Lay membership of the Committee on Standards and Privileges

Memorandum submitted by Professor Anthony Bradley [1] (P 94, 2010-11)

1. In this paper I consider the possible implications for parliamentary privilege of adding lay members to the Standards and Privileges Committee, as recently recommended by the Committee on Standards in Public Life. [2]

2. The starting-point for discussion of parliamentary privilege may be found in the (Nicholls) Report of the Joint Committee on Parliamentary Privilege in 1999:

"Parliamentary privilege consists of the rights and immunities which the two Houses of Parliament and their members and officers possess to enable them to carry out their parliamentary business effectively. Without this protection members would be handicapped in performing their parliamentary duties, and the authority of Parliament itself in confronting the executive and as a forum for expressing the anxieties of citizens would be correspondingly diminished". [3]

It is well known that there has never been comprehensive legislation on parliamentary privilege, although this was recommended by the Joint Committee in 1999. The rationale of parliamentary privilege is that it is necessary to enable each House to function effectively and their members to perform their constitutional duties. As has been said by the Committee on Standards and Privileges, the aim of privilege is ‘to provide the necessary framework in which the House in its corporate capacity and its Members as individuals can fulfil their responsibilities to the citizens they represent’. [4]

3. Nevertheless, views may differ as to what is necessary to enable each House to function effectively. In 1704, the House of Commons accepted that ‘neither House … can create any new privilege that is not warranted by the known laws and customs of Parliament’. But in the 1830s, a remarkable battle occurred between the House and the courts, over whether the House had privilege to authorise the publication outside the House of reports made on behalf of the House, even though they contained material that would apart from parliamentary privilege be defamatory. The court held, in Stockdale v Hansard, [5] that Hansard, publisher of such reports, was not protected by a resolution of the House authorising him to do this. The judges dealt with the argument that publication of the reports for sale outside Parliament was necessary for the proper functioning of the House. Lord Denman CJ said:

"If necessity can be made out, no more need be said because [necessity] is the foundation of every privilege of Parliament and justifies all that it requires".

He found there to be no proof of necessity, but merely ‘a very dubious kind of expediency’. In any event, the practice of publishing reports was too recent to have established a privilege. Littledale J said that article 9 of the Bill of Rights, protecting proceedings in Parliament from being questioned in the courts, was confined to what took place within the walls of Parliament, ‘for what is necessary for the transaction of the business there’. Patteson J held that it could not be a matter of necessity for the Commons to invade the rights of those outside the House. In consequence of this setback for the Commons, the Parliamentary Papers Act 1840 was passed to require proceedings in defamation to be stayed whenever the defendant could produce a certificate that publication had been authorised by one of the Houses. [6]

4. Hitherto, membership of committees of the two Houses has been confined to members of the House in question. Evidently the main purpose of Article 9 of the Bill of Rights is to protect the freedom of speech and debate in Parliament; and each House restricts the right to address the House to its members. However, some benefits of parliamentary privilege extend to two groups of persons who are not members of the Commons: (a) the clerks and other officials of the House, who work under the authority of the Speaker and the Clerk of the House; and (b) witnesses who give evidence to committees of the House. It is certainly a contempt of the House to penalise a witness for evidence given to a committee or to prevent them from giving evidence. And a witness may not be sued in defamation for remarks made in the course of giving evidence. So far as I am aware, there is no statutory provision that expressly extends parliamentary privilege to these persons. The justification for protecting these two categories must be the practical necessity of enabling the House to function. The term ‘proceedings in Parliament’ thus extends to aspects of the House administration that relate directly to the holding of debates in the House, and to the proceedings of committees, both while members of the committee deliberate and while a committee is receiving evidence from persons outside Parliament.

5. The proposal by the Committee on Standards in Public Life that some ‘lay’ persons be added to the Committee on Standards and Privileges breaks new ground. I assume for purposes of discussion that the House of Commons would endorse the view of the Kelly Committee that there are important policy considerations in favour of this innovation and would adopt a resolution to this effect. Given that decision by the House, it is not obvious why this would cause proceedings of the enlarged Standards and Privileges Committee to go outside the protection given to parliamentary proceedings by article 9 of the Bill of Rights. For the additional lay members to be protected in this way would be analogous to the present position of those who give evidence to select committees. Even if the new members are to have voting rights (as Kelly recommends), the great majority of members would continue to be MPs.

