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Freedom of Speech: Members of Parliament

Volume 560: debated on Wednesday 13 March 2013

Motion made, and Question proposed, That this House do now adjourn.—(Anne Milton.)

I am very grateful, particularly to you personally, Mr Speaker, for this opportunity to raise a matter in the House that relates to a criminal investigation that has been conducted against me by Sussex police over the past six and a half months before being dropped, but which has implications for all hon. Members and how we communicate with our constituents.

I am sure that I speak for all hon. Members when I say that we all appreciate our constituents—it is one of the reasons we do our job—but I doubt that there are many hon. Members without a tiny minority of constituents who either by design or default try to make our lives hell. A very few think they have a divine right to be gratuitously rude to MPs or other figures in the public eye, and some think they can be offensive because of their own political allegiances—although I have never had that problem with my own opposition locally, with whom I have always had a constructive relationship—and others have personal issues that make them obsessive.

In the case of Mr Kieran Francis of Shoreham in my constituency, he has all three attributes, as a result of which he has worked tirelessly to try to make my life hell, together with that of my staff at Westminster and at my constituency office, local councillors, council officials and countless others. To cut a long story short, going back many years Mr Francis has sought my help to promote formal complaints against the police for brutality against him; against the local hospital for not giving him the treatment he thinks he needs as a result of police brutality; against the Benefits Agency for having the temerity to summon him for an assessment; against the Courts Service for not enabling him to progress legal action; and against the local council and council officials for all manner of things. I am not aware that any of his complaints has ever been upheld on any substantive issues. He is a serial complainer with more chips on his shoulder than McCain’s, and as someone who does not work and is on benefits, he has too much time on his hands, as well.

When Mr Francis does not get his way, he becomes abusive. He once stormed out of my surgery accusing me of being “an effing Nazi”. He has attended my street surgeries to harangue my local councillors and me. He rings my office repeatedly to abuse my staff, despite having been told constantly that he should not contact my office, having reduced a former member of staff to tears when she was heavily pregnant. But of course Mr Francis knows better. He also knows better than to commit his abuse to paper, so last year he increasingly took to social media, including his own blog, where terms beginning with the F word, the C word and the W word directed at me and others are commonplace, along with creatively doctored photographs.

I am referred to as “an arrogant, lying, racist arsehead”—one of the more moderate terms of endearment that Mr Francis uses—and am likened to the perpetrators of the holocaust. The cabinet of Adur council in my constituency is referred to as “the Führer council”; a council official is an “ugly pig-faced fascist”; a constituent is condemned as “a paedophile”; and another who is now suffering mental health problems as a result is taunted with the phrase, “Let’s hope his **** shrivels up and drops off whilst he is suffering a horrible death at the hands of a nasty disease.” Elsewhere, he has boasted about his trips to far-left rallies in the Czech Republic; on social media, he details his dream dinner guests, including Adolf Hitler and Pol Pot, and is pictured with his prized collection of over 300 edged weapons. He also describes a scene in the local council chamber drenched with blood; he is there with machine gun in hand until he wakes up and realises it is only a dream—much to his disappointment.

Let me give a more graphic idea of what I am talking about. Mr Francis has recently posted a photo-shopped image of me taken when, as a Minister last year, I was visiting a school in east London in support of the City Year charity, except that now I have Nazi insignia on my jacket and I am toting a smoking gun in a playground full of screaming, fleeing children. I will not read you the caption, Mr Speaker, but it is just one of many such tasteless and grossly offensive postings. These appear on a blog run by Mr Francis, previously masquerading under the pseudonym of “Lord Hardy Ha Ha”, with a photograph of him wearing a terrorist-style balaclava. Despite complaints to Sussex police, these remain on the web.

Last year, Mr Francis engaged in almost constant complaints against the local Adur district council, in respect of which he was a tenant of a council house and had an allotment. The most prolific issue was on account of his losing his allotment because of complaints about his abusive behaviour against other allotment holders and his using human excrement on his compost heap. After a court case, which he lost, the council placed Mr Francis on their “customer of concern” list—or “COC” list as Mr Francis proudly and loudly boasted. On the internal document for the COC list that he obtained under freedom of information, under the section marked “description” he is referred to as “unkempt”—cue another complaint from Mr Francis that Adur council should deign to refer to him as unkempt.

