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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Why Prince Charles and Princess Anne are both wrong on GM foods

The latest tiff between toffs gives plenty of food for thought.

I don’t have siblings, so I was weirdly curious as a kid about friends who did, especially when they argued (which was often). One thing I noticed was the importance of superlatives: of being the best child, the most right, and the first to have been wronged. And it turns out things are no different for the Royals.

You might think selective breeding would be a subject on which Prince Charles and Princess Anne would share common ground, but when it comes to genetically modified crops they have very different opinions.

According to Princess Anne, the UK should ditch its concerns about GM and give the technology the green light. In an interview to be broadcast on Radio 4’s Farming Today, she said would be keen to raise both modified crops and livestock on her own land.

“Most of us would argue we have been genetically modifying food since man started to be agrarian,” she said (rallying the old first-is-best argument to her cause). She also argued that the practice can help reduce the price of our food and improve the lives of animals - and “suspects” that there are not many downsides.

Unfortunately for Princess Anne, her Royal “us” does not include her brother Charles, who thinks that GM is The Worst.

In 2008, he warned that genetically engineered food “will be guaranteed to cause the biggest disaster environmentally of all time.”  Supporting such a path would risk handing control of our food-chain to giant corporations, he warned -  leading to “absolute disaster” and “unmentionable awfulness” and “the absolute destruction of everything”.

Normally such a spat could be written off as a toff-tiff. But with Brexit looming, a change to our present ban on growing GM crops commercially looks ever more likely.

In this light, the need to swap rhetoric for reason is urgent. And the most useful anti-GM argument might instead be that offered by the United Nations’ cold, hard data on crop yields.

Analysis by the New York Times shows that, in comparison to Europe, the United States and Canada have “gained no discernible advantages” from their use of GM (in terms of food per acre). Not only this, but herbicide use in the US has increased rather than fallen.

In sum: let's swap superlatives and speculation for sense.

India Bourke is an environment writer and editorial assistant at the New Statesman.