Examination of Witness (Question Numbers
1060-1079)
DR MALCOLM
JACK
18 JANUARY 2010
Q1060 Mr Blunkett: Dr Jack, this
afternoon we have been using you in the traditional role of the
Clerk, have we not? We have been taking your advice and reflections
properly and you have been responding properly in the way that
a traditional Clerk would do. I am just wondering whether in the
revised role, which is new in terms of you effectively being a
chief exec, reflecting on what has happened over the last year
or two, you think there is a more proactive role for what is currently
the Clerk of the House rather than a passive one. I get the impression
we have a coming to the Oracle situation, as we have this afternoon.
Dr Jack: I think so far as these
matters are concerned which we are talking about, which are matters
of privilege, it really comes back to the Speaker's authority.
He is the custodian of the House's privilege and the Clerk of
the House merely advises the Speaker on those matters. In this
area the Speaker's pre-eminence, whatever you want to call it,
is essential. I have plenty of other duties as chief executive
that keep me busy.
Q1061 Mr Blunkett: Without over-egging
this, Chairman, I just want to get a reflection from Dr Jack about
the lessons to be learnt in this, because this is what it is all
about really, the future in terms of the role and the relationship
of those like the Serjeant at Arms within that structure so that
we can help individuals who fulfil the role they are given to
be able to deal with circumstances that are moving rapidly. We
are taking a forward look.
Dr Jack: Absolutely. I think Ann
Coffey has touched on this subject in previous sessions. First
of all there is the Protocol, so at least it makes it much clearer
what the respective responsibilities are of people. On the line
management issue, the Serjeant's line manager is the Clerk Assistant
and I think he needs to be more involved and aware in this kind
of situation. We must collectively support the Serjeant perhaps
more than has been the case, not assume an independence which
I think was a little bit assumed in this circumstance partly because
of the traditions of that office. There has always been a very
direct line between the Serjeant and the Speaker on these kinds
of matters, on security matters. I think the management lesson
is that the whole team has got to be much more apprised of these
matters and make sure that everyone is properly supported.
Q1062 Chairman: One of the things
that occurred to me with the benefit of hindsight, obviously,
was that as soon as the words "arrest" and "Member
of Parliament" were used the balloon had gone up. The first
thing that would occur to me now would be "This is a potential
crisis and, therefore, the four or five people who have got a
direct input in this must meet as a matter of urgencythe
Speaker, the Clerk, Clerk Assistant, the Serjeant and Speaker's
Counsel".
Dr Jack: Yes, absolutely. I think
that lesson has been absolutely learnt and such an occurrence
will not happen again.
Q1063 Chairman: Without over blowing
the parallel, it is a bit like a COBRA, there is a crisis and
we need a mechanism for analysing the crisis and determining what
steps should be taken.
Dr Jack: It is rather curious,
Chairman, that in other areas, in the executive area, we are already
very advanced in this direction. For example, the heads of the
various departments of the House, the directors-general, are all
on a rota, a sort of COBRA rota, and if there is a physical disaster
there is a whole set of actions that are put in place as an incident
management drill but it is never applied in this sort of area.
Q1064 Ann Coffey: There have been
other crises recently as well that have tested and challenged
the House of Commons, both Members and staff.
Dr Jack: Yes, that is absolutely
true.
Q1065 Chairman: If people are being
introduced to new positions, accepting all the while that this
was part of Tebbit and the whole world was, as it were, in flux,
then there has to be some kind of procedure to acquaint them not
only with what happens on a day-to-day or even month-to-month
basis but the thing which might come out of a clear blue sky for
which they are responsible.
Dr Jack: Yes, that is right, Chairman.
That is a lesson that has been learnt.
Q1066 Ann Coffey: The institution
of the House of Commons itself is changing and if some of the
recommendations of Tony Wright's Committee are accepted it will
change even more. Of necessity that means how the institution
itself is supported through staff and the administration also
has to change. Do you think there are sufficient mechanisms in
place for enabling that change to be made?
Dr Jack: Yes.
Q1067 Ann Coffey: Or do you think,
which seems to me to be very clear, that the confusion between
how the House operated in the past and the changes did contribute
to the issues around Damian Green's arrest?
Dr Jack: I think in a more general
context what you are saying is absolutely right. The Tebbit Review
gave the opportunity to make changes and, if I may say so, I took
them myself. I pushed quite hard to get the Tebbit reforms through.
The result of that really is a much more streamlined organisation
that can deal with strategic matters which we could not deal with
before. In this area we come back to a relic of history and I
think that is one of the problems, that we are dealing with a
very specific area that has a long history to it and has been
traditionally handled in this way.
