connection with a case, even though there may be a court order saying that nobody else can do so.

Ruth Fox: So that's the big difference in this case though, isn't it? Because where Parliaments had to deal with super injunctions and where MPs have raised questions in the House of Commons about the existence of super injunctions, often involving celebrities, this is about the Government itself, and therefore it sort of goes to the heart of the question about [00:07:00] accountability of ministers to Parliament. The fact that MPs would not have been aware of it, and those who were aware of it, felt that they couldn't say anything because of, you know, the existence of the order, the fact that there are issues of national security that are involved. So it's really put the whole question about accountability and the role of Parliament in an incredibly difficult position.

Joshua Rozenberg: I think the judge was very well aware of that, and regularly in these hearings during late 2023, 2024, he raised this with the senior barrister representing the Government, and he was shocked to discover that potentially huge sums of public money were being spent without parliamentary scrutiny.

And as we know in the Summer of last year, he decided that the injunction should be lifted, but the Government appealed to the Court of Appeal and they were successful. So the injunction remained in force. You're absolutely right that these injunctions, super [00:08:00] injunctions, we haven't heard so much of them recently, but these super injunctions were previously obtained by popular figures, by entertainers, business people, that sort of thing. And it is unusual for the Government to obtain an injunction of this sort. But if you look at it from the Court's point of view, if a Secretary of State is represented in court and comes along and tells a judge that the lives of many, many people could be at risk if you don't make this order the natural thing for the judge to do is to make the order and then wait to see what happens, wait to see what evidence is produced and assess the evidence.

Mark D'Arcy: And so you have this very strange situation where it doesn't get discussed in Parliament, but in the meantime, billions of pounds worth of public money as you mentioned are being spent resettling people who've been potentially put in danger by this data breach.

And there don't seem to be channels employed here. The Defence Committee wasn't told, the [00:09:00] Public Accounts Committee wasn't told, the Intelligence and Security Committee wasn't told, the Home Affairs Committee in charge of immigration issues wasn't told. There doesn't seem to have been any alternative means of getting some level of parliamentary authorisation for this spending.

Joshua Rozenberg: That's right, and I suppose the point is that once you tell people, particularly in Westminster, well, it's no longer a secret, it's no longer protected. But then the responsibility for that surely falls on the Government of the day. Originally, the Conservative Government, now the Labour Government, it was ministers from those respective governments who wanted the injunction to be continued.

Now it's fair to say the present Government called in this former defence official Paul Rimmer to do an investigation and to assess whether there really was a risk. We don't know what sort of background briefing he was given. We don't know whether he put a finger up and took the temperature and that sort of thing, but he decided that the time had come where it [00:10:00] was as safe as it could reasonably be to tell the court that the injunction could be lifted. Could he have done that sooner? Could he have been invited to do so sooner? Would it have been safe to have done so sooner? Well, these are all questions for the politicians involved, for the government ministers involved, but yes, it did have that effect, and it's clearly a matter of some concern.

But as I say, Mr. Justice Chamberlain said, as far as I could see, that was not my idea. As far as he was concerned he thought the balance had shifted a year ago in favor of openness.

Mark D'Arcy: One of the people who does seem to have been on the receiving end of this injunction was Mr. Speaker Hoyle, presumably with the purpose of shutting down parliamentary discussion.

So if someone started raising things, whoever was in the chair in a, the main chamber, in Westminster Hall, possibly even in a committee, could get up and say, now this is a matter that should not be discussed here, and shut it down. Again, that's a very dicey constitutional area, isn't it?

Joshua Rozenberg: It [00:11:00] is. Now we know that Parliament tries to respect the role of the courts just as the court tries to respect the role of Parliament, and we know that the Speaker would try to do his best to discourage MPs from doing anything that would break an injunction, even if they are not bound by it.

And obviously in those circumstances, the Speaker needs to know that such a thing exists. We do know that there were one or two mentions of this resettlement scheme in obscure written answers at various times, but nobody seems to have picked it up, or if they did, they didn't realise what the implications were.

So it is obviously a difficult position for the Speaker. We know he's asked the clerks to advise on what can be done. But I think the overall message of this is that governments should be very wary about asking for these injunctions. And if they do, they should not retain them any longer than is absolutely necessary.

But ultimately that must be a matter for ministers to judge. [00:12:00]

Ruth Fox: And that's the question, isn't it? At this point, Joshua, then we don't know whether the Government has got any other super injunctions, one assumes not, but I hope not. They're not saying. And of course, in the House of Commons this week when John Healey made his statement, and in subsequent media interviews, he's been asked about whether he'd given assurance that the Government, the Labour Government, wouldn't seek a super injunction in the future.

And on the basis of never say never, he's not given that assurance, given that this has happened. It is a serious constitutional issue and a precedent has now been set. And as we all know within Parliament, once the precedent is set, it can be revisited by ministers, and it affects the balance of power and the relationship between the executive and the legislature.

