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« The administrators' view | Main | Give us a clouseau - Josh 166 »
Thursday
May102012

Acton and parliamentary privilege

Steve McIntyre notes UEA's recent submission to an Information Tribunal hearing. McIntyre had pointed out that UEA's vice-chancellor, Edward Acton, had told the House of Commons Science and Technology Committee that the emails relating to the Wahl and Ammann affair were available. However, they told McIntyre that they no longer existed.

In their defence, the university invokes the principle of Parliamentary Privilege.

Mr Mclntyre makes allegations to the effect that evidence given by UEA’s Vice-Chancellor, Professor Acton, to the STC as part of its inquiry into climategate was untrue. UEA does not accept that these allegations are well-founded. However, the doctrine of Parliamentary privilege in any event means that these are not allegations which can or should be countenanced by the Tribunal.

According the Guide for witnesses giving written or oral evidence to a House of Commons select committee, witnesses to select committee hearings are indeed covered by Parliamentary Privilege (emphasis in original).

Witnesses to select committees enjoy absolute privilege in respect of the evidence they give, whether written or oral, provided that it is formally accepted as such by the Committee. Absolute privilege protects freedom of speech in parliamentary proceedings; it is enshrined in statutory form in Article 9 of the Bill of Rights 1689, which prohibits proceedings in Parliament from being called in question in any court. In practical terms this means that select committee witnesses are immune from civil or criminal proceedings founded upon that evidence; nor can their evidence be relied upon in civil or criminal proceedings against any other person.

Absolute privilege does not apply to written submissions which have been distributed or made available prior to being published by a committee.

However, the protections involved also appear to be something of a double-edged sword.

The protection which absolute privilege gives to those preparing written evidence and to witnesses must not be abused. In particular, witnesses should answer questions put to them by a committee carefully, fully and honestly. Deliberately attempting to mislead a committee is a contempt of the House, which the House has the power to punish.

Interesting times.

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Reader Comments (40)

I expect Acton had his fingers crossed behind his back when he said it. It seems about his level.

May 10, 2012 at 8:26 AM | Unregistered CommenterJames P

It was nothing but a terminological inexactitude.

May 10, 2012 at 8:32 AM | Unregistered CommenterPhillip Bratby

So the UEA paint themselves into another corner, they can have the commissioner ignore Acton's evidence if they wish but that must also mean he lied when giving evidence. If they had owned up to the first lie, well its too late now and they have to push it through to the miserable end. How much do they pay their lawyers for such rubbish advice ?

May 10, 2012 at 9:02 AM | Unregistered CommenterBreath of Fresh Air

Truth,;it would appear, like most things theses days, falls under the umberella of sustainable development and as such, it has to be saved for future generations.
Hence the term "ecconomical with the truth"

May 10, 2012 at 9:08 AM | Unregistered Commenterpesadia

Strange that part of the Queen's speech yesterday contained this little snippet:


"Scientists will also be given better protection against libel claims if they have published their material in peer-reviewed journals".

Are they expecting something?

May 10, 2012 at 9:08 AM | Unregistered CommenterPaul

Oops, overuse of punctuation marks. "Bad boy"

May 10, 2012 at 9:09 AM | Unregistered Commenterpesadia

"enshrined in statutory form in Article 9 of the Bill of Rights 1689, which prohibits proceedings in Parliament from being called in question in any court."

Don't they mean Article 8? Article 9 is about unfit 'juryes in Tryalls for High Treason' (maybe not! /sarc)


"Deliberately attempting to mislead a committee is a contempt of the House, which the House has the power to punish."

Maybe 'Climate Justice' will get on the case ;¬)

May 10, 2012 at 9:14 AM | Unregistered CommenterFrosty

Here is the guide for witnesses giving evidence: http://www.parliament.uk/documents/commons-committees/witnessguide.pdf

Page 11 has this:

Witnesses to select committees enjoy absolute privilege in respect of the evidence they give, whether written or oral, provided that it is formally accepted as such by the Committee.

The bold is in the original document.

Unless the committee formally gave the UEA absolute privilege then they do not have it.

May 10, 2012 at 9:28 AM | Unregistered CommenterTerryS

"Deliberately attempting to mislead a committee is a contempt of the House, which the House has the power to punish."

What exactly is meant by "the House" here? All of them or a single majority or what?

