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

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   Q26 Back

60   Q56 Back

61   Q57 Back

62   Q54 Back

63   Q55 Back

64   Q56 Back

65   Q61 Back

66   Q61 Back

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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