CASE OF A. v. THE UNITED KINGDOM
No violation of Art. 6-1 as regards parliamentary immunity;No violation of Art. 6-1 as regards lack of legal aid;No violation of Art. 8;No violation of Art. 14+6;No violation of Art. 13
Gaukur Jörundsson;Nicolas Bratza
11. The applicant is a United Kingdom national, born in 1971 and living in Bristol. She lives with her two children in a house owned by the local housing association, Solon Housing Association (SHA). 12. The SHA moved the applicant and her children to 50 Concorde Drive in 1994 following a report that she was suffering serious racial abuse at her then current address. 13. Concorde Drive is in the parliamentary constituency of Bristol NorthWest. On 17 July 1996, the member of Parliament (MP) for the Bristol North-West constituency, Mr Michael Stern, initiated a debate on the subject of municipal housing policy (and the SHA in particular) in the House of Commons. During the course of his speech, the MP referred specifically to the applicant several times, giving her name and address and referring to members of her family. He commented as follows: “The subject of anti-social behaviour by what newspapers frequently call 'neighbours from hell' has been a staple of social housing throughout the country for some time, and the government are, of course, in the process of taking steps to provide local authorities with the power to do something about such behaviour. Whether authorities such as Bristol will actually use the power is another matter. My reason for raising the subject of 50 Concorde Drive in my constituency and the behaviour of its shifting population is not just to draw attention to another example of neighbours from hell; it is also to note that housing practices by local authorities, which it appeared had been stamped out in the 1970s, are beginning to re-emerge in the voluntary housing movement. ... Solon Housing Association (South-West) Ltd purchased 50 Concorde Drive in my constituency in the early 1990s ... and in early 1994 it moved in as the new tenants [the applicant] and her two children, who are now aged three and six. Her brother, currently in prison, also gives 50 Concorde Drive as his permanent address. ... The Government's own Green Paper, 'Anti-Social Behaviour on Council Estates', published in April 1995, noted: 'Such behaviour manifests itself in many different ways and at varying levels of intensity. This can include vandalism, noise, verbal and physical abuse, threats of violence, racial harassment, damage to property, trespass, nuisance from dogs, car repairs on the street, joyriding, domestic violence, drugs and other criminal activities such as burglary.' Inevitably, the majority – if not all – of these activities have been forced on the neighbours of 50 Concorde Drive during the tenancy of that property and the garage further up the street that goes with it, by [the applicant], her children and their juvenile visitors, who seem strangely reluctant to attend school during normal hours, and even more adult visitors who come to the house at all times of the day and night, frequently gaining entry by unorthodox means such as the bathroom window. Indeed, it is fair to say that there have been times when occupation of the house by the visitors has been more frequent than that of [the applicant]. So far as the garages grouped further along Concorde Drive are concerned – one of the garages automatically comes with the tenancy of No. 50 – complaints consist of numerous youths hanging around, vandalising cars, climbing on and damaging the garage roofs, under the apparent leadership, or at least the spirited concurrence of the [applicant's] family, adult and children, which makes improvement of those garages by other owners a complete waste of time. More seriously, arson inside the garage belonging to No. 50, and the regular destruction of its doors, have led other legitimate users of the garage to park their vehicles elsewhere for safety reasons. But it is the conduct of [the applicant] and her circle which gives most cause for concern. Its impact on their immediate neighbours extends to perhaps a dozen houses on either side. Since the matter was first drawn to my attention in 1994, I have received 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 [the applicant] and regular visitors; of alleged drug activity; and of all the other common regular annoyances to neighbours that are associated with a house of this type.” 14. The applicant denies the truth of the majority of the allegations. The MP has never tried to communicate with her regarding the complaints made about her by her neighbours and has never attempted to verify the accuracy of his comments made in his speech either before or after the debate. Shortly before the debate, the MP issued a press release to several newspapers, including the Bristol-based Evening Post and the national Daily Express. The press release was subject to an embargo prohibiting disclosure until the precise time when the speech commenced. The contents of the press release were substantially the same as those of the MP's speech. The following day, both newspapers carried articles consisting of purported extracts of the speech, although these were based upon the press release. Both articles included photographs of the applicant and mentioned her name and address. The main headline in the Evening Post was: “MP Attacks 'Neighbours From Hell' ” In the Daily Express the headline was: “MP names nightmare neighbour” 15. The applicant was approached by journalists and television reporters asking for her response to the MP's allegations and her comments were summarised in each newspaper the same day, although they were not given as much prominence. 