The Guardian is reporting today that Home Office legal advisers think Brodie Clark, the former senior civil servant at the Border and Immigration Agency, will win his employment tribunal claim against the Home Office. I find this slightly strange, for a couple of reasons.
First, if “Home Office lawyers” really have given such advice, I think it must be an informal initial view. The Home Office has a surprisingly small legal team compared to other government departments, and its lawyers mainly advise on things like immigration legislation and anti-terrorism. Employment lawyers at TSol will defend this case, and will undoubtedly be involved already – I’d have thought any serious advice on the merits of Clark’s claim would come from them. More likely, one of the government’s favourite employment counsel, or First Treasury Counsel, will be producing advice right now.
More importantly, Brodie Clark’s claim may face a much more serious obstacle, as I suggested to Charon QC in our Without Prejudice special yesterday. If I’m right, though, his problem may give more discomfort than relief to Theresa May.
What’s being reported all over the media is that Clark is claiming “constructive dismissal”. That’s fair enough as far as it goes: constructive dismissal is a legal doctrine according to which you’re regarded as having been dismissed from your job, even though you walked out of your own accord, if you were treated so badly that it amounted to a serious breach of contract by your employer. But “constructive dismissal” isn’t in itself something you can make a claim for in a tribunal. If a tribunal agreed you’ve been constructively dismissed, all this means is that’s you’ve been dismissed. Brodie Clark will either be claiming it was an unfair dismissal (this is what people usually do – it’s a claim that the dismissal was in breach of the Employment Rights Act 1996) or wrongful dismissal, which is really just a complaint of breach of contract.
Brodie Clark’s claim seems to be based on what Theresa May said to the Home Affairs Select Committee on Tuesday. I assume he’ll be arguing that, by making the statements she did while he was undergoing disciplinary procedures laid down in his terms of service (either because they form standard terms of his employment or because they’re in an individually-drawn contract), May prejudged his disciplinary case, and (to put it in terms of unfair dismissal law) the dismissal was as a result procedurally unfair.
The problem with this is that he’d be in essence complaining to a court about what she said, and wanting the tribunal to do something to her – award compensation against her for instance – for having said it. That seems to me to run slap-bang into Parliamentary privilege, and in particular article 9 of the Bill of Rights 1689, which provides that
Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.
I’m aware that article 9 isn’t quite what it used to be: in recent years, the courts and the law have become more relaxed than ever about referring to Hansard and Parliamentary materials. But they’ve not relaxed all that much.
The big change came with the House of Lords’ decision in Pepper v Hart in 1992, in which the old absolute prohibition on looking at Parliamentary debates was modified so as to allow Hansard to be used in very limited circumstances as an aid to interpreting legislation. Pepper v Hart hasn’t been relied on all that much, though, and the principle in it may only really apply where government makes assurances to Parliament about how it will apply legislation it wants enacted, then rats on those assurances after the bill is passed.
Judges will look also happily look at Hansard as part of the background to a judicial review claim, so as to understand the policy under challenge: an example is this case, R (Niazi) v Home Secretary, in which a policy decision made by Charles Clarke was announced (quite rightly) in Parliament, and in which his Commons statement is referred to in the judgment. It’s important to remember in that case, though, that what was challenged was the policy – not the announcement itself. The policy was not decided in the House of Commons.
In a similar way, judges will look at Hansard as part of the background when deciding whether legislation is compatible with Convention rights under the Human Rights Act 1998. As Lord Nicholls said in Wilson v Secretary of State for Trade in 2003 (paragraph 65),
To that limited extent there may be occasion for the courts, when conducting the statutory ‘compatibility’ exercise, to have regard to matters stated in Parliament. It is a consequence flowing from the Human Rights Act. The constitutionally unexceptionable nature of this consequence receives some confirmation from the view expressed in the unanimous report of the parliamentary Joint Committee on Parliamentary Privilege (1999) (HL Paper 43-I, HC 214-I), p 28, para 86, that it is difficult to see how there could be any objection to the court taking account of something said in Parliament when there is no suggestion the statement was inspired by improper motives or was untrue or misleading and there is no question of legal liability.
