Examination of Witnesses (Questions 60
TUESDAY 16 DECEMBER 1997
MR W R MCKAY
60. Someone has got to think again about what
that forum should be.
(Sir Donald Limon) Yes.
Mr Joe Benton
61. I agree with the last remarks because I
think one of the problems that you could face is arriving at a
common definition of privilege, which I think is going to be a
very difficult thing to achieve. If we are charged as a Committee
really to modernise and to modernise in the public perception,
I think there could be a problem in terms of what Mr Williams
has suggested in agreeing or recognising a common idea of what
privilege is about. You have mentioned some problems this morning.
What do you enshrine in a common recognition of parliamentary
privilege? I can see too, just as an aside, that there should
be great consideration givenonce you have arrived at a
common definition and, if you like, a code of conducton
things like induction courses for Members of both Houses so that
a common understanding of parliamentary privilege comes across.
But the real difficulty now, I would think, is really to get a
common definition of what we mean by "privilege". My
view on some of the points that have been raised, both in this
session of evidence and the last, would be that the great public
outside Parliament would say that the notion of Members being
able to stand up, for example, and use the freedom of the House
to castigate, chastise, even to do what outside Parliament would
be slanderous, is totally redundant. To me we would be missing
our function if we did not have regard to that, and say that it
is time we considered whether such rights should exist for a parliamentarian
in our kind of House. I think that is the way the world is thinking
(Sir Donald Limon) I accept that and, of course, it
has been done in an indirect way because successive Speakers have
frequently said that the privilege of freedom of speech should
be used with discretion and have deplored some statements which
Members have made in the House which seem to be really, frankly,
an abuse of privilege. It does not happen often but there have
been occasions when the Speaker has appealed for restraint on
freedom of speech in the House. The codification of that would
be extraordinarily difficult but that has already occurred quite
frequently and occupants of the chair have had to intervene. There
was one case over the question of revealing the names of children
who were involved in court proceedings. That is a good example.
(Mr McKay) The Australian Senate has a procedure in
which those outside Parliament who are attacked by a Member in
Parliament have a right of reply, subject to certain qualifications.
I think it is sieved through the Privileges Committee but that
right of reply, if accepted, gets a publication in the official
62. I accept that the chastisement will existno
doubt under the present Speaker as well because I have actually
seen that happen. But surely the point we are trying to challenge
or tackle is the fact that the right to do it still remains enshrined.
And it is archaic. It is not right, the way I view it anyway,
that people with ordinary rights, inside or outside Parliament,
should be able to say with impunity whatever they like. I know
how it is exercised in practice but it is not right to me and
neither do the general public think it is right. We have a problem
there in terms of an all-embracing concept of privileges.
(Mr McKay) I think the difficulty in making some general
provision to stop the kind of castigation or somehow to make a
Member liable for the kind of castigation which you mentioned,
can be quite readily solved where we are talking about private
individuals. But it would be difficult to make an arrangement
which distinguished between an individual Member of the public
who was subject to attackperhaps wronglyin Parliament
and a very wealthy individual who conceived that he or she was
attacked and took an action against a member, the purpose of which
was not redress of grievance but intimidation.
63. Going back to the widest generalities again
for a moment, I think it was Mr McKay who expressed the viewand
I am not trying to put words in anybody's mouththat what
we need is a clearly thought out statement of the law. So one
then has to address the question of what form that should take.
Clearly, it would be impossible to produce a satisfactory, detailed,
comprehensive code for the reasons that have been explored. But
is there any reason why one cannot devise a clear comprehensive
statement of the principles which would then fall to be applied
in circumstances as and when they arise? For example, if it were
to be regarded as contempt of Parliament to engage in activity
which improperly obstructs Members or the Houses in discharging
their duties, thatsuitably expressedwould be the
principle and then it would be a case of applying that principle
in the multitude of circumstances that exist and, in terms of
explaining to the public, there is a defensible clear statement
of case. Can you help us on whether an approach along those lines
could be productive?
(Mr McKay) It is the solution, Chairman, I think which
is employed in Australia, where the statute simply says "The
key to all this is interference with the functions of the House
or the Member", and I think there are resolutions of one
or both Houses of the Commonwealth Parliament to say "These
are the principles which we would regard as moderating this concept
of contempt". So at least the public knows, in very general
terms in the law and slightly more precise terms (but not absolutely
precise) in resolutions of a Parliamentary character, what contempt
is likely to be.
