SECOND SECTION

AS TO THE ADMISSIBILITY OF

Application no. 35373/97 by A. against the United Kingdom

The European Court of Human Rights (Second Section), sitting on 5 March 2002 as Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Sir Nicolas bratza , Mr Gaukur Jörundsson , Mr L. Loucaides , Mr C. Bîrsan , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 13 January 1997 and registered on 18 March 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the written observations submitted by the respondent Government and the written observations in reply submitted by the applicant,

Having regard also to the third-party interventions made in writing by the Dutch, Irish and Italian Governments (Rule 61 § 3),

Having held a hearing in public in the Human Rights Building, Strasbourg, on 5 March 2002 (Rule 54 § 4),

Having deliberated, decides as follows:

THE FACTS

The applicant is a British national, born in 1971 and living in Bristol. She is represented before the Court by Ms N. Collins of Liberty, London. The respondent Government are represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.

A. Particular circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant lives with her two children in a house owned by a local housing association, the Solon Housing Association (“SHA”).  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.

Concorde Drive is in the parliamentary constituency of Bristol North-West . 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.”

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 his 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”.

The applicant was approached by journalists and TV 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.

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.”

The applicant was also stopped in the street, spat at and abused by strangers as “the neighbour from hell”.

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.

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.

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 her 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.”

B. Relevant domestic law

1. Privilege

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 ”.

The effect of this privilege was described by Lord Cockburn CJ in the case of Ex parte Watson (1869) QB 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”.

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.

The question of whether or not qualified privilege applies to statements made in any given political context turns upon the public interest. In the case of Reynolds v. Times Newspapers Ltd   [2001] 2 AC 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:

“ The common law should not develop ‘political information’ as a new ‘subject matter’ category of qualified privilege, whereby the publication of all such information would attract qualified privilege, whatever the circumstances. That would not provide adequate protection for reputation. Moreover, it would be unsound in principle to distinguish political discussion from discussion of other matters of serious political concern. The elasticity of the common law principle enables interference with freedom of speech to be confined to what is necessary in the circumstances of the case. This elasticity enables the court to give appropriate weight, in today’s conditions, to the importance of freedom of expression by the media on all matters of public concern.

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.”

Press coverage, to the extent that it fairly and accurately reports parliamentary debates, is generally protected by a form of qualified privilege which is only lost 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.

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”.

2. Breach of confidence

In order for an action for breach of confidence to lie in English law in respect of unauthorised disclosure of true information, three conditions must be satisfied:

(1) the information must have the necessary quality of confidentiality              and must not have been published previously;

(2) the information must have been acquired in circumstances which              impose a duty of confidence; and

(3) there must be an unauthorised use, or threatened use, of the              information to the detriment of the plaintiff.

An action in respect of breach of confidence will not lie if there is a strong public interest in disclosure. In appropriate circumstances, the domestic courts will grant an injunction to prevent the disclosure of information in breach of confidence.

3. Legal aid and “Green Form” assistance

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.

“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.

4. Conditional fee agreements

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.

5. Limitation period

The limitation period applicable to any 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.

C. Report of the Joint Committee on Parliamentary Privilege

A Joint Committee of both Houses of Parliament was set up in July 1997 with the task of reviewing the law on 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 set 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."

D. The Council of Europe and the European Union

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 Consultative 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.”

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, as relevant, as follows:

“Article 14

Representatives to the Consultative 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 Consultative 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. ...”

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.”

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.”

E. Third-party interventions

1. The Dutch Government

The Dutch Government draw attention to Article 71 of the Dutch Constitution, which confers upon members of the Senate and House of Representatives of the States General an immunity from every category of legal proceedings.

They state 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 provincial and municipal level.

The Dutch Government submit 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.

2. The Irish Government

The Irish Government submit that parliamentary immunity has developed throughout the world not as a constraint upon the rights of the citizen, but as a fundamental liberty. They argue 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 support this argument by reference to the preamble to the Convention.

The Irish Government point 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.”

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 state that there is no absolute right of reputation or protection from defamatory utterances under Irish law.

They draw attention also to the privileges and immunities enjoyed by Representatives to the Consultative Assembly of the Council of Europe and Members of the European Parliament (see above). They submit that it is difficult to see how such immunities can be consistent with the Convention if the conferring by individual States of similar immunities in respect of their own Parliaments itself violates the Convention.

