Privilege: John Hemming and Withers LLP |
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.
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.
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.
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.
4. The most recent precedent is provided by the
Report from the Committee of Privileges in Session 1981-82.
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
5. The firm of solicitors apologised by telegram
to Mr Speaker on the same day as the matter was referred.
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
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.
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."
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.
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.
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
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."
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.
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. 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. 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."
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.
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
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.
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.
Mr Hemming also helpfully provided us with a series
of e-mails and with other correspondence.
18. Withers LLP wrote to us on 25 January, as
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. On 26 January, we received further evidence
from Mr Hemming in the form of a "commentary on parliamentary
law and other cases."
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.
In Mr Hemming's view, a) and c) above "are straightforward
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.
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
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
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
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.
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.
24. At a meeting on 2 February, we decided we
had sufficient evidence to prepare our Report to the House.
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
Ev p 45 Back
Ev pp 45 and 46 Back
Complaint of a letter addressed to the honourable Member for
Liverpool, Scotland Exchange, HC 1981-82 233, March 1982 Back
HC Deb, 22 December 1981, col 882 Back
Complaint of a letter addressed to the honourable Member for
Liverpool, Scotland Exchange, HC 1981-82 233, paragraph 6 Back
Ev p 18 Back
Ev p 19 Back
Ev p 26 Back
Ev p 46 Back
Ev p 46 Back
Ev p 48 Back
Ev p 48 Back
HC Deb, 13 January 2010, col 691 Back
Ev p 41 Back
Withers faces investigation into contempt claims, Law Gazette,
20 January 2010 Back
Ev p 12 Back
Ev pp 12 to 37 Back
Ev p 41 Back
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
Ev p 38 Back
Ev p 38 Back
Ev p 39. Mr Hemming's emphasis. Back
Ev pp 42 and 43 Back
Ev p 43 Back
Ev p 50 Back