Asking questions of Rebekah

What can and cannot be said.

Rebekah Brooks is expected to attend the DCMS Select Committee tomorrow, fresh from her arrest and lengthy questioning by the Metropolitan Police. As she sits there, there will be nothing which can stop her being asked any question by any MP on the committee, however prejudicial or incriminating the question is in its assumptions. There will also be nothing to stop any MP making any aside about her conduct, however defamatory or - indeed - inaccurate. She will just have to sit and take it. There is nothing legally she would be able to do to stop them.

More interesting is what she can say in reply. On one hand, there is the contention that whatever she says will be protected absolutely by privilege. She can say whatever she likes, and be safe from suit or prosecution in respect of those words. As with a great deal of our "constitutional law" the limits of such a supposed right are not exactly marked; but it is likely she can speak with legal safety should she really want to do so. Indeed, it may well be that she decides to answer the questions fully, presumably repeating anything and everything she has also said to the Metropolitan Police.

 

However, it may not be in her interests to say things which would otherwise be prejudicial to any defence which she may wish to use in the event of prosecution. She certainly may not want to incriminate herself. For, although there may be a formal barrier of privilege to prevent the use of those words as part of any prosecution or civil claim, any such words could well inform practical litigation decisions and she will be challenged to repeat those words outside of Parliament. Any attempt to rely on privilege will quickly become artificial.

That is why we should not be surprised if, at least for many questions, Rebekah Brooks does not assist parliamentarians with their enquiries. Like anyone arrested and bailed, she is entitled to due process. There is no reason why her general rights in this regard should be circumvented just because she has been summoned by a select committee. The issue would then be what Parliament could do with any refusal to answer certain questions? One hopes that they would do nothing, whatever the heady talk of contempt of Parliament and imprisoning her in the Tower. The rights and liberties of the subject are always important, even when that subject is Rebekah Brooks.

Addendum

According to reports, the lawyer for Rebekah Brooks has now said:

The position of Rebekah Brooks can be simply stated. She is not guilty of any criminal offence. The position of the Metropolitan Police is less easy to understand. Despite arresting her yesterday and conducting an interview process lasting 9 hours, they put no allegations to her, and showed her no documents connecting her with any crime. They will in due course have to give an account of their actions, and in particular their decision to arrest her, with the enormous reputational damage that this has involved.

In the meantime, Mrs Brooks has an appointment with the Culture, Media and Sport Select Committee tomorrow. She remains willing to attend and to answer questions. It is a matter for Parliament to decide what issues to put to her and whether her appointment should place at a later date.

Second addendum

The PR company Bell Pottinger has confirmed that Rebekah Brooks has instructed veteran white-collar defence lawyer Stephen Parkinson of Kingsley Napley. Parkinson's profile details his extensive work as a prosecutor and as a defence solicitor in many high-profile cases. The combination of Bell Pottinger and the highly regarded Kingsley Napley means that Brooks has a strong (and expensive) joint litigation and PR strategy in place.

Bell Pottinger also confirmed that the express reference to her suffering "enormous reputational damage" was deliberate. It remains to be seen if this admission has any adverse effect in limiting her ability to (threaten to) sue anyone other than the police for libel, as it may provide a so-called "Jameel" abuse of process defence (where a claim can be struck out because the claimed damage does not go substantially further than the reputation which can otherwise be shown or is admitted).

Third addendum

The House of Commons publishes a guide for those giving evidence to select committees (pdf). In this guide the House states that the absolute privilege exists in respect of evidence given to a select committee "provided that it is formally accepted as such by the Committee".

There is also this House of Commons paper (pdf) on what constitutes "contempt of Parliament". In essence, any refusal to answer questions would probably have to be referred to the Standards and Privileges committee (or the whole House) before "contempt of Parliament" proceedings could commence: if so, the DCMS select committee cannot compel answers there and then at the hearing.

 

David Allen Green is legal correspondent of the New Statesman.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Erdogan’s purge was too big and too organised to be a mere reaction to the failed coup

There is a specific word for the melancholy of Istanbul. The city is suffering a mighty bout of something like hüzün at the moment. 

Even at the worst of times Istanbul is a beautiful city, and the Bosphorus is a remarkable stretch of sea. Turks get very irritated if you call it a river. They are right. The Bosphorus has a life and energy that a river could never equal. Spend five minutes watching the Bosphorus and you can understand why Orhan Pamuk, Turkey’s Nobel laureate for literature, became fixated by it as he grew up, tracking the movements of the ocean-going vessels, the warships and the freighters as they steamed between Asia and Europe.