After failing to get satisfaction from Adur council and after one of his regular abusive visits to one of my street surgeries, Mr Francis wrote to me. I investigated and sent an e-mail back to my constituent, saying that given that the dictionary definition of “unkempt” is “untrimmed, dishevelled and rough”, the council’s description—not mine—struck me as “eminently accurate”. Anyone who has seen a photograph of the pony-tailed, shaggily bearded Mr Francis could not but concur. For good measure, and uniquely in almost 16 years of being a constituency MP—but probably unwisely—I let my true feelings get the better of me and referred to Mr Francis’s latest whinges as self-serving nonsense. In place of the word “nonsense”, however, the word I used, which I took off Mr Francis’s own blog—one that you have given me special dispensation to use today, Mr Speaker—was “bollocks”. It was one of the tamer terms frequently used against me and others by Mr Francis.

Indeed, the word is often used figuratively as a noun to mean “nonsense”, as an expletive following a minor accident or misfortune, or as an adjective to mean “poor quality” or “useless”. Conversely, the word also figures in idiomatic phrases such as “the dog’s bollocks” or “the bollocks”, referring to something that is admired, approved of or well respected. Thank you to Wikipedia for that! Moreover, as Members may be aware, the well-respected overseas aid charity ActionAid has been running a high- profile and successful campaign called “Bollocks to Poverty”. I therefore thought that I was on safe ground. Having suffered years of abuse at the hands of Mr Francis, I thought it was about time to make the point that enough was enough, and that a proportionately robust reply was in order. Someone needed to stand up to his self-indulgent time wasting that has cost the taxpayer thousands over the years.

What happened next and the reason for securing the debate today—as well as for the national media publicity that has accompanied my case—has caused consternation. Within hours of receiving my e-mail, and before phone calls to my Westminster office and a foul-mouthed tirade at my researcher, Mr Francis contacted the police claiming that I was guilty of an offence under the Malicious Communications Act 1988. A few days later, I was contacted by a detective inspector from Sussex police requesting a meeting to discuss a “sensitive issue”. I responded immediately, saying that I was happy to help in whatever way I could, and 48 hours later a discussion of a “sensitive issue” became a 90-minute recorded interview under caution in Worthing police custody suite.

I was presented with a disclosure document that had given rise to the interview, in which Mr Francis had claimed that the single e-mail that I had sent him qualified as a malicious communication because

“Mr Francis states that he is of Romany Gypsy origin and feels that the references made against him within the email are of a racist nature and that the email contains insults of a grossly offensive nature.”

So using the word “unkempt” is deemed racist, purely on the basis that a constituent with a grudge says that it is, and the police go along with that. Even though it came as a complete surprise to me, and indeed to the local council, that Mr Francis is of Romany Gypsy origin, especially as he has lived in a council property for all the years I have dealt with him, since when has “unkempt” been a term associated with Romany Gypsies, let alone a derogatory one? Surely, if anything, it would be the act of identifying the term with Romany Gypsies that could be construed as racist, but that was down to Mr Francis, not me. As for his taking gross offence at one of the more moderate terms used on his own blog, whatever happened to proportionality? Some people might take it as offensive—although I doubt that they would take it as grossly offensive—but the likes of the constituent I have already described? I think not.

I was happy to help the police with their inquiries. It is absolutely right that all MPs should be treated no differently from any of their constituents, notwithstanding the occupational hazard facing us and others in public life that we are more high-profile targets for vexatious complaints. I have no problem with the fact that the rather embarrassed custody sergeant had to go through the formalities before the interview, asking whether I could read or write or had mental health problems; the answers were yes and no in that order. I was happy to tell the police everything I knew about my constituent, and to offer to hand over any correspondence that I had had with him over the years. In particular, I informed them of Mr Francis’s blog and Twitter account, which had given rise to the tone of my e-mail and both of which he had taken down at the same time as making the complaint to the police, knowing that they were self-incriminating. He is now claiming that his blog post-dated my e-mail. That is, of course, another of his lies, and the police should have traced it through the internet service provider.

