Examination of Witnesses (Questions 20
TUESDAY 2 DECEMBER 1997
LIMON KCB, AND
MR W R MCKAY
20. Because that is what, looking at it in the
round, might be said to be troubling about this boundary line,
namely, that you are leaving outside the cognisance of the criminal
law any type of conduct constituting bribery if it relates to
proceedings in Parliament.
(Mr McKay) Yes. That is so.
21. And in respect of that, the House would
(Mr McKay) In respect of that, therefore, more limited
area the House would remain self-policing but able to take specific
actions as it felt necessary, if such a case arose. The virtue
of this solution would be that no such case has arisen; it may
do so, but not every corruption case (if it comes) will be in
this area. So at least we have reduced the vulnerability of the
22. But, insofar as there is a risk that the
case might relate to proceedings in Parliament, the disadvantages
that we have already touched upon would remain?
(Mr McKay) Yes, and the House, I suppose, if it felt
it could not proceed directly at its own hand, would have to invent
some kind of tribunal procedureinvent again as we are trying
to invent here.
23. And that involves the public being invited
to accept that, in relation to this area, the criminal law would
(Mr McKay) Yes. When stripped of all the other arguments,
that would be true.
24. Have you got any comment on that?
(Mr McKay) I do not think there is a perfect solution.
If there had been, both Houses over the last century and a half
would have hit on it and, if they had not, perhaps the thought
given to the issue over the last ten years would have produced
something; but I do not think it has produced very much. We have
to settle, it seems to meintellectually, logicallyfor
something that will work (we think) without solving a problem
which has been around since the Middle Ages and arises from the
fact that the Houses and the courts are two independently acting
parts of the fabric of the State.
25. Would this route necessitate a statutory
definition of proceedings in Parliament?
(Mr McKay) I think it must or, at any rate, it would
rest most securelyeven if there were no other arguments
for a statutory definitionon a statutory definition, as
other jurisdictions have attempted, and as exists in a referential
way in statute in this country.
26. I sense that, of the various options we
have so far considered, the one that you may feel is on balance
attended with the least disadvantages is the last one, is that
(Sir Donald Limon) That is our conclusion: that we
do see there are disadvantages in all of the solutions so far
canvassed and that is likely to remain so even if we do come up
with a scheme. I do not think there is a perfect solution to this;
nobody has seen one yet.
Lord Mayhew of Twysden
27. I wonder if I might ask you to flesh out
what so far has seemed to be self-evident: namely that Article
IX must remain sacrosanct? It must of course be a matter of value
judgment as to whether the problem with which Parliament is concernedbribery
of members of Parliament and related activityis of such
great concern that we should be prepared to do what has not been
done since the Bill of Rights. I would like, for my own part,
to have your help as to why it would be virtually unthinkable,
why it would not perhaps even be practicable, to encroach a little
upon this immunity in a case where Parliament itself has said
that that would be acceptable to it. Would it be impracticable,
for example, in all circumstances for "the other member"
to be questioned first in the defence of the accused member and,
secondly, no doubt by the court or anybody else as to why he had
conducted himself in a particular way? If that were necessary
for the just disposal of the charge against the accused member,
would you say that the countervailing disadvantage in terms of
the protection of freedom of speech is so great that it ought
not to be really seriously considered?
(Sir Donald Limon) Firstly I would not say that, no.
That might be something which would have to be considered and,
disagreeable though it might be to many people, the interests
of justice might force such a solution in the end.
(Mr McKay) What we are saying at the moment is that
before we get to the end, the buffers, the foot on the brake ought
to be that of the Housesthe foot on the brake in the sense
of saying, "This is a particular case and it may make bad
law but until we are convinced that case after case is occurring
and bad law is being made, we, the House, should make the value
judgments of which you spoke rather than the courts".
28. A major factor in making a value judgment
which, I suppose, the Committee is ultimately going to have to
do, and then the two Houses in considering our Report, must be
past experience of either House sitting judicially and trying
to deal judicially with a matter of this kind. You are in a rather
delicate position, I know, when it comes to expressing criticism
but is there, within your joint experience, any instance that
you can look back on and say "The House discharged this with
efficiency and in a just and proper manner", or does one
have to acknowledge that, in every modern case, other influences
have intruded themselves in a way which has rather tarnished the
(Sir Donald Limon) I think it depends how far you
go back. I think there are plenty of quite good examples where
the Committee of Privileges in the old days managed to reach an
equitable solution for a case which was before it. Opinion at
the moment is highly coloured by some recent extremely difficult
cases where more than one Committee has been in great difficulty.
