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

Evidence from the Clerk of the House

Ev 4: Memorandum from the Clerk of the House, 1 February 2010


1.  Parliamentary privilege exists to guarantee the effective functioning of Parliament. 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. It is important that the Houses act in cases where contempts are committed in order to safeguard their ability to perform their parliamentary functions effectively. [30]

2.  Among others, an attempt to intimidate a Member in his or her parliamentary conduct by threats is also a contempt. Actions of this character which have been proceeded against include—

  • impugning the conduct of A Member and threatening him or her with further exposure if he or she 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 a Member in a forthcoming debate;
  • informing a 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.[31]


3.  Anything done or omitted which may fall within the definition of contempt, even if there is no precedent, may be punished.

4.  The House of Commons has not imposed a fine since 1666. The lapse of time does not necessarily mean the power has evaporated. In 2006 the New Zealand House of Representatives, whose privileges are based on those of the House of Commons, levied a fine of NZ $ 1,000 on TV New Zealand, without requiring statutory authority to do so. The Australian Parliamentary Privileges Act 1987 contains provisions imposing fines (as well as imprisonment) on persons committing offences against the House.[32]

5.  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. In Brass Crosby's case (1771) it was ruled that: "When the House of Commons adjudge anything to be a contempt or a breach of privilege, their adjudication is a conviction, and the commitment is execution; and ... [this court] can do nothing".[33]

6.  Where the offence is not so grave as to warrant the committal of the offender, he (and this power has been exercised to date only against men) 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 a non-member was reprimanded at the Bar of the House was on 4 January 1957 when the Editor of the Sunday Express, John Junor, was rebuked for some remarks he had printed about Members and petrol rationing in the aftermath of Suez.

7.  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.[34] However, the Joint Committee on Parliamentary Privilege in 1999, while recommending the abolition of imprisonment as a penalty, nevertheless re-iterated the importance of both Houses being able to punish offenders albeit with safeguards for due process.[35]

8.  When a prima facie contempt is referred by the House 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.

The Withers LLP case

9.  On 13 January 2010 Mr Speaker informed the House (HC Deb 13 January 2010 vol 503 cols 691 to 692)[36] that the hon. Member for Birmingham, Yardley (John Hemming) had drawn his attention to an e-mail from Withers LLP, a firm of solicitors, which could in his view amount to a contempt of the House by seeking to intimidate a Member in his parliamentary conduct and that he had decided that this was a matter to which he should allow precedence, in accordance with the rules set out in Erskine May.[37]

10.  Accordingly at the commencement of public business on the following day, Mr Hemming successfully moved that the matter of his complaint be referred to the Committee on Standards and Privileges.[38]

11.  Mr Hemming had raised the matter privately over the summer recess. He submitted a formal complaint to the Speaker, in accordance with the procedure set out in Erskine May, on 28 October 2009. Mr Speaker reserved his position at that time, because the risk of interference with the work of the House did not appear to be sufficiently urgent to give precedence over the Orders of the Day to a referral motion. With the Speaker's authority I wrote to Jennifer McDermott, Media and Culture, Litigation Partner at Withers LLP on 3 November 2009:

"I have been shown some of the correspondence you and your colleague Tamsin Turk have conducted with John Hemming MP relating to your client Jeremy Knight Adams.

I note, in particular, that your e-mail of 4 August seeks an undertaking from Mr Hemming not to repeat certain allegations "particularly in Parliament" and states that proceedings will be issued by your client if such an undertaking is not given.

As you will doubtless now be aware, Article IX of the Bill of Rights 1689 provides 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". It has long been established that the courts will not entertain proceedings to restrain the freedom of speech in Parliament, so that no undertaking of the kind sought by you on behalf of your clients could be enforced through the courts.

Moreover, the seeking of such an undertaking might well be regarded by the House as a contempt. In this regard, I draw your attention to Erskine May 'Parliamentary Practice' where it is stated that to attempt to intimidate a Member in his parliamentary conduct by threats is also a contempt (23rd edition, page 146).

My purpose in writing this letter is 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.  Ms McDermott replied to me on 20 November 2009:

Thank you for your letter of 3 November 2009.

Our client's complaint with Mr Hemming arose out of the publication of defamatory statements concerning our client's alleged conduct in relation to a proposed Tesco development published in a Liberal Democrat leaflet to the Yardley constituency. John Hemming MP published a clarification on his website which is still available at concerning those comments.