64. Any statement in a statute involves boundary
lines, what is in and what is out, and that is what lawyers are
all about. If the scope of parliamentary privilege were to be
redefined as a series of principles in a statute, the question
would then arise: who is going to interpret the statute. Traditionally
the interpretation of statutes is a function of the courts. They
interpret the law as enacted and apply it. Can you help us on
whether that would be a satisfactory method of handling such legislation
and, if not, what alternatives would you suggest?
(Mr McKay) I ventured to suggest very gingerly at
the last meeting that, if it were possible (by means which I am
not qualified to advise on) for Parliament to be again in a sense
the High Court of Parliament and to be able to say within the
statute "We think that this phrase has a certain meaning
or covers a particular area" and for the courts then in a
case which came before them later to take that as if it were an
earlier decision or a decision of a superior court, then I think
you might thereby reposition the balance between Parliament and
the courts. You would not ask the courts to give decisions on
facts which it was difficult sometimes to prove before them because
of the limitations of the Bill of Rights or whatever succeeded
it. It would allow Parliament an input however into the final
decision which properly would remain that of the courts.
65. We can explore this in due course with lawyers.
One possibility might be that a certificate from, for example,
the Speaker or the Lord Chancellor on whether a particular activity
was or was not within the scope of the principle was to be conclusive.
There may be possible ways of keeping interpretation within the
control of the Houses but, simply as a matter of general principle,
do you have any comment on the other possibility which is that
the courts should interpret the statute?
(Mr McKay) I think that might not be so much of an
improvement on the, frankly, sometimes uneasy relationship that
we have at the moment where Parliament feels that it is in the
hands very often of the courts. The traditional deference of the
19th century (which one does not look for in the 21st) has simply
Lord Archer of Sandwell
66. In choosing, if we have to, between Parliament
and the courts for construing a statute in this field, is not
the difficulty we are in that, as Mr McKay said at the last hearing,
we are talking about political conduct and the political culture
and about a political culture which has changed very substantially
over the last few yearscertainly over the political lifetime
of some of usin deciding, for example, whether something
is or is not corrupt? On the one hand you can argue that the politicians
are nearer the ground on this, that they are better able to construe
what the statute was getting at: on the other hand there is clear
public perception that they are judging their own cause and that
it would be better if it were removed from them. How do we decide
between those two?
(Mr McKay) It would be for Parliament to decide as
a matter of generality whether, let us say, the taking of certain
amounts of money or goods in connection with constituency work
was acceptable to the House or not. A Member who thereafter in
an individual case took money would be, as we were suggesting
at the last meeting, be charged. When the charge was tried, the
court would be able to say, "We know that the Houses at least
regard what was done in this case as not culpable". So the
political culture would make its statement and the courts would
make the judgment.
67. If I may pick up the question of Members'
correspondence, there is a growing practice, I understand, of
Members not writing to ministers but getting their research assistants
to write directly to ministers, or so I am told. To what degree
it is true I do not know. There is no privilege involved in that.
(Mr McKay) There is not, my Lord, but it is one of
the issues which we ought to address when we come to this problem
of drawing up the principles which ought to inform privilege.
It can doubtless be done quite readily one way or the other depending
on what the Committee thinks ought to be the extent of protection.
Lord Mayhew of Twysden
68. Just to go back to Mr McKay's suggestion
of Parliament or the House expressing its own opinion and that
being taken account of by the court. I suppose that would require
comprehensive means by which the House could arrive at an understanding
of what had happened. In other words, it would have to have much
better procedures for trying a case than it seems to have at the
moment, otherwise it might form an opinion upon an incomplete
understanding, which the courts would say was insufficient?
(Mr McKay) My Lord, you would have to be perfectly
clear that the Houses ought not to be in the business of giving
opinions on an instant case. If a matter came before the courts,
you would have to regard it as too late for the Houses to say
anything about the background or the generality, because that
would be interfering with justicetrying someone twice.
69. Are you saying that the courts in that position
would be bound by the views of Parliament or that it is merely
a matter they should take into consideration in coming to a decision?
(Mr McKay) It ought to be a matter of taking the view
of Parliament into consideration rather than being bound by it.
There is no doubt the Judges are always telling us that they are
anxious to live in comity with the House, so an expression of
serious opinion by the House ought to be seriously treated by
the courts. We need not go for the overkill of binding them.
Mr Alan Williams
70. Does that mean that it would become more
unpredictable for a Member to know whether what he is doing is
acceptable or not?
(Mr McKay) I think it would be less unpredictable.
At least he would have the benefit of the views of his peers in
the political culture taken over the previous twenty or thirty
years. The outcome would be no less predictable because, just
as at the moment you have when you go into court all the precedents
that the judge is likely to take into account, you would have
all the resolutions of the Houses of which the court would take
notice as well, or the certificate of the presiding officer of
the House to say "This view has got to be regarded as final".