But there are examples (perhaps not major ones in the sense of
the ones we are thinking about) where the Committees and the House
have made quite sensible decisions and reached them in a very
(Mr McKay) The key word in Sir Donald's answer is
"equitable". They did not have a statute in front of
them. The Committee of Privileges, it seems to me in the past,
came to the common sense solution on the facts. They were politicians
reviewing political conduct and they were colleagues criticising
colleagues. What now, it seems to me, the Committee is addressing,
is conduct of a clearly criminal character which is punished in
one way, in a clear understandable way, where it is committed
by persons who are not members. This is a dimension not relevant
to the Committee of Privileges in the past. Fully judicial proceedings
of the House of Commons I would have thought have not happened
since impeachment, and doubtless the inability in the 18th century
to prosecute a non-political impeachment led to the effective
abandonment of impeachment. There are the obvious problems, of
course, of the Committee first, and then the House, reading all
the evidence (as they must) for the process to be proper and complete.
The Committee and the House would have to have regard to the kind
of considerations a judge would take into account when he imposes
a sentence, whatever sentences were available. It would be undesirable
obviously, if the House were to be given such a judicial responsibility,
that the sentences that the House imposed and the courts imposed
should be out of kilter. I do not think the House has ever done
that kind of thing.
29. Would you be able to visualise it doing
(Mr McKay) No, my Lord.
Mr Bill Michie
30. When we talk about having a proper definition
of proceedings, could you make a suggestion how deep it would
go; how detailed it would be, and whether it would open the tablets
of stone, so the House would know precisely how it would proceed
from then on?
(Mr McKay) I have given some thought to this and the
real problem which you have put your finger on is, once you enact
a statute, it bears a strong resemblance to tablets of stone.
It also means in this context that the Houses would be saying
to the courts, "Well, the application, the interpretation,
of these tablets of stone we wash our hands of. You can take care
of it". I simply wonder, and this is an idea which I am slightly
nervous about putting forward because I am not a lawyer, whether
there would be any possibility of the statute which defined proceedings
and said other things about privilege and corruption and impropriety
also saying: "And when the Houses"both of them"come
to a resolution (as a court might) interpreting this statute,
the courts will take judicial notice of that." In other words,
the House does not rewrite the law any more than the court makes
new law in interpreting a statute, but the House does say "Now,
when Article IX was drafted in 1689, there was no circumstance
like the one facing us. We think the application of the 1689 text
in modern circumstances should be this and the courts will in
future take notice of our view".
Mr Joe Benton
31. For a moment I would like to ask our witnesses
to look at the public image of Parliament. I have read your memorandum
and it is fairly enlightening and it has explained a lot of things
to me that I did not know before. I would like to put to you the
common perception of justice, in the sense that, if I assess the
mood of the people correctly, what they are actually looking for
is to see why this so-called immunity or privilege belongs to
members of Parliament. They are calling that into question because
they are saying at lots of levels within society that there is
one law for them and one for others. Your document has helped
me greatly in that but there are a few matters where I can find
myself in sympathy with the public perception insofar as, for
example, I notice that members of Parliament cannot be subpoenaed.
This I findand I am not just referring to recent eventsquite
remarkable really. At the end of the day the most desirable thing
is that justice is seen to be served irrespective of whether you
are a member of Parliament or anything else. The point of all
this is that, having read of the difficulties you have referred
to, if you were a member of this Committee, you would consider
that the avenue and channel we should be going down and have first
and foremost and uppermost in our minds is that justice should
be seen to be served and, no matter how insurmountable it might
be, we should be pursuing that notion of justice in terms of how
the public perceive us?
(Sir Donald Limon) I am bound to agree with that entirely.
