Evidence from the Law Society |
Ev 5: Letter from the President
of the Law Society to the Chairman of the Committee, 1 February
Referral of issues relating to Withers LLP to
I understand that the Committee on Standards and
Privileges will shortly be considering issues about the conduct
of Withers LLP and Mr John Hemming MP in relation to a defamation
issue and its inter-relationship with parliamentary privilege.
I am writing on behalf of the Society in this matter and would
be grateful if the Committee could consider the following points.
I think it is common ground that it is a fundamental
aspect of the rule of law that a citizen can effectively exercise
their legal rights. Access to an independent legal profession
to assert these rights is clearly vital to the rule of law. Clients
instruct solicitors in the expectation that those who represent
them will do so robustly, within the limits of the law. Solicitors
form a highly regulated profession with very high standards coupled
with a tough and enforceable Code of Conduct and this code requires
solicitors to represent their clients fearlessly and robustly.
The right of people to bring actions for defamation
is well established in law and where a case is made out it is
perfectly proper for them to seek further advice on how potentially
defamatory statements can be withdrawn or prevented from being
repeated. While solicitors can and should vigorously pursue the
rights of their clients within the terms of our code of conduct,
in the end it is for the courts to decide whether a legal case
is made out.
We recognise that parliamentary privilege is also
a settled part of our legal framework and there are competing
freedoms of debate in Parliament to be protected. However, as
this case demonstrates, problems can arise when the ability of
citizens to assert their legal rights or effect a settlement where
a defamatory statement is to be withdrawn may conflict with the
rights of Parliamentarians to make, within the confines of the
House, statements that might otherwise be defamatory.
It is I believe very important to note that in this
case the parties concerned were in the process of considering
a settlement which quite normally would include a withdrawal of
the comments that were considered defamatory and an undertaking
not to repeat such statements. Subject to parliamentary privilege,
it would be perfectly normaland indeed necessary to protect
a clientfor solicitors to advise that an undertaking of
that sort was necessary to protect the client's position. Not
to do so could expose such solicitors to allegations of breach
of duty to client.
It is not for the Law Society to opine on whether
seeking such an undertaking from a Member breaches Parliamentary
Privilege. If it does then solicitors will need to advise clients
accordingly. It may be that in those (hopefully) few cases where
the issue arises, actions which otherwise could be settled will
need to go to Court as clients may feel that course represents
the only way to secure public vindication of their position. A
regrettable outcome but one that seems probable.
If solicitors cannot seek an undertaking as described,
it would be useful to know the Committee's view on a voluntary
undertaking, although perhaps the better view is that the answer
to the overall issue lies in the Committee's general view on the
use made of the right of privilege.
Given the current debate on the defamation laws and
the wide-ranging review announced by the Lord Chancellor last
December, the time may now be right to review these issues in
the round, especially when the last comprehensive review of parliamentary
privilege was over ten years ago.