Privilege: Hacking of Members' mobile phones...6 Privilege: Hacking of Members’ mobile phones The law relating to phone hacking 10. Before turning to a discussion of Parliamentary

HC 628 Published on 31 March 2011

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House of Commons

Committee on Standards and Privileges

Privilege: Hacking of Members' mobile phones

Fourteenth Report of Session 2010–11

Report and Appendix together with formal minutes, oral and written evidence

Ordered by the House of Commons to be printed 29 March 2011

The Committee on Standards and Privileges

The Committee on Standards and Privileges is appointed by the House of Commons to oversee the work of the Parliamentary Commissioner for Standards; to examine the arrangements proposed by the Commissioner for the compilation, maintenance and accessibility of the Register of Members’ Interests and any other registers of interest established by the House; to review from time to time the form and content of those registers; to consider any specific complaints made in relation to the registering or declaring of interests referred to it by the Commissioner; to consider any matter relating to the conduct of Members, including specific complaints in relation to alleged breaches in the Code of Conduct which have been drawn to the Committee’s attention by the Commissioner; and to recommend any modifications to the Code of Conduct as may from time to time appear to be necessary.

Current membership

Rt hon Kevin Barron MP (Labour, Rother Valley) (Chair) Sir Paul Beresford MP (Conservative, Mole Valley) Tom Blenkinsop MP (Labour, Middlesbrough South & East Cleveland) Annette Brooke MP (Liberal Democrat, Mid Dorset and North Poole) Rt hon Tom Clarke MP (Labour, Coatbridge, Chryston and Bellshill) Mr Geoffrey Cox MP (Conservative, Torridge and West Devon) Matthew Hancock MP (Conservative, West Suffolk) Mr Oliver Heald MP (Conservative, North East Hertfordshire) Heather Wheeler MP (Conservative, South Derbyshire) Dr Alan Whitehead MP (Labour, Southampton Test)

Powers

The constitution and powers of the Committee are set out in Standing Order No. 149. In particular, the Committee has power to order the attendance of any Member of Parliament before the committee and to require that specific documents or records in the possession of a Member relating to its inquiries, or to the inquiries of the Commissioner, be laid before the Committee. The Committee has power to refuse to allow its public proceedings to be broadcast. The Law Officers, if they are Members of Parliament, may attend and take part in the Committee’s proceedings, but may not vote.

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The Reports and evidence of the Committee are published by The Stationery Office by Order of the House. All publications of the Committee (including press notices) are on the Internet at: www.parliament.uk/sandp.

Committee staff

The current staff of the Committee are Mr Steve Priestley (Clerk), Miss Rhiannon Hollis (Second Clerk) and Ms Jane Cooper (Committee Assistant).

Contacts

All correspondence should be addressed to The Clerk of the Committee on Standards and Privileges, Journal Office, House of Commons, London SW1A 0AA. The telephone number for general enquiries is 020 7219 6615.

Privilege: Hacking of Members’ mobile phones 1

Contents

Report Page

Privilege: Hacking of Members’ mobile phones 3 Background 3 Conduct of this inquiry 3

What is phone hacking? 5

The law relating to phone hacking 6 The criminal law 6

Regulation of Investigatory Powers Act 6 Computer Misuse Act 7 Data Protection Act 8

Civil remedies 8 Conclusion 8

Hacking and privilege 9 Parliamentary precedents 9

Westminster precedents 9 Precedents from other legislatures 10

Privilege and contempt 10 Scope and nature of privilege 10 Scope and nature of contempt 12

Hacking as a possible contempt 13 Capacity of the House to investigate allegations of hacking 16 Sanctions 17

Parliament and the courts 19

A Privileges Act 23

Appendix 24

Formal Minutes 30

Oral and Written Evidence 31


Privilege: Hacking of Members’ mobile phones

Background

1. On 9 September 2010, the House agreed the following Resolution:

That the matter of hacking of honourable and right honourable Members' mobile phones be referred to the Committee on Standards and Privileges.1

The Motion to refer was moved by Chris Bryant MP. Speaking in the debate, Mr Bryant said:

I contend that it is a contempt of Parliament and a severe breach of parliamentary privilege to intercept the mobile phone messages of elected Members, to tap their phones, to bug their conversations, to intercept their e-mails or to seek to do so.2

Other Members spoke in similar vein. Most of them referred to allegations that journalists working for the News of the World or other newspapers had paid private investigators for information which they knew had been obtained by listening to messages left on MPs’ (and others’) mobile phone messaging or voicemail services. Members were also concerned about the conduct of a previous police investigation into hacking and about the failure of some witnesses to cooperate with an inquiry by the Culture, Media and Sport Committee.

Conduct of this inquiry

2. Our first step was to interpret the terms of reference we had been given by the House. On 14 September, we agreed to commence our inquiry by seeking evidence from the Clerk of the House and from outside experts on Parliamentary law on whether and if so in what circumstances hacking of Members’ mobile phones could be a contempt of Parliament. We also decided not to look into any specific allegations in the initial stages of the inquiry.3

3. The decision not to consider specific allegations was based on considerations of fairness and of respect for the legal and judicial processes. We were aware that application had been made for judicial review of the handling by the Metropolitan Police of the original (2006–07) investigation into allegations of hacking. Among those seeking judicial review were Mr Bryant and a former Member, Lord Prescott. Although the House’s Resolution on matters sub judice would apply only once an application had been granted, we took the view that the interests of fairness and justice were best served by avoiding any reference in our own proceedings to specific cases. We were reinforced in taking this view by the knowledge that

1 HC Deb, 9 September 2010, col 493

2 HC Deb, 9 September 2010, col 478

3 Press Notice 01, 14 September 2010, Privilege matter referred by the House on 9 September, available at www.parliament.uk/sandp

4 Privilege: Hacking of Members’ mobile phones

civil cases were pending and that further police inquiries were under way which could at some stage lead to criminal proceedings.4

4. Neither did we conclude that the alleged failure by several witnesses to cooperate with the previous inquiry by the Culture, Media and Sport Committee fell within our terms of reference. We note that that Committee has yet to make any formal complaint against a witness.

5. We are grateful to all those who assisted our inquiry by giving written or oral evidence. Our conclusions and recommendations flow from that evidence. This Report concludes the Committee’s inquiry into the matter referred to it by the House on 9 September 2010.

4 As to giving the police and the courts precedence in matters involving alleged criminal conduct, see also paragraphs 61 to 70

below


What is phone hacking?

6. For the purposes of this inquiry, we have interpreted the term ‘hacking’ to mean the gaining of unauthorised direct access to a remotely stored mobile telephone communication. ‘Hacking’ is thus distinct from ‘bugging’ or ‘tapping’, which involves the use of a device to intercept a communication in real time. Related to hacking is ‘blagging’, which we understand to mean the process by which a person obtains information—such as a mobile telephone number and/or a personal identification number (PIN)—which enables access to the stored messages. Blagging involves impersonation of a person who is entitled to know the information. In this Report, we use the term ‘hacking’ to include ‘blagging.’

7. It is not always necessary to blag in order to hack. Many mobile phone users do not reset the default PINs supplied by service providers. If a hacker already knows the number of the mobile telephone number he or she intends to hack, it may be possible to gain access to messages by using one of the common default PINs. There are also sophisticated and commercially available programmes (some of them illegal in the UK) which can provide access to communications as well as to stored messages, without the phone-owner’s knowledge. However, diligent adherence to the security advice made available by providers to users can mitigate vulnerabilities and greatly reduce the ease with which unauthorised access can occur. Despite this, it is worth noting that users who access voicemail from abroad can be particularly vulnerable to hacking.5

8. There are obvious similarities between hacking and the gaining of unauthorised access to written communications—which as well as interception of mail might include going through the contents of a dustbin. However, the ability of a hacker to gain access to messages remotely means that analogies between the two are not straightforward. In practice, hacking may often be easier to carry out than interception of written communications.

9. Hacking is said to be carried out by journalists, private investigators and others, for a variety of purposes. The allegations which have led to our inquiry relate to activities allegedly carried out by or on behalf of journalists, in order to obtain information of interest to them or to those who pay them. In this Report, for the reasons given above, we are not concerned with the truth or otherwise of those allegations. We confine ourselves to a discussion of whether and if so in what circumstances hacking of Members’ mobile phones could be a contempt of Parliament.

5 We are grateful to the Parliamentary Security Coordinator for briefing us on technical aspects of our inquiry.


The law relating to phone hacking

10. Before turning to a discussion of Parliamentary privilege, we summarise our understanding of the law as it relates to phone hacking, in order that we may reach conclusions about the extent to which the law offers a remedy for MPs who believe their phones may have been hacked. We are grateful to Speaker’s Counsel for his helpful note on legal remedies for phone hacking, which is reproduced in full at Appendix 1.

The criminal law

11. It is only recently that mobile telephones have become an essential tool of modern life. This means that, although there is a body of legislation which deals with unauthorised interception of mobile phone calls or messages, there is little case law.

12. The House of Commons Home Affairs Select Committee announced on 7 September 2010 that it would carry out an inquiry into the law relating to unauthorised tapping into or hacking of mobile communications.6 On 4 February 2011, the Committee published the evidence received to date.7 At the time of preparing this Report, the Home Affairs Committee had yet to announce a timetable for completion of its inquiry. It will be for that Committee, not this, to recommend any changes to the criminal law that appear to it to be necessary or desirable and we have not sought in this Report to anticipate what our colleagues’ conclusions may be.

Regulation of Investigatory Powers Act

13. The Regulation of Investigatory Powers Act 2000 (RIPA) is the main statute bearing on hacking. Section 1 of the Act creates the offence of unlawful interception of a communication. In summary, the offence under section 1 is committed by a person who, intentionally and without lawful authority, intercepts any communication “in the course of its transmission” by means of a public (or private) telecommunications system.8 An offender may be sentenced on indictment to a term of imprisonment of up to two years.

14. The phrase “in the course of transmission” as used in the Act has attracted a good deal of attention. In its Report on Press standards, privacy and libel, published in February 2010, the Select Committee on Culture, Media and Sport reported that:

The police ... told us that under section 1 of the Regulation of Investigatory Powers Act (RIPA) it is only a criminal offence to access someone else’s voicemail message if they have not already listened to it themselves. This means that to prove a criminal offence has taken place it has to be proved that the intended recipient had not already listened to the message. This means that the hacking of messages that have

6 Full text available at www.parliament.uk/homeaffairscom

7 See www.parliament.uk/documents/commons-committees/home-affairs/Memoranda.pdf

8 Appendix, paragraph 3


already been opened is not a criminal offence and the only action the victim can take is to pursue a breach of privacy, which we find a strange position in law.9

Evidence given to the Culture, Media and Sport Committee by the Metropolitan Police had suggested that a message was in the course of transmission until it reached its intended recipient. Once the recipient had listened to the message, the transmission had ceased. The Committee called on the Government to amend section 1 of RIPA to cover all hacking of phone messages.10

15. Evidence since presented to the Home Affairs Committee has cast doubt on this interpretation. Specifically, it has been pointed out that a voicemail message is stored on a mobile phone service provider’s server, not on the handset. This means that it is necessary for a hacker to communicate with the server in order to listen to the message, irrespective of whether it has been listened to previously. Witnesses to the Home Affairs Committee have argued that this means that a voicemail message is “in the course of transmission” each time it is listened to and that the provisions of section 1 of RIPA therefore apply to the hacking of such a message on each occasion it takes place.11 In a memorandum to the Home Affairs Committee in October 2010, the Director of Public Prosecutions noted that this interpretation had yet to be tested in the courts.12

16. The Government did not reply to the Report of the Culture, Media and Sport Committee and the legal position on hacking of mobile phone voicemail messages which have already been listened to remains untested. But there appears to be little if any room for doubt that the hacking of a message that has not yet been listened to by the intended recipient is a criminal offence.

Computer Misuse Act

17. Under section 1 of the Computer Misuse Act 1990, it is an offence for a person knowingly to cause a computer to perform any function with intent to secure unauthorised access to any program or data held in any computer, or to enable any such access to be secured.13 A modern mobile telephone can fairly be described as a computer, as can the servers on which voicemail messages are stored. It appears, however, that the Computer Misuse Act has not yet been used as the basis for a prosecution in relation to hacking.14 As with the offence under RIPA, conviction may lead to a maximum penalty of two years’ imprisonment.

9 Second Report from the Culture, Media and Sport Committee, Session 2009–10, HC362, paragraph 465

10 Second Report from the Culture, Media and Sport Committee, Session 2009–10, HC362, paragraph 466

11 www.parliament.uk/documents/commons-committees/home-affairs/Memoranda.pdf

12 For a more detailed discussion of this point, see Appendix, paragraphs 4 to 11. See also oral evidence by Lord Macdonald of River Glaven QC to the Committee on the Protection of Freedoms Bill, 22 March 2011 (morning sitting), col 33.


14 Memorandum submitted to the Home Affairs Committee by Keir Starmer QC, Director of Public Prosecutions, October 2010


Data Protection Act

18. Under section 55 of the Data Protection Act 1998 it is an offence knowingly or recklessly to obtain or disclose personal data without the consent of the data controller. In the case of a mobile phone voicemail message, the ‘data controller’ may be the sender of the message or its intended recipient. The maximum penalty for an offence is a fine.15

19. A number of defences are available under the Act, including for the person obtaining the data to show that the obtaining or disclosing was justified as being in the public interest.16 Such defences are commonly used by journalists. The usefulness of the Data Protection Act as a means to seek redress against hacking therefore appears to be limited.

Civil remedies

20. Possible civil remedies for hacking include actions for breach of confidence (also known as breach of privacy); breach of data protection; and copyright violation.17 Of these, the first appears to offer the best chance of success, it being well established that where the nature of a communication implies that it is private, the obtaining or publication of it without consent may give rise to an action for breach of confidence. The standard of proof in civil cases (balance of probabilities) is lower than that which applies in criminal trials (beyond reasonable doubt).

Conclusion

21. It is clear that hacking of mobile phone voicemail messages can be a criminal offence and that options exist for seeking redress in the civil courts. It is not the role of this Committee to comment on whether the law is deficient in this regard—in that connection, we look forward to the Report of the Home Affairs Committee. All the remedies available to any person within the jurisdiction of the United Kingdom’s courts are of course available to Members of Parliament as individuals. But how should Parliament as an institution deal with hacking? Does Parliament need additional or distinct remedies that are not available to others? It is to those questions that we turn next.



17 Appendix, paragraphs 19 to 27


Hacking and privilege

Parliamentary precedents

22. The principle that private communications should remain private and the view that unauthorised interception of such communications offends against that principle can be regarded as applying to telephone calls and messages as they apply to written communications. We have therefore considered the available precedents from this and other legislatures relating to unauthorised interception of mail and tapping of conventional (land-line) telephone calls.

Westminster precedents

23. The Clerk of the House referred in his memorandum to an assertion by the House in 1689—the year of the Bill of Rights—that breaking open letters directed to or sent from Members is a breach of privilege.18 In 1727, the House passed an Order “to prevent the Intercepting of Letters belonging to the Members of the House” which it subsequently renewed each Session until 1852, when it made a Standing Order “to prevent the intercepting or losing of Letters directed to Members of this House.”19 The Standing Order required the postal authorities at the House to safeguard mail from loss or interception.

24. The Standing Order was repealed in 1997, following a Report from the Procedure Committee. The Committee did not comment specifically on its reasons for recommending repeal of this Standing Order, but included it among Orders which “are of uncertain meaning or have never been in effective operation, [or] bear no relation to modern practices.”20 It may nonetheless be regarded as significant that for many years the House sought to prevent the unauthorised interception of communications addressed to Members at the House, whatever the origin or subject-matter of the communication.

25. Chris Bryant MP drew our attention to resolutions of the House, asserting the rights of Members to free speech and protecting them from molestation.21 He told us:

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.22

18 Evidence p19

19 Evidence pp19, 20 and 23

20 First Report from the Procedure Committee, Session 1996–97, Standing Orders Revision, paragraph 15. See also Q67

21 Evidence p35

22 Evidence p36


26. We are not so convinced as Mr Bryant appears to be that journalists would hack the phone messages of an MP solely in order to molest, intimidate or obstruct that MP in carrying out Parliamentary activity—which would very probably amount to contempt. Much of the interest of the media in MPs in recent years has centred on their expense claims, which the courts have determined are not protected by Article 9 of the Bill of Rights and which self-evidently have nothing to do with freedom of speech.

27. The House may have acted a little hastily in 1997 in repealing the Standing Order, rather than amending it so as to give greater protection to Members’ communications. However, we suspect that, had a specific allegation of hacking been referred to this Committee for investigation, it is unlikely that the precedents relating to interception of written communications would have made much if any material difference to the outcome of our inquiry.

Precedents from other legislatures

28. We are grateful to the Clerk of the House for supplying information about other Commonwealth Parliaments.23 Looking through the cases annexed to the Clerk’s memorandum, we do not consider that any of them are sufficiently close to the matter referred to the Committee to require us to guide us towards specific conclusions. The reference in Mr Hemming’s evidence to provisions in the written constitution of Germany does not appear to be relevant to the matter referred to us.

Privilege and contempt

29. Although the House has never been invited to approve it, the Report of the Joint Committee on Parliamentary Privilege published in April 1999 is widely regarded as the authoritative text on privilege and contempt.24 In considering the scope and nature of privilege and of contempt, we have taken the Report of the Joint Committee as our starting point.

Scope and nature of privilege

30. The Joint Committee concluded that “Parliamentary privilege consists of the rights and immunities which the two Houses of Parliament and their members and officers possess to enable them to carry out their parliamentary functions effectively.”25 Privilege is thus concerned with functions rather than individuals. It protects the proceedings of the House and the right of Members to take part in those proceedings and to speak freely. But it does not confer general immunity on Members; nor does it provide Members with greater personal rights than attach to other people. Privilege also recognises Parliament’s exclusive cognisance or jurisdiction over its own affairs.

31. The Joint Committee offered the following definition of Parliamentary proceedings:

23 Evidence pp23 and 24

24 First Report from the Joint Committee on Parliamentary Privilege, Session 1998–99 , HC 214

25 Joint Committee on Parliamentary Privilege, paragraph 3


(1) For the purposes of Article 9 of the Bill of Rights 1689 `proceedings in Parliament' means all words spoken and acts done in the course of, or for the purposes of, or necessarily incidental to, transacting the business of either House of Parliament or of a committee.

(2) Without limiting (1), this includes:

(a) the giving of evidence before a House or a committee or an officer appointed by a House to receive such evidence

(b) the presentation or submission of a document to a House or a committee or an officer appointed by a House to receive it, once the document is accepted

(c) the preparation of a document for the purposes of transacting the business of a House or a committee, provided any drafts, notes, advice or the like are not circulated more widely than is reasonable for the purposes of preparation

(d) the formulation, making or publication of a document by a House or a committee

(e) the maintenance of any register of the interests of the members of a House and any other register of interests prescribed by resolution of a House.

(3) A `committee' means a committee appointed by either House or a joint committee appointed by both Houses of Parliament and includes a sub-committee.

(4) A document includes any disc, tape or device in which data are embodied so as to be capable of being reproduced therefrom.26

32. The Joint Committee recognised that Members’ dealings with constituents and with Ministers on behalf of constituents were becoming an increasingly important and prominent part of their work, but it concluded that such dealings were not protected by privilege, unless they were carried out in connection with a proceeding, and it was against extending the interpretation of Article 9 of the Bill of Rights so as to give such protection.27

33. The boundaries of privilege have been tested in the courts within recent months. Although the question before the courts was whether MPs’ claiming of expenses was covered by privilege, the judgment of the Supreme Court necessarily pronounced on the scope of protection afforded by Article 9. The President of the Supreme Court, Lord Phillips, found that:

In considering whether actions outside the Houses and committees fall within parliamentary proceedings because of their connection to them, it is necessary to consider the nature of that connection and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the core or essential business of Parliament.28


27 Joint Committee on Parliamentary Privilege, paragraphs 103 to 112

28 R v Chaytor and others, Supreme Court judgment UKSC 52, paragraph 47


He continued:

There are good reasons of policy for giving Article 9 a narrow ambit that restricts it to the important purpose for which it was enacted – freedom for Parliament to conduct its legislative and deliberative business without interference from the Crown or the Crown’s judges.29

34. The relevance of this judgment to the question of whether Members’ communications with constituents and others are protected by privilege is immediately apparent.

Scope and nature of contempt

35. Contempt has been understood as arising from an act or omission which obstructs or impedes (or tends to obstruct or impede) the business of the House or any of its Members in carrying out their Parliamentary functions.30 There does not have to be a precedent for the specific act or omission: the test is whether the House or its Members have been obstructed or impeded in the discharge of their duty. Examples of past contempts include: disobedience to or misconduct before the House or one of its committees; misconduct by a Member or officer of the House; leaking of information to which privilege applies; and obstructing or molesting Members, officers, or witnesses or others whose business is connected with proceedings in the House.31

36. Unlike the position with respect to privilege, there is no statutory definition of contempt. The Joint Committee favoured including such a definition in statute. It recommended that the definition should “cover new forms of obstruction, should they arise, as well as existing forms.”32 We asked our witnesses whether they favoured a statutory definition of contempt. The Clerk of the House said that “I would not expect a Privileges Act to list contempts and say, ‘This is the end of it.’”33 He pointed out that the Australian statute does not define contempt.34

37. Lord Nicholls, who chaired the Joint Committee, told us that he continued to support calls for a Privileges Act and that he saw “no difficulty in setting out in a statute a clear, principled statement of what conduct constitutes contempt.”35 Professor Bradley, who when he gave evidence to the Joint Committee had argued against legislation to codify privilege, told us that he had since changed his mind, although he was clearly concerned that the definition of contempt should not be too rigid:

... it would still be desirable to have a distinction between parliamentary privilege—the limits of that must be clear—and the contempt power. If one tried just to have a closed list of precise forms of conduct that today constitute contempt, in 10 years’

29 R v Chaytor and others, Supreme Court judgment UKSC 52, paragraph 61

30 See Erskine May, 23rd Edition, p 128 and Joint Committee on Parliamentary Privilege, paragraph 264

31 For a fuller list, see Joint Committee on Parliamentary Privilege, paragraph 264


33 Q43

34 Q44

35 Q74


time we would have a similar discussion. It must be in terms of obstructing the proceedings of Parliament or whatever.36

All the witnesses agreed that it would be for the courts to interpret such a statute.

38. In the Queen’s Speech at the commencement of the new Parliament in May 2010, the Government announced that it would publish in the current Session a draft Privileges Bill, to “reform the law on parliamentary privilege to clarify its extent and application.”37 The House will have an opportunity to consider the implications of any proposal to give the courts power to interpret the boundaries of contempt when it scrutinises the draft Bill.

39. We recommend that the draft Privileges Bill should include a definition of contempt, which should be drawn up in such a way as to make it adaptable to new technologies and circumstances.

Hacking as a possible contempt

40. As we have just discussed, there is presently no statutory definition of contempt, but even if there were, it is unlikely for the reasons our witnesses gave that it would include a list of acts, such as hacking, that may amount to contempt. It is far more likely that, as Lord Lester said, the definition would “state principles rather than detailed rules”, against which an act or omission could be judged.38 For the purposes of this Report, we intend to consider the evidence that hacking may obstruct or impede (or that it may tend to obstruct or impede) the business of the House or its Members in carrying out their Parliamentary functions.

