The name ‘Chris Pincher’ has become synonymous with Boris Johnson’s downfall, but it was the case of Owen Paterson that precipitated the unrest in the Conservative Party that ultimately led to the former Prime Minister’s resignation.
Owen Paterson stepped down as an MP in November 2021, following a report by the House of Commons Select Committee on Standards that found he had breached the MPs’ Code of Conduct by engaging in paid advocacy and recommended that he be suspended from the House for thirty sitting days. After initially whipping MPs in an attempt to support Mr Paterson and to avoid a possible by-election in North Shropshire, Boris Johnson eventually conceded that the parliamentary party was not with him. Mr Paterson resigned before MPs could vote on the sanction.
The European Court of Human Rights (‘ECtHR’) has dismissed a complaint by Mr Paterson (Patterson v UK App no. 23570 (ECtHR, 19 September 2024)) that the proceedings and/or the finding breached his rights under Article 8 of the Convention to respect for his private and family life.
BACKGROUND
In September 2019, The Guardian reported that Mr Paterson, the MP for North Shropshire and member of David Cameron’s Cabinet from 2010 to 2014, had lobbied Ministers and officials on behalf of two companies that paid him as a consultant.
The Parliamentary Standards Commissioner launched an investigation and concluded that Mr Paterson had breached the MPs’ Code of Conduct in four respects: engaging in paid advocacy, using parliamentary resources to support the paid lobbying work, failing to declare interests properly, and significantly damaging the reputation of the House of Commons and of MPs. The Commissioner’s report was considered by the House of Commons’ Committee on Standards, which also received written and oral evidence from Mr Paterson.
The Committee concurred with the Commissioner’s conclusions, finding that his actions were an “egregious case of paid advocacy.” It recommended the most serious sanction: thirty sitting days’ suspension from the House. If MPs had voted in favour of the sanction, Mr. Paterson could have faced a recall petition in his constituency, requiring only 10% of voters to sign to vacate the seat and trigger a by-election. Mr Paterson resigned as an MP in November 2021 before the House could vote on the sanction but MPs did approve the Committee’s report.
ARGUMENT
Mr Paterson alleged that the investigation was procedurally unfair and that the finding that he had breached the Code of Conduct had severely damaged his reputation and caused him significant personal and financial loss.
Article 9 of the Bill of Rights 1698 precludes parliamentary proceedings being ‘impeached or questioned in any court of place out of Parliament’, so Mr Paterson had no recourse to the domestic courts. Instead, he applied to the ECtHR, alleging that the proceedings and/or their outcome breached his rights under Article 8.
ARTICLE 8
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The UK’s primary submission was that Article 8 had no application on the basis that the case did not meet the high threshold of severity required, as per Denisov v Ukraine ([GC], no. 76639/11, 25 September 2018). In the alternative, it argued that even if Article 8 was engaged, the investigation and finding were within the wide margin of appreciation afforded to State legislatures to regulate their own affairs, citing Article 9 of the Bill of Rights and the constitutional principle of separation of powers. The UK also submitted that, in any case, the procedural obligations of Article 8 did not impose ‘fair trial’ duties on legislatures, but, rather, required basic fairness such that an individual affected was sufficiently involved to protect their interests, which had been upheld in Mr Paterson’s case.
Mr Paterson argued that the investigation had severely impacted his personal life and caused him serious financial, health and social consequences that met the threshold for Article 8. They included the loss of his career, his inability to obtain paid employment, and social isolation stemming from the accusations of corruption and sleaze, to the extent that he felt unable to attend any celebrations of the coronation of Kings Charles, out of fear of embarrassing the hosts. He also referred to the death of his wife, who took her own life during the investigation, which he believed contributed to her mental state.
