Written evidence submitted by the Clerk
of the House and Chief Executive of the House of Commons, 7 October
2010
INTRODUCTION
1. On 8 September 2010, the Speaker informed
the House that he had decided to grant precedence to a complaint
from Chris Bryant, Member for Rhondda, relating to the hacking
of mobile phones of honourable and Right honourable Members.[3]
2. The House approved Mr Bryant's Motion on 9
September 2010, and ordered that the hacking of honourable and
Right honourable Members' mobile phones be referred to the Committee
on Standards and Privileges.[4]
In the debate Mr Bryant said his complaint was that interception
of mobile phone messages of Members, the tapping of their phones,
the bugging of their conversations and interception of their e-mails
or attempts to take such actions, amounted to contempts.[5]
3. The Committee has asked me for a memorandum
on whether, and if so in what circumstances, the hacking of Members'
mobile phones could amount to a contempt of Parliament.
CONTEMPTS IN
GENERAL
4. Generally speaking, any act or omission which
obstructs or impedes either House of Parliament in the performance
of its functions, or which obstructs or impedes any Member of
the House in the discharge of his or her duty, or which has a
tendency, directly or indirectly, to produce such results, may
be treated as a contempt even though there is no precedent of
the offence.[6]
5. As Erskine May goes on to explain,
it is therefore impossible to list every act that might be considered
to amount to a contempt, but the broad principle of not impeding
or obstructing Members or Officers of the House in the discharge
of their duties lies behind the House's view of what is likely
to be regarded as misconduct. Such misconduct ranges from disorderly
behaviour by members of the public (such as creating disturbances
in the galleries or at Committee meetings) to frustrating the
work of Committees by a refusal to co-operate with them. Deliberately
misleading a Committee in any way would amount to a serious contempt.
6. In respect of Members of the House, the acceptance
of bribes or refusal to serve on committees have been regarded
as contempts. Constructive contempts include reflections on individual
Members, publication of false or perverted reports of debates
and premature publication of committee proceedings.
7. Attempting to intimidate a Member in his or
her parliamentary conduct by threats is also a contempt. Such
contempts have ranged from threatening Members not to take part
in proceedings of the House (including debates) to threatening
Members with bad publicity on account of their action or other
personal consequences if they raised matters in the House (for
examples, see Annex 1).
8. Two important factors should be noted. The
first is that not all activities of Members fall under the protection
of privilege. By and large, Members' communications with constituents
are not part of proceedings in Parliament and would only
fall within the ambit of privilege if they are closely related
to such proceedings. Secondly, as noted above (in paragraph 4)
the House may treat a matter as a contempt even though there is
no precedent of the offence. This point may be significant in
the context of modern technology where it is considered that it
is being used in a new way that amounts to "obstructing"
or "impeding".
9. Contempts may be punishable by the House although
in modern times the House has exercised its right to punish sparingly.
I shall return to the matter of sanctions towards the end of my
memorandum.
INTERCEPTION OF
MEMBERS' COMMUNICATIONS
10. The Committee is asked to consider the unauthorised
hacking of mobile phones used by Members of Parliament. It may
be useful at this point to be reminded of the Wilson doctrine
which applies to authorised telephone tapping.
11. The "Wilson doctrine" was set out
in answer to questions in the House of Commons on 17 November
1966. The then Prime Minister, Rt Hon Harold Wilson, said that
he had given instructions that there was to be no tapping of the
telephones of Members of Parliament and that if there were a development
which required a change of policy he would at such moment as was
compatible with the security of the country make a statement in
the House about it.[7]
The Wilson doctrine has been maintained under successive administrations.
In 2006 Prime Minister Blair re-affirmed the doctrine despite
changes in the legal procedures governing interceptions and the
doctrine was confirmed by Prime Minister Brown in 2009.[8]
PRECEDENTS IN
RESPECT OF
INTERCEPTION OF
WRITTEN COMMUNICATIONS
12. There are few direct precedents on the unauthorised
interception of written communications addressed to Members, since
it is generally unlawful to interfere in a communication addressed
to another: for example, under section 84 or the Postal Services
Act 2000, a person commits an offence if, without reasonable excuse,
he intentionally delays or opens a postal packet in the course
of its transmission by post. Special statutory provision for members
of Parliament had not been thought necessary. As far back as 1689,
however, one can find the House insisting that breaking open
letters directed to or sent from Members is a breach of privilege.[9]
13. The House of Commons Journal records two
18th century complaints about letters going astray. On 28 March
1727, a complaint was made to the House that several Post letters
directed to Members of the House had been intercepted and taken
out of the Boxes appointed for them at the Door of the House.
