REPORT on the request for defence of the privileges and immunities of Jane Collins
17.10.2016 - (2016/2087(IMM))
Committee on Legal Affairs
Rapporteur: Tadeusz Zwiefka
PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION
on the request for defence of the privileges and immunities of Jane Collins
The European Parliament,
– having regard to the request by Jane Collins of 3 May 2016, announced in plenary on 11 May 2016, for the defence of her privileges and immunities in connection with civil proceedings against her before the Queen’s Bench Division of the High Court in London (Claim No HQ14DO4882),
– having heard James Carver, who represented Jane Collins, in accordance with Rule 9(5) of its Rules of Procedure,
– having regard to Articles 7, 8 and 9 of Protocol No 7 on the Privileges and Immunities of the European Union, and Article 6(2) of the Act of 20 September 1976 concerning the election of the members of the European Parliament by direct universal suffrage,
– having regard to the judgments of the Court of Justice of the European Union of 12 May 1964, 10 July 1986, 15 and 21 October 2008, 19 March 2010, 6 September 2011 and 17 January 2013[1],
– having regard to Rule 5(2) and Rules 7 and 9 of its Rules of Procedure,
– having regard to the report of the Committee on Legal Affairs (A8-0297/2016),
A. whereas Jane Collins has requested the defence of her parliamentary privileges and immunities in connection with civil proceedings against her before the Queen’s Bench Division of the High Court in London;
B. whereas, firstly, the request concerns the defence of the right of Members of the European Parliament, under Article 7 of the Protocol, not to be subject to administrative or other restrictions on their free movement when travelling to or from the European Parliament;
C. whereas this part of the request relates to the fact that Jane Collins has allegedly been prevented from travelling to parliamentary meetings by the scheduling of the court proceedings being brought against her;
D. whereas, however, Article 7 of the Protocol does not apply to restrictions arising out of legal proceedings, as those are covered by the specific rules contained in Articles 8 and 9 of the Protocol[2], and the request for defence of parliamentary privilege is therefore inadmissible in respect of Article 7 of the Protocol;
E. whereas, secondly, the request concerns the defence of the freedom of Members of the European Parliament, under Article 8 of the Protocol, from any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties;
F. whereas this part of the request relates to the fact that Jane Collins is subject to a civil claim in the United Kingdom for damages, including aggravated damages, for alleged libel and slander, as well as to a claim for an injunction against her to desist from repeating the contested statements;
G. whereas the claim of libel and slander concerns accusations which Jane Collins made at a party conference;
H. whereas the parliamentary immunity conferred by Article 8 of the Protocol applies to opinions expressed by Members of the European Parliament only in the performance of their duties;
I. whereas statements made by Members of the European Parliament outside the precincts of the European Parliament are considered to be made in the performance of their duties only if they amount to a subjective appraisal having a direct, obvious connection with the performance of those duties[3];
J. whereas, however, there is no direct, obvious connection between the contested statements and Jane Collins’s duties as a Member of the European Parliament, as they do not relate to her activity as a Member of the European Parliament or to the policies of the European Union, and were made in the context of national political debate;
K. whereas the contested statements are, therefore, not covered by Article 8 of the Protocol;
1. Decides not to defend the privileges and immunities of Jane Collins;
2. Instructs its President to forward this decision and the report of its committee responsible immediately to the authorities of the United Kingdom, including to the Honourable Mr Justice Warby.
- [1] Judgment of the Court of Justice of 12 May 1964, Wagner v Fohrmann and Krier, 101/63, ECLI:EU:C:1964:28; judgment of the Court of Justice of 10 July 1986, Wybot v Faure and Others, 149/85, ECLI:EU:C:1986:310; judgment of the General Court of 15 October 2008, Mote v Parliament, T-345/05, ECLI:EU:T:2008:440; judgment of the Court of Justice of 21 October 2008, Marra v De Gregorio and Clemente, C 200/07 and C-201/07, ECLI:EU:C:2008:579; judgment of the General Court of 19 March 2010, Gollnisch v Parliament, T-42/06, ECLI:EU:T:2010:102; judgment of the Court of Justice of 6 September 2011, Patriciello, C 163/10, ECLI: EU:C:2011:543; judgment of the General Court of 17 January 2013, Gollnisch v Parliament, T-346/11 and T-347/11, ECLI:EU:T:2013:23.