With respect to Article 9, Mr Paterson argued that parliamentary immunity was confined to statements made by MPs made during parliamentary debates and did not apply to proceedings beyond the floor of the House such as the Commissioner’s investigation and Committee meetings; accordingly, the margin of appreciation was narrower than the UK contended. He also highlighted features of the investigation that he claimed were unfair: that the Commissioner had acted as investigator and first-instance decision-maker; that the Commissioner was subsequently present during the Committee’s decision-making process but the relevant minutes were not even disclosed to him; that a formal appeal process later introduced in July 2022 on the recommendation of former Lord Justice of Appeal, Sir Ernest Ryder, had not been available to him; and that his input was limited to answering questions on factual accuracy, as opposed to addressing the case against him once the Commissioner was inclined to reject his explanations and conclude that he had breached the Code.
JUDGMENT
The Court held that Article 8 could apply to a politician’s public duties. It also accepted that the findings made by the Commissioner and the Committee had had a detrimental effect on Mr Paterson’s relationships with others and on his reputation.
The Court “note[d]” [58] the effect that the investigation’s conclusions and associated allegations made against him in the media of corruption and sleaze had on his social and family. However, it was not persuaded that Mr Paterson had substantiated his claims that the investigation caused damage to his professional life and ensuing financial loss. Not only was there a lack of documentary evidence, but, more importantly, the investigation itself “was preceded – and prompted – by media reports about [his] conduct” [60] so that the allegations were already in the public domain.
The Court was “doubtful” [61] that Article 8 was engaged but, any in any event, deemed Mr Paterson’s complaints about any interference with such rights to be “manifestly ill-founded” [62]. If the investigation interfered with his Article 8 rights, it was in the pursuit of a legitimate aim – ensuring the integrity of MPs in public life, which is “intimately connected to maintaining the proper functioning of Parliament in a democracy” [63] – and there was a public interest in making the outcome of the investigation known.
The Court also rejected Mr Paterson’s contention that the investigation was at the fringes of parliamentary immunity and fell outside of the margin of appreciation. It held that national legislatures are better placed than international judges to assess and regulate their internal functions in order to maintain trust in the effectiveness of Parliament and democracy and that the UK had not exceeded the wide margin of appreciation in Mr Paterson’s case. He did not allege that the Commissioner or the Committee acted arbitrarily, in bad faith or in excess of their powers. The Court was also satisfied that adequate procedural safeguards against abuse were in place: Mr Paterson was involved in the process at every stage and had several opportunities to respond to questions put to him and to make representations on his behalf with legal advisers present and, further, had been provided with reasons by the Committee for its decision. Finally, by resigning before MPs could vote on the Committee’s report and recommendation, he “chose to forgo the opportunity to be heard by the ultimate decision-maker, being the House of Commons itself” [69].
COMMENT
The judgment provides a concise history of parliamentary immunity, from the Bill of Rights to Sir Ernest Ryder’s 2022 “Review of fairness and natural justice in the House’s standards system”. However, the Court came to the conclusion that Parliament played a marginal role in the consequences complained of, as media reports prompted, rather than followed, the Commissioner’s involvement and Mr Paterson withdrew from the process before MPs could make the final decision.
That said, amid the debate within the Conservative Party over the UK’s membership of the ECHR, it is notable that the Court stated, not once but twice, in a judgment about one of the party’s former MP’s challenge to Parliament that it considers national legislatures to be “better placed than the international judge” to restrict their members’ conduct and to ensure “the fundamental interest of ensuring their effective functioning”: [64] and [143].
Whilst the Court made no bones about the merits of Mr Paterson’s application, it took the opportunity to set out the approach to Article 8 in such cases. It confirmed case law that Article 8 analysis may require an assessment of a decision-making process, despite the lack of explicit procedural requirements in the provision: [53]. It also reiterated that employment related scenarios can engage Article 8 as a private life issue and that the role of a politician is sufficiently akin to professional occupation in this respect and underlined that the consequence-based approach set out in Denisov was correct.
Paula Kelly is a barrister at 1 Crown Office Row.
Neil Sheldon KC of 1 Crown Office Row represented the UK but was not involved in the writing of this blog post.
