Examination of Witness (Question Numbers
1012-1019)
DR MALCOLM
JACK
18 JANUARY 2010
Chairman: Dr Jack, thank you very much
for coming to see us today. This of course was by arrangement
because when you gave evidence previously before the Committee
it was agreed that you would come back towards the end of our
evidence sessions in order that we might get the benefit of your
advice about any of the implications for the issue of privilege
which the evidence from other witnesses might raise. It is on
that that we would like to concentrate today. Sir Malcolm Rifkind?
Q1012 Sir Malcolm Rifkind:
Just one question if I may put it to you, Dr Jack. Damian Green
has expressed concern that neither Parliament nor any of its committees
had an opportunity to consider whether certain papers or documents
might be privileged before the police themselves had access to
them. Can you share with us your view as to whether it would either
have been possible or satisfactory to have such a procedure in
play at that time?
Dr Jack: Thank you very much and
thank you for calling me back. I think this goes right to the
crux of the matter raised in the Attorney General's memorandum
as well and that is the question of admissibility of evidence
in the court and whether the House should have some prior role
in this. It is not easy to give a short answer to this because
I think what it goes to really is the relationship between these
two parts of the constitution, between Parliament and the courts,
and there is a long history to this, a long struggle if you like,
to define these boundaries. As the Committee knows very well,
originally of course privilege was a struggle between Parliament
and the executive.
Q1013 Chairman: Parliament and the
King.
Dr Jack: The King, yes. The King
did not like certain Members and he wanted to lock them up. That
is still the case in some emerging jurisdictions with presidents.
Then the boundary dispute, if you like, shifted to Parliament
and the courts, and of course the Bill of Rights of 1689 is a
statute and the courts therefore presume to interpret the statute
like any other statute. There is another part of privilege of
course that is not statutory, and that is in some senses what
this Committee has been concerned with and that is this area of
exclusive cognisance, control of the precincts, control of standing
orders and those kinds of things. However, trying to come specifically
to Sir Malcolm's question, I think it is difficult to envisage
how the House in a criminal case, and I think it is important
to emphasise that, and whether the criminal case is sensible or
not is not a matter that concerns me at all, but in a criminal
investigation, leading to a possible charge and a criminal trial,
could interrupt that process without in some way prejudicing it.
I think that is the crux of the problem really. I think that preliminary
steps can be taken which fall short of actually taking on the
courts, and that is really what the Speaker's Protocol is trying
to deal with, but if you are asking my opinion I would say that
it is very difficult to envisage how the House could do this without
interfering in the process of the courts.
Q1014 Sir Malcolm Rifkind: If you
are correct and if the Attorney General is correct that the courts
must have the last word, what then would be the benefit of the
proposal that even if a warrant has been issued relating to the
arrest of a Member and permitting the search of his or her property
that the police should have in their presence officers of the
House to exercise some view as to whether the documents might
or might not come under the privileged category because if officers
of the House were to say, "We think that is a privileged
document," and the police therefore say "We had better
not touch it," are you not then taking on the responsibilities
of the court and effectively preventing them from considering
it, because your judgment might be right or wrong?
Dr Jack: I think that would always
push up that problem because, as you know, in this particular
case of course there was such a preliminary inspection. That would
not be the end of the matter and it would not bind the court.
Q1015 Sir Malcolm Rifkind: It might
have come from the court. The police might already have been prevented
from acquiring the material in the first place.
Dr Jack: Yes, sure. I think if
the parties actually agreed not to submit evidence then that evidence
would not go to the court, but what I am saying is I think the
inspection per se is not something that would necessarily remove
the matter from the court.
Q1016 Chairman: Criminal proceedings
are adversarial in nature but the House of course is not an adversary
of the police in a process of this kind, so Sir Malcolm raised
a very interesting question as to whether the House is in a position
to enter into any kind of agreement with the police about what
can and cannot be recovered.
Dr Jack: I think there are certain
preliminary actions that can be taken with the police. In fact,
the Committee has before it some examples from Commonwealth countries
where the Australians, for example, have a Police Code on how
to conduct themselves when they are coming with a search warrant
and so on, and I am sure that those things can be worked out with
the police. I think that in the end we would be talking about
the scope of the warrant, the relevance of evidence and so on
which would remain in the hands of the court.
Q1017 Sir Malcolm Rifkind: Are we
not in fact reaching a view that unless some document self-evidently
came under the category of "privileged" that in reality
it would not only be not possible but unwise to prevent the police
having access to any other document, even when there was serious
doubt as to whether privilege was relevant or not, because otherwise
we would be impeding what might at the end of the day be determined
by the courts as something that should never have been subject
to privilege in the first place?
Dr Jack: I think that is probably
right, yes.
Q1018 Chairman: What then about the
sift in this case?
Dr Jack: I think the sift was
an attempt to give a preliminary view about what matter was or
was not privileged, but it was not conclusive, and I do not think
we ever pretended that it was.
Q1019 Ann Coffey: The interesting
thing about this was of course in the end it was an investigation
about this offence of misconduct in public life.
Dr Jack: Yes.
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