- [2] Judgment of the General Court of 15 October 2008, Mote v Parliament, T-345/05, ECLI:EU:T:2008:440, paragraphs 49 and 51.
- [3] Judgment of the Court of Justice of 6 September 2011, Patriciello, C 163/10, ECLI: EU:C:2011:543.
EXPLANATORY STATEMENT
I. CONTEXT
At the sitting of 11 May 2016, the President announced, pursuant to Rule 9(1) of the Rules of Procedure, that a request from Jane Collins for the defence of her immunity had been received dated 3 May 2016.
The request reads as follows:
“I respectfully request Parliament to defend:
1. My immunity under Article 8 (absolute immunity) and
2. My freedom of movement to attend Parliament and carry out my duties.
Legal proceedings have been brought against me for expressing an opinion made in my capacity as a Member of this Parliament and made in the performance of my duties. Measures taken against a Member for expressing opinions which are in the public interest and in the performance of their duties undermine the Parliament’s integrity as a democratic legislative assembly.
No application to waive that privileges and immunities of a Member of this Parliament has been made by the competent authority.
I have done my utmost throughout these legal proceedings to cooperate with the English Courts and make them aware of my role as a servant of the European Parliament and my constituents. However, the parties involved refused to acknowledge my responsibilities and duty to attend the Parliament and Plenary Sessions. This has been even been presented as an aggravating factor in the current proceedings.
In addition attempts have been made to restrict my movements to and from the Parliament in Brussels and Strasbourg under threat of a court order.
I would also request your personal clarification on the application of immunity under Article 9 for a UK Member of the Parliament. Article 9 grants Members the same privileges and immunities as those accorded by parliaments of Member States. In the case of the UK this privilege applies only to the grounds of the Palace of Westminster. Members of the European Parliament are not afforded the right to carry out their duties in the Palace of Westminster. In my case Westminster is many miles away from the parliamentary constituency I represent.
In the legal proceedings brought against me it has been acknowledged that the opinion I expressed while carrying out my duties as a Member of the European Parliament were broadcast by the UK Parliament Channel into the grounds of the Palace of Westminster.
The crux of the legal proceeding[s] being brought against me are that the opinion I expressed in that broadcast allegedly damaged the reputation of the claimants within the grounds of Westminster.
Please could you clarify:
1. The status of a broadcast into an area protected under article 9, and
2. What is the status for UK Members of the European Parliament who are effectively denied the right to exercise this privilege?”
According to the amended particulars of claim by order of Mr Justice Warby dated 29 April 2015, on 26 September 2014 at the UKIP Party Conference in Doncaster Ms Collins spoke and published and caused the publication to the media and the general public (including by way of a live broadcast of the event on the BBC Parliament television channel) of words defamatory of the claimant Members of the United Kingdom Parliament.
According to the said particulars of claim, Ms Collins alleged that the claimants knew many of the details of the child sexual exploitation that took place in Rotherham over a period of sixteen years, in the course of which an estimated 1,400 children were raped, beaten, plied with alcohol and drugs, and threatened with violence by men of Asian origin, yet deliberately chose not to intervene but to allow the abuse to continue, that they acted in this way for motives of political correctness, political cowardice, or political selfishness, and that they were thereby guilty of misconduct so grave that it was or should be criminal, as it aided and abetted the perpetrators and made the claimants just as culpable as the perpetrators.
The claimants seek damages including aggravated damages for libel and slander and an injunction to restrain further publication.
Mrs Collins was invited to be heard by the Committee on Legal Affairs but she elected to be represented by Mr Jim Carver MEP.
II. THE LAW
(a) The Treaties
Protocol No 7 to the Treaty on the Functioning of the European Union (TFEU) on the Privileges and Immunities of the European Union
“Article 7
No administrative or other restriction shall be imposed on the free movement of Members of the European Parliament travelling to or from the place of meeting of the European Parliament.
Members of the European Parliament shall, in respect of customs and exchange control, be accorded:
(a) by their own government, the same facilities as those accorded to senior officials travelling abroad on temporary official missions;
(b) by the government of other Member States, the same facilities as those accorded to representatives of foreign governments on temporary official missions.
Article 8
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.
Article 9
During the sessions of the European Parliament its Members shall enjoy:
(a) in the territory of their own State, the immunities accorded to members of their Parliament;
(b) in the territory of any other Member State, immunity from any measure of detention and from legal proceedings.