At that point, anyone with any common sense could have seen that there was no basis to the case that had been advanced by a serial complainer, well versed in making malicious and vexatious complaints. The case could have been terminated at that stage. It would have satisfied the procedures that sprang from the Macpherson report, under which alleged race incidents should be taken seriously and should be subject to at least an initial investigation. However, there was no remotely racial side to this case, and any offence in the language was small beer compared with what I and other victims of Mr Francis had been subjected to over many years. I personally resent any suggestion that I am racist. Racism is an insidious cancer against which I have always fought. Equally insidious, though, are the forces of political correctness that seem to have been brought to bear in this instance, which can do so much damage to good race relations and social harmony and which too often triumph over common sense.

In this case, however, a full-blown investigation ensued, lasting six and a half months. I had contact with at least six separate officers who were involved, and a file was then sent to the Crown Prosecution Service in December. All my Westminster office staff were interviewed, as well as a former secretary who lives in Hampshire. We trawled the archives for all copies of previous correspondence, which were eventually collected two months later. Throughout that time, Mr Francis continued to post abusive articles about me on his blog, while I remained silent in order not to prejudice the case or be seen trying to influence the outcome.

When I put in my own complaint to Sussex police about some of these blogs being grossly offensive, my complaint was not taken up, and instead Mr Francis was warned to take down some of his posts and went quiet for a while, but only a short while. When I pointed out that I had made a formal complaint of my own and that the blog could provide material evidence, it transpired that the police had failed to take copies of the blog entries before they disappeared. They had lost their own police evidence and subsequently had to come to ask me if I had taken a copy, which, fortunately, I had.

Eventually the Crown Prosecution Service decided there was no case to answer and informed the police. A further two weeks later, on 26 February, when the investigating chief inspector returned from his holiday, my secretary—not me—was eventually told I was in the clear. That came as a huge relief, after this whole case had been hanging over me and my family since August of last year.

Not surprisingly, Mr Speaker, since being told that his complaint had no substance, Mr Francis has gone into overdrive of offensiveness. I gather that your office has had the joy of being called by Mr Francis, as has the local and national press repeatedly, the chairman of the Conservative party, the Prime Minister, assorted charities I am associated with and goodness knows who else.

How did this happen, and could it happen again, if not to me, then to any other hon. Member? Clearly there are local matters that I will be pursuing through the formal complaints process to Sussex police, and I shall lodge a complaint tomorrow. I had hoped that I could gain some answers at an informal meeting with the chief constable that I requested last week. I would also have been there taking up the cudgels if one of my constituents had fallen foul of a similar experience. I gave the chief constable a list of questions in advance, to try to get to the bottom of exactly how I had been subjected to such an intensive, and intensively wasteful, use of police resources. Yet without going into detail about that confidential meeting, I was treated by Chief Constable Martin Richards not only as if I was the subject of ongoing criminal investigations, but almost as if I had actually been charged and found guilty. It was as if “plebgate” runs well beyond the confines of Whitehall. I was given a prepared list of one-sentence answers, effectively saying the investigation was dealt with in an exemplary way. The chief constable is apparently happy that everything was handled properly, so clearly the same thing could happen again and again to me or anyone else.

What had the police done to determine that Mr Francis actually is of Romany Gypsy origin, and what specifically had caused offence to such a retiring violet? Who had authorised the investigation to carry on for this long? How many officers had been involved in the case, and how much had it cost? All these questions were met with a stone wall. To get any further, I would have to submit freedom of information requests to my own local constabulary. Well, that I have done, as well as submitting requests to the CPS and making a formal complaint about the way the investigation was carried forward, the incompetence with which it was handled by the police, and the failure of the chief constable of Sussex to exercise a modicum of common sense and instead support the system.

Not surprisingly, I have received a torrent of e-mails from around the country following the publicity about my case. Interestingly, many have come from police officers past and present, including senior ones from Sussex police. They are all aghast at my treatment, though not surprised. They agree with me that political correctness seems to have taken a stranglehold in much of the decision making by too many senior police officers, while common sense has gone out of the window. One comment was simply:

“Can we have our traditional police force back please?”


“Is this not another indictment of the state of modern day Britain?”

Risk aversion has replaced common-sense judgments as certain senior police do not want to do anything that might jeopardise their career with head office. The Association of Chief Police Officers 10-point decision-making model has been junked. An inquiry process that should be justified, accountable and proportionate has been ignored, and investigations have been stepped up to a higher authority and ultimately the CPS for fear of making a decision that might reflect badly.

