House of Commons Committee on Standards and Privileges
Privilege: Hacking of Members' mobile phones
Fourteenth Report of Session 2010–11
Report and Appendix together with formal minutes, oral and written evidence
Ordered by the House of Commons to be printed 29 March 2011
HC 628 Published on 31 March 2011 by authority of the House of Commons London: The Stationery Office Limited £0.00
The Committee on Standards and Privileges
The Committee on Standards and Privileges is appointed by the House of Commons to oversee the work of the Parliamentary Commissioner for Standards; to examine the arrangements proposed by the Commissioner for the compilation, maintenance and accessibility of the Register of Members’ Interests and any other registers of interest established by the House; to review from time to time the form and content of those registers; to consider any specific complaints made in relation to the registering or declaring of interests referred to it by the Commissioner; to consider any matter relating to the conduct of Members, including specific complaints in relation to alleged breaches in the Code of Conduct which have been drawn to the Committee’s attention by the Commissioner; and to recommend any modifications to the Code of Conduct as may from time to time appear to be necessary.
Current membership Rt hon Kevin Barron MP (Labour, Rother Valley) (Chair) Sir Paul Beresford MP (Conservative, Mole Valley) Tom Blenkinsop MP (Labour, Middlesbrough South & East Cleveland) Annette Brooke MP (Liberal Democrat, Mid Dorset and North Poole) Rt hon Tom Clarke MP (Labour, Coatbridge, Chryston and Bellshill) Mr Geoffrey Cox MP (Conservative, Torridge and West Devon) Matthew Hancock MP (Conservative, West Suffolk) Mr Oliver Heald MP (Conservative, North East Hertfordshire) Heather Wheeler MP (Conservative, South Derbyshire) Dr Alan Whitehead MP (Labour, Southampton Test)
Powers The constitution and powers of the Committee are set out in Standing Order No. 149. In particular, the Committee has power to order the attendance of any Member of Parliament before the committee and to require that specific documents or records in the possession of a Member relating to its inquiries, or to the inquiries of the Commissioner, be laid before the Committee. The Committee has power to refuse to allow its public proceedings to be broadcast. The Law Officers, if they are Members of Parliament, may attend and take part in the Committee’s proceedings, but may not vote.
Publications The Reports and evidence of the Committee are published by The Stationery Office by Order of the House. All publications of the Committee (including press notices) are on the Internet at: www.parliament.uk/sandp.
Committee staff The current staff of the Committee are Mr Steve Priestley (Clerk), Miss Rhiannon Hollis (Second Clerk) and Ms Jane Cooper (Committee Assistant).
Contacts All correspondence should be addressed to The Clerk of the Committee on Standards and Privileges, Journal Office, House of Commons, London SW1A 0AA. The telephone number for general enquiries is 020 7219 6615.
Privilege: Hacking of Members’ mobile phones 1
Contents
Report Page
Privilege: Hacking of Members’ mobile phones 3 Background 3 Conduct of this inquiry 3
What is phone hacking? 5
The law relating to phone hacking 6 The criminal law 6 Regulation of Investigatory Powers Act 6 Computer Misuse Act 7 Data Protection Act 8 Civil remedies 8 Conclusion 8
Hacking and privilege 9 Parliamentary precedents 9 Westminster precedents 9 Precedents from other legislatures 10 Privilege and contempt 10 Scope and nature of privilege 10 Scope and nature of contempt 12 Hacking as a possible contempt 13 Capacity of the House to investigate allegations of hacking 16 Sanctions 17
Parliament and the courts 19
A Privileges Act 23
Appendix 24
Formal Minutes 30
Oral and Written Evidence 31
Privilege: Hacking of Members’ mobile phones 3
Privilege: Hacking of Members’ mobile phones
Background 1. On 9 September 2010, the House agreed the following Resolution:
That the matter of hacking of honourable and right honourable Members' mobile phones be referred to the Committee on Standards and Privileges.1
The Motion to refer was moved by Chris Bryant MP. Speaking in the debate, Mr Bryant said:
I contend that it is a contempt of Parliament and a severe breach of parliamentary privilege to intercept the mobile phone messages of elected Members, to tap their phones, to bug their conversations, to intercept their e-mails or to seek to do so.2
Other Members spoke in similar vein. Most of them referred to allegations that journalists working for the News of the World or other newspapers had paid private investigators for information which they knew had been obtained by listening to messages left on MPs’ (and others’) mobile phone messaging or voicemail services. Members were also concerned about the conduct of a previous police investigation into hacking and about the failure of some witnesses to cooperate with an inquiry by the Culture, Media and Sport Committee.
Conduct of this inquiry 2. Our first step was to interpret the terms of reference we had been given by the House. On 14 September, we agreed to commence our inquiry by seeking evidence from the Clerk of the House and from outside experts on Parliamentary law on whether and if so in what circumstances hacking of Members’ mobile phones could be a contempt of Parliament. We also decided not to look into any specific allegations in the initial stages of the inquiry.3
3. The decision not to consider specific allegations was based on considerations of fairness and of respect for the legal and judicial processes. We were aware that application had been made for judicial review of the handling by the Metropolitan Police of the original (2006– 07) investigation into allegations of hacking. Among those seeking judicial review were Mr Bryant and a former Member, Lord Prescott. Although the House’s Resolution on matters sub judice would apply only once an application had been granted, we took the view that the interests of fairness and justice were best served by avoiding any reference in our own proceedings to specific cases. We were reinforced in taking this view by the knowledge that
1 HC Deb, 9 September 2010, col 493 2 HC Deb, 9 September 2010, col 478 3 Press Notice 01, 14 September 2010, Privilege matter referred by the House on 9 September, available at www.parliament.uk/sandp
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civil cases were pending and that further police inquiries were under way which could at some stage lead to criminal proceedings.4
4. Neither did we conclude that the alleged failure by several witnesses to cooperate with the previous inquiry by the Culture, Media and Sport Committee fell within our terms of reference. We note that that Committee has yet to make any formal complaint against a witness.
5. We are grateful to all those who assisted our inquiry by giving written or oral evidence. Our conclusions and recommendations flow from that evidence. This Report concludes the Committee’s inquiry into the matter referred to it by the House on 9 September 2010.
4 As to giving the police and the courts precedence in matters involving alleged criminal conduct, see also paragraphs 61 to 70 below
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What is phone hacking?
6. For the purposes of this inquiry, we have interpreted the term ‘hacking’ to mean the gaining of unauthorised direct access to a remotely stored mobile telephone communication. ‘Hacking’ is thus distinct from ‘bugging’ or ‘tapping’, which involves the use of a device to intercept a communication in real time. Related to hacking is ‘blagging’, which we understand to mean the process by which a person obtains information—such as a mobile telephone number and/or a personal identification number (PIN)—which enables access to the stored messages. Blagging involves impersonation of a person who is entitled to know the information. In this Report, we use the term ‘hacking’ to include ‘blagging.’
7. It is not always necessary to blag in order to hack. Many mobile phone users do not reset the default PINs supplied by service providers. If a hacker already knows the number of the mobile telephone number he or she intends to hack, it may be possible to gain access to messages by using one of the common default PINs. There are also sophisticated and commercially available programmes (some of them illegal in the UK) which can provide access to communications as well as to stored messages, without the phone-owner’s knowledge. However, diligent adherence to the security advice made available by providers to users can mitigate vulnerabilities and greatly reduce the ease with which unauthorised access can occur. Despite this, it is worth noting that users who access voicemail from abroad can be particularly vulnerable to hacking.5
8. There are obvious similarities between hacking and the gaining of unauthorised access to written communications—which as well as interception of mail might include going through the contents of a dustbin. However, the ability of a hacker to gain access to messages remotely means that analogies between the two are not straightforward. In practice, hacking may often be easier to carry out than interception of written communications.
9. Hacking is said to be carried out by journalists, private investigators and others, for a variety of purposes. The allegations which have led to our inquiry relate to activities allegedly carried out by or on behalf of journalists, in order to obtain information of interest to them or to those who pay them. In this Report, for the reasons given above, we are not concerned with the truth or otherwise of those allegations. We confine ourselves to a discussion of whether and if so in what circumstances hacking of Members’ mobile phones could be a contempt of Parliament.
5 We are grateful to the Parliamentary Security Coordinator for briefing us on technical aspects of our inquiry.
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The law relating to phone hacking
10. Before turning to a discussion of Parliamentary privilege, we summarise our understanding of the law as it relates to phone hacking, in order that we may reach conclusions about the extent to which the law offers a remedy for MPs who believe their phones may have been hacked. We are grateful to Speaker’s Counsel for his helpful note on legal remedies for phone hacking, which is reproduced in full at Appendix 1.
The criminal law 11. It is only recently that mobile telephones have become an essential tool of modern life. This means that, although there is a body of legislation which deals with unauthorised interception of mobile phone calls or messages, there is little case law.
12. The House of Commons Home Affairs Select Committee announced on 7 September 2010 that it would carry out an inquiry into the law relating to unauthorised tapping into or hacking of mobile communications.6 On 4 February 2011, the Committee published the evidence received to date.7 At the time of preparing this Report, the Home Affairs Committee had yet to announce a timetable for completion of its inquiry. It will be for that Committee, not this, to recommend any changes to the criminal law that appear to it to be necessary or desirable and we have not sought in this Report to anticipate what our colleagues’ conclusions may be.
Regulation of Investigatory Powers Act 13. The Regulation of Investigatory Powers Act 2000 (RIPA) is the main statute bearing on hacking. Section 1 of the Act creates the offence of unlawful interception of a communication. In summary, the offence under section 1 is committed by a person who, intentionally and without lawful authority, intercepts any communication “in the course of its transmission” by means of a public (or private) telecommunications system.8 An offender may be sentenced on indictment to a term of imprisonment of up to two years.
14. The phrase “in the course of transmission” as used in the Act has attracted a good deal of attention. In its Report on Press standards, privacy and libel, published in February 2010, the Select Committee on Culture, Media and Sport reported that:
The police ... told us that under section 1 of the Regulation of Investigatory Powers Act (RIPA) it is only a criminal offence to access someone else’s voicemail message if they have not already listened to it themselves. This means that to prove a criminal offence has taken place it has to be proved that the intended recipient had not already listened to the message. This means that the hacking of messages that have
6 Full text available at www.parliament.uk/homeaffairscom 7 See www.parliament.uk/documents/commons-committees/home-affairs/Memoranda.pdf 8 Appendix, paragraph 3
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already been opened is not a criminal offence and the only action the victim can take is to pursue a breach of privacy, which we find a strange position in law.9
Evidence given to the Culture, Media and Sport Committee by the Metropolitan Police had suggested that a message was in the course of transmission until it reached its intended recipient. Once the recipient had listened to the message, the transmission had ceased. The Committee called on the Government to amend section 1 of RIPA to cover all hacking of phone messages.10
15. Evidence since presented to the Home Affairs Committee has cast doubt on this interpretation. Specifically, it has been pointed out that a voicemail message is stored on a mobile phone service provider’s server, not on the handset. This means that it is necessary for a hacker to communicate with the server in order to listen to the message, irrespective of whether it has been listened to previously. Witnesses to the Home Affairs Committee have argued that this means that a voicemail message is “in the course of transmission” each time it is listened to and that the provisions of section 1 of RIPA therefore apply to the hacking of such a message on each occasion it takes place.11 In a memorandum to the Home Affairs Committee in October 2010, the Director of Public Prosecutions noted that this interpretation had yet to be tested in the courts.12
16. The Government did not reply to the Report of the Culture, Media and Sport Committee and the legal position on hacking of mobile phone voicemail messages which have already been listened to remains untested. But there appears to be little if any room for doubt that the hacking of a message that has not yet been listened to by the intended recipient is a criminal offence.
Computer Misuse Act 17. Under section 1 of the Computer Misuse Act 1990, it is an offence for a person knowingly to cause a computer to perform any function with intent to secure unauthorised access to any program or data held in any computer, or to enable any such access to be secured.13 A modern mobile telephone can fairly be described as a computer, as can the servers on which voicemail messages are stored. It appears, however, that the Computer Misuse Act has not yet been used as the basis for a prosecution in relation to hacking.14 As with the offence under RIPA, conviction may lead to a maximum penalty of two years’ imprisonment.
9 Second Report from the Culture, Media and Sport Committee, Session 2009–10, HC362, paragraph 465 10 Second Report from the Culture, Media and Sport Committee, Session 2009–10, HC362, paragraph 466 11 www.parliament.uk/documents/commons-committees/home-affairs/Memoranda.pdf 12 For a more detailed discussion of this point, see Appendix, paragraphs 4 to 11. See also oral evidence by Lord Macdonald of River Glaven QC to the Committee on the Protection of Freedoms Bill, 22 March 2011 (morning sitting), col 33. 13 Appendix, paragraph 12 14 Memorandum submitted to the Home Affairs Committee by Keir Starmer QC, Director of Public Prosecutions, October 2010
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Data Protection Act 18. Under section 55 of the Data Protection Act 1998 it is an offence knowingly or recklessly to obtain or disclose personal data without the consent of the data controller. In the case of a mobile phone voicemail message, the ‘data controller’ may be the sender of the message or its intended recipient. The maximum penalty for an offence is a fine.15
19. A number of defences are available under the Act, including for the person obtaining the data to show that the obtaining or disclosing was justified as being in the public interest.16 Such defences are commonly used by journalists. The usefulness of the Data Protection Act as a means to seek redress against hacking therefore appears to be limited.
Civil remedies 20. Possible civil remedies for hacking include actions for breach of confidence (also known as breach of privacy); breach of data protection; and copyright violation.17 Of these, the first appears to offer the best chance of success, it being well established that where the nature of a communication implies that it is private, the obtaining or publication of it without consent may give rise to an action for breach of confidence. The standard of proof in civil cases (balance of probabilities) is lower than that which applies in criminal trials (beyond reasonable doubt).
Conclusion 21. It is clear that hacking of mobile phone voicemail messages can be a criminal offence and that options exist for seeking redress in the civil courts. It is not the role of this Committee to comment on whether the law is deficient in this regard—in that connection, we look forward to the Report of the Home Affairs Committee. All the remedies available to any person within the jurisdiction of the United Kingdom’s courts are of course available to Members of Parliament as individuals. But how should Parliament as an institution deal with hacking? Does Parliament need additional or distinct remedies that are not available to others? It is to those questions that we turn next.
15 Appendix, paragraph 17 16 Appendix, paragraph 18 17 Appendix, paragraphs 19 to 27
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Hacking and privilege
Parliamentary precedents 22. The principle that private communications should remain private and the view that unauthorised interception of such communications offends against that principle can be regarded as applying to telephone calls and messages as they apply to written communications. We have therefore considered the available precedents from this and other legislatures relating to unauthorised interception of mail and tapping of conventional (land-line) telephone calls.
Westminster precedents 23. The Clerk of the House referred in his memorandum to an assertion by the House in 1689—the year of the Bill of Rights—that breaking open letters directed to or sent from Members is a breach of privilege.18 In 1727, the House passed an Order “to prevent the Intercepting of Letters belonging to the Members of the House” which it subsequently renewed each Session until 1852, when it made a Standing Order “to prevent the intercepting or losing of Letters directed to Members of this House.”19 The Standing Order required the postal authorities at the House to safeguard mail from loss or interception.
24. The Standing Order was repealed in 1997, following a Report from the Procedure Committee. The Committee did not comment specifically on its reasons for recommending repeal of this Standing Order, but included it among Orders which “are of uncertain meaning or have never been in effective operation, [or] bear no relation to modern practices.”20 It may nonetheless be regarded as significant that for many years the House sought to prevent the unauthorised interception of communications addressed to Members at the House, whatever the origin or subject-matter of the communication.
25. Chris Bryant MP drew our attention to resolutions of the House, asserting the rights of Members to free speech and protecting them from molestation.21 He told us:
My argument is that this historic determination by the House to insist that MPs’ freedom of speech needs robust protection should be applied to the question of ‘phone hacking’ because any attempt to hack into an MP’s phone, and in particular to intercept a phone message or a text, would be a clear instance of molesting an MP. After all, the only reason one could imagine anyone wanting to hack into an MP’s phone would be to molest, intimidate or obstruct them in their activity as an MP. I can think of no clearer contravention of the motions of the House already cited.22
18 Evidence p19 19 Evidence pp19, 20 and 23 20 First Report from the Procedure Committee, Session 1996–97, Standing Orders Revision, paragraph 15. See also Q67 21 Evidence p35 22 Evidence p36
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26. We are not so convinced as Mr Bryant appears to be that journalists would hack the phone messages of an MP solely in order to molest, intimidate or obstruct that MP in carrying out Parliamentary activity—which would very probably amount to contempt. Much of the interest of the media in MPs in recent years has centred on their expense claims, which the courts have determined are not protected by Article 9 of the Bill of Rights and which self-evidently have nothing to do with freedom of speech.
27. The House may have acted a little hastily in 1997 in repealing the Standing Order, rather than amending it so as to give greater protection to Members’ communications. However, we suspect that, had a specific allegation of hacking been referred to this Committee for investigation, it is unlikely that the precedents relating to interception of written communications would have made much if any material difference to the outcome of our inquiry.
Precedents from other legislatures 28. We are grateful to the Clerk of the House for supplying information about other Commonwealth Parliaments.23 Looking through the cases annexed to the Clerk’s memorandum, we do not consider that any of them are sufficiently close to the matter referred to the Committee to require us to guide us towards specific conclusions. The reference in Mr Hemming’s evidence to provisions in the written constitution of Germany does not appear to be relevant to the matter referred to us.
Privilege and contempt 29. Although the House has never been invited to approve it, the Report of the Joint Committee on Parliamentary Privilege published in April 1999 is widely regarded as the authoritative text on privilege and contempt.24 In considering the scope and nature of privilege and of contempt, we have taken the Report of the Joint Committee as our starting point.
Scope and nature of privilege 30. The Joint Committee concluded that “Parliamentary privilege consists of the rights and immunities which the two Houses of Parliament and their members and officers possess to enable them to carry out their parliamentary functions effectively.”25 Privilege is thus concerned with functions rather than individuals. It protects the proceedings of the House and the right of Members to take part in those proceedings and to speak freely. But it does not confer general immunity on Members; nor does it provide Members with greater personal rights than attach to other people. Privilege also recognises Parliament’s exclusive cognisance or jurisdiction over its own affairs.
31. The Joint Committee offered the following definition of Parliamentary proceedings:
23 Evidence pp23 and 24 24 First Report from the Joint Committee on Parliamentary Privilege, Session 1998–99 , HC 214 25 Joint Committee on Parliamentary Privilege, paragraph 3
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(1) For the purposes of Article 9 of the Bill of Rights 1689 `proceedings in Parliament' means all words spoken and acts done in the course of, or for the purposes of, or necessarily incidental to, transacting the business of either House of Parliament or of a committee.
(2) Without limiting (1), this includes:
(a) the giving of evidence before a House or a committee or an officer appointed by a House to receive such evidence
(b) the presentation or submission of a document to a House or a committee or an officer appointed by a House to receive it, once the document is accepted
(c) the preparation of a document for the purposes of transacting the business of a House or a committee, provided any drafts, notes, advice or the like are not circulated more widely than is reasonable for the purposes of preparation
(d) the formulation, making or publication of a document by a House or a committee
(e) the maintenance of any register of the interests of the members of a House and any other register of interests prescribed by resolution of a House.
(3) A `committee' means a committee appointed by either House or a joint committee appointed by both Houses of Parliament and includes a sub-committee.
(4) A document includes any disc, tape or device in which data are embodied so as to be capable of being reproduced therefrom.26
32. The Joint Committee recognised that Members’ dealings with constituents and with Ministers on behalf of constituents were becoming an increasingly important and prominent part of their work, but it concluded that such dealings were not protected by privilege, unless they were carried out in connection with a proceeding, and it was against extending the interpretation of Article 9 of the Bill of Rights so as to give such protection.27
33. The boundaries of privilege have been tested in the courts within recent months. Although the question before the courts was whether MPs’ claiming of expenses was covered by privilege, the judgment of the Supreme Court necessarily pronounced on the scope of protection afforded by Article 9. The President of the Supreme Court, Lord Phillips, found that:
In considering whether actions outside the Houses and committees fall within parliamentary proceedings because of their connection to them, it is necessary to consider the nature of that connection and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the core or essential business of Parliament.28
26 Joint Committee on Parliamentary Privilege, paragraph 129 27 Joint Committee on Parliamentary Privilege, paragraphs 103 to 112 28 R v Chaytor and others, Supreme Court judgment UKSC 52, paragraph 47
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He continued:
There are good reasons of policy for giving Article 9 a narrow ambit that restricts it to the important purpose for which it was enacted – freedom for Parliament to conduct its legislative and deliberative business without interference from the Crown or the Crown’s judges.29
34. The relevance of this judgment to the question of whether Members’ communications with constituents and others are protected by privilege is immediately apparent.
Scope and nature of contempt 35. Contempt has been understood as arising from an act or omission which obstructs or impedes (or tends to obstruct or impede) the business of the House or any of its Members in carrying out their Parliamentary functions.30 There does not have to be a precedent for the specific act or omission: the test is whether the House or its Members have been obstructed or impeded in the discharge of their duty. Examples of past contempts include: disobedience to or misconduct before the House or one of its committees; misconduct by a Member or officer of the House; leaking of information to which privilege applies; and obstructing or molesting Members, officers, or witnesses or others whose business is connected with proceedings in the House.31
36. Unlike the position with respect to privilege, there is no statutory definition of contempt. The Joint Committee favoured including such a definition in statute. It recommended that the definition should “cover new forms of obstruction, should they arise, as well as existing forms.”32 We asked our witnesses whether they favoured a statutory definition of contempt. The Clerk of the House said that “I would not expect a Privileges Act to list contempts and say, ‘This is the end of it.’”33 He pointed out that the Australian statute does not define contempt.34
37. Lord Nicholls, who chaired the Joint Committee, told us that he continued to support calls for a Privileges Act and that he saw “no difficulty in setting out in a statute a clear, principled statement of what conduct constitutes contempt.”35 Professor Bradley, who when he gave evidence to the Joint Committee had argued against legislation to codify privilege, told us that he had since changed his mind, although he was clearly concerned that the definition of contempt should not be too rigid:
... it would still be desirable to have a distinction between parliamentary privilege— the limits of that must be clear—and the contempt power. If one tried just to have a closed list of precise forms of conduct that today constitute contempt, in 10 years’
29 R v Chaytor and others, Supreme Court judgment UKSC 52, paragraph 61 30 See Erskine May, 23rd Edition, p 128 and Joint Committee on Parliamentary Privilege, paragraph 264 31 For a fuller list, see Joint Committee on Parliamentary Privilege, paragraph 264 32 Joint Committee on Parliamentary Privilege, paragraph 315 33 Q43 34 Q44 35 Q74
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time we would have a similar discussion. It must be in terms of obstructing the proceedings of Parliament or whatever.36
All the witnesses agreed that it would be for the courts to interpret such a statute.
38. In the Queen’s Speech at the commencement of the new Parliament in May 2010, the Government announced that it would publish in the current Session a draft Privileges Bill, to “reform the law on parliamentary privilege to clarify its extent and application.”37 The House will have an opportunity to consider the implications of any proposal to give the courts power to interpret the boundaries of contempt when it scrutinises the draft Bill.
39. We recommend that the draft Privileges Bill should include a definition of contempt, which should be drawn up in such a way as to make it adaptable to new technologies and circumstances.
Hacking as a possible contempt 40. As we have just discussed, there is presently no statutory definition of contempt, but even if there were, it is unlikely for the reasons our witnesses gave that it would include a list of acts, such as hacking, that may amount to contempt. It is far more likely that, as Lord Lester said, the definition would “state principles rather than detailed rules”, against which an act or omission could be judged.38 For the purposes of this Report, we intend to consider the evidence that hacking may obstruct or impede (or that it may tend to obstruct or impede) the business of the House or its Members in carrying out their Parliamentary functions.
41. The Clerk of the House suggested there are six questions that need to be answered when considering whether an act of hacking may be a contempt:
a) Does such interception impede a Member in the performance of his or her duty?
b) What significance is there to a Member knowing or suspecting hacking? (i.e. how can an interception unknown to a Member impede his or her activity?)
c) Does “impeding” result because Members’ confidence in the confidentiality of communications with each other is undermined by the knowledge or suspicion of interception?
d) Does “impeding” result because Members’ confidence in pursuing parliamentary activities (such as tabling questions) with staff of the House and advisers is undermined by the knowledge or suspicion of interception?
e) Does “impeding” result because Members’ trust with constituents in pursuing parliamentary activities (such as tabling questions, raising matters in
36 Q75 37 HC Deb, 25 May 2010, col 32 and www.number10.gov.uk 38 Q74
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adjournment, debates etc) is compromised by the knowledge or suspicion of interception?
f) Does interception interfere with a Member’s right to private life under ECHR Article 8?39
42. If the answer to the first question were to be ‘yes’, and if the ‘duty’ that had been interfered with was directly concerned with a proceeding of the House or of one of its committees, then in our view there would be little if any room for doubt that the hacking could be a contempt. If the answer to the first question were to be ‘yes’, but the ‘duty’ that had been interfered with was not concerned with a proceeding of the House or of one of its committees, then the position might be less clear.
