Privilege: John Hemming and Withers LLP - Standards and Privileges Committee Contents

Privilege: John Hemming and Withers LLP

1. Introduction

1.  On 14 January, the House agreed to refer to this Committee a complaint by the Member for Birmingham, Yardley (John Hemming) that an e-mail dated 4 August 2009 from a firm of solicitors, Withers LLP, sought to intimidate him in his Parliamentary conduct, and that this was a contempt of the House.[1]

2.  We subsequently received written evidence from Mr Hemming, from Withers LLP and from the Law Society. We also received a memorandum from the Clerk of the House. The evidence is published with this Report.

2. Background and precedents

3.  The Clerk of the House has advised us that:

Any action or omission which interferes or appears to interfere with either House in the performance of its duties may be treated as a contempt.[2]

Among others, an attempt to intimidate a Member in his or her parliamentary conduct by threats is also a contempt.

The Clerk's memorandum also describes the sanctions that have been imposed on those who have been found to be in contempt of the House.[3]

4.  The most recent precedent is provided by the Report from the Committee of Privileges in Session 1981-82.[4] In that case, a firm of solicitors wrote to a Member, inviting him to take "appropriate steps" in connection with a speech made by him in the House, failing which the firm of solicitors would seek to obtain from a third party increased damages for its client.

5.  The firm of solicitors apologised by telegram to Mr Speaker on the same day as the matter was referred.[5] In its Report, the Committee recognised that:

in view of the wording of the letter, Mr Speaker had no alternative but to enable the matter to be brought before the House.

It concluded that:

however ineffective, the words used have a tendency ... to produce such results as may be treated as a contempt of the House. But in accordance with the House's expressed opinion that its penal jurisdiction should be used as sparingly as possible and in view of the immediate apology offered by the writer of the letter, [the Committee] recommend no further action be taken.[6]

3. The sequence of events

6.  We are concerned solely with the matter referred to us by the House, which is the complaint that Withers LLP have been in contempt of the House. Events which form the background to that matter are no concern of ours, and we make no comment on them. They are documented in the evidence that has been submitted to this inquiry and is published with the Report.

7.  On 3 August 2009, in the course of a series of e-mail exchanges that had commenced on 30 July, John Hemming MP informed Withers LLP that he intended to make a speech in the House in which he would refer to "behaviour" of one of the firm's clients which, in his view, was "a spoiling tactic" and amounted to "bullying tactics."[7]

8.  On 4 August, in another e-mail, Withers LLP sought an undertaking from Mr Hemming not to repeat in Parliament the allegations concerning their client. Mr Hemming was informed that in the absence of such an undertaking, Withers LLP's client would have "no alternative but to issue proceedings" in respect of the statements he had already made.[8]

9.  In a further e-mail, sent on 11 August, Withers LLP informed Mr Hemming that:

you, and any other Liberal Democrats involved in the publication of the offending leaflet, can either settle with our client or be sued for defamation and malicious falsehood. Part of the settlement package, as is normal, would be an assurance that you, and any others involved, would not repeat the offending material, whether in Parliament or elsewhere. It is a matter for you, whether you settle or continue your campaign.[9]

10.  In several communications with Withers LLP, Mr Hemming declined to give the undertaking sought, and informed Withers LLP that he would seek to raise their behaviour as a matter relating to privilege when the House returned from the Summer recess. Mr Hemming raised the matter privately with the House authorities during the recess and submitted a formal complaint to Mr Speaker on 28 October. At this stage, Mr Speaker reserved his position and asked the Clerk of the House to write to Withers LLP.[10]

11.  The Clerk of the House wrote to Withers LLP on 3 November, referring to the e-mail of 4 August and informing them that "the seeking of such an undertaking might well be regarded by the House as a contempt."[11] The Clerk stated that the purpose of his letter was:

to remind you of the correct position on the freedom of speech in the House of Commons, so that Withers LLP may in future avoid the risk of appearing to commit a prima facie contempt of the House by seeking to constrain a Member in relation to his participation in parliamentary proceedings and threatening adverse consequences if such a constraint is not accepted by the Member.