6. If the matter were to be challenged in a court (say, by an individual whose conduct had been criticised in a report from the enlarged Committee on Standards and Privileges), the challenge might be formulated in two ways:

(1) that the House’s resolution to include additional members in the committee would amount to an attempt by the House, acting unilaterally, to create a new privilege that adversely affected the rights of persons outside the House; and that the change could properly be authorised only by Act of Parliament (this argument would rely heavily on the precedent of Stockdale v Hansard, as discussed above); and

(2) that the resolution would in effect extend the scope of Article 9 of the Bill of Rights by widening the meaning of ‘proceedings in Parliament’; and again that this could be done only by Act of Parliament.

7. In reply, the arguments that could be made include

(A) this is not the creation of a new privilege, but the application of an existing privilege in changed circumstances;

(B) Article 9 of the Bill of Rights is a statute of constitutional importance and, while its authoritative interpretation is ultimately a matter for the courts, (i) that interpretation must give full weight to the views of the House and (ii) the application of Article 9 may change from time to time since (to borrow well-known words that have been applied to the European Convention on Human Rights) the Bill of Rights should be regarded as a ‘living instrument’;

(C) enlargement of the Committee does not infringe the common law rights of persons outside the House (unlike the situation in Stockdale v Hansard), since the powers of the Committee are not extended;

(D) the decision to add members to the Committee is a decision by the House in exercise of its right to have ‘exclusive cognisance’ of its own proceedings, and it is not for the courts to express a view as to the propriety or desirability of that decision;

(E) the addition of lay members to a committee that will still predominantly comprise MPs falls far short of any attempt by the House to vest one of its ancient functions in a body outside the House (which would require an Act of Parliament – as in the case of election petitions and, more recently, MPs’ expenses); reports made by the enlarged Committee would be made to the whole House, at which stage lay members would have no right to speak or vote.

8. Is any guidance on these matters to be found in the recent decision of the Supreme Court in R v Chaytor? [7] The context of that case was entirely different, since the issue was whether the making of false claims for expenses was within the jurisdiction of the criminal courts. I have re-read the leading judgment given by Lord Phillips and the following summarised points may be relevant to the present discussion (numbers in square brackets refer to paragraphs in the judgment).

(a) Parliament accepts that the courts are not bound by views expressed by parliamentary committees or the House as to the scope of privilege [15], but the courts will pay careful regard to views expressed by either House or by bodies or persons in a position to speak with authority [16].

(b) The principal matter to which Article 9 is directed is freedom of speech and debate in the House and in parliamentary committees, which is where the core or essential business of Parliament takes place [47]; that core business consists of collective deliberation and decision-making [62].

(c) Communications outside the House must have a close relationship to business within the House to attract privilege [52].

(d) The management of the expenses scheme was ‘essentially a matter of administration properly to be performed by officials’ [60].

(e) Each House has an exclusive right (‘exclusive cognisance’) to manage its own affairs without interference from outside Parliament [63]; areas in which the courts ought not to interfere extend beyond proceedings in Parliament into areas that are ‘so closely and directly connected with proceedings in Parliament that intervention by the courts would be inconsistent with Parliament’s sovereignty as a legislative and deliberative assembly’ (quoted from the Joint Committee, 1999, para 247) [73].

(f) When judicial review is sought in relation to the conduct by each House of its internal affairs, ‘the courts will respect the right of each House to reach its own decision in relation to the conduct of its affairs’. Thus judicial review was refused (1) on an attempt to challenge the Speaker’s decision to withhold parliamentary facilities from members who had not taken the parliamentary oath [8] ; and (2) on an attempt to challenge a report by the Parliamentary Commissioner for Standards, since the responsibility for supervising the Commissioner was placed by Parliament on the Committee on Standards and Privileges; ‘it is for that body to perform that role and not the courts’. [9] [77]

9. What, in summary, may be drawn from R v Chaytor is that, while holding that the criminal law applies to the making of false claims for MPs’ expenses, the Supreme Court has accepted that the courts will not interfere with the right of each House to control its own proceedings, especially in matters that relate directly to the core functions of collective deliberation and decision-making. In my view, these matters include the appointment of committees for purposes such as those vested in the Committee of Standards and Privileges.

10. If, therefore, the addition of lay members to the Standards and Privileges Committee were authorised by resolution of the House, and the work of the Committee were challenged by judicial review because of the additional members, I consider that a court would be likely to refuse judicial review and would hold that the House had not attempted to create a new privilege or extend the scope of privilege.