41. The Clerk of the House suggested there are six questions that need to be answered when considering whether an act of hacking may be a contempt:

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? (i.e. 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

36 Q75

37 HC Deb, 25 May 2010, col 32 and www.number10.gov.uk

38 Q74


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?39

42. If the answer to the first question were to be ‘yes’, and if the ‘duty’ that had been interfered with was directly concerned with a proceeding of the House or of one of its committees, then in our view there would be little if any room for doubt that the hacking could be a contempt. If the answer to the first question were to be ‘yes’, but the ‘duty’ that had been interfered with was not concerned with a proceeding of the House or of one of its committees, then the position might be less clear.

43. In his oral evidence, the Clerk confirmed his view that interception of messages about a Member’s constituency business, which was unrelated to proceedings in the House or in a committee, would not be a contempt. But he acknowledged that the House found this question “quite difficult ... because it is so much now the activity of Members of the House.”40

44. Lord Pannick told us that if the effect of hacking is to make it more difficult for a Member to perform Parliamentary duties, it is immaterial whether the message hacked into related directly to a proceeding in Parliament.41 Similarly, James Price argued that if interception or the threat of interception tends to inhibit a Member from contributing to Parliamentary proceedings, it may be a contempt.42 Lord Nicholls’ view was that purpose is more important than effect.43 He expressed reservations about the application of privilege to Members’ constituency work.44

45. Professor Bradley’s evidence was that interference with a Member’s duties as an MP (including constituency work) could be a contempt, even if there is no intention on the part of the hacker to obstruct the Member’s work in connection with proceedings in Parliament.45 He told us:

Interference ... in the communication between a constituent and a Member of Parliament seems, to me, very much capable of being a contempt. It may be unusual but it could happen. The fact that, ever since 1957, communication between a constituent and MP has been held by Parliament not to be within Article 9 of the Bill of Rights is neither here nor there if one is considering the contempt side of this.46

39 Evidence p21

40 Q21

41 Evidence p30

42 Evidence p31

43 Q51

44 Q64

45 Evidence p33

46 Q64


This interpretation was supported by John Hemming MP, who argued that any interception or monitoring of, or interference with a Member’s communications with others can be a contempt, because such acts undermine Parliament collectively.47

46. Lord Lester suggested that this is too broad an interpretation and pointed out that the Supreme Court judgment in the Chaytor case referred to the core or essential business of Parliament.48 In Lord Lester’s view, only in “gross, rare circumstances” could hacking amount to a contempt.49

47. We agree with the Clerk of the House that the question of whether Members’ performance of their constituency-related duties is part of the work of Parliament is “difficult.” It has become increasingly difficult as the proportion of time spent by MPs on constituency-related work has grown. But the principle is well established: unless a Member’s constituency-related work is carried out on the floor of the House, in one of its committees, or through the tabling of a motion, question or amendment, it is not a proceeding in Parliament and it is not, therefore, protected by privilege. Such was the conclusion of the Joint Committee in 1999, which was itself founded on previous findings of the House, of committees of the House and of the courts. The question that remains is whether a principle that is founded on a set of circumstances far removed from those that now apply, and which were codified in a statute more than four centuries ago, remains entirely fit for purpose. That is a question that goes far beyond the scope of this Report.

48. We recommend that the House should be invited to debate the relationship between privilege and the performance by Members of their constituency duties, if possible before the Government publishes its draft Privileges Bill.

49. We now turn to the Clerk’s questions ‘b)’ to ‘e)’. In question ‘b)’, the Clerk is inviting us to take an excursion into the realms of metaphysics. On a practical level, we suggest that if a Member is unaware that an act of hacking has obstructed him or her, it is unlikely that a well-founded complaint alleging contempt arising from obstruction will be made. If a Member were to suspect but not know that he or she had been obstructed by an act of hacking, it would be for that Member to make the case and (under present procedures) for the Speaker to decide whether to give precedence over other business to a motion to refer the matter to this Committee.

50. The more difficult question to answer is whether awareness by Members that their phones are being or may be being hacked might interfere with or obstruct their participation in proceedings, by creating a general climate of insecurity—this is the nub of the Clerk’s questions ‘c)’ to ‘e)’. Our view is that establishing whether a ‘climate of insecurity’ exists would almost certainly resemble an opinion poll more than it would resemble a scientific measurement. Some Members are more likely to be sensitive to such climatic conditions than are others. The evidence for such a climate would in all probability consist of a series of subjective statements, rather than objective fact. In our judgment, the House would be well advised to proceed with great caution before setting off

47 Evidence p18

48 Qq59, 64

49 Q49


down a road that might require it to reach conclusions based on Members’ impressions of the impact on them of an alleged pattern of behaviour, rather than on findings of fact concerning a specific act or series of acts that can be shown to have occurred.

51. We conclude that a specific act of hacking which can be shown to have interfered with a proceeding in Parliament or to have impeded or obstructed a Member from taking part in such a proceeding could potentially be a contempt. This would be particularly so if the hacking were carried out with intent to bring about such interference, impediment or obstruction.

52. We conclude that a series of acts of hacking which, by creating a climate of insecurity either generally in the House or in one of its committees or for a Member or group of Members or officers of the House, can be shown to have interfered with proceedings in Parliament could potentially be a contempt. We note that demonstrating to a reasonable standard of proof a causal relationship between the acts of hacking and the climate of insecurity might be difficult.

53. The Clerk’s question ‘f)’ is whether an act of hacking interferes with a Member’s right to private life under Article 8 of the ECHR. We agree that this is an important question for any person who may be the victim of hacking and that the answer to it may provide a remedy through the courts. But we do not consider that it is relevant to determining whether a contempt of Parliament may have occurred, because the ECHR right attaches to an individual and not to the House.

Capacity of the House to investigate allegations of hacking

54. As the recent history of police investigations into hacking may be felt to demonstrate, the gathering of evidence concerning acts of hacking requires considerable resources and technical expertise. It is our view that the House probably lacks the capacity to investigate properly an allegation of hacking. We do not mean to suggest that it would be desirable for the House to develop such a capacity. But neither do we believe that it is desirable that the House or its Members—any more than any other institution or individual—should always be dependent on the prosecuting authorities to take the initiative in investigating such a matter.

55. The House or any of its Members or officers may of course invite the police to investigate a possible breach of the law that has come to their attention. We note that the House has also directed the Attorney General to prosecute an alleged offender, although this last happened in 1889.50

56. We conclude that allegations of criminal behaviour such as hacking should be investigated by the police, who possess the necessary resources and expertise, although the House should be prepared to invite the police to investigate an allegation that has come to its notice. Individual Members, just as other citizens, are able to ask the police to investigate specific allegations affecting them. The House should instruct the Law Officers only in the most exceptionally urgent or serious cases.

50 Joint Committee on Parliamentary Privilege, paragraph 309; and Erskine May, 23rd Edition, p163


57. Lord Lester reminded us that the Committee on Standards and Privileges is not a judicial body; its procedures were not designed to be compliant with Article 6 of the European Convention on Human Rights.51 In 1999, the Joint Committee reached a similar conclusion.52 Professor Bradley, however, noted a recent judgment of the European Court of Human Rights, that “a wide margin of appreciation is left to member States” in “the realm of parliamentary law” and told us:

It must not be assumed that the contempt jurisdiction of the House of Commons will in all respects fall foul of the Strasbourg jurisprudence.53

We note the caution that is so evident in this statement.

58. We subscribe to the dictum, now well established in Parliament, that the House should assert its privileges sparingly. We suggest that the question mark over the compatibility with internationally accepted standards of the House’s procedures for the investigation of possible breaches of privilege by non-Members reinforces the wisdom of this approach. The question of whether those procedures should be reviewed against the provisions of convention obligations is one to which the House may wish to turn its attention when it considers the forthcoming draft Privileges Bill.

Sanctions

59. Lord Nicholls gave powerful evidence that the House lacks the necessary powers to deal with offenders:

I find it very difficult to see how the House has any effective remedy here and I do wonder, going through with a full and thorough investigation, where it can lead. You can rap the editor of a newspaper over the knuckles and admonish him, which will not give him the loss of a wink’s sleep, but there is nothing else, as I understand it, that, effectively, you can do.54

The House has not fined anyone since 1666 and it has not committed anyone to custody (although it has detained people temporarily) since the 19th Century.55 It is thus less than entirely clear that the House retains the power to do either. In 1999, the Joint Committee recommended giving the Commons a statutory power to fine.56 In so recommending, the Joint Committee repeated calls made by committees of this House in Reports published in 1967 and in 1977.57 It also recommended the abolition of both Houses’ powers of imprisonment (but not those of temporary detention). The House may reprimand offenders at the bar of the House but has not done so since 1957, possibly for the reasons Lord Nichols advanced in his evidence, or possibly because such a sanction would now

51 Evidence p27 and Q55. Article 6 of the ECHR protects the right to a fair trial.

52 Joint Committee on Parliamentary Privilege, paragraphs 280 to 292

53 Evidence p34

54 Q 56

55 Joint Committee on Parliamentary Privilege, paragraphs 271 and 272




appear high-handed. In our view, the imposition of a fine, where justified by the facts and by the circumstances, is more consistent with modern practice and would be more likely to be proportionate to an offence such as hacking.

60. We suggest that the power to reprimand an offender in person at the bar of the House, though not used in recent times, should continue to be available. We recommend that measures to implement the recommendations of the Joint Committee that the House should lose its powers of imprisonment and should be given a statutory power to fine offenders be included in the draft Privileges Bill.


Parliament and the courts

61. We have concluded that a specific act of hacking an MP’s phone could potentially be a contempt of the House, depending on the facts of the case. It is also clear that a specific act of hacking anyone’s phone—including an MP’s phone—could be a breach of the law. The Clerk of the House told us that:

If a Member in the course of his duties were attacked and injured in some way, in a criminal way, that would be a matter for criminal proceedings in the courts, but, of course, it would impede a Member in his activity in the House. In the most general sense therefore it would be a contempt. But I do not think the House would do anything about that in that context because there was a criminal sanction.58

He added:

The House itself—and this is reiterated by the Joint Committee on Parliamentary Privilege—has taken the view that it should exercise its jurisdiction, if I can use that word, rather sparingly. The House should not pursue privilege if it is not thought to be greatly interfering with the House’s work. That is the sort of principle that has grown up.59

62. As already stated above, it is our view that acts of hacking should be investigated by the police and that hackers should be proceeded against in the courts. But what happens next? Is Parliament then able to proceed against the alleged hacker for the quite separate offence of contempt? In this final chapter of our Report, we consider the relationship between the overlapping jurisdictions of Parliament and the courts. Specifically, we seek to answer the question, how should the House exercise its exclusive jurisdiction over behaviour amounting to contempt in a case which has already been investigated by the police or which has been before the courts?

63. Professor Bradley told us that:

Obviously there is double jeopardy if it is an identical offence being retried, but, as we all know from our ordinary life, somebody may commit a crime, he or she may be convicted or acquitted but may be held by the employer to have acted in breach of an employment contract and, therefore, can suffer a double penalty. There may be other penalties to follow. Double jeopardy has to be considered strictly in the context of two judicial proceedings, or quasi-judicial proceedings, dealing with the very same thing. If it is a matter of other consequences, then life is full of instances of potential double or more jeopardy.60

64. Lord Lester agreed that an act of hacking may be both subject to proceedings in the courts and a possible contempt of Parliament:

58 Q10

59 Q26

60 Q56


There are circumstances where the fact that it is a crime or a civil wrong and can be dealt with by the courts doesn’t mean it can’t also be a contempt. I agree with that, but I am saying that you have to define the circumstances very closely. It has to be so closely linked to the proceedings in Parliament as to obstruct those proceedings intentionally and with that effect.61

But in Lord Lester’s view, the matter had to be pursued in one or other jurisdiction:

What could not, in my view, be proper is for someone who has been convicted by the courts to be retried for exactly the same offence. I can perfectly well understand, however, that if someone has committed a serious crime established by the courts, they can be excluded from Parliament as a separate sanction.62

He added:

You are not judges. You are not independent in the sense that judges are. You don’t have the panoply, all the procedures, and systems of appeal that the courts operate. Therefore, for you to ‘retry’ someone who has been acquitted would give rise to serious problems in Strasbourg. Let’s assume the person has been acquitted by a jury and then is found guilty by you without the procedural safeguards that are needed by Article 6. That person would go to Strasbourg and say, ‘My rights have been violated,’ and would have a strongly arguable case.63

65. Referring to the possibility that the House might proceed for contempt against someone who had been acquitted by a court, Lord Nicholls said:

Much would depend upon the basis on which the individual had been acquitted. If there had been a full trial, the facts had been looked into and then the jury said ‘Not guilty’, I wouldn’t say it is a situation where the House could never pursue a contempt claim, but, on the face of it, it would be very unlikely that it would be proper for them to do so, for obvious reasons.64

Turning to the question of whether the House could act in the event that the prosecuting authorities declined to take action, Lord Nicholls added:

As we all know, the nature of contempt is an improper interference with the rights and duties of Members and it is interference with Parliament, and it is in the public interest that Parliament should not be interfered with. The means by which that interference takes place may, of course, be the treatment of an individual Member by an outsider. I would think it is most undesirable that the situation should arise where there has been such an interference and, because the police decide to take no action, there is nothing the House can do. Of course, the House has to be very cautious for a number of different reasons, but, in principle, it seems to me contrary to the public

61 Q57

62 Q54

63 Q55

64 Q56


interest in a very serious way that there could be an interference with the conduct of the business of the House and yet the House could do nothing about it.65

66. Professor Bradley concurred with this analysis:

I am not commenting on recent events at all, but the Chaytor judgments from the Supreme Court now make very clear that the House will co-operate with the police even in the case of crimes committed in a parliamentary context, and the duty of the House is to let the criminal investigations take their course. We are not dealing with and I know nothing about the situation in which, for whatever reason, the criminal investigation is not taking its course, in which case the civil and criminal remedies are problematic. I would share Lord Nicholls’ view that it must be possible for the House to take some action in those circumstances.66

67. We agree that the House must be able to deal with a specific act of hacking as a possible contempt in cases where the prosecuting authorities or the courts do not deal with the matter. But in doing so, we (like the Joint Committee before us) support the view expressed by the Committee of Privileges in 1967 and endorsed by the House in 1978 that,

... the House should exercise its penal jurisdiction (a) in any event as sparingly as possible, and (b) only when it is satisfied that to do so is essential in order to provide reasonable protection for the House, its Members or its Officers from such improper obstruction or attempt at or threat of obstruction as is causing, or is likely to cause, substantial interference with the performance of their respective functions.67

We would therefore expect the legal and judicial processes to take priority in all but the most exceptional cases. And there should be no special provision made in law to provide MPs or Parliament with remedies for phone hacking through the courts that are not available to others. The law must apply equally to all.

68. We recommend that, in any matter such as hacking for which a remedy may be available in law, the House should normally expect all steps to be taken to obtain such a remedy before a Motion is brought before the House to refer the matter to the Committee on Standards and Privileges for investigation as a possible contempt, save in exceptional circumstances, such as a failure on the part of the prosecuting authorities to act, or the existence of an immediate and severe threat to the working of Parliament.

69. We recommend that, in a case where a person has been acquitted by a court of a charge relating to a matter which may also amount to a contempt, such as hacking, no Motion should be brought before the House to refer the matter to the Committee on Standards and Privileges, save in exceptional circumstances, such as the alleged involvement of a Member in carrying out the hacking.

65 Q61

66 Q61

67 CJ (1977–78) 170, agreeing to paragraph 4 of the Third Report from the Committee of Privileges, HC (1976-77) 417.


70. We recommend that, in a case where a person has been convicted by a court of a charge relating to a matter which may also amount to a contempt, such as hacking, there should be a presumption that the House will exercise its own penal jurisdiction only when it is satisfied that to do so is essential.


A Privileges Act

71. We agree with the Clerk of the House that a Privileges Act “may define territory in such a way that it will be clearer both to the courts and to Parliament where their respective jurisdictions begin and end.”68 We welcome the Government’s announcement that it will bring forward a draft Privileges Bill in the current Session of Parliament. We hope that some of our recommendations above may be reflected in the terms of the draft Bill.

72. These are weighty issues for Parliament. No-one can accuse successive Governments or Parliaments of rushing to implement the recommendations made by the Joint Committee in 1999. Yet now is not the time to act in haste. We recommend that sufficient time be made available for full and careful scrutiny of the draft Privileges Bill, in order that the resultant Act may be as clear and robust as possible.

68 Q41


Appendix: Note by the Speaker’s Counsel, 7 February 2011

Legal remedies for phone ‘hacking’

1. What is popularly referred to as phone ‘hacking’ may amount both to a crime and to a tort actionable in the civil courts. The term ‘hacking’ has been used to describe various activities involving the retrieval by a third party of communications which are intended to be confidential. This may include interception, in the narrow sense in which this term is used under the Regulation of Investigatory Powers Act 2000, but also the obtaining of confidential information by other means (such as by retrieving messages from a voicemail system or impersonating an intended recipient).

2. The legal consequences will vary according to whether the message has been intercepted before its receipt by the intended recipient or is obtained subsequently. This note considers the remedies available under the criminal and civil law.

The criminal law

Interception

3. The principal statute concerned with the security of transmission of communications is the Regulation of Investigatory Powers Act 2000. Other relevant statutes which serve incidentally to protect communications and other data by means of the criminal law are the Computer Misuse Act 1990 and the Data Protection Act 1998. Section 1 of the 2000 Act creates the offence of unlawful interception of a communication. In summary, the offence under section 1 is committed by a person who (intentionally and without lawful authority) intercepts any communication “in the course of its transmission” by means of a public (or private) telecommunications system.

4. As may be seen from the evidence given to the Culture, Media and Sport Committee69 and the Home Affairs Committee70, the meaning of “intercept” and “in the course of transmission” is not straightforward. Section 2(2) of the 2000 Act provides:

“(2) For the purposes of this Act, but subject to the following provisions of this section, a person intercepts a communication in the course of its transmission by means of a telecommunication system if, and only if, he—

(a) so modifies or interferes with the system, or its operation,

(b) so monitors transmissions made by means of the system, or

(c) so monitors transmissions made by wireless telegraphy to or from apparatus comprised in the system,

as to make some or all of the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication.”

69 Oral evidence given on 2 September 2009 by Assistant Commissioner John Yates and Detective Chief Superintendent Williams

HC 362 –II Ev.358-364.

70 Letter of 29 October 2010 from the Director of Public Prosecutions


5. The placing of a tap on a telephone line, or a recording device in a telephone receiver, would amount to ‘interception’, as would the capture of a wireless signal. In such cases, the contents of the communication are being made available, while being transmitted, to a person other than the sender or the intended recipient. The position is less clear where the content of a telephone message or other communication is retrieved from a recording system such as voicemail. In such systems, the incoming message is recorded and may subsequently be retrieved by the intended recipient who may be required to identify himself by using a PIN number or other password. If the intended recipient has not yet received the communication before it has been made available to another, then it seems reasonably clear that the communication is ‘still in the course of its transmission’ and the offence of interception is made out. Provision for such an event is made in section 2(8) of the 2000 Act so as to include “any case in which any of the contents of the communication, while being transmitted, are diverted or recorded so as to be available to a person subsequently”.

6. This leaves the (probably common) situation where a number of messages which have already been received and read by the intended recipient remain stored in a communications system. Access to such systems may be gained by using a mobile phone which has the relevant number, or by dialling in from some other telephone and gaining access to the voicemail record. In an ideal world, access would be restricted by PIN number or password, but it appears that such protection is not always used, or is ineffective because PIN numbers or passwords are not changed sufficiently frequently. Gaining access to a person’s voicemail account would popularly be understood to amount to ‘hacking’, but does it amount to interception of a communication while it is being transmitted?

7. In the evidence given to the Culture Media and Sport Committee in September 2009 Assistant Commissioner Yates said that the successful prosecution of Mr Goodman and Mr Mulcaire for the offence under s.1(1) of the 2000 Act had “brought absolute clarity that accessing people’s voicemails without their permission is a criminal offence for which you will go to jail” (Ev 359 Q1890). However, it seems that in Goodman and Mulcaire the prosecution put its case on the basis that the defendants gained access to a person’s telephone and their voicemails prior to the owner of the phone doing so (Metropolitan Police Service reply of July 2009 to Culture Media and Sport Committee Ev 356 paragraph 3). The defendants pleaded guilty, so there was no consideration of the precise scope of the s.1(1) offence. The Assistant Commissioner appears to have assumed that the offence under s.1(1) is not made out where a person first gains access to a message after it has been seen or heard by the intended recipient (Ev 360 Q1900).

8. In its natural and ordinary meaning, to “intercept” a communication “while it is being transmitted” does not seem apt to include reading or hearing the message after it has been received by the intended recipient. In Goodman and Mulcaire, the prosecution did not allege that the defendants had gained access to voicemails which had remained stored after being read, but rather that they had intercepted them beforehand. It has been suggested that gaining access to voicemails or other messages after they have been received is nevertheless an offence under s.1(1) because of the extended meaning given to the expression “times while a communication is being transmitted” in section 1(7). Section 1(7) provides that this is to be taken “to include any time when the system by means of which the communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it”.


Although it is reasonably clear from this provision that a stored message is intercepted if access is gained before the intended recipient, it is not clear if it covers the case where a message has been collected or access has been obtained by the intended recipient but remains stored and is seen, read or heard by some other person having no right to do so.

9. In his letter of 29 October 2010 to the Home Affairs Committee, the Director of Public Prosecutions (Keir Starmer QC) points to the difficulty of interpretation as follows:

“Does the provision mean that the period of storage referred to comes to an end on first access or collection by the intended recipient, or does it continue beyond such first access for so long as the system is used to store the communication in a manner which enables the (intended) recipient to have subsequent, or even repeated, access to it?”

10. The DPP goes on to explain that no court has yet determined this issue of construction. Reference is made to R.(on the application of NTL Group Ltd) v. Ipswich Crown Court [2002] EWHC 1585 Admin., but that case was concerned with the diversion of incoming e-mails to a storage system before they were collected by the intended recipient. Lord Woolf CJ remarked that section 1(7) had “the effect of extending the time of communication until the intended recipient has collected it”. The judgment does not address the question of whether gaining access to e-mails, after they have been read, amounts to interception. The natural and ordinary meaning of ‘collect’ suggests that this can be done only once, but ‘otherwise to have access’ may well be broader.

11. The letter from the DPP states that he will be advising police and CPS prosecutors to proceed on the assumption that an offence may be committed under s.1(1) of the 2000 Act if a communication is looked into after it has been accessed by the intended recipient and for so long as the system in question is used to store the communication in a manner which enables the intended recipient to have subsequent, or even repeated, access to it. Such an approach assumes that the expression ‘otherwise to have access’ is capable of including the case where the message which is intercepted has already been ‘collected’ or is one to which access has already been obtained. It remains to be established whether ‘access’ in s.1(7) has this broader meaning so as to include repeated access.