So one of the things we've been musing on here is, well, okay, if this were to happen again, are there certain measures that could be put in place to facilitate at least some senior parliamentarians being informed on a [00:13:00] confidential basis, perhaps senior parliamentarians who are privy counselors, chairs of relevant select committees and so on, that could ensure some degree of accountability. Because one option is the House sits in private. That has been suggested by one MP, but I can't think of anything more likely to get the antenna of all the journalists in the lobby and people like ourselves looking at what on earth is going on. So there needs to be some other model which isn't gonna enable all MPs to be read into the situation, but certainly the most senior ones who are on relevant select committees.

Joshua Rozenberg: That must be right. And particularly the Intelligence and Security Committee, which isn't a select committee as you know better than I do, in the same way that other committees are, and the members are security vetted and they meet in secure circumstances and they have access to secure documents.

So it ought to be possible to bring them within the ring of confidence, which in this case existed in the Ministry of Defence because obviously the Secretary of State knew. [00:14:00] Obviously, other ministers knew. I'm talking about the original Secretary of State in the last Government. Obviously senior officials knew, obviously their lawyers knew, so there were people within Government who knew.

And as a matter of principle, it seems right to me that other MPs should be told. But of course, the more people who learn about it, the more risk there is that this information is going to leak out. I do think though, in answer to your general point, this has not gone down very well with anybody.

Obviously, both main parties are blaming one another, but I do think that if anything like this comes up in the future, ministers will think back to what has happened here. But it is worth bearing in mind what Mr. Justice Chamberlain said at the end of his judgment. I read it as asking whether the Ministry of Defence have been overreacting or crying wolf two years ago, he said it will be for others to consider whether lessons can be learned from the way the initial assessments in this [00:15:00] case were prepared and whether the courts were or are generally right to accord such weight to assessments of this kind. What I think he's saying there is that when the Ministry of Defence told him, look, if you don't order this injunction, people will die, that maybe they were putting it a bit too high, not deliberately, but just because officials tend to err on the side of caution. My view of Mr. Justice Chamberlain is that his approach to those responsible for our national security, not just in this case, but in many others, is generally one of cautious respect.

But I don't think he's in favour of slavish deference to everything he's told by officials and lawyers for secretaries of state, and I think that's the right approach.

Mark D'Arcy: One thought though, you said this hadn't gone down. Well, my impression of the parliamentary reaction to this is actually, it's all a bit blase.

It's a little bit shrug of the shoulders, stuff like this happens. [00:16:00] So a fairly fundamental issue is being shrugged off.

Joshua Rozenberg: Well, you could be right there. You know, it's the Summer and uh, you know what's gone is gone. And you know, party politics carries on. And I think the real problem with this is that both sides are to blame because obviously it was a Conservative Government which brought this in. They did indeed, apparently tell people in the Labour opposition as it then was at some point, but it's effectively the Labour Government that's maintained it for the past year. So I think both sides are in the frame, and maybe that's why perhaps criticism of one another has been somewhat muted.

Mark D'Arcy: Well, Joshua, thank you very much indeed for that.

We also wanted to ask you about another issue touching on parliamentary privilege, which is the request for evidence, unpublished evidence given to the Northern Ireland Affairs Committee to be made available to an inquiry into the Omagh bombing. Perhaps, first of all, we could get you to, as it was, summarise the background to that.

Joshua Rozenberg: Yes. Those of us who were [00:17:00] around at the time won't forget the car bombing in Omagh, County Tyrone, on the 15th of August, 1998. 29 people and two unborn children were killed. And the question is whether that attack could have been prevented by the British government. And last year, the previous Government set up an independent public inquiry into that under a Scottish judge, and he was asked specifically to look at the allegation made by Norman Baxter, who was the former senior investigating officer who looked at the original bombing. He gave evidence to the Northern Ireland Select Committee in November 2009, that police investigations into previous attacks in 1998 in Northern Ireland, the investigators there didn't have access to intelligence materials that might have enabled them to disrupt maybe even prevent [00:18:00] the Omagh bombing, to disrupt the activities of dissident Republican terrorists. And given that the Turnbull inquiry, Lord Turnbull being the Scottish judge who's chairing the Omagh inquiry, has been asked to look at that he obviously wants to see the evidence that was taken by the Northern Ireland Committee from Norman Baxter.

Some of this evidence was not reported to the House of Commons. It remains unpublished, it's inaccessible, and what's happened now is that lawyers for the Omagh inquiry have asked the House of Commons if they can get hold of unpublished evidence given by Norman Baxter to the House of Commons Northern Ireland Committee when Mr. Baxter spoke to them in 2009.

Mark D'Arcy: Now the issue here is we're back to our old friends, the Bill of Rights again is the intersection of the courts and the working of Parliament. And the idea that people perhaps giving evidence to select [00:19:00] committees might start to get rather worried if the evidence they give perhaps in confidence is then unceremoniously handed over to my learned friends.