May 10, 2012 at 9:50 AM | Unregistered CommenterJohn Silver

Perjury Act 1911

False unsworn statement under Evidence (Proceedings in Other Jurisdictions) Act 1975
If any person, in giving any testimony (either orally or in writing) otherwise than on oath, where required to do so by an order under section 2 of the Evidence (Proceedings in Other Jurisdictions) Act 1975, makes a statement—

(a)which he knows to be false in a material particular, or

(b)which is false in a material particular and which he does not believe to be true,

he shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding two years or a fine or both.]

http://www.legislation.gov.uk/ukpga/Geo5/1-2/6/contents

also could Pepper v Hart (1993) be extended here

May 10, 2012 at 9:50 AM | Unregistered CommenterAnoneumouse

Is it true that the Administration block of the UEA is to set up a satellite office in Melton Mowbray?

May 10, 2012 at 9:54 AM | Unregistered Commentermydogsgotnonose

From a comment by mpaul at Steve's blog:


Mr Mclntyre’s argument that documents 5-8 would have been retained on ‘private computers’ does not take his case any further. It is right to say that, in 2008, Professor Briffa transferred certain information from his work PC onto a memory stick. However, the information which was transferred was limited to emails and did not include any email attachments, such attachments having been stored in a separate file to the emails on Professor Briffa’s PC. For the avoidance of doubt, UEA retains a copy of the memory stick in question. A review of the contents of that device confirms that it contains only emails and not attachments. It follows that documents 5-8 were not transferred onto the memory stick used by Professor Briffa and that the ‘private storage issue is a ‘red herring’.


cc: Keith
date: Mon Oct 12 12:07:03 2009
from: Tom Melvin
subject: Keith Email
to: Mike
Mike,
For Keith’s Email :
1. Copied the full C:\Eudora directory to my portable.
2. Deleted the 12000 temporay .gif files from C:\Eudora\Embedded.
3. Copied 3.5 gig of attachments (1 year or older) from C:\Eudora\Attach to C:\OldAttach – this will need to be copied back to his PC
4. He is left with a 1.5 gig C:\Eudora directory on my portable which can be copied back to his PC and readily be moved from PC to portable etc.
5. When using my portable (via yellow cable (in office) or various WiFi networks) Keith logs in to VPN.
Tom
PS. I need to take my portable to a conference w/c 26th Oct.

Copied attachments into another directory on the laptop C:\OldAttach that need to be copied back to the PC.
Why would they need to be copied back unless they were modified, updated or some deleted?

If they had been moved,ok, but copied, they would still exist in the original directory.

Surely this laptop is the one that Briffra then used at home to transfer the emails only to his home PC via data stick, the 3.5Gig of attachments would have probably been too large for the data stick.

Probably not having a network or cross over cable at home the data stick would have been most convenient for him, but why would he need the laptop if the emails were put onto a data stick for him?

Then if he didn't have a PC at home and used the laptop why the need for a data stick?

Point 5 already states that Briffra uses the portable.

Something just doesn't add up!

May 10, 2012 at 10:04 AM | Registered CommenterLord Beaverbrook

Paul
"Scientists will also be given better protection against libel claims if they have published their material in peer-reviewed journals".

How extraordinary. I too wonder why is this is required.

May 10, 2012 at 10:04 AM | Unregistered CommenterAlan Reed

Very droll, Dog - I like it. Notwithstanding, the whole affair is truly shocking.

"Power to punish" means just that - so we won't hold our breath.l

May 10, 2012 at 10:05 AM | Unregistered CommenterHuhneToTheSlammer

Don't hold your breath about parliamentarians being offended by being told lies to save something they believe in. The SciTech committee with one honourable exception, gave the UEA a free pass.

May 10, 2012 at 10:20 AM | Unregistered Commentergeronimo

LordBeaverbrook: Tom Melvin is the loose cannon referred to by Mosh in the comments, he's waiting for someone to decode what he knows i.e. that the attachments were retained.

May 10, 2012 at 10:23 AM | Unregistered Commentergeronimo

"Scientists will also be given better protection against libel claims if they have published their material in peer-reviewed journals"

I suspect this is driven by the experiences of Simon Singh (inter alia) in relation to homeopathy.

May 10, 2012 at 10:24 AM | Unregistered CommenterSebastian Weetabix

So who'll manage to put "Acton" and "deliberate" in the same sentence?