I went to an Ottoman palace on the Asian side of the Bosphorus, waiting to interview the former prime minister Ahmet Davu­toglu. He was pushed out of office two months ago by President Recep Tayyip Erdogan when he appeared to be too wedded to the clauses in the Turkish constitution which say that the prime minister is the head of government and the president is a ceremonial head of state. Erdogan was happy with that when he was prime minister. But now he’s president, he wants to change the constitution. If Erdogan can win the vote in parliament he will, in effect, be rubber-stamping the reality he has created since he became president. In the days since the attempted coup, no one has had any doubt about who is the power in the land.

 

City of melancholy

The view from the Ottoman palace was magnificent. Beneath a luscious, pine-shaded garden an oil tanker plied its way towards the Black Sea. Small ferries dodged across the sea lanes. It was not, I hasten to add, Davutoglu’s private residence. It had just been borrowed, for the backdrop. But it reminded a Turkish friend of something she had heard once from the AKP, Erdogan’s ruling party: that they would not rest until they were living in the apartments with balconies and gardens overlooking the Bosphorus that had always been the preserve of the secular elite they wanted to replace.

Pamuk also writes about hüzün, the melancholy that afflicts the citizens of Istanbul. It comes, he says, from the city’s history and its decline, the foghorns on the Bosphorus, from tumbledown walls that have been ruins since the fall of the Byzantine empire, unemployed men in tea houses, covered women waiting for buses that never come, pelting rain and dark evenings: the city’s whole fabric and all the lives within it. “My starting point,” Pamuk wrote, “was the emotion that a child might feel while looking through a steamy window.”

Istanbul is suffering a mighty bout of something like hüzün at the moment. In Pamuk’s work the citizens of Istanbul take a perverse pride in hüzün. No one in Istanbul, or elsewhere in Turkey, can draw comfort from what is happening now. Erdogan’s opponents wonder what kind of future they can have in his Turkey. I think I sensed it, too, in the triumphalist crowds of Erdogan supporters that have been gathering day after day since the coup was defeated.

 

Down with the generals

Erdogan’s opponents are not downcast because the coup failed; a big reason why it did was that it had no public support. Turks know way too much about the authoritarian ways of military rule to want it back. The melancholy is because Erdogan is using the coup to entrench himself even more deeply in power. The purge looks too far-reaching, too organised and too big to have been a quick reaction to the attempt on his power. Instead it seems to be a plan that was waiting to be used.

Turkey is a deeply unhappy country. It is hard to imagine now, but when the Arab uprisings happened in 2011 it seemed to be a model for the Middle East. It had elections and an economy that worked and grew. When I asked Davutoglu around that time whether there would be a new Ottoman sphere of influence for the 21st century, he smiled modestly, denied any such ambition and went on to explain that the 2011 uprisings were the true succession to the Ottoman empire. A century of European, and then American, domination was ending. It had been a false start in Middle Eastern history. Now it was back on track. The people of the region were deciding their futures, and perhaps Turkey would have a role, almost like a big brother.

Turkey’s position – straddling east and west, facing Europe and Asia – is the key to its history and its future. It could be, should be, a rock of stability in a desperately un­stable part of the world. But it isn’t, and that is a problem for all of us.

 

Contagion of war

The coup did not come out of a clear sky. Turkey was in deep crisis before the attempt was made. Part of the problem has come from Erdogan’s divisive policies. He has led the AKP to successive election victories since it first won in 2002. But the policies of his governments have not been inclusive. As long as his supporters are happy, the president seems unconcerned about the resentment and opposition he is generating on the other side of politics.

Perhaps that was inevitable. His mission, as a political Islamist, was to change the country, to end the power of secular elites, including the army, which had been dominant since Mustafa Kemal Atatürk created modern Turkey after the collapse of the Ottoman empire. And there is also the influence of chaos and war in the Middle East. Turkey has borders with Iraq and Syria, and is deeply involved in their wars. The borders do not stop the contagion of violence. Hundreds of people have died in the past year in bomb attacks in Turkish cities, some carried out by the jihadists of so-called Islamic State, and some sent by Kurdish separatists working under the PKK.

It is a horrible mix. Erdogan might be able to deal with it better if he had used the attempted coup to try to unite Turkey. All the parliamentary parties condemned it. But instead, he has turned the power of the state against his opponents. More rough times lie ahead.

Jeremy Bowen is the BBC’s Middle East editor. He tweets @bowenbbc

This article first appeared in the 28 July 2016 issue of the New Statesman, Summer Double Issue