The Irish Government argue that the importance of the legitimate objectives pursued by parliamentary immunity is difficult to overstate and that it is 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 say that the Court must have regard to the fact that States are in principle better placed than an international court to evaluate local needs and conditions.

3. The Italian Government

The Italian Government point 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 the Council of Europe and the European Communities. They submit 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 are founded.

They state 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 have been appointed by each of the Parliament, the supreme courts and the President of the Republic.

The Italian Government submit that parliamentary privilege pursues its legitimate aim in a proportionate manner, particularly since its scope is limited to parliamentary activity. They argue that MPs would not be able to speak their mind freely in Parliament in the absence of an absolute immunity.

COMPLAINTS

The applicant complains that the absolute nature of the privilege which protected the statements made about her in Parliament violated her right of access to court under Article 6 § 1 and her right to privacy under Article 8 of the Convention. She also invokes Article 14 of the Convention as she states that she was disadvantaged as compared to a person who is the subject of equivalent statements made in an unprivileged context. She complains further that the absence of legal aid for defamation proceedings violated her right of access to court under Article 6 § 1. She contends that the qualified privilege enjoyed by the press contributed towards the absence of any effective remedy in respect of the violations which she suffered, contrary to Article 13 of the Convention.

THE LAW

A. The Government’s preliminary objections

1. Non-exhaustion of domestic remedies

The Government submitted that the applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention, which provides (as relevant):

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, ... .”

The Government highlighted two domestic courses of action which the applicant had failed to pursue.

The first was legal proceedings against the MP in respect of the press release which he issued in advance of his parliamentary speech. They pointed out that the press release did not attract absolute privilege and that the question of whether or not it attracted qualified privilege was never litigated before the domestic courts. They argued that, applying the criteria laid down by Lord Nicholls of Birkenhead in the above-mentioned case of Reynolds v Times Newspapers Ltd , it was open to the applicant to argue that any claim by the MP to qualified privilege in respect of the press release should fail. The applicant could thus have sued the MP and claimed damages for the harm which she had allegedly suffered.

The Government submitted that the applicant could therefore have brought defamation proceedings against the MP in relation to those allegations made in his press release which were untrue. In respect of any true allegations contained in the press release, they maintained that the applicant could have sought to uphold her rights to privacy by way of an action for breach of confidence. They argued that the possibility of such an action was sufficient to fulfil the United Kingdom’s positive obligation to protect privacy under Article 8 of the Convention and that the conditions which must be met in order that such an action can succeed struck a fair balance between the right to privacy and the right to freedom of expression. Because the applicant had chosen not to litigate in the domestic courts, the Government said that it was impossible to say whether or not the conditions concerned would have been met on the facts of the applicant’s case.

The second domestic course of action which the Government submitted that the applicant had failed to pursue was legal proceedings against the press in respect of their reporting of the MP’s allegations. However, the Government accepted at the hearing before the Court that the reports concerned would very probably have been protected by qualified privilege.

The applicant submitted that, even if the MP’s press release was unprotected by qualified privilege, defamation proceedings in respect of it would not have provided her with an effective remedy, but rather only a theoretical and illusory one. She pointed out that libel litigation was notoriously complex and, in the absence of legal aid for defamation proceedings, she would have been unable to conduct such litigation. Similarly, she stated that the circumstances of her case would not have allowed her to bring an action for breach of confidence in respect of true statements contained in the press release. She said that she could not have proved that the information concerned was confidential, nor that it derived from a confidential relationship, nor that its release had been unauthorised by the MP’s sources. At the time in question, no more general right of privacy had existed in domestic law.

As regards the possibility of legal proceedings against the press, the applicant highlighted the fact that, once it was accepted that the reports were covered by qualified privilege, there was no prospect of defeating the privilege by proof of malice on the part of the newspapers concerned.

All in all, the applicant argued that she had no effective domestic remedy in respect of the allegations which had been made against her.