In order to prevent any re-occurrence of this misconduct the House
set out the duties of postal deliverers in Orders. Failure to
comply with them would amount to a contempt.[10]
14. In the following year, on 22 May 1728, another
complaint was made to the House that several Post letters directed
to Members of the House had been intercepted, or lost, or taken
out of the boxes appointed for them at the door of the House.
The Journal entry of the previous year (as above) was read and
the House then passed very similar Orders to those from 1727 which
thereafter became, first, Sessional and, later, Standing Orders
of the House.
15. These Orders were made every Session shortly
after the State Opening among the usual Sessional Orders, which
also covered Elections, Witnesses, etc. from 21 January 1728/9
(the Journal date is 21 January 1728, from an era when the calendar
year began on 26 March) until 1852.
16. On 25 February 1822 a Member (Mr James) raised
as a matter of privilege interference by the prison authorities
with correspondence, including drafts of Public Petitions, between
a Member and a prisoner in Lancaster gaol. In the debate, Mr Secretary
Peel moved the previous Question which was negatived (ie, no decision
was taken by the House). What had been at issue in this case was
whether parliamentary privilege could be over-ridden by prison
authorities exercising their statutory powers. Mr Peel asserted
that the House of Commons had never considered that it was exempt
from the operation of the law and clearly recognised that, in
cases where it might be necessary for a Secretary of State to
order the opening of a letter, the privilege of the House of Commons
was not reserved. The House would not claim any privilege which
would interfere with the criminal justice of the country.[11]
17. The Select Committee on Standing Orders Revision
of 1852 recommended in its Report of 21 June 1852 that a number
of Resolutions and Sessional Orders, including the Sessional Order
relating to Letters passed on 18 February 1852, be made Standing
Orders of the House, which was done on 25 June 1852.[12]
18. The Standing Orders about Members' letters
were maintained in substantially the same form until the Select
Committee on Procedure's Report on Standing Orders Revision which
recommended the repeal of the Standing Orders then numbered 144
to 146 as obsolete.[13]
The House agreed on 20 March 1997 that these three remaining Standing
Orders relating to Letters be repealed with effect from the beginning
of the 1997-98 Session.
19. The history of the Standing Orders thus demonstrates
that for three and half centuries the House made provision "to
prevent the intercepting or losing of letters directed to Members
of this House". The Committee may wish to take the view that
the House should act, in the same spirit, to protect the security
of messages sent or received by Members on their mobile phones.
PRIVILEGE CASES
INVOLVING NEWSPAPERS
20. There is a case of a newspaper apology for
having deceitfully acted in the name of a Member. The Committee
of Privileges stated (in the Aitken/Guardian cod fax case)
that "it is a contempt of the House to purport to act
in the name of a right honourable or honourable Member of the
House without that Member's authority".[14]
In view of the apology submitted in that case to the Committee
by The Guardian's editor, no further action was taken.
21. In another privileges case involving a newspaper
(cash for questions), the Committee of Privileges observed that
"there can be circumstances in which the conduct of a particular
newspaper or broadcasting organisation might be such as to undermine
or obstruct Parliament in the performance of its functions, or
actions by the media may place unwarrantable pressures upon Members
in carrying out their duties to the House and their constituencies".[15]
In the same Report, the Committee concluded that "the taking
of clandestine recordings is manifestly a contempt of the House".[16]
CONVENTION RIGHTS
22. While the unlawful interception of communications
is subject to criminal and civil penalties, there is no specific
provision in statute law aimed at protecting against interception
of communications to or from Members of Parliament. Under Article
8 of the European Convention of Human Rights, a person has a right
to respect for their private and family life, home and correspondence
(emphasis added). The ECHR was adopted in 1950 by the Council
of Europe, of which the UK was a founding member. Convention rights
have been directly enforceable in UK courts since commencement
of the Human Rights Act 1998.