That is the "political" problem with which this Committee
is faced. It is undoubtedly the case that there is a perception
outside Parliament that justice is not always being seen to be
done in cases of this kind and any solution you come up with must
take that factor into account. I think that is really the most
difficult side of the job you are doing. All I can say to that
is that the first part of the memorandum addresses a lot of those
problems and there is a lot of tidying up, at the very least,
needed there. It is in some ways unfortunate that the bribery
matter has become urgentalthough I can appreciate why it
has donebut the answer to some of the questions in the
earlier part of our memorandum, and others that may occur to you,
will be important in assessing your attitude to bribery or corruptionor
should be. Therefore I think there is some danger of putting the
cart before the horse here and it may be that you need to consider
some of the earlier points before you are ready with a solution
on the bribery point.
(Mr McKay) Chairman, the problem identified here (and
in paragraph 30 of the paper) is that the House's privileges are
so sweeping and the House has in the past been so touchy that
there are lots of cases and there are other less important privileges
(such as the one you mentioned about subpoenas) which still exist,
but they guard a House that is not there any more: a House that
is touchy, a House that would put in gaol anyone who criticised
it. The protection does not fit what is being protected.
(Sir Donald Limon) Of course, the House has already
taken cognisance of that following an earlier report where it
said it should use all these various considerations very sparingly
and I believe it has done so. There are plenty of cases now where
matters arise and the House in one way or anothersometimes
it is done by the Speaker on the House's behalf, I thinksays
"No, this is not in the right sort of territory. We do not
do that sort of thing any more these days". But codifying
all that and putting it in the context of bribery is extremely
difficult. I believe that is what in many ways is expected of
this Committee and the two Houses in due course and it will take
time to sort it out.
(Mr McKay) Another way of looking at it is that the
House of Commons and the House of Lords have begun to tackle the
"conduct" end of the spectrum and it may be that, in
looking at bribery, this Committee will be doing a parallel exercise
in the "criminal" end of the spectrum. In both cases,
however, it seems to me what Mr Benton says is right. It is the
interests of justice and the transparency of what the House is
deciding to do in principle that would by and large underpin the
decisionspartly because it is right and partly because
the political climate will not, I think, stand for anything else.
Mr Paul Tyler
32. Can I explore a little bit the extent to
which the Australian and Canadian experience may help us? I am
the statutory legal ignoramus on this Committee, so forgive me
for that. First of all, it seems that they do have a way in which
they have overcome the concerns about Article IX to which Lord
Mayhew has referred. Maybe they have just been lucky but some
of their legislation has been in place for quite a long time.
I wonder whether you can comment on that. Secondly, I wonder if
it is possible for you to indicate how they came to their apparent
solution. Did they have the same sort of process of scepticism
about self-regulation that we are now experiencing certainly in
the lower House here?
(Mr McKay) They do not really solve the Article IX
problem. What they have done in Australia and Canada is sheer
off the concept of the functions of a member from proceedings
in Parliament and, as we say at one point in our paper, this is
very difficult. A member of the House of Commons will see his
or her responsibilities as going through the whole of the spectrum
from speaking in the House to writing to a constituent, but what
the Canadians and the Australians seem to have done is to say
"In respect of your functions as a member, we will try you
in court if you have done criminal wrong". They have not
said anything about Article IX and there has not been a problem.
As to the circumstances, 1914 is the date of the Australian Crimes
Act and I cannot recall what the Canadian date is but I would
be surprised if they had in either case a situation like ours.
However, I will certainly look into it and see what I can find
out about it.
Mr Alan Williams
33. Sir Donald, you said that the Privileges
Committee had in the past produced some very sensible results
but I think the problem we are confronting here is that the latest
cases we have had (and to some extent the Brown case) showed
the inadequacy of the system for dealing with more complex cases.
That brings us to the investigative question as well because the
more complex the case the more investigative capability is needed,
which we do not have. At the risk of upsetting you, my Lord Chairman,
can I ask therefore how strongly our witnesses stand by the feeling
(which I must admit I am increasingly coming to myself) that the
cart is thoroughly before the horse at the moment; that we are
taking almost the most difficult situation as our starting point
and losing sight of perhaps what is the basic requirement, which
is to look at what we want parliamentary privilege to achieve;
how it could achieve this and what is the best way to go about
it, regardless of how it is being done in Canada?
