Introduction
The loss of data by the Ministry of Defence concerning Afghan nationals applying to move to the United Kingdom has raised a number of very serious questions. I said myself in The Spectator that a super-injunction should never be used to prevent parliamentary scrutiny, no matter what compromises might have to be made to accommodate issues of national security, and it is disappointing that Downing Street would not rule out the use of super-injunctions in the future. There will be a great deal of debate and commentary on the rights and wrongs, and who did what, but I would register at this point two observations.
The first is that the Defence Secretary at the time, Ben Wallace, applied to the High Court for a four-month injunction. This was “upgraded” to a superinjunction on 1 September 2023, by which time he had left office and Grant Shapps was Secretary of State for Defence. Wallace was not informed of the legal change. The second observation I would make is simply that the superinjunction was in force for slightly longer under the current Labour government than it was under the Conservative government which sought it. I infer nothing from that, but I think the Prime Minister is acting at best incautiously be attempting, as he so far seems to be doing, to make this a straightforwardly party political argument.
It is also worth saying that the Speaker of the House of Commons has asked the clerks to examine the whole matter of the use of a superinjunction and its application to the House. I have no desire to second-guess my former colleagues and they will without question produce considered, informed and accurate conclusions. I know them well and have no hesitation saying that. Here I want to examine a more limited issue, that of the Official Secrets Acts and their applicability to Members of Parliament.
Parliamentary privilege comes into play
Robert Jenrick, the Shadow Justice Secretary, tweeted on Wednesday:
I first learned of the data leak and plan to resettle people after the super-injunction was in place. Parliamentary privilege is not unlimited; I was bound by the Official Secrets Act.
Bluntly, I don’t think that is true. I have no idea what advice, legal or procedural, Jenrick took on the matter, and I am absolutely willing to be corrected by those with greater authority, but, quite simply, I don’t think a Member of Parliament who made a disclosure in Parliament which would otherwise be a breach of the Official Secrets Act could be prosecuted, and would very much be protected by parliamentary privilege.
Let’s go back to the beginning. Parliamentary privilege is summed up by Erskine May’s Parliamentary Practice, the so-called “parliamentary bible”, as:
the sum of certain rights enjoyed by each House collectively as a constituent part of the High Court of Parliament and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals… Certain rights and immunities such as freedom from arrest or freedom of speech are exercised primarily by individual Members of each House. They exist in order to allow Members of each House to contribute effectively to the discharge of the functions of their House. Other rights and immunities, such as the power to punish for contempt and the power to regulate its own constitution, belong primarily to each House as a collective body, for the protection of its Members and the vindication of its own authority and dignity. Fundamentally, however, it is only as a means to the effective discharge of the collective functions of the House that the individual privileges are enjoyed by Members. The Speaker has ruled that parliamentary privilege is absolute.
In the case of freedom of speech within Parliament, which would cover disclosures which would otherwise be in breach of the Official Secrets Act, this privilege is based on Article 9 of the Bill of Rights 1688. This statute is one of the foundations of our modern parliamentary democracy, passed during the Glorious Revolution, and its terms are not notably ambiguous. On the matter of free speech, it says:
That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.
This means what it says: that anything which happens formally within Parliament as part of “debates or proceedings” cannot be questioned by the courts, because Parliament is a self-regulating body which has what is known as “exclusive cognisance”. Erskine May further notes that “the Bill of Rights has been judicially recognised as a constitutional statute and as such not amenable to implied repeal”.
Privilege in action
As an example of parliamentary privilege at work, we can look back to May 2011—which seems like another world—when John Whittingdale, then Chair of the Culture, Media and Sport Committee, asked an Urgent Question of the Attorney General, Dominic Grieve, about “the granting and enforcement of privacy injunctions”. At the time, the footballer Ryan Giggs had obtained a superinjunction to prevent reporting of the fact that he had been conducting an extra-marital affair with his sister-in-law, but the matter was becoming more and more widely known and alluded to. John Hemming, Liberal Democrat MP for Birmingham Yardley, used the occasion of the UQ to Grieve to breach the superinjunction in the House of Commons.
