House of Commons - Privilege: Hacking of Members' mobile phones

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

Hacking and privilege

Parliamentary precedents

22. The principle that private communications should remain private and the view that unauthorised interception of such communications offends against that principle can be regarded as applying to telephone calls and messages as they apply to written communications. We have therefore considered the available precedents from this and other legislatures relating to unauthorised interception of mail and tapping of conventional (land-line) telephone calls.

WESTMINSTER PRECEDENTS

23. The Clerk of the House referred in his memorandum to an assertion by the House in 1689—the year of the Bill of Rights—that breaking open letters directed to or sent from Members is a breach of privilege.[18] In 1727, the House passed an Order "to prevent the Intercepting of Letters belonging to the Members of the House" which it subsequently renewed each Session until 1852, when it made a Standing Order "to prevent the intercepting or losing of Letters directed to Members of this House."[19] The Standing Order required the postal authorities at the House to safeguard mail from loss or interception.

24. The Standing Order was repealed in 1997, following a Report from the Procedure Committee. The Committee did not comment specifically on its reasons for recommending repeal of this Standing Order, but included it among Orders which "are of uncertain meaning or have never been in effective operation, [or] bear no relation to modern practices."[20] It may nonetheless be regarded as significant that for many years the House sought to prevent the unauthorised interception of communications addressed to Members at the House, whatever the origin or subject-matter of the communication.

25. Chris Bryant MP drew our attention to resolutions of the House, asserting the rights of Members to free speech and protecting them from molestation.[21] He told us:

My argument is that this historic determination by the House to insist that MPs' freedom of speech needs robust protection should be applied to the question of 'phone hacking' because any attempt to hack into an MP's phone, and in particular to intercept a phone message or a text, would be a clear instance of molesting an MP. After all, the only reason one could imagine anyone wanting to hack into an MP's phone would be to molest, intimidate or obstruct them in their activity as an MP. I can think of no clearer contravention of the motions of the House already cited.[22]

26. We are not so convinced as Mr Bryant appears to be that journalists would hack the phone messages of an MP solely in order to molest, intimidate or obstruct that MP in carrying out Parliamentary activity—which would very probably amount to contempt. Much of the interest of the media in MPs in recent years has centred on their expense claims, which the courts have determined are not protected by Article 9 of the Bill of Rights and which self-evidently have nothing to do with freedom of speech.

27. The House may have acted a little hastily in 1997 in repealing the Standing Order, rather than amending it so as to give greater protection to Members' communications. However, we suspect that, had a specific allegation of hacking been referred to this Committee for investigation, it is unlikely that the precedents relating to interception of written communications would have made much if any material difference to the outcome of our inquiry.

PRECEDENTS FROM OTHER LEGISLATURES

28. We are grateful to the Clerk of the House for supplying information about other Commonwealth Parliaments.[23] Looking through the cases annexed to the Clerk's memorandum, we do not consider that any of them are sufficiently close to the matter referred to the Committee to require us to guide us towards specific conclusions. The reference in Mr Hemming's evidence to provisions in the written constitution of Germany does not appear to be relevant to the matter referred to us.

Privilege and contempt

29. Although the House has never been invited to approve it, the Report of the Joint Committee on Parliamentary Privilege published in April 1999 is widely regarded as the authoritative text on privilege and contempt.[24] In considering the scope and nature of privilege and of contempt, we have taken the Report of the Joint Committee as our starting point.

SCOPE AND NATURE OF PRIVILEGE

30. The Joint Committee concluded that "Parliamentary privilege consists of the rights and immunities which the two Houses of Parliament and their members and officers possess to enable them to carry out their parliamentary functions effectively."[25] Privilege is thus concerned with functions rather than individuals. It protects the proceedings of the House and the right of Members to take part in those proceedings and to speak freely. But it does not confer general immunity on Members; nor does it provide Members with greater personal rights than attach to other people. Privilege also recognises Parliament's exclusive cognisance or jurisdiction over its own affairs.

31. The Joint Committee offered the following definition of Parliamentary proceedings:

(1) For the purposes of Article 9 of the Bill of Rights 1689 `proceedings in Parliament' means all words spoken and acts done in the course of, or for the purposes of, or necessarily incidental to, transacting the business of either House of Parliament or of a committee.

(2) Without limiting (1), this includes:

(a) the giving of evidence before a House or a committee or an officer appointed by a House to receive such evidence

(b) the presentation or submission of a document to a House or a committee or an officer appointed by a House to receive it, once the document is accepted

(c) the preparation of a document for the purposes of transacting the business of a House or a committee, provided any drafts, notes, advice or the like are not circulated more widely than is reasonable for the purposes of preparation

(d) the formulation, making or publication of a document by a House or a committee

(e) the maintenance of any register of the interests of the members of a House and any other register of interests prescribed by resolution of a House.