12.  Withers LLP replied to this letter on 20 November. In their letter, Withers LLP referred to Mr Hemming's e-mail to them of 3 August 2009, stating that:

This was Mr Hemming's response to our client's perfectly legitimate exercise of his right to protect his reputation against defamatory statements made by Mr Hemming outside of Parliament and in respect of which he had quite properly, in the normal way, requested undertakings not to repeat. It is in the course of these events that my response of 4 August 2009 to which you refer should be seen. I hope that you will see from my email to Mr Hemming of 11 August 2009 ... that it is clear that neither my client, I nor my firm were acting contrary to Article IX of the Bill or Rights 1689 or committing contempt of the House of Commons.[12]

As the Clerk of the House has pointed out, Withers LLP did not in their letter of 20 November retract the threat they had made to Mr Hemming.[13]

13.  On 2 December, the Clerk advised Mr Speaker that, as Withers LLP had not apologised, Mr Hemming's request should be considered afresh. Mr Hemming made a revised application on 16 December. After consulting the Clerk and Speaker's Counsel, Mr Speaker agreed on 12 January to allow precedence to a motion from Mr Hemming to refer the matter to this Committee and announced his decision in the House the following day.[14]

14.  Withers LLP wrote to Mr Speaker immediately before the debate on 14 January, expressing concern that the matter was being debated "without any notice to us" and asserting that "Mr Hemming's allegation that we were seeking to stifle a debate in Parliament, is entirely without foundation."[15] On 14 January, the House agreed to refer the matter to this Committee, without dissent. Mr Speaker then forwarded to us the correspondence he had received from Withers LLP.

4. The Committee's inquiry

15.  We met on 15 January and agreed to seek written evidence from Mr Hemming, from Withers LLP and from the Clerk of the House.

16.  We noted press reports that Withers LLP had issued a statement, part of which was reported in the following terms:

We believe that we have acted entirely properly and professionally in asserting our client's rights and are confident that this will be proved to the committee.[16]

17.  In a memorandum of evidence dated 15 January, Mr Hemming referred to the situation between him and Withers LLP and its client as "a form of Mexican standoff." He explained this as follows:

A threat of litigation had been formally made. It has been made clear that the litigant does not want a speech to be made in parliament as part of settlement. However, no proceedings have been issued, but nor has the threat been removed.[17]

Mr Hemming also helpfully provided us with a series of e-mails and with other correspondence.[18]

18.  Withers LLP wrote to us on 25 January, as follows:

On Friday evening, I attended a consultation with Leading Counsel at which he reviewed with me both the law, the e-mail of which complaint is made and the surrounding context.

In the light of that advice, I am now satisfied that my stance hitherto in relation to the third paragraph of my e-mail of 4 August 2009 to Mr Hemming was mistaken. I accept that it was wrong to seek in that paragraph to make the settlement of a possible libel action in relation to a leaflet published outside Parliament conditional on an undertaking from Mr Hemming restricting what he might say in Parliament. Accordingly, I would like unreservedly to apologise to the House and to Mr Hemming.

I hope that the House will accept that I did not intend any improper interference in their procedures and was acting in the best interests of my client, as I then perceived them. I emphasise that the fault is mine and not that of Mr Knight Adams.[19]

19.  On 26 January, we received further evidence from Mr Hemming in the form of a "commentary on parliamentary law and other cases."[20] Mr Hemming suggested in this memorandum that the matter referred to this Committee has "a number of elements". These he defined as:

a)  The blatant contempt [of] making threats relating directly to speaking in the House on numerous occasions.

b)  The linking of proceedings outside the House with a proposed proceeding in the House also on numerous occasions.

c)  The attempt to make an MP pay for the costs of discussing a matter of privilege.[21]

In Mr Hemming's view, a) and c) above "are straightforward contempts."[22] Mr Hemming suggested that b) is "more complex" but,

the fact that the threat of external proceedings directly linked to proceedings in the House has been made makes the matter clearly one of contempt.[23]

20.  Mr Hemming also proposed changes to the procedures of the House for raising matters of privilege and sent us summary information on a number of cases, which, in his view, should have been considered for referral to this Committee.

21.  The Clerk of the House told us in his memorandum that in his judgment, the e-mail to Mr Hemming from Withers LLP of 11 August:

can only be understood as meaning that, if Mr Hemming did not give an undertaking which extended to his speech in Parliament, he would be sued for defamation and malicious falsehood. It therefore amounted to an attempt to intimidate a Member in his parliamentary conduct.