Immunity shall likewise apply to Members while they are travelling to and from the place of meeting of the European Parliament.
Immunity cannot be claimed when a Member is found in the act of committing an offence and shall not prevent the European Parliament from exercising its right to waive the immunity of one of its Members.”
(b) Relevant case law of the Court of Justice
Mote v Parliament[1]
48 The Court has held that the effect of the first paragraph of Article [7] of the Protocol is to prohibit Member States from imposing, inter alia by their practices in matters of taxation, administrative restrictions on the free movement of Members (Case 208/80 Bruce of Donington [1981] ECR 2205, paragraph 14). As that provision states, the privilege is intended to ensure that Members may exercise their freedom to travel to or from the place of meeting of the Parliament.
49 However, those restrictions, although not listed comprehensively by the first paragraph of Article [7] of the Protocol, which refers to administrative ‘or other’ restrictions, do not include restrictions arising out of legal proceedings since such restrictions fall within the scope of Article [9], which sets out the legal regime governing immunities, except in the specific area, provided for in Article [8], of opinions expressed or votes cast by Members in the performance of their duties. Legal proceedings are expressly mentioned by subparagraph (b) of the first paragraph of Article [9] of the Protocol as being among the restrictions from which the Member is immune, in the territory of any Member State other than his own, during the sessions of the Parliament. Likewise, under subparagraph (a) of the first paragraph of Article [9] of the Protocol, Members enjoy, during the same period, in the territory of their own States, the immunities accorded to members of their parliaments, some of which protect members of national parliaments from legal proceedings to which they may be subject. Lastly, the second paragraph of Article [9] provides that immunity likewise applies to Members while they are travelling to and from the place of meeting of the Parliament. The existence of that provision, which, like the first paragraph of Article [7] of the Protocol, protects Members against interference with their freedom of movement, confirms that the restrictions mentioned by the first paragraph of Article 8 do not include all possible interference with the freedom of movement of Members and that, as shown by the provisions of Article [9] examined above, legal proceedings must be regarded as being covered by the legal regime established by Article [9].
50 The objective of Article [9] of the Protocol is thus to safeguard the independence of Members by ensuring that pressure, in the form of threats of arrest or legal proceedings, is not brought to bear on them during the sessions of the Parliament (order in Case T‑17/00 R Rothley and Others v Parliament [2000] ECR II-2085, paragraph 90).
51 Article [7] of the Protocol has the function of protecting Members against restrictions on their freedom of movement, other than judicial restrictions.
Criminal proceedings against Aldo Patriciello[2]
[A] statement made by a Member of the European Parliament beyond the precincts of that institution and giving rise to prosecution in his Member State of origin for the offence of making false accusations does not constitute an opinion expressed in the performance of his parliamentary duties covered by the immunity afforded by that provision unless that statement amounts to a subjective appraisal having a direct, obvious connection with the performance of those duties. It is for the court making the reference to determine whether those conditions have been satisfied in the case in the main proceedings.
(c) The Rules of Procedure of the European Parliament
“Rule 6
Waiver of immunity
1. In the exercise of its powers in respect of privileges and immunities, Parliament acts to uphold its integrity as a democratic legislative assembly and to secure the independence of its Members in the performance of their duties. Any request for waiver of immunity shall be evaluated in accordance with Articles 7, 8 and 9 of the Protocol on the Privileges and Immunities of the European Union and with the principles referred to in this Rule.
Rule 7
Defence of privileges and immunity
3. A request for the defence of the privileges and immunities of a Member shall not be admissible if a request for the waiver or defence of that Member’s immunity has already been received in respect of the same legal proceedings, whether or not a decision was taken at that time.
4. No further consideration shall be given to a request for the defence of the privileges and immunities of a Member if a request for the waiver of that Member’s immunity is received in respect of the same legal proceedings.
5. In cases where a decision has been taken not to defend the privileges and immunities of a Member, the Member may make a request for reconsideration of the decision, submitting new evidence. The request for reconsideration shall be inadmissible if proceedings have been instituted against the decision under Article 263 of the Treaty on the Functioning of the European Union, or if the President considers that the new evidence submitted is not sufficiently substantiated to warrant reconsideration.”
