Police Searches on the Parliamentary Estate - Committee on the Issue of Privilege Contents


Supplementary Note from the Clerk of the House

PRIVILEGE ISSUES IN A BROADER FRAMEWORK

  1.  It may be helpful to add a further, brief note on the possibility of statutory solution to matters that have arisen during the Committee's evidence sessions.

THREE SPECIFIC MATTERS

  2.  The two principal areas of the Committee's concern have been the matter of admissibility of evidence in court and the status of a Speaker's Protocol governing procedure in the case of search warrants in respect of Members' offices. A further matter, of Members' correspondence, has also been discussed in evidence.

  3.  On the question of admissibility of evidence before the courts, in my oral evidence I quoted the provision of the Australian Parliamentary Privileges Act (section 16 (4)) prohibiting the production of documents prepared for submission and submitted to a House or a committee as evidence before a court or a tribunal.[56] That could be a statutory model to follow for that specific matter.

  4.  Sir Alan Beith raised the possibility that statutory provision could lead to litigation which is undoubtedly a risk. On the other hand, the Australian experience does not suggest that too much difficulty has been created by the existence of this particular provision.[57]

  5.  So far as the Speaker's Protocol is concerned, my view, which I expressed in evidence, is that since its application would not be likely to require an immediate decision on a privilege matter and concerned formalities, albeit important ones, a code developed with the police should suffice to deal with the immediate issues surrounding the serving of a warrant and its consideration by the Speaker.[58]

  6.  The further matter of Members' correspondence with constituents needs to be seen in the context of the duties of a modern Member of Parliament. Communication with constituents is a prime part of those duties. Correspondence is not covered by parliamentary privilege unless it relates directly to proceedings. The Joint Committee on Parliamentary Privilege drew attention to difficulties in defining correspondence and preferred to rest on the existing status quo that correspondence should remain unprotected by parliamentary privilege as is the case in most Commonwealth countries. However, it would be possible to revisit that matter in the context of consideration of a Privileges Act.[59]

WIDER CONTEXT OF A PRIVILEGES ACT

  7.  Should the Committee wish to pursue the statutory route in any of the above matters, it might be useful to draw attention to the wider context of a Privileges Act in which they might be set.

  8.  A Privileges Act was recommended by the Joint Committee on Parliamentary Privilege in 1999. One of its main arguments in favour of such an Act (in addition to its important drawing together of privilege issues including a codification of contempt) would be to make it easier for both Members of Parliament and the Electorate to understand the meaning and importance of parliamentary privilege by setting out an "accessible code".[60]

  9.  Since that time a number of further arguments in support of a statute have been advanced including the need to redefine boundaries between Parliament and the courts in the light of increased interventions by the House in proceedings to prevent, for example, the use of select committee evidence as the basis of litigation.[61] A similar increase in cases of this sort in the period prior to 1987 led to the passing of the Australian act. Although statutory regulation, as has been mentioned (in paragraph 4 above) has its own risk, there is no reason to suppose that the courts would wish to intrude into matters clearly defined as the domain of Parliament, provided Parliament, for its part, recognises the domain of the courts.

  10.  Three further specific matters could also be dealt with in a Privileges Act. The first concerns the relationship of privilege to the offence of bribery, recently considered by a Joint Committee of both Houses with a recommendation that a Privileges Act "would be the most appropriate place to address the potential evidential problem in relation to bribery offences".[62]

  11.  The second might be a return to issues raised from Section 13 of the Defamation Act 1996, considered by the Joint Committee of Parliamentary Privilege 1999 which recommended a new statutory provision enabling the House and not any individual, to waive parliamentary privilege in court proceedings.[63]

  12.  Finally, there is the matter of the future cases before the European Court of Human Rights which I referred to in my evidence.[64] In the case of A v United Kingdom in which the principle of freedom of speech was upheld, it is clear from the judgements that the court would be more impressed by a modern statute protecting that essential privilege but one which also gave some acknowledgement to the expectation, in the interests of fairness, for a system of redress.[65] Other implications of how Article 6 (1) of the European Convention on Human Rights (ECHR) impacts upon privilege were considered by the Joint Committee on Human Rights in its report on the Parliamentary Standards Bill in June 2009. The Joint Committee's report should also be considered in respect of requirements of fairness under the ECHR in relation to parliamentary privilege.[66]

  13.  These wider matters would require detailed examination and consultation before being worked into statutory provision. In its report on the Parliamentary Standards Bill, the Justice Select Committee has warned of the dangers of piecemeal reform and the need for a "proper understanding of the position and role of Parliament in relation to the institutions of the State".[67] It is in this wider context that any specific recommendations on statutory provisions the Committee might make, should be seen.

Malcolm Jack

28 January 2010







56   Q 1029 Back

57   Q 1031 Back

58   Qq 1016, 1045 Back

59   Q 1043 Back

60   See Joint Committee on Parliamentary Privilege 1998-99, HL Paper 43-I, HC 214 I, paras 378 to 385 Back

61   For examples of recent interventions see my Memorandum to the Committee, Ev 125 para 21, footnote 25 Back

62   Joint Committee on Draft Bribery Bill, First Report, Session 2008-09, HL Paper 115-1, HC 430-1, para 228 Back

63   See Joint Committee on Parliamentary Privilege 1998-99, HL Paper 43-I, HC 214 I, paras 60-82 Back

64   Q 1079 Back

65   For an account of the case, see Erskine May 23rd edition 2004, p. 199 Back

66   Joint Committee on Human Rights, Nineteenth Report, Session 2008-09, HL Paper 124, HC 844 Back

67   Justice Committee, Eleventh Report, Session 2008-09, HC 923, para 95 Back


 
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