HOON v. THE UNITED KINGDOM

FOURTH SECTION

DECISION

Application no. 14832/11
Geoffrey William HOON
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 13 November 2014 as a Chamber composed of:

Ineta Ziemele, President,
George Nicolaou,
Ledi Bianku,
Nona Tsotsoria,
Zdravka Kalaydjieva,
Paul Mahoney,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,

Having regard to the above application lodged on 31 January 2011,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Geoffrey William Hoon, is a British national, who was born in 1953 and lives in London.

A. The circumstances of the case

1. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant (a qualified and formerly practising barrister) was elected as a Member of Parliament (“MP”) for the Labour Party in 1992, and remained an MP until May 2010, having been re-elected in three sequential elections in the intervening period (1997, 2001 and 2005). From May 1997 to May 2009 he served as a Government Minister, and from 1999 to 2005 he held the position of Secretary of State for Defence. In 2009, after leaving his last ministerial position, the applicant took up a voluntary position as one of twelve special advisors to the Secretary-General of NATO. This involved drafting a report advising on a new “Strategic Concept” for the organisation.

2. On 5 February 2010 the applicant announced that he would not be contesting the May 2010 elections and would be standing down from Parliament after its dissolution, which was anticipated to take place in April 2010.

1. The interview

3. On 17 February 2010, the applicant received an email from an individual named Claire Webster on behalf of “Anderson Perry Associates”, an organisation that purported to be a “US communications company”. The email explained that the company had recently set up a United Kingdom office and that it intended to form “a European advisory board consisting of a number of authoritative figures from the political, regulatory and diplomatic arenas”. It further detailed that the company was “also looking to hire consultants who had an intimate and expert knowledge of government affairs”.

4. After a telephone conversation between the applicant and Claire Webster, a meeting was arranged with a view to discussing the potential for the applicant to be employed by the firm. At the meeting, which took place on 3 March 2010, Claire Webster stated that Anderson Perry Associates was looking for members and a chairman of the envisaged board so that it could offer “bespoke consultancy” to its clients, including its “defence clients”. During the course of the meeting, the applicant made a number of comments as to his former and current work, and as to future employment plans. He told Claire Webster that, “indeed 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”.

5. The crucial comments made by the applicant were in response to Claire Webster having suggested that one of her clients had raised the subject of the Ministry of Defence’s (“MoD’s”) Defence Review. After a wider discussion, she asked the applicant how easy it would be, after the election, “to kind of get a steer ... on where ... defence policy is going? Because ...., what clients always seem to want is a kind of heads up”. The applicant answered, “Yeah, yeah.” Ms Webster then referred to “what they should be bidding for” and the applicant responded:

“... it will take some time, but ... I know 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.”

6. In addition, the applicant appeared to hold out the prospect of briefing a private equity fund about the relationship between NATO and the National Defence Policy, which he described as “the strategic defence review, one down” and which, he said, he was developing and explained “how it actually all fits together”.

7. In fact Anderson Perry Associates was not a legitimate entity; the company was fictitious and devised as part of a set-up, and Claire Webster was actually an undercover reporter working for The Sunday Times newspaper and Channel Four’s television programme “Dispatches”.

8. The meeting was recorded without the applicant’s knowledge, and extracts from it were subsequently published in The Sunday Times on 21 March 2010 and broadcast as part of “Dispatches” on 22 March 2010 in a programme entitled “Politicians for Hire”.

2. The complaint and ensuing investigation

9. On 22 March 2010, Ms Justine Greening MP wrote to the Parliamentary Commissioner for Standards (“the Commissioner”) to make a formal complaint about the applicant and two other MPs under the Code of Conduct for Members of Parliament (“the Code”) (see paragraph 19 below). Ms Greening noted that the three politicians had allegedly been “offering their parliamentary expertise to external commercial interests in exchange for financial rewards”, and asked that these allegations be investigated so as to establish whether the MPs in question were in breach of the Code. Specifically with respect to the applicant, she posited that he had “offered to allow companies to influence government policy by making use of his knowledge and position for something that frankly makes money”.

3. The Commissioner’s investigation and report

10. In accordance with Standing Order 150 of the House of Commons (see paragraph 20 below), the Commissioner, who is appointed by the House of Commons to investigate and report on complaints against MPs, wrote to the applicant on 23 March 2010, explaining that,

“in essence, the complaint is that you may have been engaged in lobbying activities in a way which is contrary to the rules of the House; that your conduct during an interview with a person who subsequently revealed herself as a journalist was contrary to the rules; that that conduct was not such as to maintain or strengthen the public’s trust in the integrity of Parliament; and that it brought the House of Commons into disrepute”.

