Examination of Witness (Question Numbers
640-659)
SIR WILLIAM
MCKAY
KCB
7 DECEMBER 2009
Q640 Mr Howard: To whom did you make
that memorandum available?
Sir William McKay: To all those
whose names are on the top of it: the Serjeant, Speaker's Secretary,
Speaker's Counsel, a copy to the Speaker's Counsel Designate,
the Clerk Assistant and two others of my senior colleagues.
Q641 Mr Howard: Would you expect
that when the persons who held those offices changed, that memorandum,
being an important summary of what you understood the legal position
to be, to be made available to them?
Sir William McKay: Remain available,
Mr Howard, yes, but be taken out and put under their noses I doubt,
because nothing happened. Again, as Lord Martin said, clerks like
writing; they do a lot of it. Just as Speakers have not got the
time to read all of these papers, so I would not expect this to
be at the front of the minds of any of these officials. If someone
had remained in office from the date of this memorandum—2000—to
the present it might still be in his or her head. It was still
just in mine when these events that the Committee is looking into
occurred. To put it at the front of a file and say, "We must
tell the new boss this", I do not think so. It should be
in a file headed "Search of Member's Offices".
Q642 Mr Howard: So that anybody faced
with a similar dilemma could consult it?
Sir William McKay: As the present
Clerk of the House did, I understand, from the evidence given
to the Committee.
Q643 Ann Coffey: I just want to explore
with you a bit what you see as the House's privileges. It seems
to be a very opaque area.
Sir William McKay: Privilege,
in this context, I would regard as the right to insist, based
on statute, that no part of parliamentary proceedings is impeached
or questioned in court. This is not on all fours with the American
case that I mentioned because there the Court of Appeals took
a much broader view of what the House of Representatives and the
Senate's privileges were. In the case I mentioned, Congressman
Jefferson's case, the Court of Appeals, which is the second highest
court in the United States, affirmed that the Speech or Debate
Protection, ie Article 9 in British terms, extends to efforts
to force initial disclosure of legislative material for inspection
and it is not merely a constraint against its use in court proceedings.
With us, Article 9, I think, is just a constraint against its
use in court proceedings. American jurisprudence goes wider.
Q644 Chairman: You have taken us
in a direction that has caused the Committee some concern, Sir
William, and it is this: Members get correspondence in large volumes
from their constituents and sometimes constituents make fairly
serious accusations. To one of the police officers who gave evidence
I posited a case of my own where the mother of a young man alleged
that the police were conducting a campaign of persecution against
him because he had a relationship with a daughter of a particular
police officer which had finished acrimoniously, and there were
some fairly serious allegations contained in that letter. Do I
understand from what you say that these could not be regarded
as privileged communications?
Sir William McKay: Not within
parliamentary privilege. They would have qualified privilege at
common law because a Member, provided there was no malice, is
a person with whom it is reasonable for a constituent to communicate
and the Member has a reasonable right to receive that communication
and act on it. There was a case involving Mr Reg Freeson, formerly
a Member of the House, in 1969 in which it was decided in terms
that qualified privilege attached to a representation made to
him as Member which he then passed on to a minister. The originator
of the complaint, which might otherwise have been defamatory,
had qualified privilege. That is all, as far as I know.
Q645 Chairman: You talked about "based
on statute" a moment or two ago and you were obviously referring
to an ancient statute, if one might so describe it. Do you think
there would be any advantage to the House were the House to pass
legislation which defined more clearly privilege?
Sir William McKay: Immensely,
except that we are in trouble here because the final decision
has got to be taken in the courts, because this part of privilege
is part of statute law. If you shift more of privilege into statute
law you are delivering yourself up to the courts on an even wider
front. Secondly, suppose when the Joint Committee on Parliamentary
Privilege reported, the government of the day had said, "Good,
fine, we will legislate", I bet it would not have covered
this particular case. There are always going to be tears in the
garment, I am afraid.
Q646 Ann Coffey: You talked about
qualified privilege in terms of a constituent being reasonable.
Sir William McKay: Yes.
Q647 Ann Coffey: "Constituent"
defines somebody who lives in the constituency that I represent.
Supposing somebody from outside that constituency had written
to me with an issue of concern, would that still be qualified
privilege?
Sir William McKay: I cannot say
because only the courts can tell you, but I would say commonsense
tells us yes, of course, because a Member of Parliament has not
only a representational role with respect to his or her constituents,
but also a national role to raise issues of national concern in
the national Parliament. I would have thought it would be reasonable
for a court to conclude that a Member who received such a communication—
Q648 Ann Coffey: No matter where
it was from?
