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
|