11. The Commissioner proceeded to conduct an inquiry, as part of which he wrote to the applicant on numerous occasions asking for the applicant’s own account and comments to particular questions, which were duly submitted. On 5 November 2010, the Commissioner completed a Memorandum containing his findings of fact. This was sent to the applicant for comments. The Commissioner then completed his report dated 22 November 2010, which included his conclusions as well as the findings of fact.

12. The Commissioner considered the applicant’s suggestion that the Code did not apply because the applicant had been speaking about his future as a private and not public figure; however, he dismissed it.

13. The Commissioner looked at whether the applicant had breached the Code in ten distinct ways. He concluded that two breaches had been established on a balance of probabilities. First, by offering to brief the fictitious company’s clients about the MoD’s United Kingdom Strategic Defence and Security Review, he breached the Code in that he at least gave the impression that he would draw on what he had learnt in his meeting with officials who were working on the review. This was deemed a serious breach of the rules of the House of Commons because it brought the House into disrepute. Secondly, he breached the Code when he suggested that he could draw on his access to information about the NATO defence review and the United Kingdom’s Strategic Defence and Security Review for the benefit of the private equity fund. In this way he was giving the impression that he was offering an inside track on defence strategy to the fund. This was also found to be a breach of the rules of the House of Commons because it brought the House generally into disrepute.

4. The Committee’s hearing and decision

14. The Commissioner’s report was sent to the (then) Standards and Privileges Committee (“the Committee”) for consideration, following the usual procedure as per Standing Order 149 of the House of Commons (see paragraph 20 below). The applicant exercised his right to send written evidence to the Committee on 29 November 2010, and to attend a hearing before the Committee the following day. He also provided the Committee with a statement which he intended to make at the start of his oral evidence. The Commissioner attended the hearing.

15. In his written evidence the applicant argued that the Code should not apply to a private conversation about his future once he was no longer an MP. He further contended that the meaning of what he had said during the meeting had been misinterpreted.

16. On 7 December 2010 the Committee published its final report. It concluded, in accord with the Commissioner, that the applicant had breached the Code in those two ways. The Committee did not accept the applicant’s argument that the Code did not apply, finding instead that it did because the applicant was an MP when he attended the hoax meeting, during which he talked about information which he had received whilst he was an MP. The Committee therefore found that,

“Mr Hoon was still a public figure – still an MP – when he attended the meeting, during which he referred constantly to his experience of public life as qualifying him for the appointment he thought he was discussing. Because he was an MP, talking about his experience as an MP, we conclude that his behaviour and statements at the meeting were covered by the Code of Conduct”.

17. The Committee agreed with the Commissioner with respect to both breaches. It acknowledged the applicant’s argument that the Commissioner had found the first breach established on the balance of probabilities, whereas in the applicant’s view a higher standard of proof was appropriate, but stated that it found the Commissioner’s interpretation of the applicant’s statements in the interview to be “significantly more likely to be correct than not to be correct”, and that in its view “that is a sufficiently stringent test to apply to this case”. The Committee found that the breaches, particularly the first given its seriousness, brought the House of Commons and its members generally into disrepute. The Committee recommended that the applicant apologise to the House of Commons through the Committee and that his entitlement to a Parliamentary photopass be suspended for five years with effect from 1 January 2011. The photopass grants former MPs privileged access to parts of the Parliamentary estate and to some of the facilities on the estate. The Committee acknowledged in its conclusion to its report that the principal sanction would be the damage to a person’s reputation which an adverse finding of the Commissioner and the Committee’s report would inevitably have.

18. On 12 December 2010 the applicant wrote to the Speaker of the House of Commons. He received a reply dated 20 December 2010 stating that the Speaker was unable to intervene. On 15 December 2010, the Committee’s report was approved by resolution of the House of Commons. The matter received extensive attention from the press.

B. Relevant domestic law and practice

1. Relevant Parliamentary Code and Standing Orders

19. Relevant parts of the Code of Conduct for Members of Parliament (approved by the House of Commons on 9 February 2009) provide:

“ I. Purpose of the Code

1. The purpose of this Code of Conduct is to assist Members in the discharge of their obligations to the House, their constituents and the public at large by:

a) Providing guidance on the standards of conduct expected of Members in discharging their parliamentary and public duties, and in so doing

b) Providing the openness and accountability necessary to reinforce public confidence in the way in which Members perform those duties.

