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.


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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Labour must reclaim English patriotism if we are to beat Ukip and the Tories

We can't talk about the future of our country unless we can discuss the past. 

I was a parliamentary candidate for Thurrock, but the place which I currently call home is Hackney, London. This distinction is worth explaining. The questions of Labour and Englishness – what exactly is the English problem that we’re trying to solve, why do we need a progressive patriotism, does it already exist, if not why not and if we had one what would it look like? – are, above all, questions of identity and place. We need to build a patriotism that includes and resonates with residents of both Hackney and Thurrock. Currently they are very far apart. 

I’m the little girl who sat on her dad’s shoulders to wave a flag at Princess Anne’s first wedding. And I was also, like Sadiq Khan, waving a flag at the Silver Jubilee in 1977. I’m an ex-Catholic, I’m a Londoner, I’m English and I’m a woman, and all of those identities are important although not necessarily equally so and not necessarily all of the time.

But I’m also a member of the Labour party, not only as a candidate, but now as an activist in Hackney. And that is where I see the difference very strongly between Hackney and what I experienced in Thurrock. 

Thurrock was Ukip ground zero last year - 12,000 people voted for Ukip in a general election for the first time, on top of the 3,500 that had voted for them before in 2010. Most of those 12,000 people had either not voted before, or had voted Labour. 

This isn’t just about being in two different places. Sometimes it feels like more than being in two different countries, or even like being on two different planets. The reality is that large swathes of Labour’s members and supporters don’t identify as patriotic, fundamentally because patriotism has been seized and colonised by the right. We need to understand that, by allowing them to seize it, we are losing an opportunity to be able to reclaim our past. 

We do not have any legitimacy to talk about the future of our country unless we can talk about our past in a better way. We have tried but our efforts have been half-hearted. Take Ed Miliband's call for One Nation Labour, which ended up amounting to a washed-out Union Jack as a visual for our brand. It could have been so much better – an opportunity for an intellectual rebranding and a seizure of Conservative territory for our own ends. Ultimately One Nation Labour was a slogan and not a project. 

There is a section of the left which has a distinct discomfort with the idea of pride in country. It has swallowed the right-wing myth that England’s successes have all been Conservative ones. This is a lie, but one that has spread very effectively. The left’s willingness to swallow it means that we are still living in a Thatcherite paradigm. It is no wonder progressives revolt at the idea of patriotism, when the right’s ideas of duty and authority quash our ideas of ambitions for equality, opportunity for all and challenging injustice. But we risk denying our successes by allowing the right to define Englishness. It’s England that helped establish the principle of the right to vote, the rule of law, equal suffrage, and the fight against racism. 

If Englishness is going to mean anything in modern England, it needs to be as important for those who feel that perhaps they aren’t English as it is for those who feel that they definitely are. And a place must be reserved for those who, though technically English, don’t see their own story within the Conservative myth of Englishness. 

Although this reclaiming is electorally essential, it is not an electoral gimmick. It is fundamental to who we are. Even if we didn’t need it to win, I would be arguing for it.

We need to make sure that progressive patriotism reclaims the visual language that the Conservatives use to dress up their regressive patriotism. Women need to be as much in the pantheon of the radicals as part of the visual identity of Englishness. Women tend to either be there by birth or by marriage, or we are abstract manifestations of ideals like "justice" or "truth" – as seen on city halls and civic buildings across the country. But English women need to be real, rather than just ideal. Englishness does need to be focused on place and connection, and it should include Mary Wollstonecraft and Sylvia Pankhurst as well as Wat Tyler and Thomas Paine. 

We can’t pretend that we’re always right. The most patriotic thing you can do is to admit sometimes that you’re wrong, so that your country can be better. I love my country, for all its faults. But I do not live with them. I try to make my country better. That is progressive patriotism. And I know all of us who want to be part of this can be part of it. 

This article is based on Polly’s contribution to Who Speaks to England? Labour’s English challenge, a new book published today by the Fabian Society and the Centre for English Identity and Politics at the University of Winchester.