Examination of Witness (Question Numbers
1020-1039)
DR MALCOLM
JACK
18 JANUARY 2010
Q1020 Ann Coffey: And of course that
related to a series of interchanges, information coming from Chris
Galley to Damian Green, and letters Damian Green may have written
to other people, which is actually a very ordinary part of an
MP's job. That is what MPs do all the time. They receive information.
So in fact a definition of what was privileged before that search
was conducted is key to deciding what the police could and could
not take away in terms of documents, but we do not yet have that
definition, do we?
Dr Jack: No, we do not have that
definition, but I do not think that the police actually looked
at the material before the sift. They simply seized all the material
and then the sift took place.
Ann Coffey: But whoever did the sift,
the notion of a sift is looking for material, presumably in this
case material that was privileged and material that was not. I
am perplexed particularly as this was the offence that was being
investigated how could they possibly even start on such a sift
as nobody seemed to have any idea what could be considered privileged
material and what was not because there is no definition?
Q1021 Chairman: If I might just add
to that, they must have taken a view. Copies of the menu of the
Adjournment for example might have been lying about, so someone
must have taken a view that that does not matter. There must have
been some kind of preliminary view about relevance if not about
privilege.
Dr Jack: Yes, certainly, Chairman.
The relevance would be closeness to proceedings of the House and
whether the document related to proceedings of the House.
Chairman: I had more in mind relevance
in relation to the allegations than relevance in relation to the
proceedings of the House.
Q1022 Sir Alan Beith: These are two
potentially conflicting lines: relevance to privilege and relevance
to the matter under discussion?
Dr Jack: The sift was certainly
conducted with a view to establishing how close particular documents
were to proceedings. In some cases it is very obvious: questions
that have been asked and answered in the House, Hansard entries.
Those are perfectly obvious things. There is nothing mysterious
about saying they are privileged.
Q1023 Ann Coffey: So the police could
not have those?
Dr Jack: They all had the documents
but we were simply identifying those which we believed to be privileged
and if the parties between them had agreed then those would not
have been proceeded with in the case, but the court in the end
could still determine them.
Q1024 Chairman: Supposing a dispute
arises between the House authorities and the police about a particular
document. The only place that can be resolved is at the court.
Dr Jack: In the court, yes.
Q1025 Chairman: And then the court
would have to ask itself, firstly, were they covered by a warrant
and, secondly, were they entitled to any kind of right of exclusion
because of privilege.
Dr Jack: Yes, that is absolutely
right, Chairman. That is the case.
Q1026 Mr Henderson: Just on that
issue, do you think there should be some sort of procedure which
is agreed in advance with which both the Speaker and the police
would comply where there was a dispute about whether or not something
was privileged or would it be left to either the Speaker or the
police to go back to the court?
Dr Jack: I think it would be left
to the court in the end and the Speaker would intervene in the
normal way in the case or, as you have heard from the Attorney
herself, the Attorney would intervene as amicus curiae
for the House to argue that this was indeed a privileged document.
Q1027 Chairman: Doug Henderson's
question implies some kind of protocol but what about statute,
does this need a statute?
Dr Jack: Sorry?
Q1028 Chairman: Does this whole area
that we are now in require some statutory provision?
Dr Jack: It could. It does not
but it could.
Q1029 Chairman: Would you like to
explain the difference?
Dr Jack: I have with me the Australian
Parliamentary Privileges Act and the Australian Parliamentary
Privileges Act does have a provision, this is section 16(4): "A
court or tribunal shall not require to be produced or admit into
evidence a document that has been prepared for the purpose of
submission, and submitted, to a House or a committee", so
here is an example of statutory removal from the courts.
Q1030 Chairman: Sir Alan Beith wants
to ask you some questions about other jurisdictions, but as a
matter of principle do you have any objection to codification
in statute rather than codification by way of protocol or agreement?
Dr Jack: I think it would depend
how far this went. The Australian example that I have just read
out is again pretty obvious—"documents submitted to
a House or a committee" so it would be evidence, that sort
of thing, but I think in principle, a Sir William McKay has told
you, if you have a statute you can put in it what you want.
Q1031 Sir Alan Beith: Does the benefit
of a statute not get outweighed if it leads to further litigation
and therefore the calling into question of the boundary between
courts and Parliament, because it is in the nature of a statute
that it can be the subject of litigation?