II. Scope of the Code

2. The Code applies to Members in all aspects of their public life. It does not seek to regulate what Members do in their purely private and personal lives.

3. The obligations set out in this Code are complementary to those which apply to all Members by virtue of the procedural and other rules of the House and the rulings of the Chair, and to those which apply to Members falling within the scope of the Ministerial Code.

...

IV. General Principles of Conduct

7. In carrying out their parliamentary and public duties, Members will be expected to observe the following general principles of conduct identified by the Committee on Standards in Public Life in its First Report as applying to holders of public office. These principles will be taken into consideration when any complaint is received of breaches of the provisions in other sections of the Code.

...

V. Rules of Conduct

8. Members are expected in particular to observe the following rules and associated Resolutions of the House.

9. Members shall base their conduct on a consideration of the public interest, avoid conflict between personal interest and the public interest and resolve any conflict between the two, at once, and in favour of the public interest.

10. No Member shall act as a paid advocate in any proceeding of the House.

11. The acceptance by a Member of a bribe to influence his or her conduct as a Member, including any fee, compensation or reward in connection with the promotion of, or opposition to, any Bill, Motion, or other matter submitted, or intended to be submitted to the House, or to any Committee of the House, is contrary to the law of Parliament.

12. In any activities with, or on behalf of, an organisation with which a Member has a financial relationship, including activities which may not be a matter of public record such as informal meetings and functions, he or she must always bear in mind the need to be open and frank with Ministers, Members and officials.

13. Members must bear in mind that information which they receive in confidence in the course of their parliamentary duties should be used only in connection with those duties, and that such information must never be used for the purpose of financial gain.

14. Members shall at all times ensure that their use of expenses, allowances, facilities and services provided from the public purse is strictly in accordance with the rules laid down on these matters, and that they observe any limits placed by the House on the use of such expenses, allowances, facilities and services.

15. Members shall at all times conduct themselves in a manner which will tend to maintain and strengthen the public’s trust and confidence in the integrity of Parliament and never undertake any action which would bring the House of Commons, or its Members generally, into disrepute.

...

VII. Duties in respect of the Parliamentary Commissioner for Standards and the Committee on Standards and Privileges

17. The application of this Code shall be a matter for the House of Commons, and for the Committee on Standards and Privileges and the Parliamentary Commissioner for Standards acting in accordance with Standing Orders Nos. 149 and 150 respectively.

18. Members shall cooperate, at all stages, with any investigation into their conduct by or under the authority of the House.

19. No Member shall lobby a member of the Committee on Standards and Privileges in a manner calculated or intended to influence their consideration of a complaint of a breach of this Code.”

20. Extracts from Standing Orders Nos. 149 and 150 of the House of Commons on the Committee on Standards and Privileges and the Parliamentary Commissioner for Standards respectively provide as follows:

Amended Standing Order No. 149 (Committee on Standards and Privileges):

“(1) There shall be a select committee, called the Committee on Standards and Privileges—

(a) to consider specific matters relating to privileges referred to it by the House;

(b) to oversee the work of the Parliamentary Commissioner for Standards; to examine the arrangements proposed by the Commissioner for the compilation, maintenance and accessibility of the Register of Members’ Financial Interests and any other registers of interest established by the House; to review from time to time the form and content of those registers; and to consider any specific complaints made in relation to the registering or declaring of interests referred to it by the Commissioner; and

(c) to consider any matter relating to the conduct of Members, including specific complaints in relation to alleged breaches in any code of conduct to which the House has agreed and which have been drawn to the committee’s attention by the Commissioner; and to recommend any modifications to such code of conduct as may from time to time appear to be necessary...”

Standing Order No. 150 (Parliamentary Commissioner for Standards)

“(1) There shall be an Officer of this House, called the Parliamentary Commissioner for Standards, who shall be appointed by the House.

(2) The principal duties of the Commissioner shall be—

(a) to maintain the Register of Members’ Financial Interests and any other registers of interest established by the House, and to make such arrangements for the compilation, maintenance and accessibility of those registers as are approved by the Committee on Standards and Privileges or an appropriate sub-committee thereof;

(b) to provide advice confidentially to Members and other persons or bodies subject to registration on matters relating to the registration of individual interests;

(c) to advise the Committee on Standards and Privileges, its sub-committees and individual Members on the interpretation of any code of conduct to which the House has agreed and on questions of propriety;

(d) to monitor the operation of such code and registers, and to make recommendations thereon to the Committee on Standards and Privileges or an appropriate sub-committee thereof; and

(e) to receive and, if he thinks fit, investigate specific complaints from Members and from members of the public in respect of—

(i) the registration or declaration of interests, or (ii) other aspects of the propriety of a Member’s conduct, and to report to the Committee on Standards and Privileges or to an appropriate sub-committee thereof unless the provisions of paragraph (3) apply...”

