Written evidence submitted by the Lord
Lester of Herne Hill QC,[24]
3 November 2010
INTRODUCTORY
1. On 9 September 2010, the House of Commons
decided, at the request of Mr Chris Bryant MP, to refer to the
Committee on Standards and Privileges ("the Committee")
the matter of "hacking" of the mobile phones of Members.
This memorandum is prepared at the Committee's invitation to submit
evidence on whether and if so in what circumstances hacking of
MPs' telephones could be a contempt of Parliament and therefore
subject to the penal jurisdiction of each House. For that purpose
I have been provided with a copy of the evidence already submitted
to the Committee by the Clerk of the House of Commons, Dr Malcolm
Jack.
2. "Hacking" in current usage most
commonly refers to gaining unauthorised access to computer resources,
such as databases or websites. As Dr Jack notes, during the debate,
Mr Bryant MP explained that his complaint is that the 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, amount to a punishable contempt
of Parliament. In other words, Mr Bryant MP's complaint is not
confined to hacking into mobile phones, and it would be difficult
to address the issues by treating mobile phones as a special category
different from other devices.
3. Like Dr Jack, for the purpose of my evidence,
I will treat the question as involving the interception of electronic
and other communications to or from Members of Parliament, including
the collection and storage of traffic details of all internet
and mobile use.
4. It is unclear whether what is proposed by
Mr Bryant MP would seek to distinguish between information concerning
the private lives of MPs and their parliamentary activities, or
any information; and it is unclear whether his proposal would
make exceptions to this extension of the penal powers of Parliament,
for example, for the interception of communications when investigating
terrorist or other serious crimes or to expose corrupt practices,
or for the Home Office project to track the email, internet and
mobile phone use of everyone in the UK. The Committee may wish
to clarify this.
5. A central question posed by Dr Jack is whether
Members should be protected in a way different from any other
citizen who is the victim of "hacking". A similar issue
arose when attempts were made during the previous Parliament to
exempt from the Freedom of Information Act both Houses of Parliament
and MPs' correspondence.[25]
One reason why these attempts were controversial was because they
seemed designed, at least in part, to serve the interests of individual
MPs rather than the public interest. As Dr Jack observes (paragraph
35), parliamentary privilege is "not about special treatment
or advantages for MPs", and is "by no means synonymous
with privacy".
6. Another central question raised by Mr Bryant
MP's proposal is whether a member of the public should be made
subject to the double jeopardy of liability under the general
criminal law and civil law and also under offences against MPs
and Parliament, to be fashioned by Parliament and to be tried
and punished by a parliamentary committee. That question involves
issues of compatibility with the requirements of fairness prescribed
by Articles 6 and 7 of the European Convention on Human Rights
("the Convention") and by the common law.
SUMMARY OF
OPINION
7. In my opinion:
(i) Current criminal and civil law makes the
unauthorised interception and the misuse of electronic and other
communication of information and opinions unlawful, including
"hacking" into mobile telephones or other devices, as
well as correspondence by letter or email.
(ii) Parliamentary privilege does not extend
to such abuses.
(iii) Current criminal and civil law provides
adequate sanctions and redress for the individual (whether a Member
of Parliament or of the public) against wrongful interception
or misuse.
(iv) Only the core activities of Parliament should
be covered by parliamentary privilege. In the words of the Report
of the Joint Committee on Parliamentary Privilege ("the Joint
Committee"),[26]
"the privileged areas must be so closely and directly connected
with proceedings in Parliament that intervention by the courts
would be inconsistent with Parliament's sovereignty as a legislative
and deliberative assembly".
(v) In the context of criminal charges, parliamentary
privilege should be narrowly construed so as not to duplicate
criminal law and trespass upon the role of the Judiciary in interpreting
and applying ordinary law.
(vi) It would be both wrong in principle and
unnecessary in practice to extend parliamentary privilege as proposed.
(vii) It would be difficult to define an extension
of parliamentary privilege in a way which avoided the twin vices
of vagueness (in breach of the principle of legal certainty) and
over-breadth (in breach of the principle of proportionality).