Joshua Rozenberg: That's absolutely right, and it is of course a great privilege to give evidence to a House of Commons or House of Lords committee. I've done that myself, and you know, you can say whatever you like and they can't touch you for it. It's a great, great thing, actually. We try not to abuse that privilege. But rather more seriously, he was entitled to say things which would otherwise be defamatory for all we know. He might have named names, he might have blamed colleagues, he might have identified suspects. There are all sorts of things he might have said. Knowing that he was free to speak his mind, knowing that the meeting was being held under closed conditions, and perhaps assuming that what he said would not be published or if it was to be published, it would be treated with great care. It's not a matter for him, it is a matter for the House of Commons. [00:20:00] It's surprisingly complicated. If a committee wants to publish evidence, it must report to the House and obtain an order to publish it.

It can simply report evidence to the House if it wants material to be available to members and nobody else. But if there is evidence that is not published at all once that Parliament is over, nobody has access to it until the archives are open. And so in the circumstances, there's no way of getting hold of this evidence as far as I can see unless the House of Commons orders it.

And of course, the House of Commons doesn't know what it says, and therefore doesn't know what the risks are of even ordering it to be handed over.

Ruth Fox: So that's, I think what Monday's events were about in, in large part, wasn't it? That the Chair of the inquiry through the auspices of the Solicitor to the Inquiry, they have petitioned Parliament for the release of the evidence transcript and the current and [00:21:00] former chair of the Northern Ireland Committee, Tonia Antoniazzi and Simon Hoare, they have proposed a motion that the petition should be considered by the Privileges Committee of the House of Commons, so it can reach a view as to whether or not the evidence should remain unreported, so shouldn't be sent to the inquiry or whether they should actually agree to release the transcript, presumably in confidence we assume, to the inquiry. So the Privileges Committee is gonna have to look at this and study it and determine what course of action to take. And it was very clear, I think, from the debate this week that both chairs think that it should be released. But again, we don't know whether they know what is in it, given that it has been closed and unreported.

But it'll be for the Privileges Committee to make a recommendation to the House of Commons. And we'll have to just watch this space and see what happens.

Joshua Rozenberg: We will indeed. It's pretty clear that everybody concerned wants this evidence to be released to the inquiry. Whether the inquiry team chooses to publish it or not is perhaps then going to be a matter [00:22:00] for the inquiry, but since the terms of reference by the Secretary of State who set up this inquiry actually refers specifically to this information, you would think that the Privileges Committee would recommend to the House that privilege is waived at least so that Lord Turnbull and his team can see what Mr. Baxter said all those years ago.

Mark D'Arcy: But as you were saying earlier, this is a precedent that could then resound through future inquiries on completely separate issues where people are just that little bit more cautious about what they're prepared to say.

Joshua Rozenberg: That's absolutely right because it is possible that somebody will say that something secret is publishable, but that doesn't happen very often. It's much more common for people to say things in evidence, written or spoken, to a parliamentary committee that they wouldn't be able to say elsewhere, but that they can say in Parliament, rather than for them to go into [00:23:00] secret session as far as we know, and say things which they don't want reported at all.

It's not even clear to me whose idea it was that this should be a closed session of the Northern Ireland Committee all those years ago. Whether it was the police who wanted to give evidence in confidence or whether it was the MPs who thought that the detective would be more able to speak freely if he was able to speak in private, at least for the time being.

Mark D'Arcy: Well, it's certainly one to watch. Joshua Rozenberg, thanks very much indeed for joining Ruth and me on Parliament Matters today. A great pleasure. Thank you.

Ruth Fox: Well, thank you to Joshua Rozenberg for joining us. I think Mark, at this point, we should take a short break and come back and discuss well, what are the implications of all of this and what's Parliament gonna do about it and what might come next?

Mark D'Arcy: Plenty to chew on.

Ruth Fox: See you in a minute.

Mark D'Arcy: And we are back. And Ruth, one of the things, as I was saying to Joshua just now that really struck me about the way this all was received in Parliament was the slight sense of MPs [00:24:00] shrugging their shoulders and thinking, well, things like this happen, and not necessarily feeling that something fairly fundamental went on.

I mean, am I over egging this? Is this not such a big deal that all this was going on and practically no senior figure outside the Government and the official opposition was told about it for quite a while.

Ruth Fox: I don't think so. It is a very big deal constitutionally. You know, when you think about the number of people in Parliament, a small number knew about it, couldn't talk about it, it couldn't be discussed. It's fundamental to Parliament, its role and its relationship to the executive that, for example, it scrutinises and assents to the expenditure of public money, these issues, you know, immigration, asylum, what happened in Afghanistan all of these questions are big matters of public policy debate. Now, it may be, as Joshua sort of alluded to, it may be that there's a degree of exhaustion at Westminster and MPs are really looking to get out of Westminster to get back to their constituencies and some of them to get out on holiday.