(Sir Donald Limon) Your order of reference certainly
enables you to do all of that and you may wish to do it in your
own way rather than the way in which outsiders may be trying to
dictate to you. I think these are fundamental problems. There
have been select committees and joint committees in the past who
have deliberated upon them. I am afraid their recommendations
have not always been accepted and have very often been ignored
by the House. We believe, however, and I am speaking not perhaps
so much as a Clerk now, that the situation has changed over the
last twenty years since these general matters last came up before
a Committee. As Mr Benton rather implied, the public are now expecting
Parliament to "do something about it" and that is about
as far as most public perceptions will go. There will be great
disappointment if a decent solution to all these problems cannot
emerge from this Committee and be approved by the two Houses.
What I am saying is that it is difficult perhaps to isolate one
particular aspect of itimportant and urgent though that
may beuntil you have decided on some of the more general
definitions and other things you have mentioned. That seems to
me to be fundamental in the consideration of any problem really.
What I think I am saying is: "do not be hustled into doing
something prematurely before you have thought out the real fundamental
Mr Alan Williams: In light of that, would it
be possible to ask whether the timetable we have set ourselves
in relation to bribery is really as invariable as we have assumed
it to be? This may be more a question for the Leader of the House.
34. I think this is something we should consider
later today perhaps. Can I just ask as a supplement to that, Sir
Donald, what precisely are the questions in the earlier part of
your memorandum that you think we may need to consider before
we can answer the questions we are now addressing?
(Sir Donald Limon) I do not particularly want to pick
any out but one very minor one was mentioned which has always
seemed to me to be absurd ever since I first set foot in this
building and that is that a member called as a witness in a perfectly
normal case outside Parliament should be able to claim immunity
from going to the court as a witness. I have to sign certificates
or advise the Speaker to do so and I do it with grave misgiving
every time: I think it is quite absurd. I do not see any rhyme
or reason for it. That is a small point but something that we
do cover here and one which could be easily cleared up.
35. I understand that but what I am not clear
about at the moment -and I certainly have no particular views
at the moment about itis the appropriate way of handling
any of the matters before this Committee. How does the answer
to that bear on the questions we have to consider? I would like
your help because I do want to be very sure that we do not fall
into the trap of putting the cart before the horse.
(Sir Donald Limon) I think much more fundamentally
one needs to make quite sure that everyone now understands this
twin horn of standards and privileges. We have a committee now
that deals with both these things by entirely separate procedures
actually; have we got the distinction right and are we dealing
with the two matters in the best way? There has been a lot of
criticism of the way we have been dealing with standards but we
have taken it upon ourselves to deal with them in that particular
way. Again, the question is whether the dividing line between
standards and privileges is exactly as we would like it to be.
Is it correct, and should they be treated by the same committee
in the House of Commons? Is the issue being blurred by the presence
in our jurisdiction now of the Parliamentary Commissioner for
Standards? Is he being used in the way which was originally envisaged?
All those things come up and impinge upon those other problems.
(Mr McKay) Behind those, Chairman, I would add that
the big problem for the Committee is whether you will recommend
codification in statute of the privileges, because if you do you
have made a great leap both intellectually and over the centuries.
No other Anglo Saxon Parliament has done it completely, deliberately,
and doing so will, of its nature, raise all the other problems.
What do we put in? Is the exemption about subpoenas to go in?
How do we define "proceedings in Parliament"? How do
we ensure that the Houses retain their own control over interpretation
and do not simply subject themselves over a period of years to
the courts? There are internal issues such as Sir Donald mentions,
and external ones too.
(Sir Donald Limon) Another question which springs
to mind is what adjustments are needed now that Parliament has
given itself severalI was going to say quasi-executive
functionsreally executive functions in recent years. For
example, by taking over the works and buildings and its own printing
arrangements, we are in the commercial field; I am the Corporate
Officer and people can sue meand are doing soand
privilege (as we are going to find out in the next few weeks)
impinges on that. Is that any longer sustainable or sensible?
That is a very important side issue we are going to have to deal
Mr Bill Michie
36. Could I follow on from that? I think it
is right to say that the status quo cannot remain intact. Whether
we have the status quo is not an option. The status quo with a
bit of tinkering with one or two things we do not like, which
are obviously out of date, will not necessarily satisfy the public,
and the public will have a say in this over the next few months.
Surely we are coming to the conclusion that there has to be some
form of definition and there will have to be some sort of codifying
and surely that is the job of this Committee, with your advice,
on how we proceed? We do not have to throw the baby out with the
bathwater. There can be a certain structuring carried out with
a lot of thought which will, hopefully, give us a chance to define
the differences between what should be covered by ourselves and
what should be covered by the courts.
