Privilege: Hacking of Members' mobile phones - Standards and Privileges Committee Contents

Examination of Witnesses (Question Numbers 45-78)

Professor A W Bradley, Lord Lester of Herne Hill QC and Rt hon. Lord Nicholls of Birkenhead

25 January 2011

Q45 Chair: Gentlemen, good morning. Thank you for coming along and helping us with this second evidence session we are taking on our inquiry into phone hacking. For the record, could you introduce yourselves and the position that you currently hold? Could I start with Lord Lester?

Lord Lester: Anthony Lester.

Lord Nicholls: Donald Nicholls. I don't currently hold any position.

Q46 Chair: Except as a Member of the House of Lords.

Lord Nicholls: Except as a Member of the House of Lords.

Professor Bradley: Professor Bradley.

Q47 Chair: We are grateful to you for coming here today to assist the Committee in its consideration of a matter referred to by the House as the hacking of Members' mobile phones. Before we get the session under way, I wish to make a short statement about the way the Committee is approaching this inquiry.

I am sure you are aware of it, but we decided last September that, in view of an application for judicial review of the Metropolitan Police Service's handling of the 2006 investigation into allegations of hacking by the News of the World newspaper, and the possible implications of our work for any future judicial or criminal proceedings, the Committee should confine its inquiry to considerations of whether and, if so, in what circumstances, hacking of MPs' phones could be a contempt of Parliament. That remains the case. We will not, therefore, be making any reference in the course of today's proceedings to any matter that is, or may soon become, sub judice. I am sure, with your vast experience, all three of you, that that will not present you with any great difficulty.

I would now like to move on to an area of questioning to attempt to establish whether a contempt has occurred. I assume you have all read the oral evidence of the Clerk of the House. He said that, for an act to constitute a contempt, it would have to relate directly to proceedings in Parliament. He did not think it had been clearly established that an act which helps to create a general climate of lack of confidence among MPs would be a contempt. Lord Nicholls, where do you stand on that?

Lord Nicholls: I am sorry, you said the oral evidence?

Chair: Yes. It is oral evidence to us.

Lord Nicholls: I have not seen his oral evidence.

Q48 Chair: I am sorry. I thought you may have seen that. It has been in the public record. He said he did not think it had been clearly established that an act which helps to create a general climate of lack of confidence among MPs, in terms of not being able to know that any message left on your phone had not been tampered with, would be a contempt. He wasn't sure that it was. Lord Lester or Professor Bradley, have you read the Clerk's evidence?

Professor Bradley: I have had the benefit of reading the written and oral evidence and, for the most part, I have very little to add to what the Clerk of the House has said. In my view, in certain circumstances, the hacking of Members' phones could certainly be a contempt of Parliament, and it matters not that this has never been decided previously.

The particular question which the Chairman asked relates to the circumstances in which the hacking of phones would be sufficiently related to the work of Parliament for it to be treated as a contempt. There is a whole range of possibilities. To say at which point it would move out of grey into black and become black enough to be treated as a contempt of Parliament could only be discovered by investigation. I give an example in my paper of an MP whose partner happens to be a pop star or a celebrity in some other way, and so the purpose of any hacking by, say, an inquiry agent is to get scandal about that partner and not directly about the MP. But in my paper I don't deal with the question of whether the effect of hacking phones that are known to be Members' phones is liable to be an obstruction or impedance on their work as Members of Parliament. I am in no doubt that, in some circumstances, it can be an obstruction.

Q49 Chair: Lord Lester, do you agree with that?

Lord Lester: I do agree with that, but I would like to say a couple of things by way of background. Members of Parliament—peers—are, like everyone else, entitled to rely upon the civil law for effective remedies where their basic rights and freedoms have been violated. There is now a wide range of effective remedies in civil law through privacy especially, but not only, and of course there are now wide criminal sanctions as well. Therefore, it has to be some very special case, it seems to me, for adding to the ordinary law of the land and the protections it gives, to give Parliament and its Members the protection of contempt jurisdiction, privileged jurisdiction. One has to be extremely careful about that because it does not enhance public confidence if what happened in the Neil Hamilton affair, for example, which you probably know all about, was in any way to be replicated.

Of course, there will be gross rare circumstances where hacking into a Member's phone, in a context where it was obstructing the Member from performing his or her duties, could amount to a contempt. Even in such circumstances, Parliament would have to be very careful what it did about it because Parliament is not a court. It can't satisfy the requirements of fairness in the European Convention on Human Rights because it is neither judicial nor independent in the sense that they talk about. Therefore, my evidence is cautionary throughout. It doesn't mean there could never be a case; I think there could and so, I think, does Lord Nicholls. That is really the emphasis.