(viii) Such an extension would risk creating
conflicts and misunderstandings between Parliament and the courts,
in breach of the constitutional principle of the separation of
powers between the judicial and political branches of government.
(ix) It would also be inconsistent with the principle
of equality before the law and the equal protection of the law.
(x) It would in addition risk resulting in conflicts
with the UK's obligations under the Convention.
BACKGROUND
8. The basic features of parliamentary privilege
are conveniently summarised in Halsbury's Laws of England, (5th
ed 2010), Vol. 78, title "Parliament" [citations omitted]
("Halsbury's laws").
9. Both Houses of Parliament have long claimed
the exclusive cognisance of their own proceedings. This claim
involves the exclusion of review by any court of the application
of the procedure and practice of either House to the business
before it. The courts recognise that it would be impracticable
and undesirable to conduct an inquiry concerning the effect or
effectiveness of procedures in the High Court of Parliament, or
to conduct an inquiry concerning whether in any particular case
those procedures were effectively followed: Halsbury's Laws, paragraph
1081.
10. The House of Commons and the House of Lords
claim for their Members, both individually and collectively, certain
rights and privileges which are necessary to each House and without
which they could not discharge their functions. These rights and
privileges exceed those possessed by other bodies and individuals.
In 1705, the House of Lords resolved that neither House had the
power to create any new privilege. When this was communicated
to the Commons, that House agreed. Each House is the guardian
of its own privileges and claims to be the sole judge of any matter
which in any way impinges upon them: Halsbury's Laws, paragraph
1076.
11. The courts will not allow any challenge to
be made to what is said or done within the walls of Parliament
in performance of its legislative functions and protection of
its established privileges. On the other hand, the courts take
the view that it is for them to determine whether a parliamentary
claim to privilege in a particular case falls within that area
where what is claimed is necessary to the discharge of its parliamentary
functions or internal to one or other of the Houses, in which
case parliamentary jurisdiction is exclusive, or whether it falls
outside that area, especially if the rights of third parties are
involved, where the courts would expect to form their own judgments:
Halsbury's Laws, paragraph 1078.
12. The power of both Houses to punish for contempt
is a general power similar to that possessed by the superior courts
of law and is not restricted to the punishment of breaches of
their acknowledged privileges. Any act or omission which obstructs
or impedes either House in the performance of its functions, or
which obstructs or impedes any Member or officer of the House
in the discharge of his duty, or which has a tendency to produce
such a result, may be treated as a contempt even if there is no
precedent for the offence. In deciding whether or not to proceed
against a person in regard to whom a charge of contempt has been
made, the House of Commons has particular regard to the resolution
of February 1978 that such action should be taken only when the
House is satisfied that to do so is essential in the interests
of reasonable protection against obstruction causing or likely
to cause substantial interference with its functions: (Halsbury's
Laws, paragraph 1083).
13. The Committee of Privileges of the House
of Commons has advised that parliamentary privilege does not protect
those who may volunteer information of public concern to Members
in their personal capacity. However, the position of someone providing
information to a Member in connection with the exercise of his
or her parliamentary duties has in some instances been regarded
as enjoying qualified privilege at common law: Halsbury's Laws,
paragraph 1089.
THE ADEQUACY
OF CRIMINAL
AND CIVIL
LAW SAFEGUARDS
14. As Dr Jack notes (paragraph 22), the unlawful
interception of communications is subject to criminal and civil
penalties. The following summary of the current legal position
does not claim to be comprehensive.
15. As regards criminal liability, section
1 of the Regulation of Investigatory Powers Act 2000 ("the
RIPA") makes it an offence intentionally and without lawful
authority to intercept in any place in the United Kingdom any
communication in the course of its transmission by means of a
public postal service or a public or private telecommunication
system.[27]
Section 55 of the Data Protection Act 1998 makes it an offence
unlawfully to obtain or misuse personal data. Section 84 of the
Postal Services Act 2000 makes it an offence without reasonable
excuse intentionally to interfere with mail.