[00:25:00] Clearly, the select committees, I think is where this is gonna be picked up. I was quite surprised that it wasn't really raised at Prime Minister's Questions. I mean, Keir Starmer, you know, made an opening statement, talked about the fact that the opposition, because they had been in Government when this first happened, the opposition had got questions to answer.

But beyond that, no MPs raised any questions about it. And there are some serious questions that we need to explore.

Mark D'Arcy: And this injunction has been enforced longer under Labour, I think, than it was under the Conservatives. They've had a whole year in which they've sat on this injunction. Maybe it's because they were conducting a security review to decide whether it was indeed safe to lift it. But they've had their dabs on this for a year.

Ruth Fox: And that is one of my concerns actually, that precisely because it involves both major parties, they've both got their fingers on this, there may be a desire to not explore too far the issues and almost a conspiracy of, not silence, but a sort of conspiracy of, let's not get too detailed in the weeds on this.

Mark D'Arcy: Steady on [00:26:00] chaps. And there are going to be clearly at least a couple of select committee sessions around Tanmanjeet Singh Dhesi, the Chair of the Defence Committee has already said he's going to have an inquiry in his committee. I think Sir Geoffrey Clifton Brown, the Chair of the Public Accounts Committee, said in the debate in response to John Healey's statement that he was calling in officials from the MOD to explain the spending that took place around all this.

So there are gonna be at least two substantial sessions there, and there could be other select committees that want away, and it's an immigration matter, maybe Home Affairs would like to take a look.

Ruth Fox: Yeah, I think so. And of course the first committee that's actually got the opportunity to deal with this is the Liaison Committee, the committee of select committee chairs, which meets this coming Monday.

It would've had a plan for questions and a whole range of other issues. The Prime Minister Keir Starmer, one of his sort of three to four times a year that he appears before the committee, usually just before recess. Surprise, surprise, he's appearing on Monday before the House goes into recess [00:27:00] on Tuesday, and that will be an opportunity for those committee chairs to ask him about certainly what's happened in terms of on his watch as Prime Minister, what he learned, when he learned about it, what he thinks about it, what he thinks should be done in future.

And, you know, one of the questions that is out there is, you know, would a government now the precedent has been set, would a government in future if they wanted to perhaps for reasons of national security or indeed for some other reason, perhaps a financial reason, resort to super injunctions in the future.

So there's an awful lot for the Liaison Committee to get their teeth into on Monday. And importantly that is the committee, really the only committee that can hold the Prime Minister to account.

Mark D'Arcy: Yes, indeed. It's the only committee the Prime Minister will appear in front of. So they have the chance there to come at him from several different directions on these issues.

And there are also a few other parties who perhaps have a few questions to ask. I mean, the National Audit Office audits the accounts of government departments and briefs MPs on them. So, [00:28:00] presumably they would've had a view on Ministry of Defence accounts where some of these costs would've appeared in the past. It seems that the numbers would reflect the overall cost of Afghan resettlement schemes, and folded into that is the specific special scheme that was created to help the victims of the data breach. It seems that the people coming in under that special scheme were counted in the official figures of the number of Afghans coming to the country. So it is not that the numbers were totally hidden, but the reason why some of those numbers were there was perhaps not apparent to anybody who wasn't going very, very closely through the figures.

And I think that maybe some of the select committee chairs might like to have a little conversation with the NAO about how much they were told. Were they simply just waiting for them to ask the right questions.

Ruth Fox: Well, yeah, I mean, one of the immediate questions is, was the NAO and specifically the Comptroller and Auditor General, the head of the National Audit Office, so who is I think, a podcast listener, as you and I know, was he subject to the super injunction?

Because it does seem, certainly according to media reporting from the Financial [00:29:00] Times that they knew about the expenditure involved in the program and a form of words was agreed with the Ministry of Defence about it. Of course, the Ministry of Defence would also have had to report the data breach in their annual report and accounts, and that's where you get bodies like the Information Commissioner's Office, as well as the NAO learning about these things.

So we have to assume that the NAO took it on trust that this was a matter of national security, but it does make their position rather difficult. If they were told and knew about it, perhaps not the full story, perhaps just some core details, they are an Office of Parliament, the Comptroller and Auditor General is an Officer of Parliament, an officer of the House of Commons.

I think specifically they have a responsibility to the Public Accounts Committee, not to the Government. But they've gotta balance that with what they learn from the Government about these national security issues. So it's incredibly difficult.

Mark D'Arcy: There are occasional precedents for, I'm not quite sure how you'd describe it, delicately fudging the accounts a bit for reasons of national security over the years. I mean, one of the big [00:30:00] ones was way back in 1980 when the existence of the Chevaline programme was revealed to a rather astonished House of Commons. And this was a super duper program for upgrading the Polaris missile nuclear deterrent at the time on which many hundreds of millions of pounds were spent. And Parliament was not told about it at the time and the programme was initiated under a Labour Government, continued under a Conservative Government and finally announced, but it has a little side echo in this circumstance, in that, you know, both the major parties of government had their dabs on the issue.