43. In his oral evidence, the Clerk confirmed his view that interception of messages about a Member’s constituency business, which was unrelated to proceedings in the House or in a committee, would not be a contempt. But he acknowledged that the House found this question “quite difficult ... because it is so much now the activity of Members of the House.”40
44. Lord Pannick told us that if the effect of hacking is to make it more difficult for a Member to perform Parliamentary duties, it is immaterial whether the message hacked into related directly to a proceeding in Parliament.41 Similarly, James Price argued that if interception or the threat of interception tends to inhibit a Member from contributing to Parliamentary proceedings, it may be a contempt.42 Lord Nicholls’ view was that purpose is more important than effect.43 He expressed reservations about the application of privilege to Members’ constituency work.44
45. Professor Bradley’s evidence was that interference with a Member’s duties as an MP (including constituency work) could be a contempt, even if there is no intention on the part of the hacker to obstruct the Member’s work in connection with proceedings in Parliament.45 He told us:
Interference ... in the communication between a constituent and a Member of Parliament seems, to me, very much capable of being a contempt. It may be unusual but it could happen. The fact that, ever since 1957, communication between a constituent and MP has been held by Parliament not to be within Article 9 of the Bill of Rights is neither here nor there if one is considering the contempt side of this.46
39 Evidence p21 40 Q21 41 Evidence p30 42 Evidence p31 43 Q51 44 Q64 45 Evidence p33 46 Q64
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This interpretation was supported by John Hemming MP, who argued that any interception or monitoring of, or interference with a Member’s communications with others can be a contempt, because such acts undermine Parliament collectively.47
46. Lord Lester suggested that this is too broad an interpretation and pointed out that the Supreme Court judgment in the Chaytor case referred to the core or essential business of Parliament.48 In Lord Lester’s view, only in “gross, rare circumstances” could hacking amount to a contempt.49
47. We agree with the Clerk of the House that the question of whether Members’ performance of their constituency-related duties is part of the work of Parliament is “difficult.” It has become increasingly difficult as the proportion of time spent by MPs on constituency-related work has grown. But the principle is well established: unless a Member’s constituency-related work is carried out on the floor of the House, in one of its committees, or through the tabling of a motion, question or amendment, it is not a proceeding in Parliament and it is not, therefore, protected by privilege. Such was the conclusion of the Joint Committee in 1999, which was itself founded on previous findings of the House, of committees of the House and of the courts. The question that remains is whether a principle that is founded on a set of circumstances far removed from those that now apply, and which were codified in a statute more than four centuries ago, remains entirely fit for purpose. That is a question that goes far beyond the scope of this Report.
48. We recommend that the House should be invited to debate the relationship between privilege and the performance by Members of their constituency duties, if possible before the Government publishes its draft Privileges Bill.
49. We now turn to the Clerk’s questions ‘b)’ to ‘e)’. In question ‘b)’, the Clerk is inviting us to take an excursion into the realms of metaphysics. On a practical level, we suggest that if a Member is unaware that an act of hacking has obstructed him or her, it is unlikely that a well-founded complaint alleging contempt arising from obstruction will be made. If a Member were to suspect but not know that he or she had been obstructed by an act of hacking, it would be for that Member to make the case and (under present procedures) for the Speaker to decide whether to give precedence over other business to a motion to refer the matter to this Committee.
50. The more difficult question to answer is whether awareness by Members that their phones are being or may be being hacked might interfere with or obstruct their participation in proceedings, by creating a general climate of insecurity—this is the nub of the Clerk’s questions ‘c)’ to ‘e)’. Our view is that establishing whether a ‘climate of insecurity’ exists would almost certainly resemble an opinion poll more than it would resemble a scientific measurement. Some Members are more likely to be sensitive to such climatic conditions than are others. The evidence for such a climate would in all probability consist of a series of subjective statements, rather than objective fact. In our judgment, the House would be well advised to proceed with great caution before setting off
47 Evidence p18 48 Qq59, 64 49 Q49
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down a road that might require it to reach conclusions based on Members’ impressions of the impact on them of an alleged pattern of behaviour, rather than on findings of fact concerning a specific act or series of acts that can be shown to have occurred.
51. We conclude that a specific act of hacking which can be shown to have interfered with a proceeding in Parliament or to have impeded or obstructed a Member from taking part in such a proceeding could potentially be a contempt. This would be particularly so if the hacking were carried out with intent to bring about such interference, impediment or obstruction.
52. We conclude that a series of acts of hacking which, by creating a climate of insecurity either generally in the House or in one of its committees or for a Member or group of Members or officers of the House, can be shown to have interfered with proceedings in Parliament could potentially be a contempt. We note that demonstrating to a reasonable standard of proof a causal relationship between the acts of hacking and the climate of insecurity might be difficult.
53. The Clerk’s question ‘f)’ is whether an act of hacking interferes with a Member’s right to private life under Article 8 of the ECHR. We agree that this is an important question for any person who may be the victim of hacking and that the answer to it may provide a remedy through the courts. But we do not consider that it is relevant to determining whether a contempt of Parliament may have occurred, because the ECHR right attaches to an individual and not to the House.
Capacity of the House to investigate allegations of hacking 54. As the recent history of police investigations into hacking may be felt to demonstrate, the gathering of evidence concerning acts of hacking requires considerable resources and technical expertise. It is our view that the House probably lacks the capacity to investigate properly an allegation of hacking. We do not mean to suggest that it would be desirable for the House to develop such a capacity. But neither do we believe that it is desirable that the House or its Members—any more than any other institution or individual—should always be dependent on the prosecuting authorities to take the initiative in investigating such a matter.
55. The House or any of its Members or officers may of course invite the police to investigate a possible breach of the law that has come to their attention. We note that the House has also directed the Attorney General to prosecute an alleged offender, although this last happened in 1889.50
56. We conclude that allegations of criminal behaviour such as hacking should be investigated by the police, who possess the necessary resources and expertise, although the House should be prepared to invite the police to investigate an allegation that has come to its notice. Individual Members, just as other citizens, are able to ask the police to investigate specific allegations affecting them. The House should instruct the Law Officers only in the most exceptionally urgent or serious cases.
50 Joint Committee on Parliamentary Privilege, paragraph 309; and Erskine May, 23rd Edition, p163
Privilege: Hacking of Members’ mobile phones 17
57. Lord Lester reminded us that the Committee on Standards and Privileges is not a judicial body; its procedures were not designed to be compliant with Article 6 of the European Convention on Human Rights.51 In 1999, the Joint Committee reached a similar conclusion.52 Professor Bradley, however, noted a recent judgment of the European Court of Human Rights, that “a wide margin of appreciation is left to member States” in “the realm of parliamentary law” and told us:
It must not be assumed that the contempt jurisdiction of the House of Commons will in all respects fall foul of the Strasbourg jurisprudence.53
We note the caution that is so evident in this statement.
58. We subscribe to the dictum, now well established in Parliament, that the House should assert its privileges sparingly. We suggest that the question mark over the compatibility with internationally accepted standards of the House’s procedures for the investigation of possible breaches of privilege by non-Members reinforces the wisdom of this approach. The question of whether those procedures should be reviewed against the provisions of convention obligations is one to which the House may wish to turn its attention when it considers the forthcoming draft Privileges Bill.
Sanctions 59. Lord Nicholls gave powerful evidence that the House lacks the necessary powers to deal with offenders:
I find it very difficult to see how the House has any effective remedy here and I do wonder, going through with a full and thorough investigation, where it can lead. You can rap the editor of a newspaper over the knuckles and admonish him, which will not give him the loss of a wink’s sleep, but there is nothing else, as I understand it, that, effectively, you can do.54
The House has not fined anyone since 1666 and it has not committed anyone to custody (although it has detained people temporarily) since the 19th Century.55 It is thus less than entirely clear that the House retains the power to do either. In 1999, the Joint Committee recommended giving the Commons a statutory power to fine.56 In so recommending, the Joint Committee repeated calls made by committees of this House in Reports published in 1967 and in 1977.57 It also recommended the abolition of both Houses’ powers of imprisonment (but not those of temporary detention). The House may reprimand offenders at the bar of the House but has not done so since 1957, possibly for the reasons Lord Nichols advanced in his evidence, or possibly because such a sanction would now
51 Evidence p27 and Q55. Article 6 of the ECHR protects the right to a fair trial. 52 Joint Committee on Parliamentary Privilege, paragraphs 280 to 292 53 Evidence p34 54 Q 56 55 Joint Committee on Parliamentary Privilege, paragraphs 271 and 272 56 Joint Committee on Parliamentary Privilege, paragraph 324 57 Joint Committee on Parliamentary Privilege, paragraph 273
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appear high-handed. In our view, the imposition of a fine, where justified by the facts and by the circumstances, is more consistent with modern practice and would be more likely to be proportionate to an offence such as hacking.
60. We suggest that the power to reprimand an offender in person at the bar of the House, though not used in recent times, should continue to be available. We recommend that measures to implement the recommendations of the Joint Committee that the House should lose its powers of imprisonment and should be given a statutory power to fine offenders be included in the draft Privileges Bill.
Privilege: Hacking of Members’ mobile phones 19
Parliament and the courts
61. We have concluded that a specific act of hacking an MP’s phone could potentially be a contempt of the House, depending on the facts of the case. It is also clear that a specific act of hacking anyone’s phone—including an MP’s phone—could be a breach of the law. The Clerk of the House told us that:
If a Member in the course of his duties were attacked and injured in some way, in a criminal way, that would be a matter for criminal proceedings in the courts, but, of course, it would impede a Member in his activity in the House. In the most general sense therefore it would be a contempt. But I do not think the House would do anything about that in that context because there was a criminal sanction.58
He added:
The House itself—and this is reiterated by the Joint Committee on Parliamentary Privilege—has taken the view that it should exercise its jurisdiction, if I can use that word, rather sparingly. The House should not pursue privilege if it is not thought to be greatly interfering with the House’s work. That is the sort of principle that has grown up.59
62. As already stated above, it is our view that acts of hacking should be investigated by the police and that hackers should be proceeded against in the courts. But what happens next? Is Parliament then able to proceed against the alleged hacker for the quite separate offence of contempt? In this final chapter of our Report, we consider the relationship between the overlapping jurisdictions of Parliament and the courts. Specifically, we seek to answer the question, how should the House exercise its exclusive jurisdiction over behaviour amounting to contempt in a case which has already been investigated by the police or which has been before the courts?
63. Professor Bradley told us that:
Obviously there is double jeopardy if it is an identical offence being retried, but, as we all know from our ordinary life, somebody may commit a crime, he or she may be convicted or acquitted but may be held by the employer to have acted in breach of an employment contract and, therefore, can suffer a double penalty. There may be other penalties to follow. Double jeopardy has to be considered strictly in the context of two judicial proceedings, or quasi-judicial proceedings, dealing with the very same thing. If it is a matter of other consequences, then life is full of instances of potential double or more jeopardy.60
64. Lord Lester agreed that an act of hacking may be both subject to proceedings in the courts and a possible contempt of Parliament:
58 Q10 59 Q26 60 Q56
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There are circumstances where the fact that it is a crime or a civil wrong and can be dealt with by the courts doesn’t mean it can’t also be a contempt. I agree with that, but I am saying that you have to define the circumstances very closely. It has to be so closely linked to the proceedings in Parliament as to obstruct those proceedings intentionally and with that effect.61
But in Lord Lester’s view, the matter had to be pursued in one or other jurisdiction:
What could not, in my view, be proper is for someone who has been convicted by the courts to be retried for exactly the same offence. I can perfectly well understand, however, that if someone has committed a serious crime established by the courts, they can be excluded from Parliament as a separate sanction.62
He added:
You are not judges. You are not independent in the sense that judges are. You don’t have the panoply, all the procedures, and systems of appeal that the courts operate. Therefore, for you to ‘retry’ someone who has been acquitted would give rise to serious problems in Strasbourg. Let’s assume the person has been acquitted by a jury and then is found guilty by you without the procedural safeguards that are needed by Article 6. That person would go to Strasbourg and say, ‘My rights have been violated,’ and would have a strongly arguable case.63
65. Referring to the possibility that the House might proceed for contempt against someone who had been acquitted by a court, Lord Nicholls said:
Much would depend upon the basis on which the individual had been acquitted. If there had been a full trial, the facts had been looked into and then the jury said ‘Not guilty’, I wouldn’t say it is a situation where the House could never pursue a contempt claim, but, on the face of it, it would be very unlikely that it would be proper for them to do so, for obvious reasons.64
Turning to the question of whether the House could act in the event that the prosecuting authorities declined to take action, Lord Nicholls added:
As we all know, the nature of contempt is an improper interference with the rights and duties of Members and it is interference with Parliament, and it is in the public interest that Parliament should not be interfered with. The means by which that interference takes place may, of course, be the treatment of an individual Member by an outsider. I would think it is most undesirable that the situation should arise where there has been such an interference and, because the police decide to take no action, there is nothing the House can do. Of course, the House has to be very cautious for a number of different reasons, but, in principle, it seems to me contrary to the public
61 Q57 62 Q54 63 Q55 64 Q56
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interest in a very serious way that there could be an interference with the conduct of the business of the House and yet the House could do nothing about it.65
66. Professor Bradley concurred with this analysis:
I am not commenting on recent events at all, but the Chaytor judgments from the Supreme Court now make very clear that the House will co-operate with the police even in the case of crimes committed in a parliamentary context, and the duty of the House is to let the criminal investigations take their course. We are not dealing with and I know nothing about the situation in which, for whatever reason, the criminal investigation is not taking its course, in which case the civil and criminal remedies are problematic. I would share Lord Nicholls’ view that it must be possible for the House to take some action in those circumstances.66
67. We agree that the House must be able to deal with a specific act of hacking as a possible contempt in cases where the prosecuting authorities or the courts do not deal with the matter. But in doing so, we (like the Joint Committee before us) support the view expressed by the Committee of Privileges in 1967 and endorsed by the House in 1978 that,
... the House should exercise its penal jurisdiction (a) in any event as sparingly as possible, and (b) only when it is satisfied that to do so is essential in order to provide reasonable protection for the House, its Members or its Officers from such improper obstruction or attempt at or threat of obstruction as is causing, or is likely to cause, substantial interference with the performance of their respective functions.67
We would therefore expect the legal and judicial processes to take priority in all but the most exceptional cases. And there should be no special provision made in law to provide MPs or Parliament with remedies for phone hacking through the courts that are not available to others. The law must apply equally to all.
68. We recommend that, in any matter such as hacking for which a remedy may be available in law, the House should normally expect all steps to be taken to obtain such a remedy before a Motion is brought before the House to refer the matter to the Committee on Standards and Privileges for investigation as a possible contempt, save in exceptional circumstances, such as a failure on the part of the prosecuting authorities to act, or the existence of an immediate and severe threat to the working of Parliament.
69. We recommend that, in a case where a person has been acquitted by a court of a charge relating to a matter which may also amount to a contempt, such as hacking, no Motion should be brought before the House to refer the matter to the Committee on Standards and Privileges, save in exceptional circumstances, such as the alleged involvement of a Member in carrying out the hacking.
65 Q61 66 Q61 67 CJ (1977–78) 170, agreeing to paragraph 4 of the Third Report from the Committee of Privileges, HC (1976-77) 417.
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70. We recommend that, in a case where a person has been convicted by a court of a charge relating to a matter which may also amount to a contempt, such as hacking, there should be a presumption that the House will exercise its own penal jurisdiction only when it is satisfied that to do so is essential.
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A Privileges Act
71. We agree with the Clerk of the House that a Privileges Act “may define territory in such a way that it will be clearer both to the courts and to Parliament where their respective jurisdictions begin and end.”68 We welcome the Government’s announcement that it will bring forward a draft Privileges Bill in the current Session of Parliament. We hope that some of our recommendations above may be reflected in the terms of the draft Bill.
72. These are weighty issues for Parliament. No-one can accuse successive Governments or Parliaments of rushing to implement the recommendations made by the Joint Committee in 1999. Yet now is not the time to act in haste. We recommend that sufficient time be made available for full and careful scrutiny of the draft Privileges Bill, in order that the resultant Act may be as clear and robust as possible.
68 Q41
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Appendix: Note by the Speaker’s Counsel, 7 February 2011
Legal remedies for phone ‘hacking’ 1. What is popularly referred to as phone ‘hacking’ may amount both to a crime and to a tort actionable in the civil courts. The term ‘hacking’ has been used to describe various activities involving the retrieval by a third party of communications which are intended to be confidential. This may include interception, in the narrow sense in which this term is used under the Regulation of Investigatory Powers Act 2000, but also the obtaining of confidential information by other means (such as by retrieving messages from a voicemail system or impersonating an intended recipient). 2. The legal consequences will vary according to whether the message has been intercepted before its receipt by the intended recipient or is obtained subsequently. This note considers the remedies available under the criminal and civil law. The criminal law Interception 3. The principal statute concerned with the security of transmission of communications is the Regulation of Investigatory Powers Act 2000. Other relevant statutes which serve incidentally to protect communications and other data by means of the criminal law are the Computer Misuse Act 1990 and the Data Protection Act 1998. Section 1 of the 2000 Act creates the offence of unlawful interception of a communication. In summary, the offence under section 1 is committed by a person who (intentionally and without lawful authority) intercepts any communication “in the course of its transmission” by means of a public (or private) telecommunications system. 4. As may be seen from the evidence given to the Culture, Media and Sport Committee69 and the Home Affairs Committee70, the meaning of “intercept” and “in the course of transmission” is not straightforward. Section 2(2) of the 2000 Act provides: “(2) For the purposes of this Act, but subject to the following provisions of this section, a person intercepts a communication in the course of its transmission by means of a telecommunication system if, and only if, he— (a) so modifies or interferes with the system, or its operation, (b) so monitors transmissions made by means of the system, or (c) so monitors transmissions made by wireless telegraphy to or from apparatus comprised in the system, as to make some or all of the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication.”
69 Oral evidence given on 2 September 2009 by Assistant Commissioner John Yates and Detective Chief Superintendent Williams HC 362 –II Ev.358-364. 70 Letter of 29 October 2010 from the Director of Public Prosecutions
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5. The placing of a tap on a telephone line, or a recording device in a telephone receiver, would amount to ‘interception’, as would the capture of a wireless signal. In such cases, the contents of the communication are being made available, while being transmitted, to a person other than the sender or the intended recipient. The position is less clear where the content of a telephone message or other communication is retrieved from a recording system such as voicemail. In such systems, the incoming message is recorded and may subsequently be retrieved by the intended recipient who may be required to identify himself by using a PIN number or other password. If the intended recipient has not yet received the communication before it has been made available to another, then it seems reasonably clear that the communication is ‘still in the course of its transmission’ and the offence of interception is made out. Provision for such an event is made in section 2(8) of the 2000 Act so as to include “any case in which any of the contents of the communication, while being transmitted, are diverted or recorded so as to be available to a person subsequently”. 6. This leaves the (probably common) situation where a number of messages which have already been received and read by the intended recipient remain stored in a communications system. Access to such systems may be gained by using a mobile phone which has the relevant number, or by dialling in from some other telephone and gaining access to the voicemail record. In an ideal world, access would be restricted by PIN number or password, but it appears that such protection is not always used, or is ineffective because PIN numbers or passwords are not changed sufficiently frequently. Gaining access to a person’s voicemail account would popularly be understood to amount to ‘hacking’, but does it amount to interception of a communication while it is being transmitted? 7. In the evidence given to the Culture Media and Sport Committee in September 2009 Assistant Commissioner Yates said that the successful prosecution of Mr Goodman and Mr Mulcaire for the offence under s.1(1) of the 2000 Act had “brought absolute clarity that accessing people’s voicemails without their permission is a criminal offence for which you will go to jail” (Ev 359 Q1890). However, it seems that in Goodman and Mulcaire the prosecution put its case on the basis that the defendants gained access to a person’s telephone and their voicemails prior to the owner of the phone doing so (Metropolitan Police Service reply of July 2009 to Culture Media and Sport Committee Ev 356 paragraph 3). The defendants pleaded guilty, so there was no consideration of the precise scope of the s.1(1) offence. The Assistant Commissioner appears to have assumed that the offence under s.1(1) is not made out where a person first gains access to a message after it has been seen or heard by the intended recipient (Ev 360 Q1900). 8. In its natural and ordinary meaning, to “intercept” a communication “while it is being transmitted” does not seem apt to include reading or hearing the message after it has been received by the intended recipient. In Goodman and Mulcaire, the prosecution did not allege that the defendants had gained access to voicemails which had remained stored after being read, but rather that they had intercepted them beforehand. It has been suggested that gaining access to voicemails or other messages after they have been received is nevertheless an offence under s.1(1) because of the extended meaning given to the expression “times while a communication is being transmitted” in section 1(7). Section 1(7) provides that this is to be taken “to include any time when the system by means of which the communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it”.
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Although it is reasonably clear from this provision that a stored message is intercepted if access is gained before the intended recipient, it is not clear if it covers the case where a message has been collected or access has been obtained by the intended recipient but remains stored and is seen, read or heard by some other person having no right to do so. 9. In his letter of 29 October 2010 to the Home Affairs Committee, the Director of Public Prosecutions (Keir Starmer QC) points to the difficulty of interpretation as follows: “Does the provision mean that the period of storage referred to comes to an end on first access or collection by the intended recipient, or does it continue beyond such first access for so long as the system is used to store the communication in a manner which enables the (intended) recipient to have subsequent, or even repeated, access to it?” 10. The DPP goes on to explain that no court has yet determined this issue of construction. Reference is made to R.(on the application of NTL Group Ltd) v. Ipswich Crown Court [2002] EWHC 1585 Admin., but that case was concerned with the diversion of incoming e-mails to a storage system before they were collected by the intended recipient. Lord Woolf CJ remarked that section 1(7) had “the effect of extending the time of communication until the intended recipient has collected it”. The judgment does not address the question of whether gaining access to e-mails, after they have been read, amounts to interception. The natural and ordinary meaning of ‘collect’ suggests that this can be done only once, but ‘otherwise to have access’ may well be broader. 11. The letter from the DPP states that he will be advising police and CPS prosecutors to proceed on the assumption that an offence may be committed under s.1(1) of the 2000 Act if a communication is looked into after it has been accessed by the intended recipient and for so long as the system in question is used to store the communication in a manner which enables the intended recipient to have subsequent, or even repeated, access to it. Such an approach assumes that the expression ‘otherwise to have access’ is capable of including the case where the message which is intercepted has already been ‘collected’ or is one to which access has already been obtained. It remains to be established whether ‘access’ in s.1(7) has this broader meaning so as to include repeated access. Computer misuse 12. What is popularly referred to as ‘hacking’ may also constitute the offence of securing unauthorised access to computer material, contrary to section 1 of the Computer Misuse Act 1990. The offence under section 1 is committed where a person knowingly ‘causes a computer to perform any function’ with intent to secure unauthorised access to any program or data held in any computer, or to enable any such access to be secured. There has to be some interaction with the computer, so that merely reading confidential data displayed on a screen or reading the printed output from the computer would not constitute the offence. On the other hand, a person would ‘cause a computer to perform any function’ if he were to use a PIN number or password to activate a computer’s security device or cause it to offer a log-in menu. 13. The required intent does not need to be directed at any particular program or data, or of a particular kind, or a program or data held in any particular computer (Section 1(3)). Accordingly, the prosecution need only prove that a person knowingly caused a computer to perform a function with the intention of gaining access to any program or data. Using the owner’s PIN number or password without his authority to conduct a fishing expedition
Privilege: Hacking of Members’ mobile phones 27
into his e-mails or voicemails would seem to fall within the scope of the offence, as would any other operation to circumvent the security of a computer system, since it would constitute conduct which causes a computer to perform a function. 14. There is therefore a degree of overlap with the interception offence under section 1 of the Regulation of Investigatory Powers Act 2000. Until 2008, the offence under s.1 of the 1990 Act was triable only summarily, with a maximum penalty of only six months’ imprisonment. The offence is now71also triable on indictment with a maximum penalty of two years’ imprisonment, the same mode of trial and penalty as attach to the interception offence. 15. The 1990 Act also creates a number of ancillary offences, such committing an offence under s.1 with intent to commit a further offence72 (s.2), or to impair the operation of a computer (s.3) and to make, supply or obtain any article intending it to be used to commit an offence under s.1–3 (s.3A). This latter offence would cover the making, supplying or obtaining of ‘hacker tools’. Unlawful obtaining of data 16. The Data Protection Act 1998 creates a number of offences of a regulatory kind which may be committed by a data controller,73 but the most relevant for present purposes is the offence of unlawful obtaining of personal data contrary to s.55 of the 1998 Act. This makes it an offence, knowingly or recklessly to obtain or disclose personal data without the consent of the data controller. 17. It is hard to conceive of a voicemail or other personal message which did not contain personal data of some kind, whether it related to the sender or the intended recipient. Some such data might also be sensitive personal data within the meaning of s.2 of the 1998 Act. The offence is triable either summarily or on indictment, but the penalty is at present limited to a fine.74 18. It should also be noted that a number of defences are provided for under s.55(2) which might well make it difficult in practice to mount a successful prosecution for ‘hacking’. It is a defence for the person obtaining the data to show that he had a reasonable belief that he a right to do so (s.55(2)(b)), or that he would have had the consent of the data controller had the latter known of the circumstances (s. 55(2)(c)). It is also a defence to show that the obtaining or disclosing was justified as being in the public interest (s.55(2)(d)). This defence has been prospectively broadened by a new s.55(2)(ca)75 which makes it a defence to show that the person acted with a view to the publication by any person of any journalistic, literary or artistic material, and in the reasonable belief that in the particular circumstances the obtaining, disclosing or procuring was justified as being in
71 See section 35(3) Police and Justice Act 2006. 72 The relevant further offence is defined in s.2(2) and would include theft and blackmail, but not the offence of unlawful obtaining of personal data contrary to s.55 Data Protection Act 1998, since this is an offence punishable only by a fine. 73 See, for example, s.17 processing personal data without registration, failure to give notification to Information Commissioner s.20. 74 Section 77 Criminal Justice and Immigration Act 2008 confers an order making power to provide for the imposition of a sentence of imprisonment. 75 Inserted by s.78 Criminal Justice and Immigration Act 2008 not yet in force.
