Lay membership of the Committee on Standards and Privileges

Memorandum submitted by Sir William McKay

former Clerk of the House (P 95, 2010-11)

1. In November 2009, the official Committee on Standards in Public Life recommended that at least two persons who were not and had never been elected Members of the House should serve on the Select Committee on Standards and Privileges (Recommendation 51, MPs’ Expenses and Allowances, Cm7724). The proposal was ‘one step towards enhancing public acceptance of the robustness and independence of the [parliamentary] disciplinary process’ (paragraph 13.67). In order to carry credibility, the Committee on Standards in Public Life believed that these nominees should have full voting rights, since ‘otherwise their role [would] be little different [from] that of an adviser’ (paragraph 13.68).

2. On 2 December 2010, the House resolved after debate to agree with the principle of what the Committee on Standards in Public Life proposed, and to ask the Procedure Committee to bring forward proposals to implement it (HC Deb (2010-2011) 519 cc 995-1018).

3. Many practical aspects of the proposal were raised in the course of the debate. In this short paper, I intend however to deal only with the issue of whether proceedings of the kind envisaged would, as proceedings in Parliament do, enjoy the protection of the Bill of Rights 1689.

‘Lay’ participation and the Bill of Rights

4. Article IX of the Bill of Rights enacts that ‘debates and proceedings in Parliament’ are not to be ‘impeached or questioned’ in any ‘court or place out of Parliament’. The protection attaches both to Members personally and to what is said on a protected occasion. Whether any particular action falls within article IX is not a decision for either House but – since the Bill of Rights is statute – for the courts. No UK court has ever attempted a comprehensive definition of ‘proceedings’ [1] , so that while the Bill of Rights is not to be narrowly interpreted and mainstream parliamentary activity is protected, there is no indication of what would be the test to determine, in novel situations such as this, what lies within the boundary and what goes beyond it.

5. It could be argued on the other hand that that appointments such as those proposed are precedented. Between 1917 and 1920 the National Expenditure Committee was authorised by the House [2] to appoint (to its sub-committees but not the main committee) persons not Members, and did so by nominating four individuals. In 1932-33, the joint committee on Indian Constitutional Reform was given the power to ‘call into consultation representatives of the Indian States and of British India to consider the future government of India’. [3]

6. Following these precedents might have its attractions. If the Standards and Privileges Committee were divided into ‘standards’ and ‘privileges’ sub-committees, with ‘lay’ members only on the former, the final report of the Committee would be exclusively in the hands of Members. At the same time, to reassure public opinion, the proceedings of the ‘standards’ sub-committee, including any votes cast by the ‘lay’ members, could be published. But that solution has two fatal flaws. It would not meet the demands of the Committee on Standards in Public Life (which stipulated that the ‘lay’ members should have ‘full’ voting rights). Nor would it meet the concern that a court might well rule that the activities of a committee which included persons not Members of either House were not ‘proceedings in Parliament’. In neither case mentioned in the preceding paragraph were the appointments challenged but if they had been, judges might have been more ready to defer to the constitutional position of the Houses a century and three-quarters of a century ago than they would be today.

7. An invitation by the House – even an order – cannot necessarily insulate from the legal consequences of their actions those who accept the invitation or comply with the order. In the leading case, Stockdale v Hansard, [4] the printers of the House had published by order of the House a report laid on the Table. When an action for libel was brought against them, the court did not consider that the House’s order to print was a sufficient defence. In this instance, the courts might find that the House’s invitation to external members to take part in committee proceedings was as ineffective in terms of protection as was the order to Hansard to print. They might even consider that their presence implied that the body as a whole was not entitled to that protection.

8. It should be recalled that the precedents mentioned in paragraph 5 were hearings of a quite different character from the cases to which the suggestions of the Committee on Standards in Public Life would apply. Evidence supporting complaints of improper behaviour by public figures cannot fail to be adversarial: very serious personal and political charges are made. It is hard to see how evidence on such matters taken by a body some (or all) of the members of which are not protected by privilege could be satisfactory. Moreover, what would there be to prevent evidence given to the committee being used to found a subsequent criminal prosecution of a Member, even if

the committee concluded that the actions complained of did not justify any action by the House.

9. Only a change in the law could effectively dispel these doubts. Statute would have to make clear that proceedings in which ‘lay’ members of a select committee participated were ‘proceedings in Parliament’ in terms of the Bill of Rights. In preference to a single-purpose bill, it would seem more satisfactory for such a change to proceed as part of and in the context of the larger revision of privilege recommended by the Joint Committee on Parliamentary Privilege in 1999. [5] In the meantime, and without full debate on the consequences, I believe the addition of a ‘lay’ or external element to any select committee would be unwise.

March 2011

[1] Though s 16 of Australian Parliamentary Privileges Act 1987 defines parliamentary privilege as covering ‘all words spoken and acts done in the course of or for purposes of or incidental to the transacting of the business of a House or of a committee’.

[2] CJ (1917-18) 170; (1918) 13, 72, 204; (1919) 98; and (1920) 94. Committees such as the Members’ Estimate Audit Committee or the Speaker’s Committee on the independent regulator include persons who are not Members of either House; but these are not select committees.

[3] CJ (1932-33) 137.

[4] 173 English Reports 322 (1836-37); Erskine May’s Parliamentary Practice 23 rd edition page 185. The judgement was confirmed in a subsequent case proceeding on much the same facts (112 English Reports 1120-22, 1157ff, 1167, 1168 (1839)). The Parliamentary Papers Act 1840 resolved the situation by giving statutory protection to papers published by order of either House. In effect , what the Bill of Rights put a stop to was the possibility of an action against a Member for initiating in the House the justiciable act done on the House’s instructions outside it.

[5] HL 43, HC 214 (1998-99).