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

HOUSE OF COMMONS

COMMITTEE ON STANDARDS AND PRIVILEGES

THE HACKING OF MEMBERS’ PHONES

AND CONTEMPT OF PARLIAMENT

Memorandum by Professor Anthony Bradley [1]

1. Before preparing this memorandum, I have had the benefit of reading the written and oral evidence given to the Committee by the Clerk of the House, Dr Malcolm Jack, and the papers by John Hemming MP, Lord Lester QC, Lord Nicholls, Lord Pannick QC and James Price QC.

Contempt of Parliament – some general comments

2. On the general question of whether the hacking of Members’ phones could be a contempt of Parliament, there is little that I can add to the evidence from the Clerk of the House. I am in no doubt that, depending on the circumstances in which the phones of Members have been intercepted, and assuming that this was undertaken without statutory or common law authority, the hacking is capable of being a contempt of Parliament. The Committee will be familiar with the position as stated in Erskine May:

‘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 or officer of such House in the discharge of his 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’. [2]

3. The authority of the House to treat abusive or threatening conduct aimed at Members as a contempt exists today, even though in 1978 the House resolved to exercise its penal jurisdiction as sparingly as possible, and only when satisfied that it was essential to do so. [3] The existence of the contempt power of the House has given rise to what has been called the freedom of the House from improper interference and molestation, whether affecting the whole House or its Members or officers. But the question of what conduct by the media or other outside interests may be regarded as improper interference and molestation is not a constant. The House and its Members are required to have thicker skins today than in the past. In 1935, for instance, the League for the Prohibition of Cruel Sports was held to have committed a gross breach of the privileges of the House when its secretary sent a questionnaire to Members, saying ‘If we do not hear from you, we shall feel justified in letting your constituents know that you have no objection to cruel sports’. [4]

4. Molestation of Arthur Lewis MP was held to have occurred when in 1956 the Daily Graphic attacked him for proposing in a parliamentary question that some money allocated for relief in Hungary should be given to Egyptian victims of British shelling in Suez. The paper advised its 700,000 readers to phone Mr Lewis at Edmonton 6113 and tell him that this was ‘the most crazy, mixed-up question of the year’. Many abusive calls were received by him until he changed his phone number. This was treated as a serious breach of privilege but, bearing in mind ‘that molestation has not before taken a similar form’, and that the editor was contrite, the Committee of Privileges recommended no further action. [5]

5. Discussion of such cases has often not distinguished between conduct that forms a breach of the privileges of the House and conduct that is a contempt of the House. Often the distinction does not matter. However, the notion of contempt is not dependant upon it being shown that there has been an interference with the established privileges of the House. In my opinion, a deliberate (or reckless) effort by a section of the media or an inquiry agency to hack into Members’ mobile phones is capable of being treated as a contempt, whether or not it amounts to a breach of the ‘freedom of speech and proceedings in Parliament’ guaranteed by Article 9 of the Bill of Rights. The point has significance in the present context in that, as confirmed by the Joint Committee on Parliamentary Privilege in 1999, communications between a constituent and a Member are considered to fall outside ‘proceedings in Parliament’ for the purposes of Article 9. [6] Just as the notion of contempt of Parliament must reflect changes in current opinion regarding the language of popular debate, so (in my opinion) it must also reflect what is today the well-established duty of an MP to represent his or her constituents, both as individuals and as a community. The nature of this duty today is persuasively described in Mr Hemming’s paper to the Committee. This means that conduct that is intended and likely to impede or obstruct communications between an MP and his or her constituents could be treated as a contempt of Parliament; this would include telephone hacking that was aimed at breaking into such communications.

6. That said, the mere fact that an MP’s phone calls have been hacked is not enough to indicate that a contempt has occurred; the circumstances may indicate that the status of the MP is irrelevant (e g if the hacker’s motive is to get private information about the MP’s partner, who is a leading model or a pop-star). Where there is a connection between the motives of the hacker and the parliamentary duties of the MP, the Clerk of the House (in para 26 of his written evidence) has set out a number of relevant factors that will need to be considered. To these may have to be added the question of whether the hacker might be able to show a plausible purpose for the hacking that could show it to have been in the public interest (e g if the hacker’s aim was to discover additional evidence to show that the MPs were not acting in the public interest but were pursuing their own criminal aims).