21. The Parliamentary Standards: Guidance For Members Who Are The Subject of a Complaint (Standards in the Commons; Procedural Note 3), which was issued by the Office of the Parliamentary Commissioner for Standards in September 2003, provides as follows:

“(a) The Commissioner’s preliminary inquiry

Upon receiving a complaint against a Member, the Commissioner will first consider whether

(i) it is appropriate for him to consider it; and

(ii) there is sufficient supporting evidence to justify at least a preliminary enquiry.

If the Commissioner decides that a complaint warrants such a preliminary inquiry, he will notify the Member concerned of its receipt. After seeking any necessary supplementary evidence from the complainant, he will tell the Member of the nature of the allegation and of the evidence submitted in its support, making clear in what respects the behaviour complained of would, if proved, constitute in his view a contravention of the Code.

...

(e) The standard of proof

The standard of proof for the Commissioner and the Committee is the balance of probabilities, although in cases where the alleged offence is more serious a higher standard of proof is required.”

2. Parliamentary privilege

22. According to Article 9 of the Bill of Rights 1689,

“...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.”

COMPLAINTS

23. The applicant alleged a number of violations of Article 6 § 1 of the Convention in respect of the decisions of the Commissioner, as endorsed by the Committee and the House of Commons. He also complained about the denial of access to a court to challenge by way of appeal the legality of the parliamentary proceedings conducted against him and the sanctions imposed.

24. The applicant contended that contrary to Article 8, the Commissioner, the Committee and the House of Commons had failed to respect his right to respect for private life. He submitted, inter alia, that his conversation with the reporter was private and related to his future employment as a private citizen and that the widely publicised decisions of the Commissioner and the Committee also violated his private life.

25. Finally, the applicant complained under Article 13 that there was no remedy under English law that allowed judicial proceedings to be brought to challenge the decisions of the Commissioner, the Committee or the House of Commons’ actions or decisions in relation to his case.

THE LAW

A. Alleged violation of article 6 § 1

26. The applicant contended that the Commissioner, as well as the Committee and the House of Commons itself, did not hear and decide his case in a manner consonant with Article 6 § 1 of the Convention. He further complained that by virtue of Article 9 of the Bill of Rights 1689 there was no opportunity under English law to challenge before the courts the legality of the findings of the parliamentary investigation proceedings which had serious and damaging consequences on his right to reputation. Article 6 § 1 of the Convention, in so far as relevant, provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ....”

27. In view of the submissions made, the first issue to be resolved is the applicability of Article 6 § 1 to the parliamentary investigation proceedings themselves, including any possible challenge before the courts. While the applicant set out in detail the ways in which he alleged that Article 6 § 1 had been breached, he made no specific observations on the issue of applicability.

28. The applicability of Article 6 § 1 in civil matters firstly depends on the existence of a “dispute”. Secondly the dispute must relate 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, although Article 6 does not itself assign any specific content to them in the Contracting States’ legal systems (James and Others v. the United Kingdom, 21 February 1986, § 81, Series A no. 98).

29. According to well established case-law, 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 Christian Estrosi v. France, no. 24359/94, dec. 30 June 1995, D.R 82-B, p. 56 and Pierre‑Bloch v. France, 21 October 1997, § 50, Reports of Judgments and Decisions 1997‑VI for cases concerning candidates’ obligation to limit their election expenditure). Accordingly disputes relating to the arrangements for the exercise of a parliamentary seat lie outside the scope of that provision.

30. Therefore, the parliamentary proceedings in question, which were concerned with investigating possible breaches of the Code of Conduct of Members of Parliament, did not attract the application of Article 6 § 1 of the Convention, since they did not determine, or give rise to, a dispute as to the applicant’s “civil” rights for the purposes of Article 6 § 1. Accordingly this part of the application, including the complaint relating to lack of access to court to challenge the legality of the parliamentary proceedings, is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.

B. Alleged violation of article 8 of the Convention

31. The applicant also complained that the decisions of the Commissioner, the Committee and the House of Commons failed to respect his right to respect for private life under Article 8 of the Convention. In particular the applicant submitted that the meeting with the reporter concerned his future as a private and not a public figure. He also contended that his reputation was damaged by the widely publicised decisions. The relevant parts of Article 8 provide:

“1. Everyone has the right to respect for his private and family life ...