Ruth Fox: Yeah. Well, if you of course, read the excellent book about the National Audit Office, that was published recently by Henry Midgley, Professor at Durham University, who we had on the podcast to talk about financial scrutiny. Henry's book recounts the history of the NAO and of course the Chevaline scandal was one, not the only one, but one of the reasons why the NAO was made effectively a parliamentary body. That was one of the driving issues. So the question of [00:31:00] if the National Audit Office knew, but the Public Accounts Committee chair did not, that's quite a serious constitutional question that goes to the heart of the question of Government accountability to Parliament. It potentially drives, you know, you could see how in certain circumstances that could drive a wedge between the NAO and the PAC, the Public Accounts Committee in terms of trust.

Again, you can get this from Henry's book if you look at some of the sort of ways in which these issues have been handled in the past. I was looking at the book last night, 1984, there was a decision made by the NAO to brief the Public Accounts Committee privately on confidential matters in relation to defence funding, in relation to the defence of the Falkland Islands.

They couldn't put that in the public report. They couldn't detail it publicly, but there was an intimation in the report that this matter was being briefed privately to the PAC, to the Public Accounts Committee. This raises questions about whether if a super injunction was deemed necessary, whether or not there ought to still be mechanisms whereby key [00:32:00] people in Parliament, the Chair of the Public Accounts Committee, the chair of the Defence Committee, for example, chair of Home Affairs, chair of the Liaison Committee, chair of the Intelligence and Security Committee, could be briefed.

Mark D'Arcy: And that's one of the things that, for example, you can find in the US Congress, there's the gang of eight, the eight senior persons, is it the Senate or Congress, I can never remember? But there are senior figures who are briefed on, for example, covert actions by the US Government.

And there's an accountability mechanism there. You can't always go public with incredibly sensitive data. You can't always share it amongst every member of your legislature, but you can make perhaps more effort. The British governments are sometimes accustomed to make sure that at least some people know and there is some attempt to square what you're doing with the legislators.

Ruth Fox: Yeah, and I think it's quite interesting in this case, as Joshua was alluding to, that the judge in this case seemed to be more concerned about these issues than the Government side, at certain points, as this case has played out.

Mark D'Arcy: It was the blase [00:33:00] almost response to it that I think that surprised me a little.

I'd like parliamentarians to be a little bit more angry when they're not told stuff, rather than just accepting that, that's life, and ministers can do what they want.

Ruth Fox: Well, it's perhaps worth unpacking the question of, if an MP or a former minister, let's take the example, Robert Jenrick, he's talked about it in the last few days about being very unhappy with what was happening, that there had been cabinet ministerial rows about it and that he said that he had not been able to talk publicly about it, because he was bound by the Official Secrets Act. They'd got advice that he was bound by that, but there was nothing stopping an MP who knew about this and was uncomfortable about it, raising it in the House of Commons under parliamentary privilege, that right to freedom of speech.

Mark D'Arcy: It might have been shut down quite quickly by whoever was in the chair.

Ruth Fox: It might well have been.

Mark D'Arcy: But it wouldn't have been an offence.

Ruth Fox: No, it wouldn't have been an offence. The court couldn't have come after them for a breach of the [00:34:00] injunction. You know, there is a long history of parliamentary inquiries, reports, making clear that parliamentary privilege under the Bill of Rights has priority. You know, it is one of the most important constitutional principles.

Mark D'Arcy: And the courts wouldn't even want to go there.

Ruth Fox: No. Now the question would be if for example, an MP had raised it in the Commons Chamber, the media, what would they do? They would be in a difficult position. Because they should not report it, under the terms of the injunction.

Mark D'Arcy: MPs have absolute privilege. People reporting what MPs say, have qualified privilege, which means that the courts might have a way into saying, you can't talk about this, or shouldn't have put this in the newspaper or on your bulletin.

Ruth Fox: Yeah. And the courts have always taken a very careful approach to, you know, where breaches of injunctions have happened because of what's been said in Parliament of tackling the media for reporting parliamentary proceedings, because again, constitutionally, that's a difficult position to be in. It's not to say that if the MP had wanted to raise it and had done so that they wouldn't necessarily face any [00:35:00] sanctions because the Speaker or a Government Minister could have asked the Privileges committee, indeed could have asked the House to take a view that although the MP had privilege and could raise it, they also have responsibilities not to abuse it. And because of the national security implications, a case could have been put to the House that the issue should be referred, the behaviour or the conduct of the MP should be referred to the Committee for Privileges to determine whether there had been a contempt, an abuse of the value of privilege.

Now, you know, the House would then have to take a view, so there is some risk here for the MP concerned if they wanted to raise it, but they could have done.

Mark D'Arcy: But it's a serious decision and they have to think about it rather just feel, hey, no consequences for me and I can go and do what I want.