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the public interest. Tabloid journalists inquiring into public figures might well seek to rely on the new defence. The civil law Breach of confidence 19. A person’s telephone conversations and e-mail traffic are, in principle, confidential in much the same way as written correspondence. The content of such communications is capable of being held in confidence (and usually is so held). An action for breach of confidence will lie where there has been a breach of an obligation of confidence assumed between the parties, or where the nature of the material necessarily implies that it is held in confidence. 20. If communications are ‘hacked’ into, the obligation of confidence arises not so much from any pre-existing duty of confidence between the parties but “from the defendant having acquired by unlawful or surreptitious means information that he should have known he was not free to use,” to adopt the words of Buxton LJ in Ash v. McKennit [2007] 3WLR 194. It is clear from such cases as Campbell v. MGN Ltd [2004] 2AC 457 that an action for breach of confidence will lie in respect of the obtaining or disclosure of information which by its nature is confidential, and this will be so whether or not there is any pre-existing relationship of confidence between the parties. 21. As the Master of the Rolls has explained in his memorandum to the Culture, Media and Sport Committee,76 English law has not historically incorporated a general law of privacy, but has developed individual forms of privacy protection consistently with the requirements of Article 8 ECHR (right to respect for privacy) and Article 10 ECHR (freedom of expression). The Master of the Rolls cited in support the following passage from the speech of Baroness Hale in Campbell v. MGN Ltd [2004] 2AC 457: “The court should, in so far as it can, develop the action for breach of confidence in such a manner as will give effect to both Article 8 and Article 10 rights.” 22. This remark follows and approves the judgment of the Court of Appeal in A v.B plc [2003] QB 195 in which Lord Woolf held that Article 8 and 10 ECHR “have provided new parameters within which the court will decide, in an action for breach of confidence, whether a person is entitled to have his privacy protected by the court or whether the restriction of freedom of expression which such protection involves cannot be justified”. Lord Woolf CJ noted that, by reason of s.6 Human Rights Act 1998, the court was required not to act in way which is incompatible with a Convention right, but was able to do so “by absorbing the rights which Articles 8 and 10 protect into the long-established action for breach of confidence”. 23. In principle, a person whose confidential information is about to be released (or seen or heard by others) is entitled to an injunction to restrain such release in breach of a duty of confidence. Although it is probable that an injunction would be granted the court would still need to satisfy itself that damages were not an adequate remedy, and that the injunction should not be refused on the general principles affecting the grant of a discretionary remedy such as the public interest in the disclosure of wrongdoing and the proper administration of justice.
76 HC 352–II EV 200–211.
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Data protection 24. A person who is a data controller has a duty under s.4(4) Data Protection Act 1998 to comply with data protection principles in relation to all personal data with respect to which he is the data controller. The 1998 Act institutes its own enforcement regime, via the Information Commissioner, but a breach of the duty under s.4(4) would also be actionable as a breach of statutory duty.77 25. A person who obtains data unlawfully is unlikely to be a ‘data controller’, since he would not be in a position to determine the purposes for which and the manner in which nay personal data are, or are to be processed, but is likely to be a person who has committed the offence under s.55 of the 1998 Act. Other civil law remedies 26. If the confidential material is recorded on paper or some other physical medium, then the surreptitious copying of that record might give rise to an action for trespass to goods. Such copying would also amount to an infringement of copyright, since copyright would subsist in the recording, if not in the original message. 27. If there were no copying, then the most likely remedy would be an action for breach of confidence.
77 Cf. Tchenguiz and others v. Imerman [2010] EWCA Civ 908 paragraphs 95–101.
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Formal Minutes
Tuesday 29 March 2011
Members present: Mr Kevin Barron, in the Chair Sir Paul Beresford Matthew Hancock Tom Blenkinsop Mr Oliver Heald Annette Brooke Heather Wheeler Mr Tom Clarke Dr Alan Whitehead
Draft Report (Privilege: Hacking of Members’ mobile phones), proposed by the Chair, brought up and read.
Ordered, That the Chair’s draft Report be read a second time, paragraph by paragraph.
Paragraphs 1 to 50 read and agreed to.
Paragraphs 51 and 52 read, amended and agreed to.
Paragraphs 53 to 58 read and agreed to.
Paragraphs 59 to 61 read, amended and agreed to.
Paragraph 62 to 72 read and agreed to.
One Paper was appended to the Report.
Resolved, That the Report, as amended, be the Fourteenth Report of the Committee to the House.
Ordered, That the Chair make the Report to the House.
[Adjourned till Tuesday 10 May at 9.30 am
Privilege: Hacking of Members’ mobile phones 31
Oral and written evidence
Witnesses
Tuesday 23 November 2010 Page
Dr Malcolm Jack, Clerk of the House and Chief Executive of the House of Commons Ev 1
Tuesday 25 January 2011
Professor A W Bradley, University of Oxford, the Lord Lester of Herne Hill QC, Blackstone Chambers, and the Rt hon Lord Nicholls of Birkenhead. Ev 8
List of written evidence
Page
1 John Hemming MP, House of Commons Ev 17 2 Dr Malcolm Jack, Clerk of the House and Chief Executive, House of Commons Ev 18 3 The Rt hon Lord Nicholls of Birkenhead Ev 24 4 The Lord Lester of Herne Hill QC, Blackstone Chambers Ev 24 5 The Lord Pannick of Radlett QC, Blackstone Chambers Ev 29 6 James Price QC, 5RB Ev 30 7 Professor Anthony Bradley, University of Oxford Ev 32 8 Chris Bryant MP, House of Commons Ev 35
cobber Pack: U PL: COE1 [SO] Processed: [15-03-2011 11:03] Job: 007634 Unit: PG01 Source: /MILES/PKU/INPUT/007634/007634_o0001_Qs1-44 HC 628i CORRECTED O Ev CoH 23 11 10.xml
Standards and Privileges Committee: Evidence Ev 1
Oral evidence
Taken before the Standards and Privileges Committee on Tuesday 23 November 2010
Members present: Mr Kevin Barron (Chair)
Tom Blenkinsop Matthew Hancock Annette Brooke Mr Oliver Heald Mr Tom Clarke Heather Wheeler Mr Geoffrey Cox ______
Examination of Witness
Witness: Dr Malcolm Jack, Clerk of the House and Chief Executive of the House of Commons, gave evidence.
Q1 Chair: Good morning, Dr Jack. Welcome to our in this country, it has never extended to exemption first evidence session in relation to our inquiry into from the criminal law for Members of the House. In phone hacking. Perhaps I could allow you to make a certain other jurisdictions it has, but it never has in short statement before the members of the Committee this country. ask questions of you, Dr Jack. There are a couple of other things that I am sure will Dr Jack: Certainly, Chairman. Thank you very much come up in the session. Privilege does not extend, of for inviting me here. I thought it might be useful if I course, to all areas of Members’ activities—I know said a few words—not too many—about the concepts this is a subject that does concern a lot of Members of privilege and contempt, to give a bit of a of the House; I understand that entirely—and that is background setting for this part of the inquiry. in the area of constituency work. I need not tell the I am afraid I begin with something that is not very Committee how that has grown in recent years. It, promising. The Joint Committee on Parliamentary in one sense, is not covered by privilege unless the Privilege, which reported now over 10 years ago, as constituency matter in some way relates to some Members will remember, said that privilege is a proceedings in the House—so the asking of questions, “complex, technical and somewhat arcane subject”. the raising of matters in the Adjournment, and that That is a little bit off-putting, but, on the other hand, sort of thing. That, very briefly, I hope, helps a little I think we can at least identify reasonably clearly what bit to try to define what privilege is. we are talking about. The second concept—I promise I will not be much The privileges of the Houses—and it is both Houses, longer, Chairman—is the one of contempt, which I by the way—are those rights and immunities they think will come up all through this discussion. enjoy, by Members individually and the Houses Contempt is an obstruction of some sort. Strictly collectively, without which they could not perform speaking, contempts are wider than breaches of their function. I think that is crucial to it. The most privilege. They may involve obstruction, not familiar one, with which of course all Members will necessarily of freedom of speech or one of the be familiar, is freedom of speech. Clearly, Parliament established privileges of the House. There are, as I cannot operate if it does not have that principle— hope Members will have seen from my memorandum that privilege. in paragraphs 4 to 9, a number of different things that The term “privilege” is also, in the modern context, a can amount to contempts of the House. I have a long little difficult. It is not necessarily a term that people list with me, which I will not go through but, just to like. Of course, it comes from Latin “privata lex”— give a flavour, there is disobedience to rules or orders “the private law”. It is, in some respects, an exemption of the House. That would be, for example, someone from the law. refusing to attend as a witness to a Select Committee. Lord Lester, one of your witnesses, set out very There is misconduct of various types, interfering with important guidance by the late Lord Bingham on the meetings and so on. relationship of privilege and the rule of law. Lord Members, of course, as well, are covered by Bingham enunciated three principles: all citizens contempts, where Members may be acting in some should be equally subject to the law of the land; some irregular manner: corruption. Intimidation of derogation was necessary from that general dictum for Members of the House with threats of various sorts, certain officeholders performing public functions— and so on and so forth, and misleading the House or obviously he would include Parliament in that second its Committee are contempts—the disregard of the category; but the derogation—the moving away from practices and procedures of the House. I think those the general principle—and these are his words, are the two concepts behind what the discussion is “should not exceed what is truly necessary”. all about. As far as its own privileges are concerned, the House has always adhered to the principle, in modern times Q2 Chair: Thank you for that. Sticking on the issue at any rate, that privilege should relate only to what of possible contempt of Parliament, is it necessary or is truly necessary for the House to function. Certainly, even helpful to distinguish between traditional forms cobber Pack: U PL: COE1 [E] Processed: [15-03-2011 11:03] Job: 007634 Unit: PG01 Source: /MILES/PKU/INPUT/007634/007634_o0001_Qs1-44 HC 628i CORRECTED O Ev CoH 23 11 10.xml
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23 November 2010 Dr Malcolm Jack of communications and modern technology? To what there is any precedent in their jurisdictions. As you extent should the 16th and 18th century precedents will see from annex 3—you have just referred to it— guide us today? it is pretty thin on this subject. But one thing is Dr Jack: I think that is a very reasonable question, interesting in the two examples that are at the top of Chairman. One of the things it relates to of course—I annex 3. You will see that the first one is from the think I do put it in my memorandum—is the fact that Australian Capital Territory and the second one is a contempt may be considered as such by the House from Canada, from British Columbia. where there is no precedent for the offence. In the first case the conclusion was that no contempt In other words, I am taking the point that you are had been committed or could be established—this saying we are living in a completely different age and comes back to my point—because the perpetrator the interception of letters and so on, which was very responsible for diverting a Member’s e-mail, which much the concern of the House in the past, in the 19th was what this was about, could not be found. In other century, is not so relevant to the way in which we now words, there could not be a specific pinning down, communicate, which is largely electronic. So, yes, I which was what I mentioned just now about what the think the area of contempt is one in which, how can I mischief is. On the other hand, in the case of the put it, changes can take place. Canadian example from 1980, from British Columbia, clearly the interception by the Royal Canadian Q3 Chair: Let me test it another way. Is there any Mounted Police could be pinned down. In this case indication as to whether the interception of a letter to the conclusion of the Committee there was that a a Member that permanently deprived the Member of contempt had been committed. Others of these it would have been regarded differently from the Commonwealth examples are rather vague and not interception of a letter that was then resealed and very helpful. It is surprising how little precedent there which the Member then eventually received? Or, to is but, at any rate, of the precedents it seems that put it another way, would stealing of communications where something can be specifically pinned down, one have been regarded as worse contempt than just gets closer to the breach. reading it? Dr Jack: I suppose it all goes back to how far a Q5 Mr Heald: Can I just ask you one question Member has been obstructed. Yes, I suppose one is arising from that, Dr Jack? If an allegation of phone worse than the other if the reading leads to no hacking is made in a criminal court, there is a proper practical effect. If the person who reads the inquiry, which is done within the rules of law, and it intercepted letter does nothing about it to impede the has to be established beyond reasonable doubt. What Member in his or her function, then I suppose it is a happens in Parliament if an allegation is made of this less serious contempt, but if the contempt involves sort? Do the same rules apply? actually impeding a Member then it is more serious. Dr Jack: You are effectively the court for that I am sorry, Chairman, to sound a bit vague and talk purpose. What would happen is that a Member would in generalities. I think one of the difficulties, and, if I raise the matter on the Floor of the House, as has been may say so, the difficulty facing the Committee—and the case here, if the Speaker has been approached and I understand what that is—is trying to pin this down. accepts that there is at least a prima facie possibility It is from one level of generality to something very of breach of privilege. Then the matter is referred to specific. The House, in considering privilege, in your your Committee and it is for your Committee to predecessor Committees, for example. where there investigate and decide what this constitutes and how have been many inquiries into breaches of privilege to report this to the House. Ultimately, of course, it is in the past, has always tended to say, “What is the up to the House to decide what to do with the specific mischief? What has this breach caused?” The Committee’s report, as with any other Committee other principle behind this is: is it substantial? Is it report. important? The House has decided for quite a long time that, if a contempt is not serious, substantial, it Q6 Mr Heald: I think it is right that the House can will probably take no action on it. send someone to prison or fine them very substantially, although it has not happened since 1666, Q4 Heather Wheeler: There appears to be little I believe. But, against that background, are there no experience of dealing with hacking as a possible protections for the individual, that he should have the contempt in other legislatures. To what extent ought rights of natural justice? we to pay attention to Commonwealth or other Dr Jack: In a parliamentary sense, I think the system precedents that there are? I thought it was interesting that I have described is what happens. On the question that you reverted back to the fax issue in 1996 with of imprisonment and fining, I think there is a rather The Guardian, where The Guardian apologised for difficult distinction about whether the House is a court purporting to act on behalf of an MP. We have moved of record and therefore has the right to impose fines. on, exactly as you said. Where do you think we can That is why a fine has not been imposed for a very, go from here? very long time. Imprisonment, I think, in modern Dr Jack: Can I say, first of all, yes, Commonwealth circumstances, is out of the question. The House precedents are extremely important. We are part of a would simply not imprison someone if such a thing Commonwealth community as far as privilege is arose. The House temporarily puts people in custody, concerned and we exchange a great deal of of course. When there is a demonstration or something information with our Commonwealth colleagues. I in the galleries, a member of the public can be often consult them on privilege matters to see whether removed and detained during the day but is always cobber Pack: U PL: COE1 [O] Processed: [15-03-2011 11:03] Job: 007634 Unit: PG01 Source: /MILES/PKU/INPUT/007634/007634_o0001_Qs1-44 HC 628i CORRECTED O Ev CoH 23 11 10.xml
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23 November 2010 Dr Malcolm Jack released at the end of the sitting day. I think way, that would be a matter for criminal proceedings imprisonment, in modern circumstances, is not likely, in the courts, but, of course, it would impede a but maybe what your question is getting at is whether Member in his activity in the House. In the most Members have a remedy. I think their remedy is under general sense therefore it would be a contempt. But I the law. do not think the House would do anything about that If we are talking about hacking, hacking is a criminal in that context because there was a criminal sanction. matter and therefore is something that can be prosecuted in the courts or, indeed, there are civil Q11 Mr Cox: If you are attacked away from the remedies if it involves misuse of data and so on, but House of Commons, in a context that may have the House itself has not really come to any conclusion something to do with your constituency duties but not about the specific business of hacking. parliamentary proceedings, it might not be a contempt, might it? Q7 Mr Cox: Can I ask a sequential question Dr Jack: No, that is right. following on from that? Isn’t the nub of this expressed in Lord Lester’s evidence in which he cited the 1999 Q12 Mr Cox: But if you are attacked in the House, Joint Committee on Parliamentary Privilege when it deliberately to prevent you from going to vote or some said “the privileged areas must be so closely and such reason, that might well be, although it will be directly connected with proceedings in Parliament that likely to be prosecuted rather than treated as a intervention by the courts would be inconsistent with contempt. Parliament’s sovereignty as a legislative and Dr Jack: Yes. deliberative assembly”? Doesn’t that contain, possibly, the kernel of the issue, namely that any Q13 Mr Cox: Can I ask you about impersonation, hacking would have to be proven to have been in because in 1996 the Committee’s predecessor connection with the Member of Parliament’s concluded it was a contempt to purport to act in the parliamentary activity, in the sense of his involvement name of a Member without a Member’s authority? with parliamentary proceedings, and so go to the heart Again, impersonation of a Member can be a way, as of those that in some way it was inconsistent for the we have heard, to hack into a Member’s phone matter to be prosecuted by the courts because it would because you impersonate him in order to acquire the go to the heart of his involvement as a Member of code. Would that be a separate contempt in your view Parliament and the sovereignty of this legislature? or does it all depend on this principle of being closely Doesn’t that contain some of the seeds of it? connected to parliamentary proceedings? Dr Jack: Yes, I think it does, and I would agree with Dr Jack: I think it could be if it were in some way that. A very clear example would be, as I think I linked to obstructing the Member doing his duty. I mentioned earlier on, if someone threatened a think that would be the crux of it. If it was just an Member in the sense of saying, “If you dare to raise impersonation that had no other effect on the duties this matter in the House, we will take action against of a Member in the House, I suppose it is on the you”—that sort of thing. That is a direct threat, which borderline. relates, as you say, specifically to a proceeding.
Q8 Mr Cox: Or exerting pressure on how to vote? Q14 Mr Cox: I appreciate these are very hypothetical Dr Jack: Or exerting pressure on how to vote, yes. questions and rather difficult to answer in a vacuum, but is there any distinction to be drawn between a Q9 Mr Cox: In an unlawful way? message that has been listened to already by the Dr Jack: Yes, absolutely. Member—let us say it is about his parliamentary duties and he is having a discussion with the Speaker Q10 Mr Cox: But doesn’t that raise a separate about a matter or whatever it may be—and a message question, Dr Jack, which is that if such activities were, that has not been listened to by him? in truth, engaged in, it would not only be a very, very Dr Jack: I think this goes back a little bit to the serious contempt of this House—if there were a Chairman’s example of the letter, does it not, that is campaign of harassment, let us say, against a Member opened by someone and read and then resealed, or because of his parliamentary activity—it would intercepted but not used? I can’t, of course, answer almost certainly be a criminal offence, and the for the legal situation and whether that is itself an contradiction and paradox is that that would have to offence. I think it must be an offence to intercept be prosecuted in the courts? people’s mail. That, again, would take us back into Dr Jack: Yes, that is right. We now touch on another the criminal area and the House would no doubt leave principle, which is the separation of powers between that to the law. Parliament and the courts, in that Parliament has never wanted to get involved or interfere, certainly not in Q15 Mr Cox: Is there a way of summing this up in the criminal law. If there were a criminal charge, the this way? In general, matters that can be prosecuted House has backed off usually and left the matter to ought to be prosecuted, and so the House would the courts. probably not wish to take any action itself, but there Can I give an illustration without naming anyone, but may be scope for room between matters that infringe every single person in this room will know what I am the criminal law at one end and, in the middle, some referring to? If a Member in the course of his duties area where the House can take some action in relation were attacked and injured in some way, in a criminal to contempt? cobber Pack: U PL: COE1 [E] Processed: [15-03-2011 11:03] Job: 007634 Unit: PG01 Source: /MILES/PKU/INPUT/007634/007634_o0001_Qs1-44 HC 628i CORRECTED O Ev CoH 23 11 10.xml
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23 November 2010 Dr Malcolm Jack
Dr Jack: Yes, I think that is a very reasonable As I said in my opening remarks, I think this is summary. something that is quite difficult for us to put our minds into because it is so much now the activity of Q16 Mr Cox: That would have to be tightly Members of the House. But privilege, of course, connected to the Member’s activities in relation to predates that sort of activity. This is what we are parliamentary proceedings, in your view? talking about. Dr Jack: Yes, that is so. Q22 Mr Clarke: Dr Jack, does it in your view make Q17 Mr Cox: Can I just postulate this to you? If we any difference whether the device hacked into was don’t know whether any Member’s phone messages provided by Parliament or funded by parliamentary did relate to parliamentary proceedings at all—we allowances or is the Member’s own personal device? have no specific way of knowing about it—then it is Dr Jack: That’s a very interesting question. It raises going to be extremely difficult to get at any contempt the question, also, of what the use of the device is: at all, isn’t it? whether it is being used officially or not. You are Dr Jack: Yes. getting closer and closer to some of the ambiguities of a modern Member’s practice and I fully Q18 Mr Cox: Because the basic precondition is that acknowledge that. I would not dispute that at all. I the Member’s phone message, which has been hacked think that Parliament provides Members with into, relates closely to parliamentary proceedings? facilities, including technological devices, in order to Dr Jack: Yes, I would agree with that. carry out their wider duties as well as their specific duties relating to proceedings. Q19 Mr Clarke: Could I, Dr Jack, ask a couple of practical questions? In many ways I am depending on Q23 Matthew Hancock: We have talked a lot about your experience and I am sure you will be very the question of impeding a Member. I just wanted to helpful. Can you offer some examples of messages press a bit more on what that could mean. For that might constitute proceedings in Parliament and instance, we have talked about how it can impede some examples of messages which, although intended when the content of a communication is privileged, for the MP concerned, would not be regarded as but there is also a suggestion that a contempt could actually being proceedings? have occurred should the possibility of hacking create Dr Jack: Yes. Do you mean messages left for a a climate of a lack of confidence, which therefore Member on their phone or something like that? Is that impedes. But isn’t that second point hard to argue what you mean by “messages”? Or any messages? given that it is not a point of fact—it is a point of Perhaps it does not really matter. Messages that might contention? relate to proceedings in Parliament or would-be Dr Jack: Yes, I think that is right. I do understand proceedings in Parliament would be those closely entirely the general sentiment that lies behind the related to the activities of a Member in the House, worry in this matter. Before coming to the Committee like tabling a question or applying for an Adjournment I refreshed myself by reading the debate in the House debate. Those are examples of matters that are clearly and that is very much the theme of the debate in the proceedings. Messages and interceptions that related House. If there is a general feeling that these activities to those—someone trying to suggest to a Member that might be going on, then how can Parliament function he or she should not table that question and should properly if Members are constantly thinking that not raise that matter in an Adjournment, that sort of someone may be listening in or hacking into their thing—are clearly very closely related to proceedings. devices? I think the problem we have, which we are going Q20 Mr Cox: Could I give you another example? round and round a little bit, is how does that general Dr Jack: Yes. Please, do. disquiet relate to the specific mischief that a hacking case causes a Member? It is difficult; I acknowledge Q21 Mr Cox: A Select Committee has embarked on that. In fact, I have read the evidence from your a highly sensitive report in which the Chairman is previous witnesses and basically what they are saying discussing with Members a particularly fine judgment. is that in principle there could be a contempt, but what The report is embargoed in any event and a hacking is the contempt specifically? is made in to discover the nature of the deliberations of the Committee. That would clearly be a contempt, Q24 Matthew Hancock: Specifically, before any would it not? Member knows about the possibility of hacking, is it Dr Jack: That would clearly be a contempt. It is a possible to impede your parliamentary duties if you very good example. Leaking of course of Select don’t know that there is anything impeding you? Committee reports, as the Committee knows, is a Dr Jack: That is one of the questions I put in the contempt. Those kinds of messages are. The type that memorandum that I thought the Committee at least are not that a Member might be dealing with—I think should consider. that is what you are asking me—are, I would imagine, mainly in the constituency area, correspondence with Q25 Matthew Hancock: I was rather hoping you constituents, of which I am sure you all have might shed some light on it. voluminous amounts, e-mails from constituents that Dr Jack: I think, in pure logic, if someone doesn’t relate specifically to constituency matters rather than know something is happening it is difficult to see how anything that is going on in the House. they can be impeded if they don’t have that cobber Pack: U PL: COE1 [O] Processed: [15-03-2011 11:03] Job: 007634 Unit: PG01 Source: /MILES/PKU/INPUT/007634/007634_o0001_Qs1-44 HC 628i CORRECTED O Ev CoH 23 11 10.xml
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23 November 2010 Dr Malcolm Jack knowledge. But, of course, that does not answer the have a different regime applied to them? I go back to general worry point that everyone is going round the dicta that Lord Bingham enunciated in respect of saying, “We are all being hacked.” the rule of law—that that should only be the case where it is necessary for the performance of the Q26 Matthew Hancock: You mentioned the point duties. that if a Member is impeded it needs to be substantial As you have just said—you are quite right—there are in order for a contempt to have occurred. If Members data protection rights that apply to Members of the know that there is a problem with a certain type of House as much as to anybody else under the Data communication but can then choose to communicate Protection Act. It is an offence unlawfully to obtain in another way because they may be concerned about information. Of course, as far as hacking is concerned, the security of a certain way of communicating—for unlawful interception of communications applies to instance, if they know that leaving messages on everyone. mobile phones is insecure, they can therefore choose I think you will notice that, in the appendix where to leave messages in other ways or speak directly— I listed the Commonwealth precedents in the Indian how do you define “impeding substantially”? Parliament, the Speaker was quite forthright about this Dr Jack: I am afraid there is no easy answer to that and said that Members ought not to claim any special question. What it links to is the principle that I privileges outside that an ordinary citizen cannot. So referred to. The House itself—and this is reiterated by there is some feeling that if the law applies then a the Joint Committee on Parliamentary Privilege—has Member should not be put in a special position from taken the view that it should exercise its jurisdiction, anyone else. if I can use that word, rather sparingly. The House The problem that I know lies behind this is perhaps should not pursue privilege if it is not thought to be the ineffectiveness of the law, both in its application greatly interfering with the House’s work. That is the and its enforcement, but that is another matter. If the sort of principle that has grown up. law is not working properly, that is not really a matter for the House in the area of privilege. It is a matter Q27 Matthew Hancock: Given that you have for the House as a legislative body perhaps, to change defined to some degree how some activities are the law, or the Government to come forward with protected by privilege and some are not, if any proposals. If there are difficulties, if there are intrusion occurs into areas that are not protected by loopholes for example, in the law, then they have to privilege, do you think that can constitute contempt? be corrected. But, again, going back to the debate in The three different types of “impeding” that you list the House—I entirely understand this—part of the in your written evidence all relate to activities that are frustration of Members is that the law is not working specifically protected by privilege, which implies that properly, to put it bluntly. if the activity is not protected by privilege then there cannot be a contempt for interfering with it. Do you Q31 Annette Brooke: Do you think that the think that is the case? effectiveness of the law in particular cases and in Dr Jack: Yes, I think that is the case. The only caution hypothetical cases will need to be part of this inquiry that I would say is of course, going back to the eventually? original point the Chairman made, that new contempts Dr Jack: I would not venture into that if I were the may arise in the opinion of the House. The House may Committee, but you are a Select Committee and you decide that certain things that previously were not interpret your own terms of reference. I think that considered to be obstructive are obstructive and your focus is on privilege and contempt of the House. therefore are contempts. It is not a closed book, if you If one of your conclusions is that of course this matter see what I mean. There is not an A to Z of contempts cannot be cleared up because there are inadequacies that closes the matter. That is part of the problem of in the law or something like that, then that might be course. a conclusion. In any case, I am not the proper witness to ask questions about the law. I hope I do not seem Q28 Matthew Hancock: Of course, but that is to be evading your question. different from if something is clearly not protected. Dr Jack: Absolutely. Yes, sure. Q32 Annette Brooke: You just prompted me to ask that by your previous answer. If I could just draw my Q29 Annette Brooke: In your memorandum, questioning to a close, you have actually touched on Dr Jack, you refer to a Member’s right to privacy some of these issues already but I just want to get this under the European Convention on Human Rights. If absolutely clear. Going back to Lord Lester’s we are trying to assess whether a particular case of evidence, he says it is wrong in principle and hacking is a contempt, clearly the right to privacy unnecessary in practice to extend privilege to cover applies to me as an individual and as an MP. acts such as hacking and interception which are Dr Jack: Sure. already capable of being brought before the courts. I am not trying to put words in your mouth but it seems Q30 Annette Brooke: Could you clarify exactly to me that you have already covered the “unnecessary what your thoughts are around this, and is there a in practice” aspect. What about his point about them particular relevance for MPs? being wrong in principle? Dr Jack: I think that leads us on to this business, Dr Jack: I think we have touched on this a little bit. again, about the relationship with the law, does it not, This is the principle that the House keeps out of the and whether Members of Parliament in a sense should area of criminal law. There are jurisdictions of cobber Pack: U PL: COE1 [E] Processed: [15-03-2011 11:03] Job: 007634 Unit: PG01 Source: /MILES/PKU/INPUT/007634/007634_o0001_Qs1-44 HC 628i CORRECTED O Ev CoH 23 11 10.xml