(3) A `committee' means a committee appointed by either House or a joint committee appointed by both Houses of Parliament and includes a sub-committee.

(4) A document includes any disc, tape or device in which data are embodied so as to be capable of being reproduced therefrom.[26]

32. The Joint Committee recognised that Members' dealings with constituents and with Ministers on behalf of constituents were becoming an increasingly important and prominent part of their work, but it concluded that such dealings were not protected by privilege, unless they were carried out in connection with a proceeding, and it was against extending the interpretation of Article 9 of the Bill of Rights so as to give such protection.[27]

33. The boundaries of privilege have been tested in the courts within recent months. Although the question before the courts was whether MPs' claiming of expenses was covered by privilege, the judgment of the Supreme Court necessarily pronounced on the scope of protection afforded by Article 9. The President of the Supreme Court, Lord Phillips, found that:

In considering whether actions outside the Houses and committees fall within parliamentary proceedings because of their connection to them, it is necessary to consider the nature of that connection and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the core or essential business of Parliament.[28]

He continued:

There are good reasons of policy for giving Article 9 a narrow ambit that restricts it to the important purpose for which it was enacted - freedom for Parliament to conduct its legislative and deliberative business without interference from the Crown or the Crown's judges.[29]

34. The relevance of this judgment to the question of whether Members' communications with constituents and others are protected by privilege is immediately apparent.

SCOPE AND NATURE OF CONTEMPT

35. Contempt has been understood as arising from an act or omission which obstructs or impedes (or tends to obstruct or impede) the business of the House or any of its Members in carrying out their Parliamentary functions.[30] There does not have to be a precedent for the specific act or omission: the test is whether the House or its Members have been obstructed or impeded in the discharge of their duty. Examples of past contempts include: disobedience to or misconduct before the House or one of its committees; misconduct by a Member or officer of the House; leaking of information to which privilege applies; and obstructing or molesting Members, officers, or witnesses or others whose business is connected with proceedings in the House.[31]

36. Unlike the position with respect to privilege, there is no statutory definition of contempt. The Joint Committee favoured including such a definition in statute. It recommended that the definition should "cover new forms of obstruction, should they arise, as well as existing forms."[32] We asked our witnesses whether they favoured a statutory definition of contempt. The Clerk of the House said that "I would not expect a Privileges Act to list contempts and say, 'This is the end of it.'"[33] He pointed out that the Australian statute does not define contempt.[34]

37. Lord Nicholls, who chaired the Joint Committee, told us that he continued to support calls for a Privileges Act and that he saw "no difficulty in setting out in a statute a clear, principled statement of what conduct constitutes contempt."[35] Professor Bradley, who when he gave evidence to the Joint Committee had argued against legislation to codify privilege, told us that he had since changed his mind, although he was clearly concerned that the definition of contempt should not be too rigid:

... 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.[36]

All the witnesses agreed that it would be for the courts to interpret such a statute.

38. In the Queen's Speech at the commencement of the new Parliament in May 2010, the Government announced that it would publish in the current Session a draft Privileges Bill, to "reform the law on parliamentary privilege to clarify its extent and application."[37] The House will have an opportunity to consider the implications of any proposal to give the courts power to interpret the boundaries of contempt when it scrutinises the draft Bill.

39. We recommend that the draft Privileges Bill should include a definition of contempt, which should be drawn up in such a way as to make it adaptable to new technologies and circumstances.

Hacking as a possible contempt

40. As we have just discussed, there is presently no statutory definition of contempt, but even if there were, it is unlikely for the reasons our witnesses gave that it would include a list of acts, such as hacking, that may amount to contempt. It is far more likely that, as Lord Lester said, the definition would "state principles rather than detailed rules", against which an act or omission could be judged.[38] For the purposes of this Report, we intend to consider the evidence that hacking may obstruct or impede (or that it may tend to obstruct or impede) the business of the House or its Members in carrying out their Parliamentary functions.