Computer misuse

12. What is popularly referred to as ‘hacking’ may also constitute the offence of securing unauthorised access to computer material, contrary to section 1 of the Computer Misuse Act 1990. The offence under section 1 is committed where a person knowingly ‘causes a computer to perform any function’ with intent to secure unauthorised access to any program or data held in any computer, or to enable any such access to be secured. There has to be some interaction with the computer, so that merely reading confidential data displayed on a screen or reading the printed output from the computer would not constitute the offence. On the other hand, a person would ‘cause a computer to perform any function’ if he were to use a PIN number or password to activate a computer’s security device or cause it to offer a log-in menu.

13. The required intent does not need to be directed at any particular program or data, or of a particular kind, or a program or data held in any particular computer (Section 1(3)). Accordingly, the prosecution need only prove that a person knowingly caused a computer to perform a function with the intention of gaining access to any program or data. Using the owner’s PIN number or password without his authority to conduct a fishing expedition


into his e-mails or voicemails would seem to fall within the scope of the offence, as would any other operation to circumvent the security of a computer system, since it would constitute conduct which causes a computer to perform a function.

14. There is therefore a degree of overlap with the interception offence under section 1 of the Regulation of Investigatory Powers Act 2000. Until 2008, the offence under s.1 of the 1990 Act was triable only summarily, with a maximum penalty of only six months’ imprisonment. The offence is now71also triable on indictment with a maximum penalty of two years’ imprisonment, the same mode of trial and penalty as attach to the interception offence.

15. The 1990 Act also creates a number of ancillary offences, such committing an offence under s.1 with intent to commit a further offence72 (s.2), or to impair the operation of a computer (s.3) and to make, supply or obtain any article intending it to be used to commit an offence under s.1–3 (s.3A). This latter offence would cover the making, supplying or obtaining of ‘hacker tools’.

Unlawful obtaining of data

16. The Data Protection Act 1998 creates a number of offences of a regulatory kind which may be committed by a data controller,73 but the most relevant for present purposes is the offence of unlawful obtaining of personal data contrary to s.55 of the 1998 Act. This makes it an offence, knowingly or recklessly to obtain or disclose personal data without the consent of the data controller.

17. It is hard to conceive of a voicemail or other personal message which did not contain personal data of some kind, whether it related to the sender or the intended recipient. Some such data might also be sensitive personal data within the meaning of s.2 of the 1998 Act. The offence is triable either summarily or on indictment, but the penalty is at present limited to a fine.74

18. It should also be noted that a number of defences are provided for under s.55(2) which might well make it difficult in practice to mount a successful prosecution for ‘hacking’. It is a defence for the person obtaining the data to show that he had a reasonable belief that he a right to do so (s.55(2)(b)), or that he would have had the consent of the data controller had the latter known of the circumstances (s. 55(2)(c)). It is also a defence to show that the obtaining or disclosing was justified as being in the public interest (s.55(2)(d)). This defence has been prospectively broadened by a new s.55(2)(ca)75 which makes it a defence to show that the person acted with a view to the publication by any person of any journalistic, literary or artistic material, and in the reasonable belief that in the particular circumstances the obtaining, disclosing or procuring was justified as being in

71 See section 35(3) Police and Justice Act 2006.

72 The relevant further offence is defined in s.2(2) and would include theft and blackmail, but not the offence of unlawful obtaining of personal data contrary to s.55 Data Protection Act 1998, since this is an offence punishable only by a fine.

73 See, for example, s.17 processing personal data without registration, failure to give notification to Information Commissioner s.20.

74 Section 77 Criminal Justice and Immigration Act 2008 confers an order making power to provide for the imposition of a sentence of imprisonment.

75 Inserted by s.78 Criminal Justice and Immigration Act 2008 not yet in force.


the public interest. Tabloid journalists inquiring into public figures might well seek to rely on the new defence.

The civil law

Breach of confidence

19. A person’s telephone conversations and e-mail traffic are, in principle, confidential in much the same way as written correspondence. The content of such communications is capable of being held in confidence (and usually is so held). An action for breach of confidence will lie where there has been a breach of an obligation of confidence assumed between the parties, or where the nature of the material necessarily implies that it is held in confidence.

20. If communications are ‘hacked’ into, the obligation of confidence arises not so much from any pre-existing duty of confidence between the parties but “from the defendant having acquired by unlawful or surreptitious means information that he should have known he was not free to use,” to adopt the words of Buxton LJ in Ash v. McKennit [2007] 3WLR 194. It is clear from such cases as Campbell v. MGN Ltd [2004] 2AC 457 that an action for breach of confidence will lie in respect of the obtaining or disclosure of information which by its nature is confidential, and this will be so whether or not there is any pre-existing relationship of confidence between the parties.

21. As the Master of the Rolls has explained in his memorandum to the Culture, Media and Sport Committee,76 English law has not historically incorporated a general law of privacy, but has developed individual forms of privacy protection consistently with the requirements of Article 8 ECHR (right to respect for privacy) and Article 10 ECHR (freedom of expression). The Master of the Rolls cited in support the following passage from the speech of Baroness Hale in Campbell v. MGN Ltd [2004] 2AC 457:

“The court should, in so far as it can, develop the action for breach of confidence in such a manner as will give effect to both Article 8 and Article 10 rights.”

22. This remark follows and approves the judgment of the Court of Appeal in A v.B plc [2003] QB 195 in which Lord Woolf held that Article 8 and 10 ECHR “have provided new parameters within which the court will decide, in an action for breach of confidence, whether a person is entitled to have his privacy protected by the court or whether the restriction of freedom of expression which such protection involves cannot be justified”. Lord Woolf CJ noted that, by reason of s.6 Human Rights Act 1998, the court was required not to act in way which is incompatible with a Convention right, but was able to do so “by absorbing the rights which Articles 8 and 10 protect into the long-established action for breach of confidence”.

23. In principle, a person whose confidential information is about to be released (or seen or heard by others) is entitled to an injunction to restrain such release in breach of a duty of confidence. Although it is probable that an injunction would be granted the court would still need to satisfy itself that damages were not an adequate remedy, and that the injunction should not be refused on the general principles affecting the grant of a discretionary remedy such as the public interest in the disclosure of wrongdoing and the proper administration of justice.

76 HC 352–II EV 200–211.


Data protection

24. A person who is a data controller has a duty under s.4(4) Data Protection Act 1998 to comply with data protection principles in relation to all personal data with respect to which he is the data controller. The 1998 Act institutes its own enforcement regime, via the Information Commissioner, but a breach of the duty under s.4(4) would also be actionable as a breach of statutory duty.77

25. A person who obtains data unlawfully is unlikely to be a ‘data controller’, since he would not be in a position to determine the purposes for which and the manner in which nay personal data are, or are to be processed, but is likely to be a person who has committed the offence under s.55 of the 1998 Act.

Other civil law remedies

26. If the confidential material is recorded on paper or some other physical medium, then the surreptitious copying of that record might give rise to an action for trespass to goods. Such copying would also amount to an infringement of copyright, since copyright would subsist in the recording, if not in the original message.

27. If there were no copying, then the most likely remedy would be an action for breach of confidence.

77 Cf. Tchenguiz and others v. Imerman [2010] EWCA Civ 908 paragraphs 95–101.


Formal Minutes

Tuesday 29 March 2011

Members present: Mr Kevin Barron, in the Chair

Sir Paul Beresford Tom Blenkinsop Annette Brooke Mr Tom Clarke

Matthew HancockMr Oliver Heald Heather Wheeler Dr Alan Whitehead

Draft Report (Privilege: Hacking of Members’ mobile phones), proposed by the Chair, brought up and read.

Ordered, That the Chair’s draft Report be read a second time, paragraph by paragraph.

Paragraphs 1 to 50 read and agreed to.

Paragraphs 51 and 52 read, amended and agreed to.

Paragraphs 53 to 58 read and agreed to.

Paragraphs 59 to 61 read, amended and agreed to.

Paragraph 62 to 72 read and agreed to.

One Paper was appended to the Report.

Resolved, That the Report, as amended, be the Fourteenth Report of the Committee to the House.

Ordered, That the Chair make the Report to the House.

[Adjourned till Tuesday 10 May at 9.30 am


Oral and written evidence

Witnesses

Tuesday 23 November 2010 Page

Dr Malcolm Jack, Clerk of the House and Chief Executive of the House of Commons Ev 1

Tuesday 25 January 2011

Professor A W Bradley, University of Oxford, the Lord Lester of Herne Hill QC, Blackstone Chambers, and the Rt hon Lord Nicholls of Birkenhead. Ev 8

List of written evidence Page

1 John Hemming MP, House of Commons Ev 17

2 Dr Malcolm Jack, Clerk of the House and Chief Executive, House of Commons Ev 18

3 The Rt hon Lord Nicholls of Birkenhead Ev 24

4 The Lord Lester of Herne Hill QC, Blackstone Chambers Ev 24

5 The Lord Pannick of Radlett QC, Blackstone Chambers Ev 29

6 James Price QC, 5RB Ev 30

7 Professor Anthony Bradley, University of Oxford Ev 32

8 Chris Bryant MP, House of Commons Ev 35

cobber Pack: U PL: COE1 [SO] Processed: [15-03-2011 11:03] Job: 007634 Unit: PG01Source: /MILES/PKU/INPUT/007634/007634_o0001_Qs1-44 HC 628i CORRECTED O Ev CoH 23 11 10.xml

Standards and Privileges Committee: Evidence Ev 1

Oral evidenceTaken before the Standards and Privileges Committee

on Tuesday 23 November 2010

Members present:

Mr Kevin Barron (Chair)

Tom BlenkinsopAnnette BrookeMr Tom ClarkeMr Geoffrey Cox

________________

Examination of Witness

Witness: Dr Malcolm Jack, Clerk of the House and Chief Executive of the House of Commons, gave evidence.

Q1 Chair: Good morning, Dr Jack. Welcome to ourfirst evidence session in relation to our inquiry intophone hacking. Perhaps I could allow you to make ashort statement before the members of the Committeeask questions of you, Dr Jack.Dr Jack: Certainly, Chairman. Thank you very muchfor inviting me here. I thought it might be useful if Isaid a few words—not too many—about the conceptsof privilege and contempt, to give a bit of abackground setting for this part of the inquiry.I am afraid I begin with something that is not verypromising. The Joint Committee on ParliamentaryPrivilege, which reported now over 10 years ago, assome Members will remember, said that privilege is a“complex, technical and somewhat arcane subject”.That is a little bit off-putting, but, on the other hand,I think we can at least identify reasonably clearly whatwe are talking about.The privileges of the Houses—and it is both Houses,by the way—are those rights and immunities theyenjoy, by Members individually and the Housescollectively, without which they could not performtheir function. I think that is crucial to it. The mostfamiliar one, with which of course all Members willbe familiar, is freedom of speech. Clearly, Parliamentcannot operate if it does not have that principle—that privilege.The term “privilege” is also, in the modern context, alittle difficult. It is not necessarily a term that peoplelike. Of course, it comes from Latin “privata lex”—“the private law”. It is, in some respects, an exemptionfrom the law.Lord Lester, one of your witnesses, set out veryimportant guidance by the late Lord Bingham on therelationship of privilege and the rule of law. LordBingham enunciated three principles: all citizensshould be equally subject to the law of the land; somederogation was necessary from that general dictum forcertain officeholders performing public functions—obviously he would include Parliament in that secondcategory; but the derogation—the moving away fromthe general principle—and these are his words,“should not exceed what is truly necessary”.As far as its own privileges are concerned, the Househas always adhered to the principle, in modern timesat any rate, that privilege should relate only to whatis truly necessary for the House to function. Certainly,

Matthew HancockMr Oliver HealdHeather Wheeler

in this country, it has never extended to exemptionfrom the criminal law for Members of the House. Incertain other jurisdictions it has, but it never has inthis country.There are a couple of other things that I am sure willcome up in the session. Privilege does not extend, ofcourse, to all areas of Members’ activities—I knowthis is a subject that does concern a lot of Membersof the House; I understand that entirely—and that isin the area of constituency work. I need not tell theCommittee how that has grown in recent years. It,in one sense, is not covered by privilege unless theconstituency matter in some way relates toproceedings in the House—so the asking of questions,the raising of matters in the Adjournment, and thatsort of thing. That, very briefly, I hope, helps a littlebit to try to define what privilege is.The second concept—I promise I will not be muchlonger, Chairman—is the one of contempt, which Ithink will come up all through this discussion.Contempt is an obstruction of some sort. Strictlyspeaking, contempts are wider than breaches ofprivilege. They may involve obstruction, notnecessarily of freedom of speech or one of theestablished privileges of the House. There are, as Ihope Members will have seen from my memorandumin paragraphs 4 to 9, a number of different things thatcan amount to contempts of the House. I have a longlist with me, which I will not go through but, just togive a flavour, there is disobedience to rules or ordersof the House. That would be, for example, someonerefusing to attend as a witness to a Select Committee.There is misconduct of various types, interfering withmeetings and so on.Members, of course, as well, are covered bycontempts, where Members may be acting in someirregular manner: corruption. Intimidation ofMembers of the House with threats of various sorts,and so on and so forth, and misleading the House orits Committee are contempts—the disregard of thepractices and procedures of the House. I think thoseare the two concepts behind what the discussion isall about.

Q2 Chair: Thank you for that. Sticking on the issueof possible contempt of Parliament, is it necessary oreven helpful to distinguish between traditional forms

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Ev 2 Standards and Privileges Committee: Evidence

23 November 2010 Dr Malcolm Jack

of communications and modern technology? To whatextent should the 16th and 18th century precedentsguide us today?Dr Jack: I think that is a very reasonable question,Chairman. One of the things it relates to of course—Ithink I do put it in my memorandum—is the fact thata contempt may be considered as such by the Housewhere there is no precedent for the offence.In other words, I am taking the point that you aresaying we are living in a completely different age andthe interception of letters and so on, which was verymuch the concern of the House in the past, in the 19thcentury, is not so relevant to the way in which we nowcommunicate, which is largely electronic. So, yes, Ithink the area of contempt is one in which, how can Iput it, changes can take place.

Q3 Chair: Let me test it another way. Is there anyindication as to whether the interception of a letter toa Member that permanently deprived the Member ofit would have been regarded differently from theinterception of a letter that was then resealed andwhich the Member then eventually received? Or, toput it another way, would stealing of communicationshave been regarded as worse contempt than justreading it?Dr Jack: I suppose it all goes back to how far aMember has been obstructed. Yes, I suppose one isworse than the other if the reading leads to nopractical effect. If the person who reads theintercepted letter does nothing about it to impede theMember in his or her function, then I suppose it is aless serious contempt, but if the contempt involvesactually impeding a Member then it is more serious.I am sorry, Chairman, to sound a bit vague and talkin generalities. I think one of the difficulties, and, if Imay say so, the difficulty facing the Committee—andI understand what that is—is trying to pin this down.It is from one level of generality to something veryspecific. The House, in considering privilege, in yourpredecessor Committees, for example. where therehave been many inquiries into breaches of privilegein the past, has always tended to say, “What is thespecific mischief? What has this breach caused?” Theother principle behind this is: is it substantial? Is itimportant? The House has decided for quite a longtime that, if a contempt is not serious, substantial, itwill probably take no action on it.

Q4 Heather Wheeler: There appears to be littleexperience of dealing with hacking as a possiblecontempt in other legislatures. To what extent oughtwe to pay attention to Commonwealth or otherprecedents that there are? I thought it was interestingthat you reverted back to the fax issue in 1996 withThe Guardian, where The Guardian apologised forpurporting to act on behalf of an MP. We have movedon, exactly as you said. Where do you think we cango from here?Dr Jack: Can I say, first of all, yes, Commonwealthprecedents are extremely important. We are part of aCommonwealth community as far as privilege isconcerned and we exchange a great deal ofinformation with our Commonwealth colleagues. Ioften consult them on privilege matters to see whether

there is any precedent in their jurisdictions. As youwill see from annex 3—you have just referred to it—it is pretty thin on this subject. But one thing isinteresting in the two examples that are at the top ofannex 3. You will see that the first one is from theAustralian Capital Territory and the second one isfrom Canada, from British Columbia.In the first case the conclusion was that no contempthad been committed or could be established—thiscomes back to my point—because the perpetratorresponsible for diverting a Member’s e-mail, whichwas what this was about, could not be found. In otherwords, there could not be a specific pinning down,which was what I mentioned just now about what themischief is. On the other hand, in the case of theCanadian example from 1980, from British Columbia,clearly the interception by the Royal CanadianMounted Police could be pinned down. In this casethe conclusion of the Committee there was that acontempt had been committed. Others of theseCommonwealth examples are rather vague and notvery helpful. It is surprising how little precedent thereis but, at any rate, of the precedents it seems thatwhere something can be specifically pinned down, onegets closer to the breach.

Q5 Mr Heald: Can I just ask you one questionarising from that, Dr Jack? If an allegation of phonehacking is made in a criminal court, there is a properinquiry, which is done within the rules of law, and ithas to be established beyond reasonable doubt. Whathappens in Parliament if an allegation is made of thissort? Do the same rules apply?Dr Jack: You are effectively the court for thatpurpose. What would happen is that a Member wouldraise the matter on the Floor of the House, as has beenthe case here, if the Speaker has been approached andaccepts that there is at least a prima facie possibilityof breach of privilege. Then the matter is referred toyour Committee and it is for your Committee toinvestigate and decide what this constitutes and howto report this to the House. Ultimately, of course, it isup to the House to decide what to do with theCommittee’s report, as with any other Committeereport.

Q6 Mr Heald: I think it is right that the House cansend someone to prison or fine them verysubstantially, although it has not happened since 1666,I believe. But, against that background, are there noprotections for the individual, that he should have therights of natural justice?Dr Jack: In a parliamentary sense, I think the systemthat I have described is what happens. On the questionof imprisonment and fining, I think there is a ratherdifficult distinction about whether the House is a courtof record and therefore has the right to impose fines.That is why a fine has not been imposed for a very,very long time. Imprisonment, I think, in moderncircumstances, is out of the question. The Housewould simply not imprison someone if such a thingarose. The House temporarily puts people in custody,of course. When there is a demonstration or somethingin the galleries, a member of the public can beremoved and detained during the day but is always

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released at the end of the sitting day. I thinkimprisonment, in modern circumstances, is not likely,but maybe what your question is getting at is whetherMembers have a remedy. I think their remedy is underthe law.If we are talking about hacking, hacking is a criminalmatter and therefore is something that can beprosecuted in the courts or, indeed, there are civilremedies if it involves misuse of data and so on, butthe House itself has not really come to any conclusionabout the specific business of hacking.

Q7 Mr Cox: Can I ask a sequential questionfollowing on from that? Isn’t the nub of this expressedin Lord Lester’s evidence in which he cited the 1999Joint Committee on Parliamentary Privilege when itsaid “the privileged areas must be so closely anddirectly connected with proceedings in Parliament thatintervention by the courts would be inconsistent withParliament’s sovereignty as a legislative anddeliberative assembly”? Doesn’t that contain,possibly, the kernel of the issue, namely that anyhacking would have to be proven to have been inconnection with the Member of Parliament’sparliamentary activity, in the sense of his involvementwith parliamentary proceedings, and so go to the heartof those that in some way it was inconsistent for thematter to be prosecuted by the courts because it wouldgo to the heart of his involvement as a Member ofParliament and the sovereignty of this legislature?Doesn’t that contain some of the seeds of it?Dr Jack: Yes, I think it does, and I would agree withthat. A very clear example would be, as I think Imentioned earlier on, if someone threatened aMember in the sense of saying, “If you dare to raisethis matter in the House, we will take action againstyou”—that sort of thing. That is a direct threat, whichrelates, as you say, specifically to a proceeding.

Q8 Mr Cox: Or exerting pressure on how to vote?Dr Jack: Or exerting pressure on how to vote, yes.

Q9 Mr Cox: In an unlawful way?Dr Jack: Yes, absolutely.

Q10 Mr Cox: But doesn’t that raise a separatequestion, Dr Jack, which is that if such activities were,in truth, engaged in, it would not only be a very, veryserious contempt of this House—if there were acampaign of harassment, let us say, against a Memberbecause of his parliamentary activity—it wouldalmost certainly be a criminal offence, and thecontradiction and paradox is that that would have tobe prosecuted in the courts?Dr Jack: Yes, that is right. We now touch on anotherprinciple, which is the separation of powers betweenParliament and the courts, in that Parliament has neverwanted to get involved or interfere, certainly not inthe criminal law. If there were a criminal charge, theHouse has backed off usually and left the matter tothe courts.Can I give an illustration without naming anyone, butevery single person in this room will know what I amreferring to? If a Member in the course of his dutieswere attacked and injured in some way, in a criminal

way, that would be a matter for criminal proceedingsin the courts, but, of course, it would impede aMember in his activity in the House. In the mostgeneral sense therefore it would be a contempt. But Ido not think the House would do anything about thatin that context because there was a criminal sanction.

Q11 Mr Cox: If you are attacked away from theHouse of Commons, in a context that may havesomething to do with your constituency duties but notparliamentary proceedings, it might not be a contempt,might it?Dr Jack: No, that is right.

Q12 Mr Cox: But if you are attacked in the House,deliberately to prevent you from going to vote or somesuch reason, that might well be, although it will belikely to be prosecuted rather than treated as acontempt.Dr Jack: Yes.

Q13 Mr Cox: Can I ask you about impersonation,because in 1996 the Committee’s predecessorconcluded it was a contempt to purport to act in thename of a Member without a Member’s authority?Again, impersonation of a Member can be a way, aswe have heard, to hack into a Member’s phonebecause you impersonate him in order to acquire thecode. Would that be a separate contempt in your viewor does it all depend on this principle of being closelyconnected to parliamentary proceedings?Dr Jack: I think it could be if it were in some waylinked to obstructing the Member doing his duty. Ithink that would be the crux of it. If it was just animpersonation that had no other effect on the dutiesof a Member in the House, I suppose it is on theborderline.

Q14 Mr Cox: I appreciate these are very hypotheticalquestions and rather difficult to answer in a vacuum,but is there any distinction to be drawn between amessage that has been listened to already by theMember—let us say it is about his parliamentaryduties and he is having a discussion with the Speakerabout a matter or whatever it may be—and a messagethat has not been listened to by him?Dr Jack: I think this goes back a little bit to theChairman’s example of the letter, does it not, that isopened by someone and read and then resealed, orintercepted but not used? I can’t, of course, answerfor the legal situation and whether that is itself anoffence. I think it must be an offence to interceptpeople’s mail. That, again, would take us back intothe criminal area and the House would no doubt leavethat to the law.

Q15 Mr Cox: Is there a way of summing this up inthis way? In general, matters that can be prosecutedought to be prosecuted, and so the House wouldprobably not wish to take any action itself, but theremay be scope for room between matters that infringethe criminal law at one end and, in the middle, somearea where the House can take some action in relationto contempt?




Dr Jack: Yes, I think that is a very reasonablesummary.

Q16 Mr Cox: That would have to be tightlyconnected to the Member’s activities in relation toparliamentary proceedings, in your view?Dr Jack: Yes, that is so.

