Evidence from the Clerk of the House |
Ev 4: Memorandum from the Clerk
of the House, 1 February 2010
1. Parliamentary privilege exists to guarantee
the effective functioning of Parliament. Any action or omission
which interferes or appears to interfere with either House in
the performance of its duties may be treated as a contempt. It
is important that the Houses act in cases where contempts are
committed in order to safeguard their ability to perform their
parliamentary functions effectively. 
2. Among others, an attempt to intimidate a Member
in his or her parliamentary conduct by threats is also a contempt.
Actions of this character which have been proceeded against include
- impugning the conduct of A Member and threatening
him or her with further exposure if he or she took part in debates;
- threatening to communicate with Member's constituents
to the effect that, if they did not reply to a questionnaire,
they should be considered as not objecting to certain sports;
- publishing posters containing a threat regarding
the voting of a Member in a forthcoming debate;
- informing a Members that to vote for a particular
bill would be treated as treasonable by a future administration;
- summoning a Member to a disciplinary meeting
of his trade union in consequence of a vote given in the House
- threatening to end investment by a public corporation
in a Member's' constituency if the Member persisted in making
speeches along the lines of those in a preceding debate.
3. Anything done or omitted which may fall within
the definition of contempt, even if there is no precedent, may
4. The House of Commons has not imposed a fine
since 1666. The lapse of time does not necessarily mean the power
has evaporated. In 2006 the New Zealand House of Representatives,
whose privileges are based on those of the House of Commons, levied
a fine of NZ $ 1,000 on TV New Zealand, without requiring statutory
authority to do so. The Australian Parliamentary Privileges Act
1987 contains provisions imposing fines (as well as imprisonment)
on persons committing offences against the House.
5. The House of Commons has the power to direct
the Speaker to issue a warrant to the Serjeant at Arms, and if
appropriate to a governor of a prison, to commit a person into
custody. In Brass Crosby's case (1771) it was ruled that:
"When the House of Commons adjudge anything to be a contempt
or a breach of privilege, their adjudication is a conviction,
and the commitment is execution; and ... [this court] can do nothing".
6. Where the offence is not so grave as to warrant
the committal of the offender, he (and this power has been exercised
to date only against men) may be brought to the Bar of the House
by the Serjeant at Arms and there reprimanded by the Speaker in
the name and by the authority of the House. The last time a non-member
was reprimanded at the Bar of the House was on 4 January 1957
when the Editor of the Sunday Express, John Junor, was rebuked
for some remarks he had printed about Members and petrol rationing
in the aftermath of Suez.
7. Since the 1960s, it has been the practice
of the House to exercise its penal jurisdiction as sparingly as
possible and when it was essential to do so in order to provide
reasonable protection for the House, its Members or officers from
improper obstruction or attempt at or threat of obstruction causing,
or likely to cause, substantial interference with the performance
of their respective functions.
However, the Joint Committee on Parliamentary Privilege in 1999,
while recommending the abolition of imprisonment as a penalty,
nevertheless re-iterated the importance of both Houses being able
to punish offenders albeit with safeguards for due process.
8. When a prima facie contempt is referred
by the House to the Committee on Standards and Privileges, it
falls to the Committee to exercise its judgement in recommending
to the House what action, if any, should be taken in the particular
The Withers LLP case
9. On 13 January 2010 Mr Speaker informed the
House (HC Deb 13 January 2010 vol 503 cols 691 to 692)
that the hon. Member for Birmingham, Yardley (John Hemming) had
drawn his attention to an e-mail from Withers LLP, a firm of solicitors,
which could in his view amount to a contempt of the House by seeking
to intimidate a Member in his parliamentary conduct and that he
had decided that this was a matter to which he should allow precedence,
in accordance with the rules set out in Erskine May.