The final thing I would like to say by way of introduction is that there are what I regard as extraordinary efforts to extend your contempt jurisdiction, your privilege jurisdiction, beyond any proper limit, and I will give you one example to think about. You will see in the penultimate sentence of paragraph 34 of Dr Jack's written evidence that he speaks about the use of Select Committee evidence as a basis of litigation, warning that that might amount to a contempt of Parliament.

I serve on the Joint Committee on Human Rights, and from time to time mutterings have come from this end of the House suggesting that, if our reports were ever to be looked at by judges, that in itself would constitute a contempt because it would be questioning proceedings in Parliament. A similar argument was made in a case I did called Pepper v. Hart. In my view, that is an improper extension of privilege jurisdiction and I am very keen, therefore, at both ends of the House, that we should not overreach in our own law of Parliament.

Q50 Chair: We will be extending questions in and around those areas in a few minutes. Do you have anything to add, Lord Nicholls?

Lord Nicholls: I have two things. First of all, on the latter point that Lord Lester has mentioned, in principle, I don't accept that deciding there can be a contempt of Parliament as a result of hacking of Members' phones is a novel principle. I think the correct approach is that the general principle is well established, and if it has not happened before, this is merely an example of the application of that general principle in the changed circumstances that exist today. Of course I accept that it is right for Parliament to be cautious in this field, but I don't accept that there is some novelty about it which of itself counts against the conclusion that in this case there can't be contempt.

The second point relates, Chairman, to the first point you asked me. I am sorry, can you remind me of the first question you asked?

Q51 Chair: The first question was that the Clerk had said in his evidence to us that, for an act to constitute a contempt, it would have to relate directly to proceedings in Parliament. He did not think it had been clearly established that an act which helps to create a general climate of lack of confidence, through, potentially, MPs' phones being hacked, was a contempt.

Lord Nicholls: Thank you. I am rather reluctant to give a clear and specific answer by simply looking at the effect. What you are looking at is a factual situation, and the most important element in that is going to be the purpose. If it is a purpose which is quite plainly unacceptable, that, in itself, may lead to an unfortunate lack of confidence in the use of mobile phones by Members, which could, I think, fairly be, in certain circumstances, a contempt.

Q52 Chair: Finally from me for this opening session, to what extent do you believe the courts would regard a public interest defence as providing justification for hacking?

Lord Nicholls: A public interest defence?

Lord Lester: There could be, as the Clerk says, exceptional circumstances where one was seeking to expose corruption and there was sufficient basis for an investigation of that kind. One could imagine circumstances where even the invasion of privacy that would be involved could be justified, and the law says so, but they would be very exceptional indeed. Certainly, muckraking of private lives would have no conceivable public interest defence and the courts have been very careful not to allow what newspapers say is in the public interest to be regarded as in the public interest.

Q53 Chair: It is often said of politicians that they practise and talk about morality in this place whilst practising different forms of morality in their private lives. Do you think that could ever be a justification?

Lord Lester: It depends. If a Member of Parliament makes a campaign about moral virtue and sexual morality and is shown to be a lecherous, promiscuous something-or-other, then one might say that exposing hypocrisy would be a matter of public interest. But even so, using unlawful means to obtain the information would have to be very, very exceptionally justified. The example I always think of is this, and this is not relating to Parliament. Suppose that in a nuclear power station the pipes were cracking, middle management were negligent and in those circumstances one was trying to get at the truth, and thousands of people might be destroyed as a result of a meltdown. That kind of extreme situation might be one in which unlawful means would be condoned by the courts, rather like whistleblowing, but it would be very exceptional and I don't think that is normally a serious justification.

Chair: Does anybody have anything different to add to that? Do you agree in large part? We are going to move on to the interface between privilege and the law now.

Q54 Matthew Hancock: Lord Lester, I would like to follow up on your initial statement when you were talking about the need for equality under the law. As far as I understand it, in your written evidence you invited the Committee to consider whether there should be what I would phrase as a double jeopardy over privilege, in that if something is being considered in the criminal law it should also then be considered in a parliamentary court. I would like you to expand on that and also give your view. You invited us to consider it and we have and we will, but what is your view?

Lord Lester: As you remember in the MPs' expenses scandals, strenuous arguments were put forward in both Houses to the effect that these are matters that should not be dealt with by the criminal courts at all but are protected by privilege and should be dealt with by you in what you describe as a court, but which would not be a court in any normal sense. That argument, I am glad to say, failed, and failed at every level of appeal. Now it is clear that, if MPs or peers commit crimes, even if they are closely connected with the performance of their public functions as Members of Parliament, the courts have full jurisdiction. As you have shown in your evidence, if a Committee like yours is faced with a pending criminal matter, you will sensibly postpone or adjourn what you do to allow that to happen. What could not, in my view, be proper is for someone who has been convicted by the courts to be retried for exactly the same offence. I can perfectly well understand, however, that if someone has committed a serious crime established by the courts, they can be excluded from Parliament as a separate sanction. But what I have just said is not double jeopardy. Double jeopardy arises when you are being tried for the same events by a court of Parliament and a court of law.