The Clerk invited the Committee to conclude that:

Withers, on receiving the warning letter of 3 November, should have at once withdrawn their request for an undertaking from Mr Hemming, contained in their e-mail of 4 August, not to raise matters in the House and by failing to do so have been in contempt.

22.  We received a further letter from Withers LLP dated 1 February, in which the firm sought to explain its actions in a way which, it suggested, did not detract from the earlier apology.[24] The letter set out Withers LLP's interpretation of the sequence of events and referred to "an outright threat" by Mr Hemming in his e-mail of 3 August to raise their client's alleged misconduct in the House. The letter continued:

My response of 4 August 2009 ... was prompted by my perception that an undertaking not to repeat the libel outside Parliament would be worthless to my client if the allegations were repeated, and indeed expanded on, by Mr Hemming inside Parliament. However, as my letter of apology makes clear, I fully accept that I was wrong in that email to make settlement of my client's libel complaint in any way conditional on any undertaking from Mr Hemming as to what he might, or might not, say in the House.[25]

23.  Also on 1 February, we received evidence from the President of the Law Society, drawing attention to what the Society considers can be a conflict between freedom of speech in Parliament and protection against defamation. The Society suggested that, if seeking an undertaking from a Member not to make or repeat statements in Parliament breaches Parliamentary privilege, it may be more likely that actions which would otherwise be settled will need to go to court. The Society invited us to consider the wider question of the use made of privilege.[26]

24.  At a meeting on 2 February, we decided we had sufficient evidence to prepare our Report to the House.

5. Conclusion

25.  Both Mr Hemming and the Law Society have invited us to range more widely than the narrow matter referred to us by the House. The Standing Order under which this Committee is constituted precludes that. But even were this not the case, it would be wrong in the light of proceedings now pending in the courts for us to comment on wider aspects of privilege. We wish to emphasise, therefore, that the conclusion below relates solely to the matter referred to us.

26.  The evidence in this case is very clear and in our view the conclusion is no less clear. We conclude that Withers LLP were in contempt of the House when on 4 August 2009 they threatened Mr Hemming with legal proceedings in respect of statements he had made outside the House concerning their client's behaviour, were he to repeat those statements in the House. The contempt was repeated and compounded on subsequent dates, notably on 11 August. An opportunity in October to withdraw was not taken by Withers LLP; and the contempt was denied by them even once the matter had been placed before the House. We are surprised that a firm of the standing of Withers LLP should have taken so long to understand the scope of Parliamentary privilege. It was only when they sought advice from Counsel that Withers LLP accepted they had erred and they apologised unreservedly to the House and to Mr Hemming.

27.  It has long been accepted that the House should assert its privileges sparingly. In the light of the apology the House has received, we make no recommendation for further action on the matter referred to us.

1   HC Deb, 14 January 2010, cols 869 to 872 Back

2   Ev p 45 Back

3   Ev pp 45 and 46 Back

4   Complaint of a letter addressed to the honourable Member for Liverpool, Scotland Exchange, HC 1981-82 233, March 1982 Back

5   HC Deb, 22 December 1981, col 882 Back

6   Complaint of a letter addressed to the honourable Member for Liverpool, Scotland Exchange, HC 1981-82 233, paragraph 6 Back

7   Ev p 18 Back

8   Ev p 19 Back

9   Ev p 26 Back

10   Ev p 46 Back

11   Ev p 46 Back

12   Ev p 48 Back

13   Ev p 48 Back

14   HC Deb, 13 January 2010, col 691 Back

15   Ev p 41 Back

16   Withers faces investigation into contempt claims, Law Gazette, 20 January 2010 Back

17   Ev p 12 Back

18   Ev pp 12 to 37 Back

19   Ev p 41 Back

20   Ev p 37. Mr Hemming appended to this evidence a draft chapter of a book by a third party, which we have not printed. Back

21   Ev p 38 Back

22   Ev p 38 Back

23   Ev p 39. Mr Hemming's emphasis. Back

24   Ev pp 42 and 43 Back

25   Ev p 43 Back

26   Ev p 50 Back

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