Lord Woolf, in 1998 when he was Master of the Rolls, gave interesting evidence to that Parliamentary joint committee inquiry into privilege, in which he said in effect that he was relaxed about the normal practice of the courts. He said
The practice however is for both applicants and the government to use Hansard to indicate what the government’s policy in a particular area is.
That’s what happened in Niazi of course. Lord Woolf was anxious to reassure the committee about the nature of what the courts are up to, though:
I emphasise that what at present happens in the courts does not involve questioning what has happened in Parliament. It involves no more than using Hansard as a factual record of what happened in the House. There is no infringement of the Bill of Rights.
What Brodie Clark would need to do in this case is, however, neither the interpretative use of Hansard permitted by Pepper v Hart, nor the use of it as background to a policy, as in Niazi, nor the use of it as background to a human rights compatibility exercise as permitted by Wilson. He would be impugning the Home Secretary’s words themselves, and trying to get a remedy against her for saying what she did. It would be plainly impeaching or questioning what she said, in a way that clearly goes beyond the current practice of the courts.
In case you think this is all academic, it’s worth pointing out that the Speaker will instruct the Attorney General (one of whose myriad roles is to advise and represent Parliament – something I’m not aware he’s often asked to do) to intervene in a case where he fears a breach of privilege. He did so in Bradley v Work & Pensions Secretary for instance, in 2007, in which Mr. Justice Bean said (para. 34)
I agree with Mr Speaker that to allow the evidence of a witness to a Select Committee to be relied on in court would inhibit the freedom of speech in Parliament and thus contravene article 9 of the Bill of Rights.
For completeness I should say that the judgment in that case was appealed; the Court of Appeal thought Parliamentary materials could be used (para. 43 of Sir John Chadwick’s judgment), but
to the extent only that ministerial statements made during the passage of legislation throw light on the purpose for which the legislation was introduced
which is clearly analagous to the approaches taken in Niazi and Wilson of course.
There’s no question of any MP being able to “waive” privilege: it’s a clear statutory prohibition that applies to courts and tribunals in all circumstances, not a defence that’s open to Theresa May to choose to rely on, or not. Neil Hamilton MP needed an Act of Parliament in 1996 to enable him to bring libel claims about his conduct in the House.
And as Lord Woolf said in the Court of Appeal in the litigation between Neil Hamilton and Mohammed Al Fayed,
the vice to which art 9 is directed (so far as the courts are concerned) is the inhibition of freedom of speech and debate in Parliament that might flow from any condemnation by the Queen’s courts … of anything there said.
That’s exactly what Brodie Clarke will have to ask the tribunal to do, if his complaint is directed at Theresa May’s committee evidence. I don’t think he can.
There is one last point to make: whether the operation of Parliamentary privilege in a case like this, by preventing Brodie Clarke from claiming unfair or wrongful dismissal, would breach the article 6 Convention right to a fair trial (assuming article 6 applies to the employment of such a senior civil servant responsible for border policy – I think it probably does, applying Vilho Eskelinen v Finland – para. 62 summarises the position).
A v UK, in which A’s inability to sue for libel (after her MP called her a “neighbour from hell”) was held not to breach article 6, appears on the face of it to be a complete answer to an article 6 claim (I forgot about this case when I spoke to Charon QC yesterday). But is it so clear as to exclude all possible argument? I’m not sure. In some ways Brodie Clark’s situation differs from that of A. In her case, she was asserting no civil right except the right not to have such things said about her; in Brodie Clark’s case, he is trying to assert a separate civil right to his employment. Again, in her case, she wanted to take action in respect of the words themselves; in Brodie Clarke’s case, it’s the dismissal that he wants to complain about. So there may be just a little room for argument about it. I doubt the argument gets far, but it’s the only hope of overcoming privilege.
This tribunal claim, if it goes to a hearing, will do no good for Theresa May, politically. It’ll be even worse for if she’s seen to “get off” because of Parliamentary privilege, as MPs charged with expenses offences failed to do of course. And I doubt she wants the Human Rights Act to get dragged into it in any way, shape or form. So I wouldn’t advise she’d lose the case; but I would advise her to settle.