Q55  Matthew Hancock: In that statement you said that if somebody is found guilty by a court they should not then be tried again by Parliament. What if they are acquitted by a court? Is it the finding of the court or is it the process?

Lord Lester: It is very difficult. Lord Nicholls' wonderful report acknowledged what I am about to say, which is that you do not satisfy the requirements of a court within the meaning of either the common law or article 6 of the European Convention on Human Rights.

Matthew Hancock: Quite so.

Lord Lester: You are not judges. You are not independent in the sense that judges are. You don't have the panoply, all the procedures, and systems of appeal that the courts operate. Therefore, for you to "retry" someone who has been acquitted would give rise to serious problems in Strasbourg. Let's assume the person has been acquitted by a jury and then is found guilty by you without the procedural safeguards that are needed by article 6. That person would go to Strasbourg and say, "My rights have been violated," and would have a strongly arguable case. That is the problem about double jeopardy.

Q56  Matthew Hancock: Lord Nicholls, do you have anything to add on the same question?

Lord Nicholls: It is very difficult to speak in the abstract about these questions. Much would depend upon the basis on which the individual had been acquitted. If there had been a full trial, the facts had been looked into and then the jury said "Not guilty", I wouldn't say it is a situation where the House could never pursue a contempt claim, but, on the face of it, it would be very unlikely that it would be proper for them to do so, for obvious reasons.

Professor Bradley: I hesitate to make the discussion even more abstract, but there are some implications in what Lord Lester has been saying that raise the question of whether the House has any legitimate authority now to take contempt action against persons who are not Members of the House. What sanctions can be imposed is a difficult question, which was considered by the Nicholls Committee, and the procedures by which you go about it; and what should constitute the offences in question? While I think the concept of contempt of the House is open­ended, historic, existing and established, its application in today's circumstances raises all sorts of possibilities and a question of certainty would come in. There may be questions underlying the particular inquiry being made by the Committee of the force of that and it may be that the only way forward is for there to be legislation, as was recommended by the Joint Committee in 1999, which should make clear the scope of contempt.

Having said that, could I add one further comment on what Lord Lester has said? Obviously there is double jeopardy if it is an identical offence being retried, but, as we all know from our ordinary life, somebody may commit a crime, he or she may be convicted or acquitted but may be held by the employer to have acted in breach of an employment contract and, therefore, can suffer a double penalty. There may be other penalties to follow. Double jeopardy has to be considered strictly in the context of two judicial proceedings, or quasi-judicial proceedings, dealing with the very same thing. If it is a matter of other consequences, then life is full of instances of potential double or more jeopardy.

Lord Nicholls: Can I add something to what Professor Bradley said, and that is the danger of looking ahead? I share the view that he has hinted at. I find it very difficult to see how the House has any effective remedy here and I do wonder, going through with a full and thorough investigation, where it can lead. You can rap the editor of a newspaper over the knuckles and admonish him, which will not give him the loss of a wink's sleep, but there is nothing else, as I understand it, that, effectively, you can do.

Chair: No.

Lord Lester: I would also add that what I find difficult, as a human being, is that here I am, a peer of the realm, and my wife is a judge. Why should my position as an individual be any different position from hers if our phones are hacked into? The answer, it seems to me, depends on whether the hacking was closely related to something I was doing, for example, as part of my membership of the Joint Committee on Human Rights. If somebody wanted to obstruct that Committee and see what my position was and was intercepting phone messages for that purpose, then the object or the intent, to use Lord Nicholls' idea of looking at the intent, would clearly be obstructive and the effect would clearly be obstructive. That would, I think, amount to a contempt. That would be so intimately related to the proceedings of my House and yours, since we are a Joint Committee, that it would be a proper matter to be dealt with by Parliament and that would be a separate matter from the way that the courts would deal with it.

Q57  Matthew Hancock: Why would it be separate, because wouldn't it also be a criminal offence? Are there circumstances in which it could be not a criminal offence and therefore only subject to a parliamentary contempt?

Lord Lester: This is the point that Professor Bradley and Lord Nicholls were making. There are circumstances where the fact that it is a crime or a civil wrong and can be dealt with by the courts doesn't mean it can't also be a contempt. I agree with that, but I am saying that you have to define the circumstances very closely. It has to be so closely linked to the proceedings in Parliament as to obstruct those proceedings intentionally and with that effect.