COMMONWEALTH PRECEDENTS
23. A brief summary of some recent Commonwealth
precedents is given at Annex 3. While no example of specific legal
provision to give additional or entrenched protection to communications
of Members of Parliament over and above the law applicable to
citizens generally has been found (and doubt has been expressed
about the desirability of such a provision—in India, for
example), the principle of Members being able to operate freely
without interference has been asserted and electronic surveillance
has been considered a grave contempt (British Columbia).
CURRENT MATTER:
DECISION ON
CONTEMPT
24. The Committee needs to establish, in the
first place, whether and by whom there has been unauthorised interception
of Members' mobile telephone communications.
25. If that fact is established, it is then for
the Committee to consider whether such unauthorised interception
amounts to a contempt.
26. My advice is that in reaching its decision,
the Committee should consider the following questions:
(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? (ie 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?
27. On the allied question of whether a witness
or witnesses deliberately misled a Committee of the House when
giving evidence on this matter in 2009, I can advise the Committee
that if that fact or facts are established, a contempt would have
been committed which may be punishable.[17]
GENERAL CONSIDERATION
28. The Committee may also wish to consider whether
Members should be protected in a way different from any other
citizen who is the victim of hacking.
SANCTIONS
29. The House of Commons has not imposed a fine
since 1666.[18]
The House of Commons has the power to direct the Speaker to issue
a warrant to the Serjeant at Arms, and if appropriate to a governor
of a prison, to commit a person into custody.
30. Where the offence is not so grave as to warrant
the committal of the offender, he may be brought to the Bar of
the House by the Serjeant at Arms and there reprimanded by the
Speaker in the name and by the authority of the House. The last
time anyone was summoned to Bar of the House was on 24 January
1957 when the Editor of the Sunday Express, apologised for some
remarks he had printed about Members and petrol rationing in the
aftermath of Suez. In 1968 a Member of the House was reprimanded
standing in his place in the House for leaking a select committee
report.[19]
31. Since the 1960s, it has been the practice
of the House to exercise its penal jurisdiction as sparingly as
possible and when it was essential to do so in order to provide
reasonable protection for the House, its Members or officers from
improper obstruction or attempt at or threat of obstruction causing,
or likely to cause, substantial interference with the performance
of their respective functions.[20]
32. When a prima facie contempt is referred
to the Committee on Standards and Privileges, it falls to the
Committee to exercise its judgement in recommending to the House
what action, if any, should be taken in the particular case referred.
A UK PARLIAMENTARY
PRIVILEGES ACT?
33. In the course of its deliberations, the Committee
may wish to consider the question of legislation on parliamentary
privilege which the Government has indicated will be initiated
in the form of a draft bill brought to the House. The question
of the desirability of incorporating into statute law matters
which for centuries Parliament has dealt with under its own authority
raises an acute dilemma. By embedding privilege in statute, Parliament
will be putting matters of interpretation of that statute into
the jurisdiction of the courts; by not doing so, what may be seen
as "gradual encroachment" by the courts into what is
widely seen as an ill-defined area may continue. On the other
hand, it should be recognised that it is already the case that
privilege is partially based on statute (in the Bill of Rights
1689) and that the courts have long taken the view that they have
a locus in defining the boundaries of privilege. Considering
the matter in 1999, the Joint Committee on Parliamentary Privilege
came to the conclusion that an Act was desirable.[21]
34. One of the Joint Committee's main arguments
in favour of such an Act (in addition to its important drawing
together of privilege issues including a codification of contempt)
would be that it would make it easier for both Members of Parliament
and the Electorate to understand the meaning and importance of
parliamentary privilege by setting out an "accessible code".[22]
A number of further arguments in support of a statute have been
advanced including the need to redefine boundaries between Parliament
and the courts in the light of increased interventions by the
House in proceedings to prevent, for example, the use of select
committee evidence as the basis of litigation. A similar increase
in cases of this sort in Australia led to the passing of their
Parliamentary Privileges Act 1987.
