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Privilege: Hacking of Members' Mobile Phones 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 4 Privilege: Hacking of Members’ mobile phones 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 Privilege: Hacking of Members’ mobile phones 5 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.
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