Q58  Heather Wheeler: I completely agree with what you have just said and I am taking that to the next level now. The Computer Misuse Act might apply to mobile phones and similar devices. In your view, because of what you have just said, does it provide sufficient protection against attempts to access or interfere with privileged information that is stored electronically?

Lord Lester: I don't know.

Q59  Heather Wheeler: Because that is the next jump, isn't it?

Lord Lester: Yes. I don't know the answer. That's a good question.

Professor Bradley: I don't pretend to be a criminal lawyer, but another Act, the Regulation of Investigatory Powers Act—RIPA—is mentioned in Lord Lester's paper, and I am glad that Mrs Wheeler has mentioned the Computer Misuse Act. There may be other Acts there, and it possibly would assist the Committee's inquiry if someone who is expert in this field such as a criminal lawyer could provide a comprehensive memorandum on the legislation that is now applicable.

Although I have these general concerns about the contempt notion in practice today, I strongly believe that there is a very important dimension in the work of Members of Parliament on behalf of the public to make the point that the privileges or the protection of MPs from molestation is a protection of the public from their representatives being molested. That comes out very strongly in Mr Hemming's paper, which the Committee has, and is very easily overlooked, particularly if there are other events going on which bring the reputation of Members of Parliament in the media into disrepute and in the public knowledge. For a Committee to say that "The interruption, interception or molestation of communications between constituents and MPs is capable of being a contempt of Parliament and it is to the public detriment if that is permitted" might have a symbolic value in a declaration by the House, that "These are changed circumstances, we have not had a precedent for this, but people should beware if they think that there is no value at all in what Members of Parliament are doing."

Lord Lester: I have to say I don't entirely put it in that way myself. There is a danger in symbols. Symbols are easily misinterpreted. In his evidence, Mr Hemming goes so far as to say that any interception or monitoring of communications between MPs and others is a contempt. He says it twice. That, in my view, is far too broad and if you were to endorse that it would send the wrong signal. Although, of course, I agree with Professor Bradley about the importance of affirming the public interest in our Parliament and its protection, one has to be very careful of overreach.

Q60  Mr Clarke: Following that reply, Mr Chairman, could I ask Lord Lester this, and perhaps Lord Nicholls and Professor Bradley might want to add to what he has to say? Looking back on the written evidence that you provided, as I understood it, your view was that it was wrong in principle and unnecessary in practice to extend privilege to cover acts such as hacking and interception, which are already capable of being brought before the courts now. My principal question is: what are the vehicles for bringing these matters before the courts and, without discussing allegations that may come before the courts, can you give us some indication of existing case law?

Lord Lester: In the civil field, as a result, largely, of the Human Rights Acts being used to develop the right of privacy, although it had already been developed by the courts before, there are now many privacy claims that have been brought for everything, including telephone hacking. Any civil equivalent of the criminal law involving invasions of privacy has given rise to claims in the civil courts.

So far as the criminal side is concerned, as you will know very well, the police are at this moment, we hope, actively investigating the allegations against newspapers of hacking with a view to prosecution. The Director of Public Prosecutions is reported today as saying that he wants the investigation to be focused and energetic, and if there is credible evidence of hacking, whether it is against a private individual or a Member of Parliament, then that can and should give rise to criminal prosecution.

Q61  Mr Clarke: Would Lord Nicholls or Professor Bradley like to add to that?

Lord Nicholls: If I may say so, I don't think that is a wholly satisfactory answer. As we all know, the nature of contempt is an improper interference with the rights and duties of Members and it is interference with Parliament, and it is in the public interest that Parliament should not be interfered with. The means by which that interference takes place may, of course, be the treatment of an individual Member by an outsider. I would think it is most undesirable that the situation should arise where there has been such an interference and, because the police decide to take no action, there is nothing the House can do. Of course, the House has to be very cautious for a number of different reasons, but, in principle, it seems to me contrary to the public interest in a very serious way that there could be an interference with the conduct of the business of the House and yet the House could do nothing about it.

as I observed a short while ago, there doesn't seem to be an effective remedy in fact. That is what, 10 years ago, the Joint Committee suggested should lead to the conclusion that there should be a statute making these things crystal clear, dealing with this point and no doubt providing an adequate remedy in the situation to which I have just referred.