With about 75,000 people having named Ryan Giggs on Twitter, it is obviously impracticable to imprison them all, and with reports that Giles Coren also faces imprisonment—
At that point the Speaker, John Bercow, intervened to remind Hemming that the debate was on the principles of such legal instruments, not a platform to flout them deliberately, but Hemming was allowed to finish.
The question is, what is the Government’s view on the enforceability of a law that clearly does not have public consent?
No disciplinary or legal action was taken against Hemming, nor could it be. He had violated the terms of Giggs’s superinjunction, very clearly and deliberately, but by doing so as part of a “proceeding in Parliament”, he was protected by parliamentary privilege.
The Official Secrets Act
The Official Secrets Act 1989 is the last of five similarly named acts, four or which have been repealed: the first act of 1889 was repealed by its 1911 successor, which was in turn, along with the 1920 and 1939 statutes, repealed two years ago by the National Security Act 2023. All have had the same essential purpose: to protect information which is classified and the disclosure of which is deemed to be harmful to the national interest. The current act is concerned principally with areas like security and intelligence, defence, international relations, crime and criminal investigations, but in most provisions it is stated that an individual “is guilty of an offence if without lawful authority he makes a damaging disclosure of any information, document or other article”. If it is not deemed to be damaging, then no offence has been committed.
The Official Secrets Act 1989 must now be read alongside the National Security Act 2023. This introduced a number of new offences concerning disclosure of protected information and increased the penalties available for some offences. Section 18 also introduced an offence of “preparatory conduct”, which made it unlawful to take steps to prepare for “committing acts to which this section applies” or “acts to which this section applies being committed by another person”.
Whether one approves of the precise details of these statutes, it is easy to see why the government needs to have legal protection for certain types of information. There are delicate and nuanced issues around whistle-blowers, for example, one of the most famous in recent years being the attempted prosecution of GCHQ translator Katharine Gun in 2003/04. Nevertheless, legislation to protect national security is understandable and necessary.
The question here is, can it apply to Members of Parliament and does it override parliamentary privilege?
The Sandys case
As it happens, we need not think about this in purely theoretical terms, because there are precedents for us to study. Duncan Sandys (1908-87) came from an impeccable Establishment background. His father, George Sandys, served in the Second Boer War and was Unionist MP for Wells from 1910 to 1918, joining the Diplomatic Service after he left the House of Commons. Duncan was educated at Eton and Magdalen College, Oxford, where he read history, then joined the Diplomatic Service in 1930, serving in the Foreign Office in London and at the British Embassy in Berlin. However, he resigned from the service to seek a candidacy for Parliament, and was elected Conservative MP for Norwood at a by-election in March 1935, aged only 27. Later that year, he married Diana Churchill, eldest daughter of Winston Churchill.
Sandys’s approach to international relations was a subtle one. As he explained in his maiden speech, Nazi Germany had quite clearly breached the terms of the Treaty of Versailles by pursuing rearmament, and such contravention of international agreements had to be condemned. However, he pointed out that Germany did not accept the validity of the Treaty of Versailles, which had been imposed on it under duress, and he pointed out that the Allied Powers of the First World War had not undertaken the kind of disarmament which was very strongly implied in the treaty. But he saw no reason to think that Germany would not honour her obligations under the 1925 Locarno Pact, guaranteeing the inviolability of her borders with France and Belgium and committing Germany to the peaceful resolution of disputes under the auspices of the League of Nations. His opinion was that Germany should be allowed considerable freedom and influence in central Europe, as it did not impinge on the UK’s national interests.
I cannot too strongly urge His Majesty’s Government, in directing our foreign policy, to lend a sympathetic ear to Germany’s legitimate claims and aspirations in other fields, provided that they can obtain real satisfaction on what to us is the vital issue, namely, the Colonial and naval question.
