Examination of Witness (Question Numbers
1040-1059)
DR MALCOLM
JACK
18 JANUARY 2010
Q1040 Ann Coffey: That is not a grey
area at all.
Dr Jack: No, that is not a grey
area. It is this phrase in the Australian Act "incidental
to" which is used, incidental to proceedings, and that is
where the problem is. I think in his evidence to you Sir William
said that was your problem.
Q1041 Mr Blunkett: So if these matters
had not been presented in newspapers and he had not yet presented
them on the floor of the House, but there was a suspicion that
he had received material from Christopher Galley and the raid
had taken place—let us call it a raid—if Damian Green
had been able to say, "I got this material and I was putting
it together for speaking in the House", as Ann Coffey has
described, that might well in the Australian Code fall into privilege?
Dr Jack: Yes, I think that is
right, Mr Blunkett, provided that the link was clear and there
was some clear evidence of this link, yes.
Q1042 Chairman: It would be quite
difficult if a Member said on oath, or not even on oath, "This
document was one that I was preparing because I was going to apply
for an adjournment debate," or "I had applied for an
adjournment debate and this was therefore prepared from material
which had reached me by a circuitous route in order to put in
front of Parliament," for anyone, the police or a court,
to challenge that?
Dr Jack: Yes, I think that is
right.
Ann Coffey: Because we collect lots of
material some of which is used and some of which is not.
Chairman: We also collect material which
we keep against the possibility that we might use it in future
or sometimes that we might read it in the future! Sir Alan Beith?
Q1043 Sir Alan Beith: Are we not
trying in some of this from very good motive to use privilege
to protect a wider public benefit, namely that Members of Parliament
should be able to accumulate and receive material which may involve
very serious criticism of people in public office, including perhaps
the police, and should be free from interference from this process
or indeed from disclosure of the source of some of the material,
and privilege is not drafted to meet that objective, is it?
Dr Jack: No, I think that is right.
This is a theme that has come up quite often that in some senses,
if I can put it this way, the modern function of a Member has
changed and correspondence with constituents is a very big part
of that and that is not covered by parliamentary privilege unless
it relates to some proceeding. The Joint Committee in 1999 looked
at this and they came to the conclusion that correspondence should
still not be covered by privilege, which is the general Commonwealth
position. I think their reasons were that it would be very difficult
to define what this correspondence was. They said one would not
know what material one was dealing with. They reckoned that absolute
privilege should be limited to matters closely related to proceedings
and that the common law protection of qualified privilege in the
courts had worked sufficiently well, but the Committee may not
feel that is any longer the case. I recognise that a lot of Members
have talked to me about this and said that in modern circumstances
this is just not sufficient.
Q1044 Sir Alan Beith: It is not a
new problem, is it? Churchill must have been in that position
when people supplied him with information about our failure to
rearm, which he had every intention of using in the House without
disclosing its source. When the Speaker has to consider whether
to allow a search to take place without a warrant or whether in
some way to try to resist the execution of a warrant, which of
course in the Canadian case he can do, what question is he really
asking himself? Is he taking a definition of parliamentary privilege
and saying, "I do not want this search to take place because
it would interfere with parliamentary privilege," or is he
actually saying, "It is in the general public interest that
Members' offices should not be raided and correspondence removed
unless there is very clear and overriding public interest in the
particular case for this to be done," because these are quite
different exercises, are they not?
Dr Jack: I think the Canadian
system and the Protocol system which is before you, if I can call
it that, envisages, if I can put it that way, a set of technical
requirements about the warrant, its specificity, notice of it
and all these kinds of things. I think this has come up in evidence
to you already. It is quite hard to imagine the police arriving
with a warrant that actually interfered with proceedings of the
House and therefore raised a matter of privilege that the Speaker
would have to consider at that point. It really is quite hard
to imagine a judge acting as King Charles, which is what he would
be doing. He would be signing a warrant saying, "Go to the
House of Commons and arrest Mr So-and-so or Madam So-and-so because
they have spoken these words in Parliament." It is very hard
to imagine a warrant which would say such a thing. I think the
Speaker's involvement in the warrant is really mainly to ascertain
whether technical requirements have been met.
Q1045 Sir Alan Beith: It is that
judgment. It is a judgment about the technical requirements of
whether it meets the conditions that are dictated by the existence
of parliamentary privilege, not some wider public interest.
Dr Jack: That is absolutely correct,
although may I add, Chairman, I think you have had evidence from
the police as well about a plea for greater clarity. I think the
House should respond to that. I see no reason why we could not
develop a better dialogue with the police on these matters by
having a Code, again like the Australian one, which guides the
police, because the police want an operational set of things to
tick off so they know they are complying.
Chairman: I want to ask you some questions
about that myself but Ann Coffey?