Practical factors

7. Even when a strong element of impeding or interfering with a Member’s parliamentary duties can be shown, certain practical matters need to be taken into account before the House takes action on the basis of contempt. If the hacking is already covered by the criminal law, the House will not be able to conduct an investigation into the facts without taking account of any police investigation that is in progress. The Supreme Court in its recent decision in R v Chaytor has held that the House should delay taking action so long as the police investigation and subsequent proceedings are pending. [7] Lord Phillips, giving the leading judgment, emphasised that the House does not assert exclusive jurisdiction over criminal conduct, and that the House authorities are expected to, and do, co-operate with the police. The Chaytor case was of course concerned with what was alleged to be criminal conduct by Members in making false claims for expenses. In this situation of overlapping jurisdiction, Lord Rodger made clear in a concurring judgment that, assuming that the House gives priority to the procedures of criminal law, it retains a jurisdiction to deal with criminal conduct in so far as this may constitute a contempt of Parliament.

8. Chaytor was not concerned with a situation in which the alleged criminals are members of the public outside the House, but in principle the situation here is the same, except that this diminishes the range of sanctions that the House may impose. Expulsion from the House may be an appropriately serious sanction for a serving MP who is in severe contempt of the House, even if the criminal sentence does not lead to his or her disqualification. The range of sanctions available against non-Members is limited. One further comment on Chaytor is that it was not concerned with a situation in which the alleged contempt involves no breach of the criminal law (as for instance in the case of Arthur Lewis MP and the Daily Graphic mentioned above). In such a situation, there is no overlapping jurisdiction and thus no need for the House to delay taking action while a criminal investigation occurs.

Is an extension of parliamentary privilege involved if phone hacking is treated as a contempt?

9. As I have already stated, conduct that is in contempt of Parliament is a notion that is not confined to the established privileges of Parliament, although one would expect that the contempt could be shown to have an effect upon those privileges. I have read Lord Lester’s memorandum to the Committee with much interest, but the general thrust of his argument is, it appears, that to treat phone hacking as a contempt would involve creating a new privilege. If that were the case, it would be a conclusive argument against any contempt-based inquiry being held. But a finding that a new form of molestation or interference with the activities of the House and its Members has arisen does not involve the creation of a new privilege (and cf Lord Lester’s memorandum, para 12, first sentence).

Implications of the European Convention on Human Rights

10. Lord Lester provides a valuable analysis of the Strasbourg Court’s decisions as they may affect parliamentary privilege. To this I have little to add, except to mention the case of Kart v Turkey, decided by the European Court of Human Rights on 3 December 2009. The facts were unusual, in that under Turkish law an MP not only has freedom of speech in the legislature and in the course of duties connected with that, but is also immune from criminal prosecution while an MP, except if the legislature votes to lift the immunity. Kart, an MP, failed to get the legislature to lift the immunity in order that, as he wished, he might be tried on charges relating to a time before he was elected. He complained that this was an improper interference with his right to a trial on criminal charges under Article 6/1 ECHR. By a majority of 13-4, the Grand Chamber of the Court rejected his complaint. The Court upheld the Turkish regime of immunity for MPs, even though this was broader than in many European countries: the Court said that ‘the regulation of parliamentary immunity belongs to the realm of parliamentary law, in which a wide margin of appreciation is left to member States’ (para 82; also para 96). It was not for the Court ‘to rule in an abstract manner on the constitutional definition or the scope of the protection the States accord their MPs’ (para 87); the issue was whether in the circumstances the immunity that applied to Kart amounted to ‘a legitimate and proportionate limitation’ of his right to be tried by a court under Article 6/1. In the Court’s view, the aim of the immunity of MPs was ‘to guarantee the smooth functioning and integrity of Parliament’ (para 91). The decision by the Parliament to lift or not lift immunity ‘is one of the ways in which Parliament exercises its autonomy’. The decisions by parliamentary bodies were ‘political decisions by nature and not court decisions, so they cannot be expected to satisfy the same criteria as court decisions when it comes to giving reasons’ (para 101). On the basis of this approach to the immunity from prosecution that applies to Turkish MPs, the Strasbourg Court is willing to give weight to the autonomy of Parliament and its ability to perform its constitutional duties, and accepts that there is no single pattern of parliamentary law within European countries. It must not be assumed that the contempt jurisdiction of the House of Commons will in all respects fall foul of the Strasbourg jurisprudence.