In 1937, Sandys had been commissioned as a second lieutenant into the Territorial Army, serving with the 151st Battery, 51st (London) Anti-Aircraft Brigade of the Royal Artillery. During 1938, he asked questions in the House of Commons about national security which reflected his military service, and he wanted to table a particular question about the preparedness of anti-aircraft defences. Because of potential sensitivities, on 17 June he sent a copy of the draft question with a covering note to the Secretary of State for War, Leslie Hore-Belisha, to ask if the War Office had any objections to his tabling the question.
Hore-Belisha, rather than replying directly to Sandys, satisfied himself that there had been a prima facie breach of the Official Secrets Acts 1911 and 1920, and after consultation with the Prime Minister, Neville Chamberlain, the matter was passed to the Attorney General, Sir Donald Somervell. At a meeting on 21 June, the Attorney General tried to induce Sandys to reveal the source of the information on which his draft question was based, and when Sandys—who had a reputation for a quick temper—refused, Somervell read him section 6 of the 1911 act and warned him he could face imprisonment if he did not comply. On 22 June, Sandys consulted the Speaker, Edward FitzRoy, with a view to raising the matter in the House. Hearing of this, Somervell asked for another meeting and attempted to reassured Sandys that “there was at present no intention” to use the powers in the Official Secrets Acts against him. Sandys, rightly, regarded this as not good enough.
On 27 June, Sandys raised the matter in the Chamber in order in public and on the record to seek the Speaker’s guidance. On 30 June, the Prime Minister, who was also, as was at that point common practice, also Leader of the House, proposed the establishment of a select committee:
to enquire into the substance of the statement made on 27th June in this House by the hon. Member for Norwood [Sandys] and the action of the Ministers concerned, and generally into the question of the applicability of the Official Secrets Acts to Members of this House in the discharge of their Parliamentary duties.
The House, after much consideration, agreed to the motion and the nomination of a committee consisting of 14 Members: Ralph Assheton (Con, Rushcliffe), Colonel Douglas Clifton Brown (Con, Hexham), William Wedgwood Benn (Labour, Manchester Gorton), David Maxwell Fyfe (Con, Liverpool West Derby), Sir John Gilmour (Unionist, Glasgow Pollok), F. Kingsley Griffith (Lib, Middlesbrough West), William Mabane (Lib, Huddersfield), James Maxton (ILP, Glasgow Bridgeton), Osbert Peake (Con, Leeds North), Maurice Petherick (Con, Penryn and Falmouth), Sir Assheton Pownall (Con, Lewisham East), Victor Raikes (Con, Essex South East), Hastings Lees-Smith (Lab, Keighley) and Alexander Walkden (Lab, Bristol South). Gilmour, a former Home Secretary, was elected Chairman.
The Committee eventually reported on the issue of the Official Secrets Act on 5 April 1939. It concluded that “proceedings in Parliament” applied not merely to words spoken in the Chamber or in committees but also to the asking of question and the giving written notice of questions, as well as everything said or done in either House in the transaction of Parliamentary business. It also cited Ex parte Watson (1869), in which the Lord Chief Justice of the Queen’s Bench, Sir Alexander Cockburn, had made it clear that parliamentary privilege afforded Members of Parliament immunity from prosecution in both civil and criminal cases. The Official Secrets Acts made no reference to privilege, and therefore they could not be taken to derogate from the House’s existing privilege.
The Committee admitted there was some difficulty over whether privilege could protect a Member from prosecution under section 6 of the 1920 act, which required individuals to provide “any information in his power relating to an offence or suspected offence under the principal Act or this Act”, as Sandys had done. But as a court could not use as evidence anything said in Parliament, nor could a Member, except by leave of the House, give evidence of material covered by privilege, the practicalities of a prosecution would be extremely challenging.
In short, while the Committee’s report observed several situations in which privilege might not be engaged, its central finding wholly upheld the notion of parliamentary privilege. If disclosures which might otherwise result in prosecution were made clearly and unmistakeably within “proceedings in Parliament”, no Member could be subject to prosecution, and that the offence was a provision of the Official Secrets Acts 1911 or 1920 made no difference.