11. To this conclusion, I would add three additional remarks.

(A) If it is desired to bar in advance any attempt by judicial review to challenge the appointment of lay persons to the Committee, a necessary step would be to include a clause to authorise the change in a Bill going through Parliament. If the need to enlarge the Committee is felt to be urgent, such a clause could be enacted without waiting for parliamentary privilege to be codified in a Parliamentary Privileges Act, as was recommended by the Joint Committee in 1999.

(B) I claim no knowledge of any depth regarding the extent to which, if at all, other parliaments may co-opt lay persons to serve on their committees. A rapid look at a number of European constitutions [10] shows that in one group of constitutions the provision empowering the parliament to appoint committees (of one form or another) includes the specific requirement that the committees must be drawn from members of the parliament. [11] In some constitutions, the requirement is that the composition of a committee shall reflect the proportion of party groups in the parliament, a rule that presumably excludes the appointment of additional lay or independent members. [12] In some other countries, the parliament is empowered to appoint committees without either of these requirements being specified in the constitution, [13] but in one country in this group, Germany, I am informed that in the Bundestag the members of committees are always MPs. [14] While the interpretation of a national constitution is a matter for the relevant court, I surmise that, in the absence of express provision for appointing non-MPs, a power given to a parliament to appoint committees might well be read as limited to appointing committees composed exclusively of members of the parliament. I have not come across any European constitution that provides expressly for parliamentary committees to include non-MPs. The United Kingdom’s constitution is of course unwritten and flexible, but the proposal for adding lay members to the Standards and Privileges Committee does raise issues of principle that need to be considered.

(C) This paper does not discuss any issues relating to Article 6/1 (right to a fair hearing) of the European Convention on Human Rights, for the reason that I do not consider that to add two lay members to the Standards and Privileges Committee would be enough to have any bearing on the potential application of Article 6/1 to privilege decisions.

March 2011

[1] Research Fellow, Institute of European and Comparative Law, University of Oxford ; Barrister of the Inner Temple , QC (Hon). Emeritus Professor of Constitutional Law, University of Edinburgh . Legal adviser, House of Lords Committee on the Constitution, 2002-05.

[2] Report on MPs Expenses: 12 th report from the Committee on Standards in Public Life, Cm 7724, 2009.

[3] HL Paper 43, HC 214 (1998-99), para 3.

[4] [Reference to be supplied]

[5] (1839) 3 Ad & El 1.

[6] For a full discussion of the Act and its application today, see P Leopold, [1990] Public Law 183. On the background to the Act, see E Stockdale [1990] Public Law 30.

[7] [2010] UKSC 52; [2011] 1 All ER 805.

[8] Re McGuiness’s Application [1997] NI 359.

[9] R v Parliamentary Cmmmissioner for Standards, ex p Al Fayed [1998] 1 All ER 93.

[10] As contained in Constitutions of Europe , a two volume work prepared by the Council of Europe’s Venice Commission in 2004 and published by Martinus Nijhoff. For a reliable comparative study, it would be necessary also to study national legislation, standing orders and the procedure adopted by parliaments. References to Articles in the next three footnotes are to the national constitution, in the translation printed in Constitutions of Europe .

[11] These include Austria (Art 55, requiring the ‘Main Committee’ and its sub-committees to be drawn from members of parliament); Belarus (Art 96); Bulgaria (Art 79); Cyprus (Art 73); Denmark (Art 51); Greece (Art 68); Hungary (Art 21); Slovak Republic (Art 91); Sweden (Chap 4, Art 3); Switzerland (Art 153).

[12] This group includes Italy (Arts 72, 82); Portugal (Arts 178, 179); Romania (Art 61).

[13] This group includes Finland (Art 35); Germany (Arts 43-45, in conjunction with the Rules of Procedure of the Bundestag, ss 54-74); Poland (Arts 110, 111).

[14] My informant, Dr Katja Ziegler of the University of Oxford, whose help I am pleased to acknowledge, states that in Germany experts who are not MPs can be members only of special enqu ê te commissions (established under the Rules of Procedure of the Bundestag, s 56), and not of regular parliamentary committees. These enqu ê te commissions have a general policy-making or advisory nature and are not a regular instrument of parliament for controlling the government. Experts on such commissions have no special privileges and are not remunerated.