Q17 Mr Cox: Can I just postulate this to you? If wedon’t know whether any Member’s phone messagesdid relate to parliamentary proceedings at all—wehave no specific way of knowing about it—then it isgoing to be extremely difficult to get at any contemptat all, isn’t it?Dr Jack: Yes.

Q18 Mr Cox: Because the basic precondition is thatthe Member’s phone message, which has been hackedinto, relates closely to parliamentary proceedings?Dr Jack: Yes, I would agree with that.

Q19 Mr Clarke: Could I, Dr Jack, ask a couple ofpractical questions? In many ways I am depending onyour experience and I am sure you will be veryhelpful. Can you offer some examples of messagesthat might constitute proceedings in Parliament andsome examples of messages which, although intendedfor the MP concerned, would not be regarded asactually being proceedings?Dr Jack: Yes. Do you mean messages left for aMember on their phone or something like that? Is thatwhat you mean by “messages”? Or any messages?Perhaps it does not really matter. Messages that mightrelate to proceedings in Parliament or would-beproceedings in Parliament would be those closelyrelated to the activities of a Member in the House,like tabling a question or applying for an Adjournmentdebate. Those are examples of matters that are clearlyproceedings. Messages and interceptions that relatedto those—someone trying to suggest to a Member thathe or she should not table that question and shouldnot raise that matter in an Adjournment, that sort ofthing—are clearly very closely related to proceedings.

Q20 Mr Cox: Could I give you another example?Dr Jack: Yes. Please, do.

Q21 Mr Cox: A Select Committee has embarked ona highly sensitive report in which the Chairman isdiscussing with Members a particularly fine judgment.The report is embargoed in any event and a hackingis made in to discover the nature of the deliberationsof the Committee. That would clearly be a contempt,would it not?Dr Jack: That would clearly be a contempt. It is avery good example. Leaking of course of SelectCommittee reports, as the Committee knows, is acontempt. Those kinds of messages are. The type thatare not that a Member might be dealing with—I thinkthat is what you are asking me—are, I would imagine,mainly in the constituency area, correspondence withconstituents, of which I am sure you all havevoluminous amounts, e-mails from constituents thatrelate specifically to constituency matters rather thananything that is going on in the House.

As I said in my opening remarks, I think this issomething that is quite difficult for us to put our mindsinto because it is so much now the activity ofMembers of the House. But privilege, of course,predates that sort of activity. This is what we aretalking about.

Q22 Mr Clarke: Dr Jack, does it in your view makeany difference whether the device hacked into wasprovided by Parliament or funded by parliamentaryallowances or is the Member’s own personal device?Dr Jack: That’s a very interesting question. It raisesthe question, also, of what the use of the device is:whether it is being used officially or not. You aregetting closer and closer to some of the ambiguitiesof a modern Member’s practice and I fullyacknowledge that. I would not dispute that at all. Ithink that Parliament provides Members withfacilities, including technological devices, in order tocarry out their wider duties as well as their specificduties relating to proceedings.

Q23 Matthew Hancock: We have talked a lot aboutthe question of impeding a Member. I just wanted topress a bit more on what that could mean. Forinstance, we have talked about how it can impedewhen the content of a communication is privileged,but there is also a suggestion that a contempt couldhave occurred should the possibility of hacking createa climate of a lack of confidence, which thereforeimpedes. But isn’t that second point hard to arguegiven that it is not a point of fact—it is a point ofcontention?Dr Jack: Yes, I think that is right. I do understandentirely the general sentiment that lies behind theworry in this matter. Before coming to the CommitteeI refreshed myself by reading the debate in the Houseand that is very much the theme of the debate in theHouse. If there is a general feeling that these activitiesmight be going on, then how can Parliament functionproperly if Members are constantly thinking thatsomeone may be listening in or hacking into theirdevices?I think the problem we have, which we are goinground and round a little bit, is how does that generaldisquiet relate to the specific mischief that a hackingcase causes a Member? It is difficult; I acknowledgethat. In fact, I have read the evidence from yourprevious witnesses and basically what they are sayingis that in principle there could be a contempt, but whatis the contempt specifically?

Q24 Matthew Hancock: Specifically, before anyMember knows about the possibility of hacking, is itpossible to impede your parliamentary duties if youdon’t know that there is anything impeding you?Dr Jack: That is one of the questions I put in thememorandum that I thought the Committee at leastshould consider.

Q25 Matthew Hancock: I was rather hoping youmight shed some light on it.Dr Jack: I think, in pure logic, if someone doesn’tknow something is happening it is difficult to see howthey can be impeded if they don’t have that




knowledge. But, of course, that does not answer thegeneral worry point that everyone is going roundsaying, “We are all being hacked.”

Q26 Matthew Hancock: You mentioned the pointthat if a Member is impeded it needs to be substantialin order for a contempt to have occurred. If Membersknow that there is a problem with a certain type ofcommunication but can then choose to communicatein another way because they may be concerned aboutthe security of a certain way of communicating—forinstance, if they know that leaving messages onmobile phones is insecure, they can therefore chooseto leave messages in other ways or speak directly—how do you define “impeding substantially”?Dr Jack: I am afraid there is no easy answer to thatquestion. What it links to is the principle that Ireferred to. The House itself—and this is reiterated bythe Joint Committee on Parliamentary Privilege—hastaken the view that it should exercise its jurisdiction,if I can use that word, rather sparingly. The Houseshould not pursue privilege if it is not thought to begreatly interfering with the House’s work. That is thesort of principle that has grown up.

Q27 Matthew Hancock: Given that you havedefined to some degree how some activities areprotected by privilege and some are not, if anyintrusion occurs into areas that are not protected byprivilege, do you think that can constitute contempt?The three different types of “impeding” that you listin your written evidence all relate to activities that arespecifically protected by privilege, which implies thatif the activity is not protected by privilege then therecannot be a contempt for interfering with it. Do youthink that is the case?Dr Jack: Yes, I think that is the case. The only cautionthat I would say is of course, going back to theoriginal point the Chairman made, that new contemptsmay arise in the opinion of the House. The House maydecide that certain things that previously were notconsidered to be obstructive are obstructive andtherefore are contempts. It is not a closed book, if yousee what I mean. There is not an A to Z of contemptsthat closes the matter. That is part of the problem ofcourse.

Q28 Matthew Hancock: Of course, but that isdifferent from if something is clearly not protected.Dr Jack: Absolutely. Yes, sure.

Q29 Annette Brooke: In your memorandum,Dr Jack, you refer to a Member’s right to privacyunder the European Convention on Human Rights. Ifwe are trying to assess whether a particular case ofhacking is a contempt, clearly the right to privacyapplies to me as an individual and as an MP.Dr Jack: Sure.

Q30 Annette Brooke: Could you clarify exactlywhat your thoughts are around this, and is there aparticular relevance for MPs?Dr Jack: I think that leads us on to this business,again, about the relationship with the law, does it not,and whether Members of Parliament in a sense should

have a different regime applied to them? I go back tothe dicta that Lord Bingham enunciated in respect ofthe rule of law—that that should only be the casewhere it is necessary for the performance of theduties.As you have just said—you are quite right—there aredata protection rights that apply to Members of theHouse as much as to anybody else under the DataProtection Act. It is an offence unlawfully to obtaininformation. Of course, as far as hacking is concerned,unlawful interception of communications applies toeveryone.I think you will notice that, in the appendix whereI listed the Commonwealth precedents in the IndianParliament, the Speaker was quite forthright about thisand said that Members ought not to claim any specialprivileges outside that an ordinary citizen cannot. Sothere is some feeling that if the law applies then aMember should not be put in a special position fromanyone else.The problem that I know lies behind this is perhapsthe ineffectiveness of the law, both in its applicationand its enforcement, but that is another matter. If thelaw is not working properly, that is not really a matterfor the House in the area of privilege. It is a matterfor the House as a legislative body perhaps, to changethe law, or the Government to come forward withproposals. If there are difficulties, if there areloopholes for example, in the law, then they have tobe corrected. But, again, going back to the debate inthe House—I entirely understand this—part of thefrustration of Members is that the law is not workingproperly, to put it bluntly.

Q31 Annette Brooke: Do you think that theeffectiveness of the law in particular cases and inhypothetical cases will need to be part of this inquiryeventually?Dr Jack: I would not venture into that if I were theCommittee, but you are a Select Committee and youinterpret your own terms of reference. I think thatyour focus is on privilege and contempt of the House.If one of your conclusions is that of course this mattercannot be cleared up because there are inadequaciesin the law or something like that, then that might bea conclusion. In any case, I am not the proper witnessto ask questions about the law. I hope I do not seemto be evading your question.

Q32 Annette Brooke: You just prompted me to askthat by your previous answer. If I could just draw myquestioning to a close, you have actually touched onsome of these issues already but I just want to get thisabsolutely clear. Going back to Lord Lester’sevidence, he says it is wrong in principle andunnecessary in practice to extend privilege to coveracts such as hacking and interception which arealready capable of being brought before the courts. Iam not trying to put words in your mouth but it seemsto me that you have already covered the “unnecessaryin practice” aspect. What about his point about thembeing wrong in principle?Dr Jack: I think we have touched on this a little bit.This is the principle that the House keeps out of thearea of criminal law. There are jurisdictions of




Parliament and there are jurisdictions of the courts.The application of the law is a matter for the courtsand not for Parliament. Parliament is concerned, asMr Cox said, with distinct obstruction impedimentswhich are not matters of criminality. Contempts of theHouse are not matters that would be prosecuted in thecourts. I think that is the distinction that is beingmade—this principle of separation.

Q33 Mr Cox: Can I just interject on that? Therecould be contempts?Dr Jack: There could be, yes.

Q34 Mr Cox: But because the criminal law coversthem, for the reasons given by my colleague MrHeald—natural rights, fairness of trial and so on—they are better dealt with by the courts.Dr Jack: That is right.

Q35 Mr Cox: Contempt is a function, would youagree, of the inherent power of Parliament? It is aresidual inherent power that it has in order todischarge its functions. That is why the late LordBingham used the word “necessary”—if it isnecessary for us to discharge our functions.Dr Jack: Yes.

Q36 Mr Cox: What it is necessary for us to takepower to do may change according to circumstances.If the criminal law did not deal adequately with aspecific mischief then it might be necessary, in anothercentury, in another time, for Parliament to take thepower to itself because otherwise it would not be ableto discharge its legislative duties. But, at the moment,criminal law is relatively comprehensive and Iunderstand Lord Lester to be saying that, where thecriminal law provides a specific remedy for a specificwrong, then, in general, Parliament should allow thecourts to function.The contempt jurisdiction exists in the space betweenwhat the court is able to do under the statute and thecriminal law, so to speak, and what Parliament is ableto do. In that space, if the court is able to do it, itshould be left to the court. If it is not able to do itthen there may be that space in between whereParliament needs to be involved, and I gave theexample of a Select Committee deliberation beinglistened into by messages or whatever it may be. Isthat not a reasonable way of approaching things?Dr Jack: Yes, I think it is and I think you havesummed it up very well.Going back to your rights of course—you havetouched on it—is the European Convention as well,which is another avenue in which human rights canbe pursued, admittedly in a jurisdiction outside of ourjurisdiction but, nevertheless, one that is part of it. Ithink there are various avenues through the courtswhere these matters can be dealt with. As I say, thefeeling of frustration in the House is that the law isnot working properly, but that is another question.

Q37 Mr Cox: I do not know if you have been ableto read the evidence that has been submitted to us, butwe have an interesting range of opinions. We haveLord Lester on the one hand saying it is wrong in

principle and we have Lord Pannick, with whom it isalways dangerous to disagree, I think, on a matter oflaw, saying, “On the contrary, it could be if thechilling effect on Members of Parliament was sosignificant.”Ultimately, I suppose, it is a matter for the judgmentof the House as to whether so chilling an effect isproven that it impedes and obstructs Members in theirparliamentary duties as opposed, possibly, to theirconstituency duties or their personal lives? Wouldyou agree?Dr Jack: Yes, I think I would. I think that, Chairman,these matters no doubt will be debated when we havea draft privileges Bill.

Q38 Mr Cox: Just to summarise that issue, and doforgive me, Mr Chairman, but I am thinking aloud inmany ways, we need to take into account in makingthat judgment not just whether the chilling effect is sosevere that it is really impeding Members in theconduct of their parliamentary duties in proceedingsbut that there are criminal sanctions available whichcould deal with the matter.Dr Jack: Absolutely, yes. That would be part of theconsideration.

Q39 Mr Cox: Consideration and overall judgment.Dr Jack: Yes, certainly.Chair: It might be opportune for us to move on toexactly that—the question of the proposed privilegesBill.

Q40 Mr Heald: Reading the passage in your paperabout a UK parliamentary privileges Act, it didn’tseem that you felt there was an overwhelming casefor it. You support it but you seem to have someconsiderable concerns about this interface that Mr Coxhas been talking about, between what the law dealswith and what Parliament deals with. In a sense, thespirit comes through that you see these parliamentaryprivileges as privileges of the people, who of coursehave the sovereignty of Parliament. Would you justlike to amplify a little bit what your concerns are?Dr Jack: Yes, thank you very much. I think this is adifficult subject. There is always going to be a balanceof considerations and sometimes the balance tipsslightly one way and sometimes it tips the other.I have in my hands a Privileges Act, which is theAustralian Privileges Act, and that was passed quite along time ago, in 1987. This Act came about inAustralia because of one of the things that is graduallypersuading me—you are quite right, Mr Heald: I havemy reservations about whether we do need aprivileges Act—and that is the increasing need for theHouse to intervene in the courts to assert its privilege.In other words, we have moved into an area where thecourts are more inclined—let me just leave it at that—to consider matters that touch upon parliamentaryprivilege.Also, we have the European dimension. The Europeandimension is more statute-based than our common lawtradition and, therefore, I think the lack of a privilegesAct is beginning to become an impediment to ourarguing that these are matters of privilege for theHouse.




I have not recently discussed this but I have had somediscussion with our Australian colleagues about theworking of the Act. It is particularly interestingbecause, of course, it is a statute within a commonlaw tradition. Admittedly, there is a constitution andso on in Australia and therefore there are differencesbut, nevertheless, the legal tradition is a commonlaw tradition.The general message seems to be that this has not ledto huge difficulties of territorial disputes, if I can putit that way. It appears that the Privileges Act inAustralia has met the need to be more definitive aboutwhat privilege is without interfering with privilege.That is the balance. It is a difficult one.

Q41 Mr Heald: Isn’t the danger that we are givingthe courts more of a role of a constitutional court thanthey have had previously, because they would be ableto interpret what the privileges Act means? Theconcern is one of gradual encroachment. Do you agreewith that—that the courts are trespassing on it?Dr Jack: I think the gradual encroachment is comingabout anyway. I think the question is what you doabout it. I think that the existence of an Act maydefine territory in such a way that it will be clearerboth to the courts and to Parliament where theirrespective jurisdictions begin and end.The other thing of course—I just remind theCommittee—is that the courts have never been shy inany case of interpreting, if I can call it, the perimetersof parliamentary privilege. They have long regardedit as their right to interpret the meaning of privilegein law. They have drawn the line of not interfering inthe internal processes of the House but I havenumerous examples, right through the 19th and 20thcentury, of judges saying that it is their business tosee that privilege is properly asserted. Lord Denmansaid this in the 19th century and many other judgeshave said it.

Q42 Mr Cox: They were coming from a ratherdifferent direction than the courts would be now.Dr Jack: They were coming from a differentdirection, yes. The Bill of Rights is a statute. The Billof Rights is a statute and, therefore, the courts see itas their business to interpret the meaning of thatstatute, if necessary.

Q43 Mr Heald: I suppose the other concern is that ifprivilege is defined in statute there is a danger of

making it less easy to adapt to modern conditions inthat it will be set in stone. Do you see that as a worry?Dr Jack: That would perhaps depend on how cleverthe drafting of the Bill was. I think, if one looks atthe Australian Act, it leaves a certain amount, in ourcommon law tradition, for cases to be individual. Forexample, I would not expect a Privileges Act to listcontempts and say, “This is the end of it.”

Q44 Mr Heald: That was going to be my finalquestion because, clearly, if the definition of privilegeis left fairly wide, as you were suggesting, then ofcourse that gives the courts more power to define itand, therefore, the gradual encroachment risk isgreater. But, of course, if it is defined too narrowly itraises the problem of ossification.What would you suggest then about contempt,because you have mentioned the difference betweenprivilege and breaches of privilege and the area ofcontempt, which is a wider area? Should this UKparliamentary privileges Act include any sort ofdefinition of contempt or not?Dr Jack: That is a very interesting question. TheAustralian Act does not, which is itself significant.So I think the decision was that that should not bethe case.Can I just throw in one other comment on that,Chairman, which actually goes back to the JointCommittee’s report again? One of the advantages theJoint Committee saw in having an Act was that itwould provide an accessible “code”, as they called it.This is perhaps a consideration for you as politicians:that there would be a code, a clear statement of whatprivilege was and making it very clear—which,perhaps, it is not to the general public—that privilegeis, although an immunity, an immunity only linked tofunction because, as I said at the very beginning, thevery word “privilege”, in modern parlance, is not aword looked upon with great favour, I suspect, bythe public.Chair: Dr Jack, it just leaves me to thank you verymuch indeed for coming to give evidence and toannounce that the Committee will be taking furtherevidence in public sessions, on a date to beannounced, from the witnesses who will be the outsideexperts in privilege. We have quoted from theirwritten evidence in this session and hopefully it willnot be too long before we announce who they will beand when it will take place, but, once again, thankyou very much.

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Tuesday 25 January 2011

Members present:

Mr Kevin Barron (Chair)

Mr Tom ClarkeMatthew Hancock

________________

Examination of Witnesses

Witnesses: Professor A W Bradley, Lord Lester of Herne Hill QC and Rt hon. Lord Nicholls ofBirkenhead gave evidence.

Q45 Chair: Gentlemen, good morning. Thank youfor coming along and helping us with this secondevidence session we are taking on our inquiry intophone hacking. For the record, could you introduceyourselves and the position that you currently hold?Could I start with Lord Lester?Lord Lester: Anthony Lester.Lord Nicholls: Donald Nicholls. I don’t currentlyhold any position.

Q46 Chair: Except as a Member of the House ofLords.Lord Nicholls: Except as a Member of the House ofLords.Professor Bradley: Professor Bradley.

Q47 Chair: We are grateful to you for coming heretoday to assist the Committee in its consideration ofa matter referred to by the House as the hacking ofMembers’ mobile phones. Before we get the sessionunder way, I wish to make a short statement about theway the Committee is approaching this inquiry.I am sure you are aware of it, but we decided lastSeptember that, in view of an application for judicialreview of the Metropolitan Police Service’s handlingof the 2006 investigation into allegations of hackingby the News of the World newspaper, and the possibleimplications of our work for any future judicial orcriminal proceedings, the Committee should confineits inquiry to considerations of whether and, if so, inwhat circumstances, hacking of MPs’ phones could bea contempt of Parliament. That remains the case. Wewill not, therefore, be making any reference in thecourse of today’s proceedings to any matter that is, ormay soon become, sub judice. I am sure, with yourvast experience, all three of you, that that will notpresent you with any great difficulty.I would now like to move on to an area of questioningto attempt to establish whether a contempt hasoccurred. I assume you have all read the oral evidenceof the Clerk of the House. He said that, for an act toconstitute a contempt, it would have to relate directlyto proceedings in Parliament. He did not think it hadbeen clearly established that an act which helps tocreate a general climate of lack of confidence amongMPs would be a contempt. Lord Nicholls, where doyou stand on that?Lord Nicholls: I am sorry, you said the oral evidence?Chair: Yes. It is oral evidence to us.Lord Nicholls: I have not seen his oral evidence.

Heather WheelerDr Alan Whitehead

Q48 Chair: I am sorry. I thought you may have seenthat. It has been in the public record. He said he didnot think it had been clearly established that an actwhich helps to create a general climate of lack ofconfidence among MPs, in terms of not being able toknow that any message left on your phone had notbeen tampered with, would be a contempt. He wasn’tsure that it was. Lord Lester or Professor Bradley,have you read the Clerk’s evidence?Professor Bradley: I have had the benefit of readingthe written and oral evidence and, for the most part, Ihave very little to add to what the Clerk of the Househas said. In my view, in certain circumstances, thehacking of Members’ phones could certainly be acontempt of Parliament, and it matters not that thishas never been decided previously.The particular question which the Chairman askedrelates to the circumstances in which the hacking ofphones would be sufficiently related to the work ofParliament for it to be treated as a contempt. There isa whole range of possibilities. To say at which point itwould move out of grey into black and become blackenough to be treated as a contempt of Parliamentcould only be discovered by investigation. I give anexample in my paper of an MP whose partner happensto be a pop star or a celebrity in some other way, andso the purpose of any hacking by, say, an inquiry agentis to get scandal about that partner and not directlyabout the MP. But in my paper I don’t deal with thequestion of whether the effect of hacking phones thatare known to be Members’ phones is liable to be anobstruction or impedance on their work as Membersof Parliament. I am in no doubt that, in somecircumstances, it can be an obstruction.

Q49 Chair: Lord Lester, do you agree with that?Lord Lester: I do agree with that, but I would like tosay a couple of things by way of background.Members of Parliament—peers—are, like everyoneelse, entitled to rely upon the civil law for effectiveremedies where their basic rights and freedoms havebeen violated. There is now a wide range of effectiveremedies in civil law through privacy especially, butnot only, and of course there are now wide criminalsanctions as well. Therefore, it has to be some veryspecial case, it seems to me, for adding to the ordinarylaw of the land and the protections it gives, to giveParliament and its Members the protection ofcontempt jurisdiction, privileged jurisdiction. One hasto be extremely careful about that because it does notenhance public confidence if what happened in the

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25 January 2011 Professor A W Bradley, Lord Lester of Herne Hill QC and Rt hon. Lord Nicholls of Birkenhead

Neil Hamilton affair, for example, which you probablyknow all about, was in any way to be replicated.Of course, there will be gross rare circumstanceswhere hacking into a Member’s phone, in a contextwhere it was obstructing the Member from performinghis or her duties, could amount to a contempt. Evenin such circumstances, Parliament would have to bevery careful what it did about it because Parliament isnot a court. It can’t satisfy the requirements of fairnessin the European Convention on Human Rightsbecause it is neither judicial nor independent in thesense that they talk about. Therefore, my evidence iscautionary throughout. It doesn’t mean there couldnever be a case; I think there could and so, I think,does Lord Nicholls. That is really the emphasis.The final thing I would like to say by way ofintroduction is that there are what I regard asextraordinary efforts to extend your contemptjurisdiction, your privilege jurisdiction, beyond anyproper limit, and I will give you one example to thinkabout. You will see in the penultimate sentence ofparagraph 34 of Dr Jack’s written evidence that hespeaks about the use of Select Committee evidence asa basis of litigation, warning that that might amountto a contempt of Parliament.I serve on the Joint Committee on Human Rights, andfrom time to time mutterings have come from this endof the House suggesting that, if our reports were everto be looked at by judges, that in itself wouldconstitute a contempt because it would be questioningproceedings in Parliament. A similar argument wasmade in a case I did called Pepper v. Hart. In myview, that is an improper extension of privilegejurisdiction and I am very keen, therefore, at both endsof the House, that we should not overreach in our ownlaw of Parliament.