Q1068 Chairman: And this is a unique
institution.
Dr Jack: And this is a unique
institution.
Q1069 Chairman: In his memorandum
Sir William McKay set out what he called some unresolved imperatives.
I just want to put them to you to ask if you consider that these
are still relevant. You have mentioned some of them in the course
of your evidence. I will just read them out: "Control of
the premises is vested in the Speaker. The Speaker is the guardian
of the House's privileges subject to the House itself. The House's
privileges must not be infringed. Proceedings, and Members taking
part in them, must not be impeded. Privilege does not afford protection
from a proper search. The Palace of Westminster is not a sanctuary".
Would you agree with Sir William McKay's analysis?
Dr Jack: Yes, I would.
Q1070 Chairman: Would you add anything
to them?
Dr Jack: Yes. I had a thought
while I had been thinking about all of this, and that is perhaps
to consider that the Speaker himself, or herself if there was
a Madam Speaker, is rather isolated. As the Committee knows, when
the House intervenes in court cases to establish whether privilege
applies or not, to documents or whatever it is that are being
used, the Speaker advised by the House authorities has to take
that decision. I wondered whether it might be quite useful to
have a panel for the Speaker, a panel of some senior Members,
perhaps some Members of this Committee, whom the Speaker could
consult. There is a parallel in the case of the Parliament Act
when the Speaker looks at money provisions of Bills to establish
whether Bills are money Bills or not. There is a small panel he
can consult. When I was Clerk of Legislation the Members he consulted
were very assiduous about responding to that. It could be that
in this sort of way he could have a bit more support because I
think the Speaker is quite isolated in a certain way in performing
this function.
Q1071 Chairman: And by the way in
which we elect our Speakers they might have no direct or indirect
experience of the issues that we are discussing?
Dr Jack: Yes. That is a possible
thought.
Q1072 Ann Coffey: At the moment there
is no way that MPs can feed in the changing nature of their correspondence
with constituents because our job is also changing as well.
Dr Jack: Yes, absolutely.
Ann Coffey: We are doing the job in a
different way than even I did when I first came to Westminster.
Q1073 Mr Blunkett: It would entail
clarity that the police cannot say to the Clerk, the Clerk Assistant
or the Serjeant at Arms, "You cannot refer to anyone else
in this matter".
Dr Jack: That is right, Mr Blunkett.
That has to be ruled out entirely.
Q1074 Chairman: One technical point,
Dr Jack. If, for example, a decision was taken that the proper
course was for some kind of protocol between the Metropolitan
Police and the House, using the term generally, who on behalf
of the House would be a signatory to that? Would that be something
which the Speaker, because of these principles we have discussed,
would be required to be a signatory to or would you perhaps be
in a position to be able to do that?
Dr Jack: Yes. I think eventually
that would be the case, it would be the Speaker who would have
to approve that. I am just looking to see who signs the Australian
document and there is no signature on it! Certainly he would have
to be content with it but we, the authorities of the House, would
Q1075 Chairman: Would it require
a resolution of the House?
Dr Jack: I do not think so.
Q1076 Chairman: That panel that you
described might, of course, be an obvious source of advice as
to whether this is something he should sign?
Dr Jack: Yes, exactly. That is
right.
Q1077 Ann Coffey: You did mention
earlier on, I think, that you had had conversations with several
Members about their concerns in terms of what might be privileged
correspondence and what might not be, is that right?
Dr Jack: Yes, that is correct.
It is the two things really. It is correspondence and the burden
now of constituency work on Members which has completely changed
in the period certainly that I have been here.
Q1078 Ann Coffey: Yes, it has.
Dr Jack: A lot of Members feel
that there is a lack of connection and recognition of that change.
The correspondence is one area where recognition has not been
given.
Q1079 Ann Coffey: One of the things
that has changed is that there is an increased expectation for
Members to take up local cases, local injustices on the floor
of the House.
Dr Jack: Yes, that is right. Another
subject which I do not think we perhaps have time to go into would
be if there were to be a Privileges Act whether you would want
to introduce some notion of redress. I am thinking particularly
I was involved in the case of Av United Kingdom before
the European Court of Human Rights and although the European Court
came out in favour of Parliament, and the UK was supported by
a number of Member States, there were rumblings from the bench
about the fact that there seemed to be no redress, no opportunity
for anyone to say anything about a damaging matter that had been
said about them in the House or something like that. I think that
is another area of modernity which might be looked at.
|