(b) National legislation
In the United Kingdom, the privilege of freedom of speech protects what is said in the debates in either House. Article 9 of the Bill of Rights 1689 states that: “The freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. The word “proceedings” is interpreted widely to mean what is said and done in the formal proceedings of either House or their committees, together with conversations, letters and other documentation directly connected with those proceedings. However, parliamentary privilege does not apply to things said outside Parliament[3].
II. JUSTIFICATION FOR THE PROPOSED DECISION
(a) Article 7 of the Protocol
Ms Collins alleges that she been prevented from travelling to parliamentary meetings by the court proceedings against her, which is in breach of Article 7 of the Protocol.
It is clear from the judgment in Mote, however, that Article 7 of the Protocol does not apply to restrictions arising out of legal proceedings, as those are covered by the specific rules contained in Article 8 or 9 of the Protocol.
The request for defence of parliamentary privilege is therefore inadmissible in respect of Article 7 of the Protocol.
(b) Article 8 of the Protocol
It is also necessary to consider the freedom of Members of the European Parliament, under Article 8 of the Protocol, from any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties
This part of the request relates to the fact that Jane Collins is subject to a civil claim in the United Kingdom for damages, including aggravated damages, for alleged libel and slander, as well as to a claim for an injunction against her to desist from repeating the contested statements;
The claim of libel and slander concerns accusations that Jane Collins made in a speech at a party conference which were published to the media and the general public (including by way of a live broadcast of the event on the BBC Parliament television channel).
It must be observed, however, that the parliamentary immunity conferred by Article 8 of the Protocol applies to opinions expressed by Members of the European Parliament only in the performance of their duties.
According to the case law of the Court of Justice, statements by Members of the European Parliament outside the precincts of the European Parliament are considered to be made in the performance of their duties only if they amount to a subjective appraisal having a direct, obvious connection with the performance of those duties[4]. However, there is no direct, obvious connection between the contested statements and Ms Collins’ duties as a Member of the European Parliament, as they do not relate to her activity as a Member of a European Parliament or to the policies of the European Union, and were made in the context of national political debate.
The contested statements are therefore not covered by Article 8 of the Protocol.
(b) Article 9 of the Protocol
Ms Collins seems to imply that Article 9 of the Protocol might be applicable to her case. However, individual members of the UK Parliament do not have immunity from criminal or civil prosecution. The 1999 Joint Committee on Parliamentary Privileges summarised the applicable rules as follows: “If a member is charged with a criminal offence, no waiver of immunity is required. If [a member] is imprisoned and cannot attend the House, the two Houses expect only to be informed of the fact. The same principle applies to the premises in which Parliament meets. A criminal offence committed in the precincts is triable in the courts. A member may be arrested within the precincts.”[5]
It goes without saying that Article 9 of the Bill of Rights cannot be applied to her via Article 9 of the Protocol since Article 9 of the Bill of Rights is functionally identical to Article 8 of the Protocol but intended only to protect Members of the national parliament.
Consequently, Article 9 of the Protocol is not applicable.
II. CONCLUSION
In the light of the foregoing, there is no ground for defending Ms Collins’ immunity.
- [1] Cited above.
- [2] Cited above, paragraph 41.
- [3] See the Handbook on the Incompatibilities and Immunity of Members of the European Parliament - April 2014, DG IPOL, Policy Department C.
- [4] See Patriciello, cited above.
- [5] Joint Committee on Parliamentary Privilege, Report, 9 April 1999, at paragraph 242, cited in the Handbook on the Incompatibilities and Immunity of Members of the European Parliament - April 2014, DG IPOL, Policy Department C.
RESULT OF FINAL VOTE IN COMMITTEE RESPONSIBLE
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Date adopted |
12.10.2016 |
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Result of final vote |
+: –: 0: |
16 3 0 |
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Members present for the final vote |
Joëlle Bergeron, Marie-Christine Boutonnet, Jean-Marie Cavada, Kostas Chrysogonos, Therese Comodini Cachia, Mady Delvaux, Enrico Gasbarra, Lidia Joanna Geringer de Oedenberg, Mary Honeyball, Gilles Lebreton, António Marinho e Pinto, Emil Radev, Evelyn Regner, Pavel Svoboda, Axel Voss, Tadeusz Zwiefka |
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Substitutes present for the final vote |
Pascal Durand, Heidi Hautala, Sylvia-Yvonne Kaufmann, Virginie Rozière |
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