Q50 Chair: We will be extending questions in andaround those areas in a few minutes. Do you haveanything to add, Lord Nicholls?Lord Nicholls: I have two things. First of all, on thelatter point that Lord Lester has mentioned, inprinciple, I don’t accept that deciding there can be acontempt of Parliament as a result of hacking ofMembers’ phones is a novel principle. I think thecorrect approach is that the general principle is wellestablished, and if it has not happened before, this ismerely an example of the application of that generalprinciple in the changed circumstances that existtoday. Of course I accept that it is right for Parliamentto be cautious in this field, but I don’t accept that thereis some novelty about it which of itself counts againstthe conclusion that in this case there can’t becontempt.The second point relates, Chairman, to the first pointyou asked me. I am sorry, can you remind me of thefirst question you asked?

Q51 Chair: The first question was that the Clerk hadsaid in his evidence to us that, for an act to constitutea contempt, it would have to relate directly toproceedings in Parliament. He did not think it hadbeen clearly established that an act which helps tocreate a general climate of lack of confidence,

through, potentially, MPs’ phones being hacked, wasa contempt.Lord Nicholls: Thank you. I am rather reluctant togive a clear and specific answer by simply looking atthe effect. What you are looking at is a factualsituation, and the most important element in that isgoing to be the purpose. If it is a purpose which isquite plainly unacceptable, that, in itself, may lead toan unfortunate lack of confidence in the use of mobilephones by Members, which could, I think, fairly be,in certain circumstances, a contempt.

Q52 Chair: Finally from me for this opening session,to what extent do you believe the courts would regarda public interest defence as providing justification forhacking?Lord Nicholls: A public interest defence?Lord Lester: There could be, as the Clerk says,exceptional circumstances where one was seeking toexpose corruption and there was sufficient basis foran investigation of that kind. One could imaginecircumstances where even the invasion of privacy thatwould be involved could be justified, and the law saysso, but they would be very exceptional indeed.Certainly, muckraking of private lives would have noconceivable public interest defence and the courtshave been very careful not to allow what newspaperssay is in the public interest to be regarded as in thepublic interest.

Q53 Chair: It is often said of politicians that theypractise and talk about morality in this place whilstpractising different forms of morality in their privatelives. Do you think that could ever be a justification?Lord Lester: It depends. If a Member of Parliamentmakes a campaign about moral virtue and sexualmorality and is shown to be a lecherous, promiscuoussomething-or-other, then one might say that exposinghypocrisy would be a matter of public interest. Buteven so, using unlawful means to obtain theinformation would have to be very, very exceptionallyjustified. The example I always think of is this, andthis is not relating to Parliament. Suppose that in anuclear power station the pipes were cracking, middlemanagement were negligent and in thosecircumstances one was trying to get at the truth, andthousands of people might be destroyed as a result ofa meltdown. That kind of extreme situation might beone in which unlawful means would be condoned bythe courts, rather like whistleblowing, but it would bevery exceptional and I don’t think that is normally aserious justification.Chair: Does anybody have anything different to addto that? Do you agree in large part? We are going tomove on to the interface between privilege and thelaw now.

Q54 Matthew Hancock: Lord Lester, I would like tofollow up on your initial statement when you weretalking about the need for equality under the law. Asfar as I understand it, in your written evidence youinvited the Committee to consider whether thereshould be what I would phrase as a double jeopardyover privilege, in that if something is being consideredin the criminal law it should also then be considered

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in a parliamentary court. I would like you to expandon that and also give your view. You invited us toconsider it and we have and we will, but what isyour view?Lord Lester: As you remember in the MPs’ expensesscandals, strenuous arguments were put forward inboth Houses to the effect that these are matters thatshould not be dealt with by the criminal courts at allbut are protected by privilege and should be dealt withby you in what you describe as a court, but whichwould not be a court in any normal sense. Thatargument, I am glad to say, failed, and failed at everylevel of appeal. Now it is clear that, if MPs or peerscommit crimes, even if they are closely connectedwith the performance of their public functions asMembers of Parliament, the courts have fulljurisdiction. As you have shown in your evidence, if aCommittee like yours is faced with a pending criminalmatter, you will sensibly postpone or adjourn whatyou do to allow that to happen. What could not, in myview, be proper is for someone who has beenconvicted by the courts to be retried for exactly thesame offence. I can perfectly well understand,however, that if someone has committed a seriouscrime established by the courts, they can be excludedfrom Parliament as a separate sanction. But what Ihave just said is not double jeopardy. Double jeopardyarises when you are being tried for the same eventsby a court of Parliament and a court of law.

Q55 Matthew Hancock: In that statement you saidthat if somebody is found guilty by a court they shouldnot then be tried again by Parliament. What if theyare acquitted by a court? Is it the finding of the courtor is it the process?Lord Lester: It is very difficult. Lord Nicholls’wonderful report acknowledged what I am about tosay, which is that you do not satisfy the requirementsof a court within the meaning of either the commonlaw or article 6 of the European Convention onHuman Rights.Matthew Hancock: Quite so.Lord Lester: You are not judges. You are notindependent in the sense that judges are. You don’thave the panoply, all the procedures, and systems ofappeal that the courts operate. Therefore, for you to“retry” someone who has been acquitted would giverise to serious problems in Strasbourg. Let’s assumethe person has been acquitted by a jury and then isfound guilty by you without the procedural safeguardsthat are needed by article 6. That person would go toStrasbourg and say, “My rights have been violated,”and would have a strongly arguable case. That is theproblem about double jeopardy.

Q56 Matthew Hancock: Lord Nicholls, do you haveanything to add on the same question?Lord Nicholls: It is very difficult to speak in theabstract about these questions. Much would dependupon the basis on which the individual had beenacquitted. If there had been a full trial, the facts hadbeen looked into and then the jury said “Not guilty”,I wouldn’t say it is a situation where the House couldnever pursue a contempt claim, but, on the face of it,

it would be very unlikely that it would be proper forthem to do so, for obvious reasons.Professor Bradley: I hesitate to make the discussioneven more abstract, but there are some implications inwhat Lord Lester has been saying that raise thequestion of whether the House has any legitimateauthority now to take contempt action against personswho are not Members of the House. What sanctionscan be imposed is a difficult question, which wasconsidered by the Nicholls Committee, and theprocedures by which you go about it; and what shouldconstitute the offences in question? While I think theconcept of contempt of the House is open-ended,historic, existing and established, its application intoday’s circumstances raises all sorts of possibilitiesand a question of certainty would come in. There maybe questions underlying the particular inquiry beingmade by the Committee of the force of that and itmay be that the only way forward is for there to belegislation, as was recommended by the JointCommittee in 1999, which should make clear thescope of contempt.Having said that, could I add one further comment onwhat Lord Lester has said? Obviously there is doublejeopardy if it is an identical offence being retried, but,as we all know from our ordinary life, somebody maycommit a crime, he or she may be convicted oracquitted but may be held by the employer to haveacted in breach of an employment contract and,therefore, can suffer a double penalty. There may beother penalties to follow. Double jeopardy has to beconsidered strictly in the context of two judicialproceedings, or quasi-judicial proceedings, dealingwith the very same thing. If it is a matter of otherconsequences, then life is full of instances of potentialdouble or more jeopardy.Lord Nicholls: Can I add something to what ProfessorBradley said, and that is the danger of looking ahead?I share the view that he has hinted at. I find it verydifficult to see how the House has any effectiveremedy here and I do wonder, going through with afull and thorough investigation, where it can lead. Youcan rap the editor of a newspaper over the knucklesand admonish him, which will not give him the lossof a wink’s sleep, but there is nothing else, as Iunderstand it, that, effectively, you can do.Chair: No.Lord Lester: I would also add that what I finddifficult, as a human being, is that here I am, a peerof the realm, and my wife is a judge. Why should myposition as an individual be any different positionfrom hers if our phones are hacked into? The answer,it seems to me, depends on whether the hacking wasclosely related to something I was doing, for example,as part of my membership of the Joint Committee onHuman Rights. If somebody wanted to obstruct thatCommittee and see what my position was and wasintercepting phone messages for that purpose, then theobject or the intent, to use Lord Nicholls’ idea oflooking at the intent, would clearly be obstructive andthe effect would clearly be obstructive. That would, Ithink, amount to a contempt. That would be sointimately related to the proceedings of my House andyours, since we are a Joint Committee, that it wouldbe a proper matter to be dealt with by Parliament and




that would be a separate matter from the way that thecourts would deal with it.

Q57 Matthew Hancock: Why would it be separate,because wouldn’t it also be a criminal offence? Arethere circumstances in which it could be not a criminaloffence and therefore only subject to a parliamentarycontempt?Lord Lester: This is the point that Professor Bradleyand Lord Nicholls were making. There arecircumstances where the fact that it is a crime or acivil wrong and can be dealt with by the courts doesn’tmean it can’t also be a contempt. I agree with that,but I am saying that you have to define thecircumstances very closely. It has to be so closelylinked to the proceedings in Parliament as to obstructthose proceedings intentionally and with that effect.

Q58 Heather Wheeler: I completely agree with whatyou have just said and I am taking that to the nextlevel now. The Computer Misuse Act might apply tomobile phones and similar devices. In your view,because of what you have just said, does it providesufficient protection against attempts to access orinterfere with privileged information that is storedelectronically?Lord Lester: I don’t know.

Q59 Heather Wheeler: Because that is the nextjump, isn’t it?Lord Lester: Yes. I don’t know the answer. That’s agood question.Professor Bradley: I don’t pretend to be a criminallawyer, but another Act, the Regulation ofInvestigatory Powers Act—RIPA—is mentioned inLord Lester’s paper, and I am glad that Mrs Wheelerhas mentioned the Computer Misuse Act. There maybe other Acts there, and it possibly would assist theCommittee’s inquiry if someone who is expert in thisfield such as a criminal lawyer could provide acomprehensive memorandum on the legislation that isnow applicable.Although I have these general concerns about thecontempt notion in practice today, I strongly believethat there is a very important dimension in the workof Members of Parliament on behalf of the public tomake the point that the privileges or the protection ofMPs from molestation is a protection of the publicfrom their representatives being molested. That comesout very strongly in Mr Hemming’s paper, which theCommittee has, and is very easily overlooked,particularly if there are other events going on whichbring the reputation of Members of Parliament in themedia into disrepute and in the public knowledge. Fora Committee to say that “The interruption,interception or molestation of communicationsbetween constituents and MPs is capable of being acontempt of Parliament and it is to the publicdetriment if that is permitted” might have a symbolicvalue in a declaration by the House, that “These arechanged circumstances, we have not had a precedentfor this, but people should beware if they think thatthere is no value at all in what Members of Parliamentare doing.”

Lord Lester: I have to say I don’t entirely put it inthat way myself. There is a danger in symbols.Symbols are easily misinterpreted. In his evidence,Mr Hemming goes so far as to say that anyinterception or monitoring of communicationsbetween MPs and others is a contempt. He says ittwice. That, in my view, is far too broad and if youwere to endorse that it would send the wrong signal.Although, of course, I agree with Professor Bradleyabout the importance of affirming the public interestin our Parliament and its protection, one has to bevery careful of overreach.

Q60 Mr Clarke: Following that reply, Mr Chairman,could I ask Lord Lester this, and perhaps LordNicholls and Professor Bradley might want to add towhat he has to say? Looking back on the writtenevidence that you provided, as I understood it, yourview was that it was wrong in principle andunnecessary in practice to extend privilege to coveracts such as hacking and interception, which arealready capable of being brought before the courtsnow. My principal question is: what are the vehiclesfor bringing these matters before the courts and,without discussing allegations that may come beforethe courts, can you give us some indication of existingcase law?Lord Lester: In the civil field, as a result, largely, ofthe Human Rights Acts being used to develop theright of privacy, although it had already beendeveloped by the courts before, there are now manyprivacy claims that have been brought for everything,including telephone hacking. Any civil equivalent ofthe criminal law involving invasions of privacy hasgiven rise to claims in the civil courts.So far as the criminal side is concerned, as you willknow very well, the police are at this moment, wehope, actively investigating the allegations againstnewspapers of hacking with a view to prosecution.The Director of Public Prosecutions is reported todayas saying that he wants the investigation to be focusedand energetic, and if there is credible evidence ofhacking, whether it is against a private individual or aMember of Parliament, then that can and should giverise to criminal prosecution.

Q61 Mr Clarke: Would Lord Nicholls or ProfessorBradley like to add to that?Lord Nicholls: If I may say so, I don’t think that is awholly satisfactory answer. As we all know, the natureof contempt is an improper interference with the rightsand duties of Members and it is interference withParliament, and it is in the public interest thatParliament should not be interfered with. The meansby which that interference takes place may, of course,be the treatment of an individual Member by anoutsider. I would think it is most undesirable that thesituation should arise where there has been such aninterference and, because the police decide to take noaction, there is nothing the House can do. Of course,the House has to be very cautious for a number ofdifferent reasons, but, in principle, it seems to mecontrary to the public interest in a very serious waythat there could be an interference with the conduct of




the business of the House and yet the House could donothing about it.as I observed a short while ago, there doesn’t seem tobe an effective remedy in fact. That is what, 10 yearsago, the Joint Committee suggested should lead to theconclusion that there should be a statute making thesethings crystal clear, dealing with this point and nodoubt providing an adequate remedy in the situationto which I have just referred.Lord Lester: I entirely agree with the last point.Obviously, there should be a statute, and the Clerk hasrecently said so, but I don’t think Lord Nicholls, whenhe reads my evidence, will disagree as much as hethinks. I was answering a question purely ofMr Clarke on what remedies were available in thecivil and criminal courts. I wasn’t suggesting that thatcould be the only way in which one should deal withthe matter, and I gave the example where, if someonehacks into my phone, for example, to impair my workas a Member of the Joint Committee on HumanRights, that would obviously be the kind of case.Indeed, we had such an example recently, you willremember, when somebody sought to interfere withthe report of the Joint Committee on Human Rights,who was chair of a public body—or so it wasalleged—and that led to consideration, I think by thisCommittee, as to whether that did constitute acontempt. That would be as much the case if it wasdone by intercepting a mobile phone as by any othermeans. I am trying to deal with the very broadsuggestion that any hacking of the phone of any MPin any circumstances whatever should of itself be acontempt. That seems to me to be overbroad.Heather Wheeler: Yes, it is stretching it.Professor Bradley: I think I was the first of the panelto mention the Hemming paper. I was using it to makethe general point about the public interest in MPsbeing able to do their work properly. I wasn’t therebyto be taken as agreeing. I share Lord Lester’sreservations about those particular points in theHemming paper, but otherwise it is a very persuasivedocument that should be taken seriously. I am notcommenting on recent events at all, but the Chaytorjudgments from the Supreme Court now make veryclear that the House will co-operate with the policeeven in the case of crimes committed in aparliamentary context, and the duty of the House is tolet the criminal investigations take their course. Weare not dealing with and I know nothing about thesituation in which, for whatever reason, the criminalinvestigation is not taking its course, in which casethe civil and criminal remedies are problematic. Iwould share Lord Nicholls’ view that it must bepossible for the House to take some action in thosecircumstances.

Q62 Chair: Professor Bradley, you have raised thepossibility that there might be circumstances in whichthe courts could intervene following a decision of theHouse in relation to contempt. Could you elaborate onthis point for us?Professor Bradley: There is a great deal of historywhich someone like the Clerk would have at hisfingertips much more than I do. We have been talkingabout the contempt of Parliament, but there is also

the contempt of court, and in history there have beensituations in which the two contempt powers havecome into open conflict.The example that comes to mind is the Hansardlitigation in the late 1830s when the House ofCommons wanted to extend privilege becauseHansard was being sued for libel. The courts veryclearly said you cannot extend privilege, you cannotcreate a new privilege, and the answer was legislation.When the libel action continued and judgment wasconceded in favour, the Sheriffs of Middlesex, whowere carrying out the duties of the court, werethemselves committed for contempt by the House, andthe House, on that occasion, refused to say why it wascommitting the Sheriffs of Middlesex for contempt.The law at that time, as these were thought to beco-ordinate courts and not wishing to interfere in eachother’s business, was that, unless the House ofCommons stated the reason for committing forcontempt, the ordinary courts just had to accept that.I raise in my paper the question of whether that wouldbe the attitude of the courts today. If it is obviouswhy the House has done this very unusual thing ofcommitting somebody for contempt in a blatant case,I cannot believe that the court would stand idly by andnot grant habeas corpus. That is an historic dispute,but potentially there is still a situation in which theinstitutional authority of the courts might come intoconflict today with the institutional authority ofParliament. I know the present attitude of the House,and Dr Jack in particular, is that we are in a time ofpeace, that there is no war here, not a cold war, thatthe two institutions are co-operating and so on. Buton a subject like contempt and what action could betaken, this ancient conflict, or shades of it at least,could reappear.again, I would say, with all due respect to thejudiciary, the authority of the courts and the rule oflaw, it is important that the constitutional authority ofthe Houses of Parliament should also be respected inthis situation.Lord Lester: I agree entirely, but could I add my ownpersonal experience, because it is always helpful? Ihave twice had experience, as an advocate, of thetension between courts and Parliamentary privilege.The first was in the case of Pepper v. Hart, whichestablished that judges could exceptionally look at theparliamentary record in order to help them ininterpreting ambiguous legislation. In that case I thinkit was the Speaker’s counsel who certified, and theAttorney-General argued, that it would be a breach ofparliamentary privilege for judges to look at anythingsaid by Ministers in parliamentary proceedings, andwe had five days of sustained argument on thatproposition. Eventually, the House of Lords, by amajority, said no, it would not be a breach ofparliamentary privilege if courts could do so. That isan example of the sort of thing I was referring tobefore.The second one was more recent—a couple of yearsago. I was in a case about age discrimination and Iwanted to show the court the report of a SelectCommittee of the House of Lords which had reportedon age discrimination. I wanted to refer to whatMinisters had told the Select Committee. The




Attorney-General again instructed counsel to say thatthat would be a breach of parliamentary privilege.Again, the claim was rejected. But these are workingexamples where courts have to decide where to drawthe line.Of course, the most unfortunate example of a slightlydifferent kind was in the Neil Hamilton affair, becausehe sued The Guardian for libel when they accusedhim of taking cash for questions. A High Court judgesaid parliamentary privilege prevented it. I think thejudge was wrong, but there was no appeal. Instead,Parliament was persuaded to pass section 13 of theDefamation Act, which allows MPs to pick andchoose as to whether to invoke parliamentaryprivilege or not as suits them in their libel cases. LordNicholls’ report says that that should now go, and Irespectfully agree.Chair: Okay. Let’s move on.

Q63 Dr Whitehead: Could I try and draw out somedetail on some distinctions between different kinds ofhacking, for example, perhaps, as we are mainlypresently discussing, interception, but also it could beimpersonation, whereby someone is seeking to gainaccess to someone’s phone details as a result ofgaining the confidence of the telephone company, byimpersonating them? Do you have a view as to whichof those two aspects of hacking might be regarded asthe more serious when considering the question of apossible contempt?Lord Lester: The two being, again?

Q64 Dr Whitehead: One is interception, that is usingelectronic means to access recorded messages, and theother one is perhaps impersonating or claiming thatone has the right to the details of a phone account inorder to obtain those same details.Lord Lester: They are both unlawful, and the secondone involves more fraudulent conduct even than thefirst. It is rather like journalists pretending to beconstituents in Vince Cable’s surgery, isn’t it, whenthey come along in order to entrap? All of that is grossmisconduct, and it is a contempt if it has a directconnection with the functioning of Parliament andobstructs.Professor Bradley: I would pass on the specificquestion, Dr Whitehead, but I have found it a helpfulanalogy, in considering whether the hacking ofMembers’ phones should be a contempt, to think of asituation in which an MP is wishing to hold aconstituency surgery. That is not a proceeding inParliament. I think it is a very important function ofan MP’s duty today. One can think of improper waysof either obstructing or interfering—bugging an MP’sconstituency office, for example, so that what he orshe says to the constituent, who may have come incomplete confidence, can be intercepted and listenedto. It might be a complaint against the local police,the local judge, the hospital authority, or whoever, andthe complainant may be somebody working withinthat body so that he or she will be liable to dismissalif a word of this gets abroad. Interference of that kindin the communication between a constituent and aMember of Parliament seems, to me, very muchcapable of being a contempt. It may be unusual but it

could happen. The fact that, ever since 1957,communication between a constituent and MP hasbeen held by Parliament not to be within article 9 ofthe Bill of Rights is neither here nor there if one isconsidering the contempt side of this.Lord Lester: The way it was put by the SupremeCourt in Chaytor was to ask whether the actions arelikely to impact adversely on the core or essentialbusiness of Parliament. What you have to decide iswhat the core or essential business of Parliament is.Lord Nicholls: Yes, I must confess that I do havereservations about the suggestion, as I understand it,that interference with the constituency work of aMember could be a contempt of Parliament. I havereservations about that.

Q65 Dr Whitehead: Do you think there are,however, particular issues relating to how Parliamentconducts its business electronically to the extent that,for example, I may be sitting in my constituency atmy computer, which has a remote link to Parliament,and someone then intercepts my e-mails, which I haveexclusively sent and received from within myconstituency, but, however, I am linked to the businessof Parliament thereby?Lord Nicholls: I wouldn’t have thought it made anydifference. Where the interference takes place isneither here nor there. The interference with the workof the Member in his parliamentary work can takeplace today just as much in the way you havedescribed when he is sitting at his desk in his officein his constituency as when he is sitting at his desk inthis building.

Q66 Dr Whitehead: The RIPA—the Regulation ofInvestigatory Powers Act—makes a distinctionbetween interception of messages in different ways. Ifyou have listened to a message which has alreadybeen listened to by the intended recipient, that isdifferent in terms of the way RIPA works fromopening a message that had not previously beenlistened to. If you are instigating the hacking of amessage which had previously remained dormant,RIPA appears to suggest that is rather more seriousthan if you listened to a message that has already beenopened and made available. Do you think thatdistinction has any relevance to the matter that isbefore us to the extent that, if someone has listenedto their phone messages, that might be different fromsomeone who has intercepted and diverted phonemessages from the person who otherwise would havelistened to them?Lord Nicholls: I think not. They are both capable ofbeing contempts.

Q67 Dr Whitehead: Are they equal contempts?Lord Nicholls: In principle, I see no reason why theyshould be different.Lord Lester: One thing I do not understand myself,but the Committee will, is why the Commons decidedin 1997 to repeal the Standing Orders relating toletters. I don’t know whether the view taken in 1997was that none of this mattered.Lord Nicholls: Forgive me for answering for theCommittee, as it were, but my understanding was that




they were repealed because they were just thought tobe obsolete; it related to the situation.

