E-mail from Professor A W Bradley to the
Clerk of the Committee
Thank you for your regular e-mail message regarding
the oral evidence given to the Committee. I have now been able
to view this Monday's session on Parliament-live, although I have
not seen the transcript. The Committee is surely in an excellent
position, in the light of all the evidence that it has received,
to report fully on the events affecting Mr Green.
I venture to comment that (by way of contrast) the
evidence given to the Committee has not explored in depth all
the general issues relating to parliamentary privilege that potentially
arise from the Green affair. That there is a need for measures
to make it difficult for such events to occur again is undoubted;
and a recommendation that there is a need for legislation on parliamentary
privilege would be justifiable.
However, several issues arising from the interface
between parliamentary privilege and the ordinary process of criminal
law are not easy to resolveand they were not considered
by the Joint Committee on Parliamentary Privilege in 1998-99.
You will already be aware of my Opinion that Mr Green included
in his written evidence. I doubt whether these issues were resolved
by the Attorney General in her advice of April 2009.
I mention just one reason for referring to this
doubt again here, since the point has featured several times in
evidence given to the Committee. This is the bald statement that
Article 9 of the Bill of Rights is a matter for the courts to
interpret, "just like any other statute". This misses
the point that Article 9 is not just like any other statute. It
contains an expression of a fundamental constitutional principle
that arguably has a stronger claim today than Magna Carta to be
regarded as a foundation of our parliamentary democracy.
From Article 9 can be derived a number of legal
rules (not merely the protection from defamation that it gives
to MPs in debate). A constitutional document of this kind must
surely be regarded as a "living instrument", which has
to be interpreted in the light of changing constitutional needs.
Since Article 9 directly affects the work of Parliament, the view
that the elected House may take of what it currently needs to
perform its constitutional functions will be relevant when issues
of interpretation (for example, as to the meaning of "proceedings
in Parliament") arise in the courts.
Two other brief points may reinforce the foregoing.
First, there are important areas of parliamentary privilege which
do not derive from Article 9 (as the Clerk of the House recognised
on Monday) and the content of which is not to be regarded as frozen
over the centuries. Secondly, while it must be for a court ultimately
to interpret Article 9 should a disputed issue to which it is
relevant come before it for decision, this does not directly bear
upon what happens before the matter reaches that stage (and when
there may be a need for the House to give a lead as to what good
constitutional practice requires).
21 January 2010
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