Parliament and the courts
61. We have concluded that a specific act of
hacking an MP's phone could potentially be a contempt of the House,
depending on the facts of the case. It is also clear that a specific
act of hacking anyone's phone—including an MP's phone—could
be a breach of the law. The Clerk of the House told us that:
If a Member in the course of his duties were attacked
and injured in some way, in a criminal way, that would be a matter
for criminal proceedings in the courts, but, of course, it would
impede a Member in his activity in the House. In the most general
sense therefore it would be a contempt. But I do not think the
House would do anything about that in that context because there
was a criminal sanction.[58]
He added:
The House itself—and this is reiterated by
the Joint Committee on Parliamentary Privilege—has taken
the view that it should exercise its jurisdiction, if I can use
that word, rather sparingly. The House should not pursue privilege
if it is not thought to be greatly interfering with the House's
work. That is the sort of principle that has grown up.[59]
62. As already stated above, it is our view that
acts of hacking should be investigated by the police and that
hackers should be proceeded against in the courts. But what happens
next? Is Parliament then able to proceed against the alleged hacker
for the quite separate offence of contempt? In this final chapter
of our Report, we consider the relationship between the overlapping
jurisdictions of Parliament and the courts. Specifically, we seek
to answer the question, how should the House exercise its exclusive
jurisdiction over behaviour amounting to contempt in a case which
has already been investigated by the police or which has been
before the courts?
63. Professor Bradley told us that:
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.[60]
64. Lord Lester agreed that an act of hacking
may be both subject to proceedings in the courts and a possible
contempt of Parliament:
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.[61]
But in Lord Lester's view, the matter had to be pursued
in one or other jurisdiction:
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.[62]
He added:
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.[63]
65. Referring to the possibility that the House
might proceed for contempt against someone who had been acquitted
by a court, Lord Nicholls said:
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.[64]
Turning to the question of whether the House could
act in the event that the prosecuting authorities declined to
take action, Lord Nicholls added:
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.[65]
66. Professor Bradley concurred with this analysis:
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.[66]
67. We agree that the House must be able to deal
with a specific act of hacking as a possible contempt in cases
where the prosecuting authorities or the courts do not deal with
the matter. But in doing so, we (like the Joint Committee before
us) support the view expressed by the Committee of Privileges
in 1967 and endorsed by the House in 1978 that,
... the House should exercise its penal jurisdiction
(a) in any event as sparingly as possible, and (b) only when it
is satisfied that to do so is essential in order to provide reasonable
protection for the House, its Members or its Officers from such
improper obstruction or attempt at or threat of obstruction as
is causing, or is likely to cause, substantial interference with
the performance of their respective functions.[67]
We would therefore expect the legal and judicial
processes to take priority in all but the most exceptional cases.
And there should be no special provision made in law to provide
MPs or Parliament with remedies for phone hacking through the
courts that are not available to others. The law must apply equally
to all.
68. We recommend that, in any matter such
as hacking for which a remedy may be available in law, the House
should normally expect all steps to be taken to obtain such a
remedy before a Motion is brought before the House to refer the
matter to the Committee on Standards and Privileges for investigation
as a possible contempt, save in exceptional circumstances, such
as a failure on the part of the prosecuting authorities to act,
or the existence of an immediate and severe threat to the working
of Parliament.
69. We recommend that, in a case where a person
has been acquitted by a court of a charge relating to a matter
which may also amount to a contempt, such as hacking, no Motion
should be brought before the House to refer the matter to the
Committee on Standards and Privileges, save in exceptional circumstances,
such as the alleged involvement of a Member in carrying out the
hacking.
70. We recommend that, in a case where a person
has been convicted by a court of a charge relating to a matter
which may also amount to a contempt, such as hacking, there should
be a presumption that the House will exercise its own penal jurisdiction
only when it is satisfied that to do so is essential.
58 Q10 Back
59
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67
CJ (1977-78) 170, agreeing to paragraph 4 of the Third Report
from the Committee of Privileges, HC (1976-77) 417. Back
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