Sir William McKay: No matter were
it was from.
Q649 Chairman: If it was anonymous?
Sir William McKay: Ah!
Q650 Chairman: I have just had an
anonymous communication about the Chilcot Inquiry. Would anonymity
be sufficient?
Sir William McKay: My inclination
would be to say it would certainly cover the Member who received
it if it were on matters of national importance which the Member
might or might not raise in the House.
Chairman: I may need you as a
witness in my defence!
Q651 Ms Hewitt: Sir William, can
I just pursue this a little further. In the case of documents
which the courts would be likely to say are covered by parliamentary
privilege, is it your view that it is permissible for the police
to seize and take such documents in the course of an investigation
of this kind, including documents that they would not be able
to rely on in court because they have been part of parliamentary
proceedings?
Sir William McKay: I do not like
that one little bit, but I cannot see any way out of allowing
the police to seize this documentation because it is not the House
that decides they are covered by privilege. It is in statute,
only the courts can do that. I tried to suggest in my paper a
way out: by consensus the police, the Member and the House authorities
try to establish what is clearly a sheep and what is clearly a
goat but, of course, if any of these parties is acting with, not
a lack of candour but—
Q652 Chairman: Too much zeal.
Sir William McKay: Jamais trop
de ze"le, Chairman, exactly, then it will not work. There
are some Australian cases, which I have to admit I do not understand,
where the decisions have been left to the relevant House. For
me, if the Bill of Rights says some things in terms about parliamentary
privilege, the only interpretation of that must be by the court.
I cannot see any way round it.
Q653 Ms Hewitt: Can you see any way
in which it might have been possible for a Privileges Committee
to sit while the criminal process was still live rather than leaving
the matter to be dealt with privately by the Speaker and senior
officials acting as the House authorities?
Sir William McKay: The first difficulty
is the sub judice rule. The second difficulty is why would
they bother because their view is not going to be the final one.
You might involve a Privileges Committee if you could persuade
them to do this preliminary sift, but I do not know that that
is what committees would happily sit to do.
Q654 Ms Hewitt: Coming back to this
question of qualified privilege, and specifically constituents'
correspondence or people's correspondence with Members of Parliament
who may or may not be their own constituency MP, do you think
that the House ought to be taking steps to assert and defend the
confidentiality and qualified privilege of that kind of correspondence
and to try and protect it? In any case, if we wanted to do that,
do you have a view on how that might be done?
Sir William McKay: You would have
to do it by statute. The only encouragement I can give the Committee
is I think when it became clear in the House, I think in the 1950s,
that constituency correspondence and similar was not protected
by parliamentary privilege, that was in contradiction—I
think this is right—to a report of the Privileges Committee
and carried in the House by one vote. On the other hand, there
is nearly half a century of practice along those lines.
Q655 Chairman: Also, a vast increase
in the volume of constituency correspondence and a willingness
on the part of constituents to raise issues across a very wide
range.
Sir William McKay: Yes.
Q656 Mr Howard: It would at least
be theoretically possible, would it not, in the hypothetical legislation
that you have been asked about to provide that Parliament should
be the arbiter of privilege?
Sir William McKay: Yes. I suggested
to the Joint Committee on Parliamentary Privilege, I have to admit
in a rather clunky way, a way in which this could be done. Yes,
you could provide for that. You would be stepping outside the
protected garden of what we and most of the rest of the Commonwealth
understand, but if the need arises then do it.
Q657 Chairman: Would you be transgressing
the separation of powers?
Sir William McKay: We have not
got one, Chairman, have we?
Q658 Chairman: I was told there was
one a long time ago by a Scottish law school.
Sir William McKay: Yes, indeed,
but then statute cures all.
Q659 Mr Blunkett: Just referring
back to a comment you made earlier, Sir William, on this issue
of statute. Evidence was given by the police which is in contradiction
to what you believed and indicated you thought former Speaker
Martin had believed, which was that a warrant was required. The
police's evidence was that a warrant could only be obtained in
the circumstances that we are dealing with here if consent had
been sought and refused. I just wondered if you would like to
reflect in relation to your memorandum of July 2000 as to how
that gels with the concepts we are dealing with there.
Sir William McKay: Mr Blunkett,
I agree that is what the statute clearly says. If consent is not
likely to be forthcoming then that is a ground on which you can
get a warrant. What I am saying in my paper is there should be
a presumption, and if the Committee wished to report in this sense
and the House, for example, was to resolve to agree with the Committee's
report, there jolly well would be a presumption, that nothing
should be done without a warrant.
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