Examination of Witness (Question Numbers
680-699)
SIR WILLIAM
MCKAY
KCB
7 DECEMBER 2009
Q680 Chairman: I deduce from what
you have just said in the last answer to Sir Malcolm that if the
Speaker believes that the use of the warrant is oppressive then
it would be the Speaker's duty to resist that warrant.
Sir William McKay: I think that
is right, but I cannot imagine how it would be oppressive. That
is my weakness.
Q681 Chairman: As you say, this is
an area where one simply cannot predict the kind of issues which
might arise. You used the expression "the buck stops with
the Speaker."
Sir William McKay: Short of the
House.
Q682 Chairman: That starts in my
mind this question: when it comes to agreeing, giving consent,
does the Speaker authorise the giving of consent or does the Speaker
himself or herself give consent? What I am really getting to,
if I can put it slightly differently, is: would it be consistent
with the powers and dignities of the House that something of this
kind should, as it were, be delegated, or is this not something
which the Speaker ought to hold on to as being something for which
he or she is uniquely responsible?
Sir William McKay: The decision
is uniquely the Speaker's. The Speaker would then say to the Clerk
of the House, "Go and tell them that it is not on."
The Clerk would then write and say, "I am authorised by the
Speaker to say ... ".
Q683 Chairman: In the name of the
Speaker, not in his own name?
Sir William McKay: Yes, in the
name of the Speaker.
Q684 Mr Howard: If, when you had
been Clerk, you had been asked by the Serjeant at Arms whether
he at that time had the authority to consent to the search of
an office on the Parliamentary Estate as part of a criminal investigation,
what would have been your reply?
Sir William McKay: "Have
you talked to the Speaker?" In my time, I think I would have
taken the view that I am taking here, that the authority belongs
to the Speaker. Once you have the Speaker's okay, then the Serjeant
or any other senior officer, having been instructed by the Speaker,
would be at liberty to say yes or no, not on his or her own authority,
but as a means of conveying the Speaker's decision. That is what
I would say and indeed that is what the memorandum is about.
Q685 Ann Coffey: In any event what
happened at the end of the day was that the Speaker believed there
was a warrant. That is what he said to the Committee.
Sir William McKay: Yes.
Q686 Ann Coffey: It did not cross
his mind that there was not a warrant. One of the things that
we did spend some time discussing was the changes in the management
structure to the House. Do you think the changes that have been
made maybe created a situation in which we had a very serious
incident happen without the Speaker being fully aware of what
was going on or being fully informed?
Sir William McKay: I would be
surprised because, although I obviously have no experience of
present administrative arrangements, it is clear that the tendency
is to break down the departmental silos and this has probably
succeeded. What might in the 1990s have been a negotiation between
the head of one department and the head of another, the Clerk
and the Serjeant, now the relative chains of command are much
simpler and more straightforward. When the Speaker says, "Go",
the Clerk of the House as chief executive will say doubtless to
the relevant head of department, "Go."
Q687 Ann Coffey: How could it be
that the Speaker believed that? How could we possibly end up in
a situation where the Speaker believed there must have been a
warrant? How could we end up in this situation?
Sir William McKay: I suppose it
was just assumed that having got thus far there was a warrant.
Q688 Ann Coffey: How could that not
have been clear? Given what you have said about the fact that
the buck stops with the Speaker, the Speaker is the most important
person, how could that have happened?
Sir William McKay: I do not know.
Q689 Chairman: We are trying, among
other things, to assert not only what happened but what the way
forward should be. One of the issues which I put to you a moment
or two ago was in relation to incorporation of these matters in
a new statute. I think you were certainly supportive of that in
relation to the common law privilege that would attach to questions
from constituents. Are there any other ways in which you think
these matters could be made more clear for the future?
Sir William McKay: Yes. I think,
if we are not going to go along the statutory path, the path we
do go along is going to have to be littered with protocols. People
are going to have to understand what happens next, all those involved,
both on the police side of the fence and the House side of the
fence. These memoranda will be of the kind that have to be drawn
to the attention of new incumbents of offices.
Q690 Mr Blunkett: Would it therefore
be helpful if there was an automatic presumption, should there
be a protocol, that consent would be denied and a warrant would
be required?
Sir William McKay: The answer
to that is yes. How it would work is, if this Committee recommended
that in a sense a warrant should always be required, if the House
were to agree with the Committee's report, then there would immediately
pop up a presumption that the House will not agree unless you
have a warrant in future.
Q691 Mr Blunkett: That would then
be down to the Speaker in extremis using his or her power
to override the warrant, taking us back to the conversation we
have been having for the last half hour?
Sir William McKay: Yes.
Q692 Chairman: You could have a resolution
of the House.
Sir William McKay: You could.
You could do it either directly in a resolution or by a resolution
agreeing to a report which says certain things.
Q693 Chairman: Does the fact that
what is at issue is an allegation of leaking and that documents
connected with that leaking may be available in the office of
the Member concerned make any difference to any of the principles
which you have enunciated?
Sir William McKay: No, I think
not, because there may be an offence or even a disciplinary offence
within government of leaking a document, but one thing American
jurisprudence does make clear I think is that that offence does
not reach the Member who receives the document. It may be that
that is another area of difficulty because, if the Member receives
the document and puts down a question on the basis of it, then
the Bill of Rights will cover the use of the document. In other
words, if I receive a document saying that this particular piece
of defence kit does not work, and I am a Member and I put down
a question about it, then the document which says it does not
work is probably so close to the proceeding as to receive the
benefit. What, however, happens to the document, whether by leaks
or any other way, which reaches a Member and he or she says, "That
is very interesting. I will put down a question about it";
then they change their mind and say, "No, I will not. I don't
think I will"? There is such a difficult area here. I am
sorry to pass the buck not this time to the Speaker but to the
Committee. Any thoughts about that I am sure would help the courts
in future to construe what the House wanted to happen, not a legally
binding text, but to speak for the House and say, "That is
the latest view we have of the House." After all, the only
view we have of the House is 70 years old.
Q694 Chairman: If the privilege in
relation to communications from constituents or others is qualified,
one would almost be creating a third category: absolute privilege,
qualified privilege and something in the middle.
Sir William McKay: You could avoid
that only by looking at every case and seeing how close it is
to an undoubted privilege.
Q695 Chairman: That was my next question.
It might be a question of fact and degree in every case.
Sir William McKay: In every case.
Of course it would.
Q696 Chairman: In which case certainty
is difficult to achieve.
Sir William McKay: Impossible.
Chairman: Sir William, thank you very
much indeed. I suppose you have given us the equivalent of a lecture
but it has been most helpful to the Committee and we are very,
very grateful to you. Thank you for taking the time.
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