16. As regards civil liability, the right
to be "let alone" has long been recognised by English
courts, as has the right to respect for private life, home and
correspondence. The misuse or unauthorised disclosure of private
information is a cause of action which the English courts have
developed out of the common law action for breach of confidence
in order to give full effect to Articles 8 and 10 of the Convention:
see eg, Campbell v MGN Ltd [2004] 2 AC 457 (HL), at [14]-[17]
per Lord Nicholls; Tchenguiz v Imerman [2010] 2
FLR 814, at [65], per Lord Neuberger. These Articles are
now "the very content of the domestic tort which the English
court has to enforce", and the principles are structured
by reference to Strasbourg case law: McKennitt v Ash [2008]
QB 73, at [11] and [40].
17. It has not been suggested, nor is it the
case, that these criminal and civil sanctions are insufficient
to deal with instances of wrongful interference with electronic
and other communication of information and opinions as between
members of the public or as between Members of Parliament with
one another or others. It is therefore difficult to understand
why it would be appropriate or necessary to extend parliamentary
privilege to cover wrongful interference.
EQUAL PROTECTION
OF THE
LAW
18. In their judgment in R v Chaytor and Others
[2010] EWCA Crim 1910, now pending on appeal to the Supreme Court,
the Court of Appeal (Criminal Division), consisting of the Lord
Chief Justice, the Master of the Rolls, and the President of the
Queen's Bench Division, observed (paragraphs 41-42) that:
"The principle of equality before the law, and
the application of the criminal law to all citizens identically
remain fundamental to the rule of law itself…. We are all
equally subject to the law. It must be applied equally to every
citizen, including Members of Parliament. Any asserted immunities
or exemptions against criminal proceedings asserted on their behalf
must therefore be justified by reference to some further, over-arching
principle, and they can only begin to come into contemplation
in the context of the performance by Parliament of its core constitutional
functions."
The observations were similar to those of Saunders
J in his judgment at first instance in which he stated (paragraph
18) that:
"The principle that all men are equal before
the law is an important one and should be observed unless there
is good reason why it should not apply. To do otherwise would
risk bringing both the Courts and Parliament into disrepute and
diminish confidence in the criminal justice system. Parliament
does not have an effective procedure for investigating and deciding
whether a member is guilty or not guilty of criminal charges (see
paragraph 146 of the Joint Committee Report)."
19. The principle of equality without discrimination
is protected both by the common law and by Article 14 of the Convention.
Were the penal powers of Parliament to be extended in the manner
proposed, and were they applied to try and punish a member of
the public, there would be the risk of a complaint to the European
Court of Human Rights of discriminatory treatment in breach of
Article 14 read with other provisions of the Convention, and it
would be for the Government, on behalf of Parliament, to seek
to demonstrate that the difference of treatment was objectively
and reasonably justifiable.
ACCESS TO
JUSTICE AND
PROCEDURAL FAIRNESS
20. The Joint Committee commented in paragraph
146 of its report that "Parliament has long since ceased
to have the judicial features of a High Court of Parliament. Any
procedure … would need to include five key stages: investigation;
deciding whether to prosecute; presentation of the alleged allegations
(prosecution) reaching a decision (trial); and punishment (sentence).
In varying degrees neither House is properly equipped to carry
out any of these functions…. Existing procedures do not have
the in-built safeguards provided by a court of law."
21. Article 6 of the Convention guarantees the
right of access to an independent and impartial court or tribunal
in the determination of a criminal charge or civil rights and
obligations. The disciplinary and penal powers of Parliament,
covered by parliamentary privilege, are not amenable to an appeal
to or judicial review by the courts. Since the Houses of Parliament
and parliamentary committees are not independent and impartial
courts or tribunals, they cannot satisfy the requirements of Article
6 of the Convention, and, in the absence of an appeal or judicial
review, any "prosecution", "trial" or "sentence"
would be unlikely to pass muster in the European Court of Human
Rights.
