Examination of Witness (Question Numbers
620-639)
SIR WILLIAM
MCKAY
KCB
7 DECEMBER 2009
Q620 Chairman: Putting it generally,
during that time you fulfilled a wide range of responsibilities
within the House of Commons.
Sir William McKay: Yes, Chairman,
that is so.
Q621 Chairman: In particular, in
relation to your responsibility as Clerk, issues of privilege
were matters for which you had responsibility and which you were
required to give consideration to from time to time?
Sir William McKay: Yes, that is
certainly so.
Q622 Chairman: The Committee has
learned that on 28 July 2000 you felt it necessary to produce
a memorandum which was entitled "Police Search of a Member's
Office".
Sir William McKay: Yes, Chairman.
Q623 Chairman: I do not think we
need to take any of the particular circumstances of that into
account, but there was a police force, putting it generally, which
was thought possibly to be likely to seek a warrant to enter and
search the office of a Member of Parliament.
Sir William McKay: That is so.
I cannot remember the exact circumstances, but I can tell from
internal evidence that I must have had consultations with the
Serjeant of the day, with the Speaker's Counsel, and with Madam
Speaker. The memorandum itself dropped off the horizon because
nothing happened. It was written at the beginning of a recess
and nothing happened so it is understandable that no-one ever
had to take any action on it, so it lay in files.
Q624 Chairman: But it did seek to
set out your considered view of the steps that were necessary
in the event that an application had been made by a police force
to obtain a warrant for the search of a Member's office?
Sir William McKay: Yes, that is
so.
Q625 Chairman: Was that the first
time you had to draw up a memorandum of that kind?
Sir William McKay: On this subject,
yes. The strange thing is this particular phenomenon was found
in the 1990s in various Commonwealth jurisdictions, in 2006 in
the States and the case in 2008 here, but before then it was purely
theory. This afflicted all the major Anglo-Saxon legislatures
within 20 years.
Q626 Chairman: Having not had to
deal with it before.
Sir William McKay: Never.
Q627 Chairman: Again, without identifying
either a police force or a possible Member who was a subject of
application for a warrant, can you just tell us in general terms
what the allegations were?
Sir William McKay: I think it
was a corruption allegation.
Q628 Chairman: You have indicated
that these matters arose within fairly short compass for a number
of jurisdictions and I think in your paper to us you have sought
to set out some first principles and also to rely to some extent
on practice in Canada, is that right?
Sir William McKay: I did in the
2000 memorandum, yes. I tried to write the paper now on a rather
broader scale because I was not under such urgent time constraints
in writing the paper for this Committee as I was in writing the
memorandum, the House either having got up or just being about
to get up.
Q629 Chairman: You set out some of
what you described as "unresolved imperatives", which
I take to be principles. If I can just remind you of these: control
of the premises is vested in the Speaker. Do you still agree with
that?
Sir William McKay: Yes.
Q630 Chairman: The Speaker is the
guardian of the House's privileges, subject to the House itself.
You agree with that?
Sir William McKay: Yes.
Q631 Chairman: The House's privileges
must not be infringed.
Sir William McKay: Certainly.
Q632 Chairman: Proceedings, and Members
taking part in them, must not be impeded.
Sir William McKay: They must not
be impeded.
Q633 Chairman: Privilege does not
afford protection from a proper search. By that I imagine you
mean illegal search.
Sir William McKay: With all the
formalities complied with. The House, as we keep saying, is not
a haven.
Q634 Chairman: The Palace of Westminster
is not a sanctuary?
Sir William McKay: No.
Q635 Chairman: At the time in 2000
when you wrote the document we have been discussing, were you
aware of the implications of PACE, the Police and Criminal Evidence
Act?
Sir William McKay: In particular
no, Chairman, I was not.
Q636 Chairman: Did you give any consideration
to the particular provisions of that Act in drawing up your memorandum
of 2000?
Sir William McKay: No, because
I was dealing as a very first reaction to a situation which we
had no experience of. I was simply trying to balance the privileges
of the House with the right of the police to enforce the criminal
law.
Q637 Chairman: Therefore, I take
it from that you did not make any particular investigation of
whether consent was required, or whether if consent was given
or withheld then certain consequences might flow from that?
Sir William McKay: I think I assumed,
rather like Lord Martin in the current case, there would be a
warrant.
Q638 Chairman: Again, since we have
to be constrained in relation to the particular circumstances
of the case that prompted your memorandum in 2000, may I ask did
you discuss your memorandum with the then Speaker of the House?
Sir William McKay: I think I did.
I cannot remember doing so, but I think a close reading of some
parts of this memorandum suggest that there had been a brief discussion.
I do not think I would have said some of the things here if I
had not brought to Madam Speaker's attention what was likely to
happen.
Q639 Chairman: I take it from that
that you would expect in the preparation of a memorandum of this
kind you would have consulted Madam Speaker Boothroyd?
Sir William McKay: Exactly, yes.
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