If you heard that the freedom of MPs to expose public crimes or private corruption was under assault, you would doubtless assume that the contest would be a mismatch. On past form, one corner should be filled by the government, the police, the security services and businesses determined to keep their deals confidential. Most of the media would support repression or be indifferent to its consequences. The opposition would be a threadbare army: the independent-minded MPs who are routinely dismissed as “the usual suspects”, when, regrettably, there’s nothing usual about them; dishevelled lefty hacks from the smaller-selling papers; and a handful of libertarian Telegraph journalists. Behind this unpromising force, steadying nerves and worrying the authorities with threats of judicial review, would be Liberty.
Liberty, formerly the National Council for Civil Liberties, had a heroic 1990s. The decade was dominated by a political elite that manipulated fears of crime and foreigners, as it sought, without great success, to persuade the voters that Westminster populists were on their side. Despite its pitiful financial resources, Liberty gave as good as it got from a cramped cellar office in a corner of south London that the slum-clearers had unaccountably spared.
Now, however, the order of battle has been reversed. The European Court of Human Rights will soon decide whether MPs can continue to speak without fear of the consequences. The vicious control freaks and overly potty-trained little Hitlers of new Labour are . . . well, they are defending MPs’ right to expose wrongdoing, including the new Labour government’s wrongdoing.
The case for forcing elected representatives to bite their tongues and keep their lips buttoned is being brought by Liberty.
Its behaviour is the best example to hand of an intractable liberal folly: the delusion that freedom can exist only when it is inspected by barristers, challenged in the High Court, defined by “impartial” judges and revised by the Court of Appeal. As ever, the best of intentions pave the road.
On 17 July 1996, Michael Stern, who was then the Tory MP for Bristol North-West, piled into one of his constituents. He told the Commons that he had received complaints about Louisa McNeil and her children from her neighbours for two years. There had been reports “of threats against other children; of fighting in the house, the garden and the street outside; of people coming and going 24 hours a day – in particular, a series of men late at night – of rubbish and stolen cars dumped nearby; of glass strewn in the road in the presence of Miss McNeil and regular visitors; of alleged drug activity; and of all the more common regular annoyances to neighbours that are associated with a house of this type”.
Stern is a white, middle-class male, and a Tory to boot. McNeil is a black, working-class woman. You don’t need to know the liberal left intimately to guess who Liberty would prefer to support.
McNeil replied that her neighbours’ allegations were inspired by racism and spite. She said she received death threats after she was denounced by Stern. Her housing association, which Stern criticised in the Commons for failing to act against a “neighbour from hell”, had found nothing to substantiate the accusations against her. The association officers told her that her family’s safety was at risk. She moved house.
Her side of the story wasn’t ignored. Even the Sun of 18 July 1996 wrote, in the second paragraph of a piece on Stern and McNeil: “Louisa, 24, angrily denied the claims, saying SHE was the victim of racial harassment. She fumed: ‘The MP has never met me. It’s lies.’ “
Liberty is bothered not by the press coverage, but by Stern’s freedom to speak without the possibility of rebuke. He could say what he wanted, because Article 9 of the 1689 Bill of Rights reads: “The freedom of speech, and debates on proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament.” Parliamentary privilege is not confined to the former colonies of the British empire: all European democracies have a version of Article 9.
At the very least, you might expect Liberty to be able to say that Stern was a proven liar whose outrageous denigration of an innocent woman nullified 300 years of free speech. But its breezy spokesman told me that the truth or falsity of Stern’s accusations was neither here nor there. He couldn’t say for certain if the MP had got all of his facts hopelessly wrong, but wasn’t over-bothered by that. What mattered was that there was no court or tribunal which might force Stern to admit he was mistaken and vindicate McNeil.
He was scarcely an advert for free-speaking when I asked who, in Liberty’s view, should police parliamentary debates. The spokesman mumbled for a time about a parliamentary committee or independent regulator without reaching a precise conclusion. On one point, however, he was clear. He denied categorically that lawyers for McDonald’s or the next Robert Maxwell would silence MPs with threats of ruinous libel actions if the Court of Human Rights upheld Liberty’s case.