THE PRINCIPLES
OF LEGAL
CERTAINTY AND
PROPORTIONALITY
22. The principle of legal certainty is a general
principle of European law. It requires that that the law is accessible
and that there are basic procedural guarantees of fairness. The
principle of proportionality is another general principle of European
law which requires a restriction on a Convention right or freedom
to be proportionate to the legitimate aim pursued. There is a
serious risk that the proposed extension of parliamentary privilege
would fall foul of one or other of these principles, or of both.
CONVENTION OBLIGATIONS
AND JURISPRUDENCE
23. Although Parliament is exempt from liability
for breaches of the Convention rights as a matter of UK law (Human
Rights Act 1998, section 6 (3)), Parliament, like the Executive
and the Judiciary, is bound in international law to comply with
Convention obligations.
24. In a series of judgments, the European Court
of Human Rights has considered whether the operation of Parliamentary
privilege in various European countries has occurred in circumstances
which have violated Convention rights. In only one of them (Demicoli
v Malta) did the case concern the imposition of criminal liability
on a third party. The other three cases are of interest in showing
the need to demonstrate that the nature and operation of parliamentary
immunity requires objective justification if it is to pass muster
under Convention law.
25. In Demicoli v Malta (Application 13057/87)
(1991) 14 EHRR 47, the editor of a political satirical magazine
published an article criticising the performance of two Members
of the Maltese House of Representatives during a parliamentary
debate: amongst other things, the Minister was described as a
"clown". The House found the editor guilty of contempt
and he was fined. The European Court decided that the proceedings
against him constituted a criminal charge even though parliamentary
privilege was not formally classified as a crime under Maltese
law. Since the applicant was not a Member of the House, the contempt
proceedings did not relate to the internal regulation and orderly
functioning of the House; they were akin to criminal proceedings
rather than disciplinary in character. The Court found that the
impartiality of the House as an adjudicating body had been open
to doubt because the two Members whose behaviour had been criticised
in the impugned article and who had raised the question of breach
of privilege took part in the proceedings throughout. The Court
decided that there had been a breach of Article 6 on the facts,
without having to decide whether the House of Representatives
could be considered to be a court or to satisfy the Convention
requirements as to independence and impartiality.
26. In A v United Kingdom (Application
35373/97), Judgment of 17 December 2003, the applicant alleged
that the absolute parliamentary immunity which prevented her from
taking legal action in respect of statements made about her in
Parliament violated her right of access to a court under Article
6 (1) of the Convention, and her right to privacy under Article
8, as well as discriminating against her contrary to Article 14.
The Governments of eight States intervened in support of their
various systems of protection of Parliamentary immunity.[28]
The Court concluded that the parliamentary immunity enjoyed by
the MP in the particular case pursued the legitimate aims of protecting
free speech in Parliament and maintaining the separation of powers
between the legislature and the judiciary. The Court then assessed
the proportionality of the immunity enjoyed by the MP, noting
that it was absolute in nature and applied to both criminal and
civil proceedings. It explained that the broader an immunity the
more compelling must be the justification for it to be compatible
with the Convention. It found that a rule of parliamentary immunity
which is consistent with and reflects generally recognised rules
within signatory States, the Council of Europe and the European
Union, cannot in principle be regarded as imposing s disproportionate
interference with the right of access to a court embodied in Article
6 (1) of the Convention. The Court referred to the fact that the
absolute immunity enjoyed by MPs is designed to protect the interests
of Parliament as a whole as opposed to those of individual MPs,
illustrated by the fact that the immunity does not apply outside
Parliament. It concluded that there had been no violation of Article
6 (1) or any other Convention right.
27. In De Jorio v Italy (Application No.
73936/01) (2005) 40 EHRR 42, a candidate in a Parliamentary election
lodged a complaint against a political opponent who was a Senator,
accusing him of defamation. In a newspaper interview, the Senator
had stated that the applicant had been expelled from the Retirement
Party and had been implicated in the activities of a secret Masonic
organisation. Criminal proceedings were instituted against the
Senator, which the applicant joined as a civil party. He brought
a civil action for compensation for the injury suffered as a result
of the interview. The Constitution provides that Members of Parliament
shall not be required to account for the opinions they express
or the votes they cast in the exercise of their functions. The
Senate declared that since the Senator's statements had been expressed
in performance of his duties as a Member of Parliament, he enjoyed
immunity under the Constitution. On that basis, the criminal proceedings
against him were discontinued and the civil action was dismissed.