35. With the imminent prospect of legislation
which will affect permanently the operation of Parliament, it
is more than ever necessary to make clear what is the nature of
parliamentary privilege. Parliamentary privilege is not about
special treatment or advantages for MPs; rather, it is vitally
necessary to enable Parliament to conduct its legitimate business
without interference. This is exemplified by, but not limited
to, the privilege of freedom of speech in parliamentary proceedings
so that (for example) words spoken in the House and its Committees,
by witnesses as well as by Members, may not be used in evidence
against them. Privilege is by no means synonymous with privacy:
the words spoken in the Chamber and recorded in Hansard's Official
Report are privileged but such proceedings are entirely open
to the public to attend, they are broadcast on radio and television,
they are available as audio-visual recordings and they are published
in written form in print and on the Internet. There is also the
area of the Houses' internal jurisdiction or cognisance which
enables them to regulate their own proceedings without outside
interference.
36. It is important to note that the protection
of parliamentary freedom is recognised throughout jurisdictions
where parliaments operate with some independence from Governments.
The Bill of Rights 1689 and the practices of our Parliament in
matters of privilege are reflected throughout Commonwealth parliaments
and legislatures. In the landmark case of A v the UK (in
which the matter of a Member's right to free speech was the subject
of an action in the European Court of Human Rights), the UK was
supported by a large number of Member States of the European Union,
all of whom have privilege protections in place.[23]
37. After careful consideration of the matter
over many years, my own view is that the time has come for a Privileges
Act. However it should be recognised that such an Act is a significant
change from our tradition and is, in a sense, a move toward a
written constitution.
Annex 1
ERSKINE MAY ON CONTEMPTS
To attempt to intimidate a Member in his or her parliamentary
conduct by threats is a contempt. Actions of this character which
have been proceeded against include:
- impugning the conduct of Members and threatening
them with further exposure if they took part in debates;
- threatening to communicate with Member's constituents
to the effect that, if they did not reply to a questionnaire,
they should be considered as not objecting to certain sports;
- publishing posters containing a threat regarding
the voting of Members in a forthcoming debate;
- informing Members that to vote for a particular
bill would be treated as treasonable by a future administration;
- summoning a Member to a disciplinary meeting
of his trade union in consequence of a vote given in the House
- threatening to end investment by a public corporation
in a Member's constituency if the Member persisted in making speeches
along the lines of those in a preceding debate.
Erskine May (23rd edition) p 146
Annex 2
RESOLUTIONS OF THE HOUSE RELATING TO LETTERS
ORDERS FROM
THE JOURNAL
OF THE
HOUSE OF
COMMONS, 28 MARCH
1727 VOL 20 (1722 TO
1727 P 820)
THAT, to prevent the Intercepting of Letters belonging
to the Members of the House for the future, the Person appointed
to bring them from the General Post-office do constantly attend
Two Hours, at the least, after the Rising of the House, at the
Place appointed for the Delivery of the said Letters; and take
care, during his Stay there, to deliver the same to the several
Members to whom they shall be directed, and no other.
THAT the said Officer do, upon his going away, give
such Letters as shall remain undelivered to One of the Servants
belonging to the House; who shall take care to deliver the said
Letters to the several Members to whom they are directed, their
known Servants, or to such Persons who shall produce a Note under
the Hands of the Members who shall send for the same.
THAT the said Orders be sent to the Commissioners
for executing the Office of Postmaster-General.
WORDING OF
THE SESSIONAL
RESOLUTION OF
18 FEBRUARY 1852 (LAST
SESSIONAL ORDER
BEFORE CONVERSION
INTO STANDING
ORDERS)
LETTERS
THAT, to prevent the intercepting or losing of Letters
directed to Members of this House, the person appointed to bring
Letters from the General Post-office to this House, or some other
person to be appointed by the Postmaster-General, do for the future,
every day during the Session of Parliament, Sundays excepted,
constantly attend, from Ten of the clock in the morning till Seven
in the afternoon, at the Place appointed for the Delivery of the
said Letters, and take care during his stay there, to deliver
the same to the several Members to whom they shall be directed,
or to their known Servant or Servants, or other persons bringing
Notes under the hands of the Members sending for the same.
THAT the said Officer do, upon his going away, lock
up such Letters as should remain undelivered; and that no Letter
be delivered but within the hours aforesaid.
THAT the said Orders be sent to the Postmaster-General
THAT, when any Letter or Packet directed to this House shall come
to Mr. Speaker, he do open the same; and acquaint the House, at
their next sitting, with the contents thereof, if proper to be
communicated to this House.