The report was eventually considered by the House on 21 November, and the House agreed with its conclusions without a division. Chamberlain, again as Leader of the House, noted that the Committee had suggested no further action be taken and that the situation be left at the understanding the parliamentary privilege applied and was for the good of the House.
The Committee recognise that no doubt there are dangers, even in the limited immunity from prosecution under the Official Secrets Acts secured to Members by Parliamentary privilege, but they point out that those are risks which must be run if hon. Members are to exercise freely their rights and privileges of free speech, and it is clear that in the opinion of the Committee the real safeguard against any such abuse lies in the good sense of hon. Members themselves. I believe that that is something to which we can safely trust, but even if there were some exceptional case in which an individual Member did not have proper regard to the general principle that this immunity is given to hon. Members for the service of the State and not for the purpose of endangering the safety of the State—even if there were such a Member, still the House itself, the body of Members, have it in their power to inflict penalties upon a Member who did so abuse his position, and I have no doubt they would not hesitate to do so.
In the meantime, the Official Secrets Act 1939 was being introduced—it was granted Royal Assent two days after the Commons passed its Resolution agreeing with the Committee’s conclusions—which refined, elaborated and limited the powers of section 6 of the 1920 act.
The Sandys case therefore makes clear that the Official Secrets Acts had no “special” status with regards to parliamentary privilege and did not in any normal sense override it. Provided a statement was made under circumstances which would attract privilege—being a “proceeding in Parliament”—then it could not be the subject of a prosecution under the Official Secrets Acts any more than under any other statute.
Privilege in recent times
In 1997, the government established a Joint Committee on Parliamentary Privilege, chaired by Lord Nicholls of Birkenhead, a Lord of Appeal in Ordinary, to review the status and operation of privilege, especially in the light of Pepper v. Hart, a 1993 case in which the courts decided that ministerial statements in Parliament could be used by a court to interpret ambiguities in statute or considering applications for judicial review of ministerial decisions. The membership included the Leader of the House of Commons, Ann Taylor, the Shadow Deputy Leader of the House, Sir Patrick Cormack, and the Liberal Democrat Chief Whip, Paul Tyler. The Joint Committee’s terms of reference were drawn broadly and it published its report in March 1999.
The Joint Committee considered the issue of the Official Secrets Act specifically. It noted that the Committee of Privileges had in 1987 “firmly rejected the option of exposing members to the risk of prosecution”, and saw no reason to revisit the matter. Its conclusion was wholly consistent with the Select Committee on the Official Secrets Acts of 1938-39.
We do not consider there is any new evidence since 1987 to cause us to differ from the conclusions of the procedure committee. We recommend no action should be taken to limit freedom of speech in respect of breaches of the Official Secrets Acts in the course of proceedings in Parliament. It should be noted, however, that it is always open to either House to treat as a contempt, and to discipline severely, any member who in the opinion of the House had grossly abused the right of free speech.
The Joint Committee drew attention, as the Committee of Privileges had done, to the words of Enoch Powell (UUP, South Down) in a debate on privilege in May 1978.
A privilege which cannot be abused is no privilege, for that which constitutes abuse is a matter of opinion and it is part of the privilege of this House and of individual Members to be able to say in this place not only what they could not say outside without risk of process but to be able to say that to which grave objection is taken by every other hon. Member. Unless an hon. Member could do that, or if it were possible for his doing of it somehow to be undone, we would have lost our power to serve those who sent us here.
However, it is worth looking at a memorandum submitted to the Joint Committee during its proceedings from the then-Attorney General, John Morris. He had undertaken to look in particular at immunity from prosecution, having previously cited the Sandys case to the Joint Committee. He included a memorandum written by the Attorney General, Sir Donald Somervell, in 1939, as part of the consideration of the Sandys case, and Morris’s conclusions were, again, clear.