Q68 Matthew Hancock: I understand it was atidying-up exercise.Lord Nicholls: Yes, but for that reason. It was justrepealing something which no longer had a place anda role to play in today’s conditions.Matthew Hancock: It was the 1957 judgment thatcommunication with constituents is not a contemptthat superseded the Standing Orders on letters, as faras my reading of the history goes.

Q69 Chair: We have a few minutes left. We wouldlike to ask about a potential Privileges Act. The Clerkof the House clearly has reservations about enshriningprivilege in an Act and thus making the courtsresponsible for interpreting it. Is he right to be worriedabout that?Lord Nicholls: It’s right that the effect of anenactment would be that the terms and effect of thatAct would be decided by the courts. I don’t think thatshould be a matter for concern, not least because,today, the position is that, as was set out in the report10 years ago, Parliament has accepted that the courtsthemselves can decide on the boundaries of contempt.Lord Lester: Yes. It would be desirable that there bea statute in order to promote legal certainty. The courtshave shown themselves in my lifetime to be carefulnot to usurp the functions of Parliament in the waythat they decide cases. They are very sensitive to that.It enhances public confidence in Parliament to knowthat Parliament has itself laid down a statutory codeand that questions of interpretation and applicationcan be decided by the independent judiciary. I am notaware that the Australian Privileges Act has given riseto much difficulty because courts may have tointerpret and apply its provisions. The argument aboutIPSA, which I remember very well, when it was saidthat you should not allow the courts to have anycriminal jurisdiction in relation to fiddling expenses,has subsided and everyone, I would have thought,now recognises that it is highly desirable for thosematters to be dealt with by the courts. So I think thearguments are overwhelmingly in favour of having aPrivileges Act, and I believe that the presentGovernment are meant to be committed to producinga draft Bill, are they not?

Q70 Chair: They are and, as I said, the Clerk isworried. I think the courts have got it absolutely rightin recent times, in view of circumstances here. Isuspect the Clerk may be a bit worried about tensionsin the future, about matters that are not as clear asthose we have had in the last few months. ProfessorBradley?Professor Bradley: If the Committee wish to go backto the evidence I gave to the Nicholls Committee over10 years ago, they might find that I was arguing thenagainst the idea of legislation to codify privilege. Ihave since then changed my view, and obviously thelegislation would have to be carefully studied and gothrough a lot of oversight and supervision. My reasontoday is that there is uncertainty of a serious kind

about these constitutional relationships and a well-drafted Act could make the boundaries clearer thatshould exist between them. This would lend clarityand increase legal certainty, as Lord Lester has said,and probably it is part of an inexorable march ofprogress towards codifying different parts of theconstitution. I am not thereby advocating a writtenconstitution, but we have seen it in so many areas ofpublic life these days in legislation, getting the rulesdown and clear so that we all can read them andunderstand them. Journalists and newscasters cannotbe expected to read text books on constitutional lawor history to find out what the relationships betweenthese different institutions are, and for Parliament toenact a good Privileges Act would be a step forward.Indeed, I am glad to say that the Nicholls Committeedid not accept my evidence as it was 10 years ago.Lord Nicholls: I am very pleased to hear that that hadat least one effect.Chair: He is a convert, my Lord.

Q71 Matthew Hancock: Lord Nicholls, you said youthink that the courts already define the limits ofcontempt. Therefore, what is the advantage of movingthat into a codified legislative set-up?Lord Nicholls: What would be the advantage ofhaving a statutory set-up?Matthew Hancock: YesLord Nicholls: The advantage is, amongst otherthings, that it clarifies the law.

Q72 Matthew Hancock: When you said that thecourts have already defined it and—Lord Nicholls: What I meant, if I didn’t say it, isthat when issues arise the courts do define where theboundaries lie, and to that extent Parliament isalready, if I may put it this way, in the hands of thecourt.

Q73 Matthew Hancock: So they do it on acase-by-case basis?Lord Nicholls: Yes.

Q74 Matthew Hancock: The next question is: howwould you define in statute the limits of contempt,given that technology changes and the different meansof communication can change? Therefore, the obvioussolution to that would be to have a broad definitionsimilar to the Australian model. Would that not thenlead to the courts rather than Parliament making adecision over what is and is not a contempt in allfuture cases?Lord Nicholls: As I’ve said, that is already theposition. I see no difficulty in setting out in a statute aclear, principled statement of what conduct constitutescontempt. Then the question is only going to bewhether the facts in a particular case satisfy that clearstatement of principle. Therein lies one of the greatadvantages of having a statute. Another advantage, ofcourse, is that more and more human rights areencroaching in all fields and it is very undesirable,with somebody who has been engaging in undesirableconduct affecting the House, that a question should becapable of being raised, “This can’t possibly be a validsubject of interference by Parliament because the




position is so unclear. Nobody in the public knowswhat is contempt and what is not and they have noidea what the remedies are.” It seems to me that thatsort of argument, in certain circumstances, could beirresistible in Strasbourg.Lord Lester: What would be really hard to solve isthe problem of Strasbourg in relation to such a lawbecause, if the law dealt with sanctions and ifParliament is not a court, then the law might have torecognise that sanctions would have to be dealt within serious cases by courts. I don’t know how thatwould be acceptable or not to Governments andParliaments, but that certainly would be a problemwhich the Australians don’t have because theAustralians, although they have a written constitution,don’t have a supranational court supervising in theway that we do.Lord Nicholls: I don’t think that ought to be aproblem because the report, as I remember it, said inrelation to non-Members that questions of contemptwould have to be dealt with by the courts becauseonly the courts have the machinery for conducting aninquiry of the type that would be recognised now as afair inquiry by an independent body.Lord Lester: Could I go back to Mr Hancock’soriginal question? It is for Parliament, as the supremelaw-maker, to make a public law rather than rely uponthe unwritten law of contempt, so that the law of theland is clearer, and it should state principles ratherthan detailed rules, leaving a wide discretion to thejudges to apply the principles on a case-by-case basiswhere necessary, with the primary decider of factsbeing the parliamentary mechanism, so that casesrarely go to the courts, because Parliament has its owninternal machinery, such as this Committee, to be ableto act within the boundaries of the law. It is only whenthe Committee got the law wrong that there would berecourse to the courts, it seems to me. That partnershipneeds to be spelled out so that it’s up to Parliament inthe first place to make the decisions and the courtsonly in the last resort.

Q75 Matthew Hancock: On this question ofsanctions, it seems to me that there are sanctions thatParliament has that courts don’t use. For instance,removal of a parliamentary pass is one that we haverecently been discussing and the insistence onapologies to the House. Lord Nicholls, you may say,newspaper editors wouldn’t care two hoots about that,but they do have a significant impact in the case ofsome offences against privilege, especially on thestandards side as well. I wonder whether you couldcomment on that and on the other sanctions thatParliament uses that aren’t used by courts.Lord Nicholls: It seems to me that the sanctionsavailable to Parliament against non-Members aresimply not sufficient.Lord Lester: And the sanctions against Members haveto be handled very carefully, as we discovered in theHouse of Lords in dealing with those peers who arealleged to have acted improperly. We had to set up amechanism, presided over by, I think, Lord Irvine ofLairg, to ensure that it acted as much like a court aspossible, a disciplinary tribunal that effectively actedas though it were a proper judicial body in order to

assess further requirements, among other things, offairness and the Convention. So, even when you aredealing with Members, you have to proceed withcaution, and I agree with Lord Nicholls that fornon-Members the sanctions are written in water.Professor Bradley: Chairman, it is difficult in theremaining few minutes to consider what this newcodification of privilege should be. I, for the moment,think it would still be desirable to have a distinctionbetween parliamentary privilege—the limits of thatmust be clear—and the contempt power. If one triedjust to have a closed list of precise forms of conductthat today constitute contempt, in 10 years’ time wewould have a similar discussion. It must be in termsof obstructing the proceedings of Parliament orwhatever. I am not drafting now.The second point is that good legislation should leavescope for Parliament or each House to make adecision. I am not certain that this would always becontrary to the Strasbourg court’s approach, and I do,in my paper, set out at some length a rather unusualTurkish case in which, rather to my surprise, theStrasbourg court went out of their way to accept theautonomy of Parliament and to accept that this is apolitical matter which the House must decide and nota court. Legislation of that sort could be created.Certainly, it would make a large difference and itwould probably increase the power of the court tointerpret the law in particular cases, but this is a trendwhich is going on in any event today and there wouldbe a value in bringing privilege within it.

Q76 Mr Clarke: Still reflecting on the possibility ofa Privileges Act, should Parliament be more alert tothe specific challenges to its ancient privileges thatmay be posed by its increasing dependence on rapidlyevolving technology? For example, should the draftPrivileges Bill include special provision to protectParliament and MPs from hacking and from cyberattack?Lord Lester: Yes.Lord Nicholls: The legislation should be drafted in away which covers that and, if drafted as a matter ofprinciple, it would.Lord Lester: There is nothing strange about that. TheGovernment are now considering a draft DefamationBill. One of the things they will have to consider iswhat constitutes publication and problems of theinternet. The definitions will need to be open-endedso that they can embrace future technology and not befrozen at any particular time. The same applies to aPrivileges Bill.

Q77 Dr Whitehead: I want to ask a question aboutthe definition within a proposed Bill of Contempt andhow closely one might be able to define it. We havesubstantially covered that, but I guess the residuum ofthe question would be: do you think it would be easilypossible to produce a statutory definition of contemptwhich would stand up fairly well within a piece oflegislation?Lord Nicholls: Yes.




Q78 Dr Whitehead: And it would be flexible enoughfor the sort of developing purposes that we have beendiscussing this morning?Lord Nicholls: Yes. The statute can include examplesso as to point the directions. Yes, I see no difficulty indrafting that.Chair: That comes to the end if nobody has anythingfurther to add. Could I first of all thank all three of

you very much indeed for coming along this morningand also Professor Bradley for suggesting we shouldlook at what current Acts of Parliament say about thisas well? Given Heather’s question, we will do that,but we would expect that this is now the last evidencesession that we will be taking and we will obviouslybe making a report to the House in due course.Thank you.

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Written evidence

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 aContempt 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 Rivlinv Bilainkin and the report of the Committee of Privileges of the Victoria State Parliament in respect of theLeighton Case.1

2. In this submission I will look at the issue in two ways. The first approach will be to look at the practicalprinciples of bugging communications and the second approach will be to consider the law of parliament andwhat 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 doits job. There are many ways in which parliament could be disrupted which would not ordinarily be coveredby the criminal law. However, Parliament holds a key role in being the mechanism by which people withoutany power have a voice and influence on what happens in the country. Parliament is the key institution fordemocracy to function. That which prevents Parliament from functioning undermines democracy and strikes atthe weakest and most vulnerable in society.

4. Technology has moved on since the creation of Parliament in 1215 hence there will be historically fewprecedents 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 withothers both within parliament and outside parliament where those conversations are linked withparliamentary proceedings.

(ii) It is not possible when intercepting the communications (letters, emails, phone calls, oral conversationsgenerally) of members of parliament to have a system which distinguishes between those conversationswhich are linked to proceedings in parliament and those conversations which are not linked toproceedings in parliament.

(iii) Hence any interception or monitoring of communications between MPs and others is indeed aContempt of Parliament.

6. To consider how communication monitoring is a Contempt of Parliament it is important to consider howit 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. Theycan provide information that is used in a speech, ask about information that may be used in a question ordiscuss things with an MP that are used in a division. The function of MPs is to obtain information frompeople 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 clearlyundermining parliament itself.

9. There are times when people provide information to MPs about matters that they would not wish anyoneto 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 solicitorsacting on behalf of parents to undermine their clients’ cases. In doing so he was admitting that he hadcommitted a criminal offence. He explained how this was custom and practice. This was importantinformation to me and informed inter alia EDM 11 in session 2008–09 and EDM 126 in session2007–08.

(b) On 8 September 2010 I was contacted by someone who worked for a psychologist who providesexpert opinion to the family courts. She explained how the psychologist set up parents to automaticallyfail their assessments. She may be willing to identify herself at a later stage, but is currently nervousabout 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 aboutemployment matters in the city council. They ask to be kept anonymous. I have, however, written tothe 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 inparliamentary 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 worriedabout being overheard in respect of the conversation that occurred. This has not been used inparliamentary proceedings.

1 Not printed

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10. Points a), b) and d) are matters where the issues are clearly linked to parliamentary proceedings. Theyare also matters where, had the individuals concerned believed that there was a chance that the conversationwould 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 aswell) 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 worldoutside parliament. It is not possible to have a monitor that automatically ignores all conversations that are notlinked to parliamentary proceedings. And hence any monitoring of private conversations between MPs andothers is a contempt of parliament. Obviously this does not apply to public communications, but it does applyto 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 willinglyentered into by the others (and the MP) and that are linked to parliamentary proceedings are covered by ArticleIX and any attempts by others to intervene in the conversations by restricting them or monitoring them in anyway 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 isRivlin v Bilainkin (1952).2 It found that a communication with an MP that is not linked to a proceeding inparliament 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 andhence precedents from those are relevant to this issue. One key precedent is the case of Michael Leighton whowas the member for Preston in the State Parliament of Victoria, Australia. A firm of lawyers attempted to stopa constituent of his from telling him about problems with a Caravan Park. In this case the legal firm was foundto be in contempt even though their threat was an indirect threat against his constituent rather than a directthreat against the Member himself. That is because the communication was clearly linked to a proceeding inparliament and hence acted to prevent the Member from performing his function as part of the collectivefunctioning 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 isrecognised outside the common law jurisdictions. For example Article 47 of the German Constitution givesmembers of the German Bundestag the right to refuse to give evidence concerning persons who have confidedinformation in them in their capacity as Members of the Bundestag. Similarly documents cannot be seized andno evidence need be provided about any information held by members of the Bundestag. Many German regionsalso have such constitutional provisions.

18. I do not think there is any uncertainty about this. MPs need to be able to have private conversationswith their constituents and others about proceedings in parliament otherwise they are unable to represent theirconstituents properly and parliament is undermined. Constituents need to have confidence in the privacy ofcommunicating with their MP. Any monitoring of MPs conversations, therefore, undermines parliamentcollectively.

I would be happy to attend the committee to give evidence if requested by the committee.

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 acomplaint from Chris Bryant, Member for Rhondda, relating to the hacking of mobile phones of honourableand Right honourable Members.3

2. The House approved Mr Bryant’s Motion on 9 September 2010, and ordered that the hacking ofhonourable and Right honourable Members’ mobile phones be referred to the Committee on Standards andPrivileges.4 In the debate Mr Bryant said his complaint was that interception of mobile phone messages ofMembers, the tapping of their phones, the bugging of their conversations and interception of their e-mails orattempts to take such actions, amounted to contempts.5

2 Not printed3 HC Deb 8 September 2010 vol 515 col 3234 HC Deb 9 September 2010 vol 515 cols 478–935 Ibid c 478

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3. The Committee has asked me for a memorandum on whether, and if so in what circumstances, the hackingof 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 theperformance of its functions, or which obstructs or impedes any Member of the House in the discharge of hisor her duty, or which has a tendency, directly or indirectly, to produce such results, may be treated as acontempt 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 toamount to a contempt, but the broad principle of not impeding or obstructing Members or Officers of the Housein the discharge of their duties lies behind the House’s view of what is likely to be regarded as misconduct. Suchmisconduct ranges from disorderly behaviour by members of the public (such as creating disturbances in thegalleries or at Committee meetings) to frustrating the work of Committees by a refusal to co-operate withthem. 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 beenregarded as contempts. Constructive contempts include reflections on individual Members, publication of falseor 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 (includingdebates) to threatening Members with bad publicity on account of their action or other personal consequencesif 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 theprotection of privilege. By and large, Members’ communications with constituents are not part of proceedingsin 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 noprecedent of the offence. This point may be significant in the context of modern technology where it isconsidered 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 rightto 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 ofParliament. It may be useful at this point to be reminded of the Wilson doctrine which applies to authorisedtelephone tapping.

11. The “Wilson doctrine” was set out in answer to questions in the House of Commons on 17 November1966. The then Prime Minister, Rt Hon Harold Wilson, said that he had given instructions that there was to beno tapping of the telephones of Members of Parliament and that if there were a development which required achange of policy he would at such moment as was compatible with the security of the country make a statementin the House about it.7 The Wilson doctrine has been maintained under successive administrations. In 2006Prime Minister Blair re-affirmed the doctrine despite changes in the legal procedures governing interceptionsand 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 addressedto 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 statutoryprovision for members of Parliament had not been thought necessary. As far back as 1689, however, onecan find the House insisting that breaking open letters directed to or sent from Members is a breachof privilege.9

13. The House of Commons Journal records two 18th century complaints about letters going astray. On 28March 1727, a complaint was made to the House that several Post letters directed to Members of the Househad been intercepted and taken out of the Boxes appointed for them at the Door of the House. In order toprevent any re-occurrence of this misconduct the House set out the duties of postal deliverers in Orders. Failureto comply with them would amount to a contempt.10

6 See Erskine May (23rd edition) p 1287 HC Deb 17 November 1966 vol 736 cols 634–418 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 1549 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 26510 The texts of the Resolutions are set out in Annex 2.



14. In the following year, on 22 May 1728, another complaint was made to the House that several Postletters directed to Members of the House had been intercepted, or lost, or taken out of the boxes appointed forthem at the door of the House. The Journal entry of the previous year (as above) was read and the House thenpassed very similar Orders to those from 1727 which thereafter became, first, Sessional and, later, StandingOrders 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 prisonauthorities with correspondence, including drafts of Public Petitions, between a Member and a prisoner inLancaster gaol. In the debate, Mr Secretary Peel moved the previous Question which was negatived (ie, nodecision was taken by the House). What had been at issue in this case was whether parliamentary privilegecould be over-ridden by prison authorities exercising their statutory powers. Mr Peel asserted that the Houseof Commons had never considered that it was exempt from the operation of the law and clearly recognisedthat, in cases where it might be necessary for a Secretary of State to order the opening of a letter, the privilegeof the House of Commons was not reserved. The House would not claim any privilege which would interferewith the criminal justice of the country.11

17. The Select Committee on Standing Orders Revision of 1852 recommended in its Report of 21 June 1852that a number of Resolutions and Sessional Orders, including the Sessional Order relating to Letters passed on18 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 theSelect Committee on Procedure’s Report on Standing Orders Revision which recommended the repeal of theStanding Orders then numbered 144 to 146 as obsolete.13 The House agreed on 20 March 1997 that thesethree remaining Standing Orders relating to Letters be repealed with effect from the beginning of the1997–98 Session.

19. The history of the Standing Orders thus demonstrates that for three and half centuries the House madeprovision “to prevent the intercepting or losing of letters directed to Members of this House”. The Committeemay wish to take the view that the House should act, in the same spirit, to protect the security of messagessent 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. TheCommittee of Privileges stated (in the Aitken/Guardian cod fax case) that “it is a contempt of the House topurport to act in the name of a right honourable or honourable Member of the House without thatMember’s authority”.14 In view of the apology submitted in that case to the Committee by The Guardian’seditor, no further action was taken.

21. In another privileges case involving a newspaper (cash for questions), the Committee of Privilegesobserved that “there can be circumstances in which the conduct of a particular newspaper or broadcastingorganisation might be such as to undermine or obstruct Parliament in the performance of its functions, oractions by the media may place unwarrantable pressures upon Members in carrying out their duties to theHouse and their constituencies”.15 In the same Report, the Committee concluded that “the taking of clandestinerecordings 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 nospecific provision in statute law aimed at protecting against interception of communications to or from Membersof Parliament. Under Article 8 of the European Convention of Human Rights, a person has a right to respectfor their private and family life, home and correspondence (emphasis added). The ECHR was adopted in 1950by the Council of Europe, of which the UK was a founding member. Convention rights have been directlyenforceable in UK courts since commencement of the Human Rights Act 1998.11 HC Deb 25 February 1822 vol 6 cols 644–6312 The texts of the Resolutions are set out in Annex 2.13 First Report of Session 1996–97 from the Select Committee on Procedure, HC 95,14 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, HC161, para 6

15 First Report of Session 1994–95 from the Committee of Privileges, Complaint concerning an article in The Sunday Times of10 July 1994 relating to the conduct of Members, HC351–I, para 9

16 HC 315–I, para 59



Commonwealth Precedents

23. A brief summary of some recent Commonwealth precedents is given at Annex 3. While no example ofspecific legal provision to give additional or entrenched protection to communications of Members ofParliament over and above the law applicable to citizens generally has been found (and doubt has beenexpressed about the desirability of such a provision—in India, for example), the principle of Members beingable to operate freely without interference has been asserted and electronic surveillance has been considered agrave 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 unauthorisedinterception of Members’ mobile telephone communications.

25. If that fact is established, it is then for the Committee to consider whether such unauthorised interceptionamounts 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 interceptionunknown to a Member impede his or her activity?)

(c) Does “impeding” result because Members’ confidence in the confidentiality of communications witheach other is undermined by the knowledge or suspicion of interception?

(d) Does “impeding” result because Members’ confidence in pursuing parliamentary activities (such astabling questions) with staff of the House and advisers is undermined by the knowledge or suspicionof 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 theknowledge 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 Housewhen 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 fromany 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 powerto 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 theBar of the House by the Serjeant at Arms and there reprimanded by the Speaker in the name and by theauthority of the House. The last time anyone was summoned to Bar of the House was on 24 January 1957when the Editor of the Sunday Express, apologised for some remarks he had printed about Members and petrolrationing in the aftermath of Suez. In 1968 a Member of the House was reprimanded standing in his place inthe 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 aspossible and when it was essential to do so in order to provide reasonable protection for the House, its Membersor 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 theCommittee to exercise its judgement in recommending to the House what action, if any, should be taken in theparticular case referred.

A UK Parliamentary Privileges Act?

33. In the course of its deliberations, the Committee may wish to consider the question of legislation onparliamentary privilege which the Government has indicated will be initiated in the form of a draft bill brought17 See Erskine May (23rd edition) p 132 and p 72518 ibid p 16119 HC Deb 24 July 1968 vol 769 cols 587–66620 See Erskine May (23rd edition) p 167



to the House. The question of the desirability of incorporating into statute law matters which for centuriesParliament 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 notdoing so, what may be seen as “gradual encroachment” by the courts into what is widely seen as an ill-definedarea may continue. On the other hand, it should be recognised that it is already the case that privilege ispartially based on statute (in the Bill of Rights 1689) and that the courts have long taken the view that theyhave a locus in defining the boundaries of privilege. Considering the matter in 1999, the Joint Committee onParliamentary 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 importantdrawing together of privilege issues including a codification of contempt) would be that it would make it easierfor both Members of Parliament and the Electorate to understand the meaning and importance of parliamentaryprivilege by setting out an “accessible code”.22 A number of further arguments in support of a statute havebeen advanced including the need to redefine boundaries between Parliament and the courts in the light ofincreased interventions by the House in proceedings to prevent, for example, the use of select committeeevidence as the basis of litigation. A similar increase in cases of this sort in Australia led to the passing oftheir Parliamentary Privileges Act 1987.

