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

Evidence from the Law Society

Ev 5: Letter from the President of the Law Society to the Chairman of the Committee, 1 February 2010

Referral of issues relating to Withers LLP to the Committee

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case is made out it is perfectly proper for them to seek further advice on how potentially defamatory statements can be withdrawn or prevented from being repeated.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when the ability of citizens to assert their legal rights or effect a settlement where a defamatory statement is to be withdrawn may conflict with the rights of Parliamentarians to make, within the confines of the House, statements that might otherwise be defamatory.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 normal—and indeed necessary to protect a client—for 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.

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Prepared 25 February 2010