Hoon v. United Kingdom, 13 November 2014, ECtHR, read judgment
Most people’s political memories are short, but we may recall Geoff Hoon’s exquisite discomfiture when he was duped by a journalist, and then criticised by a Parliamentary Committee for his conduct in trying to drum up work. Still piqued, he complained of his treatment to Strasbourg, but, as we shall see, to no avail.
In February 2010, Hoon was an MP and a former Secretary of State for Defence. He had also taken up a voluntary position as one of twelve special advisors to the Secretary-General of NATO. He then announced he would not be contesting the May 2010 elections. He was contacted by Claire Webster on behalf of “Anderson Perry Associates”, an organisation that purported to be a “US communications company”. The company was looking to hire consultants who had an intimate and expert knowledge of government affairs.
Hoon was indeed interested.
So he met Ms Webster, who said her company wanted to offer “bespoke consultancy” to its clients, including “defence clients”. His response, in the context of an MoD Defence Review, was that
one of the challenges….which I’m really looking forward to is sort of translating my knowledge and contacts about the sort of international scene into something that, bluntly, makes money.
Cue my pic, a still from the interview. Ms Webster then asked Hoon how easy it would be, after the election, to get a steer on where defence policy is going? Hoon said he knew
some people on the team in the MOD who are working on this, because they brief me about this… So … some of the people I see are doing both, they’re both advising me as to what the Government position is but also working separately on the … defence review.
Hoon also talked about briefing a private equity fund about the relationship between NATO and the National Defence Policy,
Ms Webster was an undercover reporter working for The Sunday Times newspaper and C4’s programme “Dispatches”. Extracts from the recorded interview were subsequently published in The Sunday Times and broadcast as part of “Dispatches” on 22 March 2010 under the uncompromising title “Politicians for Hire”.
The parliamentary proceedings
The Parliamentary Commissioner for Standards received and investigated a formal complaint about Hoon under the Code of Conduct for Members of Parliament. As part of this, he got Hoon’s side of the story. The Commissioner found two breaches:
(1) By offering to brief the fictitious company’s clients about the Defence Review, Hoon gave the impression that he would draw on what he had learnt in his meeting with officials who were working on the review.
(2) By suggesting that he could draw on his access to information about the NATO defence review and the Defence Review for the benefit of the private equity fund, he gave the impression that he was offering an inside track on defence strategy to the fund.
Both were breaches of the Code because they brought the House of Commons generally into disrepute.
The Standards and Privileges Committee of the HoC then considered the case. Hoon gave written and oral evidence. The Committee agreed with the Commissioner. It rejected Hoon’s argument that the Code did not apply because the conversation concerned his future after leaving the Commons. On the contrary, Hoon was an MP when he attended the meeting, and talked about information received whilst he was an MP. The Committee acknowledged that the principal sanction would be the damage to reputation which an adverse finding of the Commissioner and the Committee’s report would inevitably have.
Hoon brought no domestic proceedings (for reasons which will emerge), going straight to Strasbourg. He said that there were a number of violations of Article 6(1) of the Convention – access to Court – in respect of the decisions of the Commissioner, Committee and House of Commons. He complained about the denial of access to a court to challenge the legality of those proceeding. The House of Commons had failed to respect his right to respect for private life under Article 8. His conversation with the reporter was private and related to his future employment as a private citizen. He also complained under Article 13 that there was no remedy under English law.
Strasbourg gave him short shrift, declaring all these claims inadmissible.
Perhaps the most interesting element is the Article 6 claim. Part of his complaint was that because of Article 9 of the Bill of Rights 1689 there was no opportunity under English law to challenge in court the legality of the findings of the parliamentary investigation. Article 9 reads
That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.
The ECtHR decided that Article 6(1) was not engaged. There needed to be a “dispute”, relating to “rights and obligations” which, arguably at least, can be said to be recognised under domestic law. Lastly these “rights and obligations” must be “civil” ones within the meaning of the Convention.
Perhaps counter-intuitively, the right to stand for election and to keep one’s seat is a political right and not a “civil” one within the meaning of Article 6(1) (see e.g. Estrosi v. France, no. 24359/94, about a candidate’s obligation to limit his election expenditure). So disputes relating to the arrangements for the exercise of a parliamentary seat lie outside its scope.
Similarly, concluded the Court, the parliamentary proceedings in question about the Code of Conduct did not attract the application of Article 6(1); they did not determine, or give rise to, a dispute as to the applicant’s “civil” rights. Not much reasoning here, but read on, and the policy justification will emerge in the context of Article 8.
A person’s reputation, even if criticised in a public debate, forms part of his or her personal identity and psychological integrity and therefore also falls within the scope of his or her “private life” (See e.g. Axel Springer AG v. Germany, no. 39954/08).
So it was not too difficult for the Court to conclude that the widely publicised decisions of the Commissioner and the Committee may be taken as having constituted an interference with his right to respect for his private life and, in particular, his right to respect for reputation.
But the parliamentary investigation proceedings followed set procedures and were in “accordance with the law” under Article 8(2). Parliamentary immunity from suit pursues the legitimate aims of protecting free speech in Parliament and maintaining the separation of powers between the legislative and the judiciary. There was a legitimate public interest for the public in knowing the outcome of the Parliamentary investigation into a complaint about the conduct of an MP. And the immunity conferred was not disproportionate. Further, the broadcast had already done its damage to his reputation. And, said the Court, there was
an avenue of recourse open to the applicant in the form of a legal action against the newspaper in question and the television company. Consequently, the applicant was not entirely without means of redress.
Once the Article 6 and 8 claims were found to be unarguable, then Article 13 was not engaged.
All perfectly sensible stuff. There is a lot of public interest in the ready ability of MPs and former Prime Ministers to bob up sharpish after leaving office and make quite a lot of money out of their expertise. A fine line has to be drawn as to whether this is or is not an abuse of their previous position. But Hoon has to be judged on what he said, not by reference to the fact that it was a deceptive piece of journalism that elicited it. As it happens, he seems to have been treated with conspicuous fairness in the parliamentary investigations, so one can hardly feel sorry for him that those were immune because of the application of the Bill of Rights.
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