Would the courts accept the House’s decisions on matters of contempt?

11. Nevertheless, since the Committee has raised the question of whether telephone hacking may constitute a contempt of Parliament, for two main reasons the Committee may need to consider the broader question of whether there is still a role for contempt of Parliament. These are (1) the present scope of judicial review within public law; and (2) the challenge that European human rights law presents to national traditions, such that the sovereignty of the Westminster Parliament itself may be challenged in Strasbourg on Convention grounds. The Joint Committee on Parliamentary Privilege in 1999 examined the disciplinary and penal powers of Parliament. It found that there was no need to retain ‘abusive contempt’ (that is, words or action by any person which the House considers disrespectful, insulting or defamatory) as a separate head of contempt of Parliament (para 270), and it recommended that contempt of Parliament should be codified in statute, the reason for this method of codification being ‘to ensure the courts are bound by the chosen definition’ (para 315). So far as the members of each House were concerned, the Committee took it as axiomatic that each House should remain responsible for disciplining its own members. ‘It is inconceivable that power to suspend or expel a member of either House should be exercisable by the courts or some other outside body’ (para 275).

12. The Committee gave separate consideration to contempts committed by non-members of Parliament. It held that where the conduct was a criminal offence, the criminal law should take its course, and this would normally suffice. ‘But unless a residual power to punish exists, the obligation not to obstruct will be little more than a pious aspiration’ (para 302); and, ‘to be effective as a last resort, the punishments themselves must be meaningful’ (para 303). The Committee recommended that there should be power to fine non-members but for practical reasons that the power to do so should be vested in the courts (para 306) and, further, that there should be a statutory codification of contempt (para 315).

13. The recommendations of the Joint Committee are much more in line with opinion today than the ancient case-law on the power of the Commons to punish non-members for contempt. That rather tangled body of case-law led FW Maitland to say ‘Thus it would seem that the House has a legal power to turn into a contempt just what it pleases’. [8] In brief, the issue turned on the attitude of the courts in deciding whether to grant the writ of habeas corpus in the event of the House committing a person for contempt. The result of the old case-law was that the courts could not review the reason for commitment when the return to the writ of habeas corpus merely stated that committal was for contempt of the House; but, as Lord Ellenborough said, if the reason stated for the commitment was for some matter ‘which could by no reasonable intendment be considered as a contempt’ but was ‘a ground of commitment palpably arbitrary, unjust, and contrary to every principle of natural justice,’ then the court must look at it ‘and act upon it as justice may require’. [9] Since this particular situation of judicial review arises from a decision by the House to detain someone for contempt, it is unlikely to arise today. Should a sanction for contempt falling short of detention be imposed by the House today, it is likely that the courts would respect the decisions of the House in matters relating to its undoubted privileges and internal proceedings – subject to the retention of a reserve power which a court might be willing to exercise in an extreme case. But it is rather unlikely that the court would today regard itself as unable to intervene merely because the resolution of the House did not state the nature of the contempt.

Conclusion

14. (a) In principle, the hacking of Members’ phones may constitute a contempt of Parliament provided that the purpose of the hacking can be shown to be related to the functioning of Parliament and the performance by Members of their duties.

(b) The notion of a contempt of Parliament is open-ended and the range of conduct that it covers is likely to change over time. Conduct may be held to be a contempt even if there is no precedent for doing so in a particular fact-situation. But a past precedent for treating certain conduct as a contempt may have lost its authority if public and political opinion has changed in relevant respects.

(c) A contempt may be committed even if the conduct in question does not involve a breach of an existing privilege of Parliament.

(d) Where the hacking involves a breach of the criminal law, any investigation by the House will have to be delayed until police and the criminal courts have completed their work. However, in such a case the House has an overlapping jurisdiction that it may exercise in so far as the conduct constitutes a contempt of Parliament (R v Chaytor).

(e) The exercise of the contempt jurisdiction by the House will need to take account of any limiting factors derived from the European Convention on Human Rights and the Strasbourg case-law. That case-law respects the wide margin of appreciation that states enjoy in this respect (Kart v Turkey), especially in relation to the disciplinary powers that the House may exercise over its Members. Convention issues are more likely to arise should the House wish to exercise penal sanctions (e g fining) over persons who are not Members of the House.