35. With the imminent prospect of legislation which will affect permanently the operation of Parliament, itis more than ever necessary to make clear what is the nature of parliamentary privilege. Parliamentary privilegeis not about special treatment or advantages for MPs; rather, it is vitally necessary to enable Parliament toconduct its legitimate business without interference. This is exemplified by, but not limited to, the privilege offreedom of speech in parliamentary proceedings so that (for example) words spoken in the House and itsCommittees, by witnesses as well as by Members, may not be used in evidence against them. Privilege is byno means synonymous with privacy: the words spoken in the Chamber and recorded in Hansard’s OfficialReport are privileged but such proceedings are entirely open to the public to attend, they are broadcast on radioand television, they are available as audio-visual recordings and they are published in written form in print andon the Internet. There is also the area of the Houses’ internal jurisdiction or cognisance which enables them toregulate their own proceedings without outside interference.

36. It is important to note that the protection of parliamentary freedom is recognised throughout jurisdictionswhere parliaments operate with some independence from Governments. The Bill of Rights 1689 and thepractices of our Parliament in matters of privilege are reflected throughout Commonwealth parliaments andlegislatures. In the landmark case of A v the UK (in which the matter of a Member’s right to free speech wasthe subject of an action in the European Court of Human Rights), the UK was supported by a large number ofMember 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 aPrivileges Act. However it should be recognised that such an Act is a significant change from our traditionand 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 ofthis character which have been proceeded against include:

— impugning the conduct of Members and threatening them with further exposure if they took partin debates;

— threatening to communicate with Member’s constituents to the effect that, if they did not reply toa 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 futureadministration;

— summoning a Member to a disciplinary meeting of his trade union in consequence of a vote givenin the House

— threatening to end investment by a public corporation in a Member’s constituency if the Memberpersisted in making speeches along the lines of those in a preceding debate.

Erskine May (23rd edition) p 14621 Report of Session 1998–99 from the Joint Committee on Parliamentary Privilege, HL 43 HC 21422 Ibid, paras 378–8523 See Erskine May (23rd edition) p 199



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, thePerson appointed to bring them from the General Post-office do constantly attend Two Hours, at the least, afterthe Rising of the House, at the Place appointed for the Delivery of the said Letters; and take care, during hisStay 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 theServants belonging to the House; who shall take care to deliver the said Letters to the several Members towhom they are directed, their known Servants, or to such Persons who shall produce a Note under the Handsof 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 beforeconversion into Standing Orders)

LETTERS

THAT, to prevent the intercepting or losing of Letters directed to Members of this House, the personappointed to bring Letters from the General Post-office to this House, or some other person to be appointed bythe 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 forthe Delivery of the said Letters, and take care during his stay there, to deliver the same to the several Membersto whom they shall be directed, or to their known Servant or Servants, or other persons bringing Notes underthe 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 thatno 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 thisHouse shall come to Mr. Speaker, he do open the same; and acquaint the House, at their next sitting, with thecontents 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 ofthe House or other persons appointed by the Post Office shall attend daily (Sundays excepted) for the deliveryand re-direction of all letters arriving in course of post and shall take care during their stay there, to deliverthe same to the several Members to whom they shall be directed or to their known servant or servants, or otherpersons 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 tothe House.

Annex 3

SOME COMMONWEALTH PRECEDENTS

In the Australian Capital Territory (2002) the perpetrator responsible for diverting a Member’s e-mail wasnot found.

In British Columbia (1980) the Legislative Assembly adopted a Report from its Special Committee ofPrivileges which had concluded that an authorized interception (wiretap) of a Member’s communications bythe Royal Canadian Mounted Police amounted to a breach of privilege and a contempt of the House. Accordingto the Special Committee on Privileges, “parliamentary democracies flourish only when member and constituentcan communicate freely, openly and candidly without having the spectre of interception . . . interfering withsuch communications”.

In British Columbia (1990), the Speaker stated that it was imperative “that it be universally recognized andremembered that electronic surveillance, even although it may not be in breach of other laws, is a gravecontempt of this House”.

In India (1960), the Speaker declined to give precedence to a Member’s complaint of phone-tapping: “exceptin the discharge of their duties, for which they have some privileges here, Members ought not to claim anyspecial privileges outside which an ordinary citizen does not have”.



In Victoria (1988), the Committee found that no breach of privilege had occurred or contempt committedin relation to a Member’s opening and dissemination of a letter from the Leader of the Opposition to athird person.

In Western Australia (1993) the Legislative Assembly did not approve a motion to establish a SelectCommittee of Privilege to inquire into whether the presence of a listening device in the house of a Memberconstituted a threat to the free exercise of the parliamentary duties of that Member or any other Member ofthe House. In a previous (1988) case, a Select Committee of Privilege which was established to enquire into aMember’s allegation that Government Members had been involved in a conspiracy to have the facilities, officesor homes of certain people in Perth bugged resulted in censure of the Member himself for a serious breachof privilege.

Written evidence submitted by the Rt hon Lord Nicholls of Birkenhead, 24 October 2010

HACKING MEMBERS’ MOBILE PHONES AND CONTEMPT OF PARLIAMENT

1. I agree with the memorandum submitted by the Clerk of the House of Commons dated 7 October 2010.I have little to add.

2. Parliamentary privilege consists of the rights and immunities possessed by the two Houses of Parliamentand their members and officers for the purpose of enabling them to carry out their parliamentary dutieseffectively. Shortly stated, contempt of Parliament comprises conduct which improperly interferes withperformance of their parliamentary duties by either House or their members or officers. In other words,improper interference with a right protected by parliamentary privilege is contempt of Parliament.

3. The question on which I have been asked to express an opinion is whether and in what circumstanceshacking of MPs’ mobile phones could be contempt of Parliament. The short answer is that, as a matter ofprinciple, hacking of members’ mobile phones is capable of comprising contempt. Whether hacking doescomprise contempt depends upon whether the impugned conduct satisfies the description of contempt set outabove. This calls for consideration of the facts in each case.

More definitive guidance cannot be given until the Committee has heard evidence and decided, for instance,in what respects and to what extent hacking of which complaint is made has interfered with the Member’sdischarge of his parliamentary duties.

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 tothe Committee on Standards and Privileges (“the Committee”) the matter of “hacking” of the mobile phonesof Members. This memorandum is prepared at the Committee’s invitation to submit evidence on whether andif so in what circumstances hacking of MPs’ telephones could be a contempt of Parliament and thereforesubject to the penal jurisdiction of each House. For that purpose I have been provided with a copy of theevidence 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 complaintis that the interception of mobile phone messages of Members, the tapping of their phones, the bugging oftheir conversations and interception of their e-mails or attempts to take such actions, amount to a punishablecontempt of Parliament. In other words, Mr Bryant MP’s complaint is not confined to hacking into mobilephones, and it would be difficult to address the issues by treating mobile phones as a special category differentfrom other devices.

3. Like Dr Jack, for the purpose of my evidence, I will treat the question as involving the interception ofelectronic and other communications to or from Members of Parliament, including the collection and storageof 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 informationconcerning the private lives of MPs and their parliamentary activities, or any information; and it is unclearwhether 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 corruptpractices, or for the Home Office project to track the email, internet and mobile phone use of everyone in theUK. 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 anyother citizen who is the victim of “hacking”. A similar issue arose when attempts were made during the24 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 forParliamentary privilege to prevent their having recourse to Hansard and the reports of Parliamentary committees.



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, atleast 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 nomeans synonymous with privacy”.

6. Another central question raised by Mr Bryant MP’s proposal is whether a member of the public shouldbe made subject to the double jeopardy of liability under the general criminal law and civil law and also underoffences against MPs and Parliament, to be fashioned by Parliament and to be tried and punished by aparliamentary committee. That question involves issues of compatibility with the requirements of fairnessprescribed by Articles 6 and 7 of the European Convention on Human Rights (“the Convention”) and by thecommon law.

Summary of Opinion

7. In my opinion:

(i) Current criminal and civil law makes the unauthorised interception and the misuse of electronic andother communication of information and opinions unlawful, including “hacking” into mobiletelephones 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 aMember 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 ofthe Report of the Joint Committee on Parliamentary Privilege (“the Joint Committee”),26 “theprivileged areas must be so closely and directly connected with proceedings in Parliament thatintervention by the courts would be inconsistent with Parliament’s sovereignty as a legislative anddeliberative assembly”.

(v) In the context of criminal charges, parliamentary privilege should be narrowly construed so as notto duplicate criminal law and trespass upon the role of the Judiciary in interpreting and applyingordinary law.

(vi) It would be both wrong in principle and unnecessary in practice to extend parliamentary privilegeas proposed.

(vii) It would be difficult to define an extension of parliamentary privilege in a way which avoided thetwin vices of vagueness (in breach of the principle of legal certainty) and over-breadth (in breach ofthe principle of proportionality).

(viii) Such an extension would risk creating conflicts and misunderstandings between Parliament and thecourts, in breach of the constitutional principle of the separation of powers between the judicial andpolitical branches of government.

(ix) It would also be inconsistent with the principle of equality before the law and the equal protection ofthe 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. Thisclaim involves the exclusion of review by any court of the application of the procedure and practice of eitherHouse to the business before it. The courts recognise that it would be impracticable and undesirable to conductan inquiry concerning the effect or effectiveness of procedures in the High Court of Parliament, or to conductan inquiry concerning whether in any particular case those procedures were effectively followed: Halsbury’sLaws, paragraph 1081.

10. The House of Commons and the House of Lords claim for their Members, both individually andcollectively, certain rights and privileges which are necessary to each House and without which they could notdischarge 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 thiswas communicated to the Commons, that House agreed. Each House is the guardian of its own privilegesand 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 Parliamentin performance of its legislative functions and protection of its established privileges. On the other hand, the25 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.26 Session 1998–99, HL Paper 43–I, HC 214–I, at para 247.



courts take the view that it is for them to determine whether a parliamentary claim to privilege in a particularcase falls within that area where what is claimed is necessary to the discharge of its parliamentary functionsor internal to one or other of the Houses, in which case parliamentary jurisdiction is exclusive, or whether itfalls outside that area, especially if the rights of third parties are involved, where the courts would expect toform 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 thesuperior 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 whichobstructs or impedes any Member or officer of the House in the discharge of his duty, or which has a tendencyto produce such a result, may be treated as a contempt even if there is no precedent for the offence. In decidingwhether or not to proceed against a person in regard to whom a charge of contempt has been made, the Houseof Commons has particular regard to the resolution of February 1978 that such action should be taken onlywhen the House is satisfied that to do so is essential in the interests of reasonable protection against obstructioncausing 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 doesnot 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 hisor her parliamentary duties has in some instances been regarded as enjoying qualified privilege at commonlaw: 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 andcivil 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 Kingdomany communication in the course of its transmission by means of a public postal service or a public or privatetelecommunication system.27 Section 55 of the Data Protection Act 1998 makes it an offence unlawfully toobtain or misuse personal data. Section 84 of the Postal Services Act 2000 makes it an offence withoutreasonable 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 hasthe right to respect for private life, home and correspondence. The misuse or unauthorised disclosure of privateinformation is a cause of action which the English courts have developed out of the common law action forbreach of confidence in order to give full effect to Articles 8 and 10 of the Convention: see eg, Campbell vMGN 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 Englishcourt 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 todeal with instances of wrongful interference with electronic and other communication of information andopinions 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 privilegeto 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 theSupreme Court, the Court of Appeal (Criminal Division), consisting of the Lord Chief Justice, the Master ofthe 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 identicallyremain fundamental to the rule of law itself…. We are all equally subject to the law. It must be appliedequally to every citizen, including Members of Parliament. Any asserted immunities or exemptions againstcriminal 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 byParliament 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 unlessthere is good reason why it should not apply. To do otherwise would risk bringing both the Courts andParliament into disrepute and diminish confidence in the criminal justice system. Parliament does not have

27 In its judgment of 18 May 2010 in Kennedy v United Kingdom, the European Court of Human Rights decided that there wasno evidence of any significant shortcomings in the application and operation of the surveillance regime under the RIPA in termsof the safeguards needed to protect the right to respect for personal privacy under Article 8 of the Convention.



an effective procedure for investigating and deciding whether a member is guilty or not guilty of criminalcharges (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 14of the Convention. Were the penal powers of Parliament to be extended in the manner proposed, and were theyapplied to try and punish a member of the public, there would be the risk of a complaint to the European Courtof Human Rights of discriminatory treatment in breach of Article 14 read with other provisions of theConvention, and it would be for the Government, on behalf of Parliament, to seek to demonstrate that thedifference 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 ceasedto have the judicial features of a High Court of Parliament. Any procedure … would need to include five keystages: 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 equippedto carry out any of these functions…. Existing procedures do not have the in-built safeguards provided by acourt of law.”

21. Article 6 of the Convention guarantees the right of access to an independent and impartial court ortribunal in the determination of a criminal charge or civil rights and obligations. The disciplinary and penalpowers of Parliament, covered by parliamentary privilege, are not amenable to an appeal to or judicial reviewby the courts. Since the Houses of Parliament and parliamentary committees are not independent and impartialcourts or tribunals, they cannot satisfy the requirements of Article 6 of the Convention, and, in the absence ofan appeal or judicial review, any “prosecution”, “trial” or “sentence” would be unlikely to pass muster in theEuropean 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 isaccessible and that there are basic procedural guarantees of fairness. The principle of proportionality is anothergeneral principle of European law which requires a restriction on a Convention right or freedom to beproportionate to the legitimate aim pursued. There is a serious risk that the proposed extension of parliamentaryprivilege 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 UKlaw (Human Rights Act 1998, section 6 (3)), Parliament, like the Executive and the Judiciary, is bound ininternational law to comply with Convention obligations.

24. In a series of judgments, the European Court of Human Rights has considered whether the operation ofParliamentary privilege in various European countries has occurred in circumstances which have violatedConvention rights. In only one of them (Demicoli v Malta) did the case concern the imposition of criminalliability on a third party. The other three cases are of interest in showing the need to demonstrate that thenature and operation of parliamentary immunity requires objective justification if it is to pass muster underConvention law.

25. In Demicoli v Malta (Application 13057/87) (1991) 14 EHRR 47, the editor of a political satiricalmagazine published an article criticising the performance of two Members of the Maltese House ofRepresentatives 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 theproceedings against him constituted a criminal charge even though parliamentary privilege was not formallyclassified as a crime under Maltese law. Since the applicant was not a Member of the House, the contemptproceedings did not relate to the internal regulation and orderly functioning of the House; they were akin tocriminal proceedings rather than disciplinary in character. The Court found that the impartiality of the Houseas an adjudicating body had been open to doubt because the two Members whose behaviour had been criticisedin the impugned article and who had raised the question of breach of privilege took part in the proceedingsthroughout. The Court decided that there had been a breach of Article 6 on the facts, without having to decidewhether the House of Representatives could be considered to be a court or to satisfy the Conventionrequirements as to independence and impartiality.

26. In A v United Kingdom (Application 35373/97), Judgment of 17 December 2003, the applicant allegedthat the absolute parliamentary immunity which prevented her from taking legal action in respect of statementsmade about her in Parliament violated her right of access to a court under Article 6 (1) of the Convention, andher right to privacy under Article 8, as well as discriminating against her contrary to Article 14. TheGovernments of eight States intervened in support of their various systems of protection of Parliamentaryimmunity.28 The Court concluded that the parliamentary immunity enjoyed by the MP in the particular casepursued the legitimate aims of protecting free speech in Parliament and maintaining the separation of powers28 Austria, Belgium, The Netherlands, Finland, France, Ireland, Italy and Norway.



between the legislature and the judiciary. The Court then assessed the proportionality of the immunity enjoyedby the MP, noting that it was absolute in nature and applied to both criminal and civil proceedings. It explainedthat the broader an immunity the more compelling must be the justification for it to be compatible with theConvention. It found that a rule of parliamentary immunity which is consistent with and reflects generallyrecognised rules within signatory States, the Council of Europe and the European Union, cannot in principlebe regarded as imposing s disproportionate interference with the right of access to a court embodied in Article6 (1) of the Convention. The Court referred to the fact that the absolute immunity enjoyed by MPs is designedto protect the interests of Parliament as a whole as opposed to those of individual MPs, illustrated by the factthat the immunity does not apply outside Parliament. It concluded that there had been no violation of Article6 (1) or any other Convention right.

27. In De Jorio v Italy (Application No. 73936/01) (2005) 40 EHRR 42, a candidate in a Parliamentaryelection lodged a complaint against a political opponent who was a Senator, accusing him of defamation. In anewspaper interview, the Senator had stated that the applicant had been expelled from the Retirement Partyand had been implicated in the activities of a secret Masonic organisation. Criminal proceedings were institutedagainst the Senator, which the applicant joined as a civil party. He brought a civil action for compensation forthe injury suffered as a result of the interview. The Constitution provides that Members of Parliament shall notbe 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 aMember of Parliament, he enjoyed immunity under the Constitution. On that basis, the criminal proceedingsagainst him were discontinued and the civil action was dismissed. The European Court decided that theimmunity 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 publicprosecutor, investigated someone who had dealings with Francesco Cossiga, a former President of Italy whowas now a “life senator”. Mr Cossiga sent the applicant sarcastic letters and some toys. The applicantconsidered 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 immunityunder the Constitution. The applicant challenged the Senate’s resolution but the District Court ruled that theSenate’s decision was neither procedurally flawed nor manifestly unreasonable. The Court noted that freedomof expression was especially important for an elected representative of the people. In a democracy, theParliament was the essential forum for political debate and there had to be very weighty reasons to justifyinterfering with the freedom of expression exercised there. Accordingly, parliamentary immunity could not inprinciple be regarded as imposing a disproportionate restriction on the right of access to a court. However, MrCossiga’s behaviour was not connected with the exercise of parliamentary functions in their strict sense. Thelack of any clear connection with parliamentary activity required the Court to adopt a narrow interpretation ofthe concept of proportionality, particularly where the restrictions on the right of access to the courts stemmedfrom 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 parliamentaryprivilege which the Government has indicated will be initiated in the form of a draft Bill. I agree with himthat the time has come for a Privileges Act. However, this raises issues well beyond the scope of theCommittee’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, advancedthe following three principles:29

“(1) all citizens of a democracy should, generally speaking, be equally subject to the ordinary law of theland. But

(2) some derogations from this principle are necessary if holders of certain public offices are to performtheir public functions to the greatest possible public advantage. However,

(3) these derogations should not exceed what is truly necessary for performance of the public functionsin question.”

Such derogations should be compatible with the Convention rights of all citizens, including MPs. For thereasons summarised above, in my opinion, the proposal by Mr Chris Bryant MP exceeds what is necessary forthe public functions of Members of Parliament.

29 HL Paper 43–II, HC 214–II, 30 March 1999, 108.



Written evidence submitted by the Lord Pannick of Radlett QC, 8 November 2010

Introduction

1. I have been asked to submit a memorandum of written evidence on whether, and if so in whatcircumstances, the hacking of MPs’ mobile phones could be a contempt of Parliament.

2. In my opinion, the hacking of a Member’s mobile phone could be a contempt as tending to obstruct orimpede the House of Commons in the performance of its functions if it could be said that MPs are adverselyaffected in their activities in and concerning the House of Commons, whether or not the communications relateto the “duties” of the MP.

The Meaning of Contempt

3. Erskine May (23rd edition, 2004) states at p.128 (referring to the Report of the Select Committee on theOfficial Secrets Act 1938–1939):

“Generally speaking, any act or omission which obstructs or impedes either House of Parliament in theperformance of its functions, or which obstructs or impedes any Member or officer of such House in thedischarge of his duty, or which has a tendency, directly or indirectly, to produce such results, may betreated as a contempt even though there is no precedent of the offence”.

4. This makes clear that there are two types of contempt:

(1) Acts which obstruct or impede either House of Parliament in the performance of its functions, or havea tendency to do so.

(2) Acts which obstruct or impede any Member or officer of either House in the discharge of his duty, orwhich have a tendency to do so.

The Scope of the MP’s “Duty” for the Purposes of Contempt

5. With regard to the duties of a Member, Erskine May states at p.143 that:

“Not all responsibilities currently assumed by Members fall within this definition. Correspondence withconstituents or official bodies, for example, and the provision of information sought by Members onmatters of public concern will very often, depending on the circumstances of the case, fall outside thescope of ‘proceedings in Parliament’ ... against which a claim of privilege will be measured ...”.

6. In 1958 (see Erskine May p.113) the House rejected the opinion of the Committee of Privileges thata particular letter written by a member to a Minister relating to a nationalised industry was a proceedingin Parliament.

7. The 1999 Report of The Joint Committee on Parliamentary Privilege considered the subject of Members’correspondence and observed at paragraphs 107–112 that a Member’s correspondence with a constituent is notprivileged and it would be unwise to extend privilege to cover a Member’s correspondence with a Minister.

8. In the recent case of R v Morley, the Court of Appeal concluded that, in relation to the activities of anMP, parliamentary privilege is confined to speaking in Parliament, participation in Committees and activitiesvery closely connected to those core functions. The Court of Appeal therefore held that privilege does notapply to the contents of the form in which an MP claims expenses so as to prevent a criminal prosecution foralleged false accounting. The case has been argued in the Supreme Court (on 18–19 October) and judgment isawaited. (I represented the Crown).

9. In the light of these precedents, it is unlikely that hacking into an MP’s mobile phone calls concerns hisor her “duties”, although it is possible that the Committee has evidence that this is so.

Impeding the Performance of the Functions of the House

10. As explained at paragraphs 3–4 above, it seems well-established that the scope of contempt is notconfined to an interference with activities which are part of an MP’s duties or otherwise part of “parliamentaryproceedings” for the purposes of privilege.

11. The memorandum submitted by the Clerk to the House refers (at paragraphs 16–19) to precedentsconcerning the House protecting letters to MPs.

12. Erskine May (at pp.142–143) gives further examples of contempt powers applying more widely thanproceedings in Parliament. For example:

(1) Disorderly conduct within the precincts of Parliament.

(2) Serving or executing civil or criminal process within the precincts of either House while the House issitting without obtaining the leave of the House.

(3) Representing oneself to be a parliamentary agent without possessing the necessary qualifications.



13. It is therefore open to the House to conclude that the act of hacking into the mobile phone of an MP isa contempt if and to the extent that it tended to obstruct or impede the House of Commons in the performanceof its general functions. For example, the Committee may conclude that:

(1) such conduct has interfered with the privacy of communications between MPs and others, thecommunications relating to the Member’s general role as an MP,

(2) or such conduct has made it more difficult for MPs to carry out their activities as such, by deterringthem from using a convenient form of communication,

in each case in or concerning the House of Commons, whether or not the activities fall within the scope ofparliamentary proceedings for the purposes of privilege.

Written evidence submitted from James Price QC, 9 November 2010

Summary

(1) There does not appear to be any modern authority on the question of possible contempt of Parliamentby hacking into MPs’ telephones, or interception of their other communications.

(2) The general law, both civil and criminal, provides full protection for citizens, including MPs, againsttelephone hacking.

(3) The threat of interception of communications with constituents for the purpose of representing theirinterests in Parliament, and communications with others with whom a member consults for purposesof contributing to debate or to proceedings in committees, tends to inhibit free communication ofinformation, particularly private or confidential information, needed for these purposes. Interceptionof such communications would, on this basis, be contempt of Parliament.