Lord Lester: I entirely agree with the last point. Obviously, there should be a statute, and the Clerk has recently said so, but I don't think Lord Nicholls, when he reads my evidence, will disagree as much as he thinks. I was answering a question purely of Mr Clarke on what remedies were available in the civil and criminal courts. I wasn't suggesting that that could be the only way in which one should deal with the matter, and I gave the example where, if someone hacks into my phone, for example, to impair my work as a Member of the Joint Committee on Human Rights, that would obviously be the kind of case. Indeed, we had such an example recently, you will remember, when somebody sought to interfere with the report of the Joint Committee on Human Rights, who was chair of a public body—or so it was alleged—and that led to consideration, I think by this Committee, as to whether that did constitute a contempt. That would be as much the case if it was done by intercepting a mobile phone as by any other means. I am trying to deal with the very broad suggestion that any hacking of the phone of any MP in any circumstances whatever should of itself be a contempt. That seems to me to be overbroad.

Heather Wheeler: Yes, it is stretching it.

Professor Bradley: I think I was the first of the panel to mention the Hemming paper. I was using it to make the general point about the public interest in MPs being able to do their work properly. I wasn't thereby to be taken as agreeing. I share Lord Lester's reservations about those particular points in the Hemming paper, but otherwise it is a very persuasive document that should be taken seriously. I am not commenting on recent events at all, but the Chaytor judgments from the Supreme Court now make very clear that the House will co-operate with the police even in the case of crimes committed in a parliamentary context, and the duty of the House is to let the criminal investigations take their course. We are not dealing with and I know nothing about the situation in which, for whatever reason, the criminal investigation is not taking its course, in which case the civil and criminal remedies are problematic. I would share Lord Nicholls' view that it must be possible for the House to take some action in those circumstances.

Q62  Chair: Professor Bradley, you have raised the possibility that there might be circumstances in which the courts could intervene following a decision of the House in relation to contempt. Could you elaborate on this point for us?

Professor Bradley: There is a great deal of history which someone like the Clerk would have at his fingertips much more than I do. We have been talking about the contempt of Parliament, but there is also the contempt of court, and in history there have been situations in which the two contempt powers have come into open conflict.

The example that comes to mind is the Hansard litigation in the late 1830s when the House of Commons wanted to extend privilege because Hansard was being sued for libel. The courts very clearly said you cannot extend privilege, you cannot create a new privilege, and the answer was legislation. When the libel action continued and judgment was conceded in favour, the Sheriffs of Middlesex, who were carrying out the duties of the court, were themselves committed for contempt by the House, and the House, on that occasion, refused to say why it was committing the Sheriffs of Middlesex for contempt. The law at that time, as these were thought to be co­ordinate courts and not wishing to interfere in each other's business, was that, unless the House of Commons stated the reason for committing for contempt, the ordinary courts just had to accept that.

I raise in my paper the question of whether that would be the attitude of the courts today. If it is obvious why the House has done this very unusual thing of committing somebody for contempt in a blatant case, I cannot believe that the court would stand idly by and not grant habeas corpus. That is an historic dispute, but potentially there is still a situation in which the institutional authority of the courts might come into conflict today with the institutional authority of Parliament. I know the present attitude of the House, and Dr Jack in particular, is that we are in a time of peace, that there is no war here, not a cold war, that the two institutions are co-operating and so on. But on a subject like contempt and what action could be taken, this ancient conflict, or shades of it at least, could reappear.

again, I would say, with all due respect to the judiciary, the authority of the courts and the rule of law, it is important that the constitutional authority of the Houses of Parliament should also be respected in this situation.

Lord Lester: I agree entirely, but could I add my own personal experience, because it is always helpful? I have twice had experience, as an advocate, of the tension between courts and Parliamentary privilege. The first was in the case of Pepper v. Hart, which established that judges could exceptionally look at the parliamentary record in order to help them in interpreting ambiguous legislation. In that case I think it was the Speaker's counsel who certified, and the Attorney­General argued, that it would be a breach of parliamentary privilege for judges to look at anything said by Ministers in parliamentary proceedings, and we had five days of sustained argument on that proposition. Eventually, the House of Lords, by a majority, said no, it would not be a breach of parliamentary privilege if courts could do so. That is an example of the sort of thing I was referring to before.

The second one was more recent—a couple of years ago. I was in a case about age discrimination and I wanted to show the court the report of a Select Committee of the House of Lords which had reported on age discrimination. I wanted to refer to what Ministers had told the Select Committee. The Attorney­General again instructed counsel to say that that would be a breach of parliamentary privilege. Again, the claim was rejected. But these are working examples where courts have to decide where to draw the line.

Of course, the most unfortunate example of a slightly different kind was in the Neil Hamilton affair, because he sued The Guardian for libel when they accused him of taking cash for questions. A High Court judge said parliamentary privilege prevented it. I think the judge was wrong, but there was no appeal. Instead, Parliament was persuaded to pass section 13 of the Defamation Act, which allows MPs to pick and choose as to whether to invoke parliamentary privilege or not as suits them in their libel cases. Lord Nicholls' report says that that should now go, and I respectfully agree.

