Examination of Witness (Question Numbers
660-679)
SIR WILLIAM
MCKAY
KCB
7 DECEMBER 2009
Q660 Mr Blunkett: I just wanted to
clarify that, Chairman, because I do think it is central to whatever
we choose to recommend as a Committee. That is clarification that
would have helped.
Sir William McKay: If I may add,
I am not a lawyer, and Members of the Committee are, but I do
see when I read the Police and Criminal Evidence Act that there
is in the Act a formulation which says that if matters subject
to legal privilege are included in the papers for which a warrant
is sought you cannot get one. This is section 8(3). Section 8(3),
as I said, says a warrant will not be issued if it is believed
that the materials sought include items subject to legal privilege.
Plainly, that is something where if there is a row the courts
will have to sort out whether legal privilege attaches to a document
or not. It might not be a bad flag if you could get an amendment
to PACE to say "and that applies to parliamentary privilege
too".
Q661 Chairman: Legal privilege might
on a broad interpretation be held to embrace parliamentary privilege.
Sir William McKay: It would be
better to nail it down, I think, Chairman, but yes.
Q662 Sir Malcolm Rifkind: Sir William,
you may not be a lawyer but we have noticed that you are a Professor
of Law at Aberdeen University, which is more than most of us can
claim.
Sir William McKay: I decline to
have that held against me!
Q663 Sir Malcolm Rifkind: I would
like, if I may, to go forward from your memorandum of 2000 to
the memorandum you have kindly prepared for the Committee. You
say in that memorandum at paragraph four: "The most natural
source of authority for permission to search in that part of the
Palace occupied by the Commons is the Speaker personally".
How does the Speaker, in your view, exercise that responsibility?
Sir William McKay: I would say
that the proper thing to do would be for the police to communicate
with the Speaker and say, "We are going to seek a warrant.
We expect you will do all you can to forward the search is in
compliance with the warrant". The Speaker could at that point
say, "Ah now, wait, I am not disposed in this particular
instance", as opposed to the generality, "to agree to
what you are asking". There are cases. The Quebec Speaker
not very long ago, in the past ten years or so, refused to comply
with the demands of a warrant because he said, "So far as
I can see a Member not immediately connected with the subject
of the warrant is being incriminated", so the police went
away and got another warrant.
Q664 Sir Malcolm Rifkind: If the
Speaker has that responsibility, in your view is it permissible
for him to delegate that authority as regards consent either to
the Serjeant at Arms or any other Officer of the House?
Sir William McKay: I think that
the Speaker is where the buck stops in this instance. The Speaker
ought to be provided with as much advice as he or she might want,
but in the end it is the Speaker who stands for the House, no-one
else.
Q665 Sir Malcolm Rifkind: The Clerk
of the House informed the Committee in his evidence that in his
view it was necessary to consult the Speaker before any decision
was taken. How would you understand the word "consult"
to refer to what actually is required?
Sir William McKay: "What
do you think about this, Speaker?" As an opinion.
Q666 Sir Malcolm Rifkind: An opinion
or permission?
Sir William McKay: An opinion
leading to permission or denial of permission, yes.
Q667 Sir Malcolm Rifkind: If you
could just clarify this because it is quite an important point.
Sir William McKay: Permission.
Q668 Sir Malcolm Rifkind: You are
quite clear in your mind that permission is required from the
Speaker?
Sir William McKay: In my mind,
permission ought to be required not legally but because the House
of Commons is an important organ of the state.
Q669 Sir Malcolm Rifkind: Therefore,
merely to "consult" the Speaker as the term might normally
imply would not be sufficient unless it led to permission either
being granted or refused?
Sir William McKay: I would say
that was the case.
Q670 Sir Malcolm Rifkind: Leading
on from that, given your experience as Clerk of the House, and
it may not have happened in quite this way, if during the course
of your period in office it had come to the attention of any Officer
of the House that a Member of Parliament was potentially going
to be arrested and offices were potentially going to be searched,
what would be the procedure for that Officer of the House then
to carry forward?
Sir William McKay: I would expect
the Clerk of the House to be informed and the Clerk immediately
to go to the Speaker and say, "This is intended".
Q671 Sir Malcolm Rifkind: Would that
view you have just expressed be any different if the Officer of
the House who was first informed by the police was told that this
was such a confidential matter that it should not be discussed
with anyone else?
Sir William McKay: In my opinion
the duty of Officers of the House to the House and to the Speaker
should simply override that. There is nothing which is so confidential
related to the House of Commons which, if it is important, ought
not to be laid before the Speaker.
Q672 Sir Malcolm Rifkind: If the
information is first provided to the Serjeant at Arms, who does
consult the Speaker, but neither of whom have a legal background
or previous experience in these particular circumstances, do you
think that is all that is not technically required but all that
is sufficient, or would you have expected some broader consultation
to be taking place, perhaps chaired by the Speaker but including
his legal advisers, the Clerk of the House and others, before
any view was expressed?
Sir William McKay: However I got
into the act, if I were Clerk of the House, Chairman, I would
want to get into it and I would want to get into it with Speaker's
Counsel.
Q673 Sir Malcolm Rifkind: You would
anticipate in circumstances of this kind the wisest course of
action would be for the Speaker to consult Speaker's Counsel,
the Clerk of the House or anyone else who might have some experience
or particular contribution to make that would assist the Speaker?
Sir William McKay: I would agree,
Sir Malcolm.
Q674 Sir Malcolm Rifkind: That would
be true in your view even if the police had said, "This is
terribly confidential, we would rather it was not shared with
anyone else at this stage"?
Sir William McKay: Yes, because
of the duty of the senior officers to the House and to the Speaker.
Q675 Sir Malcolm Rifkind: One other
question, if I may. If a warrant was granted in circumstances
of this kind or, indeed, in circumstances of any kind, is it possible
for the Speaker, in your view, still to withhold consent in certain
very specialised circumstances?
Sir William McKay: Yes. The circumstances
were very narrow which were discussed earlier in other evidence
about, I suppose, somebody wanting a warrant to arraign a Member
for the kind of speech which would be otherwise illegal, and the
Speaker would—
Q676 Sir Malcolm Rifkind: A speech
made in the House of Commons?
Sir William McKay: A speech made
in the House. Suppose too there was a desire to execute a warrant
and the next day or the day on which the warrant was to be executed
the Member concerned was leading for the Opposition or the Government
in the House, or was on the other side of the world on a parliamentary
visit. I think the Speaker might be justified in saying, "Hold
on." Even in a very limited case which I cannot imagine,
the Speaker might simply say, "No. I am not having this",
and it would have to go, as Speaker's Counsel told the Committee,
to judicial review of the issue of the warrant. In all the great
19th century cases, Stockdale v Hansard, Wason v Walter,
the House was trying its luck. If the House or the Speaker or
whoever is taking the decision is sufficiently upset and concerned
for the liberties of the House, then go to law.
Q677 Sir Malcolm Rifkind: You are
saying the Speaker can go to law but no one else is able to go
to law if the police have a warrant which has been granted by
the courts.
Sir William McKay: The police
I think would simply have to be told, "Do not execute the
warrant. We are going to court."
Q678 Sir Malcolm Rifkind: It would
be a policy decision?
Sir William McKay: It would be
a policy decision which only the Speaker could take.
Q679 Sir Malcolm Rifkind: Because
of the particular status of the Speaker?
Sir William McKay: Yes, in circumstances
which I frankly say I cannot envisage.
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