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23 November 2010 Dr Malcolm Jack
Parliament and there are jurisdictions of the courts. principle and we have Lord Pannick, with whom it is The application of the law is a matter for the courts always dangerous to disagree, I think, on a matter of and not for Parliament. Parliament is concerned, as law, saying, “On the contrary, it could be if the Mr Cox said, with distinct obstruction impediments chilling effect on Members of Parliament was so which are not matters of criminality. Contempts of the significant.” House are not matters that would be prosecuted in the Ultimately, I suppose, it is a matter for the judgment courts. I think that is the distinction that is being of the House as to whether so chilling an effect is made—this principle of separation. proven that it impedes and obstructs Members in their parliamentary duties as opposed, possibly, to their Q33 Mr Cox: Can I just interject on that? There constituency duties or their personal lives? Would could be contempts? you agree? Dr Jack: There could be, yes. Dr Jack: Yes, I think I would. I think that, Chairman, these matters no doubt will be debated when we have Q34 Mr Cox: But because the criminal law covers a draft privileges Bill. them, for the reasons given by my colleague Mr Heald—natural rights, fairness of trial and so on— Q38 Mr Cox: Just to summarise that issue, and do they are better dealt with by the courts. forgive me, Mr Chairman, but I am thinking aloud in Dr Jack: That is right. many ways, we need to take into account in making that judgment not just whether the chilling effect is so Q35 Mr Cox: Contempt is a function, would you severe that it is really impeding Members in the agree, of the inherent power of Parliament? It is a conduct of their parliamentary duties in proceedings residual inherent power that it has in order to but that there are criminal sanctions available which discharge its functions. That is why the late Lord could deal with the matter. Bingham used the word “necessary”—if it is Dr Jack: Absolutely, yes. That would be part of the necessary for us to discharge our functions. consideration. Dr Jack: Yes. Q39 Mr Cox: Consideration and overall judgment. Q36 Mr Cox: What it is necessary for us to take Dr Jack: Yes, certainly. power to do may change according to circumstances. Chair: It might be opportune for us to move on to If the criminal law did not deal adequately with a exactly that—the question of the proposed privileges specific mischief then it might be necessary, in another Bill. century, in another time, for Parliament to take the power to itself because otherwise it would not be able Q40 Mr Heald: Reading the passage in your paper to discharge its legislative duties. But, at the moment, about a UK parliamentary privileges Act, it didn’t criminal law is relatively comprehensive and I seem that you felt there was an overwhelming case understand Lord Lester to be saying that, where the for it. You support it but you seem to have some criminal law provides a specific remedy for a specific considerable concerns about this interface that Mr Cox wrong, then, in general, Parliament should allow the has been talking about, between what the law deals courts to function. with and what Parliament deals with. In a sense, the The contempt jurisdiction exists in the space between spirit comes through that you see these parliamentary what the court is able to do under the statute and the privileges as privileges of the people, who of course criminal law, so to speak, and what Parliament is able have the sovereignty of Parliament. Would you just to do. In that space, if the court is able to do it, it like to amplify a little bit what your concerns are? should be left to the court. If it is not able to do it Dr Jack: Yes, thank you very much. I think this is a then there may be that space in between where difficult subject. There is always going to be a balance Parliament needs to be involved, and I gave the of considerations and sometimes the balance tips example of a Select Committee deliberation being slightly one way and sometimes it tips the other. listened into by messages or whatever it may be. Is I have in my hands a Privileges Act, which is the that not a reasonable way of approaching things? Australian Privileges Act, and that was passed quite a Dr Jack: Yes, I think it is and I think you have long time ago, in 1987. This Act came about in summed it up very well. Australia because of one of the things that is gradually Going back to your rights of course—you have persuading me—you are quite right, Mr Heald: I have touched on it—is the European Convention as well, my reservations about whether we do need a which is another avenue in which human rights can privileges Act—and that is the increasing need for the be pursued, admittedly in a jurisdiction outside of our House to intervene in the courts to assert its privilege. jurisdiction but, nevertheless, one that is part of it. I In other words, we have moved into an area where the think there are various avenues through the courts courts are more inclined—let me just leave it at that— where these matters can be dealt with. As I say, the to consider matters that touch upon parliamentary feeling of frustration in the House is that the law is privilege. not working properly, but that is another question. Also, we have the European dimension. The European dimension is more statute-based than our common law Q37 Mr Cox: I do not know if you have been able tradition and, therefore, I think the lack of a privileges to read the evidence that has been submitted to us, but Act is beginning to become an impediment to our we have an interesting range of opinions. We have arguing that these are matters of privilege for the Lord Lester on the one hand saying it is wrong in House. cobber Pack: U PL: COE1 [O] Processed: [15-03-2011 11:03] Job: 007634 Unit: PG01 Source: /MILES/PKU/INPUT/007634/007634_o0001_Qs1-44 HC 628i CORRECTED O Ev CoH 23 11 10.xml
Standards and Privileges Committee: Evidence Ev 7
23 November 2010 Dr Malcolm Jack
I have not recently discussed this but I have had some making it less easy to adapt to modern conditions in discussion with our Australian colleagues about the that it will be set in stone. Do you see that as a worry? working of the Act. It is particularly interesting Dr Jack: That would perhaps depend on how clever because, of course, it is a statute within a common the drafting of the Bill was. I think, if one looks at law tradition. Admittedly, there is a constitution and the Australian Act, it leaves a certain amount, in our so on in Australia and therefore there are differences common law tradition, for cases to be individual. For but, nevertheless, the legal tradition is a common example, I would not expect a Privileges Act to list law tradition. contempts and say, “This is the end of it.” The general message seems to be that this has not led to huge difficulties of territorial disputes, if I can put Q44 Mr Heald: That was going to be my final it that way. It appears that the Privileges Act in question because, clearly, if the definition of privilege Australia has met the need to be more definitive about is left fairly wide, as you were suggesting, then of what privilege is without interfering with privilege. course that gives the courts more power to define it That is the balance. It is a difficult one. and, therefore, the gradual encroachment risk is greater. But, of course, if it is defined too narrowly it Q41 Mr Heald: Isn’t the danger that we are giving raises the problem of ossification. the courts more of a role of a constitutional court than What would you suggest then about contempt, they have had previously, because they would be able because you have mentioned the difference between to interpret what the privileges Act means? The privilege and breaches of privilege and the area of concern is one of gradual encroachment. Do you agree contempt, which is a wider area? Should this UK with that—that the courts are trespassing on it? parliamentary privileges Act include any sort of Dr Jack: I think the gradual encroachment is coming definition of contempt or not? about anyway. I think the question is what you do Dr Jack: That is a very interesting question. The about it. I think that the existence of an Act may Australian Act does not, which is itself significant. define territory in such a way that it will be clearer So I think the decision was that that should not be both to the courts and to Parliament where their the case. respective jurisdictions begin and end. Can I just throw in one other comment on that, The other thing of course—I just remind the Chairman, which actually goes back to the Joint Committee—is that the courts have never been shy in Committee’s report again? One of the advantages the any case of interpreting, if I can call it, the perimeters Joint Committee saw in having an Act was that it of parliamentary privilege. They have long regarded would provide an accessible “code”, as they called it. it as their right to interpret the meaning of privilege This is perhaps a consideration for you as politicians: in law. They have drawn the line of not interfering in that there would be a code, a clear statement of what the internal processes of the House but I have privilege was and making it very clear—which, numerous examples, right through the 19th and 20th perhaps, it is not to the general public—that privilege century, of judges saying that it is their business to is, although an immunity, an immunity only linked to see that privilege is properly asserted. Lord Denman function because, as I said at the very beginning, the said this in the 19th century and many other judges very word “privilege”, in modern parlance, is not a have said it. word looked upon with great favour, I suspect, by the public. Q42 Mr Cox: They were coming from a rather Chair: Dr Jack, it just leaves me to thank you very different direction than the courts would be now. much indeed for coming to give evidence and to Dr Jack: They were coming from a different announce that the Committee will be taking further direction, yes. The Bill of Rights is a statute. The Bill evidence in public sessions, on a date to be of Rights is a statute and, therefore, the courts see it announced, from the witnesses who will be the outside as their business to interpret the meaning of that experts in privilege. We have quoted from their statute, if necessary. written evidence in this session and hopefully it will not be too long before we announce who they will be Q43 Mr Heald: I suppose the other concern is that if and when it will take place, but, once again, thank privilege is defined in statute there is a danger of you very much. cobber Pack: U PL: COE1 [SE] Processed: [15-03-2011 11:06] Job: 007634 Unit: PG02 Source: /MILES/PKU/INPUT/007634/007634_o0002_Qs45-78 HC 628ii Uncorrected O Ev Bradley &c 25 01 11.xml
Ev 8 Standards and Privileges Committee: Evidence
Tuesday 25 January 2011
Members present: Mr Kevin Barron (Chair)
Mr Tom Clarke Heather Wheeler Matthew Hancock Dr Alan Whitehead ______
Examination of Witnesses
Witnesses: Professor A W Bradley, Lord Lester of Herne Hill QC and Rt hon. Lord Nicholls of Birkenhead gave evidence.
Q45 Chair: Gentlemen, good morning. Thank you Q48 Chair: I am sorry. I thought you may have seen for coming along and helping us with this second that. It has been in the public record. He said he did evidence session we are taking on our inquiry into not think it had been clearly established that an act phone hacking. For the record, could you introduce which helps to create a general climate of lack of yourselves and the position that you currently hold? confidence among MPs, in terms of not being able to Could I start with Lord Lester? know that any message left on your phone had not Lord Lester: Anthony Lester. been tampered with, would be a contempt. He wasn’t Lord Nicholls: Donald Nicholls. I don’t currently sure that it was. Lord Lester or Professor Bradley, hold any position. have you read the Clerk’s evidence? Professor Bradley: I have had the benefit of reading Q46 Chair: Except as a Member of the House of the written and oral evidence and, for the most part, I Lords. have very little to add to what the Clerk of the House Lord Nicholls: Except as a Member of the House of has said. In my view, in certain circumstances, the Lords. hacking of Members’ phones could certainly be a Professor Bradley: Professor Bradley. contempt of Parliament, and it matters not that this has never been decided previously. The particular question which the Chairman asked Q47 Chair: We are grateful to you for coming here relates to the circumstances in which the hacking of today to assist the Committee in its consideration of phones would be sufficiently related to the work of a matter referred to by the House as the hacking of Parliament for it to be treated as a contempt. There is Members’ mobile phones. Before we get the session a whole range of possibilities. To say at which point it under way, I wish to make a short statement about the would move out of grey into black and become black way the Committee is approaching this inquiry. enough to be treated as a contempt of Parliament I am sure you are aware of it, but we decided last could only be discovered by investigation. I give an September that, in view of an application for judicial example in my paper of an MP whose partner happens review of the Metropolitan Police Service’s handling to be a pop star or a celebrity in some other way, and of the 2006 investigation into allegations of hacking so the purpose of any hacking by, say, an inquiry agent by the News of the World newspaper, and the possible is to get scandal about that partner and not directly implications of our work for any future judicial or about the MP. But in my paper I don’t deal with the criminal proceedings, the Committee should confine question of whether the effect of hacking phones that its inquiry to considerations of whether and, if so, in are known to be Members’ phones is liable to be an what circumstances, hacking of MPs’ phones could be obstruction or impedance on their work as Members a contempt of Parliament. That remains the case. We of Parliament. I am in no doubt that, in some will not, therefore, be making any reference in the circumstances, it can be an obstruction. course of today’s proceedings to any matter that is, or may soon become, sub judice. I am sure, with your Q49 Chair: Lord Lester, do you agree with that? vast experience, all three of you, that that will not Lord Lester: I do agree with that, but I would like to present you with any great difficulty. say a couple of things by way of background. I would now like to move on to an area of questioning Members of Parliament—peers—are, like everyone to attempt to establish whether a contempt has else, entitled to rely upon the civil law for effective occurred. I assume you have all read the oral evidence remedies where their basic rights and freedoms have of the Clerk of the House. He said that, for an act to been violated. There is now a wide range of effective constitute a contempt, it would have to relate directly remedies in civil law through privacy especially, but to proceedings in Parliament. He did not think it had not only, and of course there are now wide criminal been clearly established that an act which helps to sanctions as well. Therefore, it has to be some very create a general climate of lack of confidence among special case, it seems to me, for adding to the ordinary MPs would be a contempt. Lord Nicholls, where do law of the land and the protections it gives, to give you stand on that? Parliament and its Members the protection of Lord Nicholls: I am sorry, you said the oral evidence? contempt jurisdiction, privileged jurisdiction. One has Chair: Yes. It is oral evidence to us. to be extremely careful about that because it does not Lord Nicholls: I have not seen his oral evidence. enhance public confidence if what happened in the cobber Pack: U PL: COE1 [O] Processed: [15-03-2011 11:06] Job: 007634 Unit: PG02 Source: /MILES/PKU/INPUT/007634/007634_o0002_Qs45-78 HC 628ii Uncorrected O Ev Bradley &c 25 01 11.xml
Standards and Privileges Committee: Evidence Ev 9
25 January 2011 Professor A W Bradley, Lord Lester of Herne Hill QC and Rt hon. Lord Nicholls of Birkenhead
Neil Hamilton affair, for example, which you probably through, potentially, MPs’ phones being hacked, was know all about, was in any way to be replicated. a contempt. Of course, there will be gross rare circumstances Lord Nicholls: Thank you. I am rather reluctant to where hacking into a Member’s phone, in a context give a clear and specific answer by simply looking at where it was obstructing the Member from performing the effect. What you are looking at is a factual his or her duties, could amount to a contempt. Even situation, and the most important element in that is in such circumstances, Parliament would have to be going to be the purpose. If it is a purpose which is very careful what it did about it because Parliament is quite plainly unacceptable, that, in itself, may lead to not a court. It can’t satisfy the requirements of fairness an unfortunate lack of confidence in the use of mobile in the European Convention on Human Rights phones by Members, which could, I think, fairly be, because it is neither judicial nor independent in the in certain circumstances, a contempt. sense that they talk about. Therefore, my evidence is cautionary throughout. It doesn’t mean there could Q52 Chair: Finally from me for this opening session, never be a case; I think there could and so, I think, to what extent do you believe the courts would regard does Lord Nicholls. That is really the emphasis. a public interest defence as providing justification for The final thing I would like to say by way of hacking? introduction is that there are what I regard as Lord Nicholls: A public interest defence? extraordinary efforts to extend your contempt Lord Lester: There could be, as the Clerk says, jurisdiction, your privilege jurisdiction, beyond any exceptional circumstances where one was seeking to proper limit, and I will give you one example to think expose corruption and there was sufficient basis for about. You will see in the penultimate sentence of an investigation of that kind. One could imagine paragraph 34 of Dr Jack’s written evidence that he circumstances where even the invasion of privacy that speaks about the use of Select Committee evidence as would be involved could be justified, and the law says a basis of litigation, warning that that might amount so, but they would be very exceptional indeed. to a contempt of Parliament. Certainly, muckraking of private lives would have no I serve on the Joint Committee on Human Rights, and conceivable public interest defence and the courts from time to time mutterings have come from this end have been very careful not to allow what newspapers of the House suggesting that, if our reports were ever say is in the public interest to be regarded as in the to be looked at by judges, that in itself would public interest. constitute a contempt because it would be questioning proceedings in Parliament. A similar argument was Q53 Chair: It is often said of politicians that they made in a case I did called Pepper v. Hart.Inmy practise and talk about morality in this place whilst view, that is an improper extension of privilege practising different forms of morality in their private jurisdiction and I am very keen, therefore, at both ends lives. Do you think that could ever be a justification? of the House, that we should not overreach in our own Lord Lester: It depends. If a Member of Parliament law of Parliament. makes a campaign about moral virtue and sexual morality and is shown to be a lecherous, promiscuous something-or-other, then one might say that exposing Q50 Chair: We will be extending questions in and hypocrisy would be a matter of public interest. But around those areas in a few minutes. Do you have even so, using unlawful means to obtain the anything to add, Lord Nicholls? information would have to be very, very exceptionally Lord Nicholls: I have two things. First of all, on the justified. The example I always think of is this, and latter point that Lord Lester has mentioned, in this is not relating to Parliament. Suppose that in a principle, I don’t accept that deciding there can be a nuclear power station the pipes were cracking, middle contempt of Parliament as a result of hacking of management were negligent and in those Members’ phones is a novel principle. I think the circumstances one was trying to get at the truth, and correct approach is that the general principle is well thousands of people might be destroyed as a result of established, and if it has not happened before, this is a meltdown. That kind of extreme situation might be merely an example of the application of that general one in which unlawful means would be condoned by principle in the changed circumstances that exist the courts, rather like whistleblowing, but it would be today. Of course I accept that it is right for Parliament very exceptional and I don’t think that is normally a to be cautious in this field, but I don’t accept that there serious justification. is some novelty about it which of itself counts against Chair: Does anybody have anything different to add the conclusion that in this case there can’t be to that? Do you agree in large part? We are going to contempt. move on to the interface between privilege and the The second point relates, Chairman, to the first point law now. you asked me. I am sorry, can you remind me of the first question you asked? Q54 Matthew Hancock: Lord Lester, I would like to follow up on your initial statement when you were Q51 Chair: The first question was that the Clerk had talking about the need for equality under the law. As said in his evidence to us that, for an act to constitute far as I understand it, in your written evidence you a contempt, it would have to relate directly to invited the Committee to consider whether there proceedings in Parliament. He did not think it had should be what I would phrase as a double jeopardy been clearly established that an act which helps to over privilege, in that if something is being considered create a general climate of lack of confidence, in the criminal law it should also then be considered cobber Pack: U PL: COE1 [E] Processed: [15-03-2011 11:06] Job: 007634 Unit: PG02 Source: /MILES/PKU/INPUT/007634/007634_o0002_Qs45-78 HC 628ii Uncorrected O Ev Bradley &c 25 01 11.xml
Ev 10 Standards and Privileges Committee: Evidence
25 January 2011 Professor A W Bradley, Lord Lester of Herne Hill QC and Rt hon. Lord Nicholls of Birkenhead in a parliamentary court. I would like you to expand it would be very unlikely that it would be proper for on that and also give your view. You invited us to them to do so, for obvious reasons. consider it and we have and we will, but what is Professor Bradley: I hesitate to make the discussion your view? even more abstract, but there are some implications in Lord Lester: As you remember in the MPs’ expenses what Lord Lester has been saying that raise the scandals, strenuous arguments were put forward in question of whether the House has any legitimate both Houses to the effect that these are matters that authority now to take contempt action against persons should not be dealt with by the criminal courts at all who are not Members of the House. What sanctions but are protected by privilege and should be dealt with can be imposed is a difficult question, which was by you in what you describe as a court, but which considered by the Nicholls Committee, and the would not be a court in any normal sense. That procedures by which you go about it; and what should argument, I am glad to say, failed, and failed at every constitute the offences in question? While I think the level of appeal. Now it is clear that, if MPs or peers concept of contempt of the House is open-ended, commit crimes, even if they are closely connected historic, existing and established, its application in with the performance of their public functions as today’s circumstances raises all sorts of possibilities Members of Parliament, the courts have full and a question of certainty would come in. There may jurisdiction. As you have shown in your evidence, if a be questions underlying the particular inquiry being Committee like yours is faced with a pending criminal made by the Committee of the force of that and it matter, you will sensibly postpone or adjourn what may be that the only way forward is for there to be you do to allow that to happen. What could not, in my legislation, as was recommended by the Joint view, be proper is for someone who has been Committee in 1999, which should make clear the convicted by the courts to be retried for exactly the scope of contempt. same offence. I can perfectly well understand, Having said that, could I add one further comment on however, that if someone has committed a serious what Lord Lester has said? Obviously there is double crime established by the courts, they can be excluded jeopardy if it is an identical offence being retried, but, from Parliament as a separate sanction. But what I as we all know from our ordinary life, somebody may have just said is not double jeopardy. Double jeopardy commit a crime, he or she may be convicted or arises when you are being tried for the same events acquitted but may be held by the employer to have by a court of Parliament and a court of law. acted in breach of an employment contract and, therefore, can suffer a double penalty. There may be Q55 Matthew Hancock: In that statement you said other penalties to follow. Double jeopardy has to be that if somebody is found guilty by a court they should considered strictly in the context of two judicial not then be tried again by Parliament. What if they proceedings, or quasi-judicial proceedings, dealing are acquitted by a court? Is it the finding of the court with the very same thing. If it is a matter of other or is it the process? consequences, then life is full of instances of potential Lord Lester: It is very difficult. Lord Nicholls’ double or more jeopardy. wonderful report acknowledged what I am about to Lord Nicholls: Can I add something to what Professor Bradley said, and that is the danger of looking ahead? say, which is that you do not satisfy the requirements I share the view that he has hinted at. I find it very of a court within the meaning of either the common difficult to see how the House has any effective law or article 6 of the European Convention on remedy here and I do wonder, going through with a Human Rights. full and thorough investigation, where it can lead. You Matthew Hancock: Quite so. can rap the editor of a newspaper over the knuckles Lord Lester: You are not judges. You are not and admonish him, which will not give him the loss independent in the sense that judges are. You don’t of a wink’s sleep, but there is nothing else, as I have the panoply, all the procedures, and systems of understand it, that, effectively, you can do. appeal that the courts operate. Therefore, for you to Chair: No. “retry” someone who has been acquitted would give Lord Lester: I would also add that what I find rise to serious problems in Strasbourg. Let’s assume difficult, as a human being, is that here I am, a peer the person has been acquitted by a jury and then is of the realm, and my wife is a judge. Why should my found guilty by you without the procedural safeguards position as an individual be any different position that are needed by article 6. That person would go to from hers if our phones are hacked into? The answer, Strasbourg and say, “My rights have been violated,” it seems to me, depends on whether the hacking was and would have a strongly arguable case. That is the closely related to something I was doing, for example, problem about double jeopardy. as part of my membership of the Joint Committee on Human Rights. If somebody wanted to obstruct that Q56 Matthew Hancock: Lord Nicholls, do you have Committee and see what my position was and was anything to add on the same question? intercepting phone messages for that purpose, then the Lord Nicholls: It is very difficult to speak in the object or the intent, to use Lord Nicholls’ idea of abstract about these questions. Much would depend looking at the intent, would clearly be obstructive and upon the basis on which the individual had been the effect would clearly be obstructive. That would, I acquitted. If there had been a full trial, the facts had think, amount to a contempt. That would be so been looked into and then the jury said “Not guilty”, intimately related to the proceedings of my House and I wouldn’t say it is a situation where the House could yours, since we are a Joint Committee, that it would never pursue a contempt claim, but, on the face of it, be a proper matter to be dealt with by Parliament and cobber Pack: U PL: COE1 [O] Processed: [15-03-2011 11:06] Job: 007634 Unit: PG02 Source: /MILES/PKU/INPUT/007634/007634_o0002_Qs45-78 HC 628ii Uncorrected O Ev Bradley &c 25 01 11.xml
Standards and Privileges Committee: Evidence Ev 11
25 January 2011 Professor A W Bradley, Lord Lester of Herne Hill QC and Rt hon. Lord Nicholls of Birkenhead that would be a separate matter from the way that the Lord Lester: I have to say I don’t entirely put it in courts would deal with it. that way myself. There is a danger in symbols. Symbols are easily misinterpreted. In his evidence, Q57 Matthew Hancock: Why would it be separate, Mr Hemming goes so far as to say that any because wouldn’t it also be a criminal offence? Are interception or monitoring of communications there circumstances in which it could be not a criminal between MPs and others is a contempt. He says it offence and therefore only subject to a parliamentary twice. That, in my view, is far too broad and if you contempt? were to endorse that it would send the wrong signal. Lord Lester: This is the point that Professor Bradley Although, of course, I agree with Professor Bradley and Lord Nicholls were making. There are about the importance of affirming the public interest circumstances where the fact that it is a crime or a in our Parliament and its protection, one has to be civil wrong and can be dealt with by the courts doesn’t very careful of overreach. mean it can’t also be a contempt. I agree with that, but I am saying that you have to define the Q60 Mr Clarke: Following that reply, Mr Chairman, circumstances very closely. It has to be so closely could I ask Lord Lester this, and perhaps Lord linked to the proceedings in Parliament as to obstruct Nicholls and Professor Bradley might want to add to those proceedings intentionally and with that effect. what he has to say? Looking back on the written evidence that you provided, as I understood it, your Q58 Heather Wheeler: I completely agree with what view was that it was wrong in principle and you have just said and I am taking that to the next unnecessary in practice to extend privilege to cover level now. The Computer Misuse Act might apply to acts such as hacking and interception, which are mobile phones and similar devices. In your view, already capable of being brought before the courts because of what you have just said, does it provide now. My principal question is: what are the vehicles sufficient protection against attempts to access or for bringing these matters before the courts and, interfere with privileged information that is stored without discussing allegations that may come before electronically? the courts, can you give us some indication of existing Lord Lester: I don’t know. case law? Lord Lester: In the civil field, as a result, largely, of Q59 Heather Wheeler: Because that is the next the Human Rights Acts being used to develop the jump, isn’t it? right of privacy, although it had already been Lord Lester: Yes. I don’t know the answer. That’s a developed by the courts before, there are now many good question. privacy claims that have been brought for everything, Professor Bradley: I don’t pretend to be a criminal including telephone hacking. Any civil equivalent of lawyer, but another Act, the Regulation of the criminal law involving invasions of privacy has Investigatory Powers Act—RIPA—is mentioned in given rise to claims in the civil courts. Lord Lester’s paper, and I am glad that Mrs Wheeler So far as the criminal side is concerned, as you will has mentioned the Computer Misuse Act. There may know very well, the police are at this moment, we be other Acts there, and it possibly would assist the hope, actively investigating the allegations against Committee’s inquiry if someone who is expert in this newspapers of hacking with a view to prosecution. field such as a criminal lawyer could provide a The Director of Public Prosecutions is reported today comprehensive memorandum on the legislation that is as saying that he wants the investigation to be focused now applicable. and energetic, and if there is credible evidence of Although I have these general concerns about the hacking, whether it is against a private individual or a contempt notion in practice today, I strongly believe Member of Parliament, then that can and should give that there is a very important dimension in the work rise to criminal prosecution. of Members of Parliament on behalf of the public to make the point that the privileges or the protection of Q61 Mr Clarke: Would Lord Nicholls or Professor MPs from molestation is a protection of the public Bradley like to add to that? from their representatives being molested. That comes Lord Nicholls: If I may say so, I don’t think that is a out very strongly in Mr Hemming’s paper, which the wholly satisfactory answer. As we all know, the nature Committee has, and is very easily overlooked, of contempt is an improper interference with the rights particularly if there are other events going on which and duties of Members and it is interference with bring the reputation of Members of Parliament in the Parliament, and it is in the public interest that media into disrepute and in the public knowledge. For Parliament should not be interfered with. The means a Committee to say that “The interruption, by which that interference takes place may, of course, interception or molestation of communications be the treatment of an individual Member by an between constituents and MPs is capable of being a outsider. I would think it is most undesirable that the contempt of Parliament and it is to the public situation should arise where there has been such an detriment if that is permitted” might have a symbolic interference and, because the police decide to take no value in a declaration by the House, that “These are action, there is nothing the House can do. Of course, changed circumstances, we have not had a precedent the House has to be very cautious for a number of for this, but people should beware if they think that different reasons, but, in principle, it seems to me there is no value at all in what Members of Parliament contrary to the public interest in a very serious way are doing.” that there could be an interference with the conduct of cobber Pack: U PL: COE1 [E] Processed: [15-03-2011 11:06] Job: 007634 Unit: PG02 Source: /MILES/PKU/INPUT/007634/007634_o0002_Qs45-78 HC 628ii Uncorrected O Ev Bradley &c 25 01 11.xml