Chair: Okay. Let's move on.

Q63  Dr Whitehead: Could I try and draw out some detail on some distinctions between different kinds of hacking, for example, perhaps, as we are mainly presently discussing, interception, but also it could be impersonation, whereby someone is seeking to gain access to someone's phone details as a result of gaining the confidence of the telephone company, by impersonating them? Do you have a view as to which of those two aspects of hacking might be regarded as the more serious when considering the question of a possible contempt?

Lord Lester: The two being, again?

Q64  Dr Whitehead: One is interception, that is using electronic means to access recorded messages, and the other one is perhaps impersonating or claiming that one has the right to the details of a phone account in order to obtain those same details.

Lord Lester: They are both unlawful, and the second one involves more fraudulent conduct even than the first. It is rather like journalists pretending to be constituents in Vince Cable's surgery, isn't it, when they come along in order to entrap? All of that is gross misconduct, and it is a contempt if it has a direct connection with the functioning of Parliament and obstructs.

Professor Bradley: I would pass on the specific question, Dr Whitehead, but I have found it a helpful analogy, in considering whether the hacking of Members' phones should be a contempt, to think of a situation in which an MP is wishing to hold a constituency surgery. That is not a proceeding in Parliament. I think it is a very important function of an MP's duty today. One can think of improper ways of either obstructing or interfering—bugging an MP's constituency office, for example, so that what he or she says to the constituent, who may have come in complete confidence, can be intercepted and listened to. It might be a complaint against the local police, the local judge, the hospital authority, or whoever, and the complainant may be somebody working within that body so that he or she will be liable to dismissal if a word of this gets abroad. Interference of that kind in the communication between a constituent and a Member of Parliament seems, to me, very much capable of being a contempt. It may be unusual but it could happen. The fact that, ever since 1957, communication between a constituent and MP has been held by Parliament not to be within article 9 of the Bill of Rights is neither here nor there if one is considering the contempt side of this.

Lord Lester: The way it was put by the Supreme Court in Chaytor was to ask whether the actions are likely to impact adversely on the core or essential business of Parliament. What you have to decide is what the core or essential business of Parliament is.

Lord Nicholls: Yes, I must confess that I do have reservations about the suggestion, as I understand it, that interference with the constituency work of a Member could be a contempt of Parliament. I have reservations about that.

Q65  Dr Whitehead: Do you think there are, however, particular issues relating to how Parliament conducts its business electronically to the extent that, for example, I may be sitting in my constituency at my computer, which has a remote link to Parliament, and someone then intercepts my e-mails, which I have exclusively sent and received from within my constituency, but, however, I am linked to the business of Parliament thereby?

Lord Nicholls: I wouldn't have thought it made any difference. Where the interference takes place is neither here nor there. The interference with the work of the Member in his parliamentary work can take place today just as much in the way you have described when he is sitting at his desk in his office in his constituency as when he is sitting at his desk in this building.

Q66  Dr Whitehead: The RIPA—the Regulation of Investigatory Powers Act—makes a distinction between interception of messages in different ways. If you have listened to a message which has already been listened to by the intended recipient, that is different in terms of the way RIPA works from opening a message that had not previously been listened to. If you are instigating the hacking of a message which had previously remained dormant, RIPA appears to suggest that is rather more serious than if you listened to a message that has already been opened and made available. Do you think that distinction has any relevance to the matter that is before us to the extent that, if someone has listened to their phone messages, that might be different from someone who has intercepted and diverted phone messages from the person who otherwise would have listened to them?

Lord Nicholls: I think not. They are both capable of being contempts.

Q67  Dr Whitehead: Are they equal contempts?

Lord Nicholls: In principle, I see no reason why they should be different.

Lord Lester: One thing I do not understand myself, but the Committee will, is why the Commons decided in 1997 to repeal the Standing Orders relating to letters. I don't know whether the view taken in 1997 was that none of this mattered.

Lord Nicholls: Forgive me for answering for the Committee, as it were, but my understanding was that they were repealed because they were just thought to be obsolete; it related to the situation.

Q68  Matthew Hancock: I understand it was a tidying­up exercise.

Lord Nicholls: Yes, but for that reason. It was just repealing something which no longer had a place and a role to play in today's conditions.

Matthew Hancock: It was the 1957 judgment that communication with constituents is not a contempt that superseded the Standing Orders on letters, as far as my reading of the history goes.

Q69  Chair: We have a few minutes left. We would like to ask about a potential Privileges Act. The Clerk of the House clearly has reservations about enshrining privilege in an Act and thus making the courts responsible for interpreting it. Is he right to be worried about that?

