HC 628 Matter relating to privilege: Hacking of Members' mobile phones

Kevin Barron MP

Chair

Committee on Standards and Privileges

27 January 2011

Dear Kevin

I thought it might be helpful if I wrote to explain my belief that the hacking of an MP’s phone should be considered a breach of privilege and a constructive contempt of Parliament.

Let me explain first of all what I mean by ‘phone hacking’. I include: tapping or listening to a phone conversation; obtaining access to phone messages that have already been listened to or texts that have already been read; intercepting messages or texts; illegally obtaining a PIN; fraudulently obtaining other information stored on a phone such as other people’s telephone numbers.

My argument has two limbs: namely that ‘phone hacking’ clearly breaches the House’s constant desire to defend the freedom of MPs to speak without fear of molestation, intimidation or obstruction; and that MPs’ telephone messages should attract the same partial privilege as MPs’ correspondence, when they relate to proceedings in Parliament.

So, the Bill of Rights 1689 states that ‘the Freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament’. This is the founding principle of parliamentary privilege which has been interpreted in succeeding generations by successive Committees of Privilege and by the House as a whole. It means not only that Members are free to speak without fear of being sued for libel, but that all the proceedings of the House attract the same privilege, including evidence given before a select committee.

On occasion the Commons has felt the need to strengthen the protection of that freedom of speech in other ways. Thus in 1702 the House resolved that ‘to print or publish any book or libels reflecting on the proceedings of the House or on any Member for or relating to his service therein is a high violation of its rights and privileges’.

Similarly the Commons resolved on 12 April 1733 ‘that the assaulting, insulting or menacing any Member of this House, in his coming to or going from the House, or upon the account of his behaviour in Parliament, is an high infringement of the privilege of this House, a most outrageous and dangerous violation of the rights of Parliament and an high crime and misdemeanour’. Again on 6 June 1780 the Commons resolved ‘that it is a gross breach of the privilege of this House for any person to obstruct and insult the Members of this House in the coming to or going from this House and to endeavour to compel Members by force to declare themselves in favour of or against any proposition then depending or expected to be brought before the House’. Both MPs and others have been punished for such actions, whether they occurred on the precincts or not and whether the molestation was merely verbal or not.

In addition in 1956 there were two incidents which led to newspaper editors being summoned to the bar of the House and forced to apologise. The first related to a Sunday Express editorial that had condemned MPs for exempting themselves from the fuel rationing that was in place following the Suez crisis. The Committee of Privileges resolved that this attack was ‘calculated to diminish the respect due to the House’. In the second incident the Sunday Graphic had published Arthur Lewis MP’s phone number and urged its readers to ring him and complain about a motion he had tabled. They did so in their thousands before the Post Office could change his number. The Committee resolved that ‘the principle that to molest a Member of Parliament on account of his conduct in Parliament is a breach of privilege is well established... In our view the principle clearly applies to the circumstances in this case’.

In addition premature publication or disclosure of committee proceedings, such as by leaking a draft of a committee report, has been considered a breach of privilege and a constructive contempt of Parliament. In 1837 the House resolved that ‘the evidence taken by any select committee of this House and the documents presented to such a committee and which have not been reported to the House ought not to be published by any Member of such committee, or by any other person’ and where it has been possible to identify such a perpetrator, the House has taken action. In July 1999 Ernie Ross MP was forced to resign from the Foreign Affairs select committee for having leaked a draft report and was suspended from the House for ten days. Two other Members have since also been suspended for leaking draft reports.

My argument is that this historic determination by the House to insist that MPs’ freedom of speech needs robust protection should be applied to the question of ‘phone hacking’ because any attempt to hack into an MP’s phone, and in particular to intercept a phone message or a text, would be a clear instance of molesting an MP. After all, the only reason one could imagine anyone wanting to hack into an MP’s phone would be to molest, intimidate or obstruct them in their activity as an MP. I can think of no clearer contravention of the motions of the House already cited.

Moreover many have argued that the privilege attached to proceedings in parliament, to the speeches made and evidence taken in parliament, should also apply to all MPs’ correspondence. A case was brought in 1958 that related to George Strauss MP. He had written to a minister making allegations about a utilities company. The question arose of whether his correspondence could be considered libellous. He argued that it could not, because it was merely something that he was writing to a Minister that he was subsequently going to say in Parliament. The House decided at the time that he did not have absolute privilege in relation to that correspondence. In fact if he had made the comment in Parliament first and then referred to it in his correspondence he would have been completely covered.

However, when the issue was considered by Lord Nicholls’ Committee in 1999, the view was firmly expressed that, although Members would not have the advantage of absolute privilege in their correspondence, they would none the less have two defences in law: first, that if their letter was very closely connected with the proceedings of this House, they would have a defence; secondly, that where there is no intention of malice, there would be a much more secure defence. That is why I believe that there is a partial privilege attached to MPs’ correspondence, when it relates to proceedings in parliament. In other words, if a Member wrote to a constituent or another member, whether manually or electronically, about proceedings in parliament, for instance suggesting an amendment, he would be able to rely on parliamentary privilege to protect him from prosecution in a court.

I would argue that an email, a text message or indeed a phone message should similarly be covered by a partial privilege, in relation to the degree to which it related to proceedings in Parliament.

Indeed a definition of ‘proceedings in Parliament’ was suggested by the 1970 Joint Committee, as follows:

1.  (1)  For the purpose of the defence of absolute privilege in an action or prosecution for defamation the expression "proceedings in Parliament" shall without prejudice to the generality thereof include:

(a)  all things said done or written by a Member or by any Officer of either House of Parliament or by any person ordered or authorised to attend before such House, in or in the presence of such House and in the course of a sitting of such House, and for the purpose of the business being or about to be transacted, wherever such sitting may be held and whether or not it be held in the presence of strangers to such House: provided that for the purpose aforesaid the expression "House" shall be deemed to include any Committee sub-Committee or other group or body of Members or Members and Officers of either House of Parliament appointed by or with the authority of such House for the purpose of carrying out any of the functions of or of representing such House; and

(b)  all things said done or written between Members or between Members and Officers of either House of Parliament or between Members and Ministers of the Crown for the purpose of enabling any Member or any such Officer to carry out his functions as such provided that publication thereof be not wider than is reasonably necessary for that purpose.

Such a definition has not been enacted but would, I believe, be an accurate summary of the common law definition. Since it expressly includes ‘things said’ as well as written I feel confident that that would include phone messages, for instance between members or between a Member and a Clerk, relating to amendments to be tabled.

Of course many MPs’ phone messages have nothing to do with proceedings in parliament, but some do. That is why I believe that the House should consider ‘phone hacking’ to be a breach of privilege both because it is a form of intimidation and obstruction which offends the Bill of Rights and because there might be the interception of messages that related to proceedings in parliament.

For these reasons I very much hope that your committee will make it clear that hacking of an MP’s phone is a constructive contempt of Parliament and that all the correspondence, whether in hard or electronic copy is covered by privilege when it relates to proceedings in parliament as defined above.

Incidentally, I would also point out that the Nicholls Report of 1999 has still not seen any action. I hope the Committee might consider calling for a new Parliamentary Privileges Act to clear up some of the extant anomalies.

Chris Bryant MP