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Mr. Sheldon: With reference to Western Australia, I had the advantage of meeting not only the officers of the Western Australian Parliament, but some of the Members. There were grave misgivings about the work that has been done so far by Lord Nicholls's Committee.
Sir Patrick Cormack: I am sure that the right hon. Gentleman, for whom I have a high regard, will acquaint us with some of those misgivings during the debate.
I shall listen, as I know the right hon. Lady and others will, with particular care to what he says. No one would pretend that the report is perfect; no report ever is. However, for reasons that I shall explain, I believe that it is a good and positive report. It makes proposals that the House would do well to consider carefully.
There has been great interest throughout the Commonwealth since the report was published. It is slightly disappointing that not much attention has been focused on it in the House or among those who comment on the affairs of this place and who study our proceedings.
The report deals with some of the fundamental constitutional issues that concern, or ought to concern, every hon. Member: the proper relationship between Parliament and the courts; the extent to which Members of Parliament need immunity from the law to fulfil their duties to their constituents; and the reconciling of the rights of the individual citizen with the collective interest of the nation in having a free and effective Parliament. Perhaps as we begin our debate on these issues, those who are truly interested in a vigorous and free Parliament and a free nation will comment on these matters.
At the beginning of the Committee's inquiry, there might have been some who were tempted to throw away a system so dependent on ancient statute and practice, and to start again. However, the moment one looks at the matter closely, the more clearly one realises that the core privileges of Parliament are as central to our constitution today as they ever were. An attempt to invent a new set of powers would create much constitutional and legal uncertainty. I agree with those who say that there is some dead wood to be got rid of, but the essentials of what we have are vital to democracy and to parliamentary sovereignty. As the report says:
The Leader of the House quoted article 9 of the Bill of Rights 1689, which encapsulates the privilege of freedom of speech--our fundamental freedom. Many Members have long supported a new statutory definition that would give both Parliament and the courts detailed guidance on what is included in the term "proceedings in Parliament". That was a recommendation of the 1967 House of Commons Select Committee on Parliamentary Privilege, and several other Select Committees have sincemade similar recommendations, but the traditional parliamentary view has been that broader legislation would ossify privilege and involve the courts increasingly in dealing with privilege matters. I am bound to say that listening to the evidence caused us to modify that view.
The courts are constantly reinterpreting privilege in one context or another and the development of judicial review over the past decade has been rapid. Rightly or wrongly, Ministers no longer simply have to answer to this place for their decisions, but are subject to judicial review. Appreciable inroads have been made into the traditional interpretation of article 9, which tells the courts not to
impeach or question what is done in Parliament. Sometimes judicial interpretation of ancient statute might be a good thing. It is easy to contend, for instance, that the Lords decision in Pepper v. Hart, which permitted the courts to look at our debates when interpreting statute, furthers Parliament's intentions. It may be that, to give justice to the individual, the courts need to use parliamentary proceedings more, but, crucially, those developments should not undermine parliamentary sovereignty.
Mr. John M. Taylor (Solihull):
Will my hon. Friend perhaps reserve his judgment in the case of Pepper v. Hart, which leads a number of disputed issues into the long grass of legal research? As two litigants shape up to each other, each has to comb through every parliamentary stage of every relevant statute to see what Ministers said in aid of the interpretation of that statute. Is not Pepper v. Hart a burden on the public good will?
Sir Patrick Cormack:
That is a valid point of view, but we have had the Pepper v. Hart decision in which Lord Browne-Wilkinson made the point that what they were seeking to do would not in any sense erode parliamentary privilege. Rather, they were trying to establish what Parliament intended and whether it had been carried out. I made my remarks in that context alone. Perhaps many people wish that Pepper v. Hart had never happened.
Mr. Taylor:
I may be entirely on my own in the House in wishing that that result had not come about, but I happen to think that English statute should be interpreted at face value--on what the words mean rather than what Parliament intended. The pursuit of what Parliament intended could be endless--it is labyrinthine. Would it not be simpler for our citizens, particularly our litigating citizens, to look at the statute and say, "What do these words mean?" instead of, "What on earth was Parliament thinking of?"
Sir Patrick Cormack:
As I said, my hon. Friend has a point. However, we cannot put the clock back: we have had Pepper v. Hart, and we are where we are. The Committee had to recognise that fact.
Mr. Bill Michie (Sheffield, Heeley):
I think that the judgment was right. In future, Ministers will have to do their homework correctly and ensure that what they are saying in the Chamber is what will appear in statute. Surely that is a good thing.
Sir Patrick Cormack:
I think that we could all say amen to that.
Mr. Sheldon:
Before the hon. Gentleman says amen to that, I should tell him that I was involved in the beginning of Pepper v. Hart, as one of my interventions, in a debate on a Finance Bill, led to the case. The then Opposition had perhaps the most talented Front-Bench line-up that we have ever known--most of them were subsequently appointed to Cabinet--and by whom I was being pursued for my interpretation. Being a reasonable person--happy to help in any way that I could--I gave them my interpretation. The matter was pursued again and again, and, finally, led to Pepper v. Hart.
As soon as I heard about the case, I scrambled to see what it was that I had said, and, luckily, found that it was justifiable. However, the consequence has been that Ministers should be very careful about what they say, and may not be quite so helpful in the future as a Minister was able to be in the past.
Sir Patrick Cormack:
That is a very important point, which was recognised by all Committee members, and on which we had a long discussion.
Hon. Members must control the way in which we conduct our business. This House must be the place where the Government are called to account on behalf of those whom we represent. The courts must not take over Parliament's role. To ensure that that happens, we believe that a firmer and clearer boundary must be drawn. However, there is no guarantee that the courts would take any notice of the resolutions of the House. We do notlock up judges any more. I therefore welcome the Government's recognition that the Committee was right when we suggested that a new statute is needed to address the issue.
If the courts need to be restrained in any drift towards becoming legislators, we in Parliament must realise that modern standards of fairness, including the fundamental right to a fair trial, mean that the House is not entirely suited to a judicial role in dealing with serious contempts of Parliament.
Mr. Bercow:
To what extent does my hon. Friend believe that the aspiration that he has just expressed, that judicial interference should be prevented or minimised, has been compromised by passage of the Human Rights Act 1998?
Sir Patrick Cormack:
My hon. Friend tempts me down a long and circuitous road. I am--as I said very clearly in Committee--one of those who are not at all happy about the Act's implications. Again, however, we have to face the realities as they are. Much as I personally regret it--I am speaking personally, and only personally--the Act is there, and we have to recognise that fact.
Mr. Forth:
Until we can change it.
Sir Patrick Cormack:
Yes, but that will not be for a year or two yet.
Much is often made of Parliament's ancient power to commit anyone to prison for a serious contempt. However, that has not happened since 1880. Does anyone seriously contemplate that the House, without due process of law, would do it now? [Interruption.] Some hon. Members may wish that we could. However, in the unlikely circumstances that it should ever be necessary, surely it would be better done through the judicial process.
"Parliamentary privilege is founded on the principle that the proper conduct of Parliamentary business without fear or favour, let of hindrance, requires that Parliament shall be answerable for the conduct of its affairs to the public as a whole, and specifically in the case of the House of Commons, to the electorate. It must be free from, and protected from, outside intervention. Parliament is sovereign over its own business."
The Committee strongly endorses that view. Tradition is important. We should take what is tried and tested and build from there. That is what the Committee sought to do.
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