16. The applicant subsequently received hate mail addressed to her at 50 Concorde Drive. One letter stated that she should “be in houses with your own kind, not in amongst decent owners”. Another letter stated: “You silly black bitch, I am just writing to let you know that if you do not stop your black nigger wogs nuisance, I will personally sort you and your smelly jungle bunny kids out.” 17. The applicant was also stopped in the street, spat at and abused by strangers as “the neighbour from hell”. 18. On 7 August 1996 a report was prepared for the SHA by a group which monitors racial harassment and attacks. The report found that “it has now come to the point where [the applicant] has been put in considerable danger as a result of her name being released to the public”. The report recommended that the applicant be re-housed as a matter of urgency. She was re-housed in October 1996 and her children were obliged to change schools. 19. On 2 August 1996 the applicant wrote through her solicitors to the MP outlining her complaints and seeking his comments thereon. The letter was referred to the Office of the Parliamentary Speaker by the MP. The Speaker's representative replied to the MP on 12 August 1996 to the effect that the MP's remarks were protected by absolute parliamentary privilege: “Subject to the rules of order in debate, Members may state whatever they think fit in debate, however offensive it may be to the feelings or injurious to the character of individuals, and they are protected by this privilege from any action for libel, as well as from any other molestation.” This letter was copied and forwarded to the applicant's solicitors in September 1996. 20. Also on 2 August 1996, the applicant's solicitors wrote to the then Prime Minister, Mr John Major, asking that, as leader of the political party to which Mr Stern belonged, he investigate the applicant's complaints and take appropriate action. The Prime Minister's Office replied on 6 August 1996, stating that: “It is a matter for individual Members of Parliament to decide how they deal with their constituents and it is not for the Prime Minister to comment. There is a strict Parliamentary convention that Members of Parliament do not intervene in the affairs of other Members' constituencies and this applies equally to the Prime Minister.” 21. Words spoken by MPs in the course of debates in the House of Commons are protected by absolute privilege. This is provided by Article 9 of the Bill of Rights 1689, which states: “... the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in a court or place out of Parlyament.” 22. The effect of this privilege was described by Lord Chief Justice Cockburn in Ex parte Watson (1869) Queen's Bench Reports 573 at 576: “It is clear that statements made by Members of either House of Parliament in their places in the House, though they might be untrue to their knowledge, could not be made the foundation of civil or criminal proceedings, however injurious they might be to the interest of a third party.” 23. Statements made by MPs outside the Houses of Parliament are subject to the ordinary laws of defamation and breach of confidence, save where they are protected by qualified privilege. 24. The question whether or not qualified privilege applies to statements made in any given political context turns upon the public interest. In Reynolds v. Times Newspapers Ltd [2001] 2 Appeal Cases 127, which concerned allegations made in the British press about an Irish political crisis in 1994, Lord Nicholls of Birkenhead stated in the House of Lords, at page 204: Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only. 1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. 2. The nature of the information, and the extent to which the subject matter is a matter of public concern. 3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. 4. The steps taken to verify the information. 5. The status of the information. The allegations may have already been the subject of an investigation which commands respect. 6. The urgency of the matter. News is often a perishable commodity. 7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. 8. Whether the article contained the gist of the plaintiff's side of the story. 9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. 10. The circumstances of the publication, including the timing.” 25. Press coverage, to the extent that it fairly and accurately reports parliamentary debates, is generally protected by a form of qualified privilege which is lost only if the publisher has acted “maliciously”. “Malice”, for this purpose, is established where the report concerned is published for improper motives or with “reckless indifference” to the truth. A failure to make proper enquiries is not sufficient in itself to establish malice, but it may be evidence from which malice (in the sense of reckless indifference to the truth) can reasonably be inferred. 