Written evidence submitted by John Hemming
MP, 16 September 2010
1. The question has been asked as to whether
hacking into Members of Parliaments mobile phones is a Contempt
of Parliament. There is only really one possible answer to this
question which is in the affirmative. This submission is written
to explain why that is. There are two appendices which are the
law report of Rivlin v Bilainkin and the report of the Committee
of Privileges of the Victoria State Parliament in respect of the
Leighton Case.[1]
2. In this submission I will look at the issue
in two ways. The first approach will be to look at the practical
principles of bugging communications and the second approach will
be to consider the law of parliament and what precedents exist
to justify the more general approach.
3. The House of Commons has had the power to
punish Contempts of Parliament to that parliament can do its job.
There are many ways in which parliament could be disrupted which
would not ordinarily be covered by the criminal law. However,
Parliament holds a key role in being the mechanism by which people
without any power have a voice and influence on what happens in
the country. Parliament is the key institution for democracy to
function. That which prevents Parliament from functioning undermines
democracy and strikes at the weakest and most vulnerable in society.
4. Technology has moved on since the creation
of Parliament in 1215 hence there will be historically few precedents
relating to technical issues simply because they practically could
not arise.
5. The basic principles that justify my claim
in paragraph 1 ante are as follows:
(i) For parliament to function individual members
of parliament need to have private conversations with others both
within parliament and outside parliament where those conversations
are linked with parliamentary proceedings.
(ii) It is not possible when intercepting the
communications (letters, emails, phone calls, oral conversations
generally) of members of parliament to have a system which distinguishes
between those conversations which are linked to proceedings in
parliament and those conversations which are not linked to proceedings
in parliament.
(iii) Hence any interception or monitoring of
communications between MPs and others is indeed a Contempt of
Parliament.
6. To consider how communication monitoring is
a Contempt of Parliament it is important to consider how it affects
people's willingness to talk to MPs about proceedings in parliament.
7. There are many situations in which people
communicate with MPs about proceedings in parliament. They can
provide information that is used in a speech, ask about information
that may be used in a question or discuss things with an MP that
are used in a division. The function of MPs is to obtain information
from people and then use that information to inform their judgment
to decide what to do in proceedings in parliament.
8. Anything that acts to prevent MPs receiving
that information otherwise willingly given is clearly undermining
parliament itself.
9. There are times when people provide information
to MPs about matters that they would not wish anyone to hear about
them providing that information. For example:
(a) In 2007 a Social Worker came to see me to
talk about how he had historically conspired with solicitors acting
on behalf of parents to undermine their clients' cases. In doing
so he was admitting that he had committed a criminal offence.
He explained how this was custom and practice. This was important
information to me and informed inter alia EDM 11 in session 2008-09
and EDM 126 in session 2007-08.
(b) On 8 September 2010 I was contacted by someone
who worked for a psychologist who provides expert opinion to the
family courts. She explained how the psychologist set up parents
to automatically fail their assessments. She may be willing to
identify herself at a later stage, but is currently nervous about
doing so. This was used in a debate on 9 September 2010.
(c) At my advice bureau I have employees of the
City Council coming to express concerns about employment matters
in the city council. They ask to be kept anonymous. I have, however,
written to the city council on their behalf.
(d) In two cases constituents have been bullied
by the city council and a particular judge (HHJ Cardinal) in an
attempt to stop them communicating with me about their cases.
Both cases have appeared in parliamentary proceedings in various
forms.
(e) In a case related to MG Rover I sat with
one of the directors in a car park because he was worried about
being overheard in respect of the conversation that occurred.
This has not been used in parliamentary proceedings.
10. Points a), b) and d) are matters where the
issues are clearly linked to parliamentary proceedings. They are
also matters where, had the individuals concerned believed that
there was a chance that the conversation would be monitored that
they would not have taken the chance of talking to me.
11. It is clear from the above that monitoring
of MPs conversations (and actually those of their offices as well)
where linked to parliamentary proceedings undermine parliament's
ability to function collectively. Parliament cannot function if
its eyes and ears (the MPs) are prevented from listening and watching
the world outside parliament. It is not possible to have a monitor
that automatically ignores all conversations that are not linked
to parliamentary proceedings. And hence any monitoring of private
conversations between MPs and others is a contempt of parliament.
Obviously this does not apply to public communications, but it
does apply to private communications.
12. I will now go on to look at the questions
in relation to the law of parliament.
13. My legal argument is that private communications
between individual MPs and others which are willingly entered
into by the others (and the MP) and that are linked to parliamentary
proceedings are covered by Article IX and any attempts by others
to intervene in the conversations by restricting them or monitoring
them in any way without the permission of the MP is a Contempt
of Parliament.
14. There has only been one legal case in the
UK courts about communications with MPs. That case is Rivlin v
Bilainkin (1952).[2]
It found that a communication with an MP that is not linked to
a proceeding in parliament is not privileged. (HELD: as the publication
was not connected with any proceedings of the House, its delivery
to a member of Parliament was not privileged, and the defendant
was guilty of contempt of court.)
15. The English speaking common law jurisdictions
tend to have similar laws in respect of parliament and hence precedents
from those are relevant to this issue. One key precedent is the
case of Michael Leighton who was the member for Preston in the
State Parliament of Victoria, Australia. A firm of lawyers attempted
to stop a constituent of his from telling him about problems with
a Caravan Park. In this case the legal firm was found to be in
contempt even though their threat was an indirect threat against
his constituent rather than a direct threat against the Member
himself. That is because the communication was clearly linked
to a proceeding in parliament and hence acted to prevent the Member
from performing his function as part of the collective functioning
of parliament.
16. The key tests in terms of the law of parliament
is, therefore:
(a) That the communication is linked to or connected
with a proceeding in parliament.
(b) That the communication is willingly entered
into by both parties
(c) That the communication is private other than
any proceeding in parliament.
17. The need for protection of communications
between elected representatives and other people is recognised
outside the common law jurisdictions. For example Article 47 of
the German Constitution gives members of the German Bundestag
the right to refuse to give evidence concerning persons who have
confided information in them in their capacity as Members of the
Bundestag. Similarly documents cannot be seized and no evidence
need be provided about any information held by members of the
Bundestag. Many German regions also have such constitutional provisions.
18. I do not think there is any uncertainty about
this. MPs need to be able to have private conversations with their
constituents and others about proceedings in parliament otherwise
they are unable to represent their constituents properly and parliament
is undermined. Constituents need to have confidence in the privacy
of communicating with their MP. Any monitoring of MPs conversations,
therefore, undermines parliament collectively.
I would be happy to attend the committee to give
evidence if requested by the committee.
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