41. The Clerk of the House suggested there are six questions that need to be answered when considering whether an act of hacking may be a contempt:

a) Does such interception impede a Member in the performance of his or her duty?

b) What significance is there to a Member knowing or suspecting hacking? (i.e. how can an interception unknown to a Member impede his or her activity?)

c) Does "impeding" result because Members' confidence in the confidentiality of communications with each other is undermined by the knowledge or suspicion of interception?

d) Does "impeding" result because Members' confidence in pursuing parliamentary activities (such as tabling questions) with staff of the House and advisers is undermined by the knowledge or suspicion of interception?

e) Does "impeding" result because Members' trust with constituents in pursuing parliamentary activities (such as tabling questions, raising matters in adjournment, debates etc) is compromised by the knowledge or suspicion of interception?

f) Does interception interfere with a Member's right to private life under ECHR Article 8?[39]

42. If the answer to the first question were to be 'yes', and if the 'duty' that had been interfered with was directly concerned with a proceeding of the House or of one of its committees, then in our view there would be little if any room for doubt that the hacking could be a contempt. If the answer to the first question were to be 'yes', but the 'duty' that had been interfered with was not concerned with a proceeding of the House or of one of its committees, then the position might be less clear.

43. In his oral evidence, the Clerk confirmed his view that interception of messages about a Member's constituency business, which was unrelated to proceedings in the House or in a committee, would not be a contempt. But he acknowledged that the House found this question "quite difficult ... because it is so much now the activity of Members of the House."[40]

44. Lord Pannick told us that if the effect of hacking is to make it more difficult for a Member to perform Parliamentary duties, it is immaterial whether the message hacked into related directly to a proceeding in Parliament.[41] Similarly, James Price argued that if interception or the threat of interception tends to inhibit a Member from contributing to Parliamentary proceedings, it may be a contempt.[42] Lord Nicholls' view was that purpose is more important than effect.[43] He expressed reservations about the application of privilege to Members' constituency work.[44]

45. Professor Bradley's evidence was that interference with a Member's duties as an MP (including constituency work) could be a contempt, even if there is no intention on the part of the hacker to obstruct the Member's work in connection with proceedings in Parliament.[45] He told us:

Interference ... 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.[46]

This interpretation was supported by John Hemming MP, who argued that any interception or monitoring of, or interference with a Member's communications with others can be a contempt, because such acts undermine Parliament collectively.[47]

46. Lord Lester suggested that this is too broad an interpretation and pointed out that the Supreme Court judgment in the Chaytor case referred to the core or essential business of Parliament.[48] In Lord Lester's view, only in "gross, rare circumstances" could hacking amount to a contempt.[49]

47. We agree with the Clerk of the House that the question of whether Members' performance of their constituency-related duties is part of the work of Parliament is "difficult." It has become increasingly difficult as the proportion of time spent by MPs on constituency-related work has grown. But the principle is well established: unless a Member's constituency-related work is carried out on the floor of the House, in one of its committees, or through the tabling of a motion, question or amendment, it is not a proceeding in Parliament and it is not, therefore, protected by privilege. Such was the conclusion of the Joint Committee in 1999, which was itself founded on previous findings of the House, of committees of the House and of the courts. The question that remains is whether a principle that is founded on a set of circumstances far removed from those that now apply, and which were codified in a statute more than four centuries ago, remains entirely fit for purpose. That is a question that goes far beyond the scope of this Report.

48. We recommend that the House should be invited to debate the relationship between privilege and the performance by Members of their constituency duties, if possible before the Government publishes its draft Privileges Bill.

49. We now turn to the Clerk's questions 'b)' to 'e)'. In question 'b)', the Clerk is inviting us to take an excursion into the realms of metaphysics. On a practical level, we suggest that if a Member is unaware that an act of hacking has obstructed him or her, it is unlikely that a well-founded complaint alleging contempt arising from obstruction will be made. If a Member were to suspect but not know that he or she had been obstructed by an act of hacking, it would be for that Member to make the case and (under present procedures) for the Speaker to decide whether to give precedence over other business to a motion to refer the matter to this Committee.

50. The more difficult question to answer is whether awareness by Members that their phones are being or may be being hacked might interfere with or obstruct their participation in proceedings, by creating a general climate of insecurity—this is the nub of the Clerk's questions 'c)' to 'e)'. Our view is that establishing whether a 'climate of insecurity' exists would almost certainly resemble an opinion poll more than it would resemble a scientific measurement. Some Members are more likely to be sensitive to such climatic conditions than are others. The evidence for such a climate would in all probability consist of a series of subjective statements, rather than objective fact. In our judgment, the House would be well advised to proceed with great caution before setting off down a road that might require it to reach conclusions based on Members' impressions of the impact on them of an alleged pattern of behaviour, rather than on findings of fact concerning a specific act or series of acts that can be shown to have occurred.

51. We conclude that a specific act of hacking which can be shown to have interfered with a proceeding in Parliament or to have impeded or obstructed a Member from taking part in such a proceeding could potentially be a contempt. This would be particularly so if the hacking were carried out with intent to bring about such interference, impediment or obstruction.