26. MPs can waive the absolute immunity which they enjoy in Parliament as a result of section 13 of the Defamation Act 1996, which provides: “(1) Where the conduct of a person in or in relation to proceedings in Parliament is in issue in defamation proceedings, he may waive for the purposes of those proceedings, so far as concerns him, the protection of any enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place out of Parliament. (2) Where a person waives that protection – (a) any such enactment or rule of law shall not apply to prevent evidence being given, questions being asked or statements, submissions, comments or findings being made about his conduct, and (b) none of those things shall be regarded as infringing the privilege of either House of Parliament. (3) The waiver by one person of that protection does not affect its operation in relation to another person who has not waived it. (4) Nothing in this section affects any enactment or rule of law so far as it protects a person (including a person who has waived the protection referred to above) from legal liability for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament.” 27. General control is exercised over debates by the Speaker of each House of Parliament. Each House has its own mechanisms for disciplining members who deliberately make false statements in the course of debates. Deliberately misleading statements are punishable by Parliament as a contempt. Alternatively, as the Parliamentary Select Committee on Procedure (1988-89) has observed: “... there already exists a wide range of avenues which can be pursued by an aggrieved person who wishes to correct or rebut remarks made about him in the House. He can approach his Member of Parliament with a view to his tabling an Early Day Motion, or an amendment where appropriate; there may be cases which can be raised through Questions if some ministerial responsibility can be established; he can petition the House, through a Member; and he can approach directly the Member who made the allegations in the hope of persuading him that they are unfounded and that a retraction would be justified. We believe that in these circumstances, the House would not expect a rigid adherence to the convention that one Member does not take up a case brought by the constituent of another, particularly if the latter was the source of the statement complained of, and so long as the courtesies of proper notification were observed.” 28. Under Schedule 2, Part II of the Legal Aid Act 1988, “[p]roceedings wholly or partly in respect of defamation” are excepted from the scope of the civil legal aid scheme. 29. “Green Form” assistance is available to potential litigants with insufficient means in order to allow them to receive two hours' free legal advice from a solicitor in cases of alleged defamation. The time can be extended upon application. 30. Under section 58 of the Courts and Legal Services Act 1990, solicitors may enter into conditional fee agreements in respect of any type of proceedings specified in an Order made by the Lord Chancellor. A conditional fee agreement is defined under that section as an agreement in writing between a solicitor and his client which provides that the solicitor's fees and expenses, or any part of them, are to be payable only in specified circumstances. The Conditional Fee Agreements Order 1998 (Statutory Instrument 1860 of 1998) permitted conditional fee agreements in relation to “all proceedings”. The Order entered into force on 30 July 1998. A conditional fee agreement cannot prevent an unsuccessful litigant from being potentially liable to pay all or part of his opponent's costs in connection with the proceedings. 31. The limitation period applicable to defamation proceedings in respect of statements made in July 1996 was three years pursuant to section 4A of the Limitation Act 1980, as inserted by section 57(2) of the Administration of Justice Act 1985. 32. A joint committee of both Houses of Parliament was set up in July 1997 and tasked with reviewing the law of parliamentary privilege. The committee received written and oral evidence from a wide variety of sources from within the United Kingdom and abroad and held fourteen sessions of evidence in public. Its report was published in March 1999. Chapter 2 sets out its conclusions on parliamentary immunity: “38. The immunity is wide. Statements made in Parliament may not even be used to support a cause of action arising out of Parliament, as where a plaintiff suing a member for an alleged libel on television was not permitted to rely on statements made by the member in the House of Commons as proof of malice. The immunity is also absolute: it is not excluded by the presence of malice or fraudulent purpose. Article 9 protects the member who knows what he is saying is untrue as much as the member who acts honestly and responsibly. ... In more precise legal language, it protects a person from legal liability for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament. 