Dr Jack: Yes, I think that is
the great danger of having a statute that you could have challenges
to it, but I think the Australian example, this Act passed in
1987 (so it has been there quite a long time) seems to have worked
reasonably well. They do not seem to have had endless litigation
about privilege matters under the statute.
Q1032 Sir Alan Beith: The Australian
example attempts to make a definition around submissions to the
House. If you take the American case, Congressman Jefferson's
office being raided, he was able to argue before the court that
the documents that were sought related to "legislative activity"
or the "legislative process". Is that a useful definition
which could be imported into our system or would it not work in
our system?
Dr Jack: I think it probably would
not work. One of the great distinctions is under the American
system the American Constitution vests the privilege in the individual
whereas that is not the case here, so the Congressman himself
is vested with this right in the Constitution and therefore the
Jefferson example you have just quoted came up. That is not really
comparable with our system.
Q1033 Sir Alan Beith: The question
that was in my mind is whether legislative activity is in any
way a useful definition or whether it is such a broad definition
you could put almost anything in it, because the Congressman might
say, "I was considering whether this might be considered
by a new private Member's bill I might introduce," or whether
it gives appropriate focus perhaps thereby offering some guidance
to the police as to what might be privileged, or is it an unhelpful
term?
Dr Jack: I think it depends very
much on what the legislation was. One would have to look at it
but, as I said at the beginning, the Bill of Rights is a statute
so privilege is already subject to the sort of thing you are saying,
to examination in the courts. It would not be a new departure.
Q1034 Sir Alan Beith: What are you
saying is if you were the person taking part in the sift and you
say to a police officer, "That is a privileged document,"
you are actually saying that it cannot be used in court. It may
of course be a perfectly public document, in which case the police
officer can take it away and do what he likes with it, but what
he cannot do with it is use it in the court. Also in respect of
some documents you are saying, "You cannot take that document
away from here. You cannot take it from the Member because it
is a privileged document." It is slightly confusing as to
what the purpose and outcome of the exercise is because for some
documents they are public anyway. Others are not public and you
may be trying to protect them from being made public by the use
of privilege but that is not its primary purpose, is it?
Dr Jack: It really comes to what
the purpose of the use was, even in the court. Parliamentary documents
can be used in the court for certain purposes to establish for
example a historic fact, that a Bill was passed or that something
happened. Similarly, in a famous case the courts even have the
ability to look into ambiguities in statutes by reference to words
spoken in the House, so there are qualifications to it.
Q1035 Chairman: Pepper v Hart.
Dr Jack: Pepper v Hart,
exactly, that is right.
Mr Henderson: Is there a distinction
between a published document and a public document?
Q1036 Sir Alan Beith: You might have
a document that was not public but that somebody had published
and it was leaked.
Dr Jack: Again coming back to
this provision in the Australian Act, it is quite interesting,
"prepared for the purpose of submission", so it envisages
documents which are not public but which are still parliamentary
for this purpose.
Q1037 Ann Coffey: As a Member of
Parliament I have this belief that I can stand up on the floor
of the House and say what I like about anybody I like and not
be sued or taken through the courts if I do that. I take it that
this is the right that is enshrined in the Bill of Rights. If
Damian Green had said what he wanted to say on the floor of the
House in terms of the issues that he was raising, as a result
of information he got from Chris Galley, he would have been able
to do that, and that would have been able to be reported, and
that would have been seen as a perfectly proper thing for an MP
to be doing. It occurs me that part of the difficulty and the
confusion is that the part which related to the proceedings of
the House, which did not take place on the floor of the House
but would have been seen in his correspondence, is the defining
of that because it is not as easy to define that as when somebody
actually speaks in the House? Do you think that that is the difficult
part of it? The part of it that is enshrined by the Bill of Rights
is easy. It is very straightforward because it is vocal. It is
the substantiating document to that which is problematic?
Dr Jack: Yes, I would absolutely
agree with that. There is this background grey area: is a note
in preparation for a question part of a proceeding or not? If
it can be shown to be linked closely to the asking of the question
then it is but, no, you are absolutely right, you identify a whole
range of grey areas.
Q1038 Ann Coffey: How do we proceed
with that to make them less grey?
Dr Jack: One thing that is also
difficult in all these discussions is that privilege, like the
general law, is a case-by-case matter and although obviously you
lay down principles, the actual application to a case has to be
measured each time, so it is very difficult to generalise.
Q1039 Ann Coffey: But it is not difficult.
The principle and what you do about it is very clear if they speak
in the House.
Dr Jack: Yes, that principle is
absolutely clear.
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