The Court notes that the applicant’s principal complaint concerns her inability, due to the absolute nature of the privilege concerned under domestic law, to take legal action against the MP in respect of the statements which he made about her in Parliament. It notes further that any legal challenge in respect of the contents of the MP’s press release, whether by way of proceedings in defamation or breach of confidence, could not in practice have affected the making of the parliamentary speech, nor the subsequent publicity which led to the unfortunate consequences suffered by the applicant and her children. Indeed, the contents of the press release could not have become known to the applicant until after the speech had been delivered. Furthermore, the likely application of qualified privilege to the reporting of the speech, together with the fact that the articles concerned were printed the following day, meant that the applicant could not realistically have obtained any prior injunction against publication of the allegations.

The Court thus concludes that the Government have failed to show that proceedings in respect of the MP’s press release or the newspaper articles would have provided the applicant with an available and sufficient remedy in respect of her complaints.

It follows that the Court rejects the Government’s objection under Article 35 § 1 of the Convention.

2. The applicant was not a “victim”

The Government submitted also that, because of the availability of domestic remedies which the applicant had failed to exhaust, the applicant was not a “victim” of the operation of parliamentary immunity for the purposes of Article 34 of the Convention, which provides (as relevant):

“The Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. ....”

The Court has already concluded that the Government have failed to show that the domestic remedies concerned would have provided the applicant with an available and sufficient remedy in respect of her complaints.

For the same reasons, the Court rejects the Government’s objection under Article 34 of the Convention.

3. The compatibility ratione materiae of parliamentary privilege with Article 6 § 1

The Government argued that the substantive content of the civil right to reputation in domestic law was delimited by the rules of parliamentary privilege, and that a person whose reputation was damaged by a parliamentary speech therefore had no actionable claim so as to engage the procedural safeguards of Article 6 § 1 of the Convention.

The applicant argued that the absolute immunity which MPs enjoy from legal action in respect of words spoken in parliamentary proceedings was an aspect of procedural law which fell within the scope of Article 6 § 1.

The Court notes that the Government, in arguing that Article 6 § 1 is not engaged in the present case, are pleading that the application is incompatible with the provisions of the Convention under Article 35 § 3. However, the Court is of the view that these arguments are closely linked with the substance of the applicant’s complaints. Consequently, they should be joined to the merits of the application.

B. Articles 6 § 1, 8, 13 and 14 of the Convention

1. Parliamentary privilege

The applicant complains that the absolute nature of the privilege which protected the statements made about her in Parliament violates her right of access to court under Article 6 § 1 of the Convention and her right to privacy under Article 8 of the Convention.

Article 6 § 1 provides (as relevant):

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

Article 8 provides:

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

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 in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The applicant also complains under Article 14 of the Convention that she was disadvantaged as compared to a person who is the subject of equivalent statements made in an unprivileged context.

Article 14 provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Government regard it as a fundamental constitutional principle that statements made in Parliament should be protected by absolute privilege. They state that such a privilege serves the dual public interests of free speech in Parliament and the separation of powers. They indicate that such legitimate aims are of sufficient importance to outweigh any harm which may result from words spoken in Parliament to the rights of individuals. They point out that the absolute privilege is designed not to protect individual members, but Parliament as a whole, and operates only where it is strictly necessary, namely within Parliament itself. They draw attention also to the fact that Parliament has its own internal mechanisms for disciplining an MP who deliberately makes a false statement in the course of a debate.

The Government comment that all contracting States to the Convention, together with most other democracies, such as the United States, have some system of parliamentary immunity, though the precise features of such systems vary. They refer also to the immunity enjoyed by members of various international institutions, including the Parliamentary Assembly of the Council of Europe and the European Parliament (see above).

The Government highlight the conclusions reached by the recent review of parliamentary privilege by a Joint Committee of the House of Commons and House of Lords in support of retention of the rule of absolute parliamentary immunity (see above).

In all the circumstances, the Government argue that the rule of absolute parliamentary immunity is justified in principle in the public interest. They maintain that, once such a justification is recognised, there is no basis for distinguishing the facts of individual cases.

The Government contrast the absolute immunity enjoyed by MPs in Parliament with the qualified immunity enjoyed by the press when reporting parliamentary proceedings. They indicate that the public interest in free reporting of such proceedings is not considered strong enough to justify absolute privilege in that context, and so the domestic law has qualified the privilege by requiring the publisher to report in a “fair and accurate” manner and without improper motive.

As to the applicant’s Article 14 complaint, the Government comment that this adds nothing to her Article 6 and 8 complaints.