39. A comparable principle exists in court proceedings. Statements made by a judge or advocate or witness in the course of court proceedings enjoy absolute privilege at common law against claims for defamation. The rationale in the two cases is the same. The public interest in the freedom of speech in the proceedings, whether parliamentary or judicial, is of a high order. It is not to be imperilled by the prospect of subsequent inquiry into the state of mind of those who participate in the proceedings even though the price is that a person may be defamed unjustly and left without a remedy. 40. It follows that we do not agree with those who have suggested that members of Parliament do not need any greater protection against civil actions than the qualified privilege enjoyed by members of elected bodies in local government. Unlike members of Parliament, local councillors are liable in defamation if they speak maliciously. We consider it of utmost importance that there should be a national public forum where all manner of persons, irrespective of their power or wealth, can be criticised. Members should not be exposed to the risk of being brought before the courts to defend what they said in Parliament. Abuse of parliamentary freedom of speech is a matter for internal self-regulation by Parliament, not a matter for investigation and regulation by the courts. The legal immunity principle is as important today as ever. The courts have a duty not to erode this essential constitutional principle.” 33. Article 40 of the Statute of the Council of Europe provides: “(a) The Council of Europe, representatives of members and the Secretariat shall enjoy in the territories of its members such privileges and immunities as are reasonably necessary for the fulfilment of their functions. These immunities shall include immunity for all representatives to the Parliamentary Assembly from arrest and all legal proceedings in the territories of all members, in respect of words spoken and votes cast in the debates of the Assembly or its committees or commissions. (b) The members undertake as soon as possible to enter into agreement for the purpose of fulfilling the provisions of paragraph (a) above. For this purpose the Committee of Ministers shall recommend to the governments of members the acceptance of an agreement defining the privileges and immunities to be granted in the territories of all members. In addition, a special agreement shall be concluded with the Government of the French Republic defining the privileges and immunities which the Council shall enjoy at its seat.” 34. In pursuance of paragraph (b) above, the member States, on 2 September 1949, entered into the General Agreement on Privileges and Immunities of the Council of Europe. This provides, in its relevant parts, as follows: “Article 14 Representatives to the Parliamentary Assembly and their substitutes shall be immune from all official interrogation and from arrest and from all legal proceedings in respect of words spoken or votes cast by them in the exercise of their functions. Article 15 During the sessions of the Parliamentary Assembly, the Representatives to the Assembly and their substitutes, whether they be members of Parliament or not, shall enjoy: (a) on their national territory, the immunities accorded in those countries to members of Parliament; (b) on the territory of all other member States, exemption from arrest and prosecution. ...” 35. Article 5 of the Protocol to the General Agreement on Privileges and Immunities of the Council of Europe provides: “Privileges, immunities and facilities are accorded to the representatives of members not for the personal benefit of the individuals concerned, but in order to safeguard the independent exercise of their functions in connection with the Council of Europe. Consequently, a member has not only the right but the duty to waive the immunity of its representative in any case where, in the opinion of the member, the immunity would impede the course of justice and it can be waived without prejudice to the purpose for which the immunity is accorded.” 36. Article 9 of the Protocol on the Privileges and Immunities of the European Communities, adopted in accordance with Article 28 of the Treaty establishing a Single Council and a Single Commission of the European Communities, provides: “Members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties.” 37. Under Article 57 § 1 of the Federal Constitutional Law members of the Nationalrat (the lower house of Parliament) may never be held liable for votes cast in the exercise of their functions or on the ground of oral or written statements made in the course of their functions – so-called “professional immunity”. In these matters, members enjoy immunity from criminal, civil and administrative proceedings. The President however may require a member to keep to the subject or call the member to order if he/she violates the decency and dignity of the House or makes defamatory statements (section 102 of the Standing Orders Act). 38. Under Article 57 § 3, criminal or civil proceedings against an MP may be taken without the consent of the Nationalrat only where they are “manifestly not connected with the political activity of the member in question” – so-called “non-professional immunity”. MPs may therefore be subject to civil proceedings, the issue of whether the matter has manifestly no connection with their duties being determined by the prosecuting authorities. Where the authority considers that that connection is manifest or unclear, it must seek the consent of the Nationalrat. Where the MP concerned or one-third of the members of the Immunity Committee require it, consent must also be asked of the Nationalrat. According to the prevailing view, this level of immunity merely prevents legal action for a limited period of time, proceedings becoming possible once the MP loses his/her immunity status. 