Mr Loughton had sent an entire daily part of Hansard, containing among other matters an adjournment debate in which Mr Loughton complained about previous actions of Sussex Police and "sacked" a constituent, together with a compliments slip, to the constituent concerned. Mr Loughton sent the Hansard in this manner on the advice of the Clerk of the House to ensure that he would be legally protected from further complaints.
On 4 September 2013 Sussex Police issued a Police Information Notice (PIN) to Mr Loughton, saying:
On 18 March 2013 the complainant, [...] received a copy of House of Commons Official Report, Parliamentary Debates (Hansard) dated Wednesday 13 March 2013. This document was delivered without an explanation and without an accompanying letter. It was subsequently confirmed that the copy of this document was sent by you to the complainant. Due to a number of linked matters the complainant felt that the sending of that report was part of a collective harassment directed towards him.
The matter was referred to the Committee on 9 October 2013. The Committee considered whether the action was a breach of privilege or a contempt of the House.
As the Clerk Assistant said:
the central issue facing the Committee is not that a PIN has been issued to a Member of Parliament: nor that a Member’s communication with a constituent has attracted a formal police warning: but that the action referred to in the PIN was the sending of a daily part of Hansard.
The privilege of absolute freedom of speech in proceedings in Parliament is articulated in Article IX of the Bill of Rights, but this freedom does not extend to the publication of proceedings. Publication is governed by the Parliamentary Papers Act 1840 which provides that legal proceedings arising from the publication of a paper by order of either House of Parliament, or of a copy of such a paper, will be stayed on delivery of a certificate that such publication is made by order; and that there is legal protection for the publication of excerpts or summaries of proceedings, when they are made without malice.
Sussex Police claimed that the PIN was issued because of the action of sending the Hansard, but the Committee’s analysis of the PIN, the witness complaint and the evidence submitted by the police leads it to conclude that the PIN was in fact motivated by the content of Mr Loughton’s speech to the House.
As the Joint Committee on Parliamentary Privilege (PDF 1.49MB) said: “The fundamental purpose of affording absolute privilege to proceedings in Parliament is to protect those proceedings themselves, so that the democratically elected representatives of the people can engage in free and fearless debate on issues of public concern.” (para 187). If people consider there could be adverse consequences from saying what they really thought, even in parliamentary proceedings, they would be less likely to speak out— the so-called “chilling effect”.
The Committee concludes:
A threat of legal action arising from the content of a speech made in the House and published by Order of the House is clearly a contempt. The ability of those who speak in Parliament to speak freely is a fundamental part of our democracy. The prospect that there may be legal proceedings in consequence of the making of or simple publication of, such a speech is likely to have a chilling effect on MPs and on others who take part in official proceedings.
The Committee accepts the contempt was inadvertent. The Committee notes that the protection of the 1840 Act meant the PIN was “an empty threat.” It considers:
it would be appropriate for the PIN issued to Mr Loughton to be withdrawn. This is of course a matter for Sussex Police. We are not qualified to judge whether it would be appropriate for the police to issue a further PIN in relation to the other behaviour referred to, although we note it would presumably be based on the actions of unknown persons and on letters which they themselves have said they do not suggest were sent by Mr Loughton. Sussex Police should inform the Committee of the decision that they make and the reason for it. We will not consider this matter closed until they do so.
As far as reference to Mr Loughton’s sending of Hansard in any future PIN is concerned, we see no merit in a PIN which explicitly states that the act complained of could not be the subject of any prosecution, and the police actions in relation to the sending of Hansard are so clearly related to the content of the document that no rider could avoid the repetition of their previously inadvertent contempt.
During the inquiry it became apparent that Mr Loughton’s words in the House had also given rise to a matter recorded in a racist incident complaint. The Committee warns that:If [...] Members’ knew their words in the House could be recorded as potential crimes, there would undoubtedly be a chilling effect, and interference with the freedom of speech in the House.
The Committee considers that recording of such a complaint in this case was not a contempt because no one outside Sussex Police service was aware of the action taken, and therefore it could not be said to interfere with the functions of the House or its Members.
In conclusion, the Committee notes:
Each case must be judged on its own merits, but while we have exercised restraint in this case, given the novelty of the circumstances, we would regard future attempts to restrict Members’ freedom of speech in the House through PINs as a serious contempt. Moreover, we would deplore any attempts to circumvent either the freedom of speech in Parliament or the protection of the 1840 Parliamentary Papers Act by resorting to technicalities.
Mr Loughton's purpose in sending the Hansard was to give notice that he would not deal with his constituent again, and so we consider a repetition of the incident is unlikely. If a Member were to misuse his or her position, and misapply public resources, by repeatedly using Hansard as a means of intimidation, we expect that the Parliamentary Commissioner for Standards and the Committee on Standards would be prepared to investigate and take action.
We do not consider further action is necessary in this case, subject to an appropriate response from Sussex Police. Nonetheless, we deplore Sussex Police’s inability to recognise that the freedom of speech in Parliament, and the ability of Members to carry out their functions without unfounded legal threats, are themselves part of the law which the police uphold.