Lord Nicholls: It's right that the effect of an enactment would be that the terms and effect of that Act would be decided by the courts. I don't think that should be a matter for concern, not least because, today, the position is that, as was set out in the report 10 years ago, Parliament has accepted that the courts themselves can decide on the boundaries of contempt.

Lord Lester: Yes. It would be desirable that there be a statute in order to promote legal certainty. The courts have shown themselves in my lifetime to be careful not to usurp the functions of Parliament in the way that they decide cases. They are very sensitive to that. It enhances public confidence in Parliament to know that Parliament has itself laid down a statutory code and that questions of interpretation and application can be decided by the independent judiciary. I am not aware that the Australian Privileges Act has given rise to much difficulty because courts may have to interpret and apply its provisions. The argument about IPSA, which I remember very well, when it was said that you should not allow the courts to have any criminal jurisdiction in relation to fiddling expenses, has subsided and everyone, I would have thought, now recognises that it is highly desirable for those matters to be dealt with by the courts. So I think the arguments are overwhelmingly in favour of having a Privileges Act, and I believe that the present Government are meant to be committed to producing a draft Bill, are they not?

Q70  Chair: They are and, as I said, the Clerk is worried. I think the courts have got it absolutely right in recent times, in view of circumstances here. I suspect the Clerk may be a bit worried about tensions in the future, about matters that are not as clear as those we have had in the last few months. Professor Bradley?

Professor Bradley: If the Committee wish to go back to the evidence I gave to the Nicholls Committee over 10 years ago, they might find that I was arguing then against the idea of legislation to codify privilege. I have since then changed my view, and obviously the legislation would have to be carefully studied and go through a lot of oversight and supervision. My reason today is that there is uncertainty of a serious kind about these constitutional relationships and a well-drafted Act could make the boundaries clearer that should exist between them. This would lend clarity and increase legal certainty, as Lord Lester has said, and probably it is part of an inexorable march of progress towards codifying different parts of the constitution. I am not thereby advocating a written constitution, but we have seen it in so many areas of public life these days in legislation, getting the rules down and clear so that we all can read them and understand them. Journalists and newscasters cannot be expected to read text books on constitutional law or history to find out what the relationships between these different institutions are, and for Parliament to enact a good Privileges Act would be a step forward. Indeed, I am glad to say that the Nicholls Committee did not accept my evidence as it was 10 years ago.

Lord Nicholls: I am very pleased to hear that that had at least one effect.

Chair: He is a convert, my Lord.

Q71  Matthew Hancock: Lord Nicholls, you said you think that the courts already define the limits of contempt. Therefore, what is the advantage of moving that into a codified legislative set­up?

Lord Nicholls: What would be the advantage of having a statutory set­up?

Matthew Hancock: Yes

Lord Nicholls: The advantage is, amongst other things, that it clarifies the law.

Q72  Matthew Hancock: When you said that the courts have already defined it and—

Lord Nicholls: What I meant, if I didn't say it, is that when issues arise the courts do define where the boundaries lie, and to that extent Parliament is already, if I may put it this way, in the hands of the court.

Q73  Matthew Hancock: So they do it on a case­by­case basis?

Lord Nicholls: Yes.

Q74  Matthew Hancock: The next question is: how would you define in statute the limits of contempt, given that technology changes and the different means of communication can change? Therefore, the obvious solution to that would be to have a broad definition similar to the Australian model. Would that not then lead to the courts rather than Parliament making a decision over what is and is not a contempt in all future cases?

Lord Nicholls: As I've said, that is already the position. I see no difficulty in setting out in a statute a clear, principled statement of what conduct constitutes contempt. Then the question is only going to be whether the facts in a particular case satisfy that clear statement of principle. Therein lies one of the great advantages of having a statute. Another advantage, of course, is that more and more human rights are encroaching in all fields and it is very undesirable, with somebody who has been engaging in undesirable conduct affecting the House, that a question should be capable of being raised, "This can't possibly be a valid subject of interference by Parliament because the position is so unclear. Nobody in the public knows what is contempt and what is not and they have no idea what the remedies are." It seems to me that that sort of argument, in certain circumstances, could be irresistible in Strasbourg.

Lord Lester: What would be really hard to solve is the problem of Strasbourg in relation to such a law because, if the law dealt with sanctions and if Parliament is not a court, then the law might have to recognise that sanctions would have to be dealt with in serious cases by courts. I don't know how that would be acceptable or not to Governments and Parliaments, but that certainly would be a problem which the Australians don't have because the Australians, although they have a written constitution, don't have a supranational court supervising in the way that we do.