(Sir Donald Limon) Well, I entirely agree with that
and I do not think it is any great secret that the officers of
both Houses over a period now have been saying behind scenes that
privilege generally is badly in need of a thorough overhaul. It
simply does not meet all modern circumstances, which is a very
general point, but there it is. I believe it is a perception which
the public also has. As this is, so to speak, my swansong, I feel
I should put over the message to you that this is the best opportunity
we have had for a long time to set this to rights. But nobody,
least of all myself, pretends that it is going to be easy; it
is not. It is going to be extremely difficult to get it right.
37. My Lord Chairman, could I just ask Sir Donald
a question in the light of some of the observations that he has
made and Mr Benton has made. I think it is probable that we would
all agree that there is at the moment a huge interest by the public
in the issues which we are deciding. That being so, what I would
like to ask is this: how important is it that when we do eventually
come to our conclusions, they should appear to the public to be
sensible and intelligible? I ask that because we seem to me to
be having six proposals in front of us, of which the first two
are extremes of course which could be explained without difficulty,
and the remaining four are all, in one way or another, compromises
based on very real problems which we all understand and accept,
based on niceties of interpretation perhaps, based on how we might
develop the concept of codification. Would you see any of those
four compromise alternatives being able to be presented in a way
which the public would say, "Oh yes, that is sensible and
we understand that". If so, which of the four do you think
is the more likely candidate on that basis?
(Sir Donald Limon) I wonder who the public are in
this respect. We hear the phrase "the chattering classes"
mentioned occasionally and I believe that they are interested
in this. I do not think the man on the top of the number 11 bus
is all that interested in it, but he is uneasy about some of the
things which have happened in Parliament in recent years, although
it does not go much beyond that. If we are going to try to alleviate
that feeling, we should do so and we may have to do so by quite
subtle means. But I do not think there are many people deeply
interested outside the specialist field. Indeed I go around saying
that I do not think many Members of Parliament have much of a
clue about all of this or are terribly interested in it actually.
But it is, we all have to acknowledge, very important. I think
this Committee has got this difficult dual role. They have got
to take into account those feelings both outside and inside Parliament
and try and alleviate them, while at the same time taking into
account these immense difficulties, looking perhaps at the way
they have been dealt with in particular in some of the senior
Commonwealth countries and seeing if anything can be learned from
that, and then coming up with recommendations. I see that as an
immense problem and one which will take you a lot of study to
get right and I just am nervous when we start talking straightaway
about how to solve one particular problem in one of six ways.
Of course we have to address it and I think that the last option
raised in our paper is, to use Bill McKay's words, the least worst,
but there may be others which will be thought of by yourselves
in the light of your evidence. I do not think we have exhausted
all the possibilities this morning in relation to bribery; there
may be others. We, the Clerks of the two Houses, are not lawyers
and there is a big legal element here which needs to be taken
into account and proper advice given, I would suggest, by lawyers.
There are two sides to this coin. You are doing it from the parliamentary
aspect, but the legal aspects are of great importance to the law
and you will need very authoritative legal evidence on how to
do it, to set beside the evidence which we are able to give you
which is based mainly on precedent. Clerks are always in this
difficulty in that they are supposed to tell you about the precedents,
but they may not feel that all of them are all that good.
38. Sir Donald, you mentioned authoritative
legal evidence. Do you have anybody in mind?
(Sir Donald Limon) In Parliament it is traditional
to start off with the Attorney, I think, and see where you go
from there, as it were.
39. I understand, Sir Donald, that you and Mr
McKay have an appointment with the Speaker at midday, but can
I just ask you one last question this morning and that is this:
going to the least worst of the six alternatives, as I understand
it, this really depends upon hoping that corruption never arises
in relation to proceedings in Parliament. Can that be a satisfactory
(Mr McKay) I would say, Chairman, that, as I understand
it, it has been pragmatically possible since 1914 in Australia,
nearly a century, and we might hope for a century of peace.
40. Thank you very much for coming. We will
now deliberate and there may be a possibility arising from our
discussions that we would welcome further evidence from you on
the 16th of this month. Could I ask you if you would kindly keep
that date available and of course we will let you know through
the usual channels if we wish to question you further. Thank you
very much indeed.
(Sir Donald Limon) Thank you very much.