Parliamentary Privileges Report

Examination of Witnesses (Questions 60 - 79)



  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 given—once you have arrived at a common definition and, if you like, a code of conduct—on 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 outside.
  (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 report.

  62. I accept that the chastisement will exist—no 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 attack—perhaps wrongly—in 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 view—and I am not trying to put words in anybody's mouth—that 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, that—suitably expressed—would 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 disappeared.

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 years—certainly over the political lifetime of some of us—in 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.

Lord Merlyn-Rees

  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 justice—trying someone twice.

Lord Wigoder

  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 amenability—assuming 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 proceeding—to 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 all.
  (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 distinction.

Lord Wigoder

  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.

Lord Waddington

  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.

Mr Williams

  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 go—this is something which is referred to in our memorandum but we have not touched on much in the last meeting—I 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.

Mr Michie

  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.

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