If this can happen to an MP, it can happen to any of our constituents. It is no way to run a police service. It is little wonder that just last week the Brighton Argus reported on how low morale has sunk among Sussex police officers.

I have always been a strong supporter of my police force. I have always had a good relationship with my local officers, and I very much hope that that will continue, in all our interests, but this incident has severely knocked my confidence in whether the chief constable of Sussex and his senior management are working in the best interests of my constituents and the council tax payers, who have financed this whole waste of police resources.

One of my constituents has already asked me to supply her with a list of terms that she should avoid using in correspondence, for fear of having her shoulder felt. What should any of us do when faced with a gratuitously offensive constituent in the future? We can ignore them, but when they insist on coming back again and again with abuse against our staff and our colleagues or hounding us on social media, do we not have a duty to stand up against bullies? Our constituents have the power to sack us at general elections—quite rightly so. We, alas, do not have the power to sack them. Perhaps I should have taken out an injunction or restraining order against Mr Francis in the past, but in almost 16 years in this House I have never had to resort to such measures. I would like to take this opportunity now, Mr Speaker, to put it on record that I will not be responding to any communications from Mr Francis in the future and my staff have been instructed to put the phone down on him. I am sacking Mr Francis as my constituent, and I hope that he gets the message without my having to resort to legal means.

The bigger question for this House and for hon. Members—I am delighted to see so many of them here this evening—is how do we deal with the small minority of constituents where a robust reply is the most appropriate? Outside this Chamber, unprotected by parliamentary privilege, as my case starkly demonstrates, we now risk a feel on our collar from a police force pandering to political correctness and unquestioningly taking the word of someone intent on lodging a vexatious and malicious allegation. While I hope that I will never experience another constituent as nasty as Mr Francis and will not feel the need to use the level of robust language that I felt proportionately offensive only in this case, I cannot say that the same dilemma will not happen again, because I still do not understand exactly what the offence was that merited the investigation and consideration of charges. By what warped yardstick could I have been deemed racist? And how is using someone else’s own language back at them “grossly offensive” one way but not mutually so?

What if you, Mr Speaker, were innocently to refer to someone as “well kempt” whose religion demands that he should be fully bearded—would that be racist? Even more unlikely, what if you were to praise someone famous for being proudly gay and out only for the celebrity involved to be very much heterosexual—could you find yourself under criminal investigation for some form of inverted homophobia? Where will it all end, Mr Speaker? Are we to be issued with a manual of words and phrases that we can or cannot use? Perhaps we need a whole new section in “Erskine May”. Will this House and hon. Members in future be muted in speaking their minds, ironically at a time when the public and the media criticise politicians for not saying what they really mean more and for hiding behind obfuscation and spin? It is no longer good to be straight, Mr Speaker—oh dear, I may have done it again!

The fallout of my case goes far beyond the series of events and the one nightmare constituent that I have described. It has implications not only for the way we do our politics and the way we communicate with our constituents, but for the way we are all able to go about our business and be true to our beliefs. If the law needs changing, it is up to this House to change it. If police procedures need to be changed, it is up to the Home Secretary to change them. But if, as I suspect, we need society to change and to challenge political correctness, we all need to play a part in that. If MPs can fall foul of it, clearly anyone can and it is time we fought back. I am ready to don my gender-neutral, non-aggressive, culturally sensitive armour for the crusade—I mean, secular expedition. Who is with me, Mr Speaker?

I should like to begin by congratulating my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) on securing this debate. I should say at the outset that I am responding to the debate as the Minister with responsibility for Government policy relating to parliamentary privilege. I know that he knows that I have no responsibility for the police and will not attempt to answer for the conduct of the Sussex police in investigating an alleged offence of malicious communication under the Malicious Communications Act 1988. These are indeed operational matters, but of course he will have noted that the Minister for Policing and Criminal Justice was present during the debate and will have taken away with him the telling remarks that my hon. Friend made.

The House will have heard my hon. Friend’s description of events surrounding the investigation of the allegation of malicious conduct and the subsequent advice by the Crown Prosecution Service that no further action be taken. Hon. Members can draw their own conclusions about the merits of his constituent’s claims. I have to say that I have sympathy, as I am sure all hon. Members here tonight will, with my hon. Friend’s remarks about the amount of time and resources devoted to that investigation, given the nature of the allegations.