Lord Nicholls: I don't think that ought to be a problem because the report, as I remember it, said in relation to non­Members that questions of contempt would have to be dealt with by the courts because only the courts have the machinery for conducting an inquiry of the type that would be recognised now as a fair inquiry by an independent body.

Lord Lester: Could I go back to Mr Hancock's original question? It is for Parliament, as the supreme law-maker, to make a public law rather than rely upon the unwritten law of contempt, so that the law of the land is clearer, and it should state principles rather than detailed rules, leaving a wide discretion to the judges to apply the principles on a case­by­case basis where necessary, with the primary decider of facts being the parliamentary mechanism, so that cases rarely go to the courts, because Parliament has its own internal machinery, such as this Committee, to be able to act within the boundaries of the law. It is only when the Committee got the law wrong that there would be recourse to the courts, it seems to me. That partnership needs to be spelled out so that it's up to Parliament in the first place to make the decisions and the courts only in the last resort.

Q75  Matthew Hancock: On this question of sanctions, it seems to me that there are sanctions that Parliament has that courts don't use. For instance, removal of a parliamentary pass is one that we have recently been discussing and the insistence on apologies to the House. Lord Nicholls, you may say, newspaper editors wouldn't care two hoots about that, but they do have a significant impact in the case of some offences against privilege, especially on the standards side as well. I wonder whether you could comment on that and on the other sanctions that Parliament uses that aren't used by courts.

Lord Nicholls: It seems to me that the sanctions available to Parliament against non­Members are simply not sufficient.

Lord Lester: And the sanctions against Members have to be handled very carefully, as we discovered in the House of Lords in dealing with those peers who are alleged to have acted improperly. We had to set up a mechanism, presided over by, I think, Lord Irvine of Lairg, to ensure that it acted as much like a court as possible, a disciplinary tribunal that effectively acted as though it were a proper judicial body in order to assess further requirements, among other things, of fairness and the Convention. So, even when you are dealing with Members, you have to proceed with caution, and I agree with Lord Nicholls that for non­Members the sanctions are written in water.

Professor Bradley: Chairman, it is difficult in the remaining few minutes to consider what this new codification of privilege should be. I, for the moment, think it would still be desirable to have a distinction between parliamentary privilege—the limits of that must be clear—and the contempt power. If one tried just to have a closed list of precise forms of conduct that today constitute contempt, in 10 years' time we would have a similar discussion. It must be in terms of obstructing the proceedings of Parliament or whatever. I am not drafting now.

The second point is that good legislation should leave scope for Parliament or each House to make a decision. I am not certain that this would always be contrary to the Strasbourg court's approach, and I do, in my paper, set out at some length a rather unusual Turkish case in which, rather to my surprise, the Strasbourg court went out of their way to accept the autonomy of Parliament and to accept that this is a political matter which the House must decide and not a court. Legislation of that sort could be created. Certainly, it would make a large difference and it would probably increase the power of the court to interpret the law in particular cases, but this is a trend which is going on in any event today and there would be a value in bringing privilege within it.

Q76  Mr Clarke: Still reflecting on the possibility of a Privileges Act, should Parliament be more alert to the specific challenges to its ancient privileges that may be posed by its increasing dependence on rapidly evolving technology? For example, should the draft Privileges Bill include special provision to protect Parliament and MPs from hacking and from cyber attack?

Lord Lester: Yes.

Lord Nicholls: The legislation should be drafted in a way which covers that and, if drafted as a matter of principle, it would.

Lord Lester: There is nothing strange about that. The Government are now considering a draft Defamation Bill. One of the things they will have to consider is what constitutes publication and problems of the internet. The definitions will need to be open-ended so that they can embrace future technology and not be frozen at any particular time. The same applies to a Privileges Bill.

Q77  Dr Whitehead: I want to ask a question about the definition within a proposed Bill of Contempt and how closely one might be able to define it. We have substantially covered that, but I guess the residuum of the question would be: do you think it would be easily possible to produce a statutory definition of contempt which would stand up fairly well within a piece of legislation?

Lord Nicholls: Yes.

Q78  Dr Whitehead: And it would be flexible enough for the sort of developing purposes that we have been discussing this morning?

Lord Nicholls: Yes. The statute can include examples so as to point the directions. Yes, I see no difficulty in drafting that.

Chair: That comes to the end if nobody has anything further to add. Could I first of all thank all three of you very much indeed for coming along this morning and also Professor Bradley for suggesting we should look at what current Acts of Parliament say about this as well? Given Heather's question, we will do that, but we would expect that this is now the last evidence session that we will be taking and we will obviously be making a report to the House in due course. Thank you.

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Prepared 31 March 2011