The applicant argues that Article 9 of the Bill of Rights left her unable to bring domestic proceedings in respect of both the defamatory and the true elements of the MP’s parliamentary speech. She highlights the fact that, under the Defamation Act 1996, MPs can effectively waive Parliamentary immunity where it suits them to do so by having evidence relating to statements in Parliament admitted to court in litigation which they have initiated. Although she accepts that parliamentary privilege pursues the legitimate aims of free debate and regulation of the relationship between legislature and judiciary, she submits that it does so in a disproportionate manner. She contends that the broader an immunity, the more compelling must be its justification, and that an absolute immunity such as that enjoyed by MPs must be subjected to the most rigorous scrutiny. Thus, she argues that the proportionality of the immunity can only be determined in the light of the facts of her case. She draws attention to the severity of the allegations made in the MP’s speech and his repeated reference to the applicant’s name and address, both of which she claims were unnecessary in the context of a debate about municipal housing policy. She points also to the consequences of the allegations for both her and her children, which she says were utterly predictable.

The applicant submits that the parliamentary avenues of redress identified by the Government do not offer access to an independent court and fail to provide her with any effective remedy. She contrasts the position in Parliament with that in other democratic institutions in the United Kingdom such as local councils, where only qualified privilege applies. She argues that the parallel drawn between national Parliaments and international bodies such as the Council of Europe is inexact. She says that freedom of speech in Parliament must, as in the local government and other contexts, carry with it duties and responsibilities, as confirmed by Article 10 § 2 of the Convention.

Under Article 14, the applicant submits that Article 9 of the Bill of Rights left her at a severe disadvantage as compared to a person who is the subject of equivalent statements made about them in an unprivileged context.

2. Legal aid

The applicant complains further that the absence of legal aid for defamation proceedings violated her right of access to court under Article 6 § 1 of the Convention.

The Government argue that this aspect of the applicant’s complaint can be restricted to the MP’s press statement, since any cause of action in respect of his speech would be bound to fail and thus cannot have required the provision of legal aid. They submit that the national authorities have determined within their margin of appreciation that it is not in the public interest to allocate limited legal aid resources to the pursuit of defamation actions. However, they point out that, as of July 1998, it was open to the applicant to seek legal assistance by way of a conditional fee arrangement. The “Green Form Scheme” would also, they say, have allowed the applicant to secure initial advice on the strength of any claim.

The applicant submits that her inability to secure legal aid for the purposes of bringing defamation proceedings in respect of the untrue allegations made against her violated her right of access to court under Article 6 § 1. She submits that the Commission’s case-law dismissing complaints against the United Kingdom about the non-availability of legal aid in defamation proceedings is limited to the facts of each case. She maintains that it would have been wholly unrealistic to expect her to commence proceedings as a litigant in person, since she has no formal qualifications and is an unmarried mother of two young children. She argues that publicly-funded legal assistance was particularly warranted on the facts of her case due to her financial situation and the severity of the consequences of the MP’s allegations both for her and for her children.

The applicant accepts that, after July 1998, it was open to her to seek lawyers to act for her on a contingency fee basis, but argues she would have remained exposed to liability for her opponent’s costs had she lost and that, at the time in question, contingency fee arrangements were still a novelty. Although in some cases insurance against the costs risk is available, the applicant says that it is expensive and beyond her means. As for the “Green Form” scheme, she highlights that this does not pay for legal representation in court.

3. Effective remedy

The applicant contends that the absolute privilege enjoyed by MPs in Parliament, together with the qualified privilege enjoyed by the press, led to the absence of any effective remedy in respect of her complaints, contrary to Article 13 of the Convention.

Article 13 provides:

“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.”

The Government contend that the applicant’s only arguable complaints relate to the allegations made in the MP’s unprivileged press release. In respect of that release, they state that the applicant had an unfettered right of access to court by way of proceedings in defamation or breach of confidence.

4. The Court’s assessment

The Court considers that the application raises complex issues of law and fact under Articles 6, 8, 13 and 14 of the Convention, the determination of which should depend on an examination of the merits. It concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Decides to join to the merits the Government’s objection concerning the applicability of Article 6 § 1 of the Convention;

Declares the application admissible, without prejudging the merits of the case.

S. Dollé J.-P. Costa Registrar President