John Hemming’s extraordinary defence

John Hemming MP wrote an extraordinary article in the Huffington Post last week, defending his actions in the Vicky Haigh case.

First I want to address one of the legal points he raises in the piece. This one’s on American constitutional law. He says:

In the USA it would be clearly unconstitutional to apply to jail someone for complaining at a meeting in Congress. This falls within the terms of Amendment One to the US Constitution.

It’s common among those who oppose injunctions issued by UK courts in privacy and family cases to cite the First Amendment to the US Constitution, and to suggest that what they’re complaining about in England could never happen in the States. The argument can be overdone, though. This case shows us that American judges can be just as fierce as their English counterparts in clamping down on self-serving publicity by parents in family cases involving children.

While admittedly Eugene Volokh thinks the ruling a breach of the First Amendment, I wonder whether he’d take the same view if the facts were like Vicky Haigh’s case – that is, if the order prevented the mother from discussing the details of her child’s case in public, in circumstances where she’s been found to have made, and coached her child in, false sexual abuse allegations against its father, and in which those same false and defamatory accusations, naming the father, are being peddled round the internet. I’d welcome the view of any US constitutional lawyer about whether or not that would be constitutionally protected speech.

Nor do I think it’s obvious the “speech or debate clause” in the US constitution would have protected Vicky Haigh if the meeting had been on Capitol Hill, any more than Parliamentary privilege protected her here because she happened to speak on the Parliamentary estate. Not being a legislator, she obviously wasn’t acting as one when she spoke at John Hemming’s meeting.

Discussion of constitutional rights in Britain – such as freedom of speech – would be better if it were free of mythologising about other constitutional frameworks. John Hemming is entitled to cite the US Constitution in his support – if he sets out a decent argument explaining why he’s justified in invoking it. An airy reference to the First Amendment, as though it simply means anyone can say anything in America, isn’t enough.

Coming back to England, Hemming says

I stand by my decision to identify Vicky Haigh as someone whose constitutional rights (Under Article 5 of the UK Bill of Rights 1688) were being threatened by Doncaster MDC.

This seems to me another unjustified invocation of constitutional rights, this time the right to petition the Queen under article 5 of the Bill of Rights:

That it is the Right of the Subjects to petition the King and all Commitments and Prosecutions for such Petitioning are Illegall.

This right can be exercised either by petitioning the Queen directly, or by addressing a petition to Parliament (of which the Queen is a constituent part, of course). The idea that speaking at John Hemming’s private meeting amounts to petitioning the Sovereign is absurd. By the way, the right to petition the Queen directly, while of limited interest to those concerned with real constitutional rights and duties, is of great concern to people like “freemen on the land” who claim they’re in “lawful rebellion” against the legal institutions of this country.

But back to earth, and John Hemming. He says

… in a small proportion of cases parents abuse their children. Furthermore at times in family court cases there are at times false allegations of abuse. Additionally at times the court decides that an allegation is false when in fact it is true ..

.. Hence if you have an allegation of abuse that is true, but the court has decided it is false then the court makes the wrong decision and potentially places the child with a parent who has maltreated the child ..

.. In Vicky Haigh’s case … the court decided she had made false allegations.

What strikes me as extraordinary here is the way Hemming’s references to a court deciding that an allegation is false when in fact it is true, to an allegation of abuse that is true, but the court has decided it is false and then finally to Vicky Haigh’s case in which the court decided she made false allegations can easily be read as implying he does not accept the court’s findings.

So much for John Hemming’s earlier suggestion that he’s been interested only in the free speech aspects of this case. It seems to me reasonable to infer from this Huffington Post piece that he believes there’s something in Vicky Haigh’s claims – in spite of judicial findings that they’re fabricated.

I’m happy to be corrected if in fact he accepts those findings.