Q1046 Ann Coffey: Is it not interesting
that in fact if the police had applied for a warrant then actually
you would probably have had the King Charles situation because
they would have applied for a warrant because of misconduct in
public life, the charge under which Damian Green was arrested,
yet in fact the misconduct was simply raising issues that had
been drawn to his attention, albeit by a civil servant and not
by a constituent?
Dr Jack: We would go back again
to how closely those real actions related to a proceeding, what
was this related to, questions he was asking of the House, was
this—
Ann Coffey: My point is that if Damian
Green had stood up in the House of Commons and said all that he
would not be subject to any charge at all because he has a perfect
right to stand up on the floor of the House of Commons and talk
about the issues that Christopher Galley raised with him. The
fact was he did not do that, although he continued to be involved
in it. Because of that he was arrested for this offence of misconduct
in public life and his office searched. It seems a bit curious
that if he had said it in the House of Commons nothing would have
happened to him, but—
Mr Blunkett: It might under our present
system.
Ann Coffey: Might it?
Q1047 Mr Blunkett: Yes, because his
papers would have still been subject to scrutiny in terms of whether
and how he received them.
Dr Jack: Yes, I think that is
right. The misconduct was procuring the confidential information.
Q1048 Chairman: There were questions
as to whether or not that had been induced.
Dr Jack: Yes, that is right.
Q1049 Chairman: Or whether it had
been at the instigation of the civil servant.
Dr Jack: The case would have become
more complicated if the circumstances that you mentioned were
part of it.
Mr Blunkett: Which is why the Australian
Code is difficult to adopt because it then gets into the situation
of why and how and under what circumstances somebody has acquired
that information, which is why it is taking us so long to get
through this.
Q1050 Chairman: Can I take you back
to Protocol, and to some extent you have dealt with this in your
evidence. Would it be fair to characterise your evidence as saying
that you are supportive of a Protocol but it really goes to matters
of practicality and not to matters of substance?
Dr Jack: Yes, I think that is
correct, Chairman. As I say, apart from the unthinkable situation
where it actually impinged on proceedings, but it is so hard to
imagine such a warrant.
Q1051 Chairman: Those practicalities
would recognise—I do not want to put words into your mouth—the
primacy of the courts in determining in the end the extent of
privilege?
Dr Jack: Yes, I think that is
right, but some of the practicalities are very important. For
example, I think you will have heard evidence from Lord Martin
that the lack of prior notice of these matters might have made
a great difference in this case. One of the conditions of Protocol
is that the police must come early and tell the Speaker what is
going on, not turn up on the evening before they are contemplating
some action, that sort of thing. The practicalities can be quite
important.
Q1052 Chairman: You use the word
"Speaker", I guess, advisedly?
Dr Jack: Yes.
Q1053 Chairman: "Speaker"
rather than "Serjeant at Arms"?
Dr Jack: Speaker, yes.
Q1054 Chairman: Supposing the steps
set out in the December Speaker's Protocol had been in place,
would they have met these practical tests that you have been describing?
Dr Jack: Well, that depends what
was in the warrant.
Q1055 Chairman: Who drafted the Speaker's
Protocol? Was that something you had a hand in?
Dr Jack: I had a hand in it, and
Speaker's Counsel, who is in the gallery here. I should not refer
to people in the gallery. Yes, he did.
Q1056 Chairman: You say the relationship
between that and the warrant would be of significance?
Dr Jack: Yes, I think so. It would
depend on the exact terms of the warrant.
Q1057 Chairman: Is there any difference
between sitting and non-sitting days of the House in this context?
Does it matter if the House is sitting or not sitting?
Dr Jack: It matters in terms of
arrest, yes. A Member cannot be arrested while the House is sitting
because that would interfere with his first duty which is to attend
upon the House. I think you know the famous example of Lord Cochrane
at the beginning of the 19th Century who was arrested while sitting
on the benches in the House, but the House was not yet sitting.
They swooped in and took him away. You can get pretty close to
the sitting.
Q1058 Chairman: At 2.25 it is okay
but at 2.35 it is not.
Dr Jack: At 2.25 it is okay, yes.
It is actually a contempt to serve a notice on a Member when the
House is sitting.
Q1059 Chairman: Have you considered
whether there are circumstances in which the Speaker would have
any legal right to refuse the execution of a warrant? You are
probably aware that Sir William McKay did consider that in some
extreme circumstances the Speaker might have the right to refuse
the execution of a warrant. Have you given any consideration to
that?
Dr Jack: I find it very difficult
to imagine what those circumstances could be, I really do, as
I said, other than interfering with the proceedings. He is not
really acting in legal capacity; he is acting in a capacity of
guardian of privilege, which is another matter.
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