Examination of Witnesses (Questions 1
TUESDAY 2 DECEMBER 1997
LIMON KCB, AND
MR W R MCKAY
1. Sir Donald and Mr McKay, the Committee is
very grateful to both of you for the eminently clear and lucid
memorandum which you have prepared for us. At this stage of our
deliberations, we are focusing primarily on the matters dealt
with in the second part of the memorandum which you have headed
"Corruption and Impropriety". As you know, the Government
has announced that it intends to introduce a Bill to modernise
and clarify the criminal law on the whole subject and you will
readily understand therefore why this Committee may consider it
is desirable to identify here a discrete aspect of parliamentary
privilege on which to report separately. So I would like to seek
your further assistance today primarily on some points on that
part of the topic and maybe leave part one of your memorandum
for another occasion, if that is not too inconvenient for you.
I will ask questions addressed, Sir Donald, to you; but please,
either you or Mr McKay respond, whichever of you considers that
you are best able to give the Committee assistance. Before I start,
is there anything, Sir Donald, you wish to say?
(Sir Donald Limon) My Lord Chairman,
no. What you said at the end is very welcome to me. The fact of
the matter is that, if the Committee's deliberations are protracted
(as I quite expect they will be) I will no longer be a witness
on any future occasion and therefore Mr McKay is here both for
continuity and for expertise and I shall be relying on his expertise
a lot during this session.
2. May I first see where we are going? The Home
Office consultation paper issued last December, you will recall,
identified four possible options and the first option, paragraph
10 of the consultation paper, was that bribery of members should
be dealt with exclusively by each House. In paragraph 38 of your
memorandum, you have listed some of the disadvantages of that
particular course. You will remember that you have mentioned the
House of Commons and its members are unlikely to be qualified
to be, or indeed wish to turn themselves into, a court of law,
and in any case how could the House try non-members; you talk
of problems about punishment and finally you mention that, even
if a parliamentary means could be devised, would it be able to
convince public opinion of its evenhandedness. The Home Office
consultation paper mentioned two other disadvantages which are
not mentioned in your paper: the first was the lack of an appropriate
investigative machinery. Do you see that as a potential problem?
(Sir Donald Limon) It could well be a problem. Our
Standards and Privileges Committee at the moment is wondering
whether it ought to equip itself with a better machinery for investigation
and we do not know the results of that. There was criticism in
the last standards case which they looked at, which involved a
lot of investigation; obviously dealing with bribery would also
involve investigation, and they would need to improve their facilities.
There are many other factors but the time which it would take
is another important one. You cannot really expect a committee
of ten members or so to become a court of law and to sit continuously.
They have got other parliamentary duties and that is a severe
practical problem. I think the main problem which cannot be overlooked
is that if you are talking about bribery there are almost certain
to be two parties involvedone parliamentary and the other
notand that is an almost insuperable difficulty.
(Mr McKay) The House would have difficulties not only
as a judge but also as a policeman. I would agree. We aim our
criticisms, our doubts, at the judicial function but the police
function is also open to grave doubts about the House's capacity
to turn itself into a policeman or to supervise as a prosecuting
authority those who do the policing.
3. And you cannot think of any procedures whereby
those difficulties might be surmountable?
(Mr McKay) The House appointed a Parliamentary Commissioner
for Standards to present the case in matters of conduct and I
suppose the House could appoint an official to be its own prosecuting
authority, but it would not dispose of the other objections.
4. But there would still need to be the equivalent
of a police investigative procedure?
(Mr McKay) Yes.
5. So there would need then, on the same reasoning,
to be some other officer in charge of investigation?
(Mr McKay) Unless the appointee supervised a police
investigation as, I suppose, might be arranged; but it is very
6. The other matter mentioned in the Home Office
consultation paper which was not mentioned in your memorandum
is the absence of a sanction if the alleged misconduct first comes
to light after the individual has ceased to be a member. Do you
see that as a problem?
(Sir Donald Limon) I think that is a great difficulty
and one that has occurred this year on the standards question;
nearly all the people who stood accused either lost their seats
or did not stand at the election which left us in a somewhat embarrassing
position. The same thing could happen here and I think you would
have to treat a non-member (as he would be by then) as any other
non-member. Therefore the difficulty I have already mentioned
would arise. It is a difficulty and it could happen in the middle
of the investigation, so that is a real problem.
7. The second option, and in a sense it is the
second main option, is that the members of the two Houses should
be subject to the criminal law even though that would mean that
the courts might be concerned to inquire into and examine in depth
the reasons why a member said what he did or conducted himself
in the way he dideven perhaps voted in the House or the
Committee. You have pointed out in paragraph 39 of your memorandum
that that option would involve the possibility of cross-examining
with a view to challenging the motives of members who are not
under suspicion and it might be hard to put any limit on the papers
that the criminal court is entitled to see. Can you suggest any
safeguards which might limit or reduce the potential problems
in that field?