Ruth Fox: Yeah. And that I think is the critical thing. As an individual MP, how do you first of all, essentially breach a super injunction issued by the court that a judge has made a decision on having heard an awful lot of evidence, having, you know, sat in private, you are [00:36:00] not privy to all of those discussions. So, you know, taking action to effectively breach all of that is a big deal.

Mark D'Arcy: Well, there was, for example, the case of John Hemming, Lib Dem MP from Birmingham back in the coalition years, who gained a certain amount of notoriety by naming Ryan Giggs as the subject of a super injunction. Someone whose identity was being protected. And hilarious consequences ensued. I don't think the Chair was very happy that he did it. But he could do it.

Ruth Fox: Yeah, the House would then have to reach a view as to whether or not they thought that the conduct of the MP had been appropriate. I think these are all things that are gonna have to come out in the wash. I mean, the Speaker made a statement at the start of proceedings on Wednesday in which he indicated that he's asked the Clerks to look at these issues, serious constitutional matters and to report. The status of that is unclear from the statement. So we don't know whether that's gonna be an internal report to the Speaker, whether it will be published, whether it'll be, you know, subject to Procedure Committee inquiry, or

Mark D'Arcy: I wonder if the Procedure Committee would like to see a copy of the report.

Ruth Fox: Yeah. But there are, I think, [00:37:00] serious questions now about how this is handled, because if individual committees will look at their angle on it, so the Public Accounts Committee will look at what was said about the financial implications of this relocation scheme that's been revealed, as you say, the Home Affairs Committee might look at the immigration aspects, the Intelligence and Security Committee might well look at why it was that they were not informed.

Mark D'Arcy: And they're pretty narked about that.

Ruth Fox: Yeah. There are a range of inquiries that will no doubt happen. The Defence Committee, of course, has already announced that it's kicking off its hearings in, in September. I think the question I would have is, there is some risk here that each one of them looks at their particular angle on the issue, but the broader sort of constitutional questions, the sort of more strategic questions about this get lost, because of it being siloed.

Mark D'Arcy: And in the BBC, we were always being told that, you know, we shouldn't take the view about our own little programme. We should transcend our silos. And I think that they would have to transcend their silos over in [00:38:00] select committee land.

Ruth Fox: Yeah. So the question is how do you do that?

And one option is the Liaison Committee decides to do a sort of an overarching inquiry that brings together all those relevant select committee chairs. Maybe a subcommittee of the liaison Committee, maybe you have another joint committee with the House of Lords, because of course this is something that affects the House of Lords as well. We've had joint committees on parliamentary privilege. We've had joint committee on injunctions in the past. So maybe that's an option as well.

Mark D'Arcy: Yeah. Well, they shouldn't let it go is my main thought about this. Parliament has been sort of the subject of an end run around it here.

It shouldn't allow this to pass unremarked. And if they do, future governments, possibly even this Government may feel empowered to do another one.

Ruth Fox: And that's the danger, isn't it? That the question of the precedent is now set, and if the precedent is set, there are opportunities in the future for it to be repeated.

The Government has been careful thus far not to give any assurances that they wouldn't pursue one on their watch, on the basis of never say never. So there is some risk. [00:39:00] Now, you know, on grounds of national security, you can understand why. But then I think the question for Parliament is, in those circumstances then what alternative mechanisms could be put in place so that there is at least some accountability of the executive to the legislature, even if an injunction is required.

Mark D'Arcy: And on that thought, should we take another break, Ruth? And when we come back, we've got lots of interesting whipping issues to talk about.

Ruth Fox: See you then.

So Mark, this week we've also had news of the smack of firm government from Keir Starmer's Downing Street. He's suspended four Labour MPs from the parliamentary Labour Party on the grounds of, I think, serial rebelling, but particularly of course over the recent welfare reform votes. And several MPs have lost their trade envoy roles. So what do you make of this? Is it a sign of strength, a sign of weakness?

Mark D'Arcy: I think the government has a fair amount of authority to rebuild [00:40:00] on its own benches. I don't think necessarily it's fully sunk in, in some quarters yet quite how serious that welfare defeat was for the Government.

The fact that Labour couldn't get its own troops through the lobby for something deemed essential to the Chancellor's financial strategy means that they're now in real trouble facing some serious political dilemmas, including whether or not they put up taxes. If they can't find any way to cut spending, they've gotta raise the money to cover the spending or possibly face a very serious financial crisis of confidence.

So this is not a small thing. So it's not surprising that, that was reflected in a bit of disciplinary action for some of the people that the Government see as the main offenders. There's a guy called Neil Duncan Jordan, a Bournemouth Labour MP, possibly a slightly unexpected place for a Labour MP to pop up, but nonetheless, he's been quite a consistent rebel on a number of issues. And so maybe they thought that let's just pick out a few of the, in their [00:41:00] terms, worst offenders and take the whip away from them for a while and see how they like that.