May 10, 2012 at 10:38 AM | Registered Commenteromnologos

John SIlve @ 9:50,

'The House' is simply Parliamnet. I believe the concept is that in return for absolute privilege, they are required to tell the truth, as are members of parliament when replying to questions. e.g. -

http://www.propublica.org/blog/item/lying-before-parliament-punishable-in-theory-not-so-much-in-practice

May 10, 2012 at 10:48 AM | Unregistered CommenterChuckles

Parliamentary privilege is in place to allow people to testify without fear of civil defamation proceedings from people they are naming. It does not provide a defense for a person deliberately misleading parliament, in fact it is quite the opposite.

To put it into context, if you believe that there has been some corruption and you are called to testify to a parliamentary hearing on the matter, you can name people you believe took part and the actions you believe they took. If subsequently it is found that the people named didn't do what you said, or insufficient evidence exists to convict, you can't be sued. It does not allow you to knowingly lie about them (either to defend them or to incriminate them), and anyone purporting to be a lawyer that makes this claim is daft or lying.

If the University is really attempting to use this to excuse the actions of Prof Acton they really are desperate.

May 10, 2012 at 10:49 AM | Unregistered Commenterharry

Chuckles, my question was about their procedure to punish, who does what?
Are there any precedence?

May 10, 2012 at 10:58 AM | Unregistered CommenterJohn Silver

"Witnesses to select committees enjoy absolute privilege in respect of the evidence they give, whether written or oral, provided that it is formally accepted as such by the Committee."

I read that as saying your evidence gets absolute privilege provided that the committee accepts what you said as being evidence.

That's not the interpretation that some others here are putting upon the passage, but it seems to me to be its meaning in plain English.

May 10, 2012 at 11:13 AM | Unregistered Commenterdearieme

There are comparisons to the News International case...

the Commons culture, media and sport committee concluded that Les Hinton, Tom Crone, Colin Myler and News International had misled the committee by giving false or misleading evidence (denied by accused)

"Is it a contempt of parliament to mislead a select committee? Who decides? And what can be done about it?

http://www.guardian.co.uk/law/2012/may/02/contempt-of-parliament-punishment

May 10, 2012 at 11:26 AM | Unregistered CommenterFrosty

Acton and UEA seem to have more lines of defence than M. Maginot ever envisioned...

May 10, 2012 at 12:10 PM | Unregistered CommenterRick Bradford

"UEA does not accept that these allegations are well-founded. " It's difficult to see from the evidence that's come to light how these 'allegations' are not 'well-founded'. But I suspect that Acton simply repeated to the committee what he'd been told, in which case he could not be accused of 'deliberately' giving false information. We've been told he's a very nice chap, and I've no reason to believe otherwise, but given how badly UEA has handled all this he comes across to me as someone totally out of his depth. I can't help feeling he's been stitched up like a kipper by others at UEA.

May 10, 2012 at 12:33 PM | Unregistered CommenterDaveS

Rick

I bet Mme Maginot invented it first.. :-)

May 10, 2012 at 12:51 PM | Unregistered CommenterJames P

Hmmm - obviously the Guardian takes a very stern view of people misleading parliamentary committees.

I have no doubt they'll be launching one of their "no stone left unturned" investigations into UEA soon....... Leo........Damian...........???

May 10, 2012 at 1:07 PM | Registered CommenterFoxgoose

Dearieme:
My reading is the same as yours. But what a strange condition. Suppose one makes actionable statements in a Parliamentary environment only to find them not accepted as evidence? They would then not enjoy privilege. There must be more to this.

May 10, 2012 at 1:20 PM | Registered Commenterjferguson

John Silver @10.58,

It's not a simple matter of a law being broken, as I understand it. More echoes of 'lese majeste'.
Parliament is Sovereign, they can do pretty much anything they want, including doing nothing.

May 10, 2012 at 2:45 PM | Unregistered CommenterChuckles

Having given evidence to parliamentary committees on a number of occasions, the advice given to me was that everything I wrote or said to the committee would be subject to Parliamentary Privilege with two exceptions. Any document that I submitted that had been published before the Committee published it as part of the evidence was excluded and that I was to be careful about using hearsay information since the committee might not accept this as evidence and furthermore it might not be covered by privilege.

I think the statement in the guidance is a backstop provision to prevent witnesses embroidering their evidence with potentially slanderous/libellous material thinking they could get away with anything.

May 10, 2012 at 2:45 PM | Unregistered CommenterArthur Dent

Harry at 5/10 10:49 am focuses on the real issue.

