Hacking and privilege |
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.
23. The Clerk of the House referred in his memorandum
to an assertion by the House in 1689the year of the Bill
of Rightsthat breaking open letters directed to or sent
from Members is a breach of privilege.
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."
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 The Standing Order was repealed in 1997,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."
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.
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.
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 activitywhich 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.
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.
In considering the scope and nature of privilege and of contempt,
we have taken the Report of the Joint Committee as our starting
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."
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:
(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
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.
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
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.
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.
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
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."
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.'"
He pointed out that the Australian statute does not define contempt.
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."
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 privilegethe limits of that must
be clearand the contempt power. If one tried just to have
a closed list of precise forms of conduct that today constitute
contempt, in 10 years' time we would have a similar discussion.
It must be in terms of obstructing the proceedings of Parliament
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."
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
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.
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 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?
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
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."
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.
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.
Lord Nicholls' view was that purpose is more important than effect.
He expressed reservations about the application of privilege to
Members' constituency work.
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.
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.
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.
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. In
Lord Lester's view, only in "gross, rare circumstances"
could hacking amount to a contempt.
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 insecuritythis
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 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 Membersany more than
any other institution or individualshould 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.
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.
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.
In 1999, the Joint Committee reached a similar conclusion.
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
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
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
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.
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.
In so recommending, the Joint Committee repeated calls made by
committees of this House in Reports published in 1967 and in 1977.
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 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.
18 Evidence p19 Back
Evidence pp19, 20 and 23 Back
First Report from the Procedure Committee, Session 1996-97, Standing
Orders Revision, paragraph 15. See also Q67 Back
Evidence p35 Back
Evidence p36 Back
Evidence pp23 and 24 Back
First Report from the Joint Committee on Parliamentary Privilege,
Session 1998-99 , HC 214 Back
Joint Committee on Parliamentary Privilege, paragraph 3 Back
Joint Committee on Parliamentary Privilege, paragraph 129 Back
Joint Committee on Parliamentary Privilege, paragraphs 103 to
R v Chaytor and others, Supreme Court judgment UKSC 52,
paragraph 47 Back
R v Chaytor and others, Supreme Court judgment UKSC 52,
paragraph 61 Back
See Erskine May, 23rd Edition, p 128 and Joint
Committee on Parliamentary Privilege, paragraph 264 Back
For a fuller list, see Joint Committee on Parliamentary Privilege,
paragraph 264 Back
Joint Committee on Parliamentary Privilege, paragraph 315 Back
HC Deb, 25 May 2010, col 32 and www.number10.gov.uk Back
Evidence p21 Back
Evidence p30 Back
Evidence p31 Back
Evidence p33 Back
Evidence p18 Back
Qq59, 64 Back
Joint Committee on Parliamentary Privilege, paragraph 309; and
Erskine May, 23rd Edition, p163 Back
Evidence p27 and Q55. Article 6 of the ECHR protects the right
to a fair trial. Back
Joint Committee on Parliamentary Privilege, paragraphs 280 to
Evidence p34 Back
Q 56 Back
Joint Committee on Parliamentary Privilege, paragraphs 271 and
Joint Committee on Parliamentary Privilege, paragraph 324 Back
Joint Committee on Parliamentary Privilege, paragraph 273 Back