On 1 August 2020 we had the parliamentary revelation that a sitting MP had been arrested by police on suspicion of rape, sexual assault and controlling and coercive behaviour. All offences were alleged to have taken between July 2019 and January 2020 against the MP’s former staffer.
Police confirmed the suspect was a male Tory in his 50s, and a former minister. Subject to police guidance, the name of the man was not revealed. This is because he has not been charged and is still under investigation, with a police bail date now extended until early November 2020.
A man suspected of a serious sexual offence therefore remains a serving MP. He has not had the Tory whip removed or been sanctioned at all, (apparently) for fear that this would identify him. Indeed, his anonymity has been carefully guarded by all sides of the House. Is this a proper observance of the right to pre-charge anonymity, or can we detect a whiff of hypocrisy?
Parliamentary privilege, which by Article 9 of the Bill of Rights 1689 guarantees that “the freedom of speech and debates of proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament”, has long allowed members of Parliament, be they in the Commons or the Lords, to name criminal suspects in these situations.
Both peer and MPs have on occasion exploited this privilege, even identifying individuals who were protected by court injunctions:-
In 2011, then Liberal Democrat MP John Hemming named Ryan Giggs as the footballer who secured an anonymised injunction to prevent publication of allegations he had an affair with a former reality TV star.
Also in 2011, Mr Hemming revealed that the banker Sir (as he then was) Fred Goodwin had obtained a super-injunction protecting his identity in relation to an alleged extra-marital affair. The Liberal Democrat peer Lord Stoneham poured oil on the fire adding “How can it be right for a super-injunction to hide the alleged relationship between Sir Fred Goodwin and a senior colleague?” he asked. “If true it would be a serious breach of corporate governance and not even the Financial Services Authority would know about it.”
In October 2014, Labour MP Jimmy Hood used parliamentary privilege to make serious accusations against Sir Leon Brittan (both have since passed away). Mr Hood said “By the way, the current expose of Sir Leon Brittan, the then home secretary, with accusations of improper conduct with children will not come as a surprise to striking miners of 1984”. Sir Leon was posthumously cleared of any wrongdoing once it was finally established these allegations were among the prolific lies of Carl Beech.
In November 2018, Labour peer Lord Hain used Parliamentary privilege to name Sir Philip Green as the ‘anonymous businessman’ who had used Non-Disclosure Agreements in settling numerous claims of bullying and sexual harassment with five complainants. This was despite the fact the High Court had maintained the injunction preventing publication of Sir Philip’s name and also that two of the five complainants supported this. We wrote about this matter at the time.
The past decade therefore shows that UK politicians, in both houses, have been prepared to use Parliamentary privilege even when it:-
- Breaches civil court orders with impunity,
- Reveals personal details such as extra-marital affairs of high profile individuals, and
- Names a suspect in a serious criminal investigation, where the allegation turned out to be provably false.
Fast forward to the present day: The complainant of ‘Former Minister X’ has apparently been lobbying for his identification by urging MPs and peers to use parliamentary privilege to put her his name into the public domain. If this is true, she is doing so despite the strong chance it will result in her own identification.
However, this led to an unprecedented response last week, when the Speaker of the House stepped in to urge MPs not to do so. Sir Lindsay Hoyle warned MPs that “while the investigation is ongoing, I believe that it would be wholly inappropriate for any further reference to be made to this matter in the House, including an attempt to name the member concerned.”
Indeed, back in February 2016, the cross-party Procedure Committee voted to end the tradition of the automatic naming of any MP who had been arrested. Its Chairman at the time, Tory MP Charles Walker said that MPs “should have the same rights to privacy as any other citizen, and in future their names should not be put in the public domain if they were arrested, unless this was directly connected to their role as an MP”. It seems Mr Walker had not considered the irony that the right to privacy of “any other citizen” can be trampled on via the use of parliamentary privilege.
The conclusions we can draw are that, in the last decade, various parliamentarians have been happy to use parliamentary privilege to name and shame those being investigated for crimes and those embroiled in personal civil proceedings – even where they have court orders protecting their anonymity. However, when the ‘shoe is on the other foot’ and the accused party is himself a parliamentarian, it seems the House of Commons is a zealous believer in the right of pre-charge anonymity.
In simple terms, if you are being investigated of a crime, then any parliamentarian can publicly name you without any consequence to themselves. But if you name a parliamentarian who is in a similar predicament, get ready for formal legal consequences.
Although the identity of “Former Minister X” remains a mystery, surely the pattern of politicians protecting themselves could not be any clearer.
This post originally appeared on the Brett Wilson Media Law blog and is reproduced with permission and thanks.