STANDING ORDERS
NOS. 144 TO
146 (AS AT
THEIR REPEAL
IN 1997)
That to prevent the intercepting or losing of Letters
directed to Members of this House the Postmaster of the House
or other persons appointed by the Post Office shall attend daily
(Sundays excepted) for the delivery and re-direction of all letters
arriving in course of post and shall take care during their stay
there, to deliver the same to the several Members to whom they
shall be directed or to their known servant or servants, or other
persons bringing notes under the names of the Members sending
for the same.
That the said officers do, upon their going away,
lock up such Letters as shall be remain undelivered.
That, when any Letter or Packet directed to this
House, shall come to Mr Speaker, he do open the same; and acquaint
the House, at their next sitting, with the contents thereof, if
proper to be communicated to the House.
Annex 3
SOME COMMONWEALTH PRECEDENTS
In the Australian Capital Territory (2002) the perpetrator
responsible for diverting a Member's e-mail was not found.
In British Columbia (1980) the Legislative Assembly
adopted a Report from its Special Committee of Privileges which
had concluded that an authorized interception (wiretap) of a Member's
communications by the Royal Canadian Mounted Police amounted to
a breach of privilege and a contempt of the House. According to
the Special Committee on Privileges, "parliamentary democracies
flourish only when member and constituent can communicate freely,
openly and candidly without having the spectre of interception
. . . interfering with such communications".
In British Columbia (1990), the Speaker stated that
it was imperative "that it be universally recognized and
remembered that electronic surveillance, even although it may
not be in breach of other laws, is a grave contempt of this House".
In India (1960), the Speaker declined to give precedence
to a Member's complaint of phone-tapping: "except in the
discharge of their duties, for which they have some privileges
here, Members ought not to claim any special privileges outside
which an ordinary citizen does not have".
In Victoria (1988), the Committee found that no breach
of privilege had occurred or contempt committed in relation to
a Member's opening and dissemination of a letter from the Leader
of the Opposition to a third person.
In Western Australia (1993) the Legislative Assembly
did not approve a motion to establish a Select Committee of Privilege
to inquire into whether the presence of a listening device in
the house of a Member constituted a threat to the free exercise
of the parliamentary duties of that Member or any other Member
of the House. In a previous (1988) case, a Select Committee of
Privilege which was established to enquire into a Member's allegation
that Government Members had been involved in a conspiracy to have
the facilities, offices or homes of certain people in Perth bugged
resulted in censure of the Member himself for a serious breach
of privilege.
3 HC Deb 8 September 2010 vol 515 col 323 Back
4
HC Deb 9 September 2010 vol 515 cols 478-93 Back
5
Ibid c 478 Back
6
See Erskine May (23rd edition) p 128 Back
7
HC Deb 17 November 1966 vol 736 cols 634-41 Back
8
For a full account, see First Report of Session 2009-10 from the
Committee on Issue of Privilege (Police searches on the Parliamentary
Estate) HC 62, para 154 Back
9
Colonel Copley, the Lieutenant Governor of Hull, had seized and
broken open the Post Letters, including a letter from Edward Thompson
MP, House of Commons Journal for 21 June and 13 August 1689
CJ vol 13 (1689 to 1702) p 191 and p 265 Back
10
The texts of the Resolutions are set out in Annex 2. Back
11
HC Deb 25 February 1822 vol 6 cols 644-63 Back
12
The texts of the Resolutions are set out in Annex 2. Back
13
First Report of Session 1996-97 from the Select Committee on Procedure,
HC 95, Back
14
First Report of Session 1995-96 from the Committee of Privileges,
Complaint concerning the alleged action of "The Guardian"
newspaper in representing that a letter sent by it to the Ritz
Hotel, Paris was sent in the name of a Member of this House,
HC 161, para 6 Back
15
First Report of Session 1994-95 from the Committee of Privileges,
Complaint concerning an article in The Sunday Times of 10 July
1994 relating to the conduct of Members, HC351-I, para 9 Back
16
HC 315-I, para 59 Back
17
See Erskine May (23rd edition) p 132 and p 725 Back
18
ibid p 161 Back
19
HC Deb 24 July 1968 vol 769 cols 587-666 Back
20
See Erskine May (23rd edition) p 167 Back
21
Report of Session 1998-99 from the Joint Committee on Parliamentary
Privilege, HL 43 HC 214 Back
22
Ibid, paras 378-85 Back
23
See Erskine May (23rd edition) p 199 Back
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