I would respectfully agree with his conclusion at page 8 that a statement by a Member in the course of debate or proceedings in Parliament, which would otherwise amount to an unlawful disclosure under the Official Secrets Acts 1911 and 1920, could not be made the subject of proceedings in the courts. The same must be true, I think, for the Official Secrets Act 1989. The Committee will note that Sir Donald was unwilling to be dogmatic about a prosecution under section 6 of the Official Secrets Act 1920… I cannot be any more certain than Sir Donald was in 1939; but I would make two observations. First, section 6 is not a much used provision. Second, the evidential difficulties described by Sir Donald on page 5 would, in my view, be formidable.
So, again, the situation is reiterated: a Member cannot face prosecution for disclosures in proceedings in Parliament for which, in other circumstances, he or she would face prosecution. Parliamentary privilege provides absolute protection.
In 2013, Richard Gordon QC, an eminent constitutional lawyer, and Sir Malcolm Jack, former Clerk of the House of Commons, wrote a paper for the Constitution Society entitled Parliamentary privilege: Evolution or codification?. It was principally intended to contribute to the (still active) debate over whether privilege should be codified, but it is worth noting that Gordon and Jack repeat the expansive protection afforded by parliamentary privilege to proceedings in Parliament.
Whatever the nuances of the words of Article IX, the principle of freedom of speech underpins it. That core principle enables a Member of either House to say whatever he or she thinks fit in debate. However offensive or injurious those remarks might be to a named individual, that individual will have, as matters currently stand, no obvious recourse to the courts—at least to the British courts—since they will, amongst other things, not be able to take out any action for defamation.
Once again, there is no possibility of engaging even the criminal law against remarks made within the boundaries of privilege.
Jack made a further observation in 2021, after Boris Johnson’s former Chief Adviser, Dominic Cummings, had appeared before a joint meeting of the House of Commons Health and Social Care Committee and the Science and Technology Committee. Cummings had promised to provide confidential documents to the two committees, and Jack observed that the Official Secrets Act 1989 “makes it an offence for a government servant or contractor to disclose any confidential information or document which has been in his possession by virtue of his position”. However, he continued:
Under the Official Secrets Act a person disclosing damaging information received by unauthorised disclosure is also committing an offence. The Committees could fall into this category. A prosecution under the Act would therefore appear, in this case, to have to rely on material subject to parliamentary privilege. That could be regarded as an interference with the work of the Committees and amount to a contempt in the eyes of Parliament. It is also an offence under the Witnesses (Public Inquiries) Protection Act 1892 for anyone obstructing or intimidating witnesses who have given evidence to a public inquiry, including a parliamentary inquiry, unless such evidence was given in bad faith. No doubt these conundrums will be in the mind of the Attorney General should there be any move to prosecute.
As Jack hints, it would be a bold Attorney General who sought a prosecution; but as Cummings is not and was not a Member, it is a nicety which does not apply in this instance.
Conclusion
I have set out what I believe to be the current situation at some length because this is enormously important. I cannot see how, at present, Robert Jenrick could have faced prosecution under the Official Secrets Act 1989, or indeed under any other statute, of he had revealed details of the Afghan relocation schemes in circumstances which were clearly and unquestionably “proceedings in Parliament”, most obviously in the Chamber. That the matter was covered by a superinjunction makes no difference, as we have seen in the case of John Hemming in 2011. Article 9 of the Bill of Rights must, so far as I can see and so far as has been affirmed in 1939, in 1987 and in 1999, protect Members of Parliament from prosecution.
I could be wrong, and if that is proven I will take it very happily on the chin. If, alternatively, Jenrick has received legal or procedural advice which indicated he would be liable to prosecution, then we urgently need to know that, because it is, surely, a prima facie infringement of the Bill of Rights, and that would be a matter of seismic constitutional importance. Equally, if Jenrick is mistaken, we need to know that too—as does he.
Free speech in Parliament is central to how our democracy functions. That is one of the reasons the matter of the Afghan data breach is so important, because it is hard to see how Parliament was not, I think improperly, prevented from holding successive governments to account. This needs to be made very clear as a matter of urgency. It is the bedrock of how we do our politics.
I don't expect MPs to reason at length and in depth as this author has done.