Ev 12 Standards and Privileges Committee: Evidence
25 January 2011 Professor A W Bradley, Lord Lester of Herne Hill QC and Rt hon. Lord Nicholls of Birkenhead the business of the House and yet the House could do the contempt of court, and in history there have been nothing about it. situations in which the two contempt powers have as I observed a short while ago, there doesn’t seem to come into open conflict. be an effective remedy in fact. That is what, 10 years The example that comes to mind is the Hansard ago, the Joint Committee suggested should lead to the litigation in the late 1830s when the House of conclusion that there should be a statute making these Commons wanted to extend privilege because things crystal clear, dealing with this point and no Hansard was being sued for libel. The courts very doubt providing an adequate remedy in the situation clearly said you cannot extend privilege, you cannot to which I have just referred. create a new privilege, and the answer was legislation. Lord Lester: I entirely agree with the last point. When the libel action continued and judgment was Obviously, there should be a statute, and the Clerk has conceded in favour, the Sheriffs of Middlesex, who recently said so, but I don’t think Lord Nicholls, when were carrying out the duties of the court, were he reads my evidence, will disagree as much as he themselves committed for contempt by the House, and thinks. I was answering a question purely of the House, on that occasion, refused to say why it was Mr Clarke on what remedies were available in the committing the Sheriffs of Middlesex for contempt. civil and criminal courts. I wasn’t suggesting that that The law at that time, as these were thought to be could be the only way in which one should deal with co-ordinate courts and not wishing to interfere in each the matter, and I gave the example where, if someone other’s business, was that, unless the House of hacks into my phone, for example, to impair my work Commons stated the reason for committing for as a Member of the Joint Committee on Human contempt, the ordinary courts just had to accept that. Rights, that would obviously be the kind of case. I raise in my paper the question of whether that would Indeed, we had such an example recently, you will be the attitude of the courts today. If it is obvious remember, when somebody sought to interfere with why the House has done this very unusual thing of the report of the Joint Committee on Human Rights, committing somebody for contempt in a blatant case, who was chair of a public body—or so it was I cannot believe that the court would stand idly by and alleged—and that led to consideration, I think by this not grant habeas corpus. That is an historic dispute, Committee, as to whether that did constitute a but potentially there is still a situation in which the contempt. That would be as much the case if it was institutional authority of the courts might come into done by intercepting a mobile phone as by any other conflict today with the institutional authority of means. I am trying to deal with the very broad Parliament. I know the present attitude of the House, suggestion that any hacking of the phone of any MP and Dr Jack in particular, is that we are in a time of in any circumstances whatever should of itself be a peace, that there is no war here, not a cold war, that contempt. That seems to me to be overbroad. the two institutions are co-operating and so on. But Heather Wheeler: Yes, it is stretching it. on a subject like contempt and what action could be Professor Bradley: I think I was the first of the panel taken, this ancient conflict, or shades of it at least, to mention the Hemming paper. I was using it to make could reappear. the general point about the public interest in MPs again, I would say, with all due respect to the being able to do their work properly. I wasn’t thereby judiciary, the authority of the courts and the rule of to be taken as agreeing. I share Lord Lester’s law, it is important that the constitutional authority of reservations about those particular points in the the Houses of Parliament should also be respected in Hemming paper, but otherwise it is a very persuasive this situation. document that should be taken seriously. I am not Lord Lester: I agree entirely, but could I add my own commenting on recent events at all, but the Chaytor personal experience, because it is always helpful? I judgments from the Supreme Court now make very have twice had experience, as an advocate, of the clear that the House will co-operate with the police tension between courts and Parliamentary privilege. even in the case of crimes committed in a The first was in the case of Pepper v. Hart, which parliamentary context, and the duty of the House is to established that judges could exceptionally look at the let the criminal investigations take their course. We parliamentary record in order to help them in are not dealing with and I know nothing about the interpreting ambiguous legislation. In that case I think situation in which, for whatever reason, the criminal it was the Speaker’s counsel who certified, and the investigation is not taking its course, in which case Attorney-General argued, that it would be a breach of the civil and criminal remedies are problematic. I parliamentary privilege for judges to look at anything would share Lord Nicholls’ view that it must be said by Ministers in parliamentary proceedings, and possible for the House to take some action in those we had five days of sustained argument on that circumstances. proposition. Eventually, the House of Lords, by a majority, said no, it would not be a breach of Q62 Chair: Professor Bradley, you have raised the parliamentary privilege if courts could do so. That is possibility that there might be circumstances in which an example of the sort of thing I was referring to the courts could intervene following a decision of the before. House in relation to contempt. Could you elaborate on The second one was more recent—a couple of years this point for us? ago. I was in a case about age discrimination and I Professor Bradley: There is a great deal of history wanted to show the court the report of a Select which someone like the Clerk would have at his Committee of the House of Lords which had reported fingertips much more than I do. We have been talking on age discrimination. I wanted to refer to what about the contempt of Parliament, but there is also Ministers had told the Select Committee. The cobber Pack: U PL: COE1 [O] Processed: [15-03-2011 11:06] Job: 007634 Unit: PG02 Source: /MILES/PKU/INPUT/007634/007634_o0002_Qs45-78 HC 628ii Uncorrected O Ev Bradley &c 25 01 11.xml
Standards and Privileges Committee: Evidence Ev 13
25 January 2011 Professor A W Bradley, Lord Lester of Herne Hill QC and Rt hon. Lord Nicholls of Birkenhead
Attorney-General again instructed counsel to say that could happen. The fact that, ever since 1957, that would be a breach of parliamentary privilege. communication between a constituent and MP has Again, the claim was rejected. But these are working been held by Parliament not to be within article 9 of examples where courts have to decide where to draw the Bill of Rights is neither here nor there if one is the line. considering the contempt side of this. Of course, the most unfortunate example of a slightly Lord Lester: The way it was put by the Supreme different kind was in the Neil Hamilton affair, because Court in Chaytor was to ask whether the actions are he sued The Guardian for libel when they accused likely to impact adversely on the core or essential him of taking cash for questions. A High Court judge business of Parliament. What you have to decide is said parliamentary privilege prevented it. I think the what the core or essential business of Parliament is. judge was wrong, but there was no appeal. Instead, Lord Nicholls: Yes, I must confess that I do have Parliament was persuaded to pass section 13 of the reservations about the suggestion, as I understand it, Defamation Act, which allows MPs to pick and that interference with the constituency work of a choose as to whether to invoke parliamentary Member could be a contempt of Parliament. I have privilege or not as suits them in their libel cases. Lord reservations about that. Nicholls’ report says that that should now go, and I respectfully agree. Q65 Dr Whitehead: Do you think there are, Chair: Okay. Let’s move on. however, particular issues relating to how Parliament conducts its business electronically to the extent that, Q63 Dr Whitehead: Could I try and draw out some for example, I may be sitting in my constituency at detail on some distinctions between different kinds of my computer, which has a remote link to Parliament, hacking, for example, perhaps, as we are mainly and someone then intercepts my e-mails, which I have presently discussing, interception, but also it could be exclusively sent and received from within my impersonation, whereby someone is seeking to gain constituency, but, however, I am linked to the business access to someone’s phone details as a result of of Parliament thereby? gaining the confidence of the telephone company, by Lord Nicholls: I wouldn’t have thought it made any impersonating them? Do you have a view as to which difference. Where the interference takes place is of those two aspects of hacking might be regarded as neither here nor there. The interference with the work the more serious when considering the question of a of the Member in his parliamentary work can take possible contempt? place today just as much in the way you have Lord Lester: The two being, again? described when he is sitting at his desk in his office in his constituency as when he is sitting at his desk in Q64 Dr Whitehead: One is interception, that is using this building. electronic means to access recorded messages, and the other one is perhaps impersonating or claiming that Q66 Dr Whitehead: The RIPA—the Regulation of one has the right to the details of a phone account in Investigatory Powers Act—makes a distinction order to obtain those same details. between interception of messages in different ways. If Lord Lester: They are both unlawful, and the second you have listened to a message which has already one involves more fraudulent conduct even than the been listened to by the intended recipient, that is first. It is rather like journalists pretending to be different in terms of the way RIPA works from constituents in Vince Cable’s surgery, isn’t it, when opening a message that had not previously been they come along in order to entrap? All of that is gross listened to. If you are instigating the hacking of a misconduct, and it is a contempt if it has a direct message which had previously remained dormant, connection with the functioning of Parliament and RIPA appears to suggest that is rather more serious obstructs. than if you listened to a message that has already been Professor Bradley: I would pass on the specific opened and made available. Do you think that question, Dr Whitehead, but I have found it a helpful distinction has any relevance to the matter that is analogy, in considering whether the hacking of before us to the extent that, if someone has listened Members’ phones should be a contempt, to think of a to their phone messages, that might be different from situation in which an MP is wishing to hold a someone who has intercepted and diverted phone constituency surgery. That is not a proceeding in messages from the person who otherwise would have Parliament. I think it is a very important function of listened to them? an MP’s duty today. One can think of improper ways Lord Nicholls: I think not. They are both capable of of either obstructing or interfering—bugging an MP’s being contempts. constituency office, for example, so that what he or she says to the constituent, who may have come in Q67 Dr Whitehead: Are they equal contempts? complete confidence, can be intercepted and listened Lord Nicholls: In principle, I see no reason why they to. It might be a complaint against the local police, should be different. the local judge, the hospital authority, or whoever, and Lord Lester: One thing I do not understand myself, the complainant may be somebody working within but the Committee will, is why the Commons decided that body so that he or she will be liable to dismissal in 1997 to repeal the Standing Orders relating to if a word of this gets abroad. Interference of that kind letters. I don’t know whether the view taken in 1997 in the communication between a constituent and a was that none of this mattered. Member of Parliament seems, to me, very much Lord Nicholls: Forgive me for answering for the capable of being a contempt. It may be unusual but it Committee, as it were, but my understanding was that cobber Pack: U PL: COE1 [E] Processed: [15-03-2011 11:06] Job: 007634 Unit: PG02 Source: /MILES/PKU/INPUT/007634/007634_o0002_Qs45-78 HC 628ii Uncorrected O Ev Bradley &c 25 01 11.xml
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25 January 2011 Professor A W Bradley, Lord Lester of Herne Hill QC and Rt hon. Lord Nicholls of Birkenhead they were repealed because they were just thought to about these constitutional relationships and a well- be obsolete; it related to the situation. drafted Act could make the boundaries clearer that should exist between them. This would lend clarity Q68 Matthew Hancock: I understand it was a and increase legal certainty, as Lord Lester has said, tidying-up exercise. and probably it is part of an inexorable march of Lord Nicholls: Yes, but for that reason. It was just progress towards codifying different parts of the repealing something which no longer had a place and constitution. I am not thereby advocating a written a role to play in today’s conditions. constitution, but we have seen it in so many areas of Matthew Hancock: It was the 1957 judgment that public life these days in legislation, getting the rules communication with constituents is not a contempt down and clear so that we all can read them and that superseded the Standing Orders on letters, as far understand them. Journalists and newscasters cannot as my reading of the history goes. be expected to read text books on constitutional law or history to find out what the relationships between these different institutions are, and for Parliament to Q69 Chair: We have a few minutes left. We would enact a good Privileges Act would be a step forward. like to ask about a potential Privileges Act. The Clerk Indeed, I am glad to say that the Nicholls Committee of the House clearly has reservations about enshrining did not accept my evidence as it was 10 years ago. privilege in an Act and thus making the courts Lord Nicholls: I am very pleased to hear that that had responsible for interpreting it. Is he right to be worried at least one effect. about that? Chair: He is a convert, my Lord. Lord Nicholls: It’s right that the effect of an enactment would be that the terms and effect of that Q71 Matthew Hancock: Lord Nicholls, you said you Act would be decided by the courts. I don’t think that think that the courts already define the limits of should be a matter for concern, not least because, contempt. Therefore, what is the advantage of moving today, the position is that, as was set out in the report that into a codified legislative set-up? 10 years ago, Parliament has accepted that the courts Lord Nicholls: What would be the advantage of themselves can decide on the boundaries of contempt. having a statutory set-up? Lord Lester: Yes. It would be desirable that there be Matthew Hancock: Yes a statute in order to promote legal certainty. The courts Lord Nicholls: The advantage is, amongst other have shown themselves in my lifetime to be careful things, that it clarifies the law. not to usurp the functions of Parliament in the way that they decide cases. They are very sensitive to that. Q72 Matthew Hancock: When you said that the It enhances public confidence in Parliament to know courts have already defined it and— that Parliament has itself laid down a statutory code Lord Nicholls: What I meant, if I didn’t say it, is and that questions of interpretation and application that when issues arise the courts do define where the can be decided by the independent judiciary. I am not boundaries lie, and to that extent Parliament is aware that the Australian Privileges Act has given rise already, if I may put it this way, in the hands of the to much difficulty because courts may have to court. interpret and apply its provisions. The argument about IPSA, which I remember very well, when it was said Q73 Matthew Hancock: So they do it on a that you should not allow the courts to have any case-by-case basis? criminal jurisdiction in relation to fiddling expenses, Lord Nicholls: Yes. has subsided and everyone, I would have thought, now recognises that it is highly desirable for those Q74 Matthew Hancock: The next question is: how matters to be dealt with by the courts. So I think the would you define in statute the limits of contempt, arguments are overwhelmingly in favour of having a given that technology changes and the different means Privileges Act, and I believe that the present of communication can change? Therefore, the obvious Government are meant to be committed to producing solution to that would be to have a broad definition a draft Bill, are they not? similar to the Australian model. Would that not then lead to the courts rather than Parliament making a Q70 Chair: They are and, as I said, the Clerk is decision over what is and is not a contempt in all worried. I think the courts have got it absolutely right future cases? in recent times, in view of circumstances here. I Lord Nicholls: As I’ve said, that is already the suspect the Clerk may be a bit worried about tensions position. I see no difficulty in setting out in a statute a in the future, about matters that are not as clear as clear, principled statement of what conduct constitutes those we have had in the last few months. Professor contempt. Then the question is only going to be Bradley? whether the facts in a particular case satisfy that clear Professor Bradley: If the Committee wish to go back statement of principle. Therein lies one of the great to the evidence I gave to the Nicholls Committee over advantages of having a statute. Another advantage, of 10 years ago, they might find that I was arguing then course, is that more and more human rights are against the idea of legislation to codify privilege. I encroaching in all fields and it is very undesirable, have since then changed my view, and obviously the with somebody who has been engaging in undesirable legislation would have to be carefully studied and go conduct affecting the House, that a question should be through a lot of oversight and supervision. My reason capable of being raised, “This can’t possibly be a valid today is that there is uncertainty of a serious kind subject of interference by Parliament because the cobber Pack: U PL: COE1 [O] Processed: [15-03-2011 11:06] Job: 007634 Unit: PG02 Source: /MILES/PKU/INPUT/007634/007634_o0002_Qs45-78 HC 628ii Uncorrected O Ev Bradley &c 25 01 11.xml
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25 January 2011 Professor A W Bradley, Lord Lester of Herne Hill QC and Rt hon. Lord Nicholls of Birkenhead position is so unclear. Nobody in the public knows assess further requirements, among other things, of what is contempt and what is not and they have no fairness and the Convention. So, even when you are idea what the remedies are.” It seems to me that that dealing with Members, you have to proceed with sort of argument, in certain circumstances, could be caution, and I agree with Lord Nicholls that for irresistible in Strasbourg. non-Members the sanctions are written in water. Lord Lester: What would be really hard to solve is Professor Bradley: Chairman, it is difficult in the the problem of Strasbourg in relation to such a law remaining few minutes to consider what this new because, if the law dealt with sanctions and if codification of privilege should be. I, for the moment, Parliament is not a court, then the law might have to think it would still be desirable to have a distinction recognise that sanctions would have to be dealt with between parliamentary privilege—the limits of that in serious cases by courts. I don’t know how that must be clear—and the contempt power. If one tried would be acceptable or not to Governments and just to have a closed list of precise forms of conduct Parliaments, but that certainly would be a problem that today constitute contempt, in 10 years’ time we which the Australians don’t have because the would have a similar discussion. It must be in terms Australians, although they have a written constitution, don’t have a supranational court supervising in the of obstructing the proceedings of Parliament or way that we do. whatever. I am not drafting now. Lord Nicholls: I don’t think that ought to be a The second point is that good legislation should leave problem because the report, as I remember it, said in scope for Parliament or each House to make a relation to non-Members that questions of contempt decision. I am not certain that this would always be would have to be dealt with by the courts because contrary to the Strasbourg court’s approach, and I do, only the courts have the machinery for conducting an in my paper, set out at some length a rather unusual inquiry of the type that would be recognised now as a Turkish case in which, rather to my surprise, the fair inquiry by an independent body. Strasbourg court went out of their way to accept the Lord Lester: Could I go back to Mr Hancock’s autonomy of Parliament and to accept that this is a original question? It is for Parliament, as the supreme political matter which the House must decide and not law-maker, to make a public law rather than rely upon a court. Legislation of that sort could be created. the unwritten law of contempt, so that the law of the Certainly, it would make a large difference and it land is clearer, and it should state principles rather would probably increase the power of the court to than detailed rules, leaving a wide discretion to the interpret the law in particular cases, but this is a trend judges to apply the principles on a case-by-case basis which is going on in any event today and there would where necessary, with the primary decider of facts be a value in bringing privilege within it. being the parliamentary mechanism, so that cases rarely go to the courts, because Parliament has its own Q76 Mr Clarke: Still reflecting on the possibility of internal machinery, such as this Committee, to be able a Privileges Act, should Parliament be more alert to to act within the boundaries of the law. It is only when the Committee got the law wrong that there would be the specific challenges to its ancient privileges that recourse to the courts, it seems to me. That partnership may be posed by its increasing dependence on rapidly needs to be spelled out so that it’s up to Parliament in evolving technology? For example, should the draft the first place to make the decisions and the courts Privileges Bill include special provision to protect only in the last resort. Parliament and MPs from hacking and from cyber attack? Q75 Matthew Hancock: On this question of Lord Lester: Yes. sanctions, it seems to me that there are sanctions that Lord Nicholls: The legislation should be drafted in a Parliament has that courts don’t use. For instance, way which covers that and, if drafted as a matter of removal of a parliamentary pass is one that we have principle, it would. recently been discussing and the insistence on Lord Lester: There is nothing strange about that. The apologies to the House. Lord Nicholls, you may say, Government are now considering a draft Defamation newspaper editors wouldn’t care two hoots about that, Bill. One of the things they will have to consider is but they do have a significant impact in the case of what constitutes publication and problems of the some offences against privilege, especially on the internet. The definitions will need to be open-ended standards side as well. I wonder whether you could so that they can embrace future technology and not be comment on that and on the other sanctions that frozen at any particular time. The same applies to a Parliament uses that aren’t used by courts. Privileges Bill. Lord Nicholls: It seems to me that the sanctions available to Parliament against non-Members are simply not sufficient. Q77 Dr Whitehead: I want to ask a question about Lord Lester: And the sanctions against Members have the definition within a proposed Bill of Contempt and to be handled very carefully, as we discovered in the how closely one might be able to define it. We have House of Lords in dealing with those peers who are substantially covered that, but I guess the residuum of alleged to have acted improperly. We had to set up a the question would be: do you think it would be easily mechanism, presided over by, I think, Lord Irvine of possible to produce a statutory definition of contempt Lairg, to ensure that it acted as much like a court as which would stand up fairly well within a piece of possible, a disciplinary tribunal that effectively acted legislation? as though it were a proper judicial body in order to Lord Nicholls: Yes. cobber Pack: U PL: COE1 [E] Processed: [15-03-2011 11:06] Job: 007634 Unit: PG02 Source: /MILES/PKU/INPUT/007634/007634_o0002_Qs45-78 HC 628ii Uncorrected O Ev Bradley &c 25 01 11.xml
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25 January 2011 Professor A W Bradley, Lord Lester of Herne Hill QC and Rt hon. Lord Nicholls of Birkenhead
Q78 Dr Whitehead: And it would be flexible enough you very much indeed for coming along this morning for the sort of developing purposes that we have been and also Professor Bradley for suggesting we should discussing this morning? look at what current Acts of Parliament say about this Lord Nicholls: Yes. The statute can include examples as well? Given Heather’s question, we will do that, so as to point the directions. Yes, I see no difficulty in but we would expect that this is now the last evidence drafting that. session that we will be taking and we will obviously Chair: That comes to the end if nobody has anything be making a report to the House in due course. further to add. Could I first of all thank all three of Thank you. cobber Pack: U PL: CWE1 [SO] Processed: [30-03-2011 11:41] Job: 007634 Unit: PG03
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Written evidence
Written evidence submitted by John Hemming MP, 16 September 2010 1. The question has been asked as to whether hacking into Members of Parliaments mobile phones is a Contempt of Parliament. There is only really one possible answer to this question which is in the affirmative. This submission is written to explain why that is. There are two appendices which are the law report of Rivlin v Bilainkin and the report of the Committee of Privileges of the Victoria State Parliament in respect of the Leighton Case.1 2. In this submission I will look at the issue in two ways. The first approach will be to look at the practical principles of bugging communications and the second approach will be to consider the law of parliament and what precedents exist to justify the more general approach. 3. The House of Commons has had the power to punish Contempts of Parliament to that parliament can do its job. There are many ways in which parliament could be disrupted which would not ordinarily be covered by the criminal law. However, Parliament holds a key role in being the mechanism by which people without any power have a voice and influence on what happens in the country. Parliament is the key institution for democracy to function. That which prevents Parliament from functioning undermines democracy and strikes at the weakest and most vulnerable in society. 4. Technology has moved on since the creation of Parliament in 1215 hence there will be historically few precedents relating to technical issues simply because they practically could not arise. 5. The basic principles that justify my claim in paragraph 1 ante are as follows: (i) For parliament to function individual members of parliament need to have private conversations with others both within parliament and outside parliament where those conversations are linked with parliamentary proceedings. (ii) It is not possible when intercepting the communications (letters, emails, phone calls, oral conversations generally) of members of parliament to have a system which distinguishes between those conversations which are linked to proceedings in parliament and those conversations which are not linked to proceedings in parliament. (iii) Hence any interception or monitoring of communications between MPs and others is indeed a Contempt of Parliament. 6. To consider how communication monitoring is a Contempt of Parliament it is important to consider how it affects people’s willingness to talk to MPs about proceedings in parliament. 7. There are many situations in which people communicate with MPs about proceedings in parliament. They can provide information that is used in a speech, ask about information that may be used in a question or discuss things with an MP that are used in a division. The function of MPs is to obtain information from people and then use that information to inform their judgment to decide what to do in proceedings in parliament. 8. Anything that acts to prevent MPs receiving that information otherwise willingly given is clearly undermining parliament itself. 9. There are times when people provide information to MPs about matters that they would not wish anyone to hear about them providing that information. For example: (a) In 2007 a Social Worker came to see me to talk about how he had historically conspired with solicitors acting on behalf of parents to undermine their clients’ cases. In doing so he was admitting that he had committed a criminal offence. He explained how this was custom and practice. This was important information to me and informed inter alia EDM 11 in session 2008Ð09 and EDM 126 in session 2007Ð08. (b) On 8 September 2010 I was contacted by someone who worked for a psychologist who provides expert opinion to the family courts. She explained how the psychologist set up parents to automatically fail their assessments. She may be willing to identify herself at a later stage, but is currently nervous about doing so. This was used in a debate on 9 September 2010. (c) At my advice bureau I have employees of the City Council coming to express concerns about employment matters in the city council. They ask to be kept anonymous. I have, however, written to the city council on their behalf. (d) In two cases constituents have been bullied by the city council and a particular judge (HHJ Cardinal) in an attempt to stop them communicating with me about their cases. Both cases have appeared in parliamentary proceedings in various forms. (e) In a case related to MG Rover I sat with one of the directors in a car park because he was worried about being overheard in respect of the conversation that occurred. This has not been used in parliamentary proceedings. 1 Not printed cobber Pack: U PL: CWE1 [E] Processed: [30-03-2011 11:41] Job: 007634 Unit: PG03
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10. Points a), b) and d) are matters where the issues are clearly linked to parliamentary proceedings. They are also matters where, had the individuals concerned believed that there was a chance that the conversation would be monitored that they would not have taken the chance of talking to me. 11. It is clear from the above that monitoring of MPs conversations (and actually those of their offices as well) where linked to parliamentary proceedings undermine parliament’s ability to function collectively. Parliament cannot function if its eyes and ears (the MPs) are prevented from listening and watching the world outside parliament. It is not possible to have a monitor that automatically ignores all conversations that are not linked to parliamentary proceedings. And hence any monitoring of private conversations between MPs and others is a contempt of parliament. Obviously this does not apply to public communications, but it does apply to private communications. 12. I will now go on to look at the questions in relation to the law of parliament. 13. My legal argument is that private communications between individual MPs and others which are willingly entered into by the others (and the MP) and that are linked to parliamentary proceedings are covered by Article IX and any attempts by others to intervene in the conversations by restricting them or monitoring them in any way without the permission of the MP is a Contempt of Parliament. 14. There has only been one legal case in the UK courts about communications with MPs. That case is Rivlin v Bilainkin (1952).2 It found that a communication with an MP that is not linked to a proceeding in parliament is not privileged. (HELD: as the publication was not connected with any proceedings of the House, its delivery to a member of Parliament was not privileged, and the defendant was guilty of contempt of court.) 15. The English speaking common law jurisdictions tend to have similar laws in respect of parliament and hence precedents from those are relevant to this issue. One key precedent is the case of Michael Leighton who was the member for Preston in the State Parliament of Victoria, Australia. A firm of lawyers attempted to stop a constituent of his from telling him about problems with a Caravan Park. In this case the legal firm was found to be in contempt even though their threat was an indirect threat against his constituent rather than a direct threat against the Member himself. That is because the communication was clearly linked to a proceeding in parliament and hence acted to prevent the Member from performing his function as part of the collective functioning of parliament. 16. The key tests in terms of the law of parliament is, therefore: (a) That the communication is linked to or connected with a proceeding in parliament. (b) That the communication is willingly entered into by both parties (c) That the communication is private other than any proceeding in parliament. 17. The need for protection of communications between elected representatives and other people is recognised outside the common law jurisdictions. For example Article 47 of the German Constitution gives members of the German Bundestag the right to refuse to give evidence concerning persons who have confided information in them in their capacity as Members of the Bundestag. Similarly documents cannot be seized and no evidence need be provided about any information held by members of the Bundestag. Many German regions also have such constitutional provisions. 18. I do not think there is any uncertainty about this. MPs need to be able to have private conversations with their constituents and others about proceedings in parliament otherwise they are unable to represent their constituents properly and parliament is undermined. Constituents need to have confidence in the privacy of communicating with their MP. Any monitoring of MPs conversations, therefore, undermines parliament collectively. I would be happy to attend the committee to give evidence if requested by the committee.