It was a strange assertion. Liberty’s submission to the Strasbourg judges states that McNeil was a victim, arguing, “under Article 6 1 of the European Convention on Human Rights [right to a fair hearing], that, given the absolute nature of parliamentary privilege, she was denied access to a court to defend her reputation and that legal aid was not available for defamation proceedings”. In other words, libel is at the heart of Liberty’s case. It is maintaining that the immunity of MPs from the judgements of English libel courts is an abuse of the human rights of the citizen.
Other citizens, who are slightly higher up the class ladder than McNeil, are cheering on the liberals.
On 17 February 2000, Peter Hain, who was then the Foreign Office minister responsible for Africa, used parliamentary privilege to “name and shame” Maurice and David Zollman. The brothers run an Antwerp diamond trading business. Hain said they were breaking United Nations sanctions and funding the merciless civil war in Angola by selling diamonds supplied by Unita warlords.
The Zollmans say Hain defamed them. They say that Articles 6, 8 and 14 of the European Convention on Human Rights support their case that parliamentary privilege allowed their reputations to be abused. Liberty cites the same articles in defence of McNeil. The court questioned the Foreign Office about Hain’s speech in parliament last month. Freedom of speech in the Commons is facing its severest challenge since the 17th century.
A privilege is, by definition, unavailable to everyone. It therefore offends simplistic notions of equality before the law. But MPs are unlike everyone else. They are our elected representatives. They can, and occasionally are, the only people in public positions to whom abused citizens can turn when all other doors are shut in their faces. MPs’ freedom allows them to publicise scandals that others can’t or won’t touch.
Underlying Liberty’s authoritarian argument is the jolly belief that all is well with the law; that the benign courts must be the only institutions which arbitrate and adjudicate.
Those who try to nail down abuses of power aren’t as foolishly sentimental. The Labour MP Ann Clwyd used parliamentary privilege to present the Commons with the gruesome case histories of the patients of the cosmetic surgeon David Herbert. Clwyd described how women were left with bowel infections and gaping holes in their stomachs after his tummy tucks.
As a result of Clwyd’s intervention, Herbert was suspended. The dossier of his alleged failings had been brought to the MP by a BBC journalist who had spent months investigating Herbert. The BBC wouldn’t broadcast the accusations. Doctors have libel insurance, and the corporation didn’t dare risk an expensive case.
The publishing industry is more frightened still. Penguin fought, and won, a fantastically expensive libel action brought by the historian David Irving, who objected to being described as a Nazi sympathiser.
Mr Justice Gray concluded that David Irving shared the political beliefs of the “militant neo-Nazis”, and was “motivated by a desire to present events in a manner consistent with his own ideological beliefs even if that involved distortion and manipulation of historical evidence”.
Despite this conclusive condemnation, publishers still won’t touch books about Irving because he is also a bankrupt. Irving will sue anyone who takes him on. He will lose, but because he can’t pay publishers’ costs, they calculate that it’s cheaper and safer not to publish at all.
Tam Dalyell, the Father of the House of Commons, told me he was taking the threat from Liberty “very seriously”. Dalyell knows the importance of parliamentary privilege. He turned the Westland scandal into a near-fatal affair for Margaret Thatcher, when he claimed that government information officers were blackening Michael Heseltine’s name. He wouldn’t have dared make the accusation outside the Commons, because he wasn’t certain. If absolute privilege is abolished, “only very rich MPs will speak out”, he concluded.
Dalyell had used parliamentary privilege to commit what would otherwise have been flagrant breaches of the Official Secrets Act, which Liberty has an honourable record of campaigning against.
Louisa McNeil had had difficulties with her neighbours long before Stern intervened. Maybe she was right to say that she was traduced by a privileged man. You can sympathise with her, but still believe that the cure Liberty seeks is worse than the disease. Freedom includes the freedom to make mistakes.
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