Our client's complaint of 29 July 2009 was originally addressed to Councillor Paul Tilsley and, in accordance with standard defamation practice, we also sought from him an undertaking that neither he nor anyone else in the Liberal Democrat Party would repeat the allegations of which our client complained. Our client's complaint against Councillor Tilsley was then taken up by Mr Hemming on 30 July 2009 and a four-day period of extensive e-mail correspondence between myself and Mr Hemming ensued. It was only at the end of that period in Mr Hemming's e-mail of 15.02 on 3 August 2009 that he introduced the concept of his making a speech to the House of Commons. In that e-mail he said,

"I make one further point in respect of your client. I consider that his behaviour in respect of the development at the Swan has indeed been a spoiling tactic. I do intend, therefore, making reference to this at my earliest possible opportunity in a speech in the House of Commons and referring to the other situations in which we are aware of when he has acted to delay developments.

Be aware that this behaviour (through yourself) in respect of these threatened proceedings will also be part of any reference to bullying tactics and the way in which he attempts to gag opponents will also be part of my speech ..."

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 e-mail to Mr Hemming of 11 August 2009 (enclosed for your ease of reference) that it is clear that neither my client, I nor my firm were acting contrary to Article IX of the Bill of Rights 1989 or committing contempt of the House of Commons.

In view of Mr Hemming's assertions to the contrary, this matter was then referred to Withers LLP's Managing partner, Margaret Robertson. I enclose a copy of Mrs Robertson's e-mail to Mr Hemming of 11 August 2009 in which she clearly sets out the position.[39]

As I have said above, Mr Hemming has published a clarification in which he says that,

".... We wish to make clear that we did not suggest in [the] leaflet that Mr Knight-Adams has engaged in or is engaged in 'spoiling tactics'."

We have therefore expressed the view in correspondence that it would be an abuse of parliamentary privilege for him now to make a speech complaining about our client's alleged spoiling tactics. As we set out in our letter of 14 September 2009 (enclosed for your ease of reference), going forward the correct procedure for any complaint on our part in relation to Mr Hemming's conduct would be to the Parliamentary Commissioner for Standards.

In the circumstances, as an experienced Media and Constitutional Law practitioner, it remains my view that Mr Hemming's allegations are without foundation.

I should be very happy to assist you with any further queries that you may have in relation to this matter, failing which I shall treat Mr Hemming's complaint as now closed."

13.  Withers LLP's letter of 20 November 2009 (above) stated that their client was protecting himself from defamatory statements made "outside of Parliament" but did not retract the threat they had made to Mr Hemming. The letter refers to the e-mail of 11 August from Mrs Robertson of Withers LLP which stated "[Ms McDermott] has made it clear 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.[40] 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". This 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.

14.  On 2 December 2009, I advised the Speaker that, as Withers had not apologised, Mr Hemming's request should be considered afresh.

15.  On 12 January 2010 Mr Speaker decided to agree Mr Hemming's revised application, dated 16 December 2009, on the basis of my advice, with which Speaker's Counsel concurred, that prima facie Withers LLP had committed a contempt.

16.  The basis on which Mr Speaker allowed Mr Hemming to move his referral motion was the e-mail from Withers LLP dated 4 August 2009, which has since been the subject of the apology submitted by Withers LLP on 25 January 2010 to the Committee on Standards and Privileges.

17.  Mr Hemming has submitted a substantial dossier to the Committee to place the offending e-mail of 4 August 2009 in context.

18.  The Committee may wish to reiterate the importance of the principle that Members of the House must not be threatened in their parliamentary conduct. They may also wish to put on record 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.


13 Jan 2010 : Column 691

Withers LLP (Privilege)

12.35 pm

Mr. Speaker: The hon. Member for Birmingham, Yardley (John Hemming) has drawn my attention to an e-mail he received from Withers LLP, a firm of solicitors, which could in his view amount to a contempt of the House by seeking to intimidate a Member in his parliamentary conduct.

I have decided that this is a matter to which I should allow precedence. Therefore, under the rules set out at pages 167 to 168 of "Erskine May", the hon. Gentleman may table a motion for debate at the commencement of public business tomorrow. It will appear on the Order Paper after any statements and before the topical debate on Afghanistan.

I shall arrange for the text of the e-mail to be published in the Official Report.

30   See Erskine May 23rd Edition, page 128 Back

31   Ibid, page 146 Back

32   See Parliamentary Privileges Act 1987, s 7 Back

33   Erskine May 23rd Edition, page 159 Back

34   Ibid, page 167 Back

35   Joint Committee on Parliamentary Privilege, 1998-99, HL Paper 43-I, HC 214-I, Paras 301 to 324 Back

36   See Appendix for text Back

37   Erskine May 23rd edition, page 167-8 Back

38   HC Deb, 14 January 2010 vol. 503 cols 869 to 872 Back

39   See Ev pp 25 and 26 Back

40   See Ev pp 25 and 26 Back

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