Written evidence submitted by the Clerk of the House and Chief Executive of the House of Commons, 7 October 2010 Introduction 1. On 8 September 2010, the Speaker informed the House that he had decided to grant precedence to a complaint from Chris Bryant, Member for Rhondda, relating to the hacking of mobile phones of honourable and Right honourable Members.3 2. The House approved Mr Bryant’s Motion on 9 September 2010, and ordered that the hacking of honourable and Right honourable Members’ mobile phones be referred to the Committee on Standards and Privileges.4 In the debate Mr Bryant said his complaint was that interception of mobile phone messages of Members, the tapping of their phones, the bugging of their conversations and interception of their e-mails or attempts to take such actions, amounted to contempts.5 2 Not printed 3 HC Deb 8 September 2010 vol 515 col 323 4 HC Deb 9 September 2010 vol 515 cols 478Ð93 5 Ibid c 478 cobber Pack: U PL: CWE1 [O] Processed: [30-03-2011 11:41] Job: 007634 Unit: PG03
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3. The Committee has asked me for a memorandum on whether, and if so in what circumstances, the hacking of Members’ mobile phones could amount to a contempt of Parliament.
Contempts in General 4. Generally speaking, any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any Member of the House in the discharge of his or her duty, or which has a tendency, directly or indirectly, to produce such results, may be treated as a contempt even though there is no precedent of the offence.6 5. As Erskine May goes on to explain, it is therefore impossible to list every act that might be considered to amount to a contempt, but the broad principle of not impeding or obstructing Members or Officers of the House in the discharge of their duties lies behind the House’s view of what is likely to be regarded as misconduct. Such misconduct ranges from disorderly behaviour by members of the public (such as creating disturbances in the galleries or at Committee meetings) to frustrating the work of Committees by a refusal to co-operate with them. Deliberately misleading a Committee in any way would amount to a serious contempt. 6. In respect of Members of the House, the acceptance of bribes or refusal to serve on committees have been regarded as contempts. Constructive contempts include reflections on individual Members, publication of false or perverted reports of debates and premature publication of committee proceedings. 7. Attempting to intimidate a Member in his or her parliamentary conduct by threats is also a contempt. Such contempts have ranged from threatening Members not to take part in proceedings of the House (including debates) to threatening Members with bad publicity on account of their action or other personal consequences if they raised matters in the House (for examples, see Annex 1). 8. Two important factors should be noted. The first is that not all activities of Members fall under the protection of privilege. By and large, Members’ communications with constituents are not part of proceedings in Parliament and would only fall within the ambit of privilege if they are closely related to such proceedings. Secondly, as noted above (in paragraph 4) the House may treat a matter as a contempt even though there is no precedent of the offence. This point may be significant in the context of modern technology where it is considered that it is being used in a new way that amounts to “obstructing” or “impeding”. 9. Contempts may be punishable by the House although in modern times the House has exercised its right to punish sparingly. I shall return to the matter of sanctions towards the end of my memorandum.
Interception of Members’ Communications 10. The Committee is asked to consider the unauthorised hacking of mobile phones used by Members of Parliament. It may be useful at this point to be reminded of the Wilson doctrine which applies to authorised telephone tapping. 11. The “Wilson doctrine” was set out in answer to questions in the House of Commons on 17 November 1966. The then Prime Minister, Rt Hon Harold Wilson, said that he had given instructions that there was to be no tapping of the telephones of Members of Parliament and that if there were a development which required a change of policy he would at such moment as was compatible with the security of the country make a statement in the House about it.7 The Wilson doctrine has been maintained under successive administrations. In 2006 Prime Minister Blair re-affirmed the doctrine despite changes in the legal procedures governing interceptions and the doctrine was confirmed by Prime Minister Brown in 2009.8
Precedents in Respect of Interception of Written Communications 12. There are few direct precedents on the unauthorised interception of written communications addressed to Members, since it is generally unlawful to interfere in a communication addressed to another: for example, under section 84 or the Postal Services Act 2000, a person commits an offence if, without reasonable excuse, he intentionally delays or opens a postal packet in the course of its transmission by post. Special statutory provision for members of Parliament had not been thought necessary. As far back as 1689, however, one can find the House insisting that breaking open letters directed to or sent from Members is a breach of privilege.9 13. The House of Commons Journal records two 18th century complaints about letters going astray. On 28 March 1727, a complaint was made to the House that several Post letters directed to Members of the House had been intercepted and taken out of the Boxes appointed for them at the Door of the House. In order to prevent any re-occurrence of this misconduct the House set out the duties of postal deliverers in Orders. Failure to comply with them would amount to a contempt.10 6 See Erskine May (23rd edition) p 128 7 HC Deb 17 November 1966 vol 736 cols 634Ð41 8 For a full account, see First Report of Session 2009Ð10 from the Committee on Issue of Privilege (Police searches on the Parliamentary Estate) HC 62, para 154 9 Colonel Copley, the Lieutenant Governor of Hull, had seized and broken open the Post Letters, including a letter from Edward Thompson MP, House of Commons Journal for 21 June and 13 August 1689 CJ vol 13 (1689 to 1702) p 191 and p 265 10 The texts of the Resolutions are set out in Annex 2. cobber Pack: U PL: CWE1 [E] Processed: [30-03-2011 11:41] Job: 007634 Unit: PG03
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14. In the following year, on 22 May 1728, another complaint was made to the House that several Post letters directed to Members of the House had been intercepted, or lost, or taken out of the boxes appointed for them at the door of the House. The Journal entry of the previous year (as above) was read and the House then passed very similar Orders to those from 1727 which thereafter became, first, Sessional and, later, Standing Orders of the House.
15. These Orders were made every Session shortly after the State Opening among the usual Sessional Orders, which also covered Elections, Witnesses, etc. from 21 January 1728/9 (the Journal date is 21 January 1728, from an era when the calendar year began on 26 March) until 1852.
16. On 25 February 1822 a Member (Mr James) raised as a matter of privilege interference by the prison authorities with correspondence, including drafts of Public Petitions, between a Member and a prisoner in Lancaster gaol. In the debate, Mr Secretary Peel moved the previous Question which was negatived (ie, no decision was taken by the House). What had been at issue in this case was whether parliamentary privilege could be over-ridden by prison authorities exercising their statutory powers. Mr Peel asserted that the House of Commons had never considered that it was exempt from the operation of the law and clearly recognised that, in cases where it might be necessary for a Secretary of State to order the opening of a letter, the privilege of the House of Commons was not reserved. The House would not claim any privilege which would interfere with the criminal justice of the country.11
17. The Select Committee on Standing Orders Revision of 1852 recommended in its Report of 21 June 1852 that a number of Resolutions and Sessional Orders, including the Sessional Order relating to Letters passed on 18 February 1852, be made Standing Orders of the House, which was done on 25 June 1852.12
18. The Standing Orders about Members’ letters were maintained in substantially the same form until the Select Committee on Procedure’s Report on Standing Orders Revision which recommended the repeal of the Standing Orders then numbered 144 to 146 as obsolete.13 The House agreed on 20 March 1997 that these three remaining Standing Orders relating to Letters be repealed with effect from the beginning of the 1997Ð98 Session.
19. The history of the Standing Orders thus demonstrates that for three and half centuries the House made provision “to prevent the intercepting or losing of letters directed to Members of this House”. The Committee may wish to take the view that the House should act, in the same spirit, to protect the security of messages sent or received by Members on their mobile phones.
Privilege Cases Involving Newspapers
20. There is a case of a newspaper apology for having deceitfully acted in the name of a Member. The Committee of Privileges stated (in the Aitken/Guardian cod fax case) that “it is a contempt of the House to purport to act in the name of a right honourable or honourable Member of the House without that Member’s authority”.14 In view of the apology submitted in that case to the Committee by The Guardian’s editor, no further action was taken.
21. In another privileges case involving a newspaper (cash for questions), the Committee of Privileges observed that “there can be circumstances in which the conduct of a particular newspaper or broadcasting organisation might be such as to undermine or obstruct Parliament in the performance of its functions, or actions by the media may place unwarrantable pressures upon Members in carrying out their duties to the House and their constituencies”.15 In the same Report, the Committee concluded that “the taking of clandestine recordings is manifestly a contempt of the House”.16
Convention Rights
22. While the unlawful interception of communications is subject to criminal and civil penalties, there is no specific provision in statute law aimed at protecting against interception of communications to or from Members of Parliament. Under Article 8 of the European Convention of Human Rights, a person has a right to respect for their private and family life, home and correspondence (emphasis added). The ECHR was adopted in 1950 by the Council of Europe, of which the UK was a founding member. Convention rights have been directly enforceable in UK courts since commencement of the Human Rights Act 1998. 11 HC Deb 25 February 1822 vol 6 cols 644–63 12 The texts of the Resolutions are set out in Annex 2. 13 First Report of Session 1996Ð97 from the Select Committee on Procedure, HC 95, 14 First Report of Session 1995Ð96 from the Committee of Privileges, Complaint concerning the alleged action of “The Guardian” newspaper in representing that a letter sent by it to the Ritz Hotel, Paris was sent in the name of a Member of this House,HC 161, para 6 15 First Report of Session 1994Ð95 from the Committee of Privileges, Complaint concerning an article in The Sunday Times of 10 July 1994 relating to the conduct of Members, HC351ÐI, para 9 16 HC 315ÐI, para 59 cobber Pack: U PL: CWE1 [O] Processed: [30-03-2011 11:41] Job: 007634 Unit: PG03
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Commonwealth Precedents 23. A brief summary of some recent Commonwealth precedents is given at Annex 3. While no example of specific legal provision to give additional or entrenched protection to communications of Members of Parliament over and above the law applicable to citizens generally has been found (and doubt has been expressed about the desirability of such a provision—in India, for example), the principle of Members being able to operate freely without interference has been asserted and electronic surveillance has been considered a grave contempt (British Columbia).
Current Matter: Decision on Contempt 24. The Committee needs to establish, in the first place, whether and by whom there has been unauthorised interception of Members’ mobile telephone communications. 25. If that fact is established, it is then for the Committee to consider whether such unauthorised interception amounts to a contempt. 26. My advice is that in reaching its decision, the Committee should consider the following questions: (a) Does such interception impede a Member in the performance of his or her duty? (b) What significance is there to a Member knowing or suspecting hacking? (ie how can an interception unknown to a Member impede his or her activity?) (c) Does “impeding” result because Members’ confidence in the confidentiality of communications with each other is undermined by the knowledge or suspicion of interception? (d) Does “impeding” result because Members’ confidence in pursuing parliamentary activities (such as tabling questions) with staff of the House and advisers is undermined by the knowledge or suspicion of interception? (e) Does “impeding” result because Members trust with constituents in pursuing parliamentary activities (such as tabling questions, raising matters in adjournment, debates etc) is compromised by the knowledge or suspicion of interception? (f) Does interception interfere with a Member’s right to private life under ECHR Article 8? 27. On the allied question of whether a witness or witnesses deliberately misled a Committee of the House when giving evidence on this matter in 2009, I can advise the Committee that if that fact or facts are established, a contempt would have been committed which may be punishable.17
General Consideration 28. The Committee may also wish to consider whether Members should be protected in a way different from any other citizen who is the victim of hacking.
Sanctions 29. The House of Commons has not imposed a fine since 1666.18 The House of Commons has the power to direct the Speaker to issue a warrant to the Serjeant at Arms, and if appropriate to a governor of a prison, to commit a person into custody. 30. Where the offence is not so grave as to warrant the committal of the offender, he may be brought to the Bar of the House by the Serjeant at Arms and there reprimanded by the Speaker in the name and by the authority of the House. The last time anyone was summoned to Bar of the House was on 24 January 1957 when the Editor of the Sunday Express, apologised for some remarks he had printed about Members and petrol rationing in the aftermath of Suez. In 1968 a Member of the House was reprimanded standing in his place in the House for leaking a select committee report.19 31. Since the 1960s, it has been the practice of the House to exercise its penal jurisdiction as sparingly as possible and when it was essential to do so in order to provide reasonable protection for the House, its Members or officers from improper obstruction or attempt at or threat of obstruction causing, or likely to cause, substantial interference with the performance of their respective functions.20 32. When a prima facie contempt is referred to the Committee on Standards and Privileges, it falls to the Committee to exercise its judgement in recommending to the House what action, if any, should be taken in the particular case referred.
A UK Parliamentary Privileges Act? 33. In the course of its deliberations, the Committee may wish to consider the question of legislation on parliamentary privilege which the Government has indicated will be initiated in the form of a draft bill brought 17 See Erskine May (23rd edition) p 132 and p 725 18 ibid p 161 19 HC Deb 24 July 1968 vol 769 cols 587–666 20 See Erskine May (23rd edition) p 167 cobber Pack: U PL: CWE1 [E] Processed: [30-03-2011 11:41] Job: 007634 Unit: PG03
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to the House. The question of the desirability of incorporating into statute law matters which for centuries Parliament has dealt with under its own authority raises an acute dilemma. By embedding privilege in statute, Parliament will be putting matters of interpretation of that statute into the jurisdiction of the courts; by not doing so, what may be seen as “gradual encroachment” by the courts into what is widely seen as an ill-defined area may continue. On the other hand, it should be recognised that it is already the case that privilege is partially based on statute (in the Bill of Rights 1689) and that the courts have long taken the view that they have a locus in defining the boundaries of privilege. Considering the matter in 1999, the Joint Committee on Parliamentary Privilege came to the conclusion that an Act was desirable.21
34. One of the Joint Committee’s main arguments in favour of such an Act (in addition to its important drawing together of privilege issues including a codification of contempt) would be that it would make it easier for both Members of Parliament and the Electorate to understand the meaning and importance of parliamentary privilege by setting out an “accessible code”.22 A number of further arguments in support of a statute have been advanced including the need to redefine boundaries between Parliament and the courts in the light of increased interventions by the House in proceedings to prevent, for example, the use of select committee evidence as the basis of litigation. A similar increase in cases of this sort in Australia led to the passing of their Parliamentary Privileges Act 1987.
35. With the imminent prospect of legislation which will affect permanently the operation of Parliament, it is more than ever necessary to make clear what is the nature of parliamentary privilege. Parliamentary privilege is not about special treatment or advantages for MPs; rather, it is vitally necessary to enable Parliament to conduct its legitimate business without interference. This is exemplified by, but not limited to, the privilege of freedom of speech in parliamentary proceedings so that (for example) words spoken in the House and its Committees, by witnesses as well as by Members, may not be used in evidence against them. Privilege is by no means synonymous with privacy: the words spoken in the Chamber and recorded in Hansard’s Official Report are privileged but such proceedings are entirely open to the public to attend, they are broadcast on radio and television, they are available as audio-visual recordings and they are published in written form in print and on the Internet. There is also the area of the Houses’ internal jurisdiction or cognisance which enables them to regulate their own proceedings without outside interference.
36. It is important to note that the protection of parliamentary freedom is recognised throughout jurisdictions where parliaments operate with some independence from Governments. The Bill of Rights 1689 and the practices of our Parliament in matters of privilege are reflected throughout Commonwealth parliaments and legislatures. In the landmark case of A v the UK (in which the matter of a Member’s right to free speech was the subject of an action in the European Court of Human Rights), the UK was supported by a large number of Member States of the European Union, all of whom have privilege protections in place.23
37. After careful consideration of the matter over many years, my own view is that the time has come for a Privileges Act. However it should be recognised that such an Act is a significant change from our tradition and is, in a sense, a move toward a written constitution.
Annex 1
ERSKINE MAY ON CONTEMPTS
To attempt to intimidate a Member in his or her parliamentary conduct by threats is a contempt. Actions of this character which have been proceeded against include: — impugning the conduct of Members and threatening them with further exposure if they took part in debates; — threatening to communicate with Member’s constituents to the effect that, if they did not reply to a questionnaire, they should be considered as not objecting to certain sports; — publishing posters containing a threat regarding the voting of Members in a forthcoming debate; — informing Members that to vote for a particular bill would be treated as treasonable by a future administration; — summoning a Member to a disciplinary meeting of his trade union in consequence of a vote given in the House — threatening to end investment by a public corporation in a Member’s constituency if the Member persisted in making speeches along the lines of those in a preceding debate.
Erskine May (23rd edition) p 146 21 Report of Session 1998Ð99 from the Joint Committee on Parliamentary Privilege, HL 43 HC 214 22 Ibid, paras 378Ð85 23 See Erskine May (23rd edition) p 199 cobber Pack: U PL: CWE1 [O] Processed: [30-03-2011 11:41] Job: 007634 Unit: PG03
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Annex 2 RESOLUTIONS OF THE HOUSE RELATING TO LETTERS Orders from the Journal of the House of Commons, 28 March 1727 vol 20 (1722 to 1727 p 820) THAT, to prevent the Intercepting of Letters belonging to the Members of the House for the future, the Person appointed to bring them from the General Post-office do constantly attend Two Hours, at the least, after the Rising of the House, at the Place appointed for the Delivery of the said Letters; and take care, during his Stay there, to deliver the same to the several Members to whom they shall be directed, and no other. THAT the said Officer do, upon his going away, give such Letters as shall remain undelivered to One of the Servants belonging to the House; who shall take care to deliver the said Letters to the several Members to whom they are directed, their known Servants, or to such Persons who shall produce a Note under the Hands of the Members who shall send for the same. THAT the said Orders be sent to the Commissioners for executing the Office of Postmaster-General.
Wording of the Sessional Resolution of 18 February 1852 (last Sessional Order before conversion into Standing Orders) LETTERS THAT, to prevent the intercepting or losing of Letters directed to Members of this House, the person appointed to bring Letters from the General Post-office to this House, or some other person to be appointed by the Postmaster-General, do for the future, every day during the Session of Parliament, Sundays excepted, constantly attend, from Ten of the clock in the morning till Seven in the afternoon, at the Place appointed for the Delivery of the said Letters, and take care during his stay there, to deliver the same to the several Members to whom they shall be directed, or to their known Servant or Servants, or other persons bringing Notes under the hands of the Members sending for the same. THAT the said Officer do, upon his going away, lock up such Letters as should remain undelivered; and that no Letter be delivered but within the hours aforesaid. THAT the said Orders be sent to the Postmaster-General THAT, when any Letter or Packet directed to this House shall come to Mr. Speaker, he do open the same; and acquaint the House, at their next sitting, with the contents thereof, if proper to be communicated to this House.
Standing Orders Nos. 144 to 146 (as at their repeal in 1997) That to prevent the intercepting or losing of Letters directed to Members of this House the Postmaster of the House or other persons appointed by the Post Office shall attend daily (Sundays excepted) for the delivery and re-direction of all letters arriving in course of post and shall take care during their stay there, to deliver the same to the several Members to whom they shall be directed or to their known servant or servants, or other persons bringing notes under the names of the Members sending for the same. That the said officers do, upon their going away, lock up such Letters as shall be remain undelivered. That, when any Letter or Packet directed to this House, shall come to Mr Speaker, he do open the same; and acquaint the House, at their next sitting, with the contents thereof, if proper to be communicated to the House.
Annex 3 SOME COMMONWEALTH PRECEDENTS In the Australian Capital Territory (2002) the perpetrator responsible for diverting a Member’s e-mail was not found. In British Columbia (1980) the Legislative Assembly adopted a Report from its Special Committee of Privileges which had concluded that an authorized interception (wiretap) of a Member’s communications by the Royal Canadian Mounted Police amounted to a breach of privilege and a contempt of the House. According to the Special Committee on Privileges, “parliamentary democracies flourish only when member and constituent can communicate freely, openly and candidly without having the spectre of interception . . . interfering with such communications”. In British Columbia (1990), the Speaker stated that it was imperative “that it be universally recognized and remembered that electronic surveillance, even although it may not be in breach of other laws, is a grave contempt of this House”. In India (1960), the Speaker declined to give precedence to a Member’s complaint of phone-tapping: “except in the discharge of their duties, for which they have some privileges here, Members ought not to claim any special privileges outside which an ordinary citizen does not have”. cobber Pack: U PL: CWE1 [E] Processed: [30-03-2011 11:41] Job: 007634 Unit: PG03
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In Victoria (1988), the Committee found that no breach of privilege had occurred or contempt committed in relation to a Member’s opening and dissemination of a letter from the Leader of the Opposition to a third person. In Western Australia (1993) the Legislative Assembly did not approve a motion to establish a Select Committee of Privilege to inquire into whether the presence of a listening device in the house of a Member constituted a threat to the free exercise of the parliamentary duties of that Member or any other Member of the House. In a previous (1988) case, a Select Committee of Privilege which was established to enquire into a Member’s allegation that Government Members had been involved in a conspiracy to have the facilities, offices or homes of certain people in Perth bugged resulted in censure of the Member himself for a serious breach of privilege.
Written evidence submitted by the Rt hon Lord Nicholls of Birkenhead, 24 October 2010 HACKING MEMBERS’ MOBILE PHONES AND CONTEMPT OF PARLIAMENT 1. I agree with the memorandum submitted by the Clerk of the House of Commons dated 7 October 2010. I have little to add. 2. Parliamentary privilege consists of the rights and immunities possessed by the two Houses of Parliament and their members and officers for the purpose of enabling them to carry out their parliamentary duties effectively. Shortly stated, contempt of Parliament comprises conduct which improperly interferes with performance of their parliamentary duties by either House or their members or officers. In other words, improper interference with a right protected by parliamentary privilege is contempt of Parliament. 3. The question on which I have been asked to express an opinion is whether and in what circumstances hacking of MPs’ mobile phones could be contempt of Parliament. The short answer is that, as a matter of principle, hacking of members’ mobile phones is capable of comprising contempt. Whether hacking does comprise contempt depends upon whether the impugned conduct satisfies the description of contempt set out above. This calls for consideration of the facts in each case. More definitive guidance cannot be given until the Committee has heard evidence and decided, for instance, in what respects and to what extent hacking of which complaint is made has interfered with the Member’s discharge of his parliamentary duties.