10. Accordingly at the commencement of public
business on the following day, Mr Hemming successfully moved that
the matter of his complaint be referred to the Committee on Standards
11. Mr Hemming had raised the matter privately
over the summer recess. He submitted a formal complaint to the
Speaker, in accordance with the procedure set out in Erskine May,
on 28 October 2009. Mr Speaker reserved his position at that time,
because the risk of interference with the work of the House did
not appear to be sufficiently urgent to give precedence over the
Orders of the Day to a referral motion. With the Speaker's authority
I wrote to Jennifer McDermott, Media and Culture, Litigation Partner
at Withers LLP on 3 November 2009:
"I have been shown some of the correspondence
you and your colleague Tamsin Turk have conducted with John Hemming
MP relating to your client Jeremy Knight Adams.
I note, in particular, that your e-mail of 4 August
seeks an undertaking from Mr Hemming not to repeat certain allegations
"particularly in Parliament" and states that proceedings
will be issued by your client if such an undertaking is not given.
As you will doubtless now be aware, Article IX of
the Bill of Rights 1689 provides that "The freedom of speech
and debates or proceedings in Parliament ought not to be impeached
or questioned in any court or place out of Parliament". It
has long been established that the courts will not entertain proceedings
to restrain the freedom of speech in Parliament, so that no undertaking
of the kind sought by you on behalf of your clients could be enforced
through the courts.
Moreover, the seeking of such an undertaking might
well be regarded by the House as a contempt. In this regard, I
draw your attention to Erskine May 'Parliamentary Practice' where
it is stated that to attempt to intimidate a Member in his parliamentary
conduct by threats is also a contempt (23rd edition, page 146).
My purpose in writing this letter is to remind you
of the correct position on the freedom of speech in the House
of Commons, so that Withers LLP may in future avoid the risk of
appearing to commit a prima facie contempt of the House by seeking
to constrain a Member in relation to his participation in parliamentary
proceedings and threatening adverse consequences if such a constraint
is not accepted by the Member."
12. Ms McDermott replied to me on 20 November
Thank you for your letter of 3 November 2009.
Our client's complaint with Mr Hemming arose out
of the publication of defamatory statements concerning our client's
alleged conduct in relation to a proposed Tesco development published
in a Liberal Democrat leaflet to the Yardley constituency. John
Hemming MP published a clarification on his website which is still
available at http://johnhemming.blogspot.com concerning
Our client's complaint of 29 July 2009 was originally
addressed to Councillor Paul Tilsley and, in accordance with standard
defamation practice, we also sought from him an undertaking that
neither he nor anyone else in the Liberal Democrat Party would
repeat the allegations of which our client complained. Our client's
complaint against Councillor Tilsley was then taken up by Mr Hemming
on 30 July 2009 and a four-day period of extensive e-mail correspondence
between myself and Mr Hemming ensued. It was only at the end of
that period in Mr Hemming's e-mail of 15.02 on 3 August 2009 that
he introduced the concept of his making a speech to the House
of Commons. In that e-mail he said,
"I make one further point in respect of your
client. I consider that his behaviour in respect of the development
at the Swan has indeed been a spoiling tactic. I do intend, therefore,
making reference to this at my earliest possible opportunity in
a speech in the House of Commons and referring to the other situations
in which we are aware of when he has acted to delay developments.
Be aware that this behaviour (through yourself)
in respect of these threatened proceedings will also be part of
any reference to bullying tactics and the way in which he attempts
to gag opponents will also be part of my speech ..."
This was Mr Hemming's response to our client's perfectly
legitimate exercise of his right to protect his reputation against
defamatory statements made by Mr Hemming outside of Parliament
and in respect of which he had quite properly, in the normal way,
requested undertakings not to repeat. It is in the course of these
events that my response of 4 August 2009 to which you refer should
be seen, I hope that you will see from my e-mail to Mr Hemming
of 11 August 2009 (enclosed for your ease of reference) that it
is clear that neither my client, I nor my firm were acting contrary
to Article IX of the Bill of Rights 1989 or committing contempt
of the House of Commons.
In view of Mr Hemming's assertions to the contrary,
this matter was then referred to Withers LLP's Managing partner,
Margaret Robertson. I enclose a copy of Mrs Robertson's e-mail
to Mr Hemming of 11 August 2009 in which she clearly sets out
As I have said above, Mr Hemming has published a
clarification in which he says that,
".... We wish to make clear that we did not
suggest in [the] leaflet that Mr Knight-Adams has engaged in or
is engaged in 'spoiling tactics'."