(Mr McKay) I think we do refer in a subsequent paragraph
to some possibilities transcending the Home office's suggestions
but, apart from that finessing of the problem, I do not think
we can see any way round the need for the absolute protection
of Article IX. Article IX is seen as a protection for Parliament
and there is also the age-old desire of the courts and the Houses
to hold their respective powers in balance. Both of these would
be upset by the kind of suggestion which is made in the second
8. The concern in the second option is that
it really erodes potentially in a very significant and open-ended
way the protection of Article IX.
(Mr McKay) Yes.
9. I am concerned to see whether you (and you
have answered the question really) have any suggestions as to
the way that the erosion might be limited beyond the ones you
(Mr McKay) No.
10. The third option in the Home Office consultation
paper was to draw a distinction between certain types of conduct
which fall within the criminal law and certain types which would
be left to Parliament and, as you say, that would diminish but
not dispose of the problems associated with the House's assumption
of the criminal jurisdiction. Would you agree that under this
option, insofar as the House did not assume control, then the
criminal courts' jurisdiction would involve the same sort of problems
we have just been mentioning in the second option?
(Mr McKay) Yes, it would. This is an alley as blind
as the other.
11. Then the fourth option (paragraph 41) was
to make criminal proceedings subject to the approval or annulment
of each House and you point out, in addition to other possible
disadvantages, this course would not solve the difficulties of
the House as a court of law. Again I think you would agree that,
if the House were to give its approval to a prosecution, the same
problems would arise about the erosion of Article IX.
(Mr McKay) Yes.
12. If that course were followed, would there
be a risk of inconsistency of decisions of the House, whether
to give or withhold approval for prosecutions?
(Mr McKay) I think there might be, though perhaps
the greater difficulty, the greater vulnerability, would be the
discussing of the case and its attendant facts in a political
context to begin with. This would seem to me to run counter to
the House's desire to play its part in comity and not to tread
on areas in which the courts were going to have to take decisions
13. That is, as it were, a major disadvantage.
What advantage is in this option? What is the real advantage that
this would give over the others we have been looking at?
(Mr McKay) My Lord Chairman, I cannot see a serious
recommendation for this option over the others, unless you tag
on to it the kind of extras and ways of dealing with it that we
suggest in a later paragraph. There are ways of getting the House
into this particular decision but our view is that this one has
not got much to recommend it.
14. I am conscious of those difficulties. Could
we just look at the two possible further courses which you have
helpfully suggested? The first is in paragraph 44. As I understand
it, but do correct me if I have this wrong, this would involve
a waiver of privilege by the House but only so far as the member
in question is concerned.
(Mr McKay) Yes. That is right.
15. How would that work in practice? What I
have in mind is this: take the imaginary case of a member who
has been charged with an offence who wishes to call another member
to give evidence, say, of why he behaved in the way he did; to
give evidence on discussions he has had with him which led to
the conduct which is being impugned taking place. Could the other
member be called as a witness in the criminal proceedings and
(Mr McKay) I think it would be very difficult. We
put these two options forward as the least worst choices. The
only thing to be said for this option in the context you mention
is that the other member could not be brought to account unless
a charge had been laid against him.
16. What is troubling me a little is that, if
the other member cannot be cross-examined about his motives, he
really cannot fully give evidence in the criminal proceedings
and it may be said that, in those circumstances, this would be
hampering the defence of the member who is charged.
(Mr McKay) Yes. I think that is a very fair objection.
It was one of the issues argued, if I recall, over the Defamation
Act. The case is exactly the same.
17. Yes. If on the other hand, in my imaginary
example, the other member could be cross-examined and the waiver
was to extend to him as well, then we are right back up against
the sort of disadvantages that we have already touched upon in
relation to the second option.
(Mr McKay) Yes. That is right. One makes no more claim
for this, as I said, than the least worst option.
18. Please, you must not understand my questions
as criticisms; they are just exploring with you the ramifications
of what is plainly a difficult problem.
(Mr McKay) Yes.
19. The other alternative that you helpfully
suggested was in paragraph 45. This, as I understand it, is really
a variant on the third option. It involves distinguishing between
types of conduct of which the criminal courts would have cognisance
and other types of conduct which would be outside the criminal
law, and the boundary line would be drawn so as to retain for
Parliament exclusive cognisance of matters relating to proceedings
(Mr McKay) Yes, my Lord Chairman, adding only that
this we understand to be the regime in Canada and Australia but
it depends in a sense on crossed fingers: that you do not have
to face up to the Article IX problems. The only reason for taking
that chance would be "Well, the Australians and the Canadians
have not experienced problems". In other words, you retain
all the difficulties of Article IX and hope it does not happen.