(4) Interception of other MPs’ communications, private or business, would not be contempt. Specifically,interception of communications on constituency business, for example assisting constituents withproblems not involving any parliamentary business, would not as such be contempt.

1. The question on which the Committee has asked for evidence is: whether and if so in what circumstanceshacking of MPs’ telephones could be a contempt of Parliament. The views expressed below, and in thesummary above, are simply my opinion, which I think is what the Committee wants, and I have not reiteratedthroughout that I am making suggestions and submissions—I have just expressed some conclusions for theCommittee to consider.

2. As regards the established principles and precedents, there is little that I can add to the memorandumsubmitted by the Clerk of the House: there does not appear to be any precedent concerning hacking ofMembers’ telephones. The closest analogy lies in the steps taken by the House of Commons, until the repealof the relevant Standing Orders in 1967, to protect letters directed to Members from interception or loss. Butthose Orders provided administrative arrangements within the precincts of the House for the reception, custodyand safe-keeping of letters, rather than any guidance as to whether or when interception of letters by personsoutside the House would constitute a contempt of Parliament, a point on which there does not appear to beany modern authority.

3. The matter has therefore to be approached by considering and applying the principle underlying contemptof Parliament, having in mind the extent to which telecommunications are protected from interception by thegeneral law.

The General Law on Interception of Communications

4. The general law provides citizens, including MPs, with full protection against telephone hacking. This iswell illustrated by the notorious News of the World cases, both criminal and civil. Mr Mulcaire, the investigatoremployed by at least one News of the World journalist to intercept voicemail messages left on the mobiletelephones of, in particular, Princes William and Harry, was prosecuted for unlawful interception ofcommunications, contrary to section 1 (1) of the Regulation of Investigatory Powers Act 2000, which provides:

“It shall be an offence for a person intentionally and without lawful authority to intercept, at any place inthe United Kingdom, any communication in the course of its transmission by means of:

(a) a public postal service; or

(b) a public telecommunication system.”

Mr Goodman, the News of the World’s royal correspondent, was convicted of conspiring with Mr Mulcaireto intercept communications.

5. The civil actions, in which it has been reported that the publishers of the News of the World paid enormousdamages to more than one victim of phone hacking, were based on the law of breach of confidence, andinvasion of privacy / misuse of private information. Breach of confidence protects from misuse or unauthorised



disclosure a very wide range of confidential information, from state or trade secrets and other commerciallyconfidential information, to personal information such as information about medical conditions or treatment,finances, and other family or personal confidences. The law of privacy has been developed from that ofbreach of confidence under the spur of Article 8 of the European Convention on Human Rights, para. 1 ofwhich provides:

“Everyone has the right to respect for his private and family life, his home and his correspondence.”

In the context of phone hacking, the protection for a person’s correspondence is particularly relevant, asemphasised by the Clerk of the House in para. 22 of his memorandum. Lord Nicholls of Birkenhead said inCampbell v MGN Ltd. [2004] 2 AC 457 at [21] that the essential touchstone of private life is whether in respectof the disclosed facts—or the facts whose disclosure is threatened—the person in question had a reasonableexpectation of privacy. If so, the law protects the privacy of the information, unless there are countervailingrights or interests, in particular any public interest in disclosure, which outweigh the entitlement to privacy.The essential contest is usually between the degree of intrusion into private life which disclosure would causeor has caused, and the extent to which disclosure or publication is a matter of proper public concern.

6. On this basis, a Member of Parliament whose telephone is hacked into, will have a remedy in the civillaw, for an injunction and/or damages, or an account of profits, provided that the information being discussedor communicated is confidential or private. Information which is in the public domain, such as that day’sfootball scores, will obviously not be protected. Nor will trivia, but where personal or domestic information isconcerned, people legitimately expect protection even for minor details which might otherwise be characterisedas trivial. In the criminal law, any communication in course of transmission is protected. The voicemail messagewhose interception by Goodman and Mulcaire led to their prosecution was a joke message left by PrinceWilliam for Prince Harry concerning his girlfriend.

7. Given the understandable reluctance of the Houses of Parliament to impose penalties for contempt ofParliament, the primary protection of MPs from hacking into their mobile telephones is likely to lie in thecriminal and civil law. But contempt of Parliament may nevertheless be applicable, and may not alwaysbe redundant.

The General Principle Underlying Contempt of Parliament

8. This is well set out in para. 4 of the Clerk of the House’s memorandum. The defining characteristic ofcontempt of Parliament is obstruction of either House in the performance of its functions. Obstruction ofmembers in the performance of their duties is naturally liable to lead to obstruction of the House in theperformance of its functions, and hence be contempt. But it is contempt because it obstructs the House, notbecause members have any special protection for their performance of their duties or otherwise. Hence,obstruction of a member in the performance of his/her constituency duties is not as such contempt ofParliament: see para. 8 of the Clerk of the House’s memorandum, an especially important point in regard tothe question under consideration.

9. Because anything that obstructs either House in the performance of its functions is contempt, contemptcomes in many widely different forms, it can never be reduced to a closed set of categories, and new formswill arise as new methods of obstructing Parliament become possible through technological and otherdevelopments. These points are obviously critical for drafting, if contempt is to be codified in statute.

10. As to whether hacking into a member’s mobile telephone could be contempt, the answer depends onlooking at what is needed for the unhindered conduct of parliamentary business. A key part of a member’sparliamentary duty is representing the interests of his/her constituents in the House. To do that effectively, he/she must be able to communicate freely with constituents, and in the course of such communications, theymay well need to discuss confidential or private matters. Another key part is (obviously) contribution to debateand to proceedings in committees, and to do that effectively, the member will need to consult with interest andpressure groups, other interested parties, experts and so forth, and such consultations may well involveconfidential or private matters.

11. In short, communication with constituents and others, for purposes connected with parliamentarybusiness, will commonly need to take place in private. The threat of intrusion into such communication isliable to inhibit the imparting of information which a member may need to represent his constituents effectivelyin Parliament, and to contribute effectively to debate or to proceedings in committees. In such cases, intrusionis contempt. It is not an answer to this that, if the member and the other parties to a particular communicationare ignorant of the intrusion, they will not be inhibited. The inhibition arises from the threat of intrusion,and it follows that the conduct of parliamentary business requires that such communications be protectedfrom intrusion.

12. Nor is it an answer that telecommunications are fully protected by the criminal law, and the civil law ofconfidentiality and privacy, so that (it might be said) there is no need for communications to be protected bythe law of contempt on top. That misses the point: if intrusion has the tendency to inhibit communication



which is needed for the effective conduct of parliamentary business, it is contempt to intrude into suchcommunication. If intrusion is effectively deterred by the general law, it will not take place, and there will beno contempt. But if it does take place, it will be contempt.

13. These views accord with that of the British Columbia Special Committee on Privileges quoted in Annex3 to the Clerk of the House’s memorandum:

“parliamentary democracies flourish only when member and constituent can communicate freely, openlyand candidly without having the spectre of interception … interfering with such communications”,

provided that this is not understood as widening the scope of contempt beyond protection of the work ofeach House. Nor are they at all at odds with the view of the Indian Speaker quoted in the 4th para. of Annex3—he appears to have been dealing with a complaint of phone-tapping outside the scope of a member’sparliamentary duties.

14. These views seem also generally to accord with the cases cited in Erskine May on pages 152–3 under theheading “Constituents and others”. Clearly, it is a somewhat nice question whether and in what circumstances acommunication to a MP is a proceeding in Parliament, so as to confer the protection of privilege on its author:see in particular the two contrasting Queensland cases cited in note 1 on p.153. But that seems to be a ratherdifferent question from that under consideration, which is not whether communications to a member on hismobile phone may be proceedings in Parliament, but whether intrusion which tends to inhibit communicationneeded for the effective conduct of parliamentary business is contempt.

15. The question of hacking into members’ mobile phones seems to lie rather at the boundary of the law asto contempt of Parliament, as suggested by the fact that it has not previously proved necessary to resolve thequestion, either in the context of telecommunications or postal communications. It is a matter for the Committeewhether the question has any significant practical consequences, given the full protection provided by thegeneral law for members’ telecommunications.

Written evidence submitted by Professor Anthony Bradley30, 20 January 2011

1. Before preparing this memorandum, I have had the benefit of reading the written and oral evidence givento the Committee by the Clerk of the House, Dr Malcolm Jack, and the papers by John Hemming MP, LordLester 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 onthe circumstances in which the phones of Members have been intercepted, and assuming that this wasundertaken without statutory or common law authority, the hacking is capable of being a contempt ofParliament. 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 theperformance of its functions, or which obstructs or impedes any Member or officer of such House in thedischarge of his duty, or which has a tendency, directly or indirectly, to produce such results, may betreated as a contempt even though there is no precedent of the offence”.31

3. The authority of the House to treat abusive or threatening conduct aimed at Members as a contempt existstoday, even though in 1978 the House resolved to exercise its penal jurisdiction as sparingly as possible, andonly when satisfied that it was essential to do so.32 The existence of the contempt power of the House hasgiven 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 mediaor other outside interests may be regarded as improper interference and molestation is not a constant. TheHouse and its Members are required to have thicker skins today than in the past. In 1935, for instance, theLeague for the Prohibition of Cruel Sports was held to have committed a gross breach of the privileges of theHouse when its secretary sent a questionnaire to Members, saying “If we do not hear from you, we shall feeljustified in letting your constituents know that you have no objection to cruel sports”.33

4. Molestation of Arthur Lewis MP was held to have occurred when in 1956 the Daily Graphic attackedhim for proposing in a parliamentary question that some money allocated for relief in Hungary should be givento Egyptian victims of British shelling in Suez. The paper advised its 700,000 readers to phone Mr Lewis atEdmonton 6113 and tell him that this was “the most crazy, mixed-up question of the year”. Many abusive callswere received by him until he changed his phone number. This was treated as a serious breach of privilege30 Barrister, of the Inner Temple; Emeritus Professor of Constitutional Law, University of Edinburgh; Research Fellow, Institute

of European and Comparative Law, University of Oxford.31 Erskine May, 23rd edn, 2004, p 128.32 Erskine May, p 128.33 Hansard, HC Deb, 15 May 1935, c 1545.In 1946 a campaigning association committed a breach of privilege when it published

posters outside Parliament saying that the names of MPs voting for bread rationing ‘will be published here as public enemiesand dictators’ (HC 181, 1945–46).



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.34

5. Discussion of such cases has often not distinguished between conduct that forms a breach of the privilegesof the House and conduct that is a contempt of the House. Often the distinction does not matter. However, thenotion of contempt is not dependant upon it being shown that there has been an interference with the establishedprivileges of the House. In my opinion, a deliberate (or reckless) effort by a section of the media or an inquiryagency to hack into Members’ mobile phones is capable of being treated as a contempt, whether or not itamounts to a breach of the “freedom of speech and proceedings in Parliament” guaranteed by Article 9 of theBill of Rights. The point has significance in the present context in that, as confirmed by the Joint Committeeon Parliamentary Privilege in 1999, communications between a constituent and a Member are considered tofall outside “proceedings in Parliament” for the purposes of Article 9.35 Just as the notion of contempt ofParliament 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, bothas individuals and as a community. The nature of this duty today is persuasively described in Mr Hemming’spaper to the Committee. This means that conduct that is intended and likely to impede or obstructcommunications between an MP and his or her constituents could be treated as a contempt of Parliament; thiswould 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 acontempt has occurred; the circumstances may indicate that the status of the MP is irrelevant (eg if the hacker’smotive is to get private information about the MP’s partner, who is a leading model or a pop-star). Where thereis a connection between the motives of the hacker and the parliamentary duties of the MP, the Clerk of theHouse (in para 26 of his written evidence) has set out a number of relevant factors that will need to beconsidered. To these may have to be added the question of whether the hacker might be able to show a plausiblepurpose for the hacking that could show it to have been in the public interest (eg if the hacker’s aim was todiscover additional evidence to show that the MPs were not acting in the public interest but were pursuingtheir own criminal aims).

Practical Factors

7. Even when a strong element of impeding or interfering with a Member’s parliamentary duties can beshown, certain practical matters need to be taken into account before the House takes action on the basis ofcontempt. If the hacking is already covered by the criminal law, the House will not be able to conduct aninvestigation into the facts without taking account of any police investigation that is in progress. The SupremeCourt in its recent decision in R v Chaytor has held that the House should delay taking action so long as thepolice investigation and subsequent proceedings are pending.36 Lord Phillips, giving the leading judgment,emphasised that the House does not assert exclusive jurisdiction over criminal conduct, and that the Houseauthorities are expected to, and do, co-operate with the police. The Chaytor case was of course concerned withwhat was alleged to be criminal conduct by Members in making false claims for expenses. In this situation ofoverlapping jurisdiction, Lord Rodger made clear in a concurring judgment that, assuming that the House givespriority to the procedures of criminal law, it retains a jurisdiction to deal with criminal conduct in so far asthis may constitute a contempt of Parliament.

8. Chaytor was not concerned with a situation in which the alleged criminals are members of the publicoutside the House, but in principle the situation here is the same, except that this diminishes the range ofsanctions that the House may impose. Expulsion from the House may be an appropriately serious sanction fora serving MP who is in severe contempt of the House, even if the criminal sentence does not lead to his or herdisqualification. The range of sanctions available against non-Members is limited. One further comment onChaytor is that it was not concerned with a situation in which the alleged contempt involves no breach of thecriminal law (as for instance in the case of Arthur Lewis MP and the Daily Graphic mentioned above). In sucha situation, there is no overlapping jurisdiction and thus no need for the House to delay taking action while acriminal 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 theestablished privileges of Parliament, although one would expect that the contempt could be shown to have aneffect upon those privileges. I have read Lord Lester’s memorandum to the Committee with much interest, butthe general thrust of his argument is, it appears, that to treat phone hacking as a contempt would involvecreating a new privilege. If that were the case, it would be a conclusive argument against any contempt-basedinquiry being held. But a finding that a new form of molestation or interference with the activities of the Houseand its Members has arisen does not involve the creation of a new privilege (and cf Lord Lester’s memorandum,para 12, first sentence).34 HC 27, 1956–57.35 This decision by the House was made in the London Electricity Board case of 1957–58.36 R v Chaytor [2010] UKSC 52 (reasons given on 1 December 2010)



Implications of the European Convention on Human Rights

10. Lord Lester provides a valuable analysis of the Strasbourg Court’s decisions as they may affectparliamentary privilege. To this I have little to add, except to mention the case of Kart v Turkey, decided bythe European Court of Human Rights on 3 December 2009. The facts were unusual, in that under Turkish lawan MP not only has freedom of speech in the legislature and in the course of duties connected with that, butis 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 oncharges relating to a time before he was elected. He complained that this was an improper interference withhis right to a trial on criminal charges under Article 6/1 ECHR. By a majority of 13–4, the Grand Chamber ofthe Court rejected his complaint. The Court upheld the Turkish regime of immunity for MPs, even though thiswas broader than in many European countries: the Court said that “the regulation of parliamentary immunitybelongs 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 definitionor the scope of the protection the States accord their MPs” (para 87); the issue was whether in the circumstancesthe immunity that applied to Kart amounted to “a legitimate and proportionate limitation” of his right to betried by a court under Article 6/1. In the Court’s view, the aim of the immunity of MPs was “to guarantee thesmooth functioning and integrity of Parliament” (para 91). The decision by the Parliament to lift or not liftimmunity “is one of the ways in which Parliament exercises its autonomy”. The decisions by parliamentarybodies were “political decisions by nature and not court decisions, so they cannot be expected to satisfy thesame criteria as court decisions when it comes to giving reasons” (para 101). On the basis of this approach tothe immunity from prosecution that applies to Turkish MPs, the Strasbourg Court is willing to give weight tothe autonomy of Parliament and its ability to perform its constitutional duties, and accepts that there is nosingle pattern of parliamentary law within European countries. It must not be assumed that the contemptjurisdiction 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 constitutea contempt of Parliament, for two main reasons the Committee may need to consider the broader question ofwhether there is still a role for contempt of Parliament. These are (1) the present scope of judicial reviewwithin public law; and (2) the challenge that European human rights law presents to national traditions, suchthat the sovereignty of the Westminster Parliament itself may be challenged in Strasbourg on Conventiongrounds. The Joint Committee on Parliamentary Privilege in 1999 examined the disciplinary and penal powersof Parliament. It found that there was no need to retain “abusive contempt” (that is, words or action by anyperson which the House considers disrespectful, insulting or defamatory) as a separate head of contempt ofParliament (para 270), and it recommended that contempt of Parliament should be codified in statute, thereason for this method of codification being “to ensure the courts are bound by the chosen definition” (para315). So far as the members of each House were concerned, the Committee took it as axiomatic that eachHouse should remain responsible for disciplining its own members. “It is inconceivable that power to suspendor 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. Itheld that where the conduct was a criminal offence, the criminal law should take its course, and this wouldnormally suffice. “But unless a residual power to punish exists, the obligation not to obstruct will be little morethan a pious aspiration” (para 302); and, “to be effective as a last resort, the punishments themselves must bemeaningful” (para 303). The Committee recommended that there should be power to fine non-members but forpractical reasons that the power to do so should be vested in the courts (para 306) and, further, that thereshould 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 ancientcase-law on the power of the Commons to punish non-members for contempt. That rather tangled body ofcase-law led FW Maitland to say “Thus it would seem that the House has a legal power to turn into a contemptjust what it pleases”.37 In brief, the issue turned on the attitude of the courts in deciding whether to grant thewrit 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 habeascorpus merely stated that committal was for contempt of the House; but, as Lord Ellenborough said, if thereason stated for the commitment was for some matter “which could by no reasonable intendment be consideredas a contempt” but was “a ground of commitment palpably arbitrary, unjust, and contrary to every principle ofnatural justice”, then the court must look at it “and act upon it as justice may require”.38 Since this particularsituation of judicial review arises from a decision by the House to detain someone for contempt, it is unlikelyto arise today. Should a sanction for contempt falling short of detention be imposed by the House today, it islikely that the courts would respect the decisions of the House in matters relating to its undoubted privilegesand internal proceedings—subject to the retention of a reserve power which a court might be willing to exercisein an extreme case. But it is rather unlikely that the court would today regard itself as unable to intervenemerely because the resolution of the House did not state the nature of the contempt.37 Constitutional History of England (1908), p 378.38 Burdett v Abbott (1811) 14 East 1, 150; applied in Case of the Sheriff of Middlesex (1840) 11 A & E 273. And see DL Keir

and FH Lawson, Cases in Constitutional Law, 5th edn, 1967, pp 262–87.



Conclusion

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

(b) The notion of a contempt of Parliament is open-ended and the range of conduct that it covers is likelyto change over time. Conduct may be held to be a contempt even if there is no precedent for doing so in aparticular fact-situation. But a past precedent for treating certain conduct as a contempt may have lost itsauthority 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 existingprivilege of Parliament.

(d) Where the hacking involves a breach of the criminal law, any investigation by the House will have to bedelayed until police and the criminal courts have completed their work. However, in such a case the Househas 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 factorsderived from the European Convention on Human Rights and the Strasbourg case-law. That case-law respectsthe wide margin of appreciation that states enjoy in this respect (Kart v Turkey), especially in relation to thedisciplinary powers that the House may exercise over its Members. Convention issues are more likely to ariseshould the House wish to exercise penal sanctions (eg fining) over persons who are not Members of the House.

Letter from Chris Bryant MP to the Chair of the Committee, 27 January 2011

I thought it might be helpful if I wrote to explain my belief that the hacking of an MP’s phone should beconsidered 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 phoneconversation; obtaining access to phone messages that have already been listened to or texts that have alreadybeen read; intercepting messages or texts; illegally obtaining a PIN; fraudulently obtaining other informationstored 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 todefend 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 toproceedings in Parliament.

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

On occasion the Commons has felt the need to strengthen the protection of that freedom of speech in otherways. Thus in 1702 the House resolved that “to print or publish any book or libels reflecting on the proceedingsof the House or on any Member for or relating to his service therein is a high violation of its rights andprivileges”.

Similarly the Commons resolved on 12 April 1733 “that the assaulting, insulting or menacing any Memberof 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 rightsof Parliament and an high crime and misdemeanour”. Again on 6 June 1780 the Commons resolved “that it isa gross breach of the privilege of this House for any person to obstruct and insult the Members of this Housein the coming to or going from this House and to endeavour to compel Members by force to declare themselvesin favour of or against any proposition then depending or expected to be brought before the House”. Both MPsand others have been punished for such actions, whether they occurred on the precincts or not and whether themolestation was merely verbal or not.

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



In addition premature publication or disclosure of committee proceedings, such as by leaking a draft of acommittee report, has been considered a breach of privilege and a constructive contempt of Parliament. In1837 the House resolved that “the evidence taken by any select committee of this House and the documentspresented to such a committee and which have not been reported to the House ought not to be published byany Member of such committee, or by any other person” and where it has been possible to identify such aperpetrator, the House has taken action. In July 1999 Ernie Ross MP was forced to resign from the ForeignAffairs select committee for having leaked a draft report and was suspended from the House for ten days. Twoother 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 needsrobust protection should be applied to the question of “phone hacking” because any attempt to hack into anMP’s phone, and in particular to intercept a phone message or a text, would be a clear instance of molestingan MP. After all, the only reason one could imagine anyone wanting to hack into an MP’s phone would be tomolest, intimidate or obstruct them in their activity as an MP. I can think of no clearer contravention of themotions of the House already cited.

Moreover many have argued that the privilege attached to proceedings in parliament, to the speeches madeand evidence taken in parliament, should also apply to all MPs’ correspondence. A case was brought in 1958that 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 inParliament. The House decided at the time that he did not have absolute privilege in relation to thatcorrespondence. In fact if he had made the comment in Parliament first and then referred to it in hiscorrespondence he would have been completely covered.

However, when the issue was considered by Lord Nicholls’ Committee in 1999, the view was firmlyexpressed 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 withthe 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 toMPs’ correspondence, when it relates to proceedings in parliament. In other words, if a Member wrote to aconstituent or another member, whether manually or electronically, about proceedings in parliament, forinstance suggesting an amendment, he would be able to rely on parliamentary privilege to protect him fromprosecution in a court.

I would argue that an email, a text message or indeed a phone message should similarly be covered by apartial 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 theexpression “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 anyperson ordered or authorised to attend before such House, in or in the presence of such House and in thecourse 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 suchHouse: provided that for the purpose aforesaid the expression “House” shall be deemed to include anyCommittee sub-Committee or other group or body of Members or Members and Officers of either Houseof Parliament appointed by or with the authority of such House for the purpose of carrying out any of thefunctions of or of representing such House; and

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

Such a definition has not been enacted but would, I believe, be an accurate summary of the common lawdefinition. Since it expressly includes “things said” as well as written I feel confident that that would includephone messages, for instance between members or between a Member and a Clerk, relating to amendments tobe 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 becauseit is a form of intimidation and obstruction which offends the Bill of Rights and because there might be theinterception 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 phoneis a constructive contempt of Parliament and that all the correspondence, whether in hard or electronic copy iscovered 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 theCommittee might consider calling for a new Parliamentary Privileges Act to clear up some of the extantanomalies.

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