The European Court decided that the immunity granted to the Senator
had infringed his right of access to the courts.
28. In Cordova v Italy (No.1) (Application
No. 40877/98) (2005) 40 EHRR 43, the applicant, as public prosecutor,
investigated someone who had dealings with Francesco Cossiga,
a former President of Italy who was now a "life senator".
Mr Cossiga sent the applicant sarcastic letters and some toys.
The applicant considered that his honour and reputation had been
injured and lodged a criminal complaint against Mr Cossiga, who
was prosecuted for insulting a public official. The applicant
jointed the proceedings as a civil party. However, the Senate
considered that the acts of which Mr Cossiga was accused were
covered by immunity under the Constitution. The applicant challenged
the Senate's resolution but the District Court ruled that the
Senate's decision was neither procedurally flawed nor manifestly
unreasonable. The Court noted that freedom of expression was especially
important for an elected representative of the people. In a democracy,
the Parliament was the essential forum for political debate and
there had to be very weighty reasons to justify interfering with
the freedom of expression exercised there. Accordingly, parliamentary
immunity could not in principle be regarded as imposing a disproportionate
restriction on the right of access to a court. However, Mr Cossiga's
behaviour was not connected with the exercise of parliamentary
functions in their strict sense. The lack of any clear connection
with parliamentary activity required the Court to adopt a narrow
interpretation of the concept of proportionality, particularly
where the restrictions on the right of access to the courts stemmed
from the resolution of a political body. There had therefore been
a violation of the applicant's Article 6 rights.
A PARLIAMENTARY PRIVILEGES
ACT?
29. Dr Jack suggests that 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. I agree with him that the time has come for a
Privileges Act. However, this raises issues well beyond the scope
of the Committee's present inquiry, and which will no doubt be
considered when a draft Bill is published.
FINAL OBSERVATIONS
30. In his memorandum to the Joint Select Committee,
the then Lord Chief Justice, Lord Bingham, advanced the following
three principles:[29]
"(1) all citizens of a democracy should, generally
speaking, be equally subject to the ordinary law of the land.
But
(2) some derogations from this principle are necessary
if holders of certain public offices are to perform their public
functions to the greatest possible public advantage. However,
(3) these derogations should not exceed what is truly
necessary for performance of the public functions in question."
Such derogations should be compatible with the Convention
rights of all citizens, including MPs. For the reasons summarised
above, in my opinion, the proposal by Mr Chris Bryant MP exceeds
what is necessary for the public functions of Members of Parliament.
24 The author was leading counsel in Pepper v Hart
[1993] AC 593 (HL) and for the intervening Equality and Human
Rights Commission in R(Age UK) v Secretary of State [2009]
EWHC 2336 (Admin), in which the courts rejected claims for Parliamentary
privilege to prevent their having recourse to Hansard and the
reports of Parliamentary committees. Back
25
By the Freedom of Information (Amendment) Bill 2006-07, introduced
by Mr David Maclean MP, and passed by the House of Commons, but
not proceeded with in the House of Lords. Back
26
Session 1998-99, HL Paper 43-I, HC 214-I, at para 247. Back
27
In its judgment of 18 May 2010 in Kennedy v United
Kingdom, the European Court of Human Rights decided that there
was no evidence of any significant shortcomings in the application
and operation of the surveillance regime under the RIPA in terms
of the safeguards needed to protect the right to respect for personal
privacy under Article 8 of the Convention. Back
28
Austria, Belgium, The Netherlands, Finland, France, Ireland, Italy
and Norway. Back
29
HL Paper 43-II, HC 214-II, 30 March 1999, 108. Back
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