My hon. Friend spoke about his freedom of speech as a Member of Parliament. I therefore want to address my remarks to the protection of freedom of speech afforded to Members of Parliament by parliamentary privilege. In doing so, I might help to inform a judgment as to whether this particular case has any implications for the application of parliamentary privilege, or whether it is, as he said in his closing remarks, more an issue of police practices and policy.

Perhaps it would be helpful if I set out briefly how the protection of our freedom of speech afforded by parliamentary privilege extends to Members’ correspondence with constituents. Freedom of speech for Members of Parliament is guaranteed by article 9 of the Bill of Rights of 1689, but it provides absolute protection only to proceedings in Parliament. The meaning of “proceedings” in that context is to an extent open to interpretation and I am not aware that the issue raised by my hon. Friend of privilege for a Member’s correspondence with a constituent has ever been tested in the courts. The legal position is clear: the House has never sought to assert that privilege should apply to communications between Members and their constituents or other members of the public.

There have not been many cases to test the boundaries of privilege in that regard but the basic principles are clearly understood. It has been established that letters from constituents to Members are not proceedings in Parliament and it therefore follows that Members’ replies to constituents are not proceedings either. Indeed, the courts have separately determined that Members’ letters to Ministers are similarly not considered to be proceedings in Parliament. However, the courts have regarded some types of communication to a Member of Parliament by a constituent as enjoying qualified privilege in certain circumstances. For example, a Member who passes on a constituent’s concerns in good faith to the proper authority, such as a Minister, will not be protected by absolute privilege but is likely to be protected by qualified privilege.

Qualified privilege might also apply to communications with a link to parliamentary proceedings, such as a speech or parliamentary question, or those that relate to a matter of public concern. That will depend on the circumstances, but in their ordinary dealings with constituents, Members of Parliament, like everyone else, should expect to be subject to the laws of the land, including that on malicious communication. As all Members would agree, however, Members and constituents should expect the law to deal with matters proportionately.

I am not sure that my hon. Friend is making the case for change and for extending parliamentary privilege to all forms of communication between a Member and a constituent. The issue has been considered before, several times. The Joint Committee on Parliamentary Privilege, which considered the matter between 1998 and 1999, recommended that there should be no extension of parliamentary privilege to correspondence between MPs and Ministers. Conversely, the Joint Committee on the Draft Defamation Bill in 2011 argued that the

“the democratic process is unacceptably hindered by a lack of certainty and awareness among constituents about their right to engage in open and frank discussions with their Westminster representative”

and recommended that

“all forms of communication between constituents and their MP (acting in his or her official capacity as an MP)”

should be protected by qualified privilege.

I am sure that my hon. Friend is aware of the Green Paper on parliamentary privilege that the Government published last April, which arose in part from concerns that parliamentary privilege might be able to be used by MPs to avoid prosecution for offences relating to expenses, but also from a feeling that there might be scope usefully to clarify the law in certain areas, including on the definition of parliamentary proceedings and Select Committee powers. On the issue of Members’ correspondence with constituents, the Green Paper set out the Government’s view that, on balance, it is preferable to let the courts determine the boundaries of privilege on a case-by-case basis than to introduce a statutory qualified privilege for MPs’ correspondence. To extend an absolute privilege to correspondence between MPs and constituents could encourage malicious complaints to be made to MPs that are damaging to third parties. I am not aware that such an extension has been seriously advocated.

A Joint Committee is considering the issues raised in the Green Paper and we look forward to considering its conclusions on this and other issues, which are expected to be published in the next few weeks. I am sure that the Committee will consider tonight’s debate and all the points raised by my hon. Friend carefully to see whether they are pertinent. If Parliament collectively believes that some injustice arises from the way the courts apply the law, it is open to Parliament to change the law.

I do not see that the issue raised by my hon. Friend advances the case for any legislative action on parliamentary privilege, but we will consider the issue in the round when we receive the Joint Committee’s report. In the meantime, I hope that he ensures that he works hard on having a constructive dialogue with his local police force. I was going to say, “continues to have a constructive dialogue,” but I think perhaps to date that dialogue has not been there in the way that he would have liked.

Question put and agreed to.

House adjourned.