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 ... for the protection of the rights and freedoms of others

32. It is established in the Court’s case-law that a person’s reputation, even if that person is criticised in the context of 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 Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007, Roberts and Roberts v. the United Kingdom, no. 38681/08, § 40, 5 July 2011 and Axel Springer AG v. Germany [GC], no. 39954/08, §§ 83 and 84, 7 February 2012).

33. The Committee acknowledged in its conclusion to its report that “the principal sanction” would be the damage to the applicant’s reputation which an adverse finding of the Commissioner and the Committee’s report would inevitably have (see paragraph 17 above). Accordingly, 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 (see Montera v. Italy (dec.), no. 6471/01, 9 July 2002) and, in particular, his right to respect for reputation.

34. Next the Court must determine whether the interference was “in accordance with the law”, in pursuit of a legitimate aim, and “necessary in a democratic society”, as required by the second paragraph of Article 8.

35. The parliamentary investigation proceedings followed the procedure set out in the relevant Standing Orders (see paragraph 20) and were therefore in “accordance with the law”.

36. The Court has already accepted in general terms that a rule of parliamentary immunity such as exists in the United Kingdom pursues the legitimate aims of protecting free speech in Parliament and maintaining the separation of powers between the legislative and the judiciary (see A. v. the United Kingdom, no. 35373/97, §§ 65, 77 and 102, ECHR 2002-X – relating to Article 6 § 1 but extending the reasoning to Article 8). Furthermore, in the specific circumstances of this case there was a legitimate public interest for the public in knowing the outcome of the Parliamentary investigation into a complaint about the applicant’s conduct as a Member of Parliament (see Montera v. Italy (dec.) no. 6471/01, 9 July 2002 and Wypych v. Poland (dec.), no. 2428/05, 25 October 2005, as regards the legitimate public interest in the financial disclosure of a local councillor).

37. In the latter connection, as far as compliance with the requirement of “necessity in a democratic society” is concerned, the legitimate interest of the public in being informed of the parliamentary proceedings and their outcome would have been undermined if those proceedings had not been public in nature and the reports in question not disseminated (see Montera v. Italy, cited above, and Wypych v. Poland, cited above).

38. As to the reduced level of legal protection of the right to reputation resulting from the rule of parliamentary immunity under British law, the Court considers that such a rule, which is consistent with and reflects generally recognised rules within Contracting States, the Council of Europe and the European Union, cannot in principle be regarded as a disproportionate restriction on the right to respect for private life as guaranteed by Article 8 of the Convention (see A. v. the United Kingdom, cited above, §§ 65, 83 and 102 – in relation to Article 6 § 1 but extending the reasoning to Article 8).

39. The Court would also recall that the facts relative to the interference with applicant’s private life and reputation were already in the public domain following “The Sunday Times” newspaper article and the “Dispatches” programme entitled “Politicians for Hire” (paragraph 8 above), in other words before they had been dealt with by way of the parliamentary proceedings. As concerns the factual allegation at the root of the parliamentary proceedings, there was, in addition, 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.

Moreover, the Court considers that the procedure followed (see paragraphs 10-18) gave the applicant a fair opportunity to put his case and defend his interests, as regards both his status as a public-office holder and as regards his private reputation.

40. The Court is satisfied that, in making public the findings of the parliamentary investigation decisions into the applicant’s conduct as a Member of Parliament and then in according immunity to the relevant proceedings in Parliament, the respondent State remained within its margin of appreciation, and that the interference with the applicant’s private life was not disproportionate to the legitimate aim pursued (see Montera v. Italy (dec.) cited above). There is thus no ground for holding that the requirement of “necessity in a democratic society” was not met in the present case.

41. In conclusion, the Court finds that the applicant’s complaint under Article 8 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Alleged violation of article 13

42. The applicant alleges that, contrary to Article 13 of the Convention, no effective remedy was available under English law in respect of his complaint of a violation of Article 6 § 1 and Article 8 of the Convention:

"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

43. The Court has found that the complaint under Article 6 is incompatible ratione materiae and that there is no arguable claim under Article 8, and consequently Article 13 is not engaged (Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52, Altuntaş v. Turkey (dec.), no. 36680/97, 29 January 2002 and Larisa Smiljan Pervan v. Croatia (dec.) no. 31383/13, 4 March 2014). It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

              Françoise Elens-PassosIneta Ziemele
RegistrarPresident

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