Written evidence submitted by the Lord Lester of Herne Hill QC,24 3 November 2010 Introductory 1. On 9 September 2010, the House of Commons decided, at the request of Mr Chris Bryant MP, to refer to the Committee on Standards and Privileges (“the Committee”) the matter of “hacking” of the mobile phones of Members. This memorandum is prepared at the Committee’s invitation to submit evidence on whether and if so in what circumstances hacking of MPs’ telephones could be a contempt of Parliament and therefore subject to the penal jurisdiction of each House. For that purpose I have been provided with a copy of the evidence already submitted to the Committee by the Clerk of the House of Commons, Dr Malcolm Jack. 2. “Hacking” in current usage most commonly refers to gaining unauthorised access to computer resources, such as databases or websites. As Dr Jack notes, during the debate, Mr Bryant MP explained that his complaint is that the interception of mobile phone messages of Members, the tapping of their phones, the bugging of their conversations and interception of their e-mails or attempts to take such actions, amount to a punishable contempt of Parliament. In other words, Mr Bryant MP’s complaint is not confined to hacking into mobile phones, and it would be difficult to address the issues by treating mobile phones as a special category different from other devices. 3. Like Dr Jack, for the purpose of my evidence, I will treat the question as involving the interception of electronic and other communications to or from Members of Parliament, including the collection and storage of traffic details of all internet and mobile use. 4. It is unclear whether what is proposed by Mr Bryant MP would seek to distinguish between information concerning the private lives of MPs and their parliamentary activities, or any information; and it is unclear whether his proposal would make exceptions to this extension of the penal powers of Parliament, for example, for the interception of communications when investigating terrorist or other serious crimes or to expose corrupt practices, or for the Home Office project to track the email, internet and mobile phone use of everyone in the UK. The Committee may wish to clarify this. 5. A central question posed by Dr Jack is whether Members should be protected in a way different from any other citizen who is the victim of “hacking”. A similar issue arose when attempts were made during the 24 The author was leading counsel in Pepper v Hart [1993] AC 593 (HL) and for the intervening Equality and Human Rights Commission in R(Age UK) v Secretary of State [2009] EWHC 2336 (Admin), in which the courts rejected claims for Parliamentary privilege to prevent their having recourse to Hansard and the reports of Parliamentary committees. cobber Pack: U PL: CWE1 [O] Processed: [30-03-2011 11:41] Job: 007634 Unit: PG03
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previous Parliament to exempt from the Freedom of Information Act both Houses of Parliament and MPs’ correspondence.25 One reason why these attempts were controversial was because they seemed designed, at least in part, to serve the interests of individual MPs rather than the public interest. As Dr Jack observes (paragraph 35), parliamentary privilege is “not about special treatment or advantages for MPs”, and is “by no means synonymous with privacy”. 6. Another central question raised by Mr Bryant MP’s proposal is whether a member of the public should be made subject to the double jeopardy of liability under the general criminal law and civil law and also under offences against MPs and Parliament, to be fashioned by Parliament and to be tried and punished by a parliamentary committee. That question involves issues of compatibility with the requirements of fairness prescribed by Articles 6 and 7 of the European Convention on Human Rights (“the Convention”) and by the common law.
Summary of Opinion 7. In my opinion: (i) Current criminal and civil law makes the unauthorised interception and the misuse of electronic and other communication of information and opinions unlawful, including “hacking” into mobile telephones or other devices, as well as correspondence by letter or email. (ii) Parliamentary privilege does not extend to such abuses. (iii) Current criminal and civil law provides adequate sanctions and redress for the individual (whether a Member of Parliament or of the public) against wrongful interception or misuse. (iv) Only the core activities of Parliament should be covered by parliamentary privilege. In the words of the Report of the Joint Committee on Parliamentary Privilege (“the Joint Committee”),26 “the privileged areas must be so closely and directly connected with proceedings in Parliament that intervention by the courts would be inconsistent with Parliament’s sovereignty as a legislative and deliberative assembly”. (v) In the context of criminal charges, parliamentary privilege should be narrowly construed so as not to duplicate criminal law and trespass upon the role of the Judiciary in interpreting and applying ordinary law. (vi) It would be both wrong in principle and unnecessary in practice to extend parliamentary privilege as proposed. (vii) It would be difficult to define an extension of parliamentary privilege in a way which avoided the twin vices of vagueness (in breach of the principle of legal certainty) and over-breadth (in breach of the principle of proportionality). (viii) Such an extension would risk creating conflicts and misunderstandings between Parliament and the courts, in breach of the constitutional principle of the separation of powers between the judicial and political branches of government. (ix) It would also be inconsistent with the principle of equality before the law and the equal protection of the law. (x) It would in addition risk resulting in conflicts with the UK’s obligations under the Convention.
Background 8. The basic features of parliamentary privilege are conveniently summarised in Halsbury’s Laws of England, (5th ed 2010), Vol. 78, title “Parliament” [citations omitted] (“Halsbury’s laws”). 9. Both Houses of Parliament have long claimed the exclusive cognisance of their own proceedings. This claim involves the exclusion of review by any court of the application of the procedure and practice of either House to the business before it. The courts recognise that it would be impracticable and undesirable to conduct an inquiry concerning the effect or effectiveness of procedures in the High Court of Parliament, or to conduct an inquiry concerning whether in any particular case those procedures were effectively followed: Halsbury’s Laws, paragraph 1081. 10. The House of Commons and the House of Lords claim for their Members, both individually and collectively, certain rights and privileges which are necessary to each House and without which they could not discharge their functions. These rights and privileges exceed those possessed by other bodies and individuals. In 1705, the House of Lords resolved that neither House had the power to create any new privilege. When this was communicated to the Commons, that House agreed. Each House is the guardian of its own privileges and claims to be the sole judge of any matter which in any way impinges upon them: Halsbury’s Laws, paragraph 1076. 11. The courts will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges. On the other hand, the 25 By the Freedom of Information (Amendment) Bill 2006Ð07, introduced by Mr David Maclean MP, and passed by the House of Commons, but not proceeded with in the House of Lords. 26 Session 1998Ð99, HL Paper 43ÐI, HC 214ÐI, at para 247. cobber Pack: U PL: CWE1 [E] Processed: [30-03-2011 11:41] Job: 007634 Unit: PG03
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courts take the view that it is for them to determine whether a parliamentary claim to privilege in a particular case falls within that area where what is claimed is necessary to the discharge of its parliamentary functions or internal to one or other of the Houses, in which case parliamentary jurisdiction is exclusive, or whether it falls outside that area, especially if the rights of third parties are involved, where the courts would expect to form their own judgments: Halsbury’s Laws, paragraph 1078. 12. The power of both Houses to punish for contempt is a general power similar to that possessed by the superior courts of law and is not restricted to the punishment of breaches of their acknowledged privileges. Any act or omission which obstructs or impedes either House in the performance of its functions, or which obstructs or impedes any Member or officer of the House in the discharge of his duty, or which has a tendency to produce such a result, may be treated as a contempt even if there is no precedent for the offence. In deciding whether or not to proceed against a person in regard to whom a charge of contempt has been made, the House of Commons has particular regard to the resolution of February 1978 that such action should be taken only when the House is satisfied that to do so is essential in the interests of reasonable protection against obstruction causing or likely to cause substantial interference with its functions: (Halsbury’s Laws, paragraph 1083). 13. The Committee of Privileges of the House of Commons has advised that parliamentary privilege does not protect those who may volunteer information of public concern to Members in their personal capacity. However, the position of someone providing information to a Member in connection with the exercise of his or her parliamentary duties has in some instances been regarded as enjoying qualified privilege at common law: Halsbury’s Laws, paragraph 1089.
The Adequacy of Criminal and Civil Law Safeguards 14. As Dr Jack notes (paragraph 22), the unlawful interception of communications is subject to criminal and civil penalties. The following summary of the current legal position does not claim to be comprehensive. 15. As regards criminal liability, section 1 of the Regulation of Investigatory Powers Act 2000 (“the RIPA”) makes it an offence intentionally and without lawful authority to intercept in any place in the United Kingdom any communication in the course of its transmission by means of a public postal service or a public or private telecommunication system.27 Section 55 of the Data Protection Act 1998 makes it an offence unlawfully to obtain or misuse personal data. Section 84 of the Postal Services Act 2000 makes it an offence without reasonable excuse intentionally to interfere with mail. 16. As regards civil liability, the right to be “let alone” has long been recognised by English courts, as has the right to respect for private life, home and correspondence. The misuse or unauthorised disclosure of private information is a cause of action which the English courts have developed out of the common law action for breach of confidence in order to give full effect to Articles 8 and 10 of the Convention: see eg, Campbell v MGN Ltd [2004] 2 AC 457 (HL), at [14]Ð[17] per Lord Nicholls; Tchenguiz v Imerman [2010] 2 FLR 814, at [65], per Lord Neuberger. These Articles are now “the very content of the domestic tort which the English court has to enforce”, and the principles are structured by reference to Strasbourg case law: McKennitt v Ash [2008] QB 73, at [11] and [40]. 17. It has not been suggested, nor is it the case, that these criminal and civil sanctions are insufficient to deal with instances of wrongful interference with electronic and other communication of information and opinions as between members of the public or as between Members of Parliament with one another or others. It is therefore difficult to understand why it would be appropriate or necessary to extend parliamentary privilege to cover wrongful interference.
Equal Protection of the Law 18. In their judgment in R v Chaytor and Others [2010] EWCA Crim 1910, now pending on appeal to the Supreme Court, the Court of Appeal (Criminal Division), consisting of the Lord Chief Justice, the Master of the Rolls, and the President of the Queen’s Bench Division, observed (paragraphs 41Ð42) that: “The principle of equality before the law, and the application of the criminal law to all citizens identically remain fundamental to the rule of law itself…. We are all equally subject to the law. It must be applied equally to every citizen, including Members of Parliament. Any asserted immunities or exemptions against criminal proceedings asserted on their behalf must therefore be justified by reference to some further, over- arching principle, and they can only begin to come into contemplation in the context of the performance by Parliament of its core constitutional functions.” The observations were similar to those of Saunders J in his judgment at first instance in which he stated (paragraph 18) that: “The principle that all men are equal before the law is an important one and should be observed unless there is good reason why it should not apply. To do otherwise would risk bringing both the Courts and Parliament into disrepute and diminish confidence in the criminal justice system. Parliament does not have 27 In its judgment of 18 May 2010 in Kennedy v United Kingdom, the European Court of Human Rights decided that there was no evidence of any significant shortcomings in the application and operation of the surveillance regime under the RIPA in terms of the safeguards needed to protect the right to respect for personal privacy under Article 8 of the Convention. cobber Pack: U PL: CWE1 [O] Processed: [30-03-2011 11:41] Job: 007634 Unit: PG03
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an effective procedure for investigating and deciding whether a member is guilty or not guilty of criminal charges (see paragraph 146 of the Joint Committee Report).” 19. The principle of equality without discrimination is protected both by the common law and by Article 14 of the Convention. Were the penal powers of Parliament to be extended in the manner proposed, and were they applied to try and punish a member of the public, there would be the risk of a complaint to the European Court of Human Rights of discriminatory treatment in breach of Article 14 read with other provisions of the Convention, and it would be for the Government, on behalf of Parliament, to seek to demonstrate that the difference of treatment was objectively and reasonably justifiable.
Access to Justice and Procedural Fairness 20. The Joint Committee commented in paragraph 146 of its report that “Parliament has long since ceased to have the judicial features of a High Court of Parliament. Any procedure … would need to include five key stages: investigation; deciding whether to prosecute; presentation of the alleged allegations (prosecution) reaching a decision (trial); and punishment (sentence). In varying degrees neither House is properly equipped to carry out any of these functions…. Existing procedures do not have the in-built safeguards provided by a court of law.” 21. Article 6 of the Convention guarantees the right of access to an independent and impartial court or tribunal in the determination of a criminal charge or civil rights and obligations. The disciplinary and penal powers of Parliament, covered by parliamentary privilege, are not amenable to an appeal to or judicial review by the courts. Since the Houses of Parliament and parliamentary committees are not independent and impartial courts or tribunals, they cannot satisfy the requirements of Article 6 of the Convention, and, in the absence of an appeal or judicial review, any “prosecution”, “trial” or “sentence” would be unlikely to pass muster in the European Court of Human Rights.
The Principles of Legal Certainty and Proportionality 22. The principle of legal certainty is a general principle of European law. It requires that that the law is accessible and that there are basic procedural guarantees of fairness. The principle of proportionality is another general principle of European law which requires a restriction on a Convention right or freedom to be proportionate to the legitimate aim pursued. There is a serious risk that the proposed extension of parliamentary privilege would fall foul of one or other of these principles, or of both.
Convention Obligations and Jurisprudence 23. Although Parliament is exempt from liability for breaches of the Convention rights as a matter of UK law (Human Rights Act 1998, section 6 (3)), Parliament, like the Executive and the Judiciary, is bound in international law to comply with Convention obligations. 24. In a series of judgments, the European Court of Human Rights has considered whether the operation of Parliamentary privilege in various European countries has occurred in circumstances which have violated Convention rights. In only one of them (Demicoli v Malta) did the case concern the imposition of criminal liability on a third party. The other three cases are of interest in showing the need to demonstrate that the nature and operation of parliamentary immunity requires objective justification if it is to pass muster under Convention law. 25. In Demicoli v Malta (Application 13057/87) (1991) 14 EHRR 47, the editor of a political satirical magazine published an article criticising the performance of two Members of the Maltese House of Representatives during a parliamentary debate: amongst other things, the Minister was described as a “clown”. The House found the editor guilty of contempt and he was fined. The European Court decided that the proceedings against him constituted a criminal charge even though parliamentary privilege was not formally classified as a crime under Maltese law. Since the applicant was not a Member of the House, the contempt proceedings did not relate to the internal regulation and orderly functioning of the House; they were akin to criminal proceedings rather than disciplinary in character. The Court found that the impartiality of the House as an adjudicating body had been open to doubt because the two Members whose behaviour had been criticised in the impugned article and who had raised the question of breach of privilege took part in the proceedings throughout. The Court decided that there had been a breach of Article 6 on the facts, without having to decide whether the House of Representatives could be considered to be a court or to satisfy the Convention requirements as to independence and impartiality. 26. In A v United Kingdom (Application 35373/97), Judgment of 17 December 2003, the applicant alleged that the absolute parliamentary immunity which prevented her from taking legal action in respect of statements made about her in Parliament violated her right of access to a court under Article 6 (1) of the Convention, and her right to privacy under Article 8, as well as discriminating against her contrary to Article 14. The Governments of eight States intervened in support of their various systems of protection of Parliamentary immunity.28 The Court concluded that the parliamentary immunity enjoyed by the MP in the particular case pursued the legitimate aims of protecting free speech in Parliament and maintaining the separation of powers 28 Austria, Belgium, The Netherlands, Finland, France, Ireland, Italy and Norway. cobber Pack: U PL: CWE1 [E] Processed: [30-03-2011 11:41] Job: 007634 Unit: PG03
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between the legislature and the judiciary. The Court then assessed the proportionality of the immunity enjoyed by the MP, noting that it was absolute in nature and applied to both criminal and civil proceedings. It explained that the broader an immunity the more compelling must be the justification for it to be compatible with the Convention. It found that a rule of parliamentary immunity which is consistent with and reflects generally recognised rules within signatory States, the Council of Europe and the European Union, cannot in principle be regarded as imposing s disproportionate interference with the right of access to a court embodied in Article 6 (1) of the Convention. The Court referred to the fact that the absolute immunity enjoyed by MPs is designed to protect the interests of Parliament as a whole as opposed to those of individual MPs, illustrated by the fact that the immunity does not apply outside Parliament. It concluded that there had been no violation of Article 6 (1) or any other Convention right.
27. In De Jorio v Italy (Application No. 73936/01) (2005) 40 EHRR 42, a candidate in a Parliamentary election lodged a complaint against a political opponent who was a Senator, accusing him of defamation. In a newspaper interview, the Senator had stated that the applicant had been expelled from the Retirement Party and had been implicated in the activities of a secret Masonic organisation. Criminal proceedings were instituted against the Senator, which the applicant joined as a civil party. He brought a civil action for compensation for the injury suffered as a result of the interview. The Constitution provides that Members of Parliament shall not be required to account for the opinions they express or the votes they cast in the exercise of their functions. The Senate declared that since the Senator’s statements had been expressed in performance of his duties as a Member of Parliament, he enjoyed immunity under the Constitution. On that basis, the criminal proceedings against him were discontinued and the civil action was dismissed. The European Court decided that the immunity granted to the Senator had infringed his right of access to the courts.
28. In Cordova v Italy (No.1) (Application No. 40877/98) (2005) 40 EHRR 43, the applicant, as public prosecutor, investigated someone who had dealings with Francesco Cossiga, a former President of Italy who was now a “life senator”. Mr Cossiga sent the applicant sarcastic letters and some toys. The applicant considered that his honour and reputation had been injured and lodged a criminal complaint against Mr Cossiga, who was prosecuted for insulting a public official. The applicant jointed the proceedings as a civil party. However, the Senate considered that the acts of which Mr Cossiga was accused were covered by immunity under the Constitution. The applicant challenged the Senate’s resolution but the District Court ruled that the Senate’s decision was neither procedurally flawed nor manifestly unreasonable. The Court noted that freedom of expression was especially important for an elected representative of the people. In a democracy, the Parliament was the essential forum for political debate and there had to be very weighty reasons to justify interfering with the freedom of expression exercised there. Accordingly, parliamentary immunity could not in principle be regarded as imposing a disproportionate restriction on the right of access to a court. However, Mr Cossiga’s behaviour was not connected with the exercise of parliamentary functions in their strict sense. The lack of any clear connection with parliamentary activity required the Court to adopt a narrow interpretation of the concept of proportionality, particularly where the restrictions on the right of access to the courts stemmed from the resolution of a political body. There had therefore been a violation of the applicant’s Article 6 rights.
A Parliamentary Privileges Act?
29. Dr Jack suggests that the Committee may wish to consider the question of legislation on parliamentary privilege which the Government has indicated will be initiated in the form of a draft Bill. I agree with him that the time has come for a Privileges Act. However, this raises issues well beyond the scope of the Committee’s present inquiry, and which will no doubt be considered when a draft Bill is published.
Final Observations
30. In his memorandum to the Joint Select Committee, the then Lord Chief Justice, Lord Bingham, advanced the following three principles:29 “(1) all citizens of a democracy should, generally speaking, be equally subject to the ordinary law of the land. But (2) some derogations from this principle are necessary if holders of certain public offices are to perform their public functions to the greatest possible public advantage. However, (3) these derogations should not exceed what is truly necessary for performance of the public functions in question.”
Such derogations should be compatible with the Convention rights of all citizens, including MPs. For the reasons summarised above, in my opinion, the proposal by Mr Chris Bryant MP exceeds what is necessary for the public functions of Members of Parliament.
29 HL Paper 43ÐII, HC 214ÐII, 30 March 1999, 108. cobber Pack: U PL: CWE1 [O] Processed: [30-03-2011 11:41] Job: 007634 Unit: PG03
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Written evidence submitted by the Lord Pannick of Radlett QC, 8 November 2010 Introduction 1. I have been asked to submit a memorandum of written evidence on whether, and if so in what circumstances, the hacking of MPs’ mobile phones could be a contempt of Parliament. 2. In my opinion, the hacking of a Member’s mobile phone could be a contempt as tending to obstruct or impede the House of Commons in the performance of its functions if it could be said that MPs are adversely affected in their activities in and concerning the House of Commons, whether or not the communications relate to the “duties” of the MP.
The Meaning of Contempt 3. Erskine May (23rd edition, 2004) states at p.128 (referring to the Report of the Select Committee on the Official Secrets Act 1938Ð1939): “Generally speaking, any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any Member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results, may be treated as a contempt even though there is no precedent of the offence”. 4. This makes clear that there are two types of contempt: (1) Acts which obstruct or impede either House of Parliament in the performance of its functions, or have a tendency to do so. (2) Acts which obstruct or impede any Member or officer of either House in the discharge of his duty, or which have a tendency to do so.
The Scope of the MP’s “Duty” for the Purposes of Contempt 5. With regard to the duties of a Member, Erskine May states at p.143 that: “Not all responsibilities currently assumed by Members fall within this definition. Correspondence with constituents or official bodies, for example, and the provision of information sought by Members on matters of public concern will very often, depending on the circumstances of the case, fall outside the scope of ‘proceedings in Parliament’ ... against which a claim of privilege will be measured ...”. 6. In 1958 (see Erskine May p.113) the House rejected the opinion of the Committee of Privileges that a particular letter written by a member to a Minister relating to a nationalised industry was a proceeding in Parliament. 7. The 1999 Report of The Joint Committee on Parliamentary Privilege considered the subject of Members’ correspondence and observed at paragraphs 107Ð112 that a Member’s correspondence with a constituent is not privileged and it would be unwise to extend privilege to cover a Member’s correspondence with a Minister. 8. In the recent case of R v Morley, the Court of Appeal concluded that, in relation to the activities of an MP, parliamentary privilege is confined to speaking in Parliament, participation in Committees and activities very closely connected to those core functions. The Court of Appeal therefore held that privilege does not apply to the contents of the form in which an MP claims expenses so as to prevent a criminal prosecution for alleged false accounting. The case has been argued in the Supreme Court (on 18Ð19 October) and judgment is awaited. (I represented the Crown). 9. In the light of these precedents, it is unlikely that hacking into an MP’s mobile phone calls concerns his or her “duties”, although it is possible that the Committee has evidence that this is so.
Impeding the Performance of the Functions of the House 10. As explained at paragraphs 3Ð4 above, it seems well-established that the scope of contempt is not confined to an interference with activities which are part of an MP’s duties or otherwise part of “parliamentary proceedings” for the purposes of privilege. 11. The memorandum submitted by the Clerk to the House refers (at paragraphs 16Ð19) to precedents concerning the House protecting letters to MPs. 12. Erskine May (at pp.142Ð143) gives further examples of contempt powers applying more widely than proceedings in Parliament. For example: (1) Disorderly conduct within the precincts of Parliament. (2) Serving or executing civil or criminal process within the precincts of either House while the House is sitting without obtaining the leave of the House. (3) Representing oneself to be a parliamentary agent without possessing the necessary qualifications. cobber Pack: U PL: CWE1 [E] Processed: [30-03-2011 11:41] Job: 007634 Unit: PG03
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13. It is therefore open to the House to conclude that the act of hacking into the mobile phone of an MP is a contempt if and to the extent that it tended to obstruct or impede the House of Commons in the performance of its general functions. For example, the Committee may conclude that: (1) such conduct has interfered with the privacy of communications between MPs and others, the communications relating to the Member’s general role as an MP, (2) or such conduct has made it more difficult for MPs to carry out their activities as such, by deterring them from using a convenient form of communication, in each case in or concerning the House of Commons, whether or not the activities fall within the scope of parliamentary proceedings for the purposes of privilege.
Written evidence submitted from James Price QC, 9 November 2010 Summary (1) There does not appear to be any modern authority on the question of possible contempt of Parliament by hacking into MPs’ telephones, or interception of their other communications. (2) The general law, both civil and criminal, provides full protection for citizens, including MPs, against telephone hacking. (3) The threat of interception of communications with constituents for the purpose of representing their interests in Parliament, and communications with others with whom a member consults for purposes of contributing to debate or to proceedings in committees, tends to inhibit free communication of information, particularly private or confidential information, needed for these purposes. Interception of such communications would, on this basis, be contempt of Parliament. (4) Interception of other MPs’ communications, private or business, would not be contempt. Specifically, interception of communications on constituency business, for example assisting constituents with problems not involving any parliamentary business, would not as such be contempt. 1. The question on which the Committee has asked for evidence is: whether and if so in what circumstances hacking of MPs’ telephones could be a contempt of Parliament. The views expressed below, and in the summary above, are simply my opinion, which I think is what the Committee wants, and I have not reiterated throughout that I am making suggestions and submissions—I have just expressed some conclusions for the Committee to consider. 2. As regards the established principles and precedents, there is little that I can add to the memorandum submitted by the Clerk of the House: there does not appear to be any precedent concerning hacking of Members’ telephones. The closest analogy lies in the steps taken by the House of Commons, until the repeal of the relevant Standing Orders in 1967, to protect letters directed to Members from interception or loss. But those Orders provided administrative arrangements within the precincts of the House for the reception, custody and safe-keeping of letters, rather than any guidance as to whether or when interception of letters by persons outside the House would constitute a contempt of Parliament, a point on which there does not appear to be any modern authority. 3. The matter has therefore to be approached by considering and applying the principle underlying contempt of Parliament, having in mind the extent to which telecommunications are protected from interception by the general law.
The General Law on Interception of Communications 4. The general law provides citizens, including MPs, with full protection against telephone hacking. This is well illustrated by the notorious News of the World cases, both criminal and civil. Mr Mulcaire, the investigator employed by at least one News of the World journalist to intercept voicemail messages left on the mobile telephones of, in particular, Princes William and Harry, was prosecuted for unlawful interception of communications, contrary to section 1 (1) of the Regulation of Investigatory Powers Act 2000, which provides: “It shall be an offence for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of: (a) a public postal service; or (b) a public telecommunication system.” Mr Goodman, the News of the World’s royal correspondent, was convicted of conspiring with Mr Mulcaire to intercept communications. 5. The civil actions, in which it has been reported that the publishers of the News of the World paid enormous damages to more than one victim of phone hacking, were based on the law of breach of confidence, and invasion of privacy / misuse of private information. Breach of confidence protects from misuse or unauthorised cobber Pack: U PL: CWE1 [O] Processed: [30-03-2011 11:41] Job: 007634 Unit: PG03
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disclosure a very wide range of confidential information, from state or trade secrets and other commercially confidential information, to personal information such as information about medical conditions or treatment, finances, and other family or personal confidences. The law of privacy has been developed from that of breach of confidence under the spur of Article 8 of the European Convention on Human Rights, para. 1 of which provides: “Everyone has the right to respect for his private and family life, his home and his correspondence.”