Privilege is being used by UEA in a way I find very strange. [I'm a lawyer, but not in the UK.] From the context of the statement that has been quoted, it appears that UEA is trying to argue that the tribunal must treat every statement made before the House committee as if it never existed. Weird.

Steve Mc isn't trying to bring charges against Acton. He's merely pointing out that the public statements of UEA, through its authorized representatives, are contradictory. I will be amazed if the law in the UK is that the FOIA tribunal cannot take notice of any statement made before parliament for any reason.

May 10, 2012 at 3:10 PM | Unregistered Commenterstan

Dearieme.

I checked with the clerk to the committee. What they are trying to say is that you are automatically covered by privilege, but you can't just libel someone but try to protect yourself by copying the email to the committee and saying "it's therefore evidence".

May 10, 2012 at 3:12 PM | Registered CommenterBishop Hill

"Absolute privilege does not apply to written submissions which have been distributed or made available prior to being published by a committee."

I might be wrong, but I thought that UEA made written submissions to the committee.
Perhaps someone could check on this?

May 10, 2012 at 4:10 PM | Unregistered CommenterDon Keiller

Don

I think this means that you can't libel someone and then claim privilege by submitting the libel as evidence to the committee.

May 10, 2012 at 4:25 PM | Registered CommenterBishop Hill

I'm not entirely sure how even if parliamentary privilege applies that this prevents the tribunal from using the evidence given the committee. They don't need to question the evidence, simply accept it as true and that the response Steve McIntyre received must be false and adjudicate appropriately.

The ICO website has this in its knowledge base: References to Hansard and parliamentary debates and statements, and Select Committees

... case officers must take care not to make any judgement on the content of parliamentary statements, nor to question whether they are full, partial or accurate. To do so would risk breaching rules on parliamentary privilege. It is permissible, however, to mention the existence of such statements and to refer to the general principle that their mere existence may in itself affect the balance of the public interest.

However this is perhaps at odds with this further down the page:

The Commissioner considers that case officers should not rely on evidence given to Select Committees, nor on the conclusions they reach or recommendations they make. It is, however, permissible to refer to the fact that a Select Committee considered a particular issue or to explain, on a factual basis, the impact of a Select Committee report. E.g How a government department responded to the report.

May 10, 2012 at 4:35 PM | Unregistered CommenterGareth

I would think that privilege only applied to past actions and not future ones.

For example you would not be able to use a privileged statement made in 2010 to prove a statement made in 2008 is false, but you should be able to use it prove a statement made after 2010 is false.

May 10, 2012 at 6:12 PM | Unregistered CommenterTerryS

There is no contradiction. The e-mails are technically available, and technically not held by the University. The cops took their server, so therefore the contents of the server are not held by the University. Of course the e-mails are available. You just get the Norfolk Constabulary to give them to you.

May 10, 2012 at 6:40 PM | Unregistered CommenterMikeN

But they told McIntyre that they no longer existed...

May 10, 2012 at 6:45 PM | Unregistered CommenterJames P

"Recently Anthony Inglese, general counsel and solicitor, HMRC, was appearing before the public accounts committee...........Having finally lost patience with Inglese, the committee's chair, Labour MP Margaret Hodge, told him: We are taking an unusual step. It is a power we have. From here onwards were going to examine you on oath."

"The Parliamentary Witnesses Oaths Act 1871 “empowers the House of Commons and its committees to administer oaths to witnesses, and attaches to false evidence the penalties of perjury”.

"A power not lost on Hodge, who told Inglese: "I'm no lawyer, but having taken the oath you don't want to give answers that are incorrect, as you might find yourself with the accusation of having committed perjury."

"Hodge's decision could lead other committee chairs to consider whether to force their witnesses to give evidence under oath."

http://www.huffingtonpost.co.uk/2011/11/07/public-accounts-committee-swear-bible_n_1080708.html

"Witnesses who lie to MPs while giving evidence to parliamentary committees may face criminal charges, the government has indicated."

http://www.huffingtonpost.co.uk/2011/12/15/lying-to-parliament-may-become-a-criminal-offence_n_1150426.html

May 10, 2012 at 6:57 PM | Unregistered Commentermfo

"Scientists will also be given better protection against libel claims if they have published their material in peer-reviewed journals".

This is bizarre. Why should a scientist need to say anything that could even come close to being libelous? Any why should getting it published give him a free pass?

May 10, 2012 at 8:08 PM | Unregistered Commenterjorgekafkazar

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