We have therefore expressed the view in correspondence
that it would be an abuse of parliamentary privilege for him now
to make a speech complaining about our client's alleged spoiling
tactics. As we set out in our letter of 14 September 2009 (enclosed
for your ease of reference), going forward the correct procedure
for any complaint on our part in relation to Mr Hemming's conduct
would be to the Parliamentary Commissioner for Standards.
In the circumstances, as an experienced Media and
Constitutional Law practitioner, it remains my view that Mr Hemming's
allegations are without foundation.
I should be very happy to assist you with any further
queries that you may have in relation to this matter, failing
which I shall treat Mr Hemming's complaint as now closed."
13. Withers LLP's letter of 20 November 2009
(above) stated that their client was protecting himself from defamatory
statements made "outside of Parliament" but did not
retract the threat they had made to Mr Hemming. The letter refers
to the e-mail of 11 August from Mrs Robertson of Withers LLP which
stated "[Ms McDermott] has made it clear that you, and any
other Liberal Democrats involved in the publication of the offending
leaflet, can either settle with our client or be sued for defamation
and malicious falsehood.
Part of the settlement package, as is normal, would be an assurance
that you, and any others involved, would not repeat the offending
material, whether in Parliament or elsewhere". This can only
be understood as meaning that, if Mr Hemming did not give an undertaking
which extended to his speech in Parliament, he would be sued for
defamation and malicious falsehood. It therefore amounted to an
attempt to intimidate a Member in his parliamentary conduct.
14. On 2 December 2009, I advised the Speaker
that, as Withers had not apologised, Mr Hemming's request should
be considered afresh.
15. On 12 January 2010 Mr Speaker decided to
agree Mr Hemming's revised application, dated 16 December 2009,
on the basis of my advice, with which Speaker's Counsel concurred,
that prima facie Withers LLP had committed a contempt.
16. The basis on which Mr Speaker allowed Mr
Hemming to move his referral motion was the e-mail from Withers
LLP dated 4 August 2009, which has since been the subject of the
apology submitted by Withers LLP on 25 January 2010 to the Committee
on Standards and Privileges.
17. Mr Hemming has submitted a substantial dossier
to the Committee to place the offending e-mail of 4 August 2009
18. The Committee may wish to reiterate the importance
of the principle that Members of the House must not be threatened
in their parliamentary conduct. They may also wish to put on record
that Withers, on receiving the warning letter of 3 November, should
have at once withdrawn their request for an undertaking from Mr
Hemming, contained in their e-mail of 4 August, not to raise matters
in the House and by failing to do so have been in contempt.
13 Jan 2010 : Column 691
Withers LLP (Privilege)
The hon. Member for Birmingham, Yardley (John Hemming) has drawn
my attention to an e-mail he received from Withers LLP, a firm
of solicitors, which could in his view amount to a contempt of
the House by seeking to intimidate a Member in his parliamentary
I have decided that this is a matter to which I should
allow precedence. Therefore, under the rules set out at pages
167 to 168 of "Erskine May", the hon. Gentleman may
table a motion for debate at the commencement of public business
tomorrow. It will appear on the Order Paper after any statements
and before the topical debate on Afghanistan.
I shall arrange for the text of the e-mail to be
published in the Official Report.
30 See Erskine May 23rd Edition, page 128 Back
Ibid, page 146 Back
See Parliamentary Privileges Act 1987, s 7 Back
Erskine May 23rd Edition, page 159 Back
Ibid, page 167 Back
Joint Committee on Parliamentary Privilege, 1998-99, HL Paper
43-I, HC 214-I, Paras 301 to 324 Back
See Appendix for text Back
Erskine May 23rd edition, page 167-8 Back
HC Deb, 14 January 2010 vol. 503 cols 869 to 872 Back
See Ev pp 25 and 26 Back
See Ev pp 25 and 26 Back