In the context of phone hacking, the protection for a person’s correspondence is particularly relevant, as emphasised by the Clerk of the House in para. 22 of his memorandum. Lord Nicholls of Birkenhead said in Campbell v MGN Ltd. [2004] 2 AC 457 at [21] that the essential touchstone of private life is whether in respect of the disclosed facts—or the facts whose disclosure is threatened—the person in question had a reasonable expectation of privacy. If so, the law protects the privacy of the information, unless there are countervailing rights or interests, in particular any public interest in disclosure, which outweigh the entitlement to privacy. The essential contest is usually between the degree of intrusion into private life which disclosure would cause or has caused, and the extent to which disclosure or publication is a matter of proper public concern.
6. On this basis, a Member of Parliament whose telephone is hacked into, will have a remedy in the civil law, for an injunction and/or damages, or an account of profits, provided that the information being discussed or communicated is confidential or private. Information which is in the public domain, such as that day’s football scores, will obviously not be protected. Nor will trivia, but where personal or domestic information is concerned, people legitimately expect protection even for minor details which might otherwise be characterised as trivial. In the criminal law, any communication in course of transmission is protected. The voicemail message whose interception by Goodman and Mulcaire led to their prosecution was a joke message left by Prince William for Prince Harry concerning his girlfriend.
7. Given the understandable reluctance of the Houses of Parliament to impose penalties for contempt of Parliament, the primary protection of MPs from hacking into their mobile telephones is likely to lie in the criminal and civil law. But contempt of Parliament may nevertheless be applicable, and may not always be redundant.
The General Principle Underlying Contempt of Parliament
8. This is well set out in para. 4 of the Clerk of the House’s memorandum. The defining characteristic of contempt of Parliament is obstruction of either House in the performance of its functions. Obstruction of members in the performance of their duties is naturally liable to lead to obstruction of the House in the performance of its functions, and hence be contempt. But it is contempt because it obstructs the House, not because members have any special protection for their performance of their duties or otherwise. Hence, obstruction of a member in the performance of his/her constituency duties is not as such contempt of Parliament: see para. 8 of the Clerk of the House’s memorandum, an especially important point in regard to the question under consideration.
9. Because anything that obstructs either House in the performance of its functions is contempt, contempt comes in many widely different forms, it can never be reduced to a closed set of categories, and new forms will arise as new methods of obstructing Parliament become possible through technological and other developments. These points are obviously critical for drafting, if contempt is to be codified in statute.
10. As to whether hacking into a member’s mobile telephone could be contempt, the answer depends on looking at what is needed for the unhindered conduct of parliamentary business. A key part of a member’s parliamentary duty is representing the interests of his/her constituents in the House. To do that effectively, he/ she must be able to communicate freely with constituents, and in the course of such communications, they may well need to discuss confidential or private matters. Another key part is (obviously) contribution to debate and to proceedings in committees, and to do that effectively, the member will need to consult with interest and pressure groups, other interested parties, experts and so forth, and such consultations may well involve confidential or private matters.
11. In short, communication with constituents and others, for purposes connected with parliamentary business, will commonly need to take place in private. The threat of intrusion into such communication is liable to inhibit the imparting of information which a member may need to represent his constituents effectively in Parliament, and to contribute effectively to debate or to proceedings in committees. In such cases, intrusion is contempt. It is not an answer to this that, if the member and the other parties to a particular communication are ignorant of the intrusion, they will not be inhibited. The inhibition arises from the threat of intrusion, and it follows that the conduct of parliamentary business requires that such communications be protected from intrusion.
12. Nor is it an answer that telecommunications are fully protected by the criminal law, and the civil law of confidentiality and privacy, so that (it might be said) there is no need for communications to be protected by the law of contempt on top. That misses the point: if intrusion has the tendency to inhibit communication cobber Pack: U PL: CWE1 [E] Processed: [30-03-2011 11:41] Job: 007634 Unit: PG03
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which is needed for the effective conduct of parliamentary business, it is contempt to intrude into such communication. If intrusion is effectively deterred by the general law, it will not take place, and there will be no contempt. But if it does take place, it will be contempt. 13. These views accord with that of the British Columbia Special Committee on Privileges quoted in Annex 3 to the Clerk of the House’s memorandum: “parliamentary democracies flourish only when member and constituent can communicate freely, openly and candidly without having the spectre of interception … interfering with such communications”, provided that this is not understood as widening the scope of contempt beyond protection of the work of each House. Nor are they at all at odds with the view of the Indian Speaker quoted in the 4th para. of Annex 3—he appears to have been dealing with a complaint of phone-tapping outside the scope of a member’s parliamentary duties. 14. These views seem also generally to accord with the cases cited in Erskine May on pages 152Ð3 under the heading “Constituents and others”. Clearly, it is a somewhat nice question whether and in what circumstances a communication to a MP is a proceeding in Parliament, so as to confer the protection of privilege on its author: see in particular the two contrasting Queensland cases cited in note 1 on p.153. But that seems to be a rather different question from that under consideration, which is not whether communications to a member on his mobile phone may be proceedings in Parliament, but whether intrusion which tends to inhibit communication needed for the effective conduct of parliamentary business is contempt. 15. The question of hacking into members’ mobile phones seems to lie rather at the boundary of the law as to contempt of Parliament, as suggested by the fact that it has not previously proved necessary to resolve the question, either in the context of telecommunications or postal communications. It is a matter for the Committee whether the question has any significant practical consequences, given the full protection provided by the general law for members’ telecommunications.
Written evidence submitted by Professor Anthony Bradley30, 20 January 2011 1. Before preparing this memorandum, I have had the benefit of reading the written and oral evidence given to the Committee by the Clerk of the House, Dr Malcolm Jack, and the papers by John Hemming MP, Lord Lester QC, Lord Nicholls, Lord Pannick QC and James Price QC.
Contempt of Parliament—Some General Comments 2. On the general question of whether the hacking of Members’ phones could be a contempt of Parliament, there is little that I can add to the evidence from the Clerk of the House. I am in no doubt that, depending on the circumstances in which the phones of Members have been intercepted, and assuming that this was undertaken without statutory or common law authority, the hacking is capable of being a contempt of Parliament. The Committee will be familiar with the position as stated in Erskine May: “Generally speaking, any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any Member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results, may be treated as a contempt even though there is no precedent of the offence”.31 3. The authority of the House to treat abusive or threatening conduct aimed at Members as a contempt exists today, even though in 1978 the House resolved to exercise its penal jurisdiction as sparingly as possible, and only when satisfied that it was essential to do so.32 The existence of the contempt power of the House has given rise to what has been called the freedom of the House from improper interference and molestation, whether affecting the whole House or its Members or officers. But the question of what conduct by the media or other outside interests may be regarded as improper interference and molestation is not a constant. The House and its Members are required to have thicker skins today than in the past. In 1935, for instance, the League for the Prohibition of Cruel Sports was held to have committed a gross breach of the privileges of the House when its secretary sent a questionnaire to Members, saying “If we do not hear from you, we shall feel justified in letting your constituents know that you have no objection to cruel sports”.33 4. Molestation of Arthur Lewis MP was held to have occurred when in 1956 the Daily Graphic attacked him for proposing in a parliamentary question that some money allocated for relief in Hungary should be given to Egyptian victims of British shelling in Suez. The paper advised its 700,000 readers to phone Mr Lewis at Edmonton 6113 and tell him that this was “the most crazy, mixed-up question of the year”. Many abusive calls were received by him until he changed his phone number. This was treated as a serious breach of privilege 30 Barrister, of the Inner Temple; Emeritus Professor of Constitutional Law, University of Edinburgh; Research Fellow, Institute of European and Comparative Law, University of Oxford. 31 Erskine May, 23rd edn, 2004, p 128. 32 Erskine May, p 128. 33 Hansard, HC Deb, 15 May 1935, c 1545.In 1946 a campaigning association committed a breach of privilege when it published posters outside Parliament saying that the names of MPs voting for bread rationing ‘will be published here as public enemies and dictators’ (HC 181, 1945Ð46). cobber Pack: U PL: CWE1 [O] Processed: [30-03-2011 11:41] Job: 007634 Unit: PG03
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but, bearing in mind “that molestation has not before taken a similar form”, and that the editor was contrite, the Committee of Privileges recommended no further action.34
5. Discussion of such cases has often not distinguished between conduct that forms a breach of the privileges of the House and conduct that is a contempt of the House. Often the distinction does not matter. However, the notion of contempt is not dependant upon it being shown that there has been an interference with the established privileges of the House. In my opinion, a deliberate (or reckless) effort by a section of the media or an inquiry agency to hack into Members’ mobile phones is capable of being treated as a contempt, whether or not it amounts to a breach of the “freedom of speech and proceedings in Parliament” guaranteed by Article 9 of the Bill of Rights. The point has significance in the present context in that, as confirmed by the Joint Committee on Parliamentary Privilege in 1999, communications between a constituent and a Member are considered to fall outside “proceedings in Parliament” for the purposes of Article 9.35 Just as the notion of contempt of Parliament must reflect changes in current opinion regarding the language of popular debate, so (in my opinion) it must also reflect what is today the well-established duty of an MP to represent his or her constituents, both as individuals and as a community. The nature of this duty today is persuasively described in Mr Hemming’s paper to the Committee. This means that conduct that is intended and likely to impede or obstruct communications between an MP and his or her constituents could be treated as a contempt of Parliament; this would include telephone hacking that was aimed at breaking into such communications.
6. That said, the mere fact that an MP’s phone calls have been hacked is not enough to indicate that a contempt has occurred; the circumstances may indicate that the status of the MP is irrelevant (eg if the hacker’s motive is to get private information about the MP’s partner, who is a leading model or a pop-star). Where there is a connection between the motives of the hacker and the parliamentary duties of the MP, the Clerk of the House (in para 26 of his written evidence) has set out a number of relevant factors that will need to be considered. To these may have to be added the question of whether the hacker might be able to show a plausible purpose for the hacking that could show it to have been in the public interest (eg if the hacker’s aim was to discover additional evidence to show that the MPs were not acting in the public interest but were pursuing their own criminal aims).
Practical Factors
7. Even when a strong element of impeding or interfering with a Member’s parliamentary duties can be shown, certain practical matters need to be taken into account before the House takes action on the basis of contempt. If the hacking is already covered by the criminal law, the House will not be able to conduct an investigation into the facts without taking account of any police investigation that is in progress. The Supreme Court in its recent decision in R v Chaytor has held that the House should delay taking action so long as the police investigation and subsequent proceedings are pending.36 Lord Phillips, giving the leading judgment, emphasised that the House does not assert exclusive jurisdiction over criminal conduct, and that the House authorities are expected to, and do, co-operate with the police. The Chaytor case was of course concerned with what was alleged to be criminal conduct by Members in making false claims for expenses. In this situation of overlapping jurisdiction, Lord Rodger made clear in a concurring judgment that, assuming that the House gives priority to the procedures of criminal law, it retains a jurisdiction to deal with criminal conduct in so far as this may constitute a contempt of Parliament.
8. Chaytor was not concerned with a situation in which the alleged criminals are members of the public outside the House, but in principle the situation here is the same, except that this diminishes the range of sanctions that the House may impose. Expulsion from the House may be an appropriately serious sanction for a serving MP who is in severe contempt of the House, even if the criminal sentence does not lead to his or her disqualification. The range of sanctions available against non-Members is limited. One further comment on Chaytor is that it was not concerned with a situation in which the alleged contempt involves no breach of the criminal law (as for instance in the case of Arthur Lewis MP and the Daily Graphic mentioned above). In such a situation, there is no overlapping jurisdiction and thus no need for the House to delay taking action while a criminal investigation occurs.
Is an extension of parliamentary privilege involved if phone hacking is treated as a contempt?
9. As I have already stated, conduct that is in contempt of Parliament is a notion that is not confined to the established privileges of Parliament, although one would expect that the contempt could be shown to have an effect upon those privileges. I have read Lord Lester’s memorandum to the Committee with much interest, but the general thrust of his argument is, it appears, that to treat phone hacking as a contempt would involve creating a new privilege. If that were the case, it would be a conclusive argument against any contempt-based inquiry being held. But a finding that a new form of molestation or interference with the activities of the House and its Members has arisen does not involve the creation of a new privilege (and cf Lord Lester’s memorandum, para 12, first sentence). 34 HC 27, 1956Ð57. 35 This decision by the House was made in the London Electricity Board case of 1957Ð58. 36 R v Chaytor [2010] UKSC 52 (reasons given on 1 December 2010) cobber Pack: U PL: CWE1 [E] Processed: [30-03-2011 11:41] Job: 007634 Unit: PG03
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Implications of the European Convention on Human Rights 10. Lord Lester provides a valuable analysis of the Strasbourg Court’s decisions as they may affect parliamentary privilege. To this I have little to add, except to mention the case of Kart v Turkey, decided by the European Court of Human Rights on 3 December 2009. The facts were unusual, in that under Turkish law an MP not only has freedom of speech in the legislature and in the course of duties connected with that, but is also immune from criminal prosecution while an MP, except if the legislature votes to lift the immunity. Kart, an MP, failed to get the legislature to lift the immunity in order that, as he wished, he might be tried on charges relating to a time before he was elected. He complained that this was an improper interference with his right to a trial on criminal charges under Article 6/1 ECHR. By a majority of 13Ð4, the Grand Chamber of the Court rejected his complaint. The Court upheld the Turkish regime of immunity for MPs, even though this was broader than in many European countries: the Court said that “the regulation of parliamentary immunity belongs to the realm of parliamentary law, in which a wide margin of appreciation is left to member States” (para 82; also para 96). It was not for the Court “to rule in an abstract manner on the constitutional definition or the scope of the protection the States accord their MPs” (para 87); the issue was whether in the circumstances the immunity that applied to Kart amounted to “a legitimate and proportionate limitation” of his right to be tried by a court under Article 6/1. In the Court’s view, the aim of the immunity of MPs was “to guarantee the smooth functioning and integrity of Parliament” (para 91). The decision by the Parliament to lift or not lift immunity “is one of the ways in which Parliament exercises its autonomy”. The decisions by parliamentary bodies were “political decisions by nature and not court decisions, so they cannot be expected to satisfy the same criteria as court decisions when it comes to giving reasons” (para 101). On the basis of this approach to the immunity from prosecution that applies to Turkish MPs, the Strasbourg Court is willing to give weight to the autonomy of Parliament and its ability to perform its constitutional duties, and accepts that there is no single pattern of parliamentary law within European countries. It must not be assumed that the contempt jurisdiction of the House of Commons will in all respects fall foul of the Strasbourg jurisprudence.
Would the courts accept the House’s decisions on matters of contempt? 11. Nevertheless, since the Committee has raised the question of whether telephone hacking may constitute a contempt of Parliament, for two main reasons the Committee may need to consider the broader question of whether there is still a role for contempt of Parliament. These are (1) the present scope of judicial review within public law; and (2) the challenge that European human rights law presents to national traditions, such that the sovereignty of the Westminster Parliament itself may be challenged in Strasbourg on Convention grounds. The Joint Committee on Parliamentary Privilege in 1999 examined the disciplinary and penal powers of Parliament. It found that there was no need to retain “abusive contempt” (that is, words or action by any person which the House considers disrespectful, insulting or defamatory) as a separate head of contempt of Parliament (para 270), and it recommended that contempt of Parliament should be codified in statute, the reason for this method of codification being “to ensure the courts are bound by the chosen definition” (para 315). So far as the members of each House were concerned, the Committee took it as axiomatic that each House should remain responsible for disciplining its own members. “It is inconceivable that power to suspend or expel a member of either House should be exercisable by the courts or some other outside body” (para 275). 12. The Committee gave separate consideration to contempts committed by non-members of Parliament. It held that where the conduct was a criminal offence, the criminal law should take its course, and this would normally suffice. “But unless a residual power to punish exists, the obligation not to obstruct will be little more than a pious aspiration” (para 302); and, “to be effective as a last resort, the punishments themselves must be meaningful” (para 303). The Committee recommended that there should be power to fine non-members but for practical reasons that the power to do so should be vested in the courts (para 306) and, further, that there should be a statutory codification of contempt (para 315). 13. The recommendations of the Joint Committee are much more in line with opinion today than the ancient case-law on the power of the Commons to punish non-members for contempt. That rather tangled body of case-law led FW Maitland to say “Thus it would seem that the House has a legal power to turn into a contempt just what it pleases”.37 In brief, the issue turned on the attitude of the courts in deciding whether to grant the writ of habeas corpus in the event of the House committing a person for contempt. The result of the old case- law was that the courts could not review the reason for commitment when the return to the writ of habeas corpus merely stated that committal was for contempt of the House; but, as Lord Ellenborough said, if the reason stated for the commitment was for some matter “which could by no reasonable intendment be considered as a contempt” but was “a ground of commitment palpably arbitrary, unjust, and contrary to every principle of natural justice”, then the court must look at it “and act upon it as justice may require”.38 Since this particular situation of judicial review arises from a decision by the House to detain someone for contempt, it is unlikely to arise today. Should a sanction for contempt falling short of detention be imposed by the House today, it is likely that the courts would respect the decisions of the House in matters relating to its undoubted privileges and internal proceedings—subject to the retention of a reserve power which a court might be willing to exercise in an extreme case. But it is rather unlikely that the court would today regard itself as unable to intervene merely because the resolution of the House did not state the nature of the contempt. 37 Constitutional History of England (1908), p 378. 38 Burdett v Abbott (1811) 14 East 1, 150; applied in Case of the Sheriff of Middlesex (1840) 11 A & E 273. And see DL Keir and FH Lawson, Cases in Constitutional Law, 5th edn, 1967, pp 262Ð87. cobber Pack: U PL: CWE1 [O] Processed: [30-03-2011 11:41] Job: 007634 Unit: PG03
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Conclusion 14. (a) In principle, the hacking of Members’ phones may constitute a contempt of Parliament provided that the purpose of the hacking can be shown to be related to the functioning of Parliament and the performance by Members of their duties. (b) The notion of a contempt of Parliament is open-ended and the range of conduct that it covers is likely to change over time. Conduct may be held to be a contempt even if there is no precedent for doing so in a particular fact-situation. But a past precedent for treating certain conduct as a contempt may have lost its authority if public and political opinion has changed in relevant respects. (c) A contempt may be committed even if the conduct in question does not involve a breach of an existing privilege of Parliament. (d) Where the hacking involves a breach of the criminal law, any investigation by the House will have to be delayed until police and the criminal courts have completed their work. However, in such a case the House has an overlapping jurisdiction that it may exercise in so far as the conduct constitutes a contempt of Parliament (R v Chaytor). (e) The exercise of the contempt jurisdiction by the House will need to take account of any limiting factors derived from the European Convention on Human Rights and the Strasbourg case-law. That case-law respects the wide margin of appreciation that states enjoy in this respect (Kart v Turkey), especially in relation to the disciplinary powers that the House may exercise over its Members. Convention issues are more likely to arise should the House wish to exercise penal sanctions (eg fining) over persons who are not Members of the House.
Letter from Chris Bryant MP to the Chair of the Committee, 27 January 2011 I thought it might be helpful if I wrote to explain my belief that the hacking of an MP’s phone should be considered a breach of privilege and a constructive contempt of Parliament. Let me explain first of all what I mean by “phone hacking”. I include: tapping or listening to a phone conversation; obtaining access to phone messages that have already been listened to or texts that have already been read; intercepting messages or texts; illegally obtaining a PIN; fraudulently obtaining other information stored on a phone such as other people’s telephone numbers. My argument has two limbs: namely that “phone hacking” clearly breaches the House’s constant desire to defend the freedom of MPs to speak without fear of molestation, intimidation or obstruction; and that MPs’ telephone messages should attract the same partial privilege as MPs’ correspondence, when they relate to proceedings in Parliament. So, the Bill of Rights 1689 states that “the Freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament”. This is the founding principle of parliamentary privilege which has been interpreted in succeeding generations by successive Committees of Privilege and by the House as a whole. It means not only that Members are free to speak without fear of being sued for libel, but that all the proceedings of the House attract the same privilege, including evidence given before a select committee. On occasion the Commons has felt the need to strengthen the protection of that freedom of speech in other ways. Thus in 1702 the House resolved that “to print or publish any book or libels reflecting on the proceedings of the House or on any Member for or relating to his service therein is a high violation of its rights and privileges”. Similarly the Commons resolved on 12 April 1733 “that the assaulting, insulting or menacing any Member of this House, in his coming to or going from the House, or upon the account of his behaviour in Parliament, is an high infringement of the privilege of this House, a most outrageous and dangerous violation of the rights of Parliament and an high crime and misdemeanour”. Again on 6 June 1780 the Commons resolved “that it is a gross breach of the privilege of this House for any person to obstruct and insult the Members of this House in the coming to or going from this House and to endeavour to compel Members by force to declare themselves in favour of or against any proposition then depending or expected to be brought before the House”. Both MPs and others have been punished for such actions, whether they occurred on the precincts or not and whether the molestation was merely verbal or not. In addition in 1956 there were two incidents which led to newspaper editors being summoned to the bar of the House and forced to apologise. The first related to a Sunday Express editorial that had condemned MPs for exempting themselves from the fuel rationing that was in place following the Suez crisis. The Committee of Privileges resolved that this attack was “calculated to diminish the respect due to the House”. In the second incident the Sunday Graphic had published Arthur Lewis MP’s phone number and urged its readers to ring him and complain about a motion he had tabled. They did so in their thousands before the Post Office could change his number. The Committee resolved that “the principle that to molest a Member of Parliament on account of his conduct in Parliament is a breach of privilege is well established... In our view the principle clearly applies to the circumstances in this case”. cobber Pack: U PL: CWE1 [E] Processed: [30-03-2011 11:41] Job: 007634 Unit: PG03
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In addition premature publication or disclosure of committee proceedings, such as by leaking a draft of a committee report, has been considered a breach of privilege and a constructive contempt of Parliament. In 1837 the House resolved that “the evidence taken by any select committee of this House and the documents presented to such a committee and which have not been reported to the House ought not to be published by any Member of such committee, or by any other person” and where it has been possible to identify such a perpetrator, the House has taken action. In July 1999 Ernie Ross MP was forced to resign from the Foreign Affairs select committee for having leaked a draft report and was suspended from the House for ten days. Two other Members have since also been suspended for leaking draft reports.
My argument is that this historic determination by the House to insist that MPs’ freedom of speech needs robust protection should be applied to the question of “phone hacking” because any attempt to hack into an MP’s phone, and in particular to intercept a phone message or a text, would be a clear instance of molesting an MP. After all, the only reason one could imagine anyone wanting to hack into an MP’s phone would be to molest, intimidate or obstruct them in their activity as an MP. I can think of no clearer contravention of the motions of the House already cited.
Moreover many have argued that the privilege attached to proceedings in parliament, to the speeches made and evidence taken in parliament, should also apply to all MPs’ correspondence. A case was brought in 1958 that related to George Strauss MP. He had written to a minister making allegations about a utilities company. The question arose of whether his correspondence could be considered libellous. He argued that it could not, because it was merely something that he was writing to a Minister that he was subsequently going to say in Parliament. The House decided at the time that he did not have absolute privilege in relation to that correspondence. In fact if he had made the comment in Parliament first and then referred to it in his correspondence he would have been completely covered.
However, when the issue was considered by Lord Nicholls’ Committee in 1999, the view was firmly expressed that, although Members would not have the advantage of absolute privilege in their correspondence, they would none the less have two defences in law: first, that if their letter was very closely connected with the proceedings of this House, they would have a defence; secondly, that where there is no intention of malice, there would be a much more secure defence. That is why I believe that there is a partial privilege attached to MPs’ correspondence, when it relates to proceedings in parliament. In other words, if a Member wrote to a constituent or another member, whether manually or electronically, about proceedings in parliament, for instance suggesting an amendment, he would be able to rely on parliamentary privilege to protect him from prosecution in a court.
I would argue that an email, a text message or indeed a phone message should similarly be covered by a partial privilege, in relation to the degree to which it related to proceedings in Parliament.
Indeed a definition of “proceedings in Parliament” was suggested by the 1970 Joint Committee, as follows: 1. (1) For the purpose of the defence of absolute privilege in an action or prosecution for defamation the expression “proceedings in Parliament” shall without prejudice to the generality thereof include: (a) all things said done or written by a Member or by any Officer of either House of Parliament or by any person ordered or authorised to attend before such House, in or in the presence of such House and in the course of a sitting of such House, and for the purpose of the business being or about to be transacted, wherever such sitting may be held and whether or not it be held in the presence of strangers to such House: provided that for the purpose aforesaid the expression “House” shall be deemed to include any Committee sub-Committee or other group or body of Members or Members and Officers of either House of Parliament appointed by or with the authority of such House for the purpose of carrying out any of the functions of or of representing such House; and (b) all things said done or written between Members or between Members and Officers of either House of Parliament or between Members and Ministers of the Crown for the purpose of enabling any Member or any such Officer to carry out his functions as such provided that publication thereof be not wider than is reasonably necessary for that purpose.
Such a definition has not been enacted but would, I believe, be an accurate summary of the common law definition. Since it expressly includes “things said” as well as written I feel confident that that would include phone messages, for instance between members or between a Member and a Clerk, relating to amendments to be tabled.
Of course many MPs’ phone messages have nothing to do with proceedings in parliament, but some do. That is why I believe that the House should consider “phone hacking” to be a breach of privilege both because it is a form of intimidation and obstruction which offends the Bill of Rights and because there might be the interception of messages that related to proceedings in parliament.
For these reasons I very much hope that your committee will make it clear that hacking of an MP’s phone is a constructive contempt of Parliament and that all the correspondence, whether in hard or electronic copy is covered by privilege when it relates to proceedings in parliament as defined above. cobber Pack: U PL: CWE1 [O] Processed: [30-03-2011 11:41] Job: 007634 Unit: PG03
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Incidentally, I would also point out that the Nicholls Report of 1999 has still not seen any action. I hope the Committee might consider calling for a new Parliamentary Privileges Act to clear up some of the extant anomalies.
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