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Crime of contempt of Parliament - June-14-12
Source: The Times - Law
This ancient offence has no place in a modern democracy - will the Serjeant at Arms perform a ceremonial arrest?
The ancient crime of contempt of Parliament may very soon result in contempt for Parliament, as MPs claim the right to jail Les Hinton, Colin Myler and Tom Crone for misleading a Commons committee about telephone hacking. The very notion that citizens can be tried and punished by politicians, rather than by judges and juries, offends against the separation of powers, Magna Carta and the European Convention, but is entrenched in our history: there is even a prison cell beneath Big Ben. It was last occupied by Charles Bradlaugh in 1880, but now it awaits the “Murdoch Three”.
The actual crime is vague: Erskine May [the guide to parliamentary practice] says it includes “any act or omission which has a tendency, directly or indirectly, to impede either House in the performance of its functions” or “to bring the House to odium, contempt or ridicule”.
Used against journalist critics it is obviously incompatible with the right to free speech, and MPs have not deployed it since the Suez crisis, when they convicted John Junor for attacking their petrol allowances. The power was invoked against The Times and The Economist in the 1970s for publishing leaks of draft parliamentary reports, but no action was taken against Alan Rusbridger in 1997 for publishing a leaked report from the privileges committee about the Tory MPs bribed by Mohamed Al Fayed.
The problem is not merely that politicians are incapable of acting as unbiased judges (as shown with BSkyB and Vince Cable and James Hunt): the “trial” procedures breach every rule of natural justice. Accused persons may be condemned unheard, or summoned for cross-examination without legal representation, and have no right to contest the evidence or to call witnesses in their defence. The “court” (Privileges committee) comprises 11 politicians. It sits in secret and reports its verdict to the House, which (without hearing the defendant) decides on punishment, after a debate, with MPs voting as judges in their own cause.
All this is a breach of Article 6 of the European Convention, but Article 6 (3) of the Human Rights Act exempts proceedings in Parliament. So in 2010 Lord Irvine of Lairg, chairing a Lords committee into The Sunday Times “cash for access” allegations, refused accused peers the right to have counsel or to cross-examine their accusers. This may be acceptable (although I doubt it) when either House exercises disciplinary functions over its own members, and when the punishment is merely suspension from the club. But it is absurd to think it an appropriate way to try anyone for a crime that carries an unlimited fine and a jail sentence.
Nonetheless, the unanimous recommendation of John Whittingdale’s select committee to refer the “Murdoch Three” to the privileges committee means that it must now be decided whether and how the miscreants should be punished. They deny the charge, so the referral throws down a gauntlet to Parliament. If no action is taken, it will be clear that select committees have no real power and their egregious demands that citizens come before them for televised inquisition can be safely ignored. If action is taken, however, it will certainly make Parliament look unfair and probably very silly. Will the Serjeant at Arms, in costume and with sword and mace, perform a ceremonial arrest? When MPs debate the sentence, what length will be recommended by Judge Dennis Skinner, Lady Justice Mensch and His Honour George Galloway?
The crime of contempt of Parliament has no place in a modern democracy. It should be abolished and can be replaced by an offence of giving false testimony to a parliamentary committee, prosecutable only by the DPP and triable by judge and jury. (The privilege enshrined in Section 9 of the 1689 Bill of Rights would to this extent have to be waived.) To be subjected to legal reprisals, witnesses would have to give evidence on oath (the “Murdoch Three” were not so required). The new legislation would stipulate the financial penalty and maximum jail term (eg, two years, as for other false statutory declarations or the seven-year maximum for perjury in court).
Our select committees work amateurishly compared with the US congressional committees, assisted by counsel and staffed with expert investigators. They can become instruments of oppression when individuals are defamed by MPs wanting their names in the papers: why don’t they at least offer a right of reply? MPs should stop holding secret hearings: the public is entitled to know what they are up to; and MPs are untrustworthy: when Margaret Hodge’s committee heard secret evidence last month about [welfare-to-work company] A4e, an MP promptly leaked it to the press.
The case of the “Murdoch Three” must be heard in a real court. Criminal laws cannot be retrospective, but if Parliament hastened to pass a new offence, the three could be recalled to give their answers again, on oath. If citizens are to face prosecution for misleading MPs, they should not be tried in a star chamber.
Geoffrey Robertson, QC, is co-author of Robertson & Nicol on Media Law
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