39. The Austrian Government emphasised that these provisions had strong historical roots in the national legal system, serving to guarantee the protection of MPs in their political activity, in particular their freedom to vote and state their views. 40. Articles 58 and 59 of the Belgian Constitution prohibit proceedings against a member of either Federal Chamber of Parliament concerning the expression of opinion or votes cast. Save in the case of flagrant délit, no member of a Chamber may be summoned before a court or arrested during a parliamentary session unless the Chamber has given consent. This immunity, even against acts infringing the rights of citizens, is regarded in domestic law and practice as an essential guarantee for the functioning of the legislature and its absolute nature as essential to the efficacy of that guarantee. Private rights have to be regarded as ceding to the overriding public interest. 41. The Netherlands Government drew attention to Article 71 of the Netherlands Constitution, which confers upon members of the Senate and House of Representatives of the States General an immunity from every category of legal proceedings. 42. They pointed out that the right to parliamentary immunity in the Netherlands is not absolute. The Rules of Procedure of both the Senate and the House of Representatives cover cases in which an MP abuses the protection afforded by Article 71. The President in each Chamber may admonish any member who violates the Rules of Procedure and then offer the member concerned a chance to retract the offending remark. If the member refuses to make a retraction, or persists in violating the Rules of Procedure, the President may forbid him or her from speaking further or from attending the rest of the sitting or further sittings the same day. Similar immunities and disciplinary procedures apply at the provincial and municipal level. 43. The Netherlands Government submitted that parliamentary immunity is indispensable to the operation of democracy and that to give the judiciary authority over what MPs say in their deliberations would represent an unacceptable infringement of the separation of powers. 44. According to section 30(1) of the Constitution (1999), an MP shall not be prevented from carrying out his or her duties as a representative. Section 30(2) provides that an MP cannot be charged in a court of law or be deprived of liberty owing to opinions expressed by the representative in Parliament or owing to conduct in the consideration of a matter, unless Parliament gives consent by a majority of five-sixths of the votes cast. The provisions concerning parliamentary privilege and immunities have a long tradition in the work of Parliament, dating back to 1723. The only restriction on the exercise of the freedom of expression of a representative is the requirement in section 31(2) that a representative conduct himself or herself with decorum and not act offensively towards another person. If a representative breaches this condition, the Speaker may issue a warning or prohibit the representative from continuing to talk. Parliament may caution a representative who has repeatedly breached the order or suspend him or her for a maximum of two weeks. 45. A waiver of immunity may be requested by any person having the right to prosecute or to request prosecution. The Speaker examines whether the party has such a right and whether the intended prosecution concerns the MP's official actions. Parliament decides on such a request in ordinary session and the decisive question is whether the intended prosecution is of such a nature that there is a public or private interest to refer the matter to a court of law. In most cases, Parliament has deemed such requests manifestly ill-founded and rejected them. In no case based on alleged damage to another person's reputation or allegedly incorrect information given by an MP has a prosecution been authorised. 46. The Finnish Government considered that freedom of speech and the general freedom to act were essential for the performance of the duties of an MP. 47. The provisions in the French system which protect the representatives of the people in the performance of their duties date back to 1789, deriving from respect for the expression of the will of the people and the necessity in a democratic State for elected representatives to exercise their mandate freely without fear of legal action or interference from either the executive or the judiciary. The immunity bestowed is absolute in that it covers all acts carried out by MPs in the exercise of their functions regarding criminal and civil liability and permanent since it continues after expiry of their mandates. The immunity is not concerned with the private interests of the MP but with the function that he or she exercises. Thus, it cannot be waived by an individual MP. 48. However, the immunity conferred is strictly interpreted and does not extend to acts outside the exercise of the MP's mandate, including speech in a private capacity within the Assembly or statements in press articles even where these merely repeat statements made during an Assembly debate. Parliamentary immunity carries with it a requirement of discretion (devoir de réserve) and unacceptable forms of expression may be subject to internal admonition. 