Ruth Fox: I was very taken by the remarks of John McTernan, who's former political secretary to Tony Blair who appeared on Times Radio I think it was, today, and he said Starmer's suspending of MPs was a punishment for being prematurely correct on government policy. And he then also said that you're picking people who you believe that you can pick on because, of course, you know, he's picked four, but there were plenty of other rebels. 40 odd who voted it against the bill at Third Reading on the welfare bill.

And he said, that's bullying. That's not discipline.

Mark D'Arcy: Well, if it's seen like that, and this is one of the questions is how this lands amongst Labour MPs, do they see it as a weakened, possibly even failing regime lashing out at its critics? Or do they see it as the Government reestablishing that it's not going to take any nonsense from them and there's [00:42:00] only so far they can go.

I suspect it's more likely to be the former. I think people are gonna look at this as a sign of weakness. They're going to think that maybe the Government having basically accepted the consequences of the rebellion shouldn't be punlishing the rebels. I like that line about prematurely correct. But this is a government that's in serious trouble and I suspect that part of it is about ministers thinking, look, there's gotta be consequences, otherwise, it's gonna happen all the time.

Ruth Fox: There will be some in the Labour Party who are quite happy about this, some have been hitting the airwaves because they are voting for these things, and they will have to deal with the consequences that arise from that because they're obeying the party whip. They're sticking to discipline. They're trying to present serious sort of front for the party in public and in Parliament and all the while you've got several MPs who are basically not, and there will be, I think, limited support for people who, Jess Phillips expressed it on the media round today, what do [00:43:00] they expect?

You know, these are manifesto commitments in some cases. The planning bill, for example, that, Chris Hinchcliff who's one of the Labour MPs that's been suspended, building this extra one and a half million homes was a manifesto commitment, and therefore the planning bill is needed. So, you know, what do you expect?

You've gotta get these things through and you can't have dozens and dozens of Labour MPs taking individual decisions because in that direction, chaos lies. But it is a very delicate balancing. Parties are broad churches.

Mark D'Arcy: Indeed. Although there has of course been a schism in Labour's broad church, and you now have the independent group led by Jeremy Corbyn with Zarah Sultana, former Labour MP, Labour MP until really quite recently in the mix, I think almost openly touting for other Labour MPs to come and join them. I'm always reminded on these kind of occasions, you know, it can be a pretty miserable business feeling that they are being dragooned into voting for things that you don't really agree with for reasons of party [00:44:00] loyalty.

And sometimes it can be a tremendous release if you end up leaving the party and going somewhere else. When the independent group for change was launched, a group of Labour MPs who just didn't feel they could hack it under Jeremy Corbyn any longer and went off and briefly formed their own party, I had a conversation with actually a current member of the Cabinet, met him in the coffee queue one day in Portcullis House, and he said, do you think this is gonna succeed? And I said, no, I don't think the personalities are big enough. I don't think they're united enough on anything else. They basically just don't like Jeremy Corbyn's Labour leadership.

Yes, he said. But they look so happy. And they did for a while because there's this ginormous sense of release and there may be some Labour MPs who basically feel they've had enough under Keir Starmer's rule and they want their freedom to pursue a much more left wing Jeremy Corbyn style agenda. And there are quite a number of MPs out there who I imagine are on the watch list of the Labour whips, just [00:45:00] making sure that they don't go.

So it could be that the relatively big fish, reasonably well-known figures like Diane Abbott or Richard Burgon, it could be some of the new intake, it could be some of the 2017 Jeremy Corbyn intake who finally just decide up with this we will not put and decamp and they can't afford to lose much more of its broad church. Otherwise it's gonna suddenly look like a very narrow sect.

Ruth Fox: Mm-hmm. Well, the other thing that's been announced, today in fact, Mark, is that the Government is pressing ahead with its plan for votes at 16. So it's announced that there'll be legislation to enlarge the franchise for the next general election.

And of course I, you know, one has to assume that part of their thinking was that this would be a new tranche of voters that would be attracted to the Labour cause. But again, that may well not prove to be the case.

Mark D'Arcy: When you are in Government, you don't tend to have youth appeal. I suspect because you're the ones taking the tough decisions and having to find ways to sell unpleasant [00:46:00] measures to the general public rather than just promise lots of goodies. So I'm a little bit cynical about this. There has to be a sort of age line drawn somewhere.

Ruth Fox: So you're not in favor of votes at 16.

Mark D'Arcy: I'm at least highly skeptical of it. I don't see why in principle you should have votes at 16 rather than votes at 18 particularly. If anything, I think votes at 18 seems a fairly natural place to put the line there. You're not giving driving licences out at 16, not allowed to buy alcohol at 16.

Ruth Fox: Can't buy a lottery ticket.

Mark D'Arcy: You can't buy a lottery ticket. All sorts of things you can't do at 16. If you're going do all that, let's just have a common age of majority for all of those things.