52. We conclude that a series of acts of hacking which, by creating a climate of insecurity either generally in the House or in one of its committees or for a Member or group of Members or officers of the House, can be shown to have interfered with proceedings in Parliament could potentially be a contempt. We note that demonstrating to a reasonable standard of proof a causal relationship between the acts of hacking and the climate of insecurity might be difficult.

53. The Clerk's question 'f)' is whether an act of hacking interferes with a Member's right to private life under Article 8 of the ECHR. We agree that this is an important question for any person who may be the victim of hacking and that the answer to it may provide a remedy through the courts. But we do not consider that it is relevant to determining whether a contempt of Parliament may have occurred, because the ECHR right attaches to an individual and not to the House.

Capacity of the House to investigate allegations of hacking

54. As the recent history of police investigations into hacking may be felt to demonstrate, the gathering of evidence concerning acts of hacking requires considerable resources and technical expertise. It is our view that the House probably lacks the capacity to investigate properly an allegation of hacking. We do not mean to suggest that it would be desirable for the House to develop such a capacity. But neither do we believe that it is desirable that the House or its Members—any more than any other institution or individual—should always be dependent on the prosecuting authorities to take the initiative in investigating such a matter.

55. The House or any of its Members or officers may of course invite the police to investigate a possible breach of the law that has come to their attention. We note that the House has also directed the Attorney General to prosecute an alleged offender, although this last happened in 1889.[50]

56. We conclude that allegations of criminal behaviour such as hacking should be investigated by the police, who possess the necessary resources and expertise, although the House should be prepared to invite the police to investigate an allegation that has come to its notice. Individual Members, just as other citizens, are able to ask the police to investigate specific allegations affecting them. The House should instruct the Law Officers only in the most exceptionally urgent or serious cases.

57. Lord Lester reminded us that the Committee on Standards and Privileges is not a judicial body; its procedures were not designed to be compliant with Article 6 of the European Convention on Human Rights.[51] In 1999, the Joint Committee reached a similar conclusion.[52] Professor Bradley, however, noted a recent judgment of the European Court of Human Rights, that "a wide margin of appreciation is left to member States" in "the realm of parliamentary law" and told us:

It must not be assumed that the contempt jurisdiction of the House of Commons will in all respects fall foul of the Strasbourg jurisprudence.[53]

We note the caution that is so evident in this statement.

58. We subscribe to the dictum, now well established in Parliament, that the House should assert its privileges sparingly. We suggest that the question mark over the compatibility with internationally accepted standards of the House's procedures for the investigation of possible breaches of privilege by non-Members reinforces the wisdom of this approach. The question of whether those procedures should be reviewed against the provisions of convention obligations is one to which the House may wish to turn its attention when it considers the forthcoming draft Privileges Bill.

Sanctions

59. Lord Nicholls gave powerful evidence that the House lacks the necessary powers to deal with offenders:

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.[54]

The House has not fined anyone since 1666 and it has not committed anyone to custody (although it has detained people temporarily) since the 19^th Century.[55] It is thus less than entirely clear that the House retains the power to do either. In 1999, the Joint Committee recommended giving the Commons a statutory power to fine.[56] In so recommending, the Joint Committee repeated calls made by committees of this House in Reports published in 1967 and in 1977.[57] It also recommended the abolition of both Houses' powers of imprisonment (but not those of temporary detention). The House may reprimand offenders at the bar of the House but has not done so since 1957, possibly for the reasons Lord Nichols advanced in his evidence, or possibly because such a sanction would now appear high-handed. In our view, the imposition of a fine, where justified by the facts and by the circumstances, is more consistent with modern practice and would be more likely to be proportionate to an offence such as hacking.

60. We suggest that the power to reprimand an offender in person at the bar of the House, though not used in recent times, should continue to be available. We recommend that measures to implement the recommendations of the Joint Committee that the House should lose its powers of imprisonment and should be given a statutory power to fine offenders be included in the draft Privileges Bill.

18 Evidence p19 Back

19 Evidence pp19, 20 and 23 Back

20 First Report from the Procedure Committee, Session 1996-97, Standing Orders Revision, paragraph 15. See also Q67 Back

21 Evidence p35 Back

22 Evidence p36 Back

23 Evidence pp23 and 24 Back

24 First Report from the Joint Committee on Parliamentary Privilege, Session 1998-99 , HC 214 Back

25 Joint Committee on Parliamentary Privilege, paragraph 3 Back

26 Joint Committee on Parliamentary Privilege, paragraph 129 Back

27 Joint Committee on Parliamentary Privilege, paragraphs 103 to 112 Back

28 R v Chaytor and others, Supreme Court judgment UKSC 52, paragraph 47 Back

29 R v Chaytor and others, Supreme Court judgment UKSC 52, paragraph 61 Back