49. The Irish Government submitted that parliamentary immunity has developed throughout the world not as a constraint upon the rights of the citizen, but as a fundamental liberty. They argued that a cursory consideration of the history of the principle, its widespread domestic and international constitutional entrenchment and the case-law of the Court all suggest that parliamentary immunity is protected by the Convention. They supported this argument by reference to the preamble to the Convention. 50. The Irish Government pointed to, inter alia, Articles 15.10 and 15.13 of the 1937 Constitution of Ireland, which provide: “[15.10] Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate ... [15.13] The Members of each House of the Oireachtas [Parliament] ... shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself.” 51. Article 40.3.2 of the Constitution expressly recognises, and imposes upon the State, an obligation to defend and vindicate the citizen's right to his or her good name. However, the Irish Government indicated that there is no absolute right to reputation or protection from defamatory utterances under Irish law. 52. They drew attention also to the privileges and immunities enjoyed by representatives to the Parliamentary Assembly of the Council of Europe and members of the European Parliament (see paragraphs 33-36 above). They submitted that it was difficult to see how such immunities could be consistent with the Convention if the conferring by individual States of similar immunities in respect of their own Parliaments itself violated the Convention. 53. The Irish Government argued that the importance of the legitimate objectives pursued by parliamentary immunity was difficult to overstate and that it was for the national authorities to seek to balance the right of individual citizens to a good name with the right of free parliamentary expression. In reviewing the proportionality of the balance struck, they said that the Court must have regard to the fact that States were in principle better placed than an international court to evaluate local needs and conditions. 54. The Italian Government pointed out that parliamentary privilege is recognised by a large number of democratic countries across Europe and the rest of the world, including Italy, together with international bodies such as the Council of Europe and the European Union. They submitted that such a privilege is a fundamental aspect of the separation of powers and the rule of law, both of which are political traditions upon which the Convention and the Council of Europe were founded. 55. They stated that, notwithstanding a recent revision in Italy of the rules of parliamentary privileges and immunities, the protection of free speech in Parliament against interference by the courts has never been questioned there and continues to be considered essential to parliamentary government. In the event of any dispute between Parliament and the judiciary as to the application of a privilege, it is a “neutral” authority, in the form of the Italian Constitutional Court, which has the final decision. That court is made up of fifteen judges, five of whom are appointed by Parliament, five by the supreme courts and five by the President of the Republic. 56. The Italian Government submitted that parliamentary privilege pursues its legitimate aim in a proportionate manner, particularly since its scope is limited to parliamentary activity. They argued that MPs would not be able to speak their mind freely in Parliament in the absence of an absolute immunity. 57. There is no general provision granting members of Parliament (Storting) immunity from judicial processes. However, Article 66 of the Constitution confers immunity in two limited situations. Members cannot be arrested on the way to or from Parliament (unless apprehended in “public crimes”) and cannot be called to account outside the meetings of Parliament for opinions expressed there. This immunity comprises both criminal and civil liability, and extends even to speech where it is alleged that the member has intentionally expressed untruths or where the member has expressed himself or herself on a subject unconnected with the issue under debate. An individual member cannot waive the immunity. The absolute nature of the immunity is regarded as necessary to prevent undermining the general purpose of the provision, which is to guarantee the unfettered exchange of information and ideas in Parliament, being considered indispensable in the Norwegian democratic system. 58. However, a member may be held accountable within Parliament, improper or insulting behaviour being prohibited and subject to the potential sanction of a warning from the President or exclusion by Parliament from the right to speak or participate in the proceedings for the rest of the day.