Ruth Fox: Yeah, I think that's one of the things I have is that the argument is made that you can pay taxes, you can serve in the army, you can get married at 16 , but actually, it's not entirely true anymore. I mean, the number of people between 16 and 17 who are actually paying taxes is I think at its lowest level because the government, I think it was 2008, something like that, an Education Act, which effectively made 18 the new school leaving age, because [00:47:00] you've gotta be in continuing education or training apprenticeship. Yeah. So in practice that doesn't hold quite in the way that it used to. They raised the marriage age to 18. Mm-hmm. Least I think in England and Wales, I'm not sure that it quite holds the same way in Scotland and Northern Ireland. Maybe slightly different rules., As you say, you know, 17 year olds might be able to drive to the polling station just about, but 16 year olds wouldn't be able to. You can only serve in the armed forces in a back role. You can't serve on the front line.

Mark D'Arcy: No, they're not yet putting 16 year olds, you know slapping a rifle in their hands and sending them off the trenches.

Ruth Fox: Yeah. And if you look at the written statement that the minister has put out today, it's headlined "restoring trust in our democracy". At which point my heart sinks.

Mark D'Arcy: When you hear those words, you reach for your revolver. But there was also,

Ruth Fox: I mean, what's trust got to do with it? This is not going to address trust.

Mark D'Arcy: There was also a fair amount else in the elections legislation. I mean, they did have quite a number of useful additions to election law in this legislation. Yeah. So there are things [00:48:00] like, long requested it's described in the incredibly useful Playbook Newsletter to close loopholes in UK election finance laws.

This is something people have been clamoring for for an awful long time. Although I'm not sure it completely stops the flow of kind of dark money and contributions with little strings attached to them that inherently poison politics.

Ruth Fox: There's also proposals, I think, to expand the forms of identification that will be accepted at polling stations. There's talk of possibly using bank cards and other things, so we'll have to see when the legislation is published presumably in September when Parliament returns after the recess.

But just going back to votes at 16. One of the issues, and it goes to this question about restoring trust, and you know, my view is, well, what's trust got to do with this? It's only going to work, it's only gonna engage 16 to 18 year olds and get people on a path to voting more regularly. And the idea being that the younger you vote and if it becomes a habit, the more likely it is to stick over [00:49:00] time. But we already know that participation levels amongst 18 to 24 year olds are lower.

If it's gonna work in 16 to 17 year olds, you're gonna have to have a program of citizenship education.

Mark D'Arcy: Absolutely.

Ruth Fox: Political literacy, you're gonna have to have programmes that are fully funded by the Department for Education, you're gonna have to have really good teacher training because one of the concerns that teachers always have is about talking about politics in schools is it's very very difficult because it engages all sorts of difficult issues. And, you know, it can cause problems with parents and you can be accused of, you know, trying to influence the kids.

Mark D'Arcy: No one will ever hear the last of it.

Ruth Fox: Yeah. And you get into, I remember, you know, the Society for many, many years now has run a Mock Elections in Schools programme at general elections. And one of the concerns that teachers always have is then how do you deal with kids who want to support far right parties, for example.

Going back to the question of if Labour hopes that this might expand the franchise and open up a new tranche of voters. The mock election results last year, [00:50:00] at the time of the 2024 general election would suggest not. I mean the two big parties after Labour, and you'd expect Labour in those circumstances to be the winners, and indeed they were, but not far behind them were the Greens and Reform.

Mark D'Arcy: Yeah. And I think at the moment you'd imagine that between them, the Greens and Reform were much more down with the kids.

Ruth Fox: I think the polls, I can't remember whether it's More in Common or Ipsos Mori polls are showing that amongst 18 to 24 year olds, so slightly higher age group, the Greens and Reform are garnering about 50% of the vote.

So the sort of the parties on the left and right, the alternatives to the two main parties are garnering a lot of support among young people.

Mark D'Arcy: Yeah, well it's a consequence of a very fragmented electorate indeed, feeding through to that age group as well.

Ruth Fox: Yeah. So there'll be much for us to consider Mark, when the legislation is published to get our teeth into it.

Mark D'Arcy: Indeed. Look forward to that in September.

Ruth Fox: Yeah. So with that, I think, Mark, that's all we've got time for. Listeners, this will be our last main podcast for the moment, because of [00:51:00] the parliamentary recess, we are also taking a recess, going on holiday.

Mark D'Arcy: I'm off to my Tuscan villa.

Ruth Fox: You didn't tell me that. I'd have offered to carry your bags.

So what we've got planned is a box set of special recess episodes for you.

Mark D'Arcy: Because we've been very concerned, haven't we, Ruth, that you'll have withdrawal symptoms if you have to struggle through the whole of August without Parliament Matters.

Ruth Fox: Indeed. So we hope that will keep you going until September.

Mark D'Arcy: Absolutely normal service will be resumed in September. See you then.

Ruth Fox: See you then.

Intro: Parliament Matters is produced by the Hansard Society and supported by the Joseph Rowntree Charitable Trust. For more information, visit hansardsociety.org.uk or find us on social media at Hansard Society.

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