71. Sir Donald, you have helpfully indicated
that officials of the two Houses would prepare a joint memorandum
along the lines that have been mentioned which is really writing
a code with the principles and the details from scratch. So I,
for my part, will not ask you questions about what things you
would change in detail from the present law until we have seen
the memorandum, because it would be more satisfactory when you
have had a chance to put your thoughts in writing, but I would
like to ask your help on one or two more detailed matters. The
first harks back a little bit to the subject we discussed at our
last meeting of bribery and it really raises the question: to
what extent should freedom of speech, Article IX, be regarded
as sacrosanct so that, if bribery legislation is introduced, that
should not encroach upon proceedings in Parliament. Do you think
that amenabilityassuming that the criminal legislation
was so fashioned that it does apply to Members and there is no
exception for Members in respect of a Parliamentary proceedingto
the criminal law in the event of charges of bribery would inhibit
honest Parliamentary speech and conduct?
(Sir Donald Limon) I do not see why it should in the
sort of areas in which you are now talking. I do not see why at
(Mr McKay) No.
72. If the alternative approach were adopted
in legislation, taking the two extremes, and bribery in relation
to proceedings in Parliament were excluded from the scope of the
criminal courts, such conduct would remain subject to discipline
by the House. If that prospect does not inhibit freedom of speech,
is there any reason for thinking that the prospect of the courts
becoming involved should any more inhibit freedom of speech?
(Sir Donald Limon) I do not myself see that it need
do that, no.
(Mr McKay) The prospect of a Member who is at fault
appearing before either tribunal would be equally daunting. The
real problem it seems to me lies in the principle of allowing
a Member to be answerable outside the House.
73. But in terms of practical impact on the
conduct of the Member and on the purpose which the freedom of
speech is intended to achieve (which is freedom of speech), you
do not see that the application of the criminal law should be
any more inhibiting than the prospect of appearing in proceedings
involving discipline by the House?
(Mr McKay) If by "criminal law" you mean
an offence which is coupled with a general offence but specifically
aimed at Parliamentary activity, no. I do not see any practical
74. Is not the problem in giving the criminal
courts the jurisdiction to deal with corruption and bribery, both
as part of proceedings of Parliament and as not part of proceedings
of Parliament, the simple fact of Article IX? I have a strong
predilection myself for giving the criminal courts the jurisdiction
for a serious offence such as bribery or corruption wherever possible.
Is there any reason why the criminal courts should not embark
upon hearing a charge of bribery and corruption which does involve
proceedings in Parliament, subject to the procedure that it would
be open to the court at any time to say, "We cannot fairly
try this case because of the restrictions of Article IX".
You would therefore have a situation in which, when the case started,
counsel on both sides might wish to make submissions to the judge
that it would not be proper, having regard to Article IX, to continue
with the case, or at any moment in the course of the case the
judge might say, "Considerations are clearly arising here
which involve discussion of what went on in Parliament and, therefore,
are a breach of Article IX," and, therefore, at any stage
in the case the judge could say, "No, this is not possible.
I must cease to try this case and I will invite the House of Parliament
to continue to hear the case itself if it wishes to do so."
It is rather the obverse of the situation that you suggested,
I think, last time in your paper under your fifth example, whereby
the House of Parliament might waive its privilege and, in fact,
transfer the jurisdiction to the criminal court. Could you not
put the jurisdiction primarily with the criminal court with the
right to transfer it to the House of Parliament where necessary?
(Mr McKay) I think you could. It would be a shift
in balance from Article IX. It would be possibly an analogue of
what happened in the trial of Mr Harry Greenway for misuse of
public office, where the issue of Article IX and the triability
(or the existence) of the offence, if it related to an action
done by a Member, was argued. The judge said, "If these things
were done by a Member they are triable here and they are not within
Article IX." But as I say, that amounted to quite a different
approach from that of previous years, that of saying Article IX,
its existence or its absence, is a matter for Parliament.
(Sir Donald Limon) I cannot help adding this point,
that some of the answers which Mr McKay appeared to be making
last week did make that kind of proceeding very difficult.
75. I would like to go back to the beginning.
If we came to the conclusion that the main concern of the public
was that there was a risk of MPs being bribed, if we came to the
conclusion, after looking at all the detail, at the end of the
day that the reason why we were really here was because there
was great public concern about bribery of MPs, why should not
we make a special case for bribery? Why do we always keep coming
back and saying Article IX is sacrosanct? Why should not one say
that bribery is so serious a matter and is causing so much public
concern that in the case of prosecutions of Members of Parliament
for bribery and in the case of prosecution of people for offering
bribes to Members of Parliament, parliamentary privilege is removed
from witnesses and parties to the case, and Article IX is disapplied
so far as parties and witnesses to the case are concerned? I am
not quite sure why we are getting so stuck on this point. It does
not seem inconceivable that one should have to amend Article IX
in that regard.
(Sir Donald Limon) I personally have no difficulty
with that. I think if that were to be the position, I can quite
see the pressures for that. What Lord Waddington says is bound
to arise and the whole thing would collapse before you started.
76. I do not see the point of starting a trial
and then having to say "the whole thing has to be aborted
because Parliament insists on wrecking the work of the courts
because it is not prepared to amend Article IX", which is
really the position one would have got into in the solution put
forward by Lord Wigoder.
(Sir Donald Limon) I think one of the points which
would have to be very carefully considered before that kind of
solution was embarked upon would be where, if we could get a dividing
line here, not necessarily statutory, it would be relatively easy
to say, "This particular case falls on that side of the line
and that on that side." I totally agree that once it has
been decided which side of the line it falls, then whichever jurisdiction
is doing it would have to be uninhibited in what evidence it called.
77. Is this not in a way vindicating what we
decided at the last meeting, where we said that we had started
looking at the problem the wrong way round, that if you start
with bribery you end up in a terrible mess. Should we not adopt
what I described as the statistical best fit approach and devise
a concept of privilege which fits the maximum number of situations
that can be encompassed? It may not encompass them all but at
the end you have your exclusion, you have your separate non-accommodated
items and then you specifically deal with them. I think that is
why we are beginning to make more progress now because we are
starting at the right end there?
(Sir Donald Limon) One of the things which troubles
me about all this is, even supposing we got satisfactory dividing
lines and they were not too difficult cases in deciding where
they should gothis is something which is referred to in
our memorandum but we have not touched on much in the last meetingI
think Parliament has to get its act together on this question
of punishments and sanctions which it itself can impose. In theory
we probably could imprison but nobody is going to do that. Fines
were recommended by one of this Committee's fairly recent predecessors
but nothing has been done about it, and expulsion, though, of
course, it is a very severe punishment, might not be regarded
as a sufficient punishment by those outside. I think the whole
question of sanctions and punishments needs very careful thought
by this Committee as an adjunct to whatever it is recommending
on other matters, because unless you have decent sanctions at
this end of the spectrum, the whole thing again could turn out
to be a great mistake. So I think a lot of thought needs to be
given to that and also the question of punishment of recent former
Members, which is something we have mentioned before. There is
a real difficulty here which the Committee on Standards and Privileges
mentioned in a recent report. All those sorts of ancillary problems
need to be sorted out in any solution which is arrived at.
(Mr McKay) The only addition, Chairman, I would make
to that is to draw your attention to some of the punishments in
the Protection from Corruption Acts, where it is possible to withdraw
from those who have been convicted of corruption, not Members
but others, in a sense their political rights. You cannot stand
for Parliament, you cannot stand for a local authority and you
cannot vote for X years. In other words, whatever other punishments
either House decided to levy, it might possibly also be able to
levy some political punishment, exclusion from political society.
The other thing, to add to what the Clerk of the House said, is
you cannot, of course, expel a Peer from the House of Lords.
78. And that is in the Australian new set of
rules. They took away the power of expulsion, did they not?
(Mr McKay) They have taken away the power of expulsion,
yes, but I suspect because they have replaced it by imprisonment
and fines, or at any rate they have introduced securely based
imprisonment and fines.
79. We will come on to punishment in a moment.
Before we do so, can I turn to a different detailed point, Sir
Donald, and ask your help. It concerns the types of communication
to which, using shorthand, the Article IX freedom should apply.
At the one extreme are statements made in the House or in a committee;
at the other extreme perhaps is the unsolicited letter from a
constituent or someone else to a Member giving the Member information
which concerns a matter of public importance. It is difficult
to see how the latter could conceivably fall within the freedom
of speech rights guaranteed to Members. Such a letter might or
might not attract qualified privilege for the purposes of the
courts, for the purposes of the law of defamation proceedings,
but that is far removed from the object underlying Article IX.
Where do you think the boundary should be drawn and why?
(Mr McKay) I think the key boundary is whether it
is connected with something which undoubtedly is a proceeding.
If I, being a Member, receive a letter solely or principally on
the basis of which I then table and ask a question, then there
may be an argument for throwing the cloak of privilege over that
letter which would not apply to a letter sent to me as a Member
drawing my